[Title 32 CFR VI]
[Code of Federal Regulations (annual edition) - July 1, 2002 Edition]
[Title 32 - NATIONAL DEFENSE]
[Subtitle A - Department of Defense (Continued)]
[Chapter Vi - DEPARTMENT OF THE NAVY]
[From the U.S. Government Printing Office]


32NATIONAL DEFENSE52002-07-012002-07-01falseDEPARTMENT OF THE NAVYVICHAPTER VINATIONAL DEFENSEDepartment of Defense (Continued)
                   CHAPTER VI--DEPARTMENT OF THE NAVY




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    SUBCHAPTER A--UNITED STATES NAVY REGULATIONS AND OFFICIAL RECORDS
Part                                                                Page
700             United States Navy regulations and official 
                    records.................................           9
701             Availability of Department of the Navy 
                    records and publication of Department of 
                    the Navy documents affecting the public.          45
705             Public affairs regulations..................         134
                        SUBCHAPTER B--NAVIGATION
706             Certifications and exemptions under the 
                    International Regulations for Preventing 
                    Collisions at Sea, 1972.................         172
707             Special rules with respect to additional 
                    station and signal lights...............         183
                         SUBCHAPTER C--PERSONNEL
716             Death gratuity..............................         184
718             Missing Persons Act.........................         190
719             Regulations supplementing the manual for 
                    courts-martial..........................         192
720             Delivery of personnel; service of process 
                    and subpoenas; production of official 
                    records.................................         206
721-722         [Reserved]

723             Board for Correction of Naval Records.......         223
724             Naval Discharge Review Board................         229
725             Release of official information for 
                    litigation purposes and testimony by 
                    Department of the Navy personnel........         263
726             Payments of amounts due mentally incompetent 
                    members of the Naval service............         276
727             Legal assistance............................         279
728             Medical and dental care for eligible persons 
                    at Navy medical department facilities...         284
732             Nonnaval medical and dental care............         348

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733             Assistance to and support of dependents; 
                    paternity complaints....................         362
734             Garnishment of pay of Naval military and 
                    civilian personnel for collection of 
                    child support and alimony...............         368
735             Reporting births and deaths in cooperation 
                    with other agencies.....................         370
       SUBCHAPTER D--PROCUREMENT, PROPERTY, PATENTS, AND CONTRACTS
736             Disposition of property.....................         372
744             Policies and procedures for the protection 
                    of proprietary rights in technical 
                    information proposed for release to 
                    foreign governments.....................         376
746             Licensing of government inventions in the 
                    custody of the Department of the Navy...         377
                          SUBCHAPTER E--CLAIMS
750             General claims regulations..................         382
751             Personnel claims regulations................         407
752             Admiralty claims............................         436
755             Claims for injuries to property under 
                    Article 139 of the Uniform Code of 
                    Military Justice........................         439
756             Nonappropriated-fund claims regulations.....         441
757             Affirmative claims regulations..............         444
              SUBCHAPTER F--ISLANDS UNDER NAVY JURISDICTION
761             Naval Defensive Sea Areas; Naval Airspace 
                    Reservations, areas under Navy 
                    administration, and the Trust Territory 
                    of the Pacific Islands..................         452
762             [Reserved]

763             Rules governing public access...............         464
                    SUBCHAPTER G--MISCELLANEOUS RULES
765             Rules applicable to the public..............         467
766             Use of Department of the Navy aviation 
                    facilities by civil aircraft............         471
767             Application guidelines for archeological 
                    research permits on ship and aircraft 
                    wrecks under the jurisdiction of the 
                    Department of the Navy..................         481
768-769         [Reserved]

770             Rules limiting public access to particular 
                    installations...........................         485
771-774         [Reserved]

775             Procedures for implementing the National 
                    Environmental Policy Act................         496

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776             Professional conduct of attorneys practicing 
                    under the cognizance and supervision of 
                    the Judge Advocate General..............         504
777-799         [Reserved]


Cross References: Panama Canal: See 35 CFR chapter I.

  National Oceanic and Atmospheric Administration, Department of 
Commerce: See 15 CFR chapter IX.

  Coast Guard, Department of Transportation: See 33 CFR chapter I; 46 
CFR chapter I.

  Office of the Secretary of Defense: See 32 CFR chapter I.

  Department of the Army: See 32 CFR chapter V.

  Navigation and Navigable Waters (Anchorage Bridge, Danger Zone, 
Navigation, and Oil Pollution Regulations, etc.): See 33 CFR chapters I 
and II.

  Selective Service System: See 32 CFR chapter XVI.

  Department of Veterans Affairs: See 38 CFR chapter I.

[[Page 9]]



    SUBCHAPTER A--UNITED STATES NAVY REGULATIONS AND OFFICIAL RECORDS



PART 700--UNITED STATES NAVY REGULATIONS AND OFFICIAL RECORDS--Table of Contents




                       Subpart A--Navy Regulations

Sec.
700.101 Origin and history of United States Navy Regulations.
700.102 Statutory authority for issuance of United States Navy 
          Regulations.
700.103 Purpose and effect of United States Navy Regulations.
700.104 Statutory authority for prescription of other regulations.
700.105 Issuance of directives by other officers and officials.
700.106 Control of administrative requirements.
700.107 Maintenance of Navy Regulations.

                  Subpart B--The Department of the Navy

700.201 Origin and authority of the Department of the Navy.
700.202 Mission of the Department of the Navy.
700.203 Composition.
700.204 The principal elements of the Department of the Navy.

                  Subpart C--The Secretary of the Navy

                        The Secretary of the Navy

700.301 Responsibilities of the Secretary of the Navy.
700.302 Responsibilities within the Department of the Navy.
700.303 Succession.
700.304 Recommendations to Congress.
700.305 Assignment of functions.
700.306 Assignment of duty and titles.
700.307 Powers with respect to the Coast Guard.

                 The Office of the Secretary of the Navy

700.310 Composition.
700.311 Sole responsibilities.
700.312 Authority over organizational matters.

     The Office of the Secretary of the Navy/The Civilian Executive 
                               Assistants

700.320 The Civilian Executive Assistants.
700.321 The Under Secretary of the Navy.
700.322 Assistant Secretaries of the Navy; statutory authorization.
700.323 The Assistant Secretary of the Navy (Financial Management).
700.324 The Assistant Secretary of the Navy (Manpower and Reserve 
          Affairs).
700.325 The Assistant Secretary of the Navy (Installations and 
          Environment).
700.326 The Assistant Secretary of the Navy (Research, Development and 
          Acquisition).
700.327 The General Counsel of the Navy.

        The Office the Secretary of the Navy/The Staff Assistants

700.330 The Staff Assistants.
700.331 The Judge Advocate General.
700.332 The Naval Inspector General.
700.333 The Chief of Naval Research.
700.334 The Chief of Information.
700.335 The Chief of Legislative Affairs.
700.336 The Director, Office of Program Appraisal.
700.337 The Auditor General.

                Subpart D--The Chief of Naval Operations

700.401 Precedence.
700.402 Succession.
700.403 Statutory authority and responsibility of the Chief of Naval 
          Operations.
700.404 Statutory authority and responsibility of the Office of the 
          Chief of Naval Operations.
700.405 Delegated authority and responsibility.
700.406 Naval Vessel Register, classification of naval craft, and status 
          of ships and service craft.

              Subpart E--The Commandant of the Marine Corps

700.501 Precedence.
700.502 Succession.
700.503 Statutory authority and responsibility of the Commandant of the 
          Marine Corps.
700.504 Statutory authority and responsibility of the Headquarters, 
          Marine Corps.
700.505 Delegated authority and responsibility.

Subpart F--The United States Coast Guard (When Operating as a Service of 
                                the Navy)

700.601 Relationship and operation as a service in the Navy.
700.602 The Commandant of the Coast Guard.
700.603 Duties and responsibilities.

[[Page 10]]

           Subpart G--Commanders in Chief and Other Commanders

                     Titles and Duties of Commanders

700.701 Titles of commanders.
700.702 Responsibility and authority of commanders.
700.703 To announce assumption of command.
700.704 Readiness.
700.705 Observance of international law.
700.706 Keeping immediate superiors informed.

                          Staffs of Commanders

700.710 Organization of a staff.
700.711 Authority and responsibilities of officers of a staff.

                      Administration and Discipline

700.720 Administration and discipline: Staff embarked.
700.721 Administration and discipline: Staff based ashore.
700.722 Administration and discipline: Staff unassigned to an 
          administrative command.
700.723 Administration and discipline: Separate and detached command.

                    Subpart H--The Commanding Officer

                     Commanding Officers in General

700.801 Applicability.
700.802 Responsibility.
700.804 Organization of commands.
700.809 Persons found under incriminating circumstances.
700.810 Rules for visits.
700.811 Dealers, tradesmen, and agents.
700.812 Postal matters.
700.815 Deaths.
700.816 The American National Red Cross.
700.819 Records.
700.822 Delivery of personnel to civil authorities and service of 
          subpoena or other process.
700.826 Physical security.
700.827 Effectiveness for service.
700.828 Search by foreign authorities.
700.832 Environment pollution.
700.834 Care of ships, aircraft, vehicles and their equipment.
700.835 Work, facilities, supplies, or services for other Government 
          departments, State or local governments, foreign governments, 
          private parties and morale, welfare, and recreational 
          activities.

                       Commanding Officers Afloat

700.840 Unauthorized persons on board.
700.841 Control of passengers.
700.842 Authority over passengers.
700.844 Marriages on board.
700.845 Maintenance of logs.
700.846 Status of logs.
700.847 Responsibility of a master of an in-service ship of the Military 
          Sealift Command.
700.848 Relations with merchant seamen.
700.855 Status of boats.
700.856 Pilotage.
700.857 Safe navigation and regulations governing operation of ships and 
          aircraft.
700.859 Quarantine.
700.860 Customs and immigration inspections.

       Special Circumstances/Ships in Naval Stations and Shipyards

700.871 Responsibility for safety of ships and craft at a naval station 
          or shipyard.
700.872 Ships and craft in drydock.
700.873 Inspection incident to commissioning of ships.

          Special Circumstances/Prospective Commanding Officers

700.880 Duties of the prospective commanding officer of a ship.

                  Subpart I--The Senior Officer Present

                                Contents

700.901 The senior officer present.
700.902 Eligibility for command at sea.
700.903 Authority and responsibility.
700.904 Authority of senior officer of the Marine Corps present.
700.922 Shore patrol.
700.923 Precautions for health.
700.924 Medical or dental aid to persons not in the naval service.
700.934 Exercise of power of consul.
700.939 Granting of asylum and temporary refuge.

              Subpart J--Precedence, Authority and Command

                                Authority

700.1020 Exercise of authority.
700.1026 Authority of an officer who succeeds to command.
700.1038 Authority of a sentry.

                             Detail to Duty

700.1052 Orders to active service.
700.1053 Commander of a task force.
700.1054 Command of a naval base.
700.1055 Command of a naval shipyard.
700.1056 Command of a ship.
700.1057 Command of an air activity.
700.1058 Command of a submarine.
700.1059 Command of a staff corps activity.

                     Subpart K--General Regulations

                          Standards of Conduct

700.1101 Demand for court-martial.

[[Page 11]]

700.1113 Endorsement of commercial product or process.
700.1120 Personal privacy and rights of individuals regarding their 
          personal records.

                            Official Records

700.1121 Disclosure, publication and security of official information.
700.1126 Correction of naval records.
700.1127 Control of official records.
700.1128 Official records in civil courts.

                          Duties of Individuals

700.1138 Responsibilities concerning marijuana, narcotics, and other 
          controlled substances.
700.1139 Rules for preventing collisions, afloat and in the air.

                         Rights and Restrictions

700.1162 Alcoholic beverages.
700.1165 Fraternization prohibited.
700.1166 Sexual harassment.
700.1167 Supremacist activity.

    Authority: 10 U.S.C. 6011.

    Source: 64 FR 56062, Oct. 15, 1999, unless otherwise noted.



                       Subpart A--Navy Regulations



Sec. 700.101  Origin and history of United States Navy Regulations.

    (a) United States Navy Regulations began with the enactment by the 
Continental Congress of the ``Rules for the Regulation of the Navy of 
the United Colonies'' on November 28, 1775. The first issuance by the 
United States Government which covered this subject matter was ``An Act 
for the Government of the Navy of the United States,'' enacted on March 
2, 1799. This was followed the next year by ``An Act for the Better 
Government of the Navy of the United States.''
    (b) In the years preceding the Civil War, twelve successor 
publications were promulgated under a number of titles by the President, 
the Navy Department and the Secretary of the Navy. A decision by the 
Attorney General that the last of the pre-Civil War issuances was 
invalid led to the inclusion in the 1862 naval appropriations bill of a 
provision that ``the orders, regulations, and instructions heretofore 
issued by the Secretary of the Navy be, and they are hereby, recognized 
as the regulations of the Navy Department, subject, however, to such 
alterations as the Secretary of the Navy may adopt, with the approbation 
of the President of the United States.''
    (c) Thirteen editions of Navy Regulations were published in 
accordance with this authority (later codified as Section 1547, Revised 
Statutes) between 1865 and 1948. The 1973 edition of Navy Regulations 
was published under authority of 10 United States Code (U.S.C.) 6011, 
which provided that ``United States Navy Regulations shall be issued by 
the Secretary of the Navy with the approval of the President.'' In 1981, 
this provision was amended to eliminate the requirement for presidential 
approval.
    (d) While leaving this provision unaffected, Congress enacted the 
Goldwater-Nichols Department of Defense Reorganization Act of 1986 (Pub. 
L. 99-443), which granted each of the service secretaries the authority 
to prescribe regulations to carry out his or her statutory functions, 
powers and duties.



Sec. 700.102  Statutory authority for issuance of United States Navy Regulations.

    Title 10, United States Code, section 6011, provides that United 
States Navy Regulations shall be issued by the Secretary of the Navy. 
Regulations issued under this authority are permanent regulations of 
general applicability, as opposed to regulations issued by the Secretary 
under Sec. 700.104.



Sec. 700.103  Purpose and effect of United States Navy Regulations.

    United States Navy Regulation is the principle regulatory document 
of the Department of the Navy, endowed with the sanction of law, as to 
duty, responsibility, authority, distinctions and relationships of 
various commands, officials and individuals. Other directives issued 
within the Department of the Navy shall not conflict with, alter or 
amend any provision of Navy Regulations.



Sec. 700.104  Statutory authority for prescription of other regulations.

    The Secretary of the Navy may prescribe regulations to carry out his 
or her functions, powers and duties under Title 10, United States Code.

[[Page 12]]



Sec. 700.105  Issuance of directives by other officers and officials.

    Responsible officers and officials of the Department of the Navy may 
issue, or cause to be issued, directives concerning matters over which 
they exercise command, control or supervision, which do not conflict 
with, alter or amend these regulations.



Sec. 700.106  Control of administrative requirements.

    (a) Directives will be issued with due regard for the imposition of 
workload resulting therefrom and benefits or advantages to be gained. 
Issuance of new directives will be in accordance with the following:
    (1) Directives which implement or amplify directives from higher 
authority will not be issued unless absolutely essential.
    (2) Administrative reporting requirements will not be imposed unless 
the expected value of the information to be gained is significantly 
greater than the cumulative burden imposed.
    (b) Each officer or official issuing a directive or imposing a 
reporting requirement will periodically, in accordance with instructions 
to be issued by appropriate authority, review such directive or report 
with a view toward the following:
    (1) Reduction of directives by cancellation or consolidation; or
    (2) Reduction of reporting requirements by elimination of the 
report, reduction in the frequency of the report, or combination with 
other reports.
    (c) When issuance of a directive or a tasking will result in 
imposition of additional administrative requirements on commands not 
within the chain of command or the issuing authority, the first common 
superior of the commands affected by the requirement must concur in the 
issuance.



Sec. 700.107  Maintenance of Navy Regulations.

    (a) The Chief of Naval Operations is responsible for maintaining 
Navy Regulations, and for ensuring that Navy Regulations conforms to the 
current needs of the Department of the Navy. When any person in the 
Department of the Navy deems it advisable that additions, changes or 
deletions should be made to Navy Regulations, he or she shall forward a 
draft of the proposed addition, change or deletion, with a statement of 
the reasons therefor, to the Chief of Naval Operations via the chain of 
command. The Chief of Naval Operations shall endeavor to obtain the 
concurrence of the Commandant of the Marine Corps, the Judge Advocate 
General and appropriate offices and commands. Unresolved issues 
concerning such additions, changes or deletions shall be forwarded to 
the Secretary of the Navy for appropriate action. Any additions, changes 
or deletions to the U.S. Navy Regulations must be approved by the 
Secretary of the Navy.
    (b) Changes to Navy Regulations will be numbered consecutively and 
issued as page changes. Advance changes may be used when required; these 
will be numbered consecutively and incorporated in page changes at 
frequent intervals.



                  Subpart B--The Department of the Navy



Sec. 700.201  Origin and authority of the Department of the Navy.

    (a) The naval affairs of the country began with the war for 
independence, the American Revolution. On 13 October 1775, Congress 
passed legislation for ships. This, in effect, created the continental 
Navy. Two battalions of Marines were authorized on 10 November 1775. 
Under the Constitution, the First Congress on 7 August 1789 assigned 
responsibility for the conduct of naval affairs to the War Department. 
On 30 April 1798, the Congress established a separate Department of the 
Navy with the Secretary of the Navy as its chief officer. On 11 July 
1798, the United States Marine Corps was established as a separate 
service, and in 1834 was made a part of the Department of the Navy.
    (b) The National Security Act of 1947, as amended, is the 
fundamental law governing the position of the Department of the Navy in 
the organization for national defense. In 1949, the Act was amended to 
establish the Department of Defense as an Executive Department, and to 
establish the Departments of the Army, Navy and Air

[[Page 13]]

Force (formerly established as Executive Departments by the 1947 Act) as 
military departments within the Department of Defense.
    (c) The Goldwater-Nichols Department of Defense Reorganization Act 
of 1986 further defined the roles of the military departments within the 
Department of Defense. In addition to establishing the office of Vice 
Chairman of the Joint Chiefs of Staff, and further emphasizing the 
operational chain of command, the Act provided detailed statements of 
the roles of the Secretary of the Navy, the Chief of Naval Operations, 
the Commandant of the Marine Corps, and their respective principal 
assistants.
    (d) The responsibilities and authority of the Department of the Navy 
are vested in the Secretary of the Navy, and are subject to reassignment 
and delegation by the Secretary. The Secretary is bound by the 
provisions of law, the direction of the President and the Secretary of 
Defense and, along with all persons in charge of Government agencies, 
the regulations of certain non-defense agencies addressing their 
respective areas of functional responsibility.



Sec. 700.202  Mission of the Department of the Navy.

    (a) The Navy, within the Department of the Navy, shall be organized, 
trained, and equipped primarily for prompt and sustained combat incident 
to operations at sea. It is responsible for the preparation of naval 
forces necessary for the effective prosecution of war except as 
otherwise assigned, and, in accordance with integrated joint 
mobilization plans, for the expansion of the peacetime components of the 
Navy to meet the needs of war.
    (b) The Navy shall develop aircraft, weapons, tactics, technique, 
organization and equipment of naval combat and service elements. Matters 
of joint concern as to these functions shall be coordinated between the 
Army, the Air Force and the Navy.
    (c) The Marine Corps, within the Department of the Navy, shall be 
organized, trained, and equipped to provide fleet marine forces of 
combined arms, together with supporting air components, for service with 
the fleet in the seizure or defense of advanced naval bases and for the 
conduct of such land operations as may be essential to the prosecution 
of a naval campaign. In addition, the Marine Corps shall provide 
detachments and organizations for service on armed vessels of the Navy, 
shall provide security detachments for the protection of naval property 
at naval stations and bases, and shall perform such other duties as the 
President may direct. However, these additional duties may not detract 
from or interfere with the operations for which the Marine Corps is 
primarily organized.
    (d) The Marine Corps shall develop, in coordination with the Army 
and the Air Force, those phases of amphibious operations that pertain to 
the tactics, technique and equipment used by landing forces.
    (e) The Marine Corps is responsible, in accordance with integrated 
joint mobilization plans, for the expansion of peacetime components of 
the Marine Corps to meet the needs of war.



Sec. 700.203  Composition.

    (a) The Department of the Navy is separately organized under the 
Secretary of the Navy. It operates under the authority, direction and 
control of the Secretary of Defense.
    (b) The Department of the Navy is composed of the following:
    (1) The Office of the Secretary of the Navy;
    (2) The Office of the Chief of Naval Operations;
    (3) The Headquarters, Marine Corps;
    (4) The entire operating forces, including naval aviation, of the 
Navy and of the Marine Corps, and the reserve components of those 
operating forces;
    (5) All field activities, headquarters, forces, bases, 
installations, activities and functions under the control or supervision 
of the Secretary of the Navy; and
    (6) The Coast Guard when it is operating as a service in the Navy.



Sec. 700.204  The principal elements of the Department of the Navy.

    (a) The Department of the Navy consists of three elements; the Navy 
Department, the Operating Forces of the Navy and the Marine Corps, and 
the Shore Establishment.

[[Page 14]]

    (b) The Navy Department refers to the central executive offices of 
the Department of the Navy located at the seat of Government. The Navy 
Department is organizationally comprised of the Office of the Secretary 
of the Navy, the Office of the Chief of Naval Operations, and the 
Headquarters, Marine Corps. In addition, the Headquarters, Coast Guard, 
is included when the Coast Guard is operating as a service in the Navy.
    (c) The operating forces of the Navy and the Marine Corps comprise 
the several fleets, seagoing forces, Fleet Marine Forces, other assigned 
Marine Corps Forces, the Military Sealift Command and other forces and 
activities that may be assigned thereto by the President or the 
Secretary of the Navy.
    (d) The shore establishment is comprised of shore activities with 
defined missions approved for establishment by the Secretary of the 
Navy.



                  Subpart C--The Secretary of the Navy

                        The Secretary of the Navy



Sec. 700.301  Responsibilities of the Secretary of the Navy.

    The Secretary of the Navy is responsible to the Secretary of Defense 
for:
    (a) The functioning and efficiency of the Department of the Navy;
    (b) The formulation of policies and programs by the Department of 
the Navy that are fully consistent with national security objectives and 
policies established by the President or the Secretary of Defense;
    (c) The effective and timely implementation of policy, program and 
budget decisions and instructions of the President or the Secretary of 
Defense relating to the functions of the Department of the Navy;
    (d) Carrying out the functions of the Department of the Navy so as 
to fulfill (to the maximum extent practicable) the current and future 
operational requirement of the unified and specified combatant commands;
    (e) Effective cooperation and coordination between the Department of 
the Navy and the other military departments and agencies of the 
Department of Defense to provide for more effective, efficient and 
economical administration and eliminate duplication;
    (f) The presentation and justification of the position of the 
Department of the Navy on the plans, programs and policies of the 
Department of Defense;
    (g) The effective supervision and control of the intelligence 
activities of the Department of the Navy; and
    (h) Such other activities as may be prescribed by law or by the 
president or Secretary of Defense.



Sec. 700.302  Responsibilities within the Department of the Navy.

    The Secretary is the head of the Department of the Navy. The 
Secretary is responsible for, and has the authority necessary to 
conduct, all affairs of the Department of the Navy, including the 
following functions:
    (a) Recruiting;
    (b) Organizing;
    (c) Supplying;
    (d) Equipping (including research and development);
    (e) Training;
    (f) Servicing;
    (g) Mobilizing;
    (h) Demobilizing;
    (i) Administering (including the morale and welfare of personnel);
    (j) Maintaining;
    (k) The construction, outfitting and repair of military equipment; 
and
    (l) The construction, maintenance and repair of buildings, and 
interests in real property necessary to carry out the responsibilities 
specified in this article.



Sec. 700.303  Succession.

    If the Secretary of the Navy dies, resigns, is removed from office, 
is absent or is disabled, the person who is highest on the following 
list, and who is not absent or disabled, shall perform the duties of the 
Secretary until the President directs another person to perform those 
duties or until the absence or disability ceases:
    (a) The Under Secretary of the Navy;
    (b) The Assistant Secretaries of the Navy, in the order prescribed 
by the Secretary of the Navy and approved by the Secretary of Defense;
    (c) The Chief of Naval Operations;

[[Page 15]]

    (d) The Commandant of the Marine Corps.



Sec. 700.304  Recommendations to Congress.

    After first informing the Secretary of Defense, the Secretary of the 
Navy may make such recommendations to Congress relating to the 
Department of Defense as he or she considers appropriate.



Sec. 700.305  Assignment of functions.

    The Secretary of the Navy may assign such functions, powers, and 
duties as he or she considers appropriate to the Under Secretary of the 
Navy and to the Assistant Secretaries of the Navy. Officers of the Navy 
and the Marine Corps shall, as directed by the Secretary, report on any 
matter to the Secretary, the Under Secretary or any Assistant Secretary.



Sec. 700.306  Assignment of duty and titles.

    The Secretary of the Navy may:
    (a) Assign, detail and prescribe the duties of members of the Navy 
and Marine Corps and civilian personnel of the Department of the Navy; 
and
    (b) Change the title of any officer or activity of the Department of 
the Navy not prescribed by law.



Sec. 700.307  Powers with respect to the Coast Guard.

    Whenever the Coast Guard operates as a service in the Navy under 
Section 3 of Title 14, United States Code, the Secretary of the Navy has 
the same powers and duties with respect to the Coast Guard as the 
Secretary of Transportation has when the Coast Guard is not so 
operating.

                 The Office of the Secretary of the Navy



Sec. 700.310  Composition.

    The function of the Office of the Secretary of the Navy is to assist 
the Secretary in carrying out his or her responsibilities. The Office of 
the Secretary of the Navy is composed of the following:
    (a) The Civilian Executive Assistants:
    (1) The Under Secretary of the Navy;
    (2) The Assistant Secretary of the Navy (Financial Management);
    (3) The Assistant Secretary of the Navy (Manpower and Reserve 
Affairs);
    (4) The Assistant Secretary of the Navy (Research, Development and 
Acquisition);
    (5) The Assistant Secretary of the Navy (Installations and 
Environment); and
    (6) The General Counsel of the Department of the Navy.
    (b) The Staff Assistants:
    (1) The Judge Advocate General of the Navy;
    (2) The Naval Inspector General;
    (3) The Chief of Naval Research;
    (4) The Chief of Information;
    (5) The Chief of Legislative Affairs;
    (6) The Auditor General of the Navy;
    (7) The Director, Office of Program Appraisal; and
    (8) Such other officers and officials as may be established by law 
or as the Secretary of the Navy may establish or designate.



Sec. 700.311  Sole responsibilities.

    (a) The Office of the Secretary of the Navy shall have sole 
responsibility within the Office of the Secretary of the Navy, the 
Office of the Chief of Naval Operations and the Headquarters, Marine 
Corps, for the following functions:
    (1) Acquisition;
    (2) Auditing;
    (3) Comptroller (including financial management);
    (4) Information management;
    (5) Inspector general;
    (6) Legislative affairs;
    (7) Public affairs;
    (8) Research and development, except for military requirements and 
operational test and evaluation, which are the responsibilities of the 
Office of the Chief of Naval Operations and the Headquarters Marine 
Corps.
    (b) The following offices within the Office of the Secretary of the 
Navy are designated to conduct the functions specified in paragraph (a) 
of this section. No office or other entity may be established or 
designated within the Office of the Chief of Naval Operations or the 
Headquarters, Marine Corps, to conduct any of the functions specified in 
paragraph (a) of this section, except

[[Page 16]]

as noted in paragraph (a)(8) of this section.
    (1) The Assistant Secretary of the Navy (Research, Development and 
Acquisition) is the Acquisition Executive for the Department of the 
Navy. The Assistant Secretary of the Navy (Research, Development and 
Acquisition) (ASN(RD&A)) is responsible for research, development and 
acquisition, except for military requirements and operational test and 
evaluation, which remain functions of the Office of the Chief of Naval 
Operations and Headquarters Marine Corps. In addition to Acquisition 
Executive, ASN(RD&A) is also the Navy Senior Procurement Executive and 
Senior Department of the Navy Information Resource Management Official. 
Responsibilities include developing acquisition policy and procedures 
for all Department of the Navy research, development, production, 
shipbuilding and production/logistics support programs; and Department 
of the Navy international technology transfer.
    (2) The Auditor General is responsible for the internal auditing 
function within the Department of the Navy.
    (3) The Assistant Secretary of the Navy (Financial Management) is 
responsible for comptrollership, including financial management, within 
the Department of the Navy.
    (4) The Naval Inspector General is responsible for the inspector 
general function within the Department of the Navy.
    (5) The Chief of Legislative Affairs is responsible for legislative 
affairs within the Department of the Navy.
    (6) The Chief of Information is responsible for public affairs 
within the Department of the Navy.
    (c) The Secretary shall:
    (1) Prescribe the relationship of each office or other entity 
established or designated under paragraph (b) of this section:
    (i) To the Chief of Naval Operations and the Office of the Chief of 
Naval Operations: and
    (ii) To the Commandant of the Marine Corps and the Headquarters, 
Marine Corps; and
    (2) Ensure that each such office or entity provides the Chief of 
Naval Operations and the Commandant of the Marine Corps such staff 
support as the Chief of Naval Operations and the Commandant of the 
Marine Corps consider necessary to perform their respective duties and 
responsibilities.
    (d) The vesting in the Office of the Secretary of the Navy of the 
responsibility for the conduct of a function specified in paragraph (a) 
of this section does not preclude other elements of the Department of 
the Navy (including the Office of the Chief of Naval Operations and the 
Headquarters, Marine Corps) from providing advice or assistance to the 
Chief of Naval Operations and the Commandant of the Marine Corps, or 
otherwise participating in that function within the executive part of 
the Department under the direction of the office assigned responsibility 
for that function in the Office of the Secretary of the Navy.



Sec. 700.312  Authority over organizational matters.

    Subject to the approval or guidance of the Secretary of the Navy, 
the Civilian Executive Assistants, the Chief of Naval Operations, the 
Commandant of the Marine Corps and the Staff Assistants are individually 
authorized to organize, assign and reassign responsibilities within 
their respective commands or offices, including the establishment and 
disestablishment of such component organizations as may be necessary, 
subject to the following:
    (a) The authority to disestablish may not be exercised with respect 
to any organizational component of the Department established by law.
    (b) The Secretary retains the authority to approve the establishment 
and disestablishment of shore activities.

     The Office of the Secretary of the Navy/The Civilian Executive 
                               Assistants



Sec. 700.320  The Civilian Executive Assistants.

    (a) The Civilian Executive Assistants, as identified in 
Sec. 700.310, are assigned department-wide responsibilities essential to 
the efficient administration of the Department of the Navy.
    (b) Each Civilian Executive Assistants, within his or her assigned 
area of responsibility, is the principal civilian

[[Page 17]]

advisor and assistant to the Secretary on the administration of the 
affairs of the Department of the Navy. The Civilian Executive Assistants 
carry out their duties with the professional assistance of the Office of 
the Chief of Naval Operations and Headquarters, Marine Corps, as 
presided over by the Chief of Naval Operations and Commandant of the 
Marine Corps, respectively.
    (c) The Civilian Executive Assistants are authorized and directed to 
act for the Secretary within their assigned areas of responsibility.



Sec. 700.321  The Under Secretary of the Navy.

    (a) The Under Secretary of the Navy shall perform such duties and 
exercise such powers as the Secretary of the Navy shall prescribe.
    (b) The Under Secretary of the Navy is designated as the deputy and 
principal assistant to the Secretary of the Navy. The Under Secretary of 
the Navy acts with full authority of the Secretary in the general 
management of the Department of the Navy and supervision of offices, 
organizations and functions as assigned by the Secretary.



Sec. 700.322  Assistant Secretaries of the Navy; statutory authorization.

    There are four Assistant Secretaries of the Navy. The Assistant 
Secretaries shall perform such duties and exercise such powers as the 
Secretary of the Navy may prescribe in accordance with law.



Sec. 700.323  The Assistant Secretary of the Navy (Financial Management).

    The Assistant Secretary of the Navy (Financial Management) is the 
Comptroller of the Navy, and is responsible for all matters related to 
the financial management of the Department of the Navy, including:
    (a) Budgeting;
    (b) Accounting;
    (c) Disbursing;
    (d) Financing;
    (e) Internal review;
    (f) Progress and statistical reporting; and
    (g) Supervision of offices and organizations as assigned by the 
Secretary of the Navy.



Sec. 700.324  The Assistant Secretary of the Navy (Manpower and Reserve Affairs).

    The Assistant Secretary of the Navy (Manpower and Reserve Affairs) 
is responsible for:
    (a) The overall supervision of manpower and reserve component 
affairs of the Department of the Navy, including policy and 
administration of affairs related to military (active and inactive) and 
civilian personnel; and
    (b) Supervision of offices and organizations as assigned by the 
Secretary, specifically the Naval Council of Personnel Boards and the 
Board for Correction of Naval Records.



Sec. 700.325  The Assistant Secretary of the Navy (Installations and Environment).

    The Assistant Secretary of the Navy (Installations and Environment) 
is responsible for:
    (a) Policy relating to Navy installations, facilities, environment, 
safety, shore resources management and quality improvement;
    (b) Development, implementation and evaluation of military 
construction, facilities management and engineering, strategic 
homeporting, housing, utilities, and base utilization issues;
    (c) Environmental policy, safety, occupational health, and Marine 
Corps and Navy environmental affairs, including environmental 
protection, restoration, compliance and legislation, natural resource 
programs, hazardous material/waste minimization, plastics reduction and 
control, afloat environmental issues, state and federal agency and 
environmental organization coordination, and the National Environmental 
Policy Act; and
    (d) Advising on fiscal resources related to shore appropriations.



Sec. 700.326  The Assistant Secretary of the Navy (Research, Development and Acquisition).

    The Assistant Secretary of the Navy (Research, Development and 
Acquisition) is responsible for:
    (a) Research, development and acquisition, except for military 
requirements and operational test and evaluation;

[[Page 18]]

    (b) Direct management of acquisition programs;
    (c) All aspects of the acquisition process within the Department of 
the Navy;
    (d) All acquisition policy, including technology base and advanced 
technology development, procurement, competition, contracts and business 
management, logistics, product integrity, and education and training of 
the acquisition workforce.



Sec. 700.327  The General Counsel of the Navy.

    (a) The General Counsel is head of the Office of the General Counsel 
and is responsible for providing legal advice, counsel, and guidance 
within the Department of the Navy on the following matters:
    (1) Business and commercial law, environmental law, civilian 
personnel law, real and personal property law and patent law;
    (2) Procurement of services, including the fiscal, budgetary and 
accounting aspects, for the Navy and Marine Corps;
    (3) Litigation involving the issues enumerated above; and
    (4) Other matters as directed by the Secretary of the Navy.
    (b) The General Counsel maintains a close working relationship with 
the Judge Advocate General on all matters of common interest.

      The Office of the Secretary of the Navy/The Staff Assistants



Sec. 700.330  The Staff Assistants.

    The Staff Assistants, as identified in Sec. 700.310, assist the 
Secretary of the Navy, or one or more of the Civilian Executive 
Assistants, in the administration of the Navy. They supervise all 
functions and activities internal to their offices and assigned field 
activities, if any, and are responsible to the Secretary or to one of 
the Civilian Executive Assistants for the utilization of resources by, 
and the operating efficiency of, all activities under their supervision 
or command. Their duties are as provided by law or as assigned by the 
Secretary.



Sec. 700.331  The Judge Advocate General.

    (a) The Judge Advocate General of the Navy commands the Office of 
the Judge Advocate General and is the Chief of the Judge Advocate 
General's Corps. The Judge Advocate General:
    (1) Provides or supervises the provision of all legal advice and 
related services throughout the Department of the Navy, except for the 
advice and services provided by the General Counsel;
    (2) Performs the functions required or authorized by law;
    (3) Provides legal and policy advice to the Secretary of the Navy on 
military justice, administrative law, claims, operational and 
international law, and litigation involving these issues; and
    (4) Acts on other matters as directed by the Secretary.
    (b) The Judge Advocate General maintains a close working 
relationship with the General Counsel on all matters of common interest.



Sec. 700.332  The Naval Inspector General.

    (a) Under the direction of the Secretary of the Navy, the Naval 
Inspector General:
    (1) Inspects, investigates or inquires into any and all matters of 
importance to the Department of the Navy with particular emphasis on 
readiness, including, but not limited to effectiveness, efficiency, 
economy and integrity;
    (2) Exercises broad supervision, general guidance and coordination 
for all Department of the Navy inspection, evaluation and appraisal 
organizations to minimize duplication of efforts and the number of 
necessary inspections;
    (3) Through analysis of available information, identifies areas of 
weakness in the Department of the Navy as they relate to matters of 
integrity and efficiency and provides appropriate recommendations for 
improvement. To accomplish these functions, the Inspector General shall 
have unrestricted access, by any means, to any information maintained by 
any naval activity deemed necessary, unless specifically restricted by 
the Secretary of the Navy;

[[Page 19]]

    (4) Receives allegations of inefficiency, misconduct, impropriety, 
mismanagement or violations of law, and investigates or refers such 
matters for investigation, as is appropriate; and
    (5) Serves as principal advisor to the Secretary of the Navy, the 
Chief of Naval Operations and the Commandant of the Marine Corps on all 
inspection and investigation matters.
    (b) In addition, the Naval Inspector General has various functions, 
including (but not limited to):
    (1) Providing of an alternative to the normal chain of command 
channel for receipt of complaints of personnel;
    (2) Serving as the official to whom employees may complain without 
fear of reprisal;
    (3) Cooperating with the Inspector General, Department of Defense;
    (4) Providing oversight of intelligence and special activities;
    (5) Serving as the Department of the Navy coordinator for fraud, 
waste and efficiency matters;
    (6) Serving as Navy Program Manager and focal point for the 
Department of the Navy and Navy Hotline programs; and
    (7) Designation as the centralized organization within the 
Department of Defense to monitor and ensure the coordination of 
criminal, civil, administrative and contractual remedies for all 
significant cases, including investigation of fraud or corruption 
related to procurement activities affecting the Department of the Navy.



Sec. 700.333  The Chief of Naval Research.

    (a) The Chief of Naval Research shall command the Office of the 
Chief of Naval Research, the Office of Naval Research, the Office of 
Naval Technology and assigned shore activities.
    (b) The Office of Naval Research shall perform such duties as the 
Secretary of the Navy prescribes relating to:
    (1) The encouragement, promotion, planning, initiation and 
coordination of naval research;
    (2) The conduct of naval research in augmentation of and in 
conjunction with the research and development conducted by other 
agencies and offices of the Department of the Navy; and
    (3) The supervision, administration and control of activities within 
or for the Department of the Navy relating to patents, inventions, 
trademarks, copyrights and royalty payments, and matters connected 
therewith.



Sec. 700.334  The Chief of Information.

    (a) The Chief of Information is the direct representative of the 
Secretary of the Navy in all public affairs and internal relations 
matters. The Chief of Information is authorized to implement Navy public 
affairs and internal relations policies and to coordinate those Navy and 
Marine Corps activities of mutual interest.
    (b) The Chief of Naval Operations and the Commandant of the Marine 
Corps are delegated responsibilities for:
    (1) Conduct of their respective services' internal information 
programs;
    (2) Conduct of their respective services' community relations 
programs; and
    (3) Implementing the Secretary of the Navy's public affairs policy 
and directives.
    (c) The Chief of Information will report to the Chief of Naval 
Operations for support of the responsibilities outlined in paragraph (b) 
of this section, and will provide such staff support as the Chief of 
Naval Operations considers necessary to perform those duties and 
responsibilities.
    (d) The Deputy Chief of Information for Marine Corps Matters may 
report directly to the Secretary regarding public information matters 
related solely to the Marine Corps. The Deputy Chief will promptly 
inform the Chief of Information regarding the substance of all 
independent contacts with the Secretary pertaining to Marine Corps 
matters. The Deputy Chief of Information for Marine Corps Matters will 
report to the Commandant of the Marine Corps for support of the 
responsibilities outlined in paragraph (b) of this section, and will 
provide such staff support as the Commandant considers necessary to 
perform those duties and responsibilities.



Sec. 700.335  The Chief of Legislative Affairs.

    The mission of the Chief of Legislative Affairs is to:
    (a) Plan, develop and coordinate relationships between 
representatives of

[[Page 20]]

the Department of the Navy and members of committees of the United 
States Congress and their staffs which are necessary in the transaction 
of official Government business (except appropriations matters) 
affecting the Department of the Navy; and
    (b) Furnish staff support, advice and assistance to the Secretary of 
the Navy, the Chief of Naval Operations, the Commandant of the Marine 
Corps and all other principal civilian and military officials of the 
Department of the Navy concerning congressional aspects of the 
Department of the Navy policies, plans and programs (except 
appropriations matters).



Sec. 700.336  The Director, Office of Program Appraisal.

    (a) The Director, Office of Program Appraisal, directs, under the 
immediate supervision of the Secretary of the Navy, the Office of 
Program Appraisal.
    (b) The Office of Program Appraisal will assist the Secretary in 
assuring that existing and proposed Navy and Marine Corps programs 
provide the optimum means of achieving the objectives of the Department 
of the Navy.



Sec. 700.337  The Auditor General.

    (a) The Auditor General of the Navy is responsible for:
    (1) Serving as Director of the Naval Audit Service; and
    (2) Developing and implementing Navy internal audit policies, 
programs and procedures within the framework of Government auditing 
standards.
    (b) The Auditor General can provide information and may provide 
assistance and support to the Chief of Naval Operations and the 
Commandant of the Marine Corps to enable them to discharge their duties 
and responsibilities.



                Subpart D--The Chief of Naval Operations



Sec. 700.401  Precedence.

    The Chief of Naval Operations, while so serving, has the grade of 
admiral. In the performance of duties within the Department of the Navy, 
the Chief of Naval Operations takes precedence above all other officers 
of the naval service, except an officer of the naval service who is 
serving as Chairman or Vice Chairman of the Joint Chiefs of Staff.



Sec. 700.402  Succession.

    When there is a vacancy in the position of Chief of Naval 
Operations, or during the absence or disability of the Chief of Naval 
Operations:
    (a) The Vice Chief of Naval Operations shall perform the duties of 
the Chief of Naval Operations until a successor is appointed or the 
absence or disability ceases.
    (b) If there is a vacancy in the position of Vice Chief of Naval 
Operations or the Vice Chief of Naval Operations is absent or disabled, 
unless the President directs otherwise, the most senior officer of the 
Navy in the Office of the Chief of Naval Operations who is not absent or 
disabled and who is not restricted in the performance of duty shall 
perform the duties of the Chief of Naval Operations until a successor to 
the Chief of Naval Operations or the Vice Chief of Naval Operations is 
appointed or until the absence or disability of the Chief of Naval 
Operations or Vice Chief of Naval Operations ceases, whichever occurs 
first.



Sec. 700.403  Statutory authority and responsibility of the Chief of Naval Operations.

    (a) Except as otherwise prescribed by law, and subject to the 
statutory authority of the Secretary of the Navy to assign functions, 
powers and duties, the Chief of Naval Operations performs duties under 
the authority, direction and control of the Secretary of the Navy and is 
directly responsible to the Secretary.
    (b) Subject to the authority, direction and control of the Secretary 
of the Navy, the Chief of Naval Operations shall:
    (1) Preside over the Office of the Chief of Naval Operations;
    (2) Transmit the plans and recommendations of the Office of the 
Chief of Naval Operations to the Secretary and advise the Secretary with 
regard to such plans and recommendations;
    (3) After approval of the plans or recommendations of the Office of 
the

[[Page 21]]

Chief of Naval Operations by the Secretary, act as the agent of the 
Secretary in carrying them into effect;
    (4) Exercise supervision, consistent with the statutory authority 
assigned to commanders of unified or specified combatant commands, over 
such of the members and organizations of the Navy and the Marine Corps 
as the Secretary determines;
    (5) Perform the duties prescribed for a member of the Armed Forces 
Policy Council and other statutory duties; and
    (6) Perform such other military duties, not otherwise assigned by 
law, as are assigned to the Chief of Naval Operations by the President, 
the Secretary of Defense or the Secretary of the Navy.
    (c) The Chief of Naval Operations shall also perform the statutory 
duties prescribed for a member of the Joint Chiefs of Staff.
    (1) To the extent that such action does not impair the independence 
of the Chief of Naval Operations in the performance of duties as a 
member of the Joint Chiefs of Staff, the Chief of Naval Operations shall 
inform the Secretary of the Navy regarding military advice rendered by 
members of the Joint Chiefs of Staff on matters affecting the Department 
of the Navy.
    (2) Subject to the authority, direction and control of the Secretary 
of Defense, the Chief of Naval Operations shall keep the Secretary of 
the Navy fully informed of significant military operations affecting the 
duties and responsibilities of the Secretary of the Navy.



Sec. 700.404  Statutory authority and responsibility of the Office of the Chief of Naval Operations.

    (a) The Office of the Chief of Naval Operations shall furnish 
professional assistance to the Secretary, the Under Secretary and the 
Assistant Secretaries of the Navy, and to the Chief of Naval Operations. 
Under the authority, direction and control of the Secretary of the Navy, 
the Office of the Chief of Naval Operations shall:
    (1) Subject to Sec. 700.311(a), prepare for such employment of the 
Navy, and for such recruiting, organizing, supplying, equipping 
(including those aspects of research and development assigned by the 
Secretary of the Navy), training, servicing, mobilizing, demobilizing, 
administering, and maintaining of the Navy, as will assist in the 
execution of any power, duty or function of the Secretary or the Chief 
of Naval Operations;
    (2) Investigate and report upon the efficiency of the Navy and its 
preparation to support military operations by combatant commands;
    (3) Prepare detailed instructions for the execution of approved 
plans and supervise the execution of those plans and instructions;
    (4) As directed by the Secretary or the Chief of Naval Operations, 
coordinate the action of organizations of the Navy; and
    (5) Perform such other duties, not otherwise assigned by law, as may 
be prescribed by the Secretary.
    (b) Except as otherwise specifically prescribed by law, the Office 
of the Chief of Naval Operations shall be organized in such manner, and 
its members shall perform such duties and have such titles as the 
Secretary may prescribe.



Sec. 700.405  Delegated authority and responsibility.

    (a) The Chief of Naval Operations is the principal naval advisor and 
naval executive to the Secretary of the Navy on the conduct of the naval 
activities of the Department of the Navy.
    (b)(1) Internal to the administration of the Department of the Navy, 
the Chief of Naval Operations, consistent with the statutory authority 
assigned to commanders of unified or specified combatant commands, under 
the direction of the Secretary of the Navy, shall command:
    (i) The operating forces of the Navy; and
    (ii) Such shore activities as may be assigned by the Secretary.
    (2) The Chief of Naval Operations shall be responsible to the 
Secretary of the Navy for the Utilization of resources by, and the 
operating efficiency of, the Office of the Chief of Naval Operations, 
the Operating Forces of the Navy and assigned shore activities.

[[Page 22]]

    (c) In addition, the Chief of Naval Operations has the following 
specific responsibilities:
    (1) To organize, train, equip, prepare and maintain the readiness of 
Navy forces, including those for assignment to unified or specified 
commands, for the performance of military missions as directed by the 
President, the Secretary of Defense or the Chairman of the Joint Chiefs 
of Staff;
    (2) To determine current and future requirements of the Navy (less 
Fleet Marine Forces and other assigned Marine Corps forces) for 
manpower, material, weapons, facilities and services, including the 
determination of quantities, military performance requirements and 
times, places and priorities of need;
    (3) To exercise leadership in maintaining a high degree of 
competence among Navy officer, enlisted and civilian personnel in 
necessary fields of specialization, through education training and equal 
opportunities for personal advancement, and maintaining the morale and 
motivation of Navy personnel and the prestige of a Navy career;
    (4) To plan and provide health care for personnel of the naval 
service, their dependents and eligible beneficiaries;
    (5) To direct the organization, administration, training and support 
of the Naval Reserve;
    (6) To inspect and investigate components of the Department of the 
Navy to determine and maintain efficiency, discipline, readiness, 
effectiveness and economy, except in those areas where such 
responsibility rests with the Commandant of the Marine Corps;
    (7) To determine the requirements of naval forces and activities, to 
include requirements for research, development, test, and evaluation to 
plan and provide for the conduct of test and evaluation which are 
adequate and responsive to long range objectives, immediate 
requirements, and fiscal limitations; and to provide assistance to the 
Assistant Secretary of the Navy (Research, Development and Acquisition) 
in the review and appraisal of the overall Navy program to ensure 
fulfillment of stated requirements;
    (8) To formulate Navy strategic plans and policies and participate 
in the formulation of Joint and combined strategic plans and policies 
and related command relationships; and
    (9) Subject to guidance from the Assistant Secretary of the Navy 
(Financial Management), to formulate budget proposals for the Office of 
the Chief of Naval Operations, the Operating Forces of the Navy and 
assigned shore activities, and other activities and programs as 
assigned.
    (d) The Chief of Naval Operations, under the direction of the 
Secretary of the Navy, shall exercise overall authority throughout the 
Department of the Navy in matters related to:
    (1) The effectiveness of the support of the Operating Forces of the 
Navy and assigned shore activities;
    (2) The coordination and direction of assigned Navy wide programs 
and functions, including those assigned by higher authority;
    (3) Matters essential to naval military administration, such as:
    (i) Security;
    (ii) Intelligence;
    (iii) Discipline;
    (iv) Communications; and
    (v) Matters related to the customs and traditions of the naval 
service;
    (4) Except for those areas wherein such responsibility rests with 
the Commandant of the Marine Corps, the coordination of activities of 
the Department of the Navy in matters concerning effectiveness, 
efficiency and economy.



Sec. 700.406  Naval Vessel Register, classification of naval craft, and status of ships and service craft.

    (a) The Chief of Naval Operations shall be responsible for the Naval 
Vessel Register (except the Secretary of the Navy shall strike vessels 
from the Register) and the assignment of classification for 
administrative purposes to water borne craft and the designation of 
status for each ship and service craft.
    (b) Commissioned vessels and craft shall be called ``United States 
Ship'' or ``U.S.S.''
    (c) Civilian manned ships, of the Military Sealift Command or other 
commands, designated ``active status, in service'' shall be called 
``United States Naval Ship'' or ``U.S.N.S.''

[[Page 23]]

    (d) Ships and service craft designated ``active status, in 
service,'' except those described by paragraph (c) of this section, 
shall be referred to by name, when assigned, classification, and hull 
number (e.g., ``HIGHPOINT PCH-1'' or ``YOGN-8'').
    (e) The Chief of Naval Operations shall designate hospital ships and 
medical aircraft as he or she deems necessary. Such designation shall be 
in compliance with the Geneva Convention for the Amelioration of the 
Conditions of Wounded, Sick and Ship wrecked Members of the Armed Forces 
at Sea of 12 August 1949. The Chief of Naval Operations shall ensure 
compliance with the notice shall ensure compliance with the notice 
provisions of that Convention.



              Subpart E--The Commandant of the Marine Corps



Sec. 700.501  Precedence.

    The Commandant of the Marine Corps, while so serving, has the grade 
of general. In the performance of duties within the Department of the 
Navy, the Commandant of the Marine Corps takes precedence above all 
other officers of the Marine Corps, except an officer of the Marine 
Corps who is serving as Chairman or Vice Chairman of the Joint Chiefs of 
Staff.



Sec. 700.502  Succession.

    When there is a vacancy in the office of Commandant of the Marine 
Corps, or during the absence or disability of the Commandant:
    (a) The Assistant Commandant of the Marine Corps shall perform the 
duties of the Commandant until a successor is appointed or the absence 
or disability ceases; or
    (b) If there is a vacancy in the office of the Assistant Commandant 
of the Marine Corps or the Assistant Commandant is absent or disabled, 
unless the President directs otherwise, the most senior officer of the 
Marine Corps in the Headquarters, Marine Corps, who is not absent or 
disabled and who is not restricted in the performance of duty shall 
perform the duties of the Commandant until a successor to the Commandant 
or the Assistant Commandant is appointed or until the absence or 
disability of the Commandant or the Assistant Commandant ceases, 
whichever occurs first.



Sec. 700.503  Statutory authority and responsibility of the Commandant of the Marine Corps.

    (a) Except as otherwise prescribed by law and subject to the 
statutory authority of the Secretary of the Navy to assign functions, 
powers and duties, the Commandant of the Marine Corps performs duties 
under the authority, direction and control of the Secretary of the Navy 
and is directly responsible to the Secretary.
    (b) Subject to the authority, direction and control of the Secretary 
of the Navy, the Commandant of the Marine Corps shall:
    (1) Preside over the Headquarters, Marine Corps;
    (2) Transmit the plans and recommendations of the Headquarters, 
Marine Corps, to the Secretary and advise the Secretary with regard to 
such plans and recommendations;
    (3) After approval of the plans or recommendations of the 
Headquarters, Marine Corps, by the Secretary, act as the agent of the 
Secretary in carrying them into effect;
    (4) Exercise supervision, consistent with the statutory authority 
assigned to commanders of unified or specified combatant commands, over 
such of the members and organizations of the Navy and the Marine Corps 
as the Secretary determines;
    (5) Perform the duties prescribed for a member of the Armed Forces 
Policy Council and other statutory duties; and
    (6) Perform such other military duties, not otherwise assigned by 
law, as are assigned to the Commandant of the Marine Corps by the 
President, the Secretary of Defense or the Secretary of the Navy.
    (c) The Commandant of the Marine Corps shall also perform the 
statutory duties prescribed for a member of the Joint Chiefs of Staff.
    (1) To the extent that such action does not impair the independence 
of the Commandant of the Marine Corps in the performance of duties as a 
member of the Joint Chiefs of Staff, the Commandant of the Marine Corps 
shall

[[Page 24]]

inform the Secretary of the Navy regarding military advice rendered by 
members of the Joint Chiefs of Staff on matters affecting the Department 
of the Navy.
    (2) Subject to the authority, direction and control of the Secretary 
of Defense, the Commandant of the Marine Corps shall keep the Secretary 
of the Navy fully informed of significant military operations affecting 
the duties and responsibilities of the Secretary of the Navy.



Sec. 700.504  Statutory authority and responsibility of the Headquarters, Marine Corps.

    (a) The Headquarters, Marine Corps, shall furnish professional 
assistance to the Secretary, the Under Secretary and the Assistant 
Secretaries of the Navy, and to the Commandant of the Marine Corps.
    (1) Under the authority, direction and control of the Secretary of 
the Navy, the Headquarters, Marine Corps shall:
    (i) Subject to Sec. 700.311(a), prepare for such employment of the 
Marine Corps, and for such recruiting, organizing, supplying, equipping 
(including those aspects of research and development assigned by the 
Secretary of the Navy), training, servicing, mobilizing, demobilizing, 
administering, and maintaining of the Marine Corps, as will assist in 
the execution of any power, duty or function of the Secretary or the 
Commandant;
    (ii) Investigate and report upon the efficiency of the Marine Corps 
and its preparation to support military operations by combatant 
commands;
    (iii) Prepare detailed instructions for the execution of approved 
plans and supervise the execution of those plans and instructions;
    (iv) As directed by the Secretary or the Commandant, coordinate the 
action of organizations of the Marine Corps; and
    (v) Perform such other duties, not otherwise assigned by law, as may 
be prescribed by the Secretary.
    (2) [Reserved]
    (b) Except as otherwise specifically prescribed by law, the 
Headquarters, Marine Corps, shall be organized in such manner, and its 
members shall perform such duties and have such titles, as the Secretary 
may prescribe.



Sec. 700.505  Delegated authority and responsibility.

    (a)(1) Internal to the administration of the Department of the Navy, 
the Commandant of the Marine Corps, consistent with the statutory 
authority assigned to commanders of unified or specified combatant 
commands, under the direction of the Secretary of the Navy, shall 
command:
    (i) The operating forces of the Marine Corps; and
    (ii) Such shore activities as may be assigned by the Secretary.
    (2) The Commandant shall be responsible to the Secretary of the Navy 
for the utilization of resources by, and the operating efficiency of, 
all commands and activities under such command.
    (b) In addition, the Commandant has the following specific 
responsibilities:
    (1) To plan for and determine the needs of the Marine Corps for 
equipment, weapons or weapons systems, materials, supplies, facilities, 
maintenance, and supporting services. This responsibility includes the 
determination of Marine Corps characteristics of equipment and material 
to be procured or developed, and the training required to prepare Marine 
Corps personnel for combat. It also includes the operation of the Marine 
Corps Material Support System.
    (2) Subject to guidance from the Assistant Secretary of the Navy 
(Financial Management), to formulate budget proposals for the 
Headquarters, Marine Corps, the Operating Forces of the Marine Corps, 
and other activities and programs as assigned.
    (3) To develop, in coordination with other military services, the 
doctrines, tactics and equipment employed by landing forces in 
amphibious operations.
    (4) To formulate Marine Corps strategic plans and policies and 
participate in the formulation of joint and combined strategic plans and 
policies and related command relationships.
    (5) To plan for and determine the present and future needs, both 
quantitative and qualitative, for manpower,

[[Page 25]]

including reserve personnel and civilian personnel, of the United States 
Marine Corps. This includes responsibility for leadership in maintaining 
a high degree of competence among Marine Corps officer and enlisted 
personnel and Marine Corps civilian personnel in necessary fields of 
specialization through education, training and equal opportunities for 
personal advancement; and for leadership in maintaining the morale and 
motivation of Marine Corps personnel and the prestige of a career in the 
Marine Corps.



Subpart F--The United States Coast Guard (When Operating as a Service in 
                                the Navy)



Sec. 700.601  Relationship and operation as a service in the Navy.

    (a) Upon the declaration of war or when the President directs, the 
Coast Guard shall operate as a service in the Navy, and shall be subject 
to the orders of the Secretary of the Navy. While so operating as a 
service in the Navy, and to the extent practicable, Coast Guard 
operations shall be integrated and uniform with Navy operation.
    (b) Whenever the Coast Guard operates as a service in the Navy:
    (1) Applicable appropriations of the Coast Guard to cover expenses 
shall be available for transfer to the Department of the Navy and 
supplemented, as required, from applicable appropriations of the 
Department of the Navy;
    (2) Personnel of the Coast Guard shall be eligible to receive 
gratuities, medals and other insignia of honor on the same basis as 
personnel in the naval service or serving in any capacity with the Navy; 
and
    (3) To the extent practicable, Coast Guard personnel, ships, 
aircraft and facilities will be utilized as organized Coast Guard units.



Sec. 700.602  The Commandant of the Coast Guard.

    (a) The Commandant of the Coast Guard is the senior officer of the 
United States Coast Guard.
    (b) When reporting to the Secretary of the Navy, the Commandant will 
report to the Chief of Naval Operations.
    (c) The Chief of Naval Operations shall represent the Coast Guard 
before the Joint Chiefs of Staff.



Sec. 700.603  Duties and responsibilities.

    In exercising command over the Coast Guard while operating as a 
service of the Navy, the Commandant shall:
    (a) Organize, train, prepare and maintain the readiness of the Coast 
Guard to function as a specialized service in the Navy for the 
performance of national defense missions, as directed;
    (b) Plan for and determine the present and future needs of the Coast 
Guard, both quantitative and qualitative, for personnel, including 
reserve personnel;
    (c) Budget for the Coast Guard, except as may be otherwise directed 
by the Secretary of the Navy;
    (d) Plan for and determine the support needs of the Coast Guard for 
equipment, materials, weapons or combat systems, supplies, facilities, 
maintenance and supporting services;
    (e) Exercise essential military administration of the Coast Guard. 
This includes, but is not limited to, such matters as discipline, 
communications, personnel records and accounting, conforming, as 
practicable, to Navy procedures;
    (f) In conjunction with the Director of Naval Intelligence, and the 
National Intelligence Community, where appropriate, establish and 
maintain an intelligence and security capability to provide support for 
the maritime defense zones, port security, narcotics interdiction, anti-
terrorist activity, fishery activity, pollution monitoring and other 
Coast Guard missions;
    (g) Enforce or assist in enforcing Federal laws on and under the 
high seas and waters subject to the jurisdiction of the United States;
    (h) Administer, promulgate and enforce regulations for the promotion 
of safety of life and property on and under the high seas and waters 
subject to the jurisdiction of the United States. This applies to those 
matters not specifically delegated by law to some other executive 
department;

[[Page 26]]

    (i) Develop, establish, maintain and operate, with due regard to the 
requirements of national defense, aids to maritime navigation, ice 
breaking facilities, for the promotion of safety on, under and over the 
high seas and waters subject to the jurisdiction of the United States;
    (j) Engage in oceanographic surveys in conjunction with the Office 
of the Oceanographer of the Navy; and
    (k) Continue in effect under the Secretary of the Navy those other 
functions, powers and duties vested in the Commandant by appropriate 
orders and regulations of the Secretary of Transportation on the day 
prior to the effective date of transfer of the Coast Guard to the 
Department of the Navy until specifically modified or terminated by the 
Secretary of the Navy.



           Subpart G--Commanders In Chief and Other Commanders

                     Titles and Duties of Commanders



Sec. 700.701  Titles of commanders.

    (a) The commander of a principal organization of the operating 
forces of the Navy, as determined by the chief of Naval Operations, or 
the officer who has succeeded to such command as provided elsewhere in 
these regulations, shall have the title ``Commander in Chief.'' The name 
of the organization under the command of such an officer shall be added 
to form his or her official title.
    (b) The commander of each other organization of units of the 
operating forces of the Navy or marine corps, or organization of units 
of shore activities, shall have the title ``Commander,'' ``Commandant,'' 
``Commanding General'' or other appropriate title. The name of the 
organization under the command of such an officer shall be added to form 
his or her official title.



Sec. 700.702  Responsibility and authority of commanders.

    (a) Commanders shall be responsible for the satisfactory 
accomplishment of the mission and duties assigned to their commands. 
Their authority shall be commensurate with their responsibilities. 
Normally, commanders shall exercise authority through their immediate 
subordinate commanders, but they may communicate directly with any of 
their subordinates.
    (b) Commanders shall ensure that subordinate commands are fully 
aware of the importance of strong, dynamic leadership and its 
relationship to the overall efficiency and readiness of naval forces. 
Commanders shall exercise positive leadership and actively develop the 
highest qualities of leadership in persons with positions of authority 
and responsibility throughout their commands.
    (c) Subject to orders of higher authority, and subject to the 
provisions of Sec. 700.106 of these regulations, commanders shall issue 
such regulations and instructions as may be necessary for the proper 
administration of their commands.
    (d) Commanders shall hold the same relationship to their flagships, 
or to shore activities of the command in which their headquarters may be 
located, in regard to internal administration and discipline, as to any 
other ship or shore activity of their commands.



Sec. 700.703  To announce assumption of command.

    (a) Upon assuming command, commanders shall so advise appropriate 
superiors, and the units of their commands.
    (b) When appropriate, commanders shall also advise the following 
officers and officials located within the area encompassed by the 
command concerning their assumption of command.
    (1) Senior commanders of other United States armed services;
    (2) Officials of other federal agencies; and
    (3) Officials of foreign governments.



Sec. 700.704  Readiness.

    Commanders shall take all practicable steps to maintain their 
commands in a state of readiness to perform their missions. In 
conformity with the orders and policies of higher authority, they shall:
    (a) Organize the forces and resources under their command and assign 
duties to their principal subordinate commanders;

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    (b) Prepare plans for the employment of their forces to meet 
existing and foreseeable situations;
    (c) Collaborate with the commanders of other United States armed 
services and with appropriate officials of other federal agencies and 
foreign governments located within the area encompassed by their 
commands;
    (d) Maintain effective intelligence and keep themselves informed of 
the political and military aspects of the national and international 
situation;
    (e) Make, or cause to be made, necessary inspections to ensure the 
readiness, effectiveness and efficiency of the components of their 
commands; and
    (f) Develop, in accordance with directives issued by higher 
authority, training strategies and plans for their commands.



Sec. 700.705  Observance of international law.

    At all times, commanders shall observe, and require their commands 
to observe, the principles of international law. Where necessary to 
fulfill this responsibility, a departure from other provisions of Navy 
Regulations is authorized.



Sec. 700.706  Keeping immediate superiors informed.

    Commanders shall keep their immediate superiors appropriately 
informed of:
    (a) The organization of their commands, the prospective and actual 
movements of the units of their commands, and the location of their 
headquarters;
    (b) Plans for employment of their forces;
    (c) The condition of their commands and of any required action 
pertaining thereto which is beyond their capacity or authority;
    (d) Intelligence information which may be of value;
    (e) Any battle, engagement or other significant action involving 
units of their commands;
    (f) Any important service or duty performed by persons or units of 
their commands; and
    (g) Unexecuted orders and matters of interest upon being relieved of 
command.

                          Staffs of Commanders



Sec. 700.710  Organization of a staff.

    (a) The term ``staff'' means those officers and other designated 
persons assigned to a commander to assist him or her in the 
administration and operation of his or her command.
    (b) The officer detailed as chief of staff and aide to a fleet 
admiral or admiral normally shall be a vice admiral or a rear admiral. 
The officer detailed as chief of staff and aide to a vice admiral or 
rear admiral shall normally be a rear admiral or a captain. The 
detailing of a vice commander or a deputy to a commander shall be 
reserved for selected commanders. An officer detailed as chief staff 
officer to another officer shall normally not be of the same grade as 
that officer.
    (c) The staff shall be organized into such divisions as may be 
prescribed by the commander concerned or by higher authority. These 
divisions shall conform in nature and designation, as practicable and as 
appropriate, to those of the staffs of superiors.
    (d) The staff of a flag or general officer may include one or more 
personal aides.



Sec. 700.711  Authority and responsibilities of officers of a staff.

    (a) The chief of staff and aide or chief staff officer, under the 
commander, shall be responsible for supervising and coordinating the 
work of the staff and shall be kept informed of all matters pertaining 
to that work. All persons attached to the staff, except a vice commander 
or deputy responsible directly to the commander shall be subordinate to 
the chief of staff and aide or chief staff officer while he or she is 
executing the duties of that office.
    (b) The officers of a staff shall be responsible for the performance 
of those duties assigned to them by the commander and shall advise the 
commander on all matters pertaining thereto. In the performance of their 
staff duties they shall have no command authority of their own. In 
carrying out such duties, they shall act for, and in the name of, the 
commander.

[[Page 28]]

                      Administration and Discipline



Sec. 700.720  Administration and discipline: Staff embarked.

    In matters of general discipline, the staff of a commander embarked 
and all enlisted persons serving with the staff shall be subject to the 
internal regulations and routine of the ship. They shall be assigned 
regular stations for battle and emergencies. Enlisted persons serving 
with the staff shall be assigned to the ship for administration and 
discipline, except in the case of a staff embarked for passage only, and 
provided in that case that an organization exists and is authorized to 
act for such purposes.



Sec. 700.721  Administration and discipline: Staff based ashore.

    When a staff is based ashore, the enlisted persons serving with the 
staff shall, when practicable, be assigned to an appropriated activity 
for purposes of administration and discipline. The staff officers may be 
similarly assigned. Members of a staff assigned for any purpose to a 
command or activity shall conform in matters of general discipline to 
the internal regulations and routine of that command or activity.



Sec. 700.722  Administration and discipline: Staff unassigned to an administrative command.

    (a) When it is not practicable to assign enlisted persons serving 
with the staff of a commander to an established activity for 
administration and discipline, the commander may designate an officer of 
the staff to act as the commanding officer of such persons and shall 
notify the Judge Advocate General and the Commandant of the Marine 
Corps, or the Chief of Naval Personnel, as appropriate, of such action.
    (b) If the designating commander desires the commanding officer of 
staff enlisted personnel to possess authority to convene courts-martial, 
the commander should request the Judge Advocate General to obtain such 
authorization from the Secretary of the Navy.



Sec. 700.723  Administration and discipline: Separate and detached command.

    Any flag or general officer in command, any officer authorized to 
convene general courts-martial, or the senior officer present may 
designate organizations which are separate or detached commands. Such 
officer shall state in writing that it is a separate or detached command 
and shall inform the Judge Advocate General of the action taken. If 
authority to convene courts-martial is desired for the commanding 
officer or officer in charge of such separate or detached command, the 
officer designating the organization as separate or detached shall 
request the Judge Advocate general to obtain authorization from the 
Secretary of the Navy.



                    Subpart H--The Commanding Officer

                     Commanding Officers in General



Sec. 700.801  Applicability.

    In addition to commanding officers, the provisions of this chapter 
shall apply, where pertinent, to aircraft commanders, officers in charge 
(including warrant officers and petty officers when so detailed) and 
those persons standing the command duty.



Sec. 700.802  Responsibility.

    (a) The responsibility of the commanding officer for his or her 
command is absolute, except when, and to the extent, relieved therefrom 
by competent authority, or as provided otherwise in these regulations. 
The authority of the commanding officer is commensurate with his or her 
responsibility. While the commanding officer may, at his or her 
discretion, and when not contrary to law or regulations, delegate 
authority to subordinates for the execution of details, such delegation 
of authority shall in no way relieve the commanding officer of his or 
her continued responsibility for the safety, well-being, and efficiency 
of the entire command.

[[Page 29]]

    (b) A commanding officer who departs from his or her orders or 
instructions, or takes official action which is not in accordance with 
such orders or instructions, does so upon his or her own responsibility 
and shall report immediately the circumstances to the officer from whom 
the prior orders or instructions were received. Of particular importance 
is the commanding officer's duty to take all necessary and appropriate 
action in self-defense of the command.
    (c) The commanding officer shall be responsible for economy within 
his or her command. To this end the commanding officer shall require 
from his or her subordinates a rigid compliance with the regulations 
governing the receipt, accounting, and expenditure of public money and 
materials, and the implementation of improved management techniques and 
procedures.
    (d) The commanding officer and his or her subordinates shall 
exercise leadership through personal example, moral responsibility, and 
judicious attention to the welfare of persons under their control or 
supervision. Such leadership shall be exercised in order to achieve a 
positive, dominant influence on the performance of persons in the 
Department of the Navy.



Sec. 700.804  Organization of commands.

    All commands and other activities of the Department of the Navy 
shall be organized and administered in accordance with law, United 
States Navy Regulations, and the orders of competent authority. All 
orders and instructions of the commanding officer shall be in accordance 
therewith.



Sec. 700.809  Persons found under incriminating circumstances.

    (a) The commanding officer shall keep under restraint or 
surveillance, as necessary, any person not in the armed services of the 
United States who is found under incriminating or irregular 
circumstances within the command, and shall immediately initiate an 
investigation.
    (b) Should an investigation indicate that such person is not a 
fugitive from justice or has not committed or attempted to commit an 
offense, he shall be released at the earliest opportunity, except:
    (1) If not a citizen of the United States, and the place of release 
is under the jurisdiction of the United States, the nearest federal 
immigration authorities shall be notified as to the time and place of 
release sufficiently in advance to permit them to take such steps as 
they deem appropriate.
    (2) Such persons shall not be released in territory not under the 
jurisdiction of the United States without first obtaining the consent of 
the proper foreign authorities, except where the investigation shows 
that he entered the command from territory of the foreign state, or that 
he is a citizen or subject of that state.
    (c) If the investigation indicates that such person has committed or 
attempted to commit an offense punishable under the authority of the 
commanding officer, the latter shall take such action as he deems 
necessary.
    (d) If the investigation indicates that such a person is a fugitive 
from justice, or has committed or attempted to commit an offense which 
requires actions beyond the authority of the commanding officer, the 
latter shall, at the first opportunity, deliver such person, together 
with a statement of the circumstances, to the proper civil authorities.
    (e) In all cases under paragraph (d) of this section, a report shall 
be made promptly to the Chief of Naval Operations or the Commandant of 
the Marine Corps, as appropriate.



Sec. 700.810  Rules for visits.

    (a) Commanding officers are responsible for the control of visitors 
to their commands and shall comply with the relevant provisions of 
Department of the Navy concerning classified information and physical 
security.
    (b) Commanding officers shall take such measures and impose such 
restrictions on visitors as are necessary to safeguard the classified 
material under their jurisdiction. Arrangements for general visiting 
shall always be made with due regard for physical security and based on 
the assumption that foreign agents will be among the visitors.

[[Page 30]]

    (c) Commanding officers and others officially concerned shall 
exercise reasonable care to safeguard the persons and property of 
visitors to naval activities as well as taking those necessary 
precautions to safeguard the persons and property within the command.



Sec. 700.811  Dealers, tradesmen, and agents.

    (a) In general, dealers or tradesmen or their agents shall not be 
admitted within a command, except as authorized by the commanding 
officer:
    (1) To conduct public business;
    (2) To transact specific private business with individuals at the 
request of the latter; or
    (3) To furnish services and supplies which are necessary and are not 
otherwise, or are insufficiently, available to the personnel of the 
command.
    (b) Personal commercial solicitation and the conduct of commercial 
transactions are governed by policies of the Department of Defense.



Sec. 700.812  Postal matters.

    Commanding officers shall ensure that mail and postal funds are 
administered in accordance with instructions issued by the Postmaster 
General and approved for the naval service by the Chief of Naval 
Operations, and instructions issued by the Chief of Naval Operations, 
the Chief of Naval Personnel, or the Commandant of the Marine Corps, as 
appropriate; and that postal clerks or other persons authorized to 
handle mail perform their duties strictly in accordance with those 
instructions.



Sec. 700.815  Deaths.

    The commanding officer, in the event of the death of any person 
within his or her command, shall ensure that the cause of death and the 
circumstances under which death occurred are established, that the 
provisions of the Manual of the Judge Advocate General are adhered to in 
documenting the cause and circumstances, and that the appropriate 
casualty report is submitted.



Sec. 700.816  The American National Red Cross.

    (a) Pursuant to the request of the Secretary of the Navy, and 
subject to such instructions as the Secretary may issue, the American 
National Red Cross is authorized to conduct a program of welfare, 
including social, financial, medical and dental aid, for naval 
personnel; to assist in matters pertaining to prisoners of war; and to 
provide such other services as are appropriate functions for the Red 
Cross. The American National Red Cross is the only volunteer society 
authorized by the Government to render medical and dental aid to the 
armed forces of the United States. Other organizations desiring to 
render medical and dental aid may do so only through the Red Cross.
    (b) Requests for Red Cross services shall be made to the Chief of 
Naval Personnel or the Commandant of the Marine Corps or, in the case of 
medical services, to the Commander, Naval Medical Command.
    (c) Activities and personnel of the American National Red Cross in 
areas subject to naval jurisdiction shall conform to such administrative 
regulations as may be prescribed by appropriate naval authority.
    (d) Red Cross personnel shall be considered to have the status of 
commissioned officers, subject to such restrictions as may be imposed by 
the Chief of Naval Personnel or the Commandant of the Marine Corps.



Sec. 700.819  Records.

    The commanding officer shall require that records relative to 
personnel, material and operations, as required by current instructions, 
are maintained properly by those responsible therefor.



Sec. 700.822  Delivery of personnel to civil authorities and service of subpoena or other process.

    (a) Commanding officers or other persons in authority shall not 
deliver any person in the naval service to civil authorities except as 
provided by the Manual of the Judge Advocate General.
    (b) Commanding officers are authorized to permit the service of 
subpoenas or other process as provided by the Manual of the Judge 
Advocate General.



Sec. 700.826  Physical security.

    (a) The commanding officer shall take appropriate action to 
safeguard

[[Page 31]]

personnel, to prevent unauthorized access to installations, equipment, 
materials and documents, and to safeguard them against acts of sabotage, 
damage, theft, or terrorism.
    (b) The commanding officer shall take action to protect and maintain 
the security of the command against dangers from fire, windstorms, or 
other acts of nature.



Sec. 700.827  Effectiveness for service.

    The commanding officer shall:
    (a) Exert every effort to maintain the command in a state of maximum 
effectiveness for war or other service consistent with the degree of 
readiness as may be prescribed by proper authority. Effectiveness for 
service is directly related to the state of personnel and material 
readiness; and
    (b) Make him or herself aware of the progress of any repairs, the 
status of spares, repair parts and other components, personnel readiness 
and other factors or conditions that could lessen the effectiveness of 
his or her command. When the effectiveness is lessened appreciably, that 
fact shall be reported to appropriate superiors.



Sec. 700.828  Search by foreign authorities.

    (a) The commanding officer shall not permit a ship under his or her 
command to be searched on any pretense whatsoever by any person 
representing a foreign state, nor permit any of the personnel within the 
confines of his or her command to be removed from the command by such 
person, so long as he has the capacity to repel such act. If force 
should be exerted to compel submission, the commanding officer is to 
resist that force to the utmost of his or her power.
    (b) Except as may be provided by international agreement, the 
commanding officer of a shore activity shall not permit his or her 
command to be searched by any person representing a foreign state, nor 
permit any of the personnel within the confines of his or her command to 
be removed from the command by such person, so long as he or she has the 
power to resist.



Sec. 700.832  Environmental pollution.

    The commanding officer shall cooperate with Federal, state and local 
governmental authorities in the prevention, control and abatement of 
environmental pollution. If the requirements of any environmental law 
cannot be achieved because of operational considerations, insufficient 
resources or other reason, the commanding officer shall report to the 
immediate superior in the chain of command. The commanding officer shall 
be aware of existing policies regarding pollution control, and should 
recommend remedial measures when appropriate.



Sec. 700.834  Care of ships, aircraft, vehicles and their equipment.

    The commanding officer shall cause such inspections and tests to be 
made and procedures carried out as are prescribed by competent 
authority, together with such others as he or she deems necessary, to 
ensure the proper preservation, repair, maintenance and operation of any 
ship, aircraft, vehicle, and their equipment assigned to his or her 
command.



Sec. 700.835  Work, facilities, supplies, or services for other Government departments, State or local governments, foreign governments, private parties and 
          morale, welfare, and recreational activities.

    (a) Work may be done for or on facilities, supplies, or services 
furnished to departments and agencies of the Federal and State 
governments, local governments, foreign governments, private parties, 
and morale, welfare, and recreational activities with the approval of a 
commanding officer provided:
    (1) The cost does not exceed limitations the Secretary of the Navy 
may approve or specify; and
    (2) In the case of private parties, it is in the interest of the 
government to do so and there is no issue of competition with private 
industry; and
    (3) In the case of foreign governments, a disqualification of a 
government has not been issued for the benefits of this article.
    (b) Work shall not be started nor facilities, supplies, or services 
furnished

[[Page 32]]

morale, welfare, and recreational activities not classified as 
instrumentalities of the United States, or state or local governments or 
private parties, until funds to cover the estimated cost have been 
deposited with the commanding officer or unless otherwise provided by 
law.
    (c) Work shall not be started, nor facilities, supplies, or services 
furnished other Federal Government departments and agencies, or expenses 
charged to non-appropriated funds of morale, welfare and recreational 
activities classified as instrumentalities of the United States, until 
reimbursable funding arrangements have been made.
    (d) Work, facilities, supplies, or services furnished non-
appropriated fund activities classified as instrumentalities of the 
United States in the Navy Comptroller Manual shall be funded in 
accordance with regulations of the Comptroller of the Navy.
    (e) Supplies or services may be furnished to naval vessels and 
military aircraft of friendly foreign governments (unless otherwise 
provided by law or international treaty or agreement):
    (1) On a reimbursable basis without an advancement of funds, when in 
the best interest of the United States:
    (i) Routine port services (including pilotage, tugs, garbage 
removal, linehandling and utilities) in territorial waters or waters 
under United States control.
    (ii) Routine airport services (including air traffic control, 
parking, servicing and use of runways).
    (iii) Miscellaneous supplies (including fuel, provisions, spare 
parts, and general stores) but not ammunition. Supplies are subject to 
approval of the cognizant fleet or force commanders when provided 
overseas.
    (iv) With approval of Chief of Naval Operations in each instance, 
overhauls, repairs, and alterations together with necessary equipment 
and its installation required in connection therewith, to vessels and 
military aircraft.
    (2) Routine port and airport services may be furnished at no cost to 
the foreign government concerned where such services are provided by 
persons of the naval service without direct cost to the Department of 
the Navy.
    (f) In cases of emergency involving possible loss of life or 
valuable property, work may be started or facilities furnished prior to 
authorization, or provision for payment, but in all such cases a 
detailed report of the facts and circumstances shall be made promptly to 
the Secretary of the Navy or the appropriate authority.
    (g) Charges and accounting for any work, supplies, or services shall 
be as prescribed in the Navy Comptroller Manual.

                       Commanding Officers Afloat



Sec. 700.840  Unauthorized persons on board.

    The commanding officer shall satisfy him or herself that there is no 
unauthorized person on board before proceeding to sea or commencing a 
flight.



Sec. 700.841  Control of passengers.

    (a) Control of passage in and protracted visits to aircraft and 
ships of the Navy by all persons, within or without the Department of 
the Navy, shall be exercised by the Chief of Naval Operations.
    (b) Nothing in this section shall be interpreted as prohibiting the 
senior officer present from authorizing the passage in ships and 
aircraft of the Navy by such persons as he or she judges necessary in 
the public interest or in the interest of humanity. The senior officer 
present shall report the circumstances to the Chief of Naval Operations 
when he or she gives such authorization.



Sec. 700.842  Authority over passengers.

    Except as otherwise provided in these regulations or in orders from 
competent authority, all passengers in a ship or aircraft of the naval 
service are subject to the authority of the commanding officer and shall 
conform to the internal regulations and routine of the ship or aircraft. 
The commanding officer of such ship or aircraft shall take no 
disciplinary action against a passenger not in the naval service, other 
than that authorized by law. The commanding officer may, when he or

[[Page 33]]

she deems such an action to be necessary for the safety of the ship or 
aircraft or of any persons embarked, subject a passenger not in the 
naval service to such restraint as the circumstances require until such 
time as delivery to the proper authorities is possible. A report of the 
matter shall be made to an appropriate superior of the passenger.



Sec. 700.844  Marriages on board.

    The commanding officer shall not perform a marriage ceremony on 
board his or her ship or aircraft. He or she shall not permit a marriage 
ceremony to be performed on board when the ship or aircraft is outside 
the territory of the United States, except:
    (a) In accordance with local laws and the laws of the state, 
territory, or district in which the parties are domiciled, and
    (b) In the presence of a diplomatic or consular official of the 
United States, who has consented to issue the certificates and make the 
returns required by the consular regulations.



Sec. 700.845  Maintenance of logs.

    (a) A deck log and an engineering log shall be maintained by each 
ship in commission, and by such other ships and craft as may be 
designated by the Chief of Naval Operations.
    (b) A compass record shall be maintained as an adjunct to the deck 
log. An engineer's bell book shall be maintained as an adjunct to the 
engineering log.
    (c) The Chief of Naval Operations shall prescribe regulations 
governing the contents and preparation of the deck and engineering logs 
and adjunct records.
    (d) In the case of a ship or craft equipped with automated data 
logging equipment, the records generated by such equipment satisfy the 
requirements of this section.



Sec. 700.846  Status of logs.

    The deck log, the engineering log, the compass record, the bearing 
hooks, the engineer's bell book, and any records generated by automated 
data logging equipment shall each constitute an official record of the 
command.



Sec. 700.847  Responsibility of a master of an in-service ship of the Military Sealift Command.

    (a) In an in-service ship of the Military Sealift Command, the 
master's responsibility is absolute, except when, and to the extent, 
relieved therefrom by competent authority. The authority of the master 
is commensurate with the master's responsibility. The master is 
responsible for the safety of the ship and all persons on board. He or 
she is responsible for the safe navigation and technical operation of 
the ship and has paramount authority over all persons on board. He or 
she is responsible for the preparation of the abandon ship bill and has 
exclusive authority to order the ship abandoned. The master may, using 
discretion, and when not contrary to law or regulation, delegate 
authority for operation of shipboard functions to competent 
subordinates. However, such delegation of authority shall in no way 
relieve the master of continued responsibility for the safety, well-
being, and efficiency of the ship.
    (b) All orders and instructions of the master shall be in accordance 
with appropriate laws of the United States, and all applicable orders 
and regulations of the Navy, Military Sealift Command, and the Office of 
Personnel Management. A master who departs from the orders or 
instructions of competent authority or takes official action contrary to 
such orders or instructions, shall report immediately the circumstances 
to the authority from whom the prior orders or instructions were 
received.



Sec. 700.848  Relations with merchant seamen.

    When in foreign waters, the commanding officer, with the approval of 
the senior officer present, may receive on board as supernumeraries for 
rations and passage:
    (a) Distressed seamen of the United States for passage to the United 
States, provided they bind themselves to be amenable in all respects to 
Navy Regulations.
    (b) As prisoners, seamen from merchant vessels of the United States, 
provided that the witnesses necessary to substantiate the charges 
against them

[[Page 34]]

are received, or adequate means adopted to ensure the presence of such 
witnesses on arrival of the prisoners at the place where they are to be 
delivered to the civil authorities.



Sec. 700.855  Status of boats.

    (a) Boats shall be regarded in all matters concerning the rights, 
privileges and comity of nations as part of the ship or aircraft to 
which they belong.
    (b) In ports where war, insurrection or armed conflict exists or 
threatens, the commanding officer shall:
    (1) Require that boats away from the ship or aircraft have some 
appropriate and competent person in charge; and
    (2) See that steps are taken to make their nationality evident at 
all times.



Sec. 700.856  Pilotage.

    (a) The commanding officer shall:
    (1) Pilot the ship under all ordinary circumstances, but he may 
employ pilots whenever, in his or her judgment such employment is 
prudent;
    (2) Not call a pilot on board until the ship is ready to proceed;
    (3) Not retain a pilot on board after the ship has reached her 
destination or a point where the pilot is no longer required;
    (4) Give preference to licensed pilots; and
    (5) Pay pilots no more than the local rates.
    (b) A pilot is merely an adviser to the commanding officer. The 
presence on board of a pilot shall not relieve the commanding officer or 
any subordinate from his or her responsibility for the proper 
performance of the duties with which he or she may be charged concerning 
the navigation and handling of the ship. For an exception to the 
provisions of this paragraph, see ``Rules and Regulations Covering 
Navigation of the Panama Canal and Adjacent Waters,'' (35 CFR Chapter I, 
subchapter C) which directs that the pilot assigned to a vessel in those 
waters shall have control of the navigation and movement of the vessel. 
Also see the provisions of these regulations concerning the navigation 
of ships at a naval shipyard or station, or in entering or leaving 
drydock.



Sec. 700.857  Safe navigation and regulations governing operation of ships and aircraft.

    (a) The commanding officer is responsible for the safe navigation of 
his or her ship or aircraft, except as prescribed otherwise in these 
regulations for ships at a naval shipyard or station, in drydock, or in 
the Panama Canal. During an armed conflict, an exercise simulating armed 
conflict, or an authorized law enforcement activity, competent authority 
may modify the use of lights or other safeguards against collision. 
Except in time of actual armed conflict, such modifications will be 
authorized only when ships or aircraft clearly will not be hazarded.
    (b) Professional standards and regulations governing shiphandling, 
safe navigation, safe anchoring and related operational matters shall be 
promulgated by the Chief of Naval Operations.
    (c) Professional standards and regulations governing the operation 
of naval aircraft and related matters shall be promulgated by the Chief 
of Naval Operations or the Commandant of the Marine Corps, as 
appropriate.
    (d) The Commanding Officer is responsible for ensuring that weather 
and oceanic effects are considered in the effective and safe operation 
of his or her ship or aircraft.



Sec. 700.859  Quarantine.

    (a) The commanding officer or aircraft commander of a ship or 
aircraft shall comply with all quarantine regulations and restrictions, 
United States or foreign, for the port or area within which the ship or 
aircraft is located.
    (b) The commanding officer shall give all information required by 
authorized foreign officials, insofar as permitted by military security, 
and will meet the quarantine requirements promulgated by proper 
authority for United States or foreign ports. However, nothing in this 
section shall be interpreted as authorizing commanding officers to 
permit on board inspections by foreign officials, or to modify in any 
manner the provisions of Sec. 700.828 of these regulations.
    (c) The commanding officer shall allow no intercourse with a port or 
area or with other ships or aircraft

[[Page 35]]

until after consultation with local health authorities when:
    (1) Doubt exists as to the sanitary regulations or health conditions 
of the port or area;
    (2) A quarantine condition exists aboard the ship or aircraft;
    (3) Coming from a suspected port or area, or one actually under 
quarantine.
    (d) No concealment shall be made of any circumstance that may 
subject a ship or aircraft of the Navy to quarantine.
    (e) Should there appear at any time on board a ship or aircraft 
conditions which present a hazard of introduction of a communicable 
disease outside the ship or aircraft, the commanding officer or aircraft 
commander shall at once report the fact to the senior officer present, 
to other appropriate higher authorities and, if in port, to the health 
authorities having quarantine jurisdiction. The commanding officer or 
aircraft commander shall prevent all contracts likely to spread disease 
until pratique is received. The commanding officer of a ship in port 
shall hoist the appropriate signal.



Sec. 700.860  Customs and immigration inspections.

    (a) The commanding officer or aircraft commander shall facilitate 
any proper examination which it may be the duty of a customs officer or 
immigration officer of the United States to make on board the ship or 
aircraft. The commanding officer or air craft commander shall not permit 
a foreign customs officer or an immigration officer to make any 
examination whatsoever, except as hereinafter provided, on board the 
ship, aircraft or boats under his or her command.
    (b) When a ship or aircraft of the Navy or a public vessel manned by 
naval personnel and operating under the direction of the Department of 
the Navy is carrying cargo for private commercial account, such cargo 
shall be subject to the local customs regulations of the port, domestic 
or foreign, in which the ship or aircraft may be, and in all matters 
relating to such cargo, the procedure prescribed for private merchant 
vessels and aircraft shall be followed. Government-owned stores or cargo 
in such ship or aircraft not landed nor intended to be landed nor in any 
manner trafficked in, are, by the established precedent of international 
courtesy, exempt from customs duties, but a declaration of such stores 
or cargo, when required by local customs regulations, shall be made. 
Commanding officers shall prevent, as far as possible, disputes with the 
local authorities in such cases, but shall protect the ship or aircraft 
and the Government-owned stores and cargo from any search or seizure.
    (c) Upon arrival from a foreign country, at the first port of entry 
in United States territory, the commanding officer, or the senior 
officer of ships or aircraft in company, shall notify the collector of 
the port. Each individual aboard shall, in accordance with customs 
regulations, submit a list of articles purchased or otherwise acquired 
by him abroad. Dutiable articles shall not be landed until the customs 
officer has completed his inspection.
    (d) Commanding officers of naval vessels and aircraft transporting 
United States civilian and foreign military and civilian passengers 
shall satisfy themselves that the passenger clearance requirements of 
the Immigration and Naturalization Service are complied with upon 
arrival at points within the jurisdiction of the United States. 
Clearance for such passengers by an immigration officer is necessary 
upon arrival from foreign ports and at the completion of movements 
between any of the following: Continental United States (including 
Alaska and Hawaii), the Canal Zone, Puerto Rico, Virgin Islands, Guam, 
American Samoa, or other outlying places subject to United States 
jurisdiction. Commanding officers, prior to arriving, shall advise the 
cognizant naval or civilian port authority of the aforementioned 
passengers aboard and shall detain them for clearance as required by the 
Immigration and Naturalization Service.
    (e) The provisions of this section shall not be construed to require 
delaying the movements of any ship or aircraft of the Navy in the 
performance of her assigned duty.

[[Page 36]]

       Special Circumstances/Ships in Naval Stations and Shipyards



Sec. 700.871  Responsibility for safety of ships and craft at a naval station or shipyard.

    (a) The commanding officer of a naval station or shipyard shall be 
responsible for the care and safety of all ships and craft at such 
station or shipyard not under a commanding officer or assigned to 
another authority, and for any damage that may be done by or to them. In 
addition, the commanding officer of a naval station or shipyard shall be 
responsible for the safe execution of work performed by that activity 
upon any ship located at the activity.
    (b) It shall be the responsibility of the commanding officer of a 
ship in commission which is undergoing overhaul, or which is otherwise 
immobilized at a naval station or shipyard, to request such services as 
are necessary to ensure the safety of the ship. The commanding officer 
of the naval station or shipyard shall be responsible for providing 
requested services in a timely and adequate manner.
    (c) When a ship or craft not under her own power is being moved by 
direction of the commanding officer of a naval station or shipyard, that 
officer shall be responsible for any damage that may result therefrom. 
The pilot or other person designated for the purpose shall be in direct 
charge of such movement, and all persons on board shall cooperate with 
and assist the pilot as necessary. Responsibility for such actions in a 
private shipyard will be assigned by contract to the contractor.
    (d) When a ship operating under her own power is being drydocked, 
the commanding officer shall be fully responsible for the safety of his 
ship until the extremity of the ship first to enter the drydock reaches 
the dock sill and the ship is pointed fair for entering the drydock. The 
docking officer shall then take charge and complete the docking, 
remaining in charge until the ship has been properly landed, bilge 
blocks hauled, and the dock pumped down. In undocking, the docking 
officer shall assume charge when flooding the dock preparatory to 
undocking is started, and shall remain in charge until the extremity of 
the ship last to leave the dock clears the sill, and the ship is pointed 
fair for leaving the drydock, when the ship's commanding officer shall 
assume responsibility for the safety and control of the ship.
    (e) When a naval ship is to be drydocked in a private shipyard under 
a contract being administered by a supervisor of shipbuilding, the 
responsibilities of the commanding officer are the same as in the case 
of drydocking in a naval shipyard. The responsibilities for the safety 
of the actual drydocking, normally assigned to the commanding officer of 
a naval shipyard through the docking officer, will be assigned by 
contract to the contractor. The supervisor of shipbuilding is 
responsible, however, for ensuring that the contractor facilities, 
methods, operations, and qualifications meet the standards of efficiency 
and safety prescribed by Navy directives.
    (f) If the ship is elsewhere than at a naval station or shipyard, 
the relationship between the commanding officer and the supervisor of 
shipbuilding, or other appropriate official, shall be the same as that 
between the commanding officer and the commanding officer of a naval 
station or naval shipyard as specified in this article.



Sec. 700.872  Ships and craft in drydock.

    (a) The commanding officer of a ship in drydock shall be responsible 
for effecting adequate closure, during such periods as they will be 
unattended, of all openings in the ship's bottom upon which no work is 
being undertaken by the docking activity. The commanding officer of the 
docking activity shall be responsible for the closing, at the end of 
working hours, of all valves and other openings in the ship's bottom 
upon which work is being undertaken by the docking activity, when such 
closing is practicable.
    (b) Prior to undocking, the commanding officer of a ship shall 
report to the docking officer any material changes in the amount and 
location of weights on board which have been made by the ship's force 
while in dock, and shall ensure, and so report, that all sea valves and 
other openings in the ship's bottom are properly closed. The level of 
water in the dock shall not be

[[Page 37]]

permitted to rise above the keel blocks prior to receipt of this report. 
The above valves and openings shall be tended during flooding of the 
dock.
    (c) When a ship or craft, not in commission, is in a naval drydock, 
the provisions of this article shall apply, except that the commanding 
officer of the docking activity or his representative shall act in the 
capacity of the commanding officer of the ship or craft.
    (d) When a naval ship or craft is in drydock in a private shipyard, 
responsibility for actions normally assigned by the commanding officer 
of the docking activity will be assigned by contract to the contractor.



Sec. 700.873  Inspection incident to commissioning of ships.

    When a ship is to be commissioned, the authority designated to place 
such ship in commission shall, just prior to commissioning, cause an 
inspection to be made to determine the cleanliness and readiness of the 
ship to receive its crew and outfit. In the case of the delivery of a 
ship by a contractor, the above inspection shall precede acceptance of 
the ship. A copy of the report of this inspection shall be furnished the 
officer detailed to command the ship and to appropriate commands.

          Special Circumstances/Prospective Commanding Officers



Sec. 700.880  Duties of the prospective commanding officer of a ship.

    (a) Except as may be prescribed by the Chief of Naval Operations, 
the prospective commanding officer of a ship not yet commissioned shall 
have no independent authority over the preparation of the ship for 
service by virtue of his assignment to such duty, until the ship is 
commissioned and placed under his or her command. The prospective 
commanding officer shall:
    (1) Procure from the commander of the naval shipyard or the 
supervisor of shipbuilding the general arrangement plans of the ship, 
and all pertinent information relative to the general condition of the 
ship and the work being undertaken on the hull, machinery and equipment, 
upon reporting for duty;
    (2) Inspect the ship as soon after reporting for duty as 
practicable, and frequently thereafter, in order to keep him or herself 
informed of the state of her preparation for service. If, during the 
course of these inspections he or she notes an unsafe or potentially 
unsafe condition, he or she shall report such fact to the commander of 
the naval shipyard or the supervisor of shipbuilding and to his or her 
superior for resolution;
    (3) Keep him or herself informed as to the progress of the work 
being done, including tests of equipment, and make such recommendations 
to the commander of the naval shipyard or the supervisor of shipbuilding 
as he or her she deems appropriate;
    (4) Ensure that requisitions are submitted for articles to outfit 
the ship which are not otherwise being provided;
    (5) Prepare the organization of the ship;
    (6) Train the nucleus crew to effectively and efficiently take 
charge of and operate the ship upon commissioning; and
    (7) Make such reports as may be required by higher authority, and 
include therein a statement of any deficiency in material or personnel.
    (b) If the prospective commanding officer does not consider the ship 
in proper condition to be commissioned at the time the commander of the 
naval shipyard or the supervisor of shipbuilding signifies his intention 
of transferring the ship to the prospective commanding officer, he or 
she shall report that conclusion with his reasons therefor, in writing, 
to the commander of the naval shipyard or the supervisor of shipbuilding 
and to the appropriate higher authority.
    (c) If the ship is elsewhere than at a naval shipyard, the 
relationship between the prospective commanding officer and the 
supervisor of shipbuilding, or other appropriate official, shall be the 
same as that between the prospective commanding officer and the 
commander of a naval shipyard as specified in this article.
    (d) The Chief of Naval Operations shall be responsible for providing 
the commanding officer or prospective commanding officer of a naval 
nuclear

[[Page 38]]

powered ship with the authority and direction necessary to carry out his 
or her responsibilities.



                  Subpart I--The Senior Officer Present

                                Contents



Sec. 700.901  The senior officer present.

    Unless some other officer has been so designated by competent 
authority, the ``senior officer present'' is the senior line officer of 
the Navy on active duty, eligible for command at sea, who is present and 
in command of any part of the Department of the Navy in the locality or 
within an area prescribed by competent authority, except where personnel 
of both the Navy and the Marine Corps are present on shore and the 
officer of the Marine Corps who is in command is senior to the senior 
line officer of the Navy. In such cases, the officer of the Marine Corps 
shall be the senior officer present on shore.



Sec. 700.902  Eligibility for command at sea.

    All officers of the line of the Navy, including Naval Reserve, on 
active duty, except those designated for the performance of engineering, 
aeronautical engineering or special duties, and except those limited 
duty officers who are not authorized to perform all deck duties afloat, 
are eligible for command at sea.



Sec. 700.903  Authority and responsibility.

    At all times and places not excluded in these regulations, or in 
orders from competent authority, the senior officer present shall assume 
command and direct the movements and efforts of all persons in the 
Department of the Navy present, when, in his or her judgment, the 
exercise of authority for the purpose of cooperation or otherwise is 
necessary. The senior officer present shall exercise this authority in a 
manner consistent with the operational command responsibility vested in 
the commanders of unified or specified commands.



Sec. 700.904  Authority of senior officer of the Marine Corps present.

    The authority and responsibility of the senior officer present are 
also conferred upon the senior commanding officer of the Marine Corps 
present with respect to those units of the Marine Corps, including Navy 
personnel attached, which are in the locality and not under the 
authority of the senior officer present.



Sec. 700.922  Shore patrol.

    (a) When liberty is granted to any considerable number of persons, 
except in an area that can absorb them without danger of disturbance or 
disorder, the senior officer present shall cause to be established, 
temporarily or permanently, in charge of an officer, a sufficient patrol 
of officers, petty officers, and noncommissioned officers to maintain 
order and suppress any unseemly conduct on the part of any person on 
liberty. The senior patrol officer shall communicate with the chief of 
police or other local officials and make such arrangements as may be 
practicable to aid the patrol in carrying out its duties properly. Such 
duties may include providing assistance to military personnel in 
relations with civil courts and police, arranging for release of service 
personnel from civil authorities to the parent command, and providing 
other services that favorably influence discipline and morale.
    (b) A patrol shall not be landed in any foreign port without first 
obtaining the consent of the proper local officials. Tact must be used 
in requesting permission; and, unless it is given willingly and 
cordially, the patrol shall not be landed. If consent cannot be 
obtained, the size of liberty parties shall be held to such limits as 
may be necessary to render disturbances unlikely.
    (c) Officers and enlisted personnel on patrol duty in a foreign 
country normally should not be armed. In the United States, officers and 
men may be armed as prescribed by the senior officer present.
    (d) No officer or enlisted person who is a member of the shore 
patrol or beach guard, or is assigned in support thereof, shall partake 
of or indulge in any form of intoxicating beverage or

[[Page 39]]

other form of intoxicant while on duty, on post, or at other times 
prescribed by the senior patrol officer. The senior patrol officer shall 
ensure that the provisions of this paragraph are strictly observed and 
shall report promptly in writing to the senior officer present all 
violations of these provisions that may come to his or her notice. All 
officers and enlisted personnel of the patrol shall report to the senior 
patrol officer all violations of the provisions of this paragraph on the 
part of those under them.



Sec. 700.923  Precautions for health.

    The senior officer present shall take precautions to preserve the 
health of the persons under his or her authority. He or she shall obtain 
information regarding the healthfulness of the area and medical 
facilities available therein and shall adopt such measures as are 
required by the situation.



Sec. 700.924  Medical or dental aid to persons not in the naval service.

    The senior officer present may require the officers of the Medical 
Corps and Dental Corps under his or her authority to render emergency 
professional aid to persons not in the naval service when such aid is 
necessary and demanded by the laws of humanity or the principles of 
international courtesy.



Sec. 700.934  Exercise of power of consul.

    When upon the high seas or in any foreign port where there is no 
resident consul of the United States, the senior officer present afloat 
has the authority to exercise all powers of a consul in relation to 
mariners of the United States.



Sec. 700.939  Granting of asylum and temporary refuge.

    (a) If an official of the Department of the Navy is requested to 
provide asylum or temporary refuge, the following procedures shall 
apply:
    (1) On the high seas or in territories under exclusive United States 
jurisdiction (including territorial seas, the Commonwealth of Puerto 
Rico, territories under United States administration, and possessions):
    (i) At his or her request, an applicant for asylum will be received 
on board any naval aircraft or waterborne craft, Navy or Marine Corps 
activity or station.
    (ii) Under no circumstances shall the person seeking asylum be 
surrendered to foreign jurisdiction or control, unless at the personal 
direction of the Secretary of the Navy or higher authority. Persons 
seeking political asylum should be afforded every reasonable care and 
protection permitted by the circumstances.
    (2) In territories under foreign jurisdiction (including foreign 
territorial seas, territories, and possessions):
    (i) Temporary refuge shall be granted for humanitarian reasons on 
board a naval aircraft or waterborne craft, Navy or Marine Corps 
activity or station, only in extreme or exceptional circumstances 
wherein life or safety of a person is put in imminent danger, such as 
pursuit by a mob. When temporary refuge is granted, such protection 
shall be terminated only when directed by the Secretary of the Navy or 
higher authority.
    (ii) A request by foreign authorities for return of custody of a 
person under the protection of temporary refuge will be reported to the 
CNO or Commandant of the Marine Corps. The requesting foreign 
authorities will be informed that the case has been referred to higher 
authorities for instructions.
    (iii) Persons whose temporary refuge is terminated will be released 
to the protection of the authorities designated in the message 
authorizing release.
    (iv) While temporary refuge can be granted in the circumstances set 
forth above, permanent asylum will not be granted.
    (v) Foreign nationals who request assistance in forwarding requests 
for political asylum in the United States will not be received on board, 
but will be advised to apply in person at the nearest American Embassy 
or Consulate. If a foreign national is already on board, however, such 
person will not be surrendered to foreign jurisdiction or control unless 
at the personal direction of the Secretary of the Navy.
    (3) The Chief of Naval Operations or Commandant of the Marine Corps, 
as

[[Page 40]]

appropriate, will be informed by the most expeditious means of all 
action taken pursuant to paragraphs (a)(1)(i) and (a)(1)(ii) of this 
section, as well as the attendant circumstances. Telephone or voice 
communications will be used where possible, but must be confirmed as 
soon as possible with an immediate precedence message, information to 
the Secretary of State (for actions taken pursuant to paragraphs 
(a)(2)(i) and (a)(2)(v) of this section, also make the appropriate 
American Embassy or Consular Office an information addressee). If 
communication by telephone or voice is not possible, notification will 
be effected by an immediate precedence message, as described above. The 
Chief of Naval Operations or Commandant of the Marine Corps will cause 
the Secretary of the Navy and the Deputy Director for Operations of the 
National Military Command Center to be notified without delay.
    (b) Personnel of the Department of the Navy shall neither directly 
nor indirectly invite persons to seek asylum or temporary refuge.



              Subpart J--Precedence, Authority and Command

                                Authority



Sec. 700.1020  Exercise of authority.

    (a) All persons in the naval service on active service, and those on 
the retired list with pay, and transferred members of the Fleet Reserve 
and the Fleet Marine Corps Reserve, are at all times subject to naval 
authority. While on active service they may, if not on leave of absence 
except as noted below, on the sick list, taken into custody, under 
arrest, suspended from duty, in confinement or otherwise incapable of 
discharging their duties, exercise authority over all persons who are 
subordinated to them.
    (b) A person in the naval service, although on leave, may exercise 
authority:
    (1) When in a naval ship or aircraft and placed on duty by the 
commanding officer or aircraft commander.
    (2) When in a ship or aircraft of the armed services of the United 
States, other than a naval ship or aircraft, as the commanding officer 
of naval personnel embarked, or when placed on duty by such officer.
    (3) When senior officer at the scene of a riot or other emergency, 
or when placed on duty by such officer.



Sec. 700.1026  Authority of an officer who succeeds to command.

    (a) An officer who succeeds to command due to incapacity, death, 
departure on leave, detachment without relief or absence due to orders 
from competent authority of the officer detailed to command, has the 
same authority and responsibility as the officer whom he or she 
succeeds.
    (b) An officer who succeeds to command during the temporary absence 
of the commanding officer shall make no changes in the existing 
organization, and shall endeavor to have the routine and other affairs 
of the command carried on in the usual manner.
    (c) When an officer temporarily succeeding to command signs official 
correspondence, the word ``Acting'' shall appear below his or her 
signature.



Sec. 700.1038  Authority of a sentry.

    A sentry, within the limits stated in his or her orders, has 
authority over all persons on his or her post.

                             Detail to Duty



Sec. 700.1052  Orders to active service.

    (a) No person who is on leave of absence or not on active service 
shall be ordered into active service or on duty without permission of 
the Commandant of the Marine Corps, or the Chief of Naval Personnel, as 
appropriate, except:
    (1) In the case of a person on leave of absence, by the officer who 
granted the leave or a superior, or
    (2) By the senior officer present on a foreign station.
    (b) In the event that the senior officer present of a foreign 
station issues any orders as contemplated by this article, he or she 
shall report the facts, including the reasons for issuing such orders, 
to the Commandant of the Marine Corps or the Chief of Naval Personnel, 
without delay.
    (c) Retired officers of the Navy and Marine Corps may be ordered to 
active

[[Page 41]]

service, with their consent, in time of peace. In time of war or a 
national emergency, such retired officers may, at the discretion of the 
Secretary of the Navy, be ordered to active service.



Sec. 700.1053  Commander of a task force.

    (a) A commander in chief, and any other naval commander, may detail 
in command of a task force, or other task command, any eligible officer 
within his or her command whom he or she desires. All other officers 
ordered to the task force or the task command shall be considered 
subordinate to the designated commander.
    (b) All orders issued under the authority of this article shall 
continue in effect after the death or disability of the officer issuing 
them until they are revoked by his or her successor in command or higher 
authority.
    (c) The powers delegated to a commander by this article are not 
conferred on any other officer by virtue of the fact that he or she is 
the senior officer present.



Sec. 700.1054  Command of a naval base.

    The officer detailed to command a naval base shall be an officer of 
the line in the Navy, eligible for command at sea.



Sec. 700.1055  Command of a naval shipyard.

    The officer detailed to command a naval shipyard shall be trained in 
the technical aspects of building and repair of ships and shall have had 
substantial previous experience in the technical and management phases 
of such work. Such officer may have been designated for engineering 
duty.



Sec. 700.1056  Command of a ship.

    (a) The officer detailed to command a commissioned ship shall be an 
officer of the line in the Navy eligible for command at sea.
    (b) The officer detailed to command an aircraft carrier, an aircraft 
tender, or a ship with a primary task of operating or supporting 
aircraft shall be an officer of the line in the navy, eligible for 
command at sea, designated as a naval aviator or naval flight officer.



Sec. 700.1057  Command of an air activity.

    (a) The officer detailed to command a naval aviation school, a naval 
air station, or a naval air unit organized for flight tactical purposes 
shall be an officer of the line in the navy, designated as a naval 
aviator or naval flight officer, eligible for command at sea.
    (b) For the purposes of Title 10 U.S.C. Sec. 5942, a naval air 
training squadron is not considered to be a naval aviation school or a 
naval air unit organized for flight tactical purposes. The officer 
detailed to command a naval air training squadron or an air unit 
organized for administrative purposes shall be a line officer of the 
naval service, designated as a naval aviator or naval flight officer, 
eligible for command. If a naval air training squadron has been 
designated a multi-service training squadron, the officer detailed to 
command that squadron may be a line officer from any armed service 
designated as the equivalent of a naval aviator naval flight officer and 
otherwise eligible to command an aviation squadron or unit under that 
officer's pertinent service regulations.
    (c) The officer detailed to command a naval air activity of a 
technical nature on shore may be an officer of the line in the navy not 
eligible for command at sea, but designated as a naval aviator or a 
naval flight officer or designated for aeronautical engineering duty.
    (d) The officer detailed to command a Marine Corps air unit 
organized for flight tactical purpose shall be an officer of the Marine 
Corps, designated as a naval aviator or naval flight officer.
    (e) Other than an air training squadron, an officer of the Navy 
shall not normally be detailed to command an aviation unit of the Marine 
Corps nor shall an officer of the Marine Corps normally be detailed to 
command an aviation unit of the Navy. Aircraft units of the Marine Corps 
may, however, be assigned to ships or to naval air activities in the 
same manner as aircraft units of the navy and, conversely, aircraft 
units of the navy may be so assigned to Marine Corps air activities. A 
group composed of aircraft units of the Navy and aircraft units of the 
Marine Corps may be commanded

[[Page 42]]

either by an officer of the Navy or an officer of the Marine Corps.



Sec. 700.1058  Command of a submarine.

    The officer detailed to command a submarine shall be an officer of 
the line in the Navy, eligible for command at sea and qualified for 
command of submarines.



Sec. 700.1059  Command of a staff corps activity.

    Officers in a staff corps shall be detailed to command only such 
activities as are appropriate to their corps.



                     Subpart K--General Regulations

                          Standards of Conduct



Sec. 700.1101  Demand for court-martial.

    Except as otherwise provided in the Uniform Code of Military 
Justice, no person in the naval service may demand a court martial 
either on him or herself or on any other person in the naval service.



Sec. 700.1113  Endorsement of commercial product or process.

    Except as necessary during contract administration to determine 
specification or other compliance, no person in the Department of the 
Navy, in his or her official capacity, shall endorse or express an 
opinion of approval or disapproval of any commercial product or process.



Sec. 700.1120  Personal privacy and rights of individuals regarding their personal records.

    (a) Except as specifically provided in this section, maintenance of 
personal records of individuals, and the release of those records, shall 
be in accordance with the provisions of the Privacy Act and directives 
issued by the Secretary of the Navy.
    (b) Except as specifically provided in this section, the release of 
departmental records to private parties shall be in accordance with the 
provisions of the Freedom of Information Act and directives issued by 
the Secretary of the Navy.

                            Official Records



Sec. 700.1121  Disclosure, publication and security of official information.

    (a) No person in the Department of the Navy shall convey or disclose 
by oral or written communications, publication, graphic (including 
photographic) or other means, any classified information except as 
provided in directives governing the release of such information. 
Additionally, no person in the Department of the Navy shall communicate 
or otherwise deal with foreign entities, even on an unclassified basis, 
when this would commit the Department of the Navy to disclose classified 
military information except as may be required in that person's official 
duties and only after coordination with and approval by a release 
authority designated by competent authority.
    (b) No person in the Department of the Navy shall convey or disclose 
by oral or written communication, publication or other means except as 
may be required by his or her official duties, any information 
concerning the Department of Defense or forces, or any person, thing, 
plan or measure pertaining thereto, where such information might be of 
possible assistance to a foreign power; nor shall any person in the 
Department of the Navy make any public speech or permit publication of 
an article written by or for that person which is prejudicial to the 
interests of the United States. The regulations concerned with the 
release of information to the public through any media will be as 
prescribed by the Secretary of the Navy.
    (c) No person in the Department of the Navy shall disclose any 
information whatever, whether classified or unclassified, or whether 
obtained from official records or within the knowledge of the relator, 
which might aid or be of assistance in the prosecution or support of any 
claim against the United States. The prohibitions prescribed by the 
first sentence of this paragraph are not applicable to an officer or 
employee of the United States who is acting in the proper course of, and 
within the scope of, his or her official duties, provided that the 
disclosure of such information is otherwise authorized by stature, 
Executive Order

[[Page 43]]

of the President or departmental regulation.
    (d) Any person in the Department of the Navy receiving a request 
from the public for Department of the Navy records shall be governed by 
the provisions of the Freedom of Information Act and implementing 
directives issued by the Secretary of the Navy.
    (e) Persons in the Department of the Navy desiring to submit 
manuscripts to commercial publishers on professional, political or 
international subjects shall comply with regulations promulgated by the 
Secretary of the Navy.
    (f) No persons in the naval service on active duty or civilian 
employee of the Department of the Navy shall act as correspondent of a 
news service or periodical, or as a television or radio news commentator 
or analyst, unless assigned to such duty in connection with the public 
affairs activities of the Department of the Navy, or authorized by the 
Secretary of the Navy. Except as authorized by the Secretary of the 
Navy, no person assigned to duty in connection with public affairs 
activities of the Department of the Navy shall receive any compensation 
for acting as such correspondent, commentator or analyst.



Sec. 700.1126  Correction of naval records.

    (a) Any military record in the Department of the Navy may be 
corrected by the Secretary of the Navy, acting through the Board for 
Correction of Naval Records, when the Secretary considers that such 
action should be taken in order to correct an error or to remove an 
injustice.
    (b) Applications for corrections under this article may be made only 
after exhaustion of all other administrative remedies afforded by law or 
regulation.
    (c) Applications for such corrections should be submitted to the 
Secretary of the Navy (Board for Correction of Naval Records) in 
accordance with procedural regulations established by the Secretary of 
the Navy and approved by the Secretary of Defense.



Sec. 700.1127  Control of official records.

    (a) No person, without proper authority, shall withdraw official 
records or correspondence from the files, or destroy them, or withhold 
them from those persons authorized to have access to them.
    (b) Except as specifically provided in this section, maintenance of 
personal records of individuals, and the release of those records, shall 
be in accordance with the provisions of the Privacy Act and directives 
issued by the Secretary of the Navy.
    (c) Except as specifically provided in this section, the release of 
departmental records to private parties shall be in accordance with the 
provisions of the Freedom of Information Act and directives issued by 
the Secretary of the Navy.



Sec. 700.1128  Official records in civil courts.

    (a) Department of the Navy personnel shall not provide official 
information, testimony, or documents, submit to interview, or permit a 
view or visit, for litigation purposes, without special written 
authorization.
    (b) Department of the Navy personnel shall not provide, with or 
without compensation, opinion or expert testimony concerning official 
Department of Defense information, subjects, personnel or activities, 
except on behalf of the United States or a party represented by the 
Department of Justice, or with special written authorization.

                          Duties of Individuals



Sec. 700.1138  Responsibilities concerning marijuana, narcotics, and other controlled substances.

    (a) All personnel shall endeavor to prevent and eliminate the 
unauthorized use of marijuana, narcotics and other controlled substances 
within the naval service.
    (b) The wrongful possession, use, introduction, manufacture, 
distribution and possession, or introduction with intent to distribute, 
of a controlled substance by persons in the naval service are offenses 
under Article 112a, Uniform Code of Military Justice. Except for 
authorized medicinal or other authorized purposes, the possession, use, 
introduction, sale, or other transfer of marijuana, narcotics or other 
controlled substances on board any ship or aircraft of the Department of 
the Navy or within any naval base, station or

[[Page 44]]

other place under the jurisdiction of the Department of the Navy by all 
persons is prohibited.
    (c) The term ``controlled substance'' means: a drug or other 
substance included in Schedule I, II, III, IV, or V established by 
section 202 of the Comprehensive Drug Abuse Prevention and Control Act 
of 1970 (84 Stat. 1236), as updated and republished under the provisions 
of that Act (21 U.S.C. 812).



Sec. 700.1139  Rules for preventing collisions, afloat and in the air.

    (a) All persons in the naval service responsible for the operation 
of naval ships, craft and aircraft shall diligently observe the 
International Rules for Preventing Collisions at Sea (commonly called 
the COLREGS) (33 CFR chapter I), Inland Navigation Rules (33 CFR chapter 
I), domestic and international air traffic regulations (14 CFR chapter 
I), and such other rules and regulations as may be established by the 
Secretary of Transportation or other competent authority for regulating 
traffic and preventing collisions on the high seas, in inland waters or 
in the air, where such laws, rules and regulations are applicable to 
naval ships and aircraft. In those situations where such law, rule or 
regulation is not applicable to naval ships, craft or aircraft, they 
shall be operated with due regard for the safety of others.
    (b) Any significant infraction of the laws, rules and regulations 
governing traffic or designed to prevent collisions on the high seas, in 
inland waters, or in the air which may be observed by persons in the 
naval service shall be promptly reported to their superiors, including 
the Chief of Naval Operations or Commandant of the Marine Corps when 
appropriate.
    (c) Reports need not be made under this article if the facts are 
otherwise reported in accordance with other directives, including duly 
authorized safety programs.

                         Rights and Restrictions



Sec. 700.1162  Alcoholic beverages.

    (a) Except as may be authorized by the Secretary of the Navy, the 
introduction, possession or use of alcoholic beverages on board any 
ship, craft, aircraft, or in any vehicle of the Department of the Navy 
is prohibited. The transportation of alcoholic beverages for personal 
use ashore is authorized, subject to the discretion of the officer in 
command or officer in charge, or higher authority, when the beverages 
are delivered to the custody of the officer in command or officer in 
charge of the ship, craft, or aircraft in sealed packages, securely 
packed, properly marked and in compliance with customs laws and 
regulations, and stored in securely locked compartments, and the 
transportation can be performed without undue interference with the work 
or duties of the ship, craft, or aircraft. Whenever an alcoholic 
beverage is brought on board any ship, craft, or aircraft for 
transportation for personal use ashore, the person who brings it on 
board shall at that time file with the officer in command or officer in 
charge of the ship, craft or aircraft, a statement of the quantity and 
kind of alcoholic beverage brought on board, together with a 
certification that its importation will be in compliance with customs 
and internal revenue laws and regulations and applicable State or local 
laws at the place of debarkation.
    (b) The introduction, possession and use of alcoholic beverages for 
personal consumption or sale is authorized within naval activities and 
other places ashore under naval jurisdiction to the extent and in such 
manner as the Secretary of the Navy may prescribe.



Sec. 700.1165  Fraternization prohibited.

    (a) Personal relationships between officer and enlisted members 
which are unduly familiar and which do not respect differences in rank 
are inappropriate and violate long-standing traditions of the naval 
service.
    (b) When prejudicial to good order and discipline or of a nature to 
bring discredit on the naval service, personal relationships are 
prohibited:
    (1) Between an officer and an enlisted member which are unduly 
familiar and do not respect differences in rank and grade;
    (2) Between officer members which are unduly familiar and do not 
respect differences in rank and grade where a direct senior-subordinate 
supervisory relationship exists; and

[[Page 45]]

    (3) Between enlisted members which are unduly familiar and do not 
respect differences in rank and grade where a direct senior-subordinate 
supervisory relationship exists.
    (c) Violation of this article may result in administrative or 
punitive action. This article applies in its entirety to all regular and 
reserve personnel.



Sec. 700.1166  Sexual harassment.

    (a) Sexual harassment will not be condoned or tolerated in the 
Department of the Navy. It is a form of arbitrary discrimination which 
is unprofessional, unmilitary, and which adversely affects morale and 
discipline and ultimately the mission effectiveness of the command 
involved.
    (b) Personnel who use implicit or explicit sexual behavior to 
control, influence or affect the career, promotion opportunities, duty 
assignments or pay of any other person are engaging in sexual 
harassment. Naval personnel who make deliberate or repeated offensive 
verbal comments, gestures or physical contact of a sexual nature in the 
work environment are also engaging in sexual harassment.



Sec. 700.1167  Supremacist activity.

    No person in the naval service shall participate in any organization 
that espouses supremacist causes; attempts to create illegal 
discrimination based on race, creed, color, sex, religion, or national 
origin; advocates the use of force or violence against the Government of 
the United States or the Government of any state, territory, district, 
or possession thereof, or the Government of any subdivision therein; or 
otherwise engages in efforts to deprive individuals of their civil 
rights. The term ``participate'', as used in this article, includes acts 
or conduct, performed alone or in concert with another, such as 
demonstrating, rallying, fundraising, recruiting, training, or 
organizing or leading such organizations. The term ``participate'' also 
includes engaging in any other activities in relation to such 
organizations or in furtherance of the objectives of such organizations 
when such activities are detrimental to good order, discipline, or 
mission accomplishment.



PART 701--AVAILABILITY OF DEPARTMENT OF THE NAVY RECORDS AND PUBLICATION OF DEPARTMENT OF THE NAVY DOCUMENTS AFFECTING THE PUBLIC--Table of Contents




  Subpart A--Department of the Navy Freedom of Information Act (FOIA) 
                                 Program

Sec.
701.1 Purpose.
701.2 Navy FOIA website/FOIA handbook.
701.3 Applicability.
701.4 Responsibility and authority.
701.5 Policy.
701.6 Reading rooms.
701.7 Relationship between the FOIA and PA.
701.8 Processing FOIA requests.
701.9 Referrals.
701.10 Processing requests received from governmental officials.
701.11 Processing specific kinds of records.
701.12 FOIA appeals/litigation.

                  Subpart B--FOIA Definitions and Terms

701.13 5 U.S.C. 552(a)(1) materials.
701.14 5 U.S.C. 552(a)(2) materials.
701.15 5 U.S.C. 552(a)(3) materials.
701.16 Administrative appeal.
701.17 Affirmative information disclosure.
701.18 Agency record.
701.19 Appellate authority.
701.20 Discretionary disclosure.
701.21 Electronic record.
701.22 Exclusions.
701.23 Executive Order 12958.
701.24 Federal agency.
701.25 5 U.S.C. 552, Freedom of Information Act (FOIA).
701.26 FOIA exemptions.
701.27 FOIA fee terms location.
701.28 FOIA request.
701.29 Glomar response.
701.30 Initial Denial Authority (IDA).
701.31 Mosaic or compilation response.
701.32 Perfected request.
701.33 Public domain.
701.34 Public interest.
701.35 Reading room.
701.36 Release authorities.
701.37 Reverse FOIA.
701.38 Technical data.
701.39 Vaughn index.

                          Subpart C--FOIA Fees

701.40 Background.
701.41 FOIA fee terms.
701.42 Categories of requesters--applicable fees.
701.43 Fee declarations.
701.44 Restrictions.
701.45 Fee assessment.

[[Page 46]]

701.46 Aggregating requests.
701.47 FOIA fees must be addressed in response letters.
701.48 Fee waivers.
701.49 Payment of fees.
701.50 Effect of the Debt Collection Act of 1982.
701.51 Refunds.
701.52 Computation of fees.
701.53 FOIA fee schedule.
701.54 Collection of fees and fee rates for technical data.
701.55 Processing FOIA fee remittances.

                       Subpart D--FOIA Exemptions

701.56 Background.
701.57 Ground rules.
701.58 In-depth analysis of FOIA exemptions.
701.59 A brief explanation of the meaning and scope of the nine FOIA 
          exemptions.

Subpart E--Indexing, Public Inspection, and Federal Register Publication 
 of Department of the Navy Directives and Other Documents Affecting the 
                                 Public

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.

          Subpart F--Department of the Navy Privacy Act Program

701.100 Purpose.
701.101 Applicability.
701.102 Definitions.
701.103 Policy.
701.104 Responsibility and authority.
701.105 Systems of records.
701.106 Safeguarding records in systems of records.
701.107 Criteria for creating, altering, amending and deleting Privacy 
          Act systems of records.
701.108 Collecting information about individuals.
701.109 Access to records.
701.110 Amendment of records.
701.111 Privacy Act appeals.
701.112 Disclosure of records.
701.113 Exemptions.
701.114 Enforcement actions.
701.115 Computer matching program.

                    Subpart G--Privacy Act Exemptions

701.116 Purpose.
701.117 Exemption for classified records.
701.118 Exemptions for specific Navy record systems.
701.119 Exemptions for specific Marine Corps record systems.

    Authority: 5 U.S.C. 552.

    Source: 64 FR 49850, Sept. 14, 1999, unless otherwise noted.



  Subpart A--Department of the Navy Freedom of Information Act (FOIA) 
                                 Program



Sec. 701.1  Purpose.

    Subparts A, B, C, and D of this part issue policies and procedures 
for implementing the Freedom of Information Act (5 U.S.C. 552), and 
Department of Defense Directives 5400.7 and 5400.7-R series \1\, 
Department of Defense Freedom of Information Act Program, (See 32 CFR 
part 286) and promote uniformity in the Department of the Navy Freedom 
of Information Act (FOIA) Program.
---------------------------------------------------------------------------

    \1\ Copies may be obtained if needed from the Navy FOIA Website at 
http://www.ogc.secnav.hq.navy.mil/foia/index.html
---------------------------------------------------------------------------



Sec. 701.2  Navy FOIA website/FOIA handbook.

    (a) The Navy FOIA website (http://www.ogc.secnav.hq.navy. mil/foia/
index.html) is an excellent resource for requesters and FOIA 
coordinators. It provides connectivity to the Navy's official website, 
to other FOIA and non/FOIA websites, and to the Navy's electronic 
reading rooms.
    (b) FOIA requesters are encouraged to visit the Navy FOIA website 
prior to filing a request. It features a FOIA Handbook which provides: 
guidance on how and where to submit requests; what's releasable/what's 
not; addresses for frequently requested information; time limits and 
addresses for filing appeals, etc. FOIA requesters may also use the 
electronic FOIA request form on the website to seek access to records 
originated by the Secretary of the Navy (SECNAV) or the Chief of Naval 
Operations (CNO).

[[Page 47]]



Sec. 701.3  Applicability.

    (a) Subparts A, B, C, and D of this part apply throughout the 
Department of the Navy (DON) and take precedence over other DON 
instructions, which may serve to supplement it [i.e., Public Affairs 
Regulations, Security Classification Regulations, Navy Regulations, 
Marine Corps Orders, etc.]. Further, issuance of supplementary 
instructions by DON activities, deemed essential to the accommodation of 
perceived requirements peculiar to those activities, may not conflict.
    (b) The FOIA applies to ``records'' maintained by ``agencies'' 
within the Executive Branch of the Federal government, including the 
Executive Office of the President and independent regulatory agencies. 
It states that ``any person'' (U.S. citizen; foreigner, whether living 
inside or outside the United States; partnerships; corporations; 
associations; and foreign and domestic governments) has the right 
enforceable by law, to access Federal agency records, except to the 
extent that such records (or portions thereof) are protected from 
disclosure by one or more of the nine FOIA exemptions or one of three 
special law enforcement exclusions.
    (c) Neither Federal agencies nor fugitives from justice may use the 
FOIA to access agency records.
    (d) The Department of Defense (DoD) FOIA directive states that the 
FOIA programs of the U.S. Atlantic Command and the U.S. Pacific Command 
fall under the jurisdiction of the Department of Defense and not the 
Department of the Navy. This policy represents an exception to the 
policies directed under DoD Directive 5100.3, ``Support of the 
Headquarters of Unified, Specified, and Subordinate Commands.''



Sec. 701.4  Responsibility and authority.

    (a) The Head, DON PA/FOIA Policy Branch [CNO (N09B30)] has been 
delegated the responsibility for managing the DON's FOIA program, which 
includes setting FOIA policy and administering, supervising, and 
overseeing the execution of the 5 U.S.C. 552 and Department of Defense 
Directives 5400.7 and 5400.7-R series, Department of Defense Freedom of 
Information Act Program (see 32 CFR part 286).
    (1) As principal DON FOIA policy official, CNO (N09B30) issues 
SECNAV Instruction 5720.42; oversees the administration of the DON FOIA 
program; issues and disseminates FOIA policy; oversees the Navy FOIA 
website; represents the DON at all meetings, symposiums, and conferences 
that address FOIA matters; writes the Navy's FOIA Handbook; serves on 
FOIA boards and committees; serves as principal policy advisor and 
oversight official on all FOIA matters; prepares the DON Annual FOIA 
Report for submission to the Attorney General; reviews all FOIA appeals 
to determine trends that impact on the DON; reviews all FOIA litigation 
matters involving the DON and apprises the Director, Freedom of 
Information and Security Review, DoD of same; responds to depositions 
and litigation regarding DON FOIA policy Secretary of the Navy 
Instruction 5820.8A, Release of Information for Litigation Purposes and 
Testimony by DON Personnel; reviews/analyzes all proposed FOIA 
legislation to determine its impact on the DON; develops a Navy-wide 
FOIA training program and serves as training oversight manager; conducts 
staff assistance visits/reviews within the DON to ensure compliance with 
5 U.S.C. 552 and this part; reviews all SECNAV and Operations Navy 
instructions/forms that address FOIA; and oversees the processing of 
FOIA requests received by SECNAV and Chief of Naval Operations (CNO), to 
ensure responses are complete, timely, and accurate. Additionally, 
N09B30 works closely with other DoD and DON officials to ensure they are 
aware of highly visible and/or sensitive FOIA requests being processed 
by the DON.
    (2) SECNAV has delegated Initial Denial Authority (IDA) to N09B30 
for requests at the Secretariat and OPNAV level.
    (b) The Commandant of the Marine Corps is delegated responsibility 
for administering and supervising the execution of this instruction 
within the Marine Corps. To accomplish this task, the Director of 
Administrative Resource Management (Code ARAD) serves as the FOIA 
Coordinator for Headquarters, U.S. Marine Corps, and

[[Page 48]]

assists CNO (N09B30) in promoting the Department of the Navy FOIA 
Program by issuing a Marine Corps FOIA Handbook; utilizing the Marine 
Corps FOIA website to disseminate FOIA information; consolidating its 
activities Annual FOIA Reports and submitting it to CNO (N09B30); 
maintaining a current list of Marine Corps FOIA coordinators, etc.
    (c) The DON Chief Information Officer (DONCIO) is responsible for 
preparing and making publicly available upon request an index of all DON 
major information systems and a description of major information and 
record locator systems maintained by the Department of the Navy as 
required by 5 U.S.C. 552 and DoD 5400.7-R, ``DoD Freedom of Information 
Act Program.''
    (d) FOIA coordinators will:
    (1) Implement and administer a local FOIA program under this 
instruction; serve as principal point of contact on FOIA matters; issue 
a command/activity instruction that implements SECNAVINST 5740.42F by 
reference and highlights only those areas unique to the command/activity 
(i.e., designate the command/activity's FOIA Coordinator and IDA; 
address internal FOIA processing procedures; and address command/
activity level FOIA reporting requirements); receive and track FOIA 
requests to ensure responses are made in compliance with 5 U.S.C. 552 
and DoD Directives 5400.7 and 5400.7-R and this part; provide general 
awareness training to command/activity personnel on the provisions of 5 
U.S.C. 552 and this instruction; collect and compile FOIA statistics and 
submit a consolidated Annual FOIA Report to Echelon 2 FOIA coordinator 
for consolidation; provide guidance on how to process FOIA requests; and 
provide guidance on the scope of FOIA exemptions.
    (2) Additionally, CMC (ARAD) and Echelon 2 FOIA coordinators will:
    (i) Ensure that reading room materials are placed in the activity's 
electronic reading room and that the activity's website is linked to the 
Navy FOIA website and the activity's reading room is linked to the 
Navy's FOIA reading room lobby. Documents placed in the reading room 
shall also be indexed as a Government Information Locator Service (GILS) 
record, as this will serve as an index of available records.
    (ii) Review proposed legislation and policy recommendations that 
impact the FOIA and provide comments to CNO (N09B30).
    (iii) Review SECNAVINST 5720.42F and provide recommended changes/
comments to CNO (N09B30).
    (iv) Routinely conduct random staff assistance visits/reviews/self-
evaluations within the command and lower echelon commands to ensure 
compliance with FOIA.
    (v) Collect and compile command and feeder reports for the Annual 
FOIA Report and provide a consolidated report to CNO (N09B30).
    (vi) Maintain a listing of their subordinate activities' FOIA 
coordinators to include full name, address, and telephone (office and 
fax) and place on their website.

    Note to paragraph (d)(2)(vi): Do not place names of FOIA 
coordinators who are overseas, routinely deployable or in sensitive 
units on the website. Instead just list ``FOIA Coordinator'')

    (vii) Notify CNO (N09B30) of any change of name, address, office 
code and zip code, telephone and facsimile number, and/or e-mail address 
of Echelon 2 FOIA Coordinators.
    (viii) Conduct overview training to ensure all personnel are 
knowledgeable of the FOIA and its requirements. See Sec. 701.12.
    (ix) Work closely with the activity webmaster to ensure that 
information placed on the activity's website does not violate references 
in paragraphs (a), (c) and (f).
    (e) Initial Denial Authorities (IDAs). The following officials are 
delegated to serve as Initial Denial Authorities, on behalf of SECNAV 
(see Sec. 701.30 for definition):
    (1) Under Secretary of the Navy; Deputy Under Secretary of the Navy; 
Assistant Secretaries of the Navy (ASNs) and their principal deputy 
assistants; Assistant for Administration (SECNAV); Director, 
Administrative Division (SECNAV); Special Assistant for Legal and 
Legislative Affairs (SECNAV); Director, Office of Program Appraisal 
(SECNAV); DONCIO; Director, Small and Disadvantaged Business

[[Page 49]]

Utilization (SECNAV); Chief of Information (CHINFO); Director, Navy 
International Programs Office; Chief of Legislative Affairs; CNO; Vice 
CNO; Director, Naval Nuclear Propulsion Program (NOON); Director, Navy 
Staff (N09B); Head, DON PA/FOIA Policy Branch (N09B30); Director of 
Naval Intelligence (N2); Director of Space, Information Warfare, Command 
and Control (N6); Director of Navy Test & Evaluation & Technology 
Requirements (N091); Surgeon General of the Navy (N093); Director of 
Naval Reserve (N095); Oceanographer of the Navy (N096); Director of 
Religious Ministries/Chief of Chaplains of the Navy (N097); all Deputy 
Chiefs of Naval Operations; Chief of Naval Personnel; Director, 
Strategic Systems Programs; Chief, Bureau of Medicine and Surgery; 
Director, Office of Naval Intelligence; Naval Inspector General; Auditor 
General of the Navy; Commanders of the Naval Systems Commands; Chief of 
Naval Education and Training; Commander, Naval Reserve Force; Chief of 
Naval Research; Director, Naval Criminal Investigative Service; Deputy 
Commander, Naval Legal Service Command; Commander, Navy Personnel 
Command; Director, Naval Center of Cost Analysis; Commander, Naval 
Meteorology and Oceanography Command; Director, Naval Historical Center; 
heads of DON staff offices, boards, and councils; Program Executive 
Officers; and all general officers.
    (2) Within the Marine Corps: CMC and his Assistant, Chief of Staff, 
Deputy Chiefs of Staff; Director, Personnel Management Division; Fiscal 
Director of the Marine Corps; Counsel for the Commandant; Director of 
Intelligence; Director, Command, Communications and Computer Systems 
Division; Legislative Assistant to the Commandant; Director, Judge 
Advocate Division; Inspector General of the Marine Corps; Director, 
Manpower, Plans, and Policy Division; Head, Freedom of Information and 
Privacy Acts Section, HQMC; Director of Public Affairs; Director of 
Marine Corps History and Museums; Director, Personnel Procurement 
Division; Director, Morale Support Division; Director, Human Resources 
Division; Director of Headquarters Support; commanding generals; 
directors, Marine Corps districts; commanding officers, not in the 
administrative chain of command of a commanding general or district 
director. For each official listed above, the deputy or principal 
assistant is also authorized denial authority.
    (3) JAG and his Deputy and the DON General Counsel (DONGC) and his 
deputies are excluded from this grant of authorization, since SECNAV has 
delegated them to serve as his appellate authorities. However, they are 
authorized to designate IDA responsibilities to other senior officers/ 
officials within JAG and DONGC. DONGC has delegated IDA responsibilities 
to the Assistant General Counsels and the Associate General Counsel 
(Litigation).
    (4) For the shore establishment and operating forces: All officers 
authorized by Article 22, Uniform Code of Military Justice (UCMJ) or 
designated in section 0120, Manual of the Judge Advocate General 
(JAGINST 5800.7C) to convene general courts-martial.
    (5) IDAs must balance their decision to centralize denials for the 
purpose of promoting uniform decisions against decentralizing denials to 
respond to requests within the FOIA time limits. Accordingly, the IDAs 
listed in paragraphs (e)(1) through (4) are authorized to delegate 
initial denial authority to subordinate activities for the purpose of 
streamlining FOIA processing. They may also delegate authority to a 
specific staff member, assistant, or individuals acting during their 
absence if this serves the purpose of streamlining and/or complying with 
the time limits of FOIA.

    Note to paragraph (e)(5): Such delegations shall be limited to 
comply with DoD Directive 5400.7, ``DoD Freedom of Information Act 
Program''.)

    (6) Delegations of IDA authority should be reflected in the 
activity's supplementing FOIA instruction or by letter, with a copy to 
CNO (N09B30) or CMC (ARAD), as appropriate.
    (f) Release authorities. Release authorities are authorized to grant 
requests on behalf of the Office of the Secretary of the Navy for agency 
records under their possession and control for which no FOIA exemption 
applies; to respond to requesters concerning refinement of their 
requests; to

[[Page 50]]

provide fee estimates; and to offer appeal rights for adequacy of search 
or fee estimates to the requester.
    (g) Appellate authorities are addressed in Sec. 701.12.



Sec. 701.5  Policy.

    (a) Compliance with the FOIA. DON policy is to comply with the FOIA 
as set forth in the Department of Defense's FOIA Directives 5400.7 and 
5400.7-R, and this instruction in this part in both letter and spirit; 
conduct its activities in an open manner consistent with the need for 
security and adherence to other requirements of law and regulation; and 
provide the public with the maximum amount of accurate and timely 
information concerning its activities.
    (b) Prompt action. DON activities shall act promptly on requests 
when a member of the public complies with the procedures established in 
the instruction in this part (i.e., files a ``perfected request'') and 
the request is received by the official designated to respond. See 
Sec. 701.11 for minimum requirements of the FOIA.
    (c) Provide assistance. DON activities shall assist requesters in 
understanding and complying with the procedures established by the 
instruction in this part, ensuring that procedural matters do not 
unnecessarily impede a requester from obtaining DON records promptly.
    (d) Grant access. (1) DON activities shall grant access to agency 
records when a member of the public complies with the provisions of the 
instruction in this part and there is no FOIA exemption available to 
withhold the requested information (see subpart D of this part).
    (2) In those instances where the requester has not cited FOIA, but 
the records are determined to be releasable in their entirety, the 
request shall be honored without requiring the requester to invoke FOIA.
    (e) Create a record. (1) A record must exist and be in the 
possession and control of the DON at the time of the request to be 
considered subject to the instruction in this part and the FOIA. 
Accordingly, DON activities need not process requests for records which 
are not in existence at the time the request is received. In other 
words, requesters may not have a ``standing FOIA request'' for release 
of future records.
    (2) There is no obligation to create, compile, or obtain a record to 
satisfy a FOIA request. However, this is not to be confused with 
honoring form or format requests (see Sec. 701.8). A DON activity, 
however, may compile a new record when so doing would result in a more 
useful response to the requester, or be less burdensome to the agency 
than providing existing records, and the requester does not object. Cost 
of creating or compiling such a record may not be charged to the 
requester unless the fee for creating the record is equal to or less 
than the fee which would be charged for providing the existing record. 
Fee assessments shall be in accordance with subpart C of this part.
    (3) With respect to electronic data, the issue of whether records 
are actually created or merely extracted from an existing database is 
not always readily apparent. Consequently, when responding to FOIA 
requests for electronic data where creation of a record, programming, or 
particular format are questionable, DON activities should apply a 
standard of reasonableness. In other words, if the capability exists to 
respond to the request, and the effort would be a business as usual 
approach, then the request should be processed. However, the request 
need not be processed when the capability to respond does not exist 
without a significant expenditure of resources, thus not being a normal 
business as usual approach. As used in this sense, a significant 
interference with the operation of the DON activity's automated 
information system would not be a business as usual approach.
    (f) Disclosures--(1) Discretionary Disclosures. DON activities shall 
make discretionary disclosures whenever disclosure would not foreseeably 
harm an interest protected by a FOIA exemption. A discretionary 
disclosure is normally not appropriate for records clearly exempt under 
exemptions (b)(1), (b)(3), (b)(4), (b)(6), (b)(7)(C) and (b)(7)(F). 
Exemptions (b)(2), (b)(5), and (b)(7)(A),

[[Page 51]]

(b)(7)(B), (b)(7)(D) and (b)(7)(E) are discretionary in nature and DON 
activities are encouraged to exercise discretion whenever possible. 
Exemptions (b)(4), (b)(6), and (b)(7)(C) cannot be claimed when the 
requester is the ``submitter'' of the information. While discretionary 
disclosures to FOIA requesters constitute a waiver of the FOIA exemption 
that may otherwise apply, this policy does not create any legally 
enforceable right.
    (2) Public domain. Non-exempt records released under FOIA to a 
member of the public are considered to be in the public domain. 
Accordingly, such records may also be made available in reading rooms, 
in paper form, as well as electronically to facilitate public access.
    (3) Limited disclosures. Disclosure of records to a properly 
constituted advisory committee, to Congress, or to other Federal 
agencies does not waive a FOIA exemption.
    (4) Unauthorized disclosures. Exempt records disclosed without 
authorization by the appropriate DON official do not lose their exempt 
status.
    (5) Official versus personal disclosures. While authority may exist 
to disclose records to individuals in their official capacity, the 
provisions of the instruction in this part apply if the same individual 
seeks the records in a private or personal capacity.
    (6) Distributing information. DON activities are encouraged to 
enhance access to information by distributing information on their own 
initiative through the use of electronic information systems, such as 
the Government Information Locator Service (GILS).
    (g) Honor form or format requests. DON activities shall provide the 
record in any form or format requested by the requester, if the record 
is readily reproducible in that form or format. DON activities shall 
make reasonable efforts to maintain their records in forms or formats 
that are reproducible. In responding to requests for records, DON 
activities shall make reasonable efforts to search for records in 
electronic form or format, except when such efforts would significantly 
interfere with the operation of the DON activities' automated 
information system. Such determinations shall be made on a case-by-case 
basis.
    (h) Authenticate documents. Records provided under the instruction 
in this part shall be authenticated with an appropriate seal, whenever 
necessary, to fulfill an official Government or other legal function. 
This service, however, is in addition to that required under the FOIA 
and is not included in the FOIA fee schedule. DON activities may charge 
for the service at a rate of $5.20 for each authentication.



Sec. 701.6  Reading rooms.

    The FOIA requires that (a)(2) records created on or after 1 November 
1996, be made available electronically (starting 1 November 1997) as 
well as in hard copy, in the FOIA reading room for inspection and 
copying, unless such records are published and copies are offered for 
sale. DoD 5400.7-R, ``DoD Freedom of Information Act Program,'' requires 
that each DoD Component provide an appropriate facility or facilities 
where the public may inspect and copy or have copied the records held in 
their reading rooms. To comply, the Navy FOIA website includes links 
that assist members of the public in locating Navy libraries, online 
documents, and Navy electronic reading rooms maintained by SECNAV/CNO, 
CMC, OGC, JAG and Echelon 2 commands. Although each of these activities 
will maintain their own document collections on their own servers, the 
Navy FOIA website provides a common gateway for all Navy online 
resources. To this end, DON activities shall:
    (a) Establish their reading rooms and link them to the Navy FOIA 
Reading Room Lobby which is found on the Navy FOIA website.
    (b) Ensure that responsive documents held by their subordinate 
activities are also placed in the reading room.

    Note to paragraph (b): SECNAV/ASN and OPNAV offices shall ensure 
that responsive documents are provided to CNO (N09B30) for placement in 
the reading room.)

    (c) Ensure that documents placed in a reading room are properly 
excised to preclude the release of personal or contractor-submitted 
information prior to being made available to the public. In every case, 
justification for the deletion must be fully explained in writing,

[[Page 52]]

and the extent of such deletion shall be indicated on the record which 
is made publicly available, unless such indication would harm an 
interest protected by an exemption under which the deletion was made. If 
technically feasible, the extent of the deletion in electronic records 
or any other form of record shall be indicated at the place in the 
record where the deletion was made. However, a DON activity may publish 
in the Federal Register a description of the basis upon which it will 
delete identifying details of particular types of records to avoid 
clearly unwarranted invasions of privacy, or competitive harm to 
business submitters. In appropriate cases, the DON activity may refer to 
this description rather than write a separate justification for each 
deletion. DON activities may remove (a)(2)(D) records from their 
electronic reading room when the appropriate officials determine that 
access is no longer necessary.
    (d) Should a requester submit a FOIA request for FOIA-processed 
(a)(2) records, and insist that the request be processed, DON activities 
shall process the FOIA request. However, DON activities have no 
obligation to process a FOIA request for 5 U.S.C. 552(a)(2)(A), (B), and 
(C) [5 U.S.C. 552] records because these records are required to be made 
public and not FOIA-processed under paragraph (a)(3) of the FOIA.
    (e) DON activities may share reading room facilities if the public 
is not unduly inconvenienced. When appropriate, the cost of copying may 
be imposed on the person requesting the material in accordance with FOIA 
fee guidelines (see subpart C of this part).
    (f) DON activities shall maintain an index of all available 
documents. A general index of FOIA-processed (a)(2) records shall be 
made available to the public, both in hard copy and electronically by 31 
December 1999. To comply with this requirement, DON activities shall 
establish a GILS record for each document it places in a reading room. 
No (a)(2) materials issued or adopted after 4 July 1967, that are not 
indexed and either made available or published may be relied upon, used 
or cited as precedent against any individual unless such individual has 
actual and timely notice of the contents of such materials. Such 
materials issued or adopted before 4 July 1967, need not be indexed, but 
must be made available upon request if not exempted under the 
instruction in this part.
    (g) An index and copies of unclassified Navy instructions, forms, 
and addresses for DON activities (i.e., the Standard Navy Distribution 
List (SNDL) are located on the Navy Electronics Directives System 
(http://neds.nebt.daps.mil/).
    (h) DON material published in the Federal Register, such as material 
required to be published by Section 552(a)(1) of the FOIA, shall be made 
available by JAG in their FOIA reading room and electronically to the 
public.
    (i) Although not required to be made available in response to FOIA 
requests or made available in FOIA Reading Rooms, ``(a)(1)'' materials 
may, when feasible, be made available to the public in FOIA reading 
rooms for inspection and copying, and by electronic means. Examples of 
``(a)(1)'' materials are: descriptions of an agency's central and field 
organization, and to the extent they affect the public, rules of 
procedures, descriptions of forms available, instruction as to the scope 
and contents of papers, reports, or examinations, and any amendment, 
revision, or report of the aforementioned.



Sec. 701.7  Relationship between the FOIA and PA.

    Not all requesters are knowledgeable of the appropriate statutory 
authority to cite when requesting records. In some instances, they may 
cite neither Act, but will imply one or both Acts. For these reasons, 
the following guidelines are provided to ensure requesters receive the 
greatest amount of access rights under both Acts:
    (a) If the record is required to be released under the FOIA, the PA 
does not bar its disclosure. Unlike the FOIA, the PA applies only to 
U.S. citizens and aliens admitted for permanent residence. Subpart F of 
this part implements the DON's Privacy Act Program.
    (b) Requesters who seek records about themselves contained in a PA 
system of records and who cite or imply only the PA, will have their 
requests processed under the provisions of both the PA and the FOIA. If 
the PA

[[Page 53]]

system of records is exempt from the provisions of 5 U.S.C. 552a(d)(1) 
and the records, or any portion thereof are exempt under the FOIA, the 
requester shall be so advised with the appropriate PA and FOIA 
exemption. Appeals shall be processed under both Acts.
    (c) Requesters who seek records about themselves that are not 
contained in a PA system of records and who cite or imply the PA will 
have their requests processed under the provisions of the FOIA, since 
the PA does not apply to these records. Appeals shall be processed under 
the FOIA.
    (d) Requesters who seek records about themselves that are contained 
in a PA system of records and who cite or imply the FOIA or both Acts 
will have their requests processed under the provisions of both the PA 
and the FOIA. If the PA system of records is exempt from the provisions 
of 5 U.S.C. 552a(d)(1), and the records, or any portion thereof are 
exempt under the FOIA, the requester shall be so advised with the 
appropriate PA and FOIA exemption. Appeals shall be processed under both 
Acts.
    (e) Requesters who seek access to agency records that are not part 
of a PA system of records, and who cite or imply the PA and FOIA, will 
have their requests processed under FOIA, since the PA does not apply to 
these records. Appeals shall be processed under the FOIA.
    (f) Requesters who seek access to agency records and who cite or 
imply the FOIA will have their requests and appeals processed under the 
FOIA.
    (g) Requesters shall be advised in final responses which Act(s) was 
(were) used, inclusive of appeal rights.
    (h) The time limits for responding to the request will be determined 
based on the Act cited. For example, if a requester seeks access under 
the FOIA for his or her personal records which are contained in a PA 
system of records, the time limits of the FOIA apply.
    (i) Fees will be charged based on the kind of records being 
requested (i.e., FOIA fees if agency records are requested; PA fees for 
requesters who are seeking access to information contained in a PA 
system of record which is retrieved by their name and/or personal 
identifier).



Sec. 701.8  Processing FOIA requests.

    Upon receipt of a FOIA request, DON activities shall:
    (a) Review the request to ensure it meets the minimum requirements 
of the FOIA to be processed.
    (1) Minimum requirements of a FOIA request. A request must be in 
writing; cite or imply FOIA; reasonably describe the records being 
sought so that a knowledgeable official of the agency can conduct a 
search with reasonable effort; and if fees are applicable, the requester 
should include a statement regarding willingness to pay all fees or 
those up to a specified amount or request a waiver or reduction of fees.
    (2) If a request does not meet the minimum requirements of the FOIA, 
DON activities shall apprise the requester of the defect and assist him/
her in perfecting the request.

    Note to paragraph (a)(2): The statutory 20 working day time limit 
applies upon receipt of a ``perfected'' FOIA request.)

    (b) When a requester or his/her attorney requests personally 
identifiable information in a record, the request may require a 
notarized signature or a statement certifying under the penalty of 
perjury that their identity is true and correct. Additionally, written 
consent of the subject of the record is required for disclosure from a 
Privacy Act System of records, even to the subject's attorney.
    (c) Review description of requested record(s). (1) The FOIA 
requester is responsible for describing the record he/she seeks so that 
a knowledgeable official of the activity can locate the record with a 
reasonable amount of effort. In order to assist DON activities in 
conducting more timely searches, a requester should endeavor to provide 
as much identifying information as possible. When a DON activity 
receives a request that does not reasonably describe the requested 
record, it shall notify the requester of the defect in writing. The 
requester should be asked to provide the type of information outlined in 
this paragraph. DON activities are not obligated to act on the request 
until the requester responds to the

[[Page 54]]

specificity letter. When practicable, DON activities shall offer 
assistance to the requester in identifying the records sought and in 
reformulating the request to reduce the burden on the agency in 
complying with the FOIA. The following guidelines are provided to deal 
with generalized requests and are based on the principle of reasonable 
effort. Descriptive information about a record may be divided into two 
broad categories.
    (i) Category I is file-related and includes information such as type 
of record (for example, memorandum), title, index citation, subject 
area, date the record was created, and originator.
    (ii) Category II is event-related and includes the circumstances 
that resulted in the record being created or the date and circumstances 
surrounding the event the record covers.
    (2) Generally, a record is not reasonably described unless the 
description contains sufficient Category I information to permit the 
conduct of an organized, non random search based on the DON activity's 
filing arrangements and existing retrieval systems, or unless the record 
contains sufficient Category II information to permit inference of the 
Category I elements needed to conduct such a search.
    (3) The following guidelines deal with requests for personal 
records: Ordinarily, when personal identifiers are provided solely in 
connection with a request for records concerning the requester, only 
records in Privacy Act system of records that can be retrieved by 
personal identifiers need be searched. However, if a DON activity has 
reason to believe that records on the requester may exist in a record 
system other than a PA system, the DON activity shall search the system 
under the provisions of the FOIA. In either case, DON activities may 
request a reasonable description of the records desired before searching 
for such records under the provisions of the FOIA and the PA. If the 
records are required to be released under the FOIA, the PA does not bar 
its disclosure.
    (4) The guidelines in paragraph (c)(3) notwithstanding, the decision 
of the DON activity concerning reasonableness of description must be 
based on the knowledge of its files. If the description enables the DON 
activity personnel to locate the record with reasonable effort, the 
description is adequate. The fact that a FOIA request is broad or 
burdensome in its magnitude does not, in and of itself, entitle a DON 
activity to deny the request on the ground that it does not reasonably 
describe the records sought. The key factor is the ability of the staff 
to reasonably ascertain and locate which records are being requested.
    (d) Review request to determine if FOIA fees may be applicable. (1) 
FOIA fee issues shall be resolved before a DON activity begins 
processing a FOIA request.
    (2) FOIA fees shall be at the rates prescribed at subpart C of this 
part.
    (3) If fees are applicable, a requester shall be apprised of what 
category of requester he/she has been placed and provided a complete 
breakout of fees to include any and all information provided before fees 
are assessed (e.g., first two hours of search and first 100 pages of 
reproduction have been provided without charge.)
    (4) Forms DD 2086 (for FOIA requests) and 2086-1 (for FOIA requests 
for technical data) serve as an administrative record of all costs 
incurred to process a request; actual costs charged to a requester 
(i.e., search, review, and/or duplication and at what salary level and 
the actual time expended); and as input to the Annual FOIA Report. 
Requesters may request a copy of the applicable form to review the time 
and costs associated with the processing of a request.
    (5) Final response letters shall address whether or not fees are 
applicable or have been waived. A detailed explanation of FOIA fees is 
provided at subpart C of this part.
    (e) Control FOIA Request. Each FOIA request should be date stamped 
upon receipt; given a case number; and entered into a formal control 
system to track the request from receipt to response. Coordinators may 
wish to conspicuously stamp, label, and/or place the request into a 
brightly colored folder/cover sheet to ensure it receives immediate 
attention by the action officer.
    (f) Enter request into multitrack processing system. When a DON 
activity has

[[Page 55]]

a significant number of pending requests that prevents a response 
determination being made within 20 working days, the requests shall be 
processed in a multitrack processing system, based on the date of 
receipt, the amount of work and time involved in processing the 
requests, and whether the request qualifies for expedited processing.
    (1) DON activities may establish as many queues as they wish, 
however, at a minimum three processing tracks shall be established, all 
based on a first-in, first-out concept, and rank ordered by the date of 
receipt of the request: one track for simple requests, one track for 
complex requests, and one track for expedited processing. Determinations 
as to whether a request is simple or complex shall be made by each DON 
activity.
    (2) DON activities shall provide a requester whose request does not 
qualify for the fastest queue (except for expedited processing), an 
opportunity to limit in writing by hard copy, facsimile, or 
electronically the scope of the request in order to qualify for the 
fastest queue.
    (3) This multitrack processing system does not obviate the 
activity's responsibility to exercise due diligence in processing 
requests in the most expeditious manner possible.
    (4) Referred requests shall be processed according to the original 
date received by the initial activity and then placed in the appropriate 
queue.
    (5) Establish a separate queue for expedited processing. A separate 
queue shall be established for requests meeting the test for expedited 
processing. Expedited processing shall be granted to a requester after 
the requester requests such and demonstrates a compelling need for the 
information. Notice of the determination as to whether to grant 
expedited processing in response to a requester's compelling need shall 
be provided to the requester within 10 calendar days after receipt of 
the request in the office which will determine whether to grant 
expedited access. Once the determination has been made to grant 
expedited processing, DON activities shall process the request as soon 
as practicable. Actions by DON activities to initially deny or affirm 
the initial denial on appeal of a request for expedited processing, and 
failure to respond in a timely manner shall be subject to judicial 
review.
    (i) Compelling need means that the failure to obtain the records on 
an expedited basis could reasonably be expected to pose an imminent 
threat to the life or physical safety of an individual.
    (ii) Compelling need also means that the information is urgently 
needed by an individual primarily engaged in disseminating information 
in order to inform the public concerning actual or alleged Federal 
Government activity. An individual primarily engaged in disseminating 
information means a person whose primary activity involves publishing or 
otherwise disseminating information to the public. Representatives of 
the news media would normally qualify as individuals primarily engaged 
in disseminating information. Other persons must demonstrate that their 
primary activity involves publishing or otherwise disseminating 
information to the public.
    (iii) Urgently needed means that the information has a particular 
value that will be lost if not disseminated quickly. Ordinarily this 
means a breaking news story of general public interest. However, 
information of historical interest only, or information sought for 
litigation or commercial activities would not qualify, nor would a news 
media publication or broadcast deadline unrelated to the news breaking 
nature of the information.
    (iv) A demonstration of compelling need by a requester shall be made 
by a statement certified by the requester to be true and correct to the 
best of his/her knowledge. This statement must accompany the request in 
order to be considered and responded to within the 10 calendar days 
required for decisions on expedited access.
    (v) Other reasons that merit expedited processing by DON activities 
are an imminent loss of substantial due process rights and humanitarian 
need. A demonstration of imminent loss of substantial due process rights 
shall be made by a statement certified by the requester to be true and 
correct to the best of his/her knowledge. Humanitarian need means that 
disclosing the information will promote the welfare

[[Page 56]]

and interests of mankind. A demonstration of humanitarian need shall 
also be made by a statement certified by the requester to be true and 
correct to the best of his/her knowledge. Both of these statements must 
accompany the request in order to be considered and responded to within 
the 10 calendar days required for decisions on expedited access. Once 
the decision has been made to expedite the request for either of these 
reasons, the request may be processed in the expedited processing queue 
behind those requests qualifying for compelling need.
    (6) These same procedures also apply to requests for expedited 
processing of administrative appeals.
    (g) Respond to request within FOIA time limits. Once an activity 
receives a ``perfected'' FOIA request, it shall inform the requester of 
its decision to grant or deny access to the requested records within 20 
working days. Activities are not necessarily required to release records 
within the 20 working days, but access to releasable records should be 
granted promptly thereafter and the requester apprised of when he/she 
may expect to receive a final response to his/her request. Naturally, 
interim releases of documents are encouraged if appropriate. Sample 
response letters are provided on the Navy FOIA website.
    (1) If a significant number of requests, or the complexity of the 
requests prevents a final response determination within the statutory 
time period, DON activities shall advise the requester of this fact, and 
explain how the request will be responded to within its multitrack 
processing system. A final response determination is notification to the 
requester that the records are released, or will be released by a 
certain date, or the records are denied under the appropriate FOIA 
exemption(s) or the records cannot be provided for one or more of the 
``other reasons'' (see Sec. 701.8(n)). Interim responses acknowledging 
receipt of the request, negotiations with the requester concerning the 
scope of the request, the response timeframe, and fee agreements are 
encouraged; however, such actions do not constitute a final response 
determination under FOIA.
    (2) Formal extension. In those instances where a DON activity cannot 
respond within the 20 working day time limit, the FOIA provides for 
extension of initial time limits for an additional 10 working days for 
three specific situations: the need to search for and collect records 
from separate offices; the need to examine a voluminous amount of 
records required by the request; and the need to consult with another 
agency or agency component. In such instances, naval activities shall 
apprise requesters in writing of their inability to respond within 20 
working days and advise them of their right to appeal to the appellate 
authority.

    Note to paragraph (g)(2): Formal extension letters require IDA 
signature.)

    (3) Informal extension. A recommended alternative to taking a formal 
extension is to call the requester and negotiate an informal extension 
of time with the requester. The advantages include the ability to agree 
on a mutually acceptable date to respond that exceeds a formal extension 
of an additional 10 working days, and the letter of confirmation does 
not require the signature of an IDA. Additionally, it does not impact on 
the additional days the appellate authority may take when responding to 
a FOIA appeal.
    (h) Conduct a search for responsive records. (1) Conduct a search 
for responsive records, keeping in mind a test for reasonableness (i.e., 
file disposition requirements set forth in SECNAVINST 5212.5D, ``Navy 
and Marine Corps Records Disposal Manual''). This includes making a 
manual search for records as well as an electronic search for records. 
Do not assume that because a document is old, it does not exist. Rather, 
ensure that all possible avenues are considered before making a 
determination that no record could be found (i.e., such as determining 
if the record was transferred to a federal records center for holding).
    (2) Requesters can appeal ``adequacy of search.'' To preclude 
unnecessary appeals, you are encouraged to detail your response letter 
to reflect the search undertaken so the requester understands the 
process. It is particularly helpful to address the records disposal 
requirements set forth in

[[Page 57]]

SECNAVINST 5212.5D, ``Navy and Marine Corps Records Disposal Manual'' 
for the records being sought.
    (i) Review documents for release. Once documents have been located, 
the originator or activity having possession and control is responsible 
for reviewing them for release and coordinating with other activities/
agencies having an interest. The following procedures should be 
followed:
    (1) Sort documents by originator and make necessary referrals (see 
Sec. 701.9).
    (2) Documents for which the activity has possession and control 
should be reviewed for release. If the review official determines that 
all or part of the documents requested require denial, and the head of 
the activity is an IDA, he/she shall respond directly to the requester. 
If, however, the activity head is not an IDA, then the request, a copy 
of the responsive documents (unexcised), proposed redacted copy of the 
documents, and a detailed explanation regarding their release must be 
referred to the IDA for a final release determination and the requester 
shall be notified in writing of the transfer.
    (3) Documents for which the activity does not have possession and 
control, but has an interest, should be referred to the originator along 
with any recommendations regarding release (see Sec. 701.9).
    (j) Process non-responsive information in responsive documents. DON 
activities shall interpret FOIA requests liberally when determining 
which records are responsive to the requests, and may release non-
responsive information. However, should DON activities desire to 
withhold non-responsive information, the following steps shall be 
accomplished:
    (1) Consult with the requester, and ask if the requester views the 
information as responsive, and if not, seek the requester's concurrence 
to deletion of non-responsive information without a FOIA exemption. 
Reflect this concurrence in the response letter.
    (2) If the responsive record is unclassified and the requester does 
not agree to deletion of non-responsive information without a FOIA 
exemption, release all non-responsive and responsive information which 
is not exempt. For non-responsive information that is exempt, notify the 
requester that even if the information were determined responsive, it 
would likely be exempted (state the appropriate exemption(s).) Advise 
the requester of the right to request this information under a separate 
FOIA request. The separate request shall be placed in the same location 
within the processing queue as the original request.
    (3) If the responsive record is classified, and the requester does 
not agree to deletion of non-responsive information without a FOIA 
exemption, release all unclassified responsive and non-responsive 
information which is not exempt. If the non-responsive information is 
exempt, follow the procedures provided. The classified, non-responsive 
information need not be reviewed for declassification at this point. 
Advise the requester than even if the classified information were 
determined responsive, it would likely be exempt under 5 U.S.C. 552 
(b)(1) and other exemptions if appropriate. Advise the requester of the 
right to request this information under a separate FOIA request. The 
separate request shall be placed in the same location within the 
processing queue as the original request.
    (k) Withholding/excising information. (1) DON records may only be 
withheld if they qualify for exemption under one or more of the nine 
FOIA exemptions/three exclusions and it is determined that a foreseeable 
harm to an interest protected by those exemptions would result if the 
information is released. There are nine FOIA exemptions. See subpart D 
of this part for the scope of each exemption.
    (2) Although a FOIA exemption may apply, DON activities are 
encouraged to consider discretionary disclosures of information when an 
exemption permits such disclosure (see Sec. 701.5(f).)
    (3) Excising documents. The excision of information within a 
document should be made so that the requester can readily identify the 
amount of information being withheld and the reason for the withholding. 
Accordingly, ensure that any deletion of information is bracketed and 
all applicable exemptions listed. In those instances, where multiple 
pages of documents are determined to

[[Page 58]]

be exempt from disclosure in their entirety, indicate the number of 
pages being denied and the basis for the denial.
    (l) Reasonably segregable information. DON activities must release 
all ``reasonably segregable information'' when the meaning of these 
portions is not distorted by deletion of the denied portions, and when 
it reasonably can be assumed that a skillful and knowledgeable person 
could not reasonably reconstruct excised information. When a record is 
denied in whole, the response to the requester will specifically state 
that it is not reasonable to segregate portions of the record for 
release.
    (m) Making a discretionary disclosure. A discretionary disclosure to 
one requester may preclude the withholding of similar information under 
a FOIA exemption if subsequently requested by the same individual or 
someone else. The following suggested language should be included with 
the discretionary disclosure of any record that could be subject to 
withholding: ``The information you requested is subject to being 
withheld under section (b)(--) of the FOIA. The disclosure of this 
material to you by the DON is discretionary and does not constitute a 
waiver of our right to claim this exemption for similar records in the 
future.''
    (n) Other reasons. There are 10 reasons for not complying with a 
request for a record under FOIA:
    (1) No record. The DON activity conducts a reasonable search of 
files and fails to identify records responsive to the request.

    Note to paragraph (n)(1): Requester must be advised that he/she may 
appeal the adequacy of search and provided appeal rights. Response 
letter does not require signature by IDA.)

    (2) Referral. The request is referred to another DoD/DON activity or 
to another executive branch agency for their action.

    Note to paragraph (n)(2): Referral does not need to be signed by 
IDA.)

    (3) Request withdrawn. The requester withdraws request.

    Note to paragraph (n)(3): Response letter does not require signature 
by IDA.)

    (4) Fee-related reason. Requester is unwilling to pay fees 
associated with the request; is past due in payment of fees from a 
previous request; or disagrees with the fee estimate.

    Note to paragraph (n)(4): Requester must be advised that he/she may 
appeal the fee estimate. Response letter does not require signature by 
IDA.)

    (5) Records not reasonably described. A record has not been 
described with sufficient particularity to enable the DON activity to 
locate it by conducting a reasonable search.

    Note to paragraph (n)(5): Response letter does not require signature 
by IDA.)

    (6) Not a proper FOIA request for some other reason. When the 
requester fails unreasonably to comply with procedural requirements, 
other than those fee-related issues described in paragraph (n)(4), 
imposed by the instruction in this part and/or other published rules or 
directives.

    Note to paragraph (n)(6): Response letter does not require signature 
by IDA.)

    (7) Not an agency record. When the requester is provided a response 
indicating that the requested information was ``not an agency record'' 
within the meaning of the FOIA and the instruction in this part.

    Note to paragraph (n)(7): Response letter does not require signature 
by IDA.)

    (8) Duplicate request. When a request is duplicative of another 
request which has already been completed or currently in process from 
the same requester.

    Note to paragraph (n)(8): Response letter does not require signature 
by IDA.

    (9) Other (specify). When a FOIA request cannot be processed because 
the requester does not comply with published rules, other than for those 
reasons described in paragraphs (n) (1) through (8). DON activities must 
document the specific discrepancy.

    Note to paragraph (n)(9): Response letter does not require signature 
by IDA.)

    (10) Denial of request. The record is denied in whole or in part in 
accordance with procedures set forth in 5 U.S.C. 552, DoD 5400.7-R, and 
the instruction in this part.


[[Page 59]]


    Note to paragraph (n)(10): The requester is advised that he/she may 
appeal the determination and response letter must be signed by IDA.)

    (o) Writing a response letter. FOIA response letters should contain 
the following information:
    (1) The date of the request; when it was received; if records were 
not located, where the search was conducted and what the records 
disposal requirements are for those records.
    (2) Cut-off dates. Normally, DON activities shall consider the date 
of receipt of a FOIA request as the cut-off date for a records search. 
Where a DON activity employs a particular cut-off date, however, it 
should give notice of that date in the response letter to the requester.
    (3) If a request is denied in whole or in part, the denial response 
letter should cite the exemption(s) claimed; if possible, delineate the 
kinds of information withheld (i.e., social security numbers, date of 
birth, home addresses, etc.) as this may satisfy the requester and thus 
eliminate an appeal; provide appeal rights, and be signed by an IDA. 
However, there is no requirement that the response contain the same 
documentation necessary for litigation (i.e., FOIA requesters are not 
entitled to a Vaughn index (see definition in Sec. 701.39 during the 
administrative process).
    (4) The fees charged or waived; if fees were charged, what category 
was the requester placed in and provide a breakout of the fees charged 
(i.e., the first 2 hours of search were waived and so you are being 
charged for the remaining 4 hours of search at $25 per hour, or $100; 
the first 100 pages of reproduction were waived and the remaining 400 
pages being provided were charged at $.15 per page, resulting in $60 in 
reproduction fees, for a total of $160). These figures are derived from 
Form DD 2086 (FOIA Fees) or Form DD 2086-1 (Technical Data Fees).
    (5) Sample response letters are provided on the Navy FOIA website.
    (p) Press responses. Ensure responses being made to the press are 
cleared through public affairs channels.
    (q) Special mail services. DON activities are authorized to use 
registered mail, certified mail, certificates of mailing and return 
receipts. However, their use should be limited to instances where it 
appears advisable to establish proof of dispatch or receipt of FOIA 
correspondence.



Sec. 701.9  Referrals.

    (a) The DoD/DON FOIA referral policy is based upon the concept of 
the originator of a record making a release determination on its 
information. If a DON activity receives a request for records originated 
by another DoD/DON activity, it should contact the activity to determine 
if it also received the request, and if not, obtain concurrence to refer 
the request. In either situation, the requester shall be advised of the 
action taken, unless exempt information would be revealed.
    (b) While referrals to originators of information result in 
obtaining the best possible decision on release of the information, the 
policy does not relieve DON activities from the responsibility of making 
a release decision on a record should the requester object to referral 
of the request and the record. Should this situation occur, DON 
activities should coordinate with the originator of the information 
prior to making a release determination.
    (c) A request received by a DON activity having no records 
responsive to a request shall be referred routinely to another DoD/DON 
activity, if the other activity has reason to believe it has the 
requested record. Prior to notifying a requester of a referral to 
another DoD/DON activity, the DON activity receiving the initial request 
shall consult with the other DoD/DON activity to determine if that 
activity's association with the material is exempt. If the association 
is exempt, the activity receiving the initial request will protect the 
association and any exempt information without revealing the identity of 
the protected activity. The protected activity shall be responsible for 
submitting the justifications required in any litigation.
    (d) Any DON activity receiving a request that has been misaddressed 
shall refer the request to the proper address and advise the requester. 
DON activities making referrals of requests or records shall include 
with the referral, a point of contact by name, a telephone

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number (commercial and DSN), and an e-mail address (if available).
    (e) A DON activity shall refer a FOIA request for a record that it 
holds but was originated by another Executive Branch agency, to them for 
a release determination and direct response to the requester. The 
requester shall be informed of the referral, unless it has been 
determined that notification would reveal exempt information. Referred 
records shall only be identified to the extent consistent with security 
requirements.
    (f) A DON activity may refer a request for a record that it 
originated to another activity or agency when the activity or agency has 
a valid interest in the record, or the record was created for the use of 
the other agency or activity. In such situations, provide the record and 
a release recommendation on the record with the referral action. DON 
activities should include a point of contact and telephone number in the 
referral letter. If that organization is to respond directly to the 
requester, apprise the requester of the referral.
    (g) Within the DON/DoD, a DON activity shall ordinarily refer a FOIA 
request and a copy of the record it holds, but that was originated by 
another DON/DoD activity or that contains substantial information 
obtained from that activity, to that activity for direct response, after 
direct coordination and obtaining concurrence from the activity. The 
requester shall be notified of such referral. In any case, DON 
activities shall not release or deny such records without prior 
consultation with the activity, except as provided in paragraph (c) of 
this section.
    (h) Activities receiving a referred request shall place it in the 
appropriate processing queue based on the date it was initially received 
by the referring activity/agency.
    (i) Agencies outside the DON that are subject to the FOIA. (1) A DON 
activity may refer a FOIA request for any record that originated in an 
agency outside the DON or that is based on information obtained from an 
outside agency to the agency for direct response to the requester after 
coordination with the outside agency, if that agency is subject to FOIA. 
Otherwise, the DON activity must respond to the request.

    (Note: DON activities shall not refer documents originated by 
entities outside the Executive Branch of Government (e.g., Congress, 
State and local government agencies, police departments, private citizen 
correspondence, etc.), to them for action and direct response to the 
requester, since they are not subject to the FOIA).

    (2) A DON activity shall refer to the agency that provided the 
record any FOIA request for investigative, intelligence, or any other 
type of records that are on loan to the DON for a specific purpose, if 
the records are restricted from further release and so marked. However, 
if for investigative or intelligence purposes, the outside agency 
desires anonymity, a DON activity may only respond directly to the 
requester after coordination with the outside agency.



Sec. 701.10  Processing requests received from governmental officials.

    (a) Members of Congress. Many constituents seek access to 
information through their Member of Congress. Members of Congress who 
seek access to records on behalf of their constituent are provided the 
same information that the constituent would be entitled to receive. 
There is no need to verify that the individual has authorized the 
release of his/her record to the Congressional member, since the Privacy 
Act's ``blanket routine use'' for Congressional inquiries applies.
    (b) Privileged release to U.S. Government officials. DON records may 
be authenticated and released to U.S. Government officials if they are 
requesting them in their official capacity on behalf of Federal 
governmental bodies, whether legislative, executive, administrative, or 
judicial. To ensure adequate protection of these documents, DON 
activities shall inform officials receiving records under the provisions 
of this paragraph that those records are exempt from public release 
under FOIA. DON activities shall also mark the records as ``Privileged'' 
and ``Exempt from Public Disclosure'' and annotate any special handling 
instructions on the records. Because such releases are not made under 
the provisions of the FOIA, they do not impact

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on future decisions to release/deny requests for the same records to 
other requesters. Examples of privileged releases are:
    (1) In response to a request from a Committee or Subcommittee of 
Congress, or to either House sitting as a whole.
    (2) To the Federal Courts, whenever ordered by officers of the court 
as necessary for the proper administration of justice.
    (3) To other Federal agencies, both executive and administrative, as 
determined by the head of a DON activity or designee.
    (c) State or local government officials. Requests from State or 
local government officials for DON records are treated the same as any 
other requester.
    (d) Non-FOIA requests from foreign governments. Requests from 
foreign governments that do not invoke the FOIA shall be referred to the 
appropriate foreign disclosure channels and the requester so notified. 
See Sec. 701.11(c) regarding processing FOIA requests from foreign 
governments and/or their officials.



Sec. 701.11  Processing specific kinds of records.

    DON activities that possess copies or receive requests for the 
following kinds of records shall promptly forward the requests to the 
officials named in this section and if appropriate apprise the requester 
of the referral:
    (a) Classified records. Executive Order 12958 governs the 
classification of records.
    (1) Glomar response. In the instance where a DON activity receives a 
request for records whose existence or nonexistence is itself 
classifiable, the DON activity shall refuse to confirm or deny the 
existence or non-existence of the records. This response is only 
effective as long as it is given consistently. If it were to be known 
that an agency gave a ``Glomar'' response only when records do exist and 
gave a ``no records'' response otherwise, then the purpose of this 
approach would be defeated. A Glomar response is a denial and exemption 
(b)(1) is cited and appeal rights are provided to the requester.
    (2) Processing classified documents originated by another activity. 
DON activities shall refer the request and copies of the classified 
documents to the originating activity for processing. If the originating 
activity simply compiled the classified portions of the document from 
other sources, it shall refer, as necessary, those portions to the 
original classifying authority for their review and release 
determination and apprise that authority of any recommendations they 
have regarding release. If the classification authority for the 
information cannot be determined, then the originator of the compiled 
document has the responsibility for making the final determination. 
Records shall be identified consistent with security requirements. Only 
after consultation and approval from the originating activity, shall the 
requester be apprised of the referral. In most cases, the originating 
activity will make a determination and respond directly to the 
requester. In those instances where the originating activity determines 
a Glomar response is appropriate, the referring agency shall deny the 
request.
    (b) Courts-martial records of trial. The release/denial authority 
for these records is the Office of the Judge Advocate General (Code 20), 
Washington Navy Yard, Building 111, Washington, DC 20374-1111. Promptly 
refer the request and/or documents to this activity and apprise the 
requester of the referral.
    (c) Foreign requests/information. (1) FOIA requests received from 
foreign governments/foreign government officials should be processed as 
follows:
    (i) When a DON activity receives a FOIA request for a record in 
which an affected DoD/DON activity has a substantial interest in the 
subject matter, or the DON activity receives a FOIA request from a 
foreign government, a foreign citizen, or an individual or entity with a 
foreign address, the DON activity receiving the request shall provide a 
copy of the request to the affected DON activity.
    (ii) Upon receiving the request, the affected activity shall review 
the request for host nation relations, coordinate with Department of 
State as appropriate, and if necessary, provide a

[[Page 62]]

copy of the request to the appropriate foreign disclosure office for 
review. Upon request by the affected activity, the DON activity 
receiving the initial request shall provide a copy of releasable records 
to the affected activity. The affected activity may further release the 
records to its host nation after coordination with Department of State 
if release is in the best interest of the United States Government. If 
the record is released to the host nation government, the affected DON 
activity shall notify the DON activity which initially received the 
request of the release to the host nation.
    (iii) Such processing must be done expeditiously so as not to impede 
the processing of the FOIA request by the DON activity that initially 
received the request.
    (2) Non-U.S. Government Records (i.e., records originated by 
multinational organizations such as the North Atlantic Treaty 
Organization (NATO), the North American Air Defense (NORAD) and foreign 
governments) which are under the possession and control of DON shall be 
coordinated prior to a final release determination being made. 
Coordination with foreign governments shall be made through the 
Department of State.
    (d) Government Accounting Office (GAO) documents. (1) On occasion, 
the DON receives FOIA requests for GAO documents containing DON 
information, either directly from requesters or as referrals from GAO. 
Since the GAO is outside of the Executive Branch and therefore not 
subject to FOIA, all FOIA requests for GAO documents containing DON 
information will be processed by the DON under the provisions of the 
FOIA.
    (2) In those instances when a requester seeks a copy of an 
unclassified GAO report, DON activities may apprise the requester of its 
availability from the Director, GAO Distribution Center, ATTN: DHISF, 
P.O. Box 6015, Gaithersburg, MD 20877-1450 under the cash sales program.
    (e) Judge Advocate General Manual (JAGMAN) investigative records. 
These records are no longer centrally processed. Accordingly, requests 
for investigations should be directed to the following officials:
    (1) JAGMAN Investigations conducted prior to 1 Jul 95--to the Judge 
Advocate General (Code 35), Washington Navy Yard, Suite 3000, 1322 
Patterson Avenue, SE, Washington, DC 20374-5066.
    (2) Command Investigation--to the command that conducted the 
investigation.
    (3) Litigation-Report Investigation--to the Judge Advocate General 
(Code 35), Washington Navy Yard, Suite 3000, 1322 Patterson Avenue, SE, 
Washington, DC 20374-5066.
    (4) Court or Board of Inquiry--to the Echelon 2 commander over the 
command that convened the investigation.
    (f) Mailing lists. Numerous FOIA requests are received for mailing 
lists of home addresses or duty addresses of DON personnel. Processing 
of such requests is as follows:
    (1) Home addresses are normally not releasable without the consent 
of the individuals concerned. This includes lists of home addresses and 
military quarters' addresses without the occupant's name (i.e., 
exemption (b)(6) applies).
    (2) Disclosure of lists of names and duty addresses or duty 
telephone numbers of persons assigned to units that are stationed in 
foreign territories, routinely deployable, or sensitive, has also been 
held by the courts to constitute a clearly unwarranted invasion of 
personal privacy and must be withheld from disclosure under 5 U.S.C. 
552(b)(6). General officers and public affairs officers information is 
releasable. Specifically, disclosure of such information poses a 
security threat to those service members because it reveals information 
about their degree of involvement in military actions in support of 
national policy, the type of Navy and/or Marine Corps units to which 
they are attached, and their presence or absence from households. 
Release of such information aids in the targeting of service members and 
their families by terrorists or other persons opposed to implementation 
of national policy. Only an extraordinary public

[[Page 63]]

interest in disclosure of this information can outweigh the need and 
responsibility of the DON to protect the tranquility and safety of 
service members and their families who repeatedly have been subjected to 
harassment, threats, and physical injury. Units covered by this policy 
are:
    (i) Those located outside of the 50 States, District of Columbia, 
Commonwealth of Puerto Rico, Guam, U.S. Virgin Islands, and American 
Samoa.
    (ii) Routinely deployable units--Those units that normally deploy 
from homeport or permanent station on a periodic or rotating basis to 
meet operational requirements or participate in scheduled exercises. 
This includes routinely deployable ships, aviation squadrons, 
operational staffs, and all units of the Fleet Marine Force (FMF). 
Routinely deployable units do not include ships undergoing extensive 
yard work or those whose primary mission is support of training, e.g., 
yard craft and auxiliary aircraft landing training ships.
    (iii) Units engaged in sensitive operations. Those primarily 
involved in training for or conduct of covert, clandestine, or 
classified missions, including units primarily involved in collecting, 
handling, disposing, or storing of classified information and materials. 
This also includes units engaged in training or advising foreign 
personnel. Examples of units covered by this exemption are nuclear power 
training facilities, SEAL Teams, Security Group Commands, Weapons 
Stations, and Communications Stations.
    (3) Except as otherwise provided, lists containing names and duty 
addresses of DON personnel, both military and civilian, who are assigned 
to units in the Continental United States (CONUS) and U.S. territories 
shall be released regardless of who has initiated the request.
    (4) Exceptions to this policy must be coordinated with CNO (N09B30) 
or CMC (ARAD) prior to responding to requests, including those from 
Members of Congress. The policy in paragraphs (f) (1) through (3) should 
be considered when weighing the releasability of the address or 
telephone number of a specifically named individual.
    (5) DON activities are reminded that e-mail addresses that identify 
an individual who is routinely deployable, overseas, or assigned to a 
sensitive unit should not be made available. Additionally, 
organizational charts for these kinds of units and activities that 
identify specific members should not be placed on the Internet.
    (g) Medical quality assurance documents. The Chief, Bureau of 
Medicine and Surgery (BUMED) is the release/denial authority for all 
naval medical quality assurance documents as defined by Title 10, United 
States Code, Section 1102. Requests for medical quality assurance 
documents shall be promptly referred to BUMED and the requester notified 
of the referral.
    (h) Mishap investigation reports (MIRs). The Commander, Naval Safety 
Center (NAVSAFECEN) is the release/denial authority for all requests for 
mishap investigations or documents which contain mishap information. All 
requests or documents located which apply shall be promptly referred to 
the Commander, Naval Safety Center, Code 503, 375 A Street, Norfolk, VA 
23511-4399 for action. Telephonic liaison with NAVSAFECEN is encouraged. 
The requester shall be notified of the referral.
    (i) National Security Council (NSC)/White House. (1) DON activities 
that receive requests for records of NSC, the White House, or the White 
House/Military Office (WHMO) shall process the requests.
    (2) DON records in which the NSC or the White House has a concurrent 
reviewing interest, and NSC, White House, or WHMO records discovered in 
DON activity files, shall be forwarded to CNO (N09B30), 2000 Navy 
Pentagon, Washington, DC 20350-2000. N09B30, in turn, will coordinate 
the request directly with DFOISR, so DFOISR can coordinate the request 
with NSC, White House, or WHMO. After coordination, the records will be 
returned to the DON activity for their direct response to the requester. 
During the interim, DON activities should notify the requester that they 
are coordinating their request and a response will therefore be delayed.
    (j) Naval attache documents/information. The Director, Defense 
Intelligence Agency (DIA) has the responsibility for

[[Page 64]]

reviewing for release/denial any naval attache-originated documents/
information. Accordingly, FOIA requests for naval attache documents or 
copies of the documents located in DON files or referred in error to a 
DON activity shall be promptly referred to the Chief, Freedom of 
Information Act Staff, Defense Intelligence Agency (SVI-1), Washington, 
DC 20340-5100 for action and direct response to the requester. Ensure 
that the requester is notified in writing of the transfer to DIA.
    (k) Naval Audit Service reports. The Director, Naval Audit Service 
is the release/denial authority for their reports. All requests or 
documents located which apply shall be promptly referred to the 
Director, Naval Audit Service, 5611 Columbia Pike, NASSIF Building, 
Falls Church, VA 22041-5080 for action. The requester shall be notified 
of the referral.
    (l) Naval Criminal Investigative Service (NCIS) reports. The 
Director, NCIS is the release/denial authority for all NCIS reports/
information. All requests for and copies of NCIS reports located in DON 
activity files shall be promptly referred to the Director, NCIS (Code 
OOJF), Washington Navy Yard, Building 111, 716 Sicard Street, SE, 
Washington, DC 20388-5380 for action and, if appropriate, the requester 
so notified. Telephonic liaison with NCIS Headquarters is strongly 
encouraged.
    (m) Naval Inspector General (NAVINSGEN) reports. (1) NAVINSGEN is 
the release/denial authority for all investigations and inspections 
conducted by or at the direction of NAVINSGEN and for any records held 
by any command that relate to Navy hotline complaints that have been 
referred to the NAVINSGEN. Accordingly, such actions shall be promptly 
referred to the Naval Inspector General (Code OOL), Building 200, Room 
100, Washington Navy Yard, 901 M Street, SE, Washington, DC 20374-5006 
for action and, if appropriate, the requester so notified.
    (2) Requests for local command inspector general reports which have 
not been referred to NAVINSGEN should be processed by the command that 
conducted the investigation and NAVINSGEN advised as necessary.
    (3) The Deputy Naval Inspector General for Marine Corps Matters 
(DNIGMC) is the release/denial authority for all investigations 
conducted by the DNIGMC. Requests for local Marine Corps command 
Inspector General reports shall be coordinated with the DNIGMC.
    (n) Naval Nuclear Propulsion Information (NNPI). The Director, Naval 
Nuclear Propulsion Program (CNO (NOONB)/NAVSEA (08)) is the release/
denial authority for all information and requests concerning NNPI. Naval 
activities receiving such requests are responsible for searching their 
files for responsive records. If no documents are located, the naval 
activity shall respond to the requester and provide CNO (NOONB) with a 
copy of the request and response. If documents are located, the naval 
activity shall refer the request, responsive documents, and a 
recommendation regarding release to the Director, Naval Nuclear 
Propulsion Program (NOONB), 2000 Navy Pentagon, Washington, DC 20350-
2000, who will make the final release determination to the requester, 
after coordinating the release through DoD activities.
    (o) Naval Telecommunications Procedures (NTP) publications. The 
Commander, Naval Computer and Telecommunications Command is the release/
denial authority for NTP publications. All requests or documents located 
which apply shall be promptly referred to the Commander, Naval Computer 
and Telecommunications Command (Code NOOJ), 4401 Massachusetts Avenue, 
NW, Washington, DC 20394-5460 for action and direct response to the 
requester.
    (p) News media requests. (1) Respond promptly to requests received 
from news media representatives through public information channels, if 
the information is releasable under FOIA. This eliminates the 
requirement to invoke FOIA and may result in timely information being 
made available to the public.
    (2) In those instances where records/information are not releasable, 
either in whole or in part, or are not currently available for a release 
consideration, Public Affairs Officers shall

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promptly advise the requester of where and how to submit a FOIA request.
    (3) DON activities receiving and processing requests from members of 
the press shall ensure that responses are cleared through their public 
affairs channels.
    (q) Records originated by other government agencies. (1) A DON 
activity may refer a FOIA request for any record that originated in an 
agency outside the DON or that is based on information obtained from an 
outside agency to the cognizant agency for direct response to the 
requester after coordination with the outside agency, if that agency is 
subject to FOIA. Otherwise, the DON activity must respond to the 
request.
    (2) A DON activity shall refer to the agency that provided the 
record any FOIA request for investigative, intelligence, or any other 
type of records that are on loan to the DON for a specific purpose, if 
the records are restricted from further release and so marked. However, 
if for investigative or intelligence purposes, the outside agency 
desires anonymity, a DON activity may only respond directly to the 
requester after coordination with the outside agency.
    (r) Submitter documents. (1) When a request is received for a record 
containing confidential commercial information that was submitted to the 
Government, the requirements of Executive Order 12600 shall apply. 
Specifically, the submitter shall be notified of the request 
(telephonically, by letter, or by facsimile) and afforded a reasonable 
amount of time (anywhere from 2 weeks to a month depending on the 
circumstances) to present any objections concerning release, unless it 
is clear there can be no valid basis for objection. For example, the 
record was provided with actual or presumptive knowledge of the 
submitter that it would be made available to the public upon request.
    (2) The DON activity will evaluate any objections and negotiate with 
the submitter as necessary. When a substantial issue has been raised, 
the DON activity may seek additional information from the submitter and 
afford the submitter and requester reasonable opportunities to present 
their arguments in legal and substantive issues prior to making an 
agency determination.
    (3) The final decision to disclose information claimed to be exempt 
under exemption (b)(4) shall be made by an official at least equivalent 
in rank to the IDA and the submitter advised that he or she may seek a 
restraining order or take court action to prevent the release. The 
submitter is given 10 days to take action.
    (4) Should the submitter take such action, the requester will be 
notified and no action will be taken on the request until the outcome of 
the court action is known.
    (s) Technical Documents Controlled by Distribution Statements B, C, 
D, E, F, or X shall be referred to the controlling DoD office for review 
and release determination.



Sec. 701.12  FOIA appeals/litigation.

    (a) Appellate authorities. SECNAV has delegated his appellate 
authority to the JAG and the DONGC to act on matters under their 
cognizance. Their responsibilities include adjudicating appeals made to 
SECNAV on: denials of requests for copies of DON records or portions 
thereof; disapproval of a fee category claim by a requester; disapproval 
of a request to waive or reduce fees; disputes regarding fee estimates; 
reviewing determinations not to grant expedited access to agency 
records, and reviewing ``no record'' determinations when the requester 
considers such responses adverse in nature. They have the authority to 
release or withhold records, or portions thereof; to waive or reduce 
fees; and to act as required by SECNAV for appeals under 5 U.S.C. 552 
and this instruction. The JAG has further delegated this appellate 
authority to the Assistant Judge Advocate General (Civil Law). The DONGC 
has further delegated this appellate authority to the Principal Deputy 
General Counsel, the Deputy General Counsel, and the Associate General 
Counsel (Management).
    (1) In their capacity, appellate authorities will serve as principal 
points of contact on DON FOIA appeals and litigation; receive and track 
FOIA appeals and ensure responses are made in compliance with 5 U.S.C. 
552, DoD 5400.7 and 5400.7-R, and the instruction

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in this part; complete responsive portions of the Annual FOIA Report 
that addresses actions on appeals and litigation costs during the fiscal 
year and submit to CNO (N09B30); provide CNO (N09B30) with a copy of all 
appeal determinations as they are issued; and keep CNO (N09B30) informed 
in writing of all FOIA lawsuits as they are filed against the DON. 
Appellate authorities shall facsimile a copy of the complaint to CNO 
(N09B30) for review and provide updates to CNO (N09B30) to review and 
disseminate to DFOISR.
    (2) OGC's cognizance: Legal advice and services to SECNAV and the 
Civilian Executive Assistants on all matters affecting DON; legal 
services in subordinate commands, organizations, and activities in the 
areas of business and commercial law, real and personal property law, 
intellectual property law, fiscal law, civilian personnel and labor law, 
environmental law, and in coordination with the JAG, such other legal 
services as may be required to support the mission of the Navy and the 
Marine Corps, or the discharge of the General Counsel's 
responsibilities; and conducting litigation involving the areas 
enumerated above and oversight of all litigation affecting the DON.
    (3) JAG's cognizance: In addition to military law, all matters 
except those falling under the cognizance of the DONGC.
    (b) Appellants may file an appeal if they have been denied 
information in whole or in part; have been denied a waiver or reduction 
of fees; have been denied/have not received a response within 20 working 
days; or received a ``no record'' response or wish to challenge the 
``adequacy of a search'' that was made. Appeal procedures also apply to 
the disapproval of a fee category claim by a requester, disputes 
regarding fee estimates, review of an expedited basis determination not 
to grant expedited access to agency records, or any determination found 
to be adverse in nature by the requester.
    (c) Action by the appellate authority. (1) Upon receipt, JAG (34) or 
Assistant to the General Counsel (FOIA) will promptly notify the IDA of 
the appeal. In turn, the IDA will provide the appellate authority with 
the following documents so that a determination can be made: a copy of 
the request, responsive documents both excised and unexcised, a copy of 
the denial letter, and supporting rationale for continued withholding. 
IDAs shall respond to the appellate authority within 10 working days.
    (2) Final determinations on appeals normally shall be made within 20 
working days after receipt. When the appellate authority has a 
significant number of appeals preventing a response determination within 
20 working days, the appeals shall be processed in a multitrack 
processing system based, at a minimum, on the three processing tracks 
established for initial requests.
    (3) If the appeal is received by the wrong appellate authority, the 
time limits do not take effect until it is received by the right one. 
If, however, the time limit for responding cannot be met, the appellate 
authority shall advise the appellant that he/she may consider his/her 
administrative remedies exhausted. However, he/she may await a 
substantive response without prejudicing his/her right of judicial 
remedy. Nonetheless, the appellate authority will continue to process 
the case expeditiously, whether or not the appellant seeks a court order 
for release of records. In such cases, a copy of the response will be 
provided to the Department of Justice (DOJ).
    (d) Addresses for filing appeals. (1) General Counsel of the Navy, 
720 Kennon Street, SE, Room 214, Washington Navy Yard, Washington, DC 
20374-5012, or
    (2) Judge Advocate General, Washington Navy Yard, 1322 Patterson 
Avenue, SE, Suite 3000, Washington, DC 20374-5066.
    (e) Appeal letter requirements. The appellant shall file a written 
appeal with the cognizant appellate authority (i.e., DONGC or JAG). The 
appeal should include a copy of the DON response letter and supporting 
rationale on why the appeal should be granted.
    (f) Consultation/coordination. (1) The Special Assistant for Naval 
Investigative Matters and Security (CNO (N09N)) may be consulted to 
resolve inconsistencies or disputes involving classified records.
    (2) Direct liaison with officials within DON and other interested 
Federal

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agencies is authorized at the discretion of the appellate authority, who 
also coordinates with appropriate DoD and DOJ officials.
    (3) SECNAV, appropriate Assistant or Deputy Assistant Secretaries, 
and CNO (N09B30) shall be consulted and kept advised of cases with 
unusual implications. CHINFO shall be consulted and kept advised on 
cases involving public affairs implications.
    (4) Final refusal involving issues not previously resolved or that 
the DON appellate authority knows to be inconsistent with rulings of 
other DoD components ordinarily should not be made before consultation 
with the DoD Office of General Counsel (OGC).
    (5) Tentative decisions to deny records that raise new and 
significant legal issues of potential significance to other agencies of 
the Government shall be provided to the DoD OGC.
    (g) Copies of final appeal determinations. Appellate authorities 
shall provide copies of final appeal determinations to the activity 
affected and to CNO (N09B30) as appeals are decided.
    (h) Denying an appeal. The appellate authority must render his/her 
decision in writing with a full explanation as to why the appeal is 
being denied along with a detailed explanation of the basis for refusal 
with regard to the applicable statutory exemption(s) invoked. With 
regard to denials involving classified information, the final refusal 
should explain that a declassification review was undertaken and based 
on the governing Executive Order and implementing security 
classification guides (identify the guides), the information cannot be 
released and that information being denied does not contain meaningful 
portions that are reasonably segregable. In all instances, the final 
denial letter shall contain the name and position title of the official 
responsible for the denial and advise the requester of the right to seek 
judicial review.
    (i) Granting an appeal. The appellate authority must render his/her 
decision in writing. When an appellate authority makes a determination 
to release all or a portion of records withheld by an IDA, a copy of the 
releasable records should be promptly forwarded to the requester after 
compliance with any procedural requirements, such as payment of fees.
    (j) Processing appeals made under PA and FOIA. When denials have 
been made under the provisions of PA and FOIA, and the denied 
information is contained in a PA system of records, the appeal shall be 
processed under both PA and FOIA. If the denied information is not 
maintained in a PA system of records, the appeal shall be processed 
under FOIA.
    (k) Response letters. (1) When an appellate authority makes a final 
determination to release all or portion of records withheld by an IDA, a 
written response and a copy of the records so released should be 
forwarded promptly to the requester after compliance with any 
preliminary procedural requirements, such as payment of fees.
    (2) Final refusal of an appeal must be made in writing by the 
appellate authority or by a designated representative. The response at a 
minimum shall include the following:
    (i) The basis for the refusal shall be explained to the requester in 
writing, both with regard to the applicable statutory exemption or 
exemptions invoked under the provisions of the FOIA, and with respect to 
other issues appealed for which an adverse determination was made.
    (ii) When the final refusal is based in whole or in part on a 
security classification, the explanation shall include a determination 
that the record meets the cited criteria and rationale of the governing 
Executive Order, and that this determination is based on a 
declassification review, with the explanation of how that review 
confirmed the continuing validity of the security classification.
    (iii) The final denial shall include the name and title or position 
of the official responsible for the denial.
    (iv) In the case of appeals for total denial of records, the 
response shall advise the requester that the information being denied 
does not contain meaningful portions that are reasonably segregable.
    (v) When the denial is based upon an exemption (b)(3) statute, the 
response, in addition to citing the statute relied upon to deny the 
information, shall state whether a court has upheld the

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decision to withhold the information under the statute, and shall 
contain a concise description of the scope of the information withheld.
    (vi) The response shall advise the requester of the right to 
judicial review.
    (l) Time limits/requirements. (1) A FOIA appeal has been received by 
a DON activity when it reaches the appellate authority having 
jurisdiction. Misdirected appeals should be referred expeditiously to 
the proper appellate authority.
    (2) The requester shall be advised to file an appeal so that it is 
postmarked no later than 60 calendar days after the date of the initial 
denial letter. If no appeal is received, or if the appeal is postmarked 
after the conclusion of the 60 day period, the case may be considered 
closed. However, exceptions may be considered on a case-by-case basis.
    (3) In cases where the requester is provided several incremental 
determinations for a single request, the time for the appeal shall not 
begin until the date of the final response. Requests and responsive 
records that are denied shall be retained for a period of 6 years to 
meet the statute of limitations requirement.
    (4) Final determinations on appeals normally shall be made within 20 
working days after receipt. When a DON appellate authority has a 
significant number of appeals preventing a response determination within 
20 working days, the appeals shall be processed in a multitrack 
processing system, based at a minimum on the three processing tracks 
established for initial requests. (See Sec. 701.8(f)).
    (5) If additional time is needed due to unusual circumstances, the 
final decision may be delayed for the number of working days (not to 
exceed 10) that were not used as additional time for responding to the 
initial request.
    (6) If a determination cannot be made and the requester notified 
within 20 working days, the appellate authority shall acknowledge to the 
requester, in writing, the date of receipt of the appeal, the 
circumstances surrounding the delay, and the anticipated date for 
substantive response. Requesters shall be advised that, if the delay 
exceeds the statutory extension provision or is for reasons other than 
the unusual circumstances, they may consider their administrative 
remedies exhausted. They may, however, without prejudicing their right 
of judicial remedy, await a substantive response. The appellate 
authority shall continue to process the case expeditiously.
    (m) FOIA litigation. The appellate authority is responsible for 
providing CNO (N09B30) with a copy of any FOIA litigation filed against 
the DON and any subsequent status of the case. CNO (N09B30) will, in 
turn, forward a copy of the complaint to DFOISR for their review.



                  Subpart B--FOIA Definitions and Terms



Sec. 701.13  5 U.S.C. 552(a)(1) materials.

    Section (a)(1) of the FOIA requires publication in the Federal 
Register of descriptions of agency organizations, functions, substantive 
rules, and statements of general policy.



Sec. 701.14  5 U.S.C. 552(a)(2) materials.

    Section (a)(2) of the FOIA requires that certain materials routinely 
be made available for public inspection and copying. The (a)(2) 
materials are commonly referred to as ``reading room'' materials and are 
required to be indexed to facilitate public inspection. (a)(2) materials 
consist of:
    (a) 5 U.S.C. 552(a)(2)(A) records. Final opinions, including 
concurring and dissenting opinions, and orders made in the adjudication 
of cases, as defined in 5 U.S.C. 551, that may be cited, used, or relied 
upon as precedents in future adjudications.
    (b) 5 U.S.C. 552(a)(2)(B) records. Statements of policy and 
interpretations that have been adopted by the agency and are not 
published in the Federal Register.
    (c) 5 U.S.C. 552(a)(2)(C) records. Administrative staff manuals and 
instructions, or portions thereof, that establish DON policy or 
interpretations of policy that affect a member of the public. This 
provision does not apply to instructions for employees on tactics and 
techniques to be used in performing their duties, or to instructions 
relating only to the internal management of the DON activity. Examples 
of manuals

[[Page 69]]

and instructions not normally made available are:
    (1) Those issued for audit, investigation, and inspection purposes, 
or those that prescribe operational tactics, standards of performance, 
or criteria for defense, prosecution, or settlement of cases.
    (2) Operations and maintenance manuals and technical information 
concerning munitions, equipment, systems, and foreign intelligence 
operations.
    (d) 5 U.S.C. 552(a)(2)(D) records. Those (a)(2) records, which 
because of the nature of the subject matter, have become or are likely 
to become the subject of subsequent requests for substantially the same 
records. These records are referred to as FOIA-processed (a)(2) records. 
DON activities shall decide on a case-by-case basis whether records fall 
into this category based on the following factors: previous experience 
of the DON activity with similar records; particular circumstances of 
the records involved, including their nature and the type of information 
contained in them; and/or the identity and number of requesters and 
whether there is widespread press, historic, or commercial interest in 
the records.
    (1) This provision is intended for situations where public access in 
a timely manner is important and it is not intended to apply where there 
may be a limited number of requests over a short period of time from a 
few requesters. DON activities may remove the records from this access 
medium when the appropriate officials determine that access is no longer 
necessary.
    (2) Should a requester submit a FOIA request for FOIA-processed 
(a)(2) records and insist that the request be processed under FOIA, DON 
activities shall process the FOIA request. However, DON activities have 
no obligation to process a FOIA request for (a)(2)(A), (B) and (C) 
records because these records are required to be made public and not 
FOIA-processed under paragraph (a)(3) of the FOIA.
    (e) However, agency records that are withheld under FOIA from public 
disclosure, based on one or more of the FOIA exemptions, do not qualify 
as (a)(2) materials and need not be published in the Federal Register or 
made available in a library reading room.



Sec. 701.15  5 U.S.C. 552(a)(3) materials.

    Agency records which are processed for release under the provisions 
of the FOIA.



Sec. 701.16  Administrative appeal.

    A request made by a FOIA requester asking the appellate authority 
(JAG or OGC) to reverse a decision to: withhold all or part of a 
requested record; deny a fee category claim by a requester; deny a 
request for expedited processing due to demonstrated compelling need; 
deny a request for a waiver or reduction of fees; deny a request to 
review an initial fee estimate; and confirm that no records were located 
during the initial search. FOIA requesters may also appeal a non-
response to a FOIA request within the statutory time limits.



Sec. 701.17  Affirmative information disclosure.

    This is where a DON activity makes records available to the public 
on its own initiative. In such instance, the DON activity has determined 
in advance that a certain type of records or information is likely to be 
of such interest to members of the public, and that it can be disclosed 
without concern for any FOIA exemption sensitivity. Affirmative 
disclosures can be of mutual benefit to both the DON and the members of 
the public who are interested in obtaining access to such information.



Sec. 701.18  Agency record.

    Agency records are either created or obtained by an agency and under 
agency control at the time of the FOIA request. Agency records are 
stored as various kinds of media, such as:
    (a) Products of data compilation (all books, maps, photographs, 
machine readable materials, inclusive of those in electronic form or 
format, or other documentary materials), regardless of physical form or 
characteristics, made or received by an agency of the United States 
Government under Federal law in connection with the transaction of 
public business and in Department of

[[Page 70]]

the Navy possession and control at the time the FOIA request is made.
    (b) Care should be taken not to exclude records from being 
considered agency records, unless they fall within one of the following 
categories:
    (1) Objects or articles, such as structures, furniture, paintings, 
three-dimensional models, vehicles, equipment, parts of aircraft, ships, 
etc., whatever their historical value or value as evidence.
    (2) Anything that is not a tangible or documentary record, such as 
an individual's memory or oral communication.
    (3) Personal records of an individual not subject to agency creation 
or retention requirements, created and maintained primarily for the 
convenience of an agency employee, and not distributed to other agency 
employees for their official use. Personal papers fall into three 
categories: those created before entering Government service; private 
materials brought into, created, or received in the office that were not 
created or received in the course of transacting Government business, 
and work-related personal papers that are not used in the transaction of 
Government business.
    (4) A record must exist and be in the possession and control of the 
DON at the time of the request to be considered subject to this 
instruction and the FOIA. There is no obligation to create, compile, or 
obtain a record to satisfy a FOIA request.
    (5) Hard copy or electronic records, which are subject to FOIA 
requests under 5 U.S.C. 552(a)(3), and which are available to the public 
through an established distribution system, or through the Federal 
Register, the National Technical Information Service, or the Internet, 
normally need not be processed under the provisions of the FOIA. If a 
request is received for such information, DON activities shall provide 
the requester with guidance, inclusive of any written notice to the 
public, on how to obtain the information. However, if the requester 
insists that the request be processed under the FOIA, then process the 
request under FOIA.



Sec. 701.19  Appellate authority.

    SECNAV has delegated the OGC and JAG to review administrative 
appeals of denials of FOIA requests on his behalf and prepare agency 
paperwork for use by the DOJ in defending a FOIA lawsuit. JAG is further 
authorized to delegate this authority to a designated Assistant JAG. The 
authority of OGC is further delegated to the Principal Deputy General 
Counsel, the Deputy General Counsel, and the Associate General Counsel 
(Management).



Sec. 701.20  Discretionary disclosure.

    The decision to release information that could qualify for 
withholding under a FOIA exemption, but upon review the determination 
has been made that there is no foreseeable harm to the Government for 
releasing such information. Discretionary disclosures do not apply to 
exemptions (b)(1), (b)(3), (b)(4), (b)(6) and (b)(7)(C).



Sec. 701.21  Electronic record.

    Records (including e-mail) which are created, stored, and retrieved 
by electronic means.



Sec. 701.22  Exclusions.

    The FOIA contains three exclusions (c)(1), (c)(2) and (c)(3) which 
expressly authorize Federal law enforcement agencies for especially 
sensitive records under certain specified circumstances to treat the 
records as not subject to the requirements of the FOIA.



Sec. 701.23  Executive Order 12958.

    Revoked Executive Order 12356 on October 14, 1995 and is the basis 
for claiming that information is currently and properly classified under 
(b)(1) exemption of the FOIA. It sets forth new requirements for 
classifying and declassifying documents. It recognizes both the right of 
the public to be informed about the activities of its government and the 
need to protect national security information from unauthorized or 
untimely disclosure.

[[Page 71]]



Sec. 701.24  Federal agency.

    A Federal agency is any executive department, military department, 
Government corporation, Government-controlled corporation, or other 
establishment in the executive branch of the Government (including the 
Executive Office of the President), or any independent regulatory 
agency.



Sec. 701.25  5 U.S.C. 552, Freedom of Information Act (FOIA).

    An access statute that pertains to agency records of the Executive 
Branch of the Federal Government, including the Executive Office of the 
President and independent regulatory agencies.

    Note to Sec. 701.25: Records maintained by State governments, 
municipal corporations, by the courts, by Congress, or by companies and 
private citizens do not fall under this Federal statute)



Sec. 701.26  FOIA exemptions.

    There are nine exemptions that identify certain kinds of records/
information that qualify for withholding under FOIA. See subpart D of 
this part for a detailed explanation of each exemption.



Sec. 701.27  FOIA fee terms location.

    The FOIA fee terms can be found in subpart C of this part.



Sec. 701.28  FOIA request.

    A written request for DON records, made by ``any person'' including 
a member of the public (U.S. or foreign citizen/entity), an 
organization, or a business, but not including a Federal agency or a 
fugitive from the law that either explicitly or implicitly invokes the 
FOIA by citing DoD FOIA regulations or the instruction in this part. 
FOIA requests can be made for any purpose whatsoever, with no showing of 
relevancy required. Because the purpose for which records are sought has 
no bearing on the merits of the request, FOIA requesters do not have to 
explain or justify their requests. Written requests may be received by 
postal service or other commercial delivery means, by facsimile or 
electronically.



Sec. 701.29  Glomar response.

    Refusal by the agency to either confirm or deny the existence or 
non-existence of records responsive to a FOIA request. See exemptions 
(b)(1), (b)(6), and (b)(7)(C) at subpart D of this part.



Sec. 701.30  Initial Denial Authority (IDA).

    SECNAV has delegated authority to a limited number of officials to 
act on his behalf to withhold records under their cognizance that are 
requested under the FOIA for one or more of the nine categories of 
records exempt from mandatory disclosure; to deny a fee category claim 
by a requester; to deny a request for expedited processing due to 
demonstrated compelling need; to deny or grant a request for waiver or 
reduction of fees when the information sought relates to matters within 
their respective geographical areas of responsibility or chain of 
command; fees; to review a fee estimate; and to confirm that no records 
were located in response to a request. IDAs may also grant access to 
requests.



Sec. 701.31  Mosaic or compilation response.

    The concept that apparently harmless pieces of information when 
assembled together could reveal a damaging picture. See exemption (b)(1) 
at subpart D of this part.



Sec. 701.32  Perfected request.

    A request which meets the minimum requirements of the FOIA to be 
processed and is received by the DON activity having possession and 
control over the documents/information.



Sec. 701.33  Public domain.

    Agency records released under the provisions of FOIA and the 
instruction in this part to a member of the public.



Sec. 701.34  Public interest.

    The interest in obtaining official information that sheds light on a 
DON activity's performance of its statutory duties because the 
information falls within the statutory purpose of the FOIA to inform 
citizens what their government is doing. That statutory purpose, 
however, is not fostered by disclosure of information about private

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citizens accumulated in various governmental files that reveals nothing 
about an agency's or official's own conduct.



Sec. 701.35  Reading room.

    Location where (a)(2) materials are made available for public 
inspection and copying.



Sec. 701.36  Release authorities.

    Commanding officers and heads of Navy and Marine Corps shore 
activities or their designees are authorized to grant requests on behalf 
of SECNAV for agency records under their possession and control for 
which no FOIA exemption applies. As necessary, they will coordinate 
releases with other officials who may have an interest in the 
releasability of the record.



Sec. 701.37  Reverse FOIA.

    When the ``submitter'' of information, usually a corporation or 
other business entity, that has supplied the agency with data on its 
policies, operations and products, seeks to prevent the agency that 
collected the information from revealing the data to a third party in 
response to the latter's FOIA request.



Sec. 701.38  Technical data.

    Recorded information, regardless of form or method of the recording, 
of a scientific or technical nature (including computer software 
documentation).



Sec. 701.39  Vaughn index.

    Itemized index, correlating each withheld document (or portion) with 
a specific FOIA exemption(s) and the relevant part of the agency's 
nondisclosure justification. The index may contain such information as: 
date of document; originator; subject/title of document; total number of 
pages reviewed; number of pages of reasonably segregable information 
released; number of pages denied; exemption(s) claimed; justification 
for withholding; etc. FOIA requesters are not entitled to a Vaughn index 
during the administrative process.



                          Subpart C--FOIA Fees



Sec. 701.40  Background.

    (a) The DON follows the uniform fee schedule developed by DoD and 
established to conform with the Office of Management and Budget's 
(OMB's) Uniform Freedom of Information Act Fee Schedule and Guidelines.
    (b) Fees reflect direct costs for search; review (in the case of 
commercial requesters); and duplication of documents, collection of 
which is permitted by the FOIA. They are neither intended to imply that 
fees must be charged in connection with providing information to the 
public in the routine course of business, nor are they meant as a 
substitute for any other schedule of fees, which does not supersede the 
collection of fees under the FOIA.
    (c) FOIA fees do not supersede fees chargeable under a statute 
specifically providing for setting the level of fees for particular 
types of records. For example, 5 U.S.C. 552 (a)(4)(A)(vi) enables a 
Government agency such as the Government Printing Office (GPO) or the 
National Technical Information Service (NTIS), to set and collect fees. 
DON activities should ensure that when documents that would be 
responsive to a request are maintained for distribution by agencies 
operating statutory-based fee schedule programs, such as GPO or NTIS, 
they inform requesters of the steps necessary to obtain records from 
those sources.



Sec. 701.41  FOIA fee terms.

    (a) Direct costs means those expenditures a DON activity actually 
makes in searching for, reviewing (in the case of commercial 
requesters), and duplicating documents to respond to a FOIA request. 
Direct costs include, for example, the salary of the employee performing 
the work (the basic rate of pay for the employee plus 16 percent of that 
rate to cover benefits), and the costs of operating duplicating 
machinery. These factors have been included in the fee rates prescribed 
in this subpart. Not included in direct costs are overhead expenses such 
as costs of space, heating or lighting the facility in which the records 
are stored.

[[Page 73]]

    (b) Duplication refers to the process of making a copy of a document 
in response to a FOIA request. Such copies can take the form of paper 
copy, microfiche, audiovisual, or machine readable documentation (e.g., 
magnetic tape or disc), among others. Every effort will be made to 
ensure that the copy provided is in a form that is reasonably usable, 
the requester shall be notified that the copy provided is the best 
available, and that the activity's master copy shall be made available 
for review upon appointment. For duplication of computer tapes and 
audiovisual, the actual cost, including the operator's time, shall be 
charged. In practice, if a DON activity estimates that assessable 
duplication charges are likely to exceed $25.00, it shall notify the 
requester of the estimate, unless the requester has indicated in advance 
his or her willingness to pay fees as high as those anticipated. Such a 
notice shall offer a requester the opportunity to confer with activity 
personnel with the object of reformulating the request to meet his or 
her needs at a lower cost.
    (c) Review refers to the process of examining documents located in 
response to a FOIA request to determine whether one or more of the 
statutory exemptions permit withholding. It also includes processing the 
documents for disclosure, such as excising them for release. Review does 
not include the time spent resolving general legal or policy issues 
regarding the application of exemptions. It should be noted that charges 
for commercial requesters may be assessed only for the initial review. 
DON activities may not charge for reviews required at the administrative 
appeal level of an exemption already applied. However, records or 
portions of records withheld in full under an exemption that is 
subsequently determined not to apply may be reviewed again to determine 
the applicability of other exemptions not previously considered. The 
costs for such a subsequent review would be properly assessable.
    (d) Search refers to time spent looking, both manually and 
electronically, for material that is responsive to a request. Search 
also includes a page-by-page or line-by-line identification (if 
necessary) of material in the record to determine if it, or portions 
thereof are responsive to the request. DON activities should ensure that 
searches are done in the most efficient and least expensive manner so as 
to minimize costs for both the activity and the requester. For example, 
activities should not engage in line-by-line searches when duplicating 
an entire document known to contain responsive information would prove 
to be the less expensive and quicker method of complying with the 
request. Time spent reviewing documents in order to determine whether to 
apply one or more of the statutory exemptions is not search time, but 
review time.
    (1) DON activities may charge for time spent searching for records, 
even if that search fails to locate records responsive to the request.
    (2) DON activities may also charge search and review (in the case of 
commercial requesters) time if records located are determined to be 
exempt from disclosure.
    (3) In practice, if the DON activity estimates that search charges 
are likely to exceed $25.00, it shall notify the requester of the 
estimated amount of fees, unless the requester has indicated in advance 
his or her willingness to pay fees as high as those anticipated. Such a 
notice shall offer the requester the opportunity to confer with activity 
personnel with the object of reformulating the request to meet his or 
her needs at a lower cost.



Sec. 701.42  Categories of requesters--applicable fees.

    (a) Commercial requesters refers to a request from, or on behalf of 
one who seeks information for a use or purpose that furthers the 
commercial, trade, or profit interest of the requester or the person on 
whose behalf the request is made. In determining whether a requester 
properly belongs in this category, DON activities must determine the use 
to which a requester will put the documents requested. More over, where 
an activity has reasonable cause to doubt the use to which a requester 
will put the records sought, or where that use is not clear from the 
request

[[Page 74]]

itself, it should seek additional clarification before assigning the 
request to a specific category.
    (1) Fees shall be limited to reasonable standard charges for 
document search, review and duplication when records are requested for 
commercial use. Requesters must reasonably describe the records sought.
    (2) When DON activities receive a request for documents for 
commercial use, they should assess charges which recover the full direct 
costs of searching for, reviewing for release, and duplicating the 
records sought. Commercial requesters (unlike other requesters) are not 
entitled to 2 hours of free search time, nor 100 free pages of 
reproduction of documents. Moreover, commercial requesters are not 
normally entitled to a waiver or reduction of fees based upon an 
assertion that disclosure would be in the public interest. However, 
because use is the exclusive determining criteria, it is possible to 
envision a commercial enterprise making a request that is not for 
commercial use. It is also possible that a non-profit organization could 
make a request that is for commercial use. Such situations must be 
addressed on a case-by-case basis.
    (b) Educational Institution refers to a pre-school, a public or 
private elementary or secondary school, an institution of graduate high 
education, an institution of undergraduate higher education, an 
institution of professional education, and an institution of vocational 
education, which operates a program or programs of scholarly research.
    (1) Fees shall be limited to only reasonable standard charges for 
document duplication (excluding charges for the first 100 pages) when 
the request is made by an educational institution whose purpose is 
scholarly research. Requesters must reasonably describe the records 
sought.
    (2) Requesters must show that the request is being made under the 
auspices of a qualifying institution and that the records are not sought 
for commercial use, but in furtherance of scholarly research.
    (3) Fees shall be waived or reduced in the public interest if 
criteria of Sec. 701.58 have been met.
    (c) Non-commercial Scientific Institution refers to an institution 
that is not operated on a ``commercial'' basis and that is operated 
solely for the purpose of conducting scientific research, the results of 
which are not intended to promote any particular product or industry.
    (1) Fees shall be limited to only reasonable standard charges for 
document duplication (excluding the first 100 pages) when the request is 
made by a non-commercial scientific institution whose purpose is 
scientific research. Requesters must reasonably describe the records 
sought.
    (2) Requesters must show that the request is being made under the 
auspices of a qualifying institution and that the records are not sought 
for commercial use, but in furtherance of or scientific research.
    (d) Representative of the news media. (1) Refers to any person 
actively gathering news for an entity that is organized and operated to 
publish or broadcast news to the public. The term ``news'' means 
information that is about current events or that would be of current 
interest to the public. Examples of news media entities include 
television or radio stations broadcasting to the public at large, and 
publishers of periodicals (but only in those instances when they can 
qualify as disseminators of ``news'') who make their products available 
for purchase or subscription by the general public. These examples are 
not meant to be all-inclusive. Moreover, as traditional methods of news 
delivery evolve (e.g., electronic dissemination of newspapers through 
telecommunications services), such alternative media would be included 
in this category. In the case of ``freelance'' journalists, they may be 
regarded as working for a news organization if they can demonstrate a 
solid basis for expecting publication through that organization, even 
though not actually employed by it. A publication contract would be the 
clearest proof, but DON activities may also look to the past publication 
record of a requester in making this determination.
    (2) To be eligible for inclusion in this category, a requester must 
meet the criteria established in paragraph (d)(1), and his or her 
request must not be

[[Page 75]]

made for commercial use. A request for records supporting the news 
dissemination function of the requester shall not be considered to be a 
request that is for a commercial use. For example, a document request by 
a newspaper for records relating to the investigation of a defendant in 
a current criminal trial of public interest could be presumed to be a 
request from an entity eligible for inclusion in this category, and 
entitled to records at the cost of reproduction alone (excluding charges 
for the first 100 pages).
    (3) Representative of the news media does not include private 
libraries, private repositories of Government records, information 
vendors, data brokers or similar marketers of information whether to 
industries and businesses, or other entities.
    (4) Fees shall be limited to only reasonable standard charges for 
document duplication (excluding charges for the first 100 pages) when 
the request is made by a representative of the news media. Requesters 
must reasonably describe the records sought. Fees shall be waived or 
reduced if the fee waiver criteria have been met.
    (e) All other requesters. DON activities shall charge requesters who 
do not fit into any of the categories described in paragraph (a) through 
(d) fees which recover the full direct cost of searching for and 
duplicating records, except that the first 2 hours of search time and 
the first 100 pages of duplication shall be furnished without charge. 
Requesters must reasonably describe the records sought. Requests from 
subjects about themselves will continue to be treated under the fee 
provisions of the Privacy Act of 1974, which permit fees only for 
duplication. DON activities are reminded that this category of requester 
may also be eligible for a waiver or reduction of fees if disclosure of 
the information is in the public interest.



Sec. 701.43  Fee declarations.

    Requesters should submit a fee declaration appropriate for the 
categories in paragraphs (a) through (c) of this section, if fees are 
expected to exceed the minimum fee threshold of $15.00.
    (a) Commercial. Requesters should indicate a willingness to pay all 
search, review and duplication costs.
    (b) Educational or noncommercial scientific institution or news 
media. Requesters should indicate a willingness to pay duplication 
charges in excess of 100 pages if more than 100 pages of records are 
desired.
    (c) All others. Requesters should indicate a willingness to pay 
assessable search and duplication costs if more than 2 hours of search 
effort or 100 pages of records are desired.
    (d) If the conditions in paragraphs (a) through (c) are not met, 
then the request need not be processed and the requester shall be so 
informed.



Sec. 701.44  Restrictions.

    (a) No fees may be charged by any DON activity if the costs of 
routine collection and processing of the fee are likely to equal or 
exceed the amount of the fee. With the exception of requesters seeking 
documents for a commercial use, activities shall provide the first 2 
hours of search time, and the first 100 pages of duplication without 
charge. For example, for a request (other than one from a commercial 
requester) that involved 2 hours and 10 minutes of search time, and 
resulted in 105 pages of documents, an activity would determine the cost 
of only 10 minutes of search time, and only five pages of reproduction. 
If this processing cost was equal to, or less than, the cost to the 
activity for billing the requester and processing the fee collected, no 
charges would result.
    (b) Requesters receiving the first 2 hours of search and the first 
100 pages of duplication without charge are entitled to such only once 
per request. Consequently, if a DON activity, after completing its 
portion of a request, finds it necessary to refer the request to a 
subordinate office, another DON activity, or another Federal agency to 
action their portion of the request, the referring activity shall inform 
the recipient of the referral of the expended amount of search time and 
duplication cost to date.
    (c) The elements to be considered in determining the ``cost of 
collecting a fee'' are the administrative costs to the DON activity of 
receiving and recording a remittance, and processing the fee for deposit 
in the Department of Treasury's special account. The cost to

[[Page 76]]

the Department of Treasury to handle such remittance is negligible and 
shall not be considered in activity determinations.
    (d) For the purposes of the restrictions in this section, the word 
``pages'' refers to paper copies of a standard size, which will normally 
be ``8\1/2\x11'' or ``11x14.'' Thus, requesters would not be entitled to 
100 microfiche or 100 computer disks, for example. A microfiche 
containing the equivalent of 100 pages or 100 pages of computer printout 
however, might meet the terms of the restriction.
    (e) In the case of computer searches, the first 2 free hours will be 
determined against the salary scale of the individual operating the 
computer for the purposes of the search. As an example, when the direct 
costs of the computer central processing unit, input-output devices, and 
memory capacity equal $24.00 (2 hours of equivalent search at the 
clerical level), amounts of computer costs in excess of that amount are 
chargeable as computer search time. In the event the direct operating 
cost of the hardware configuration cannot be determined, computer search 
shall be based on the salary scale of the operator executing the 
computer search.



Sec. 701.45  Fee assessment.

    (a) Fees may not be used to discourage requesters, and to this end, 
FOIA fees are limited to standard charges for direct document search, 
review (in the case of commercial requesters) and duplication.
    (b) In order to be as responsive as possible to FOIA requests while 
minimizing unwarranted costs to the taxpayer, DON activities shall 
analyze each request to determine the category of the requester. If the 
activity's determination regarding the category of the requester is 
different than that claimed by the requester, the activity shall:
    (1) Notify the requester to provide additional justification to 
warrant the category claimed, and that a search for responsive records 
will not be initiated until agreement has been attained relative to the 
category of the requester. Absent further category justification from 
the requester, and within a reasonable period of time (i.e., 30 calendar 
days), the DON activity shall render a final category determination, and 
notify the requester of such determination, to include normal 
administrative appeal rights of the determination.
    (2) Advise the requester that, notwithstanding any appeal, a search 
for responsive records will not be initiated until the requester 
indicates a willingness to pay assessable costs appropriate for the 
category determined by the activity.
    (c) Estimate of fees. DON activities must be prepared to provide an 
estimate of assessable fees if desired by the requester. While it is 
recognized that search situations will vary among activities, and that 
an estimate is often difficult to obtain prior to an actual search, 
requesters who desire estimates are entitled to such before committing 
to a willingness to pay. Should the activity's actual costs exceed the 
amount of the estimate or the amount agreed to by the requester, the 
amount in excess of the estimate or the requester's agreed amount shall 
not be charged without the requester's agreement.
    (d) Advance payment of fees. DON activities may not require advance 
payment of any fee (i.e., before work is commenced or continued on a 
request) unless the requester has failed to pay fees in a timely fashion 
(i.e., 30 calendar days from the date of the assessed billing in 
writing), or the activity has determined that the fee will exceed 
$250.00.
    (e) When a DON activity estimates or determines that allowable 
charges that a requester may be required to pay are likely to exceed 
$250.00, the activity shall notify the requester of the likely cost and 
obtain satisfactory assurance of full payment where the requester has a 
history of prompt payments, or require an advance payment of an amount 
up to the full estimated charges in the case of requesters with no 
payment history.
    (f) Where a requester has previously failed to pay a fee charged in 
a timely fashion (i.e., within 30 calendar days from the date of the 
billing), the DON activity may require the requester to pay the full 
amount owed, plus any applicable interest, or demonstrate that he or she 
has paid the fee, and to make an advance payment of the full amount

[[Page 77]]

of the estimated fee before the DON activity begins to process a new or 
pending request from the requester. Interest will be at the rate 
prescribed by 31 U.S.C. 3737 and confirmed with respective finance and 
accounting offices.
    (g) After all the work is completed on a request, and the documents 
are ready for release, DON activities may require payment before 
forwarding the documents, particularly for those requesters who have no 
payment history, or for those requesters who have failed to previously 
pay a fee in a timely fashion (i.e., within 30 calendar days from the 
date of the billing).
    (h) DON activities may charge for time spent searching for records, 
even if that search fails to locate records responsive to the request. 
DON activities may also charge search and review (in the case of 
commercial requesters) time if records located are determined to be 
exempt from disclosure. In practice, if the DON activity estimates that 
search charges are likely to exceed $25.00, it shall notify the 
requester of the estimated amount of fees, unless the requester has 
indicated in advance his or her willingness to pay fees as high as those 
anticipated. Such a notice shall offer the requester the opportunity to 
confer with activity personnel with the object of reformulating the 
request to meet his or her needs at a lower cost.



Sec. 701.46  Aggregating requests.

    Except for requests that are for a commercial use, a DON activity 
may not charge for the first 2 hours of search time or for the first 100 
pages of reproduction. However, a requester may not file multiple 
requests at the same time, each seeking portions of a document or 
documents, solely in order to avoid payment of fees. When an activity 
reasonably believes that a requester or, on rare occasions, a group of 
requesters acting in concert, is attempting to break a request down into 
a series of requests for the purpose of avoiding the assessment of fees, 
the activity may aggregate any such requests and charge accordingly. One 
element to be considered in determining whether a belief would be 
reasonable is the time period in which the requests have occurred. For 
example, it would be reasonable to presume that multiple requests of 
this type made within a 30-day period had been made to avoid fees. For 
requests made over a longer period however, such a presumption becomes 
harder to sustain and activities should have a solid basis for 
determining that aggregation is warranted in such cases. DON activities 
are cautioned that before aggregating requests from more than one 
requester, they must have a concrete basis on which to conclude that the 
requesters are acting in concert and are acting specifically to avoid 
payment of fees. In no case may an activity aggregate multiple requests 
on unrelated subjects.



Sec. 701.47  FOIA fees must be addressed in response letters.

    DON activities shall ensure that requesters receive a complete 
breakout of all fees which are charged and apprised of the ``Category'' 
in which they have been placed. For example: ``We are treating you as an 
'All Other Requester.' As such, you are entitled to 2 free hours of 
search and 100 pages of reproduction, prior to any fees being assessed. 
We have expended an additional 2 hours of search at $25.00 per hour and 
an additional 100 pages of reproduction, for a total fee of $65.00.''



Sec. 701.48  Fee waivers.

    Documents shall be furnished without charge, or at a charge reduced 
below fees assessed to the categories of requesters, when the DON 
activity determines that waiver or reduction of the fees is in the 
public interest because furnishing the information is likely to 
contribute significantly to public understanding of the operations or 
activities of the DON/DoD and is not primarily in the commercial 
interest of the requester. When assessable costs for a FOIA request 
total $15.00 or less, fees shall be waived automatically for all 
requesters, regardless of category. Decisions to waive or reduce fees 
that exceed the automatic waiver threshold shall be made on a case-by-
case basis, consistent with the following factors:
    (a) Disclosure of the information ``is in the public interest 
because it is likely to contribute significantly to public understanding 
of the operations or activities of the Government.''

[[Page 78]]

    (b) The subject of the request. DON activities should analyze 
whether the subject matter of the request involves issues that will 
significantly contribute to the public understanding of the operations 
or activities of the DON/DoD. Requests for records in the possession of 
the DON which were originated by non-government organizations and are 
sought for their intrinsic content, rather than informative value, will 
likely not contribute to public understanding of the operations or 
activities of the DON/DoD. An example of such records might be press 
clippings, magazine articles, or records forwarding a particular opinion 
or concern from a member of the public regarding a DON/DoD activity. 
Similarly, disclosures of records of considerable age may or may not 
bear directly on the current activities of the DON/DoD, however, the age 
of a particular record shall not be the sole criteria for denying 
relative significance under this factor. It is possible to envisage an 
informative issue concerning the current activities of the DON/DoD, 
based upon historical documentation. Requests of this nature must be 
closely reviewed consistent with the requester's stated purpose for 
desiring the records and the potential for public understanding of the 
operations and activities of the DON/DoD.
    (c) The informative value of the information to be disclosed. This 
factor requires a close analysis of the substantive contents of a 
record, or portion of the record, to determine whether disclosure is 
meaningful, and shall inform the public on the operations or activities 
of the DON. While the subject of a request may contain information that 
concerns operations or activities of the DON, it may not always hold 
great potential for contributing to a meaningful understanding of these 
operations or activities. An example of such would be a previously 
released record that has been heavily redacted, the balance of which may 
contain only random words, fragmented sentences, or paragraph headings. 
A determination as to whether a record in this situation will contribute 
to the public understanding of the operations or activities of the DON 
must be approached with caution and carefully weighed against the 
arguments offered by the requester. Another example is information 
already known to be in the public domain. Disclosure of duplicative or 
nearly identical information already existing in the public domain may 
add no meaningful new information concerning the operations and 
activities of the DON.
    (d) The contribution to an understanding of the subject by the 
general public likely to result from disclosure. The key element in 
determining the applicability of this factor is whether disclosure will 
inform, or have the potential to inform, the public rather than simply 
the individual requester or small segment of interested persons. The 
identity of the requester is essential in this situation in order to 
determine whether such requester has the capability and intention to 
disseminate the information to the public. Mere assertions of plans to 
author a book, researching a particular subject, doing doctoral 
dissertation work, or indigence are insufficient without demonstrating 
the capacity to further disclose the information in a manner that will 
be informative to the general public. Requesters should be asked to 
describe their qualifications, the nature of their research, the purpose 
of the requested information, and their intended means of dissemination 
to the public.
    (e) The significance of the contribution to public understanding. In 
applying this factor, DON activities must differentiate the relative 
significance or impact of the disclosure against the current level of 
public knowledge, or understanding which exists before the disclosure. 
In other words, will disclosure on a current subject of wide public 
interest be unique in contributing previously unknown facts, thereby 
enhancing public knowledge, or will it basically duplicate what is 
already known by the general public? A decision regarding significance 
requires objective judgment, rather than subjective determination, and 
must be applied carefully to determine whether disclosure will likely 
lead to a significant public understanding of the issue. DON activities 
shall not make value

[[Page 79]]

judgments as to whether the information is important enough to be made 
public.
    (f) Disclosure of the information ``is not primarily in the 
commercial interest of the requester.''
    (1) The existence and magnitude of a commercial interest. If the 
request is determined to be of a commercial interest, DON activities 
should address the magnitude of that interest to determine if the 
requester's commercial interest is primary, as opposed to any secondary 
personal or non-commercial interest. In addition to profit-making 
organizations, individual persons or other organizations may have a 
commercial interest in obtaining certain records. Where it is difficult 
to determine whether the requester is of a commercial nature, DON 
activities may draw inference from the requester's identity and 
circumstances of the request. Activities are reminded that in order to 
apply the commercial standards of the FOIA, the requester's commercial 
benefit must clearly override any personal or non-profit interest.
    (2) The primary interest in disclosure. Once a requester's 
commercial interest has been determined, DON activities should then 
determine if the disclosure would be primarily in that interest. This 
requires a balancing test between the commercial interest of the request 
against any public benefit to be derived as a result of that disclosure. 
Where the public interest is served above and beyond that of the 
requester's commercial interest, a waiver or reduction of fees would be 
appropriate. Conversely, even if a significant public interest exists, 
and the relative commercial interest of the requester is determined to 
be greater than the public interest, then a waiver or reduction of fees 
would be inappropriate. As examples, news media organizations have a 
commercial interest as business organizations; however, their inherent 
role of disseminating news to the general public can ordinarily be 
presumed to be of a primary interest. Therefore, any commercial interest 
becomes secondary to the primary interest in serving the public. 
Similarly, scholars writing books or engaged in other forms of academic 
research may recognize a commercial benefit, either directly, or 
indirectly (through the institution they represent); however, normally 
such pursuits are primarily undertaken for educational purposes, and the 
application of a fee charge would be inappropriate. Conversely, data 
brokers or others who merely compile government information for 
marketing can normally be presumed to have an interest primarily of a 
commercial nature.
    (g) The factors and examples used in this section are not all 
inclusive. Each fee decision must be considered on a case-by-case basis 
and upon the merits of the information provided in each request. When 
the element of doubt as to whether to charge or waive the fee cannot be 
clearly resolved, DON activities should rule in favor of the requester.
    (h) The following additional circumstances describe situations where 
waiver or reduction of fees are most likely to be warranted:
    (1) A record is voluntarily created to prevent an otherwise 
burdensome effort to provide voluminous amounts of available records, 
including additional information not requested.
    (2) A previous denial of records is reversed in total, or in part, 
and the assessable costs are not substantial (e.g. $15.00-$30.00).



Sec. 701.49  Payment of fees.

    (a) Normally, fees will be collected at the time of providing the 
documents to the requester when the requester specifically states that 
the costs involved shall be acceptable or acceptable up to a specified 
limit that covers the anticipated costs, and the fees do not exceed 
$250.00.
    (b) However, after all work is completed on a request, and the 
documents are ready for release, DON activities may request payment 
before forwarding the documents, particularly for those requesters who 
have no payment history, or for those requesters who have failed 
previously to pay a fee in a timely fashion (i.e., within 30 calendar 
days from the date of the billing).
    (c) When a DON activity estimates or determines that allowable 
charges that a requester may be required to pay are likely to exceed 
$250.00, the activity

[[Page 80]]

shall notify the requester of the likely cost and obtain satisfactory 
assurance of full payment where the requester has a history of prompt 
payments, or require an advance payment of an amount up to the full 
estimated charges in the case of requesters with no history of payment.
    (d) Advance payment of a fee is also applicable when a requester has 
previously failed to pay fees in a timely fashion (i.e., 30 calendar 
days) after being assessed in writing by the activity. Further, where a 
requester has previously failed to pay a fee charged in a timely fashion 
(i.e., within 30 calendar days from the date of the billing), the DON 
activity may require the requester to pay the full amount owed, plus any 
applicable interest, or demonstrate that he or she has paid the fee, and 
to make an advance payment of the full amount of the estimated fee 
before the activity begins to process a new or pending request from the 
requester. Interest will be at the rate prescribed in 31 U.S.C. 3717 and 
confirmed with respective finance and accounting offices.



Sec. 701.50  Effect of the Debt Collection Act of 1982.

    The Debt Collection Act of 1982 (Pub. L. 97-365) provides for a 
minimum annual rate of interest to be charged on overdue debts owed the 
Federal Government. DON activities may levy this interest penalty for 
any fees that remain outstanding 30 calendar days from the date of 
billing (the first demand notice) to the requester of the amount owed. 
The interest rate shall be as prescribed in 31 U.S.C. 3717. DON 
activities should verify the current interest rate with respective 
finance and accounting offices. After one demand letter has been sent 
and 30 calendar days have lapsed with no payment, DON activities may 
submit the debt to respective finance and accounting offices for 
collection.



Sec. 701.51  Refunds.

    In the event that a DON activity discovers that it has overcharged a 
requester or a requester has overpaid, the DON activity shall promptly 
refund the charge to the requester by reimbursement methods that are 
agreeable to the requester and the activity.



Sec. 701.52  Computation of fees.

    (a) It is imperative that DON activities compute all fees to ensure 
accurate reporting in the Annual FOIA Report, but ensure that only 
applicable fees be charged to the requester. For example, although we 
calculate correspondence and preparation costs, these fees are not 
recoupable from the requester.
    (b) DD 2086, Record of Freedom of Information (FOI) Processing Cost, 
should be filled out accurately to reflect all processing costs, as 
requesters may solicit a copy of that document to ensure accurate 
computation of fees. Costs shall be computed on time actually spent. 
Neither time-based nor dollar-based minimum charges for search, review 
and duplication are authorized.



Sec. 701.53  FOIA fee schedule.

    The following fee schedule shall be used to compute the search, 
review (in the case of commercial requesters) and duplication costs 
associated with processing a given FOIA request. The appropriate fee 
category of the requester shall be applied before computing fees.
    (a) Manual search.

------------------------------------------------------------------------
                                                                  Hourly
               Type                            Grade               rate
------------------------------------------------------------------------
Clerical.........................  E9/GS8 and below............   $12.00
Professional.....................  O1-O6/GS9-GS15..............    25.00
Executive........................  O7/GS16/ES1 and above.......    45.00
------------------------------------------------------------------------

    (b) Computer search. Fee assessments for computer search consist of 
two parts; individual time (hereafter referred to as human time) and 
machine time.
    (1) Human time. Human time is all the time spent by humans 
performing the necessary tasks to prepare the job for a machine to 
execute the run command. If execution of a run requires monitoring by a 
human, that human time may be also assessed as computer search. The 
terms ``programmer/operator'' shall not be limited to the traditional 
programmers or operators. Rather, the terms shall be interpreted in 
their broadest sense to incorporate any human involved in performing the

[[Page 81]]

computer job (e.g. technician, administrative support, operator, 
programmer, database administrator, or action officer).
    (2) Machine time. Machine time involves only direct costs of the 
central processing unit (CPU), input/output devices, and memory capacity 
used in the actual computer configuration. Only this CPU rate shall be 
charged. No other machine-related costs shall be charged. In situations 
where the capability does not exist to calculate CPU time, no machine 
costs can be passed on to the requester. When CPU calculations are not 
available, only human time costs shall be assessed to requesters. Should 
DON activities lease computers, the services charged by the lessor shall 
not be passed to the requester under the FOIA.
    (c) Duplication.

------------------------------------------------------------------------
                   Type                             Cost per page
------------------------------------------------------------------------
Pre-Printed material......................  $.02
Office copy...............................   .15
Microfiche................................   .25
Computer copies (tapes, discs or            Actual cost of duplicating
 printouts).                                 the tape, disc or printout
                                             (includes operator's time
                                             and cost of the medium).
------------------------------------------------------------------------

    (d) Review time (in the case of commercial requesters, only).

------------------------------------------------------------------------
                                                                  Hourly
               Type                            Grade               rate
------------------------------------------------------------------------
Clerical.........................  E9/GS8 and below............   $12.00
Professional.....................  O1-O6/GS9-GS15..............    25.00
Executive........................  O7/GS16/ES1 and above.......    45.00
------------------------------------------------------------------------

    (e) Audiovisual documentary materials. Search costs are computed as 
for any other record. Duplication cost is the actual direct cost of 
reproducing the material, including the wage of the person doing the 
work. Audiovisual materials provided to a requester need not be in 
reproducible format or quality.
    (f) Other records. Direct search and duplication cost for any record 
not described in this section shall be computed in the manner described 
for audiovisual documentary material.
    (g) Costs for special services. Complying with requests for special 
services is at the discretion of the DON activity. Neither the FOIA nor 
its fee structure cover these kinds of services. Therefore, DON 
activities may recover the costs of special services requested by the 
requester after agreement has been obtained in writing from the 
requester to pay for such fees as certifying that records are true 
copies, sending records by special methods such as express mail, etc.



Sec. 701.54  Collection of fees and fee rates for technical data.

    (a) Technical data, other than technical data that discloses 
critical technology with military or space application, if required to 
be released under the FOIA, shall be released after the person 
requesting such technical data pays all reasonable costs attributed to 
search, duplication and review of the records to be released. Technical 
data, as used in this section, means recorded information, regardless of 
the form or method of the recording of a scientific or technical nature 
(including computer software documentation). This term does not include 
computer software, or data incidental to contract administration, such 
as financial and/or management information.
    (b) DON activities shall retain the amounts received by such a 
release, and it shall be merged with and available for the same purpose 
and the same time period as the appropriation from which the costs were 
incurred in complying with request. All reasonable costs as used in this 
sense are the full costs to the Federal Government of rendering the 
service, or fair market value of the service, whichever is higher. Fair 
market value shall be determined in accordance with commercial rates in 
the local geographical area. In the absence of a known market value, 
charges shall be based on recovery of full costs to the Federal 
Government. The full costs shall include all direct and indirect costs 
to conduct the search and to duplicate the records responsive to the 
request. This cost is to be differentiated from the direct costs 
allowable under information released under FOIA.
    (c) Waiver. DON activities shall waive the payment of costs required 
in paragraph (a) of this section which are greater than the costs that 
would be required for release of this same information under the FOIA 
if:

[[Page 82]]

    (1) The request is made by a citizen of the United States or a 
United States corporation and such citizen or corporation certifies that 
the technical data requested is required to enable it to submit an offer 
or determine whether it is capable of submitting an offer to provide the 
product to which the technical data relates to the United States or a 
contractor with the United States. However, DON activities may require 
the citizen or corporation to pay a deposit in an amount equal to not 
more than the cost of complying with the request, which will be refunded 
upon submission of an offer by the citizen or corporation;
    (2) The release of technical data is requested in order to comply 
with the terms of an international agreement; or,
    (3) The DON activity determines in accordance with Sec. 701.48 that 
such a waiver is in the interest of the United States.
    (d) Fee rates. (1) Manual search.

------------------------------------------------------------------------
                                                                  Hourly
               Type                            Grade               rate
------------------------------------------------------------------------
Clerical.........................  E9/GS8 and below............   $13.25
Clerical (Minimum Charge)........  ............................     8.30
Professional.....................  01 to 06/GS9 to GS15........   (\**\)
Executive........................  07/GS16/ES-1 and above......   (\**\)
------------------------------------------------------------------------
\**\ Rate to be established at actual hourly rate prior to search. A
  minimum charge will be established at \1/2\ Minimum Charge)

    (2) Computer search is based on the total cost of the central 
processing unit, input-output devices, and memory capacity of the actual 
computer configuration. The wage (based upon the scale for manual 
search) for the computer operator and/or programmer determining how to 
conduct, and subsequently executing the search will be recorded as part 
of the computer search.
    (3) Duplication.

------------------------------------------------------------------------
                            Type                                 Cost
------------------------------------------------------------------------
Aerial photograph, maps, specifications, permits, charts,          $2.50
 blueprints, and other technical engineering documents.....
Engineering data (microfilm):
  Aperture cards:
    Silver duplicate negative, per card....................          .75
    When key punched and verified, per card................          .85
  Diazo duplicate negative, per card                                 .65
  When key punched and verified, per card                            .75
    35mm roll film, per frame..............................          .50
    16mm roll film, per frame..............................          .45
    Paper prints (engineering drawings), each..............         1.50
    Paper reprints of microfilm indices, each..............          .10
------------------------------------------------------------------------

    (4) Review Time.

------------------------------------------------------------------------
                                                                  Hourly
               Type                            Grade               rate
------------------------------------------------------------------------
Clerical.........................  E9/GS8 and below............   $13.25
Clerical Minimum Charge..........  E9/GS8 and below............     8.30
Professional.....................  01 to 06/GS9 to GS15........   (\**\)
Executive........................  07/GS16/ES1 or higher.......   (\**\)
------------------------------------------------------------------------
\**\ Rate to be established at actual hourly rate prior to search. (A
  minimum charge will be established at \1/2\ Minimum Charge)

    (5) Other technical data records. Charges for any additional 
services not specifically provided in paragraph (d) of this section, 
consistent with Volume 11A of DoD 7000.14-R (NOTAL) shall be made by DON 
activities at the following rates:

Minimum charge for office copy up to six images)--$3.50
Each additional image--$ .10
Each typewritten page--$3.50
Certification and validation with seal, each--$5.20
Hand-drawn plots and sketches, each hour or fraction Thereof--$12.00



Sec. 701.55  Processing FOIA fee remittances.

    (a) Payments for FOIA charges, less fees assessed for technical data 
or by a Working Capital Fund or a Non-Appropriated Fund (NAF) activity, 
shall be made payable to the U.S. Treasurer and deposited in Receipt 
Account Number 172419.1203.
    (b) Payments for fees assessed for technical data shall be made 
payable to the DON activity that incurred the costs and will be 
deposited directly into the accounting line item from which the costs 
were incurred.
    (c) Payments for fees assessed by Working Capital Fund or Non-
Appropriated Fund (NAF) activities shall be made payable to the DON 
activity and deposited directly into their account.



                       Subpart D--FOIA Exemptions



Sec. 701.56  Background.

    The FOIA is a disclosure statute whose goal is an informed 
citizenry. Accordingly, records are considered to

[[Page 83]]

be releasable, unless they contain information that qualifies for 
withholding under one or more of the nine FOIA exemptions. The 
exemptions are identified as 5 U.S.C. 552 (b)(1) through (b)(9).



Sec. 701.57  Ground rules.

    (a) Identity of requester. In applying exemptions, the identity of 
the requester and the purpose for which the record is sought are 
irrelevant with the exception that an exemption may not be invoked where 
the particular interest to be protected is the requester's interest. 
However, if the subject of the record is the requester for the record 
and the record is contained in a Privacy Act system of records, it may 
only be denied to the requester if withholding is both authorized in 
systems notice and by a FOIA exemption.
    (b) Reasonably segregable. Even though a document may contain 
information which qualifies for withholding under one or more FOIA 
exemptions, FOIA requires that all ``reasonably segregable'' information 
be provided to the requester, unless the segregated information would 
have no meaning. In other words, redaction is not required when it would 
reduce the balance of the text to unintelligible gibberish.
    (c) Discretionary release. A discretionary release of a record to 
one requester shall prevent the withholding of the same record under a 
FOIA exemption if the record is subsequently requested by someone else. 
However, a FOIA exemption may be invoked to withhold information that is 
similar or related that has been the subject of a discretionary release.
    (d) Initial Denial Authority (IDA) actions. The decision to withhold 
information in whole or in part based on one or more of the FOIA 
exemptions requires the signature of an IDA. See listing of IDAs in 
Sec. 701.4.



Sec. 701.58  In-depth analysis of FOIA exemptions.

    An in-depth analysis of the FOIA exemptions is addressed in the 
DOJ's annual publication, ``Freedom of Information Act Guide & Privacy 
Act Overview.'' A copy is available on the DOJ's FOIA website (see Navy 
FOIA website at http://www.ogc.secnav.hq.navy.mil/foia/index.html for 
easy access).



Sec. 701.59  A brief explanation of the meaning and scope of the nine FOIA exemptions.

    (a) 5 U.S.C. 552 (b)(1): Those properly and currently classified in 
the interest of national defense or foreign policy, as specifically 
authorized under the criteria established by Executive Order and 
implemented by regulations.
    (1) Although material is not classified at the time of the FOIA 
request, a classification review may be undertaken to determine whether 
the information should be classified based on the Executive Order on 
classification (i.e., Executive Order 12958) and/or a security 
classification guide. The procedures for reclassification are addressed 
in the Executive Order.
    (2) If the information qualifies as exemption (b)(1) information, 
there is no discretion regarding its release. In addition, this 
exemption shall be invoked when the following situations are apparent:
    (i) Glomar response: The fact of the existence or nonexistence of a 
record would itself reveal classified information. In this situation, 
DON activities shall neither confirm nor deny the existence or 
nonexistence of the record being requested. A ``refusal to confirm or 
deny'' response must be used consistently, not only when a record 
exists, but also when a record does not exist. Otherwise, the pattern of 
using a ``no record'' response when a record does not exist, and a 
``refusal to confirm or deny'' when a record does exist will itself 
disclose national security information.
    (ii) Compilation: Compilations of items of information that are 
individually unclassified may be classified if the compiled information 
reveals additional association or relationship that meets the standard 
for classification under an existing executive order for classification 
and is not otherwise revealed in the individual items of information.
    (b) 5 U.S.C. 552 (b)(2): Those related solely to the internal 
personnel rules

[[Page 84]]

and practices of the DON and its activities. This exemption is entirely 
discretionary and has two profiles, high (b)(2) and low (b)(2):
    (1) High (b)(2) are records containing or constituting statutes, 
rules, regulations, orders, manuals, directives, instructions, and 
security classification guides, the release of which would allow 
circumvention of these records thereby substantially hindering the 
effective performance of a significant function of the DON. For example:
    (i) Those operating rules, guidelines, and manuals for DON 
investigators, inspectors, auditors, or examiners that must remain 
privileged in order for the DON activity fulfill a legal requirement;
    (ii) Personnel and other administrative matters, such as examination 
questions and answers used in training courses or in the determination 
of the qualifications of candidates for employment, entrance on duty, 
advancement, or promotion;
    (iii) Computer software, the release of which would allow 
circumvention of a statute or DON rules, regulations, orders, manuals, 
directives, or instructions. In this situation, the use of the software 
must be closely examined to ensure a circumvention possibility exists.
    (2) Discussion of low (b)(2) is provided for information only, as 
DON activities may not invoke the low (b)(2). Low (b)(2) records are 
those matters which are trivial and housekeeping in nature for which 
there is no legitimate public interest or benefit to be gained by 
release, and it would constitute an administrative burden to process the 
request in order to disclose the records. Examples include rules of 
personnel's use of parking facilities or regulation of lunch hours, 
statements of policy as to sick leave, and administrative data such as 
file numbers, mail routing stamps, initials, data processing notations, 
brief references to previous communications, and other like 
administrative markings.
    (c) 5 U.S.C. 552 (b)(3): Those concerning matters that a statute 
specifically exempts from disclosure by terms that permit no discretion 
on the issue, or in accordance with criteria established by that statute 
for withholding or referring to particular types of matters to be 
withheld. A few examples of (b)(3) statutes are:
    (1) 10 U.S.C. 128, Physical Protection of Special Nuclear Material, 
Limitation on Dissemination of Unclassified Information.
    (2) 10 U.S.C. 130, Authority to Withhold From Public Disclosure 
Certain Technical Data.
    (3) 10 U.S.C. 1102, Confidentiality of Medical Quality Assurance 
Records.
    (4) 10 U.S.C. 2305(g), Protection of Contractor Submitted Proposals.
    (5) 12 U.S.C. 3403, Confidentiality of Financial Records.
    (6) 18 U.S.C. 798, Communication Intelligence.
    (7) 35 U.S.C. 181-188, Patent Secrecy--any records containing 
information relating to inventions that are the subject of patent 
applications on which Patent Secrecy Orders have been issued.
    (8) 35 U.S.C. 205, Confidentiality of Inventions Information.
    (9) 41 U.S.C. 423, Procurement Integrity.
    (10) 42 U.S.C. 2162, Restricted Data and Formerly Restricted Data.
    (11) 50 U.S.C. 403 (d)(3), Protection of Intelligence Sources and 
Methods.
    (d) 5 U.S.C. 552 (b)(4): Those containing trade secrets or 
commercial or financial information that a DON activity receives from a 
person or organization outside the Government with the understanding 
that the information or record will be retained on a privileged or 
confidential basis in accordance with the customary handling of such 
records. Records within the exemption must contain trade secrets, or 
commercial or financial records, the disclosure of which is likely to 
cause substantial harm to the competitive position of the source 
providing the information; impair the Government's ability to obtain 
necessary information in the future; or impair some other legitimate 
Government interest. Commercial or financial information submitted on a 
voluntary basis, absent any exercised authority prescribing criteria for 
submission is protected without any requirement to show competitive 
harm. If the information qualifies as exemption (b)(4) information,

[[Page 85]]

there is no discretion in its release. Examples include:
    (1) Commercial or financial information received in confidence in 
connection with loans, bids, contracts, or proposals set forth in or 
incorporated by reference in a contract entered into between the DON 
activity and the offeror that submitted the proposal, as well as other 
information received in confidence or privileged, such as trade secrets, 
inventions, discoveries, or other proprietary data. Additionally, when 
the provisions of 10 U.S.C. 2305(g) and 41 U.S.C. 423 are met, certain 
proprietary and source selection information may be withheld under 
exemption (b)(3).
    (2) Statistical data and commercial or financial information 
concerning contract performance, income, profits, losses, and 
expenditures, if offered and received in confidence from a contractor or 
potential contractor.
    (3) Personal statements given in the course of inspections, 
investigations, or audits, when such statements are received in 
confidence from the individual and retained in confidence because they 
reveal trade secrets or commercial or financial information normally 
considered confidential or privileged.
    (4) Financial data provided in confidence by private employers in 
connection with locality wage surveys that are used to fix and adjust 
pay schedules applicable to the prevailing wage rate of employees within 
the DON.
    (5) Scientific and manufacturing processes or developments 
concerning technical or scientific data or other information submitted 
with an application for a research grant, or with a report while 
research is in progress.
    (6) Technical or scientific data developed by a contractor or 
subcontractor exclusively at private expense, and technical or 
scientific data developed in part with Federal funds and in part at 
private expense, wherein the contractor or subcontractor has retained 
legitimate proprietary interests in such data in accordance with 10 
U.S.C. 2320-2321 and DoD Federal Acquisition Regulation Supplement 
(DFARS), chapter 2 of 48 CFR, subparts 227.71 and 227.72. Technical data 
developed exclusively with Federal funds may be withheld under Exemption 
(b)(3) if it meets the criteria of 10 U.S.C. 130 and DoD Directive 
5230.25 of 6 November 1984.
    (7) Computer software which is copyrighted under the Copyright Act 
of 1976 (17 U.S.C. 106), the disclosure of which would have an adverse 
impact on the potential market value of a copyrighted work.
    (8) Proprietary information submitted strictly on a voluntary basis, 
absent any exercised authority prescribing criteria for submission. 
Examples of exercised authorities prescribing criteria for submission 
are statutes, Executive Orders, regulations, invitations for bids, 
requests for proposals, and contracts. Submission of information under 
these authorities is not voluntary.
    (e) 5 U.S.C. 552(b)(5): Those containing information considered 
privileged in litigation, primarily under the deliberative process 
privilege. For example: internal advice, recommendations, and subjective 
evaluations, as contrasted with factual matters, that are reflected in 
deliberative records pertaining to the decision-making process of an 
agency, whether within or among agencies or within or among DON 
activities. In order to meet the test of this exemption, the record must 
be both deliberative in nature, as well as part of a decision-making 
process. Merely being an internal record is insufficient basis for 
withholding under this exemption. Also potentially exempted are records 
pertaining to the attorney-client privilege and the attorney work-
product privilege. This exemption is entirely discretionary. Examples of 
the deliberative process include:
    (1) The nonfactual portions of staff papers, to include after-action 
reports, lessons learned, and situation reports containing staff 
evaluations, advice, opinions, or suggestions.
    (2) Advice, suggestions, or evaluations prepared on behalf of the 
DON by individual consultants or by boards, committees, councils, 
groups, panels, conferences, commissions, task forces, or other similar 
groups that are formed for the purpose of obtaining advice and 
recommendations.

[[Page 86]]

    (3) Those non-factual portions of evaluations by DON personnel of 
contractors and their products.
    (4) Information of a speculative, tentative, or evaluative nature or 
such matters as proposed plans to procure, lease or otherwise acquire 
and dispose of materials, real estate, facilities or functions, when 
such information would provide undue or unfair competitive advantage to 
private personal interests or would impede legitimate government 
functions.
    (5) Trade secret or other confidential research development, or 
commercial information owned by the Government, where premature release 
is likely to affect the Government's negotiating position or other 
commercial interest.
    (6) Those portions of official reports of inspection, reports of the 
Inspector Generals, audits, investigations, or surveys pertaining to 
safety, security, or the internal management, administration, or 
operation of one or more DON activities, when these records have 
traditionally been treated by the courts as privileged against 
disclosure in litigation.
    (7) Planning, programming, and budgetary information that is 
involved in the defense planning and resource allocation process.
    (8) If any such intra- or inter-agency record or reasonably 
segregable portion of such record hypothetically would be made available 
routinely through the discovery process in the course of litigation with 
the agency, then it should not be withheld under the FOIA. If, however, 
the information hypothetically would not be released at all, or would 
only be released in a particular case during civil discovery where a 
party's particularized showing of need might override a privilege, then 
the record may be withheld. Discovery is the formal process by which 
litigants obtain information from each other for use in the litigation. 
Consult with legal counsel to determine whether exemption 5 material 
would be routinely made available through the discovery process.
    (9) Intra- or inter-agency memoranda or letters that are factual, or 
those reasonably segregable portions that are factual, are routinely 
made available through discovery, and shall be made available to a 
requester, unless the factual material is otherwise exempt from release, 
inextricably intertwined with the exempt information, so fragmented as 
to be uninformative, or so redundant of information already available to 
the requester as to provide no new substantive information.
    (10) A direction or order from a superior to a subordinate, though 
contained in an internal communication, generally cannot be withheld 
from a requester if it constitutes policy guidance or a decision, as 
distinguished from a discussion of preliminary matters or a request for 
information or advice that would compromise the decision-making process.
    (11) An internal communication concerning a decision that 
subsequently has been made a matter of public record must be made 
available to a requester when the rationale for the decision is 
expressly adopted or incorporated by reference in the record containing 
the decision.
    (f) 5 U.S.C. 552(b)(6): Information in personnel and medical files, 
as well as similar personal information in other files, that, if 
disclosed to a requester, other than the person about whom the 
information is about, would result in a clearly unwarranted invasion of 
personal privacy. Release of information about an individual contained 
in a Privacy Act System of records that would constitute a clearly 
unwarranted invasion of privacy is prohibited, and could subject the 
releaser to civil and criminal penalties. If the information qualifies 
as exemption (b)(6) information, there is no discretion in its release. 
Examples of other files containing personal information similar to that 
contained in personnel and medical files include:
    (1) Those compiled to evaluate or adjudicate the suitability of 
candidates for civilian employment or membership in the Armed Forces, 
and the eligibility of individuals (civilian, military, or contractor 
employees) for security clearances, or for access to particularly 
sensitive classified information.
    (2) Files containing reports, records, and other material pertaining 
to personnel matters in which administrative

[[Page 87]]

action, including disciplinary action, may be taken.
    (3) Home addresses, including private e-mail addresses, are normally 
not releasable without the consent of the individuals concerned. This 
includes lists of home addressees and military quarters' addressees 
without the occupant's name. Additionally, the names and duty addresses 
(postal and/or e-mail) of DON/DoD military and civilian personnel who 
are assigned to units that are sensitive, routinely deployable, or 
stationed in foreign territories can constitute a clearly unwarranted 
invasion of personal privacy.
    (4) Privacy interest. A privacy interest may exist in personal 
information even though the information has been disclosed at some place 
and time. If personal information is not freely available from sources 
other than the Federal Government, a privacy interest exists in its 
nondisclosure. The fact that the Federal Government expended funds to 
prepare, index and maintain records on personal information, and the 
fact that a requester invokes FOIA to obtain these records indicates the 
information is not freely available.
    (5) Names and duty addresses (postal and/or e-mail) published in 
telephone directories, organizational charts, rosters and similar 
materials for personnel assigned to units that are sensitive, routinely 
deployable, or stationed in foreign territories are withholdable under 
this exemption.
    (6) This exemption shall not be used in an attempt to protect the 
privacy of a deceased person, but it may be used to protect the privacy 
of the deceased person's family if disclosure would rekindle grief, 
anguish, pain, embarrassment, or even disruption of peace of mind of 
surviving family members. In such situations, balance the surviving 
family members' privacy against the public's right to know to determine 
if disclosure is in the public interest. Additionally, the deceased's 
social security number should be withheld since it is used by the next 
of kin to receive benefits. Disclosures may be made to the immediate 
next of kin as defined in DoD Directive 5154.24 of 28 October 1996 
(NOTAL).
    (7) A clearly unwarranted invasion of the privacy of third parties 
identified in a personnel, medical or similar record constitutes a basis 
for deleting those reasonably segregable portions of that record. When 
withholding third party personal information from the subject of the 
record and the record is contained in a Privacy Act system of records, 
consult with legal counsel.
    (8) This exemption also applies when the fact of the existence or 
nonexistence of a responsive record would itself reveal personally 
private information, and the public interest in disclosure is not 
sufficient to outweigh the privacy interest. In this situation, DON 
activities shall neither confirm nor deny the existence or nonexistence 
of the record being requested. This is a Glomar response, and exemption 
(b)(6) must be cited in the response. Additionally, in order to insure 
personal privacy is not violated during referrals, DON activities shall 
coordinate with other DON activities or Federal agencies before 
referring a record that is exempt under the Glomar concept.
    (i) A ``refusal to confirm or deny'' response must be used 
consistently, not only when a record exists, but also when a record does 
not exist. Otherwise, the pattern of using a ``no records'' response 
when a record does not exist and a ``refusal to confirm or deny'' when a 
record does exist will itself disclose personally private information.
    (ii) Refusal to confirm or deny should not be used when the person 
whose personal privacy is in jeopardy has provided the requester a 
waiver of his or her privacy rights; the person initiated or directly 
participated in an investigation that led to the creation of an agency 
record seeks access to that record; or the person whose personal privacy 
is in jeopardy is deceased, the Agency is aware of that fact, and 
disclosure would not invade the privacy of the deceased's family.
    (g) 5 U.S.C. 552(b)(7). Records or information compiled for law 
enforcement purposes; i.e., civil, criminal, or military law, including 
the implementation of Executive Orders or regulations issued under law. 
This exemption may be invoked to prevent disclosure of documents not 
originally created for, but later gathered for law enforcement purposes. 
With the exception of

[[Page 88]]

(b)(7)(C) and (b)(7)(F), this exemption is discretionary. This exemption 
applies, however, only to the extent that production of such law 
enforcement records or information could result in the following:
    (1) 5 U.S.C. 552(b)(7)(A): Could reasonably be expected to interfere 
with enforcement proceedings.
    (2) 5 U.S.C. 552(b)(7)(B): Would deprive a person of the right to a 
fair trial or to an impartial adjudication.
    (3) 5 U.S.C. 552(b)(7)(C): Could reasonably be expected to 
constitute an unwarranted invasion of personal privacy of a living 
person, including surviving family members of an individual identified 
in such a record.
    (i) This exemption also applies when the fact of the existence or 
nonexistence of a responsive record would itself reveal personally 
private information, and the public interest in disclosure is not 
sufficient to outweigh the privacy interest. In this situation, 
Components shall neither confirm nor deny the existence or nonexistence 
of the record being requested. This is a Glomar response, and exemption 
(b)(7)(C) must be cited in the response. Additionally, in order to 
insure personal privacy is not violated during referrals, DON activities 
shall coordinate with other DON/DoD activities or Federal Agencies 
before referring a record that is exempt under the Glomar concept. A 
``refusal to confirm or deny'' response must be used consistently, not 
only when a record exists, but also when a record does not exist. 
Otherwise, the pattern of using a ``no records'' response when a record 
does not exist and a ``refusal to confirm or deny'' when a record does 
exist will itself disclose personally private information.
    (ii) Refusal to confirm or deny should not be used when the person 
whose personal privacy is in jeopardy has provided the requester with a 
waiver of his or her privacy rights; or the person whose personal 
privacy is in jeopardy is deceased, and the activity is aware of that 
fact.
    (4) 5 U.S.C. 552(b)(7)(D): Could reasonably be expected to disclose 
the identity of a confidential source, including a source within the 
DON; a State, local, or foreign agency or authority; or any private 
institution that furnishes the information on a confidential basis; and 
could disclose information furnished from a confidential source and 
obtained by a criminal law enforcement authority in a criminal 
investigation or by an agency conducting a lawful national security 
intelligence investigation.
    (5) 5 U.S.C. 552(b)(7)(E): Would disclose techniques and procedures 
for law enforcement investigations or prosecutions, or would disclose 
guidelines for law enforcement investigations or prosecutions if such 
disclosure could reasonably be expected to risk circumvention of the 
law.
    (6) 5 U.S.C. 552(b)(7)(F): Could reasonably be expected to endanger 
the life or physical safety of any individual.
    (7) Some examples of exemption 7 are: Statements of witnesses and 
other material developed during the course of the investigation and all 
materials prepared in connection with related Government litigation or 
adjudicative proceedings; the identity of firms or individuals being 
investigated for alleged irregularities involving contracting with the 
DoD when no indictment has been obtained nor any civil action filed 
against them by the United States; information obtained in confidence, 
expressed or implied, in the course of a criminal investigation by a 
criminal law enforcement agency or office within a DON activity or a 
lawful national security intelligence investigation conducted by an 
authorized agency or office within the DON; national security 
intelligence investigations include background security investigations 
and those investigations conducted for the purpose of obtaining 
affirmative or counterintelligence information.
    (8) The right of individual litigants to investigative records 
currently available by law (such as, the Jencks Act, 18 U.S.C. 3500), is 
not diminished.
    (9) Exclusions. Excluded from the exemption in paragraph (g)(8) are 
the following two situations applicable to the DON:
    (i) Whenever a request is made that involves access to records or 
information compiled for law enforcement purposes, and the investigation 
or proceeding involves a possible violation of criminal law where there 
is reason to

[[Page 89]]

believe that the subject of the investigation or proceeding is unaware 
of its pendency, and the disclosure of the existence of the records 
could reasonably be expected to interfere with enforcement proceedings, 
DON activities may, during only such times as that circumstance 
continues, treat the records or information as not subject to the FOIA. 
In such situation, the response to the requester will state that no 
records were found.
    (ii) Whenever informant records maintained by a criminal law 
enforcement organization within a DON activities under the informant's 
name or personal identifier are requested by a third party using the 
informant's name or personal identifier, the DON activity may treat the 
records as not subject to the FOIA, unless the informant's status as an 
informant has been officially confirmed. If it is determined that the 
records are not subject to 5 U.S.C. 552(b)(7), the response to the 
requester will state that no records were found.
    (iii) DON activities considering invoking an exclusion should first 
consult with the DOJ's Office of Information and Privacy.
    (h) 5 U.S.C. 552(b)(8): Those contained in or related to 
examination, operation or condition reports prepared by, on behalf of, 
or for the use of any agency responsible for the regulation or 
supervision of financial institutions.
    (i) 5 U.S.C. 552(b)(9): Those containing geological and geophysical 
information and data (including maps) concerning wells.



Subpart E--Indexing, Public Inspection, and Federal Register Publication 
 of Department of the Navy Directives and Other Documents Affecting the 
                                 Public

    Source: 65 FR 24635, Apr. 27, 2000, unless otherwise noted.



Sec. 701.62  Scope and applicability.

    This subpart prescribes actions to be executed by, or at the 
direction of, Navy Department (as defined in Sec. 700.104c 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 Navy-wide requirements for furnishing documents to members of 
the the public upon request. That a document may

[[Page 90]]

be published or indexed and made available for public inspection and 
copying under this instruction does not affect the possible requirement 
under subpart A for producing it for examination, or furnishing a copy, 
in response to a request made under that subpart.



Sec. 701.63  Policy.

    In accordance with the spirit and intent of 5 U.S.C. 552, the public 
has the right to maximum information concerning the organization and 
functions of the Department of the Navy. This includes information on 
the policies and the substantive and procedural rules used by the 
Department of the Navy in its dealings with the public. In accordance 
with Department of Defense policy described in 32 CFR part 336, 40 FR 
4911, moreover, the public is encouraged to participate in Department of 
the Navy rulemaking when the proposed rule would substantially and 
directly affect the public.



Sec. 701.64  Publication of adopted regulatory documents for the guidance of the public.

    (a) Classes of documents to be published. Subject to the provisions 
of 5 U.S.C. 552(b) which exempt specified matters from requirements for 
release to the public [see subpart B of this part], the classes of 
Department of the Navy documents required to be published on a current 
basis in the Federal Register are listed below.
    (1) Naval organization and points of contact--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 
Sec. 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.

[[Page 91]]

    (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 Sec. 701.65.



Sec. 701.65  Availability, public inspection, and indexing of other documents affecting the public.

    (a) Discussion. Section 552(a) of title 5, United States Code, 
requires the Department of the Navy to make available for public 
inspection and copying documents which have precedential significance on 
those Department of the Navy decisions which affect the public. These 
documents must be kept readily available for public inspection and 
copying at designated locations, unless they are promptly published and 
copies are offered for sale. Additionally, documents issued after July 
4, 1967, are required to be indexed on a current basis. These indexes, 
or supplements thereto, must be published at least quarterly in 
accordance with the provisions of this paragraph. In determining whether 
a particular document is subject to the requirements of this paragraph, 
consideration should be given to the statutory purposes and legal effect 
of the provisions.
    (1) Statutory purposes. In general, the purpose of the requirement 
to provide members of the public with essential information is to enable 
them to deal effectively and knowledgeably with Federal agencies; to 
apprise members of the public of the existence and contents of documents 
which have potential legal consequences as precedents in administrative 
determinations which may affect them; and to permit public examination 
of the basis for administrative actions which affect the public.
    (2) Legal effect. If a document is required to be indexed and made 
available under this paragraph, it may not be used or asserted as a 
precedent against a member of the public unless it was 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 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

[[Page 92]]

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

[[Page 93]]

    (iii) Furnishing internally reproduced copies upon request, at cost 
not to exceed the direct cost of duplication in accordance with subpart 
D of this part, provided that it is determined by an order published in 
the Federal Register, that the publication of the index by methods 
Sec. 701.65(d) (3) (i) or (ii) would be unnecessary or impracticable. 
Such order shall state the cost of copies and the address from which 
they may be obtained. The Chief of Naval Operations (N09B30) is 
authorized to issue such an order in a proper case.
    (4) Public inspection of indexes. In addition to publication by one 
of the foregoing methods, each index will be made available for public 
inspection and copying in accordance with Sec. 701.65(e) at the 
locations where Department of the Navy records are available for public 
inspection.
    (e) Where records may be inspected. Locations and times at which 
Department of the Navy records, and indexes thereof, are available for 
public inspection and copying are shown in Sec. 701.32.
    (f) Cost. Fees for copying services, if any, furnished at locations 
shown in Sec. 701.32 shall be determined in accordance with subpart D of 
this part.
    (g) Records of the United States Navy-Marine Corps Court of Military 
Review. The United States Navy-Marine Corps Court of Military Review is 
deemed to be ``a court of the United States'' within the meaning of 5 
U.S.C. 551 and is therefore excluded from the requirements of 5 U.S.C. 
552. Nevertheless, unpublished decisions of the United States Navy-
Marine Corps Court of Military Review, although not indexed, are 
available for public inspection at the location shown in Sec. 701.32(c).



Sec. 701.66  Publication of proposed regulations for public comment.

    (a) Discussion. The requirements of this section are not imposed by 
statute, but are the implementation of policies and procedures created 
administratively in 32 CFR part 336. In effect, the pertinent provisions 
of 32 CFR part 336 establish, within the Department of Defense and its 
components, procedures that are analogous to the public rulemaking 
procedures applicable to some functions of other Federal agencies under 
5 U.S.C. 553. While the administrative policy of encouraging the maximum 
practicable public participation in the Department of the Navy 
rulemaking shall be diligently followed, determinations by the 
Department of the Navy as to whether a proposed regulatory requirement 
originated by it comes within the purview of this paragraph and the 
corresponding provisions of 32 CFR part 336, and as to whether inviting 
public comment is warranted, shall be conclusive and final.
    (b) Classes of documents affected. Each proposed regulation or other 
document of a class described in Sec. 701.64(a) (or a proposed revision 
of an adopted document of any of those classes) which would 
``originate'' within the Department of the Navy a requirement of general 
applicability and future effect for implementing, interpreting, or 
prescribing law or policy, or practice and procedure requirements 
constituting authority for prospective actions having substantial and 
direct impact on the public, or a significant portion of the public, 
must be evaluated to determine whether inviting public comment prior to 
issuance is warranted. Documents that merely implement regulations 
previously issued by higher naval authorities or by the Department of 
Defense will not be deemed to ``originate'' requirements within the 
purview of this section. If a proposed document is within the purview of 
this section, publication to invite public comment will be warranted 
unless, upon evaluation, it is affirmatively determined both that a 
significant and legitimate interest of the Department of the Navy or the 
public will be served by omitting such publication for public comment, 
and that the document is subject to one or more of the following 
exceptions:
    (1) It pertains to a military or foreign affairs function of the 
United States which has been determined under the criteria of an 
Executive Order or statute to require a security classification in the 
interests of national defense or foreign policy;
    (2) It relates to naval management, naval military or civilian 
personnel, or public contracts (e.g. Navy Procurement Directives), 
including nonappropriated fund contracts;

[[Page 94]]

    (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 Sec. 701.66(b) that inviting public comment is not 
warranted, he or she shall cause it to be published in the Federal 
Register with an invitation for the public to submit comments in the 
form of written data, views, or arguments during a specified period of 
not less than 30 days following the date of publication. An opportunity 
for oral presentation normally will not be provided, but may be provided 
at the sole discretion of the official having cognizance of the proposed 
directive if he or she deems it to be in the best interest of the 
Department of the Navy or the public to do so. After careful 
consideration of all relevant matters presented within the period 
specified for public comment, the proposed document may be issued in 
final form. After issuance, the adopted document, and a preamble 
explaining the relationship of the adopted document to the proposed 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 Sec. 701.66(b), 
incorporate that determination, and the basis therefor, in the document 
when it is issued or submitted to a higher authority for issuance. After 
issuance, such document shall be published in the Federal Register for 
the guidance of the public, if required under Sec. 701.64(b).



Sec. 701.67  Petitions for issuance, revision, or cancellation of regulations affecting the public.

    In accordance with the provisions of 32 CFR part 336, the Department 
of the Navy shall accord any interested person the right to petition in 
writing, for the issuance, revision, or cancellation of regulatory 
document that originates, or would originate, for the Department of the 
Navy, a policy, requirement, or procedure which is, or would be, within 
the purview of Sec. 701.66. The official having cognizance of the 
particular regulatory document involved, or having cognizance of the 
subject matter of a proposed document, shall give full and prompt 
consideration to any such petition. Such official may, at his or her 
absolute discretion, grant the petitioner an opportunity to appear, at 
his or her own expense, for the purpose of supporting the petition, if 
this is deemed to be compatible with orderly conduct of public business. 
The petitioner shall be advised in writing of the disposition, and the 
reasons for the disposition, of any petition within the purview of this 
section.



          Subpart F--Department of the Navy Privacy Act Program

    Authority: Pub. L. 93-579, 88 Stat 1896 (5 U.S.C. 552a).

    Source: 65 FR 31456, May 18, 2000, unless otherwise noted.



Sec. 701.100  Purpose.

    Subparts F and G of this part implement the Privacy Act (5 U.S.C. 
552a), and DoD Directive 5400.11,\1\ and DoD 5400.11-R,\2\ (32 CFR part 
310) and provides Department of the Navy policies and procedures for:
---------------------------------------------------------------------------

    \1\ Copies may be obtained: http://www.whs.osd.mil/corres.htm.
    \2\ See footnote 1 to Sec. 701.100.
---------------------------------------------------------------------------

    (a) Governing the collection, safeguarding, maintenance, use, 
access, amendment, and dissemination of personal information kept by 
Department of the Navy in systems of records;

[[Page 95]]

    (b) Notifying individuals if any systems of records contain a record 
pertaining to them;
    (c) Verifying the identity of individuals who request their records 
before the records are made available to them;
    (d) Notifying the public of the existence and character of each 
system of records.
    (e) Exempting systems of records from certain requirements of the 
Privacy Act; and
    (f) Governing the Privacy Act rules of conduct for Department of the 
Navy personnel, who will be subject to criminal penalties for 
noncompliance with 5 U.S.C. 552a, as amended by the Computer Matching 
Act of 1988.



Sec. 701.101  Applicability.

    This subpart and subpart G of this part apply throughout the 
Department of the Navy. It is also applicable to contractors by contract 
or other legally binding action, whenever a Department of the Navy 
contract provides for the operation of a system of records or portion of 
a system of records to accomplish a Department of the Navy function. For 
the purposes of any criminal liabilities adjudged, any contractor or any 
employee of such contractor is considered to be an employee of 
Department of the Navy. In case of a conflict, this subpart and subpart 
G of this part take precedence over any existing Department of the Navy 
directive that deals with the personal privacy and rights of individuals 
regarding their personal records, except for disclosure of personal 
information required by 5 U.S.C. 552 (1988) as amended by the Freedom of 
Information Reform Act and implemented by Secretary of the Navy 
Instruction 5720.42F,\3\ `Department of the Navy Freedom of Information 
Act Program.'
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    \3\ Copies may be obtained: Chief of Naval Operations, 2000 Navy 
Pentagon, Washington, DC 20350-2000.
---------------------------------------------------------------------------



Sec. 701.102  Definitions.

    For the purposes of this subpart and subpart G of this part, the 
following meanings apply.
    Access. The review or copying of a record or parts thereof contained 
in a system of records by any individual.
    Agency. For the purposes of disclosing records subject to the 
Privacy Act between or among Department of Defense (DoD) components, the 
Department of Defense is considered a single agency. For all other 
purposes, Department of the Navy is considered an agency within the 
meaning of Privacy Act.
    Confidential source. A person or organization who has furnished 
information to the Federal Government either under an express promise 
that the person's or the organization's identity will be held in 
confidence or under an implied promise of such confidentiality if this 
implied promise was made before September 27, 1975.
    Defense Data Integrity Board. Consists of members of the Defense 
Privacy Board, as outlined in DoD Directive 5400.11 and, in addition, 
the DoD Inspector General or the designee, when convened to oversee, 
coordinate and approve or disapprove all DoD component computer matching 
covered by the Privacy Act.
    Disclosure. The transfer of any personal information from a system 
of records by any means of communication (such as oral, written, 
electronic, mechanical, or actual review), to any person, private 
entity, or government agency, other than the subject of the record, the 
subject's designated agent or the subject's legal guardian.
    Federal personnel. Officers and employees of the Government of the 
United States, members of the uniformed services (including members of 
the Reserve Components), individuals or survivors thereof, entitled to 
receive immediate or deferred retirement benefits under any retirement 
program of the Government of the United States (including survivor 
benefits).
    Individual. A living citizen of the United States or alien lawfully 
admitted to the U.S. for permanent residence. The legal guardian of an 
individual has the same rights as the individual and may act on his or 
her behalf. No rights are vested in the representative of a deceased 
person under this instruction and the term ``individual'' does not 
embrace an individual

[[Page 96]]

acting in a non-personal capacity (for example, sole proprietorship or 
partnership).
    Individual access. Access to information pertaining to the 
individual by the individual or his or her designated agent or legal 
guardian.
    Maintain. Includes maintain, collect, use, or disseminate.
    Member of the public. Any individual or party acting in a private 
capacity.
    Minor. Under this subpart and subpart G of this part, a minor is an 
individual under 18 years of age, who is not a member of the U.S. Navy 
or Marine Corps, nor married.
    Official use. Under this subpart and subpart G of this part, this 
term is used when Department of the Navy officials and employees have a 
demonstrated need for the use of any record or the information contained 
therein in the performance of their official duties.
    Personal information. Information about an individual that is 
intimate or private to the individual, as distinguished from information 
related solely to the individual's official functions or public life.
    Privacy Act (PA) request. A request from an individual for 
notification as to the existence of, access to, or amendment of records 
pertaining to that individual. These records must be maintained in a 
system of records.
    Record. Any item, collection, or grouping of information about an 
individual that is maintained by a naval activity including, but not 
limited to, the individual's education, financial transactions, and 
medical, criminal, or employment history, and that contains the 
individual's name or other identifying particulars assigned to the 
individual, such as a finger or voice print or a photograph.
    Review authority. An official charged with the responsibility to 
rule on administrative appeals of initial denials of requests for 
notification, access, or amendment of records. The Secretary of the Navy 
has delegated his review authority to the Assistant Secretary of the 
Navy (Manpower and Reserve Affairs (ASN(MRA)), the General Counsel 
(OGC), and the Judge Advocate General (NJAG). Additionally, the Office 
of Personnel Management (OPM) is the review authority for civilian 
official personnel folders or records contained in any other OPM record.
    Risk assessment. An analysis which considers information 
sensitivity, vulnerability, and cost to a computer facility or word 
processing center in safeguarding personal information processed or 
stored in the facility or center.
    Routine use. Disclosure of a record outside the Department of 
Defense for a purpose that is compatible with the purpose for which the 
record was collected and maintained by the Department of Defense. The 
routine use must have been included in the notice for the system of 
records published in the Federal Register.
    Statistical record. A record maintained only for statistical 
research, or reporting purposes, and not used in whole or in part in 
making any determination about a specific individual.
    System manager. An official who has overall responsibility for a 
system of records. He or she may serve at any level in Department of the 
Navy. Systems managers are indicated in the published record systems 
notices. If more than one official is indicated as a system manager, 
initial responsibility resides with the manager at the appropriate level 
(i.e., for local records, at the local activity).
    System of records. A group of records under the control of a 
Department of the Navy activity from which information is retrieved by 
the individual's name or by some identifying number, symbol, or other 
identifying particular assigned to the individual. System notices for 
all Privacy Act systems of records must be published in the Federal 
Register and are also published in periodic Chief of Naval Operations 
Notes (OPNAVNOTEs) 5211.\4\
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    \4\ See footnote 3 to Sec. 701.101.
---------------------------------------------------------------------------

    Word processing equipment. Any combination of electronic hardware 
and computer software integrated in a variety of forms (firmware, 
programmable software, hard wiring, or similar equipment) that permits 
the processing of textual data. Generally, the equipment contains a 
device to receive information, a computer-like processor with various 
capabilities to manipulate the information, a storage medium, and an 
output device.

[[Page 97]]

    Word processing system. A combination of equipment employing 
automated technology, systematic procedures, and trained personnel for 
the primary purpose of manipulating human thoughts and verbal or written 
communications into a form suitable to the originator. The results are 
written or graphic presentations intended to communicate verbally or 
visually with another individual.
    Working day. All days excluding Saturday, Sunday, and legal 
holidays.



Sec. 701.103  Policy.

    It is the policy of Department of the Navy to:
    (a) Ensure that all its personnel comply fully with 5 U.S.C. 552a, 
DoD Directive 5400.11 and DoD 5400.11-R, to protect individuals from 
unwarranted invasions of privacy. Individuals covered by this protection 
are living citizens of the U.S. or aliens lawfully admitted for 
permanent residence. A legal guardian of an individual or parent of a 
minor when acting on the individual's or minor's behalf, has the same 
rights as the individual or minor. (A member of the Armed Forces is not 
a minor for the purposes of this subpart and subpart G of this part).
    (b) Collect, maintain, and use only that personal information needed 
to support a Navy function or program as authorized by law or E.O., and 
disclose this information only as authorized by 5 U.S.C. 552a and this 
subpart and subpart G of this part. In assessing need, consideration 
shall be given to alternatives, such as use of information not 
individually identifiable or use of sampling of certain data for certain 
individuals only. Additionally, consideration is to be given to the 
length of time information is needed, and the cost of maintaining the 
information compared to the risks and adverse consequences of not 
maintaining the information.
    (c) Keep only personal information that is timely, accurate, 
complete, and relevant to the purpose for which it was collected.
    (d) Let individuals have access to, and obtain copies of, all or 
portions of their records, subject to exemption procedures authorized by 
law and this subpart and subpart G of this part.
    (e) Let individuals request amendment of their records when 
discrepancies proven to be erroneous, untimely, incomplete, or 
irrelevant are noted.
    (f) Let individuals request an administrative review of decisions 
that deny them access, or refuse to amend their records.
    (g) Ensure that adequate safeguards are enforced to prevent misuse, 
unauthorized disclosure, alteration, or destruction of personal 
information in records.
    (h) Maintain no records describing how an individual exercises his 
or her rights guaranteed by the First Amendment (freedom of religion, 
political beliefs, speech, and press; peaceful assemblage; and petition 
for redress of grievances), unless they are:
    (1) Expressly authorized by statute;
    (2) Authorized by the individual;
    (3) Within the scope of an authorized law enforcement activity; or
    (4) For the maintenance of certain items of information relating to 
religious affiliation for members of the naval service who are 
chaplains. This should not be construed, however, as restricting or 
excluding solicitation of information which the individual is willing to 
have in his or her record concerning religious preference, particularly 
that required in emergency situations.
    (5) Maintain only systems of records which have been published in 
the Federal Register, in accordance with periodic Chief of Naval 
Operations Notes (OPNAVNOTEs) 5211 and Sec. 701.105. These OPNAVNOTEs 
5211 provide a listing of all Department of the Navy Privacy Act systems 
of records and identify the Office of Personnel Management (OPM) 
government-wide systems containing information on Department of the Navy 
civilian employees, even though technically, Department of the Navy does 
not have cognizance over them. A Privacy Act systems notice outlines 
what kinds of information may be collected and maintained by naval 
activities. When collecting/maintaining information in a Privacy Act 
system of records, review the systems notice to ensure activity 
compliance is within the scope of the system. If you determine the 
systems

[[Page 98]]

notice does not meet your needs, contact the systems manager or Chief of 
Naval Operations (N09B30) with your concerns so that amendment of the 
system may be considered.



Sec. 701.104  Responsibility and authority.

    (a) Chief of Naval Operations (CNO). CNO is designated as the 
official responsible for administering and supervising the execution of 
5 U.S.C. 552a, DoD Directive 5400.11, and DoD 5400.11-R. CNO has 
designated the Assistant Vice Chief of Naval Operations (N09B30) as 
principal Privacy Act Coordinator for the Department of the Navy to:
    (1) Set Department of the Navy policy on the provisions of the 
Privacy Act.
    (2) Serve as principal advisor on all Privacy Act matters.
    (3) Oversee the administration of the Privacy Act program, which 
includes preparing the Department of the Navy Privacy Act report for 
submission to Congress.
    (4) Develop Navy-wide Privacy Act training program and serve as 
training-oversight manager.
    (5) Conduct staff assistance visits within Department of the Navy to 
review compliance with 5 U.S.C. 552a and this subpart and subpart G of 
this part.
    (6) Coordinate and prepare responses for Privacy Act requests 
received for Office of the Secretary of the Navy records.
    (b) Commandant of the Marine Corps (CMC). CMC is responsible for 
administering and supervising the execution of this subpart and subpart 
G of this part within the Marine Corps. The Commandant has designated 
the Director, Manpower Management Information Systems Division (HQMC 
(Code ARAD)) as the Privacy Act coordinator for Headquarters, U.S. 
Marine Corps.
    (c) Privacy Act Coordinator. Each addressee is responsible for 
implementing and administering a Privacy Act program under this subpart 
and subpart G of this part. Each addressee shall designate a Privacy Act 
Coordinator to:
    (1) Serve as principal point of contact on Privacy Act matters.
    (2) Provide training for activity/command personnel on the 
provisions of 5 U.S.C. 552a and this subpart and subpart G of this part.
    (3) Issue implementing instruction which designates the activity's 
Privacy Act Coordinator, Privacy Act records disposition, Privacy Act 
processing procedures, identification of Privacy Act systems of records 
under their cognizance, and training aids for those personnel involved 
with systems of records.
    (4) Review internal directives, practices, and procedures, including 
those having Privacy Act implications and where Privacy Act Statements 
(PASs) are needed.
    (5) Compile input and submit consolidated Privacy Act report to 
Echelon 2 Privacy Act Coordinator, who, in turn, will provide 
consolidated report to CNO (N09B30).
    (6) Maintain liaison with records management officials (i.e., 
maintenance and disposal procedures and standards, forms, and reports), 
as appropriate.
    (7) Provide guidance on handling Privacy Act requests and scope of 
Privacy Act exemptions.
    (8) Conduct staff assistance visits within command and lower echelon 
commands to ensure compliance with the Privacy Act.
    (9) Echelon 2 Privacy Act Coordinators shall provide CNO (N09B30) 
with a complete listing of all Privacy Act Coordinators under their 
jurisdiction. Such information should include activity name and address, 
office code, name of Privacy Act Coordinator, commercial and DSN 
telephone number, and FAX number, if applicable.
    (d) Release authority. Officials having cognizance over the 
requested subject matter are authorized to respond to requests for 
notification, access, and/or amendment of records. These officials could 
also be systems managers (see Sec. 701.104(g)).
    (e) Denial authority. Within the Department of the Navy, the 
following chief officials, their respective vice commanders, deputies, 
principal assistants, and those officials specifically designated by the 
chief official are authorized to deny requests, either in whole or in 
part, for notification, access and amendment, made under this subpart 
and subpart G of this part, when the records relate to matters

[[Page 99]]

within their respective areas of responsibility or chain of command:
    (1) Department of the Navy. Civilian Executive Assistants; CNO; CMC; 
Chief of Naval Personnel; Commanders of the Naval Systems Commands, 
Office of Naval Intelligence, Naval Security Group Command, Naval 
Imaging Command, and Naval Computer and Telecommunications Command; 
Chief, Bureau of Medicine and Surgery; Auditor General of the Navy; 
Naval Inspector General; Director, Office of Civilian Personnel 
Management; Chief of Naval Education and Training; Commander, Naval 
Reserve Force; Chief of Naval Research; Commander, Naval Oceanography 
Command; heads of Department of the Navy Staff Offices, Boards, and 
Councils; Flag Officers and General Officers. NJAG and his Deputy, and 
OGC and his Deputies are excluded from this grant of authorization. 
While NJAG and OGC are not denial authorities, they are authorized to 
further delegate the authority conferred here to other senior officers/
officials within NJAG and OGC.
    (2) For the shore establishment.(i) All officers authorized under 
Article 22, Uniform Code of Military Justice (UCMJ) or designated in 
section 0120, Manual of the Judge Advocate General (JAGINST 5800.7C),\5\ 
to convene general courts-martial.
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    \5\ Copies may be obtained: Judge Advocate General, Navy Department, 
1322 Patterson Avenue, SE, Suite 3000, Washington Navy Yard, Washington, 
DC 20374-5066.
---------------------------------------------------------------------------

    (ii) Commander, Naval Investigative Service Command.
    (iii) Deputy Commander, Naval Legal Service Command.
    (3) In the Operating Forces. All officers authorized by Article 22, 
Uniform Code of Military Justice (UCMJ), or designated in section 0120, 
Manual of the Judge Advocate General (JAGINST 5800.7C), to convene 
general courts-martial.
    (f) Review authority. (1) The Assistant Secretary of the Navy 
(Manpower and Reserve Affairs), is the Secretary's designee, and shall 
act upon requests for administrative review of initial denials of 
requests for amendment of records related to fitness reports and 
performance evaluations of military personnel (see Sec. 701.111(c)(3)).
    (2) The Judge Advocate General and General Counsel, as the 
Secretary's designees, shall act upon requests for administrative review 
of initial denials of records for notification, access, or amendment of 
records, as set forth in Sec. 701.111(c)(2) and (4).
    (3) The authority of the Secretary of the Navy (SECNAV), as the head 
of an agency, to request records subject to the Privacy Act from an 
agency external to the Department of Defense for civil or criminal law 
enforcement purposes, under subsection (b)(7) of 5 U.S.C. 552a, is 
delegated to the Commandant of the Marine Corps, the Director of Naval 
Intelligence, the Judge Advocate General, and the General Counsel.
    (g) Systems manager. Systems managers, as designated in Department 
of the Navy's compilation of systems notices (periodic Chief of Naval 
Operations Notes (OPNAVNOTEs) 5211,\6\ ``Current Privacy Act 
Issuances'') shall:
---------------------------------------------------------------------------

    \6\ See footnote 3 to Sec. 701.101.
---------------------------------------------------------------------------

    (1) Ensure the system has been published in the Federal Register and 
that any additions or significant changes are submitted to CNO (N09B30) 
for approval and publication. The systems of records should be 
maintained in accordance with the systems notices as published in the 
periodic Chief of Naval Operations Notes (OPNAVNOTEs) 5211, ``Current 
Privacy Act Issuances.''
    (2) Maintain accountability records of disclosures.
    (h) Department of the Navy employees. Each employee of the 
Department of the Navy has certain responsibilities for safeguarding the 
rights of others. These include:
    (1) Not disclosing any information contained in a system of records 
by any means of communication to any person or agency, except as 
authorized by this subpart and subpart G of this part.
    (2) Not maintaining unpublished official files which would fall 
under the provisions of 5 U.S.C. 552a.
    (3) Safeguarding the privacy of individuals and confidentiality of 
personal

[[Page 100]]

information contained in a system of records.



Sec. 701.105  Systems of records.

    To be subject to this subpart and subpart G of this part, a ``system 
of records'' must consist of ``records'' that are retrieved by the name, 
or some other personal identifier, of an individual and be under the 
control of Department of the Navy.
    (a) Retrieval practices. (1) Records in a group of records that are 
not retrieved by personal identifiers are not covered by this subpart 
and subpart G of this part, even if the records contain information 
about individuals and are under the control of Department of the Navy. 
The records must be retrieved by personal identifiers to become a system 
of records.
    (2) If records previously not retrieved by personal identifiers are 
rearranged so they are retrieved by personal identifiers, a new system 
notice must be submitted in accordance with Sec. 701.107.
    (3) If records in a system of records are rearranged so retrieval is 
no longer by personal identifiers, the records are no longer subject to 
this subpart and subpart G of this part and the records system notice 
should be deleted in accordance with Sec. 701.107.
    (b) Recordkeeping standards. A record maintained in a system of 
records subject to this subpart and subpart G of this part must meet the 
following criteria:
    (1) Be accurate. All information in the record must be factually 
correct.
    (2) Be relevant. All information contained in the record must be 
related to the individual who is the record subject and also must be 
related to a lawful purpose or mission of the Department of the Navy 
activity maintaining the record.
    (3) Be timely. All information in the record must be reviewed 
periodically to ensure that it has not changed due to time or later 
events.
    (4) Be complete. It must be able to stand alone in accomplishing the 
purpose for which it is maintained.
    (5) Be necessary. All information in the record must be needed to 
accomplish a Department of the Navy mission or purpose established by 
Federal Law or E.O. of the President.
    (c) Authority to establish systems of records. Identify the specific 
Federal statute or E.O. of the President that authorizes maintaining 
each system of records. When a naval activity uses its ``internal 
housekeeping'' statute, i.e., 5 U.S.C. 301, Departmental Regulations, 
the naval instruction that implements the statute should also be 
identified. A statute or E.O. authorizing a system of records does not 
negate the responsibility to ensure the information in the system of 
records is relevant and necessary.
    (d) Exercise of First Amendment rights. (1) Do not maintain any 
records describing how an individual exercises rights guaranteed by the 
First Amendment of the U.S. Constitution unless expressly authorized by 
Federal law; the individual; or pertinent to and within the scope of an 
authorized law enforcement activity.
    (2) First amendment rights include, but are not limited to, freedom 
of religion, freedom of political beliefs, freedom of speech, freedom of 
the press, the right to assemble, and the right to petition.
    (e) System manager's evaluations and reviews. (1) Evaluate each new 
system of records. Before establishing a system of records, evaluate the 
information to be included and consider the following:
    (i) The relationship of each item of information to be collected and 
retained to the purpose for which the system is maintained (all 
information must be relevant to the purpose);
    (ii) The specific impact on the purpose or mission if each category 
of information is not collected (all information must be necessary to 
accomplish a lawful purpose or mission.);
    (iii) The ability to meet the informational needs without using 
personal identifiers (will anonymous statistical records meet the 
needs?);
    (iv) The length of time each item of information must be kept;
    (v) The methods of disposal;
    (vi) The cost of maintaining the information; and
    (vii) Whether a system already exists that serves the purpose of the 
new system.
    (2) Evaluate and review all existing systems of records.

[[Page 101]]

    (i) When an alteration or amendment of an existing system is 
prepared pursuant to Sec. 701.107(b) and (c), do the evaluation 
described in paragraph (e) of this section.
    (ii) Conduct the following reviews annually and be prepared to 
report, in accordance with Sec. 701.104(c)(8), the results and 
corrective actions taken to resolve problems uncovered.
    (A) Training practices to ensure all personnel are familiar with the 
requirements of 5 U.S.C. 552a, and DoD Directive 5400.11, ``DoD Privacy 
Program'', this subpart and subpart G of this part, and any special 
needs their specific jobs entail.
    (B) Recordkeeping and disposal practices to ensure compliance with 
this subpart and subpart G of this part.
    (C) Ongoing computer matching programs in which records from the 
system have been matched with non-DoD records to ensure that the 
requirements of Sec. 701.115 have been met.
    (D) Actions of Department of the Navy personnel that resulted in 
either Department of the Navy being found civilly liable or a person 
being found criminally liable under 5 U.S.C. 552a, to determine the 
extent of the problem and find the most effective way of preventing the 
problem from occurring in the future.
    (E) Each system of records notice to ensure it accurately describes 
the system. Where major changes are needed, alter the system notice in 
accordance with Sec. 701.107(b). If minor changes are needed, amend the 
system notice pursuant to Sec. 701.107(c).
    (iii) Every even-numbered year, review a random sample of Department 
of the Navy contracts that provide for the operation of a system of 
records to accomplish a Department of the Navy function, to ensure the 
wording of each contract complies with the provisions of 5 U.S.C. 552a 
and paragraph (h) of this section.
    (iv) Every three years, beginning in 1992, review the routine use 
disclosures associated with each system of records to ensure the 
recipient's use of the records continues to be compatible with the 
purpose for which the information was originally collected.
    (v) Every three years, beginning in 1993, review each system of 
records for which exemption rules have been established to determine 
whether each exemption is still needed.
    (vi) When directed, send the reports through proper channels to the 
CNO (N09B30).
    (f) Discontinued information requirements. (1) Immediately stop 
collecting any category or item of information about individuals that is 
no longer justified, and when feasible, remove the information from 
existing records.
    (2) Do not destroy records that must be kept in accordance with 
retention and disposal requirements established under SECNAVINST 
5212.5,\7\ ``Disposal of Navy and Marine Corps Records.''
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    \7\ Copies may be obtained: OPNAV/SECNAV Directives Control Office, 
Washington Navy Yard, Building 200, Washington, DC 20350-2000.
---------------------------------------------------------------------------

    (g) Review records before disclosing outside the Federal government. 
Before disclosing a record from a system of records to anyone outside 
the Federal government, take reasonable steps to ensure the record which 
is being disclosed is accurate, relevant, timely, and complete for the 
purposes it is being maintained.
    (h) Federal government contractors--(1) Applicability to Federal 
government contractors. (i) When a naval activity contracts for the 
operation of a system of records to accomplish its function, the 
activity must ensure compliance with this subpart and subpart G of this 
part and 5 U.S.C. 552a. For the purposes of the criminal penalties 
described in 5 U.S.C. 552a, the contractor and its employees shall be 
considered employees of the agency during the performance of the 
contract.
    (ii) Consistent with parts 24 and 52 of the Federal Acquisition 
Regulation (FAR), contracts for the operation of a system of records 
shall identify specifically the record system and the work to be 
performed, and shall include in the solicitations and resulting contract 
the terms as prescribed by the FAR.
    (iii) If the contractor must use records that are subject to this 
subpart and subpart G of this part to perform any part of a contract, 
the contractor activities are subject to this subpart and subpart G of 
this part.

[[Page 102]]

    (iv) This subpart and subpart G of this part do not apply to records 
of a contractor that are:
    (A) Established and maintained solely to assist the contractor in 
making internal contractor management decisions, such as records 
maintained by the contractor for use in managing the contract;
    (B) Maintained as internal contractor employee records, even when 
used in conjunction with providing goods or services to the naval 
activity;
    (C) Maintained as training records by an educational organization 
contracted by a naval activity to provide training when the records of 
the contract students are similar to and commingled with training 
records of other students, such as admission forms, transcripts, and 
academic counseling and similar records; or
    (D) Maintained by a consumer reporting agency to which records have 
been disclosed under contract in accordance with 31 U.S.C. 952d.
    (v) For contracting that is subject to this subpart and subpart G of 
this part, naval activities shall publish instructions that:
    (A) Furnish Privacy Act guidance to personnel who solicit, award, or 
administer Government contracts;
    (B) Inform prospective contractors of their responsibilities under 
this subpart and subpart G of this part and the Department of the Navy 
Privacy Program;
    (C) Establish an internal system for reviewing contractor's 
performance for compliance with the Privacy Act; and
    (D) Provide for the biennial review of a random sample of contracts 
that are subject to this subpart and subpart G of this part.
    (2) Contracting procedures. The Defense Acquisition Regulatory (DAR) 
Council, which oversees the implementation of the FAR within the 
Department of Defense, is responsible for developing the specific 
policies and procedures for soliciting, awarding, and administering 
contracts that are subject to this subpart and subpart G of this part 
and 5 U.S.C. 552a.
    (3) Contractor compliance. Naval activities shall establish contract 
surveillance programs to ensure contractors comply with the procedures 
established by the DAR Council under the preceding subparagraph.
    (4) Disclosing records to contractors. Disclosing records to a 
contractor for use in performing a contract let by a naval activity is 
considered a disclosure within Department of the Navy. The contractor is 
considered the agent of Department of the Navy when receiving and 
maintaining the records for that activity.



Sec. 701.106  Safeguarding records in systems of records.

    Establish appropriate administrative, technical, and physical 
safeguards to ensure the records in every system of records are 
protected from unauthorized alteration, destruction, or disclosure. 
Protect the records from reasonably anticipated threats or hazards that 
could result in substantial harm, embarrassment, inconvenience, or 
unfairness to any individual on whom information is maintained.
    (a) Minimum standards. (1) Conduct risk analysis and management 
planning for each system of records. Consider sensitivity and use of the 
records, present and projected threats and vulnerabilities, and present 
and projected cost-effectiveness of safeguards. The risk analysis may 
vary from an informal review of a small, relatively insensitive system 
to a formal, fully quantified risk analysis of a large, complex, and 
highly sensitive system.
    (2) Train all personnel operating a system of records or using 
records from a system of records in proper record security procedures.
    (3) Label information exempt from disclosure under this subpart and 
subpart G of this part to reflect their sensitivity, such as ``FOR 
OFFICIAL USE ONLY,'' ``PRIVACY ACT SENSITIVE: DISCLOSE ON A NEED-TO-KNOW 
BASIS ONLY,'' or some other statement that alerts individuals of the 
sensitivity to the records.
    (4) Administer special administrative, physical, and technical 
safeguards to protect records processed or stored in an automated data 
processing or word processing system to protect them from threats unique 
to those environments.
    (b) Records disposal. (1) Dispose of records from systems of records 
so as

[[Page 103]]

to prevent inadvertent disclosure. Disposal methods are considered 
adequate if the records are rendered unrecognizable or beyond 
reconstruction (i.e., such as tearing, burning, melting, chemical 
decomposition, burying, pulping, pulverizing, shredding, or mutilation). 
Magnetic media may be cleared by completely erasing, overwriting, or 
degaussing the tape.
    (2) The transfer of large volumes of records (e.g., printouts and 
computer cards) in bulk to a disposal activity such as a Defense 
Reutilization and Marketing Office for authorized disposal is not a 
disclosure of records, if the volume of records, coding of the 
information, or some other factor render it impossible to recognize any 
personal information about a specific individual.
    (3) When disposing or destroying large quantities of records from a 
system of records, care must be taken to ensure that the bulk of the 
records is maintained to prevent easy identification of specific 
records. If such bulk is maintained, no special procedures are required. 
If bulk is not maintained, or if the form of the records makes 
individually identifiable information easily discernable, dispose of the 
records in accordance with paragraph (b)(1) of this section.



Sec. 701.107  Criteria for creating, altering, amending and deleting Privacy Act systems of records.

    (a) Criteria for a new system of records. A new system of records is 
one for which no existing system notice has been published in the 
Federal Register. If a notice for a system of records has been canceled 
or deleted, and it is determined that it should be reinstated or reused, 
a new system notice must be published in the Federal Register. Advance 
public notice must be given before a naval activity may begin to collect 
information for or use a new system of records. The following procedures 
apply:
    (1) Describe in the record system notice the contents of the record 
system and the purposes and routine uses for which the information will 
be used and disclosed.
    (2) The public shall be given 30 days to comment on any proposed 
routine uses before the routine uses are implemented.
    (3) The notice shall contain the date the system of records will 
become effective.
    (b) Criteria for an alteration to a system of records notice. A 
system is considered altered when any one of the following actions occur 
or is proposed:
    (1) A significant increase or change in the number or types of 
individuals about whom records are maintained. For example, a decision 
to expand a system of records that originally covered personnel assigned 
to only one naval activity to cover personnel at several installations 
would constitute an altered system. An increase or decrease in the 
number of individuals covered due to normal growth or decrease is not an 
alteration.
    (2) A change that expands the types or categories of information 
maintained. For example, a personnel file that has been expanded to 
include medical records would be an alteration.
    (3) A change that alters the purpose for which the information is 
used. In order to be an alteration, the change must be one that is not 
reasonably inferred from any of the existing purposes.
    (4) A change to equipment configuration (either hardware or 
software) that creates substantially greater use of records in the 
system. For example, placing interactive computer terminals at regional 
offices when the system was formerly used only at the headquarters would 
be an alteration.
    (5) A change in the manner in which records are organized or in the 
method by which records are retrieved.
    (6) Combining record systems due to a reorganization within 
Department of the Navy.
    (7) Retrieving by Social Security Numbers (SSNs), records that 
previously were retrieved only by names would be an alteration if the 
present notice failed to indicate retrieval by SSNs. An altered system 
of records must be published in the Federal Register. Submission for an 
alteration must contain a narrative statement, the specific changes 
altering the system, and the system of records notice.

[[Page 104]]

    (c) Criteria for amending a systems of records notice. Minor changes 
to published system of records notices are considered amendments. All 
amendments should be forwarded to CNO (N09B30) for publication in the 
Federal Register. When submitting an amendment to a system of records 
notice, the naval activity must include a description of the specific 
changes proposed and the system of records notice.
    (d) Criteria for deleting a system of records notice. When a system 
of records is discontinued, incorporated into another system, or 
determined to be no longer subject to this subpart and subpart G of this 
part, a deletion notice must be published in the Federal Register. The 
deletion notice shall include the system identification number, system 
name, and the reason for deleting it. If a system is deleted through 
incorporation into or merger with another system, identify the successor 
system in the deletion notice.



Sec. 701.108  Collecting information about individuals.

    (a) Collecting directly from the individual. To the greatest extent 
practicable, collect information for systems of records directly from 
the individual to whom the record pertains if the record may be used to 
make an adverse determination about the individual's rights, benefits, 
or privileges under the Federal programs.
    (b) Collecting information about individuals from third persons. It 
might not always be practical to collect all information about an 
individual directly from that person, such as verifying information 
through other sources for security or employment suitability 
determinations; seeking other opinions, such as a supervisor's comments 
on past performance or other evaluations; obtaining the necessary 
information directly from the individual would be exceptionally 
difficult or would result in unreasonable costs or delays; or, the 
individual requests or consents to contacting another person to obtain 
the information.
    (c) Soliciting the social security number (SSN). (1) It is unlawful 
for any Federal, State, or local government agency to deny an individual 
a right, benefit, or privilege provided by law because the individual 
refuses to provide his or her SSN. However, this prohibition does not 
apply if a Federal law requires that the SSN be provided, or the SSN is 
required by a law or regulation adopted before January 1, 1975, to 
verify the individual's identity for a system of records established and 
in use before that date.
    (2) Before requesting an individual to provide the SSN, the 
individual must be advised whether providing the SSN is mandatory or 
voluntary; by what law or other authority the SSN is solicited; and what 
uses will be made of the SSN.
    (3) The preceding advice relates only to the SSN. If other 
information about the individual is solicited for a system of records, a 
Privacy Act statement (PAS) also must be provided to him/her.
    (4) The notice published in the Federal Register for each system of 
records containing SSNs solicited from individuals must indicate the 
authority for soliciting the SSNs and whether it is mandatory for the 
individuals to provide their SSNs. E.O. 9397 requires federal agencies 
to use SSNs as numerical identifiers for individuals in most federal 
records systems, however, it does not make it mandatory for individuals 
to provide their SSNs.
    (5) When entering military service or civilian employment with the 
Department of the Navy, individuals must provide their SSNs. This is 
then the individual's numerical identifier and is used to establish 
personnel, financial, medical, and other official records (as authorized 
by E.O. 9397). The individuals must be given the notification described 
above. Once the individual has provided his or her SSN to establish the 
records, a notification is not required when the SSN is requested only 
for identification or to locate the records.
    (6) The Federal Personnel Manual \8\ must be consulted when 
soliciting SSNs for use in systems of records maintained by the Office 
of Personnel Management.
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    \8\ Copies may be obtained: Office of Personnel Management, 1900 E 
Street, Washington, DC 20415.

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[[Page 105]]

    (7) A Department of the Navy activity may request an individual's 
SSN even though it is not required by Federal statute, or is not for a 
system of records in existence and operating prior to January 1, 1975. 
However, the separate Privacy Act Statement for the SSN, alone, or a 
merged Privacy Act Statement covering both the SSN and other items of 
personal information, must make clear that disclosure of the number is 
voluntary. If the individual refuses to disclose his or her SSN, the 
activity must be prepared to identify the individual by alternate means.
    (d) Contents of Privacy Act Statement. (1) When an individual is 
requested to furnish information about himself/herself for a system of 
records, a Privacy Act Statement must be provided to the individual, 
regardless of the method used to collect the information (i.e., forms, 
personal or telephonic interview, etc). If the information requested 
will not be included in a system of records, a Privacy Act Statement is 
not required.
    (2) The Privacy Act Statement shall include the following:
    (i) The Federal law or E.O. that authorizes collecting the 
information (i.e., E.O. 9397 authorizes collection of SSNs);
    (ii) Whether or not it is mandatory for the individual to provide 
the requested information (It is only mandatory when a Federal law or 
E.O. of the President specifically imposes a requirement to furnish the 
information and provides a penalty for failure to do so. If furnishing 
information is a condition for granting a benefit or privilege 
voluntarily sought by the individual, it is voluntary for the individual 
to give the information.);
    (iii) The principle purposes for collecting the information;
    (iv) The routine uses that will be made of the information (i.e., to 
whom and why it will be disclosed outside the Department of Defense); 
and
    (v) The possible effects on the individual if the requested 
information is not provided.
    (3) The Privacy Act Statement must appear on the form used to 
collect the information or on a separate form that can be retained by 
the individual collecting the information. If the information is 
collected by means other than a form completed by the individual, i.e., 
solicited over the telephone, the Privacy Act Statement should be read 
to the individual and if requested by the individual, a copy sent to 
him/her. There is no requirement that the individual sign the Privacy 
Act Statement.
    (e) Format for Privacy Act Statement. When forms are used to collect 
information about individuals for a system of records, the Privacy Act 
Statement shall appear as follows (listed in the order of preference):
    (1) Immediately below the title of the form,
    (2) Elsewhere on the front page of the form (clearly indicating it 
is the Privacy Act Statement),
    (3) On the back of the form with a notation of its location below 
the title of the form, or
    (4) On a separate form which the individual may keep.



Sec. 701.109  Access to records.

    (a) Individual access to records. (1) Right of access. Only 
individuals who are subjects of records maintained in systems of records 
and by whose personal identifiers the records are retrieved have the 
right of individual access under this subpart and subpart G of this 
part, unless they provide written authorization for their representative 
to act on their behalf. Legal guardians or parents acting on behalf of a 
minor child also have the right of individual access under this subpart 
and subpart G of this part.
    (2) Notification of record's existence. Each naval activity shall 
establish procedures for notifying an individual, in response to his or 
her request, if a system of records identified by him/her contains a 
record pertaining to the individual.
    (3) Individual request for access. Individuals shall address 
requests for access to records in systems of records to the system 
manager or the office designated in the Department of the Navy 
compilation of system notices (periodic Chief of Naval Operations Notes 
(OPNAVNOTEs) 5211, ``Current Privacy Act Issuances'').
    (4) Verifying identity. (i) An individual shall provide reasonable 
verification of

[[Page 106]]

identity before obtaining access to records.
    (ii) When requesting records in writing, naval activities may not 
insist that a requester submit a notarized signature. The courts have 
ruled that an alternative method of verifying identity must be 
established for individuals who do not have access to notary services. 
This alternative permits requesters to provide an unsworn declaration 
that states ``I declare under perjury or penalty under the laws of the 
United States of America that the foregoing is true and correct.''
    (iii) When an individual seeks access in person, identification can 
be verified by documents normally carried by the individual (i.e., 
identification card, driver's license, or other license, permit or pass 
normally used for identification purposes).
    (iv) When access is requested other than in writing, identity may be 
verified by the individual's providing minimum identifying data such as 
full name, date and place of birth, or other information necessary to 
locate the record sought. If the information sought is sensitive, 
additional identifying data may be required. Telephonic requests should 
not be honored.
    (v) Allow an individual to be accompanied by a person of his or her 
choice when viewing the record; however, require the individual to 
provide written authorization to have the record discussed in front of 
the other person.
    (vi) Do not deny access to an individual who is the subject of the 
record solely for refusing to divulge his or her SSN, unless it is the 
only means of retrieving the record or verifying identity.
    (vii) Do not require the individual to explain why he or she is 
seeking access to a record under this subpart and subpart G of this 
part.
    (viii) Only a designated denial authority may deny access. The 
denial must be in writing and contain the information required by 
paragraph (d) of this section.
    (5) Blanket requests not honored. Do not honor requests from 
individuals for notification and/or access concerning all Department of 
the Navy systems of records. In these instances, notify the individual 
that requests for notification and/or access must be directed to the 
appropriate system manager for the particular record system being 
requested, as indicated in the periodic Chief of Naval Operations Notes 
(OPNAVNOTEs) 5211, ``Current Privacy Act Issuances''; and the request 
must either designate the particular system of records to be searched, 
or provide sufficient information for the system manager to identify the 
appropriate system. Also, provide the individual with any other 
information needed for obtaining consideration of his or her request.
    (6) Granting individual access to records. (i) Grant the individual 
access to the original record (or exact copy) without any changes or 
deletions, other than those made in accordance with Sec. 701.113.
    (ii) Grant the individual's request for an exact copy of the record, 
upon the signed authorization of the individual, and provide a copy to 
anyone designated by the individual. In either case, the copying fees 
may be assessed to the individual pursuant to Sec. 701.109(b).
    (iii) If requested, explain any record or portion of a record that 
is not understood, as well as any changes or deletions.
    (7) Illegible or incomplete records. Do not deny an individual 
access solely because the physical condition or format of the record 
does not make it readily available (i.e., when the record is in a 
deteriorated state or on magnetic tape). Either prepare an extract or 
recopy the document exactly.
    (8) Access by parents and legal guardians. (i) The parent of any 
minor, or the legal guardian of any individual declared by a court of 
competent jurisdiction to be incompetent due to physical or mental 
incapacity or age, may obtain access to the record of the minor or 
incompetent individual if the parent or legal guardian is acting on 
behalf or for the benefit of the minor or incompetent. However, with 
respect to access by parents and legal guardians to medical records and 
medical determinations about minors, use the following procedures:
    (A) In the United States, the laws of the state where the records 
are located

[[Page 107]]

might afford special protection to certain medical records (i.e., drug 
and alcohol abuse treatment, and psychiatric records). The state 
statutes might apply even if the records are maintained by a naval 
medical facility.
    (B) For installations located outside the U.S., the parent or legal 
guardian of a minor shall be denied access if all four of the following 
conditions are met:
    (1) The minor at the time of the treatment or consultation was 15, 
16, or 17 years old;
    (2) The treatment or consultation was within a program authorized by 
law or regulation to provide confidentiality to the minor;
    (3) The minor indicated a desire that the treatment or consultation 
record be handled in confidence and not disclosed to a parent or 
guardian; and
    (4) The parent or legal guardian does not have the written 
authorization of the minor or a valid court order granting access.
    (ii) A minor or incompetent has the same right of access as any 
other individual under this subpart and subpart G of this part. The 
right of access of the parent or legal guardian is in addition to that 
of the minor or incompetent.
    (9) Access to information compiled in reasonable anticipation of a 
civil proceeding. (i) An individual is not entitled under this subpart 
and subpart G of this part to access information compiled in reasonable 
anticipation of a civil action or proceeding.
    (ii) The term ``civil action or proceeding'' includes quasi-judicial 
and pre-trial judicial proceedings, as well as formal litigation.
    (iii) Paragraphs (a)(9)(i) and (ii) of this section do not prohibit 
access to records compiled or used for purposes other than litigation, 
nor prohibit access to systems of records solely because they are 
frequently subject to litigation. The information must have been 
compiled for the primary purpose of litigation.
    (10) Personal notes or records not under the control of the 
Department of the Navy. (i) Certain documents under the control of a 
Department of the Navy employee and used to assist him/her in performing 
official functions are not considered Department of the Navy records 
within the meaning of this subpart and subpart G of this part. These 
documents are not systems of records that are subject to this subpart 
and subpart G of this part, if they are:
    (A) Maintained and discarded solely at the discretion of the author;
    (B) Created only for the author's personal convenience;
    (C) Not the result of official direction or encouragement, whether 
oral or written; and
    (D) Not shown to other persons for any reason or filed in agency 
files.
    (ii) [Reserved]
    (11) Relationship between the Privacy Act and FOIA. In some 
instances, individuals requesting access to records pertaining to 
themselves may not know which Act to cite as the appropriate statutory 
authority. The following guidelines are to ensure that the individuals 
receive the greatest degree of access under both Acts:
    (i) Access requests that specifically state or reasonably imply that 
they are made under 5 U.S.C. 552 (1988) as amended by the Freedom of 
Information Reform Act of 1986, are processed under Secretary of the 
Navy Instruction 5720.42F, ``Department of the Navy Freedom of 
Information Act Program.''
    (ii) Access requests that specifically state or reasonably imply 
that they are made under 5 U.S.C. 552a are processed under this subpart 
and subpart G of this part.
    (iii) Access requests that cite both 5 U.S.C. 552a, as amended by 
the Computer Matching Act of 1988 and 5 U.S.C. 552 (1988) as amended by 
the Freedom of Information Reform Act are processed under the Act that 
provides the greater degree of access. Inform the requester which 
instruction was used in granting or denying access.
    (iv) Do not penalize the individual access to his or her records 
otherwise releasable under 5 U.S.C. 552a and periodic Chief of Naval 
Operations Notes (OPNAVNOTEs) 5211, ``Current Privacy Act Issuances'', 
simply because he or she failed to cite the appropriate statute or 
instruction.
    (12) Time limits. Acknowledge requests for access made under Privacy 
Act or this subpart and subpart G of this part within 10 working days 
after receipt,

[[Page 108]]

and advise the requester of your decision to grant/deny access within 30 
working days.
    (b) Reproduction fees. Normally, only one copy of any record or 
document will be provided. Checks or money orders for fees should be 
made payable to the Treasurer of the United States and deposited to the 
miscellaneous receipts of the treasury account maintained at the finance 
office servicing the activity.
    (1) Fee schedules shall include only the direct cost of reproduction 
and shall not include costs of:
    (i) Time or effort devoted to searching for or reviewing the record 
by naval personnel;
    (ii) Fees not associated with the actual cost of reproduction;
    (iii) Producing a copy when it must be provided to the individual 
without cost under another regulation, directive, or law;
    (iv) Normal postage;
    (v) Transportation of records or personnel; or
    (vi) Producing a copy when the individual has requested only to 
review the record and has not requested a copy to keep, and the only 
means of allowing review is to make a copy (e.g., the record is stored 
in a computer and a copy must be printed to provide individual access, 
or the naval activity does not wish to surrender temporarily the 
original record for the individual to review).
    (2) Fee schedules.
    (i) Office copy (per page)............$.10
    (ii) Microfiche (per fiche)............$.25
    (3) Fee waivers. Waive fees automatically if the direct cost of 
reproduction is less than $15, unless the individual is seeking an 
obvious extension or duplication of a previous request for which he or 
she was granted a waiver. Decisions to waive or reduce fees that exceed 
$15 are made on a case-by-case basis.
    (c) Denying individual access. (1) Deny the record subject access to 
requested record only if it was compiled in reasonable anticipation of a 
civil action or proceeding or is in a system of records that has been 
exempt from the access provisions of Sec. 701.113.
    (2) Deny the individual access only to those portions of the record 
for which the denial will serve a legitimate government purpose. An 
individual may be refused access for failure to comply with established 
procedural requirements, but must be told the specific reason for the 
refusal and the proper access procedures.
    (3) Deny the individual access to his or her medical and 
psychological records if it is determined that access could have an 
adverse affect on the mental or physical health of the individual. This 
determination normally should be made in consultation with a medical 
practitioner. If it is medically indicated that access could have an 
adverse mental or physical effect on the individual, provide the record 
to a medical practitioner named by the individual, along with an 
explanation of why access without medical supervision could be harmful 
to the individual. In any case, do not require the named medical 
practitioner to request the record for the individual. If, however, the 
individual refuses or fails to designate a medical practitioner, access 
shall be refused. The refusal is not considered a denial for reporting 
purposes under the Privacy Act.
    (d) Notifying the individual. Written denial of access must be given 
to the individual. The denial letter shall include:
    (1) The name, title, and signature of a designated denial authority;
    (2) The date of the denial;
    (3) The specific reason for the denial, citing the appropriate 
subsections of 5 U.S.C. 552a or this subpart and subpart G of this part 
authorizing the denial;
    (4) The individual's right to appeal the denial within 60 calendar 
days of the date the notice is mailed; and
    (5) The title and address of the review authority.



Sec. 701.110  Amendment of records.

    (a) Individual review and amendment. Encourage individuals to review 
periodically, the information maintained about them in systems of 
records, and to avail themselves of the amendment procedures established 
by this subpart and subpart G of this part.
    (1) Right to amend. An individual may request to amend any record 
retrieved by his or her personal identifier from a system of records, 
unless the system

[[Page 109]]

has been exempt from the amendment procedures under this subpart. 
Amendments under this subpart and subpart G of this part are limited to 
correcting factual matters, not matters of opinion (i.e., information 
contained in evaluations of promotion potential or performance 
appraisals). When records sought to be amended are covered by another 
issuance, the administrative procedures under that issuance must be 
exhausted before using the Privacy Act. In other words, the Privacy Act 
may not be used to avoid the administrative procedures required by the 
issuance actually covering the records in question.
    (2) In writing. Amendment requests shall be in writing, except for 
routine administrative changes, such as change of address.
    (3) Content of amendment request. An amendment request must include 
a description of the information to be amended; the reason for the 
amendment; the type of amendment action sought (i.e., deletion, 
correction, or addition); and copies of available documentary evidence 
supporting the request.
    (b) Burden of proof. The individual must provide adequate support 
for the request.
    (c) Verifying identity. The individual may be required to provide 
identification to prevent the inadvertent or intentional amendment of 
another's record. Use the verification guidelines provided in 
Sec. 701.109(a)(4).
    (d) Limits on amending judicial and quasi-judicial evidence and 
findings. This subpart and subpart G of this part do not permit the 
alteration of evidence presented in the course of judicial or quasi-
judicial proceedings. Amendments to such records must be made in 
accordance with procedures established for such proceedings. This 
subpart and subpart G of this part do not permit a collateral attack on 
a judicial or quasi-judicial finding; however, this subpart and subpart 
G of this part may be used to challenge the accuracy of recording the 
finding in a system of records.
    (e) Standards for amendment request determinations. The record which 
the individual requests to be amended must meet the recordkeeping 
standards established in Sec. 701.105. The record must be accurate, 
relevant, timely, complete, and necessary. If the record in its present 
state does not meet each of the criteria, grant the amendment request to 
the extent necessary to meet them.
    (f) Time limits. Within 10 working days of receiving an amendment 
request, the systems manager shall provide the individual a written 
acknowledgement of the request. If action on the amendment request is 
completed within the 10 working days and the individual is so informed, 
no separate acknowledgment is necessary. The acknowledgment must clearly 
identify the request and advise the individual when to expect 
notification of the completed action. Only under exceptional 
circumstances should more than 30 working days be required to complete 
the action on an amendment request.
    (g) Granting an amendment request in whole or in part--(1) Notify 
the requester. To the extent the amendment request is granted, the 
systems manager shall notify the individual and make the appropriate 
amendment.
    (2) Notify previous recipients. Notify all previous recipients of 
the information (as reflected in the disclosure accounting record) that 
the amendment has been made and provide each a copy of the amended 
record. Recipients who are known to be no longer retaining the record 
need not be advised of the amendment. If it is known that other naval 
activities, DoD components, or Federal agencies have been provided the 
information that now requires amendment, or if the individual requests 
that these agencies be notified, provide the notification of amendment 
even if those activities or agencies are not listed on the disclosure 
accounting form.
    (h) Denying an amendment request in whole or in part. If the 
amendment request is denied in whole or in part, promptly notify the 
individual in writing. Include in the notification to the individual the 
following:
    (1) Those sections of 5 U.S.C. 552a or this subpart and subpart G of 
this part upon which the denial is based;
    (2) His or her right to appeal to the head of the activity for an 
independent review of the initial denial;

[[Page 110]]

    (3) The procedures for requesting an appeal, including the title and 
address of the official to whom the appeal should be sent; and
    (4) Where the individual can receive assistance in filing the 
appeal.
    (i) Requests for amending OPM records. The records in an OPM 
government-wide system of records are only temporarily in the custody of 
naval activities. Requests for amendment of these records must be 
processed in accordance with OPM Regulations and the Federal Personnel 
Manual. The denial authority may deny a request, but all denials are 
subject to review by the Assistant Director for Workforce Information, 
Personnel Systems Oversight Group, Office of Personnel Management, 1900 
E Street, NW, Washington, DC 20415.
    (j) Individual's statement of disagreement. (1) If the review 
authority refuses to amend the record as requested, the individual may 
submit a concise statement of disagreement listing the reasons for 
disagreeing with the refusal to amend.
    (2) If possible, incorporate the statement of disagreement into the 
record. If that is not possible, annotate the record to reflect that the 
statement was filed and maintain the statement so that it can be readily 
obtained when the disputed information is used or disclosed.
    (3) Furnish copies of the statement of disagreement to all 
individuals listed on the disclosure accounting form (except those known 
to be no longer retaining the record), as well as to all other known 
holders of copies of the record.
    (4) Whenever the disputed information is disclosed for any purpose, 
ensure that the statement of disagreement also is used or disclosed.
    (k) Department of the Navy statement of reasons. (1) If the 
individual files a statement of disagreement, the naval activity may 
file a statement of reasons containing a concise summary of the 
activity's reasons for denying the amendment request.
    (2) The statement of reasons shall contain only those reasons given 
to the individual by the appellate official and shall not contain any 
comments on the individual's statement of disagreement.
    (3) At the discretion of the naval activity, the statement of 
reasons may be disclosed to those individuals, activities, and agencies 
that receive the statement of disagreement.



Sec. 701.111  Privacy Act appeals.

    (a) How to file an appeal. The following guidelines shall be 
followed by individuals wishing to appeal a denial of notification, 
access, or amendment of records.
    (1) The appeal must be received by the cognizant review authority 
(i.e., ASN (MRA), NJAG, OGC, or OPM) within 60 calendar days of the date 
of the response.
    (2) The appeal must be in writing and requesters should provide a 
copy of the denial letter and a statement of their reasons for seeking 
review.
    (b) Time of receipt. The time limits for responding to an appeal 
commence when the appeal reaches the office of the review authority 
having jurisdiction over the record. Misdirected appeals should be 
referred expeditiously to the proper review authority.
    (c) Review authorities. ASN (MRA), NJAG, and OGC are authorized to 
adjudicate appeals made to SECNAV. NJAG and OGC are further authorized 
to delegate this authority to a designated Assistant NJAG and the 
Principal Deputy General or Deputy General Counsel, respectively, under 
such terms and conditions as they deem appropriate.
    (1) If the record is from a civilian Official Personnel Folder or is 
contained on any other OPM forms, send the appeal to the Assistant 
Director for Workforce Information, Personnel Systems and Oversight 
Group, Office of Personnel Management, 1900 E Street, NW, Washington, DC 
20415. Records in all systems of records maintained in accordance with 
the OPM government-wide systems notices are only in the temporary 
custody of the Department of the Navy.
    (2) If the record pertains to the employment of a present or former 
Navy and Marine Corps civilian employee, such as Navy or Marine Corps 
civilian personnel records or an employee's grievance or appeal file, to 
the General Counsel, Navy Department, 720 Kennon

[[Page 111]]

Street, SE, Washington Navy Yard, Building 36, Washington, DC 20374-
5012.
    (3) If the record pertains to a present or former military member's 
fitness reports or performance evaluations to the Assistant Secretary of 
the Navy (Manpower and Reserve Affairs), Navy Department, Washington, DC 
20350-1000.
    (4) All other records dealing with present or former military 
members to the Judge Advocate General, Navy Department, 1322 Patterson 
Avenue, SE, Suite 3000, Washington Navy Yard, Washington, DC 20374-5066.
    (d) Appeal procedures. (1) If the appeal is granted, the review 
authority shall advise the individual that his or her appeal has been 
granted and provide access to the record being sought.
    (2) If the appeal is denied totally or in part, the appellate 
authority shall advise the reason(s) for denying the appeal, citing the 
appropriate subsections of 5 U.S.C. 552a or this subpart and subpart G 
of this part that apply; the date of the appeal determination; the name, 
title, and signature of the appellate authority; and a statement 
informing the requester of his or her right to seek judicial relief in 
the Federal District Court.
    (e) Final action, time limits and documentation. (1) The written 
appeal notification granting or denying access is the final naval 
activity action on the initial request for access.
    (2) All appeals shall be processed within 30 working days of 
receipt, unless the appellate authority finds that an adequate review 
cannot be completed within that period. If additional time is needed, 
notify the applicant in writing, explaining the reason for the delay and 
when the appeal will be completed.
    (f) Denial of appeal by activity's failure to act. An individual may 
consider his or her appeal denied if the appellate authority fails to:
    (1) Take final action on the appeal within 30 working days of 
receipt when no extension of time notice was given; or
    (2) Take final action within the period established by the notice to 
the appellate authority of the need for an extension of time to complete 
action on the appeal.



Sec. 701.112  Disclosure of records.

    (a) Conditions of disclosure. (1) 5 U.S.C. 552a prohibits an agency 
from disclosing any record contained in a system of records to any 
person or agency, except when the record subject gives written consent 
for the disclosure or when one of the 12 conditions listed below in this 
subsection applies.
    (2) Except for disclosures made under 5 U.S.C. 552 (1988) as amended 
by the Freedom of Information Reform Act of 1986 and Secretary of the 
Navy Instruction 5720.42F, ``Department of the Navy Freedom of 
Information Act Program,'' before disclosing any record from a system of 
records to any recipient other than a Federal agency, make reasonable 
efforts to ensure the record is accurate, relevant, timely, and complete 
for Department of the Navy purposes. Records discovered to have been 
improperly filed in the system of records should be removed before 
disclosure.
    (i) If validation cannot be obtained from the record itself, the 
naval activity may contact the record subject (if reasonably available) 
to verify the accuracy, timeliness, completeness, and relevancy of the 
information.
    (ii) If validation cannot be obtained from the record and the record 
subject is not reasonably available, advise the recipient that the 
information is believed to be valid as of a specific date and reveal any 
factors bearing on the validity of the information.
    (b) Nonconsensual disclosures. 5 U.S.C. 552a provides 12 instances 
when a record in a system of records may be disclosed without the 
written consent of the record subject:
    (1) Disclosures within the Department of Defense. For purposes of 
disclosing records, the Department of Defense is considered a single 
agency; hence, a record may be disclosed to any officer or employee in 
the Department of Defense (including private contractor personnel who 
are engaged to perform services needed in connection with the operation 
of a system of records for a DoD component), who have a need for the 
record in the performance of their duties, provided this use is 
compatible with the purpose for which the record is maintained. This 
provision is based on the ``need to know'' concept.

[[Page 112]]

    (i) For example, this may include disclosure to personnel managers, 
review boards, discipline officers, courts-martial personnel, medical 
officers, investigating officers, and representatives of the Judge 
Advocate General, Auditor General, Naval Inspector General, or the Naval 
Investigative Service, who require the information in order to discharge 
their official duties. Examples of personnel outside the Department of 
the Navy who may be included are: Personnel of the Joint Staff, Armed 
Forces Entrance and Examining Stations, Defense Investigative Service, 
or the other military departments, who require the information in order 
to discharge an official duty.
    (ii) It may also include the transfer of records between naval 
components and non-DoD agencies in connection with the Personnel 
Exchange Program (PEP) and interagency support agreements. Disclosure 
accountings are not required for intra-agency disclosure and disclosures 
made in connection with interagency support agreements or the PEP. 
Although some disclosures authorized by this paragraph might also meet 
the criteria for disclosure under other exceptions specified in the 
following paragraphs of this section, they should be treated under this 
paragraph for disclosure accounting purposes.
    (2) Disclosures required by the FOIA. (i) A record must be disclosed 
if required by 5 U.S.C. 552 (1988) as amended by the Freedom of 
Information Reform Act of 1986, which is implemented by Secretary of the 
Navy Instruction 5720.42F, ``Department of the Navy Freedom of 
Information Act Program.''
    (ii) 5 U.S.C. 552 (1988) as amended by the Freedom of Information 
Reform Act of 1986 and Secretary of the Navy Instruction 5720.42F, 
``Department of the Navy Freedom of Information Act Program'' require 
that records be made available to any person requesting them in writing, 
unless the record is exempt from disclosure under one of the nine FOIA 
exemptions. Therefore, if a record is not exempt from disclosure, it 
must be provided to the requester.
    (iii) Certain records, such as personnel, medical, and similar 
files, are exempt from disclosure under exemption (b)(6) of 5 U.S.C. 552 
(1988) as amended by the Freedom of Information Act Reform Act of 1986. 
Under that exemption, disclosure of information pertaining to an 
individual can be denied only when the disclosure would be a clearly 
unwarranted invasion of personal privacy. The first step is to determine 
whether a viable personal privacy interest exists in these records 
involving an identifiable living person. The second step is to consider 
how disclosure would benefit the general public in light of the content 
and context of the information in question. The third step is to 
determine whether the identified public interests qualify for 
consideration. The fourth step is to balance the personal privacy 
interests against the qualifying public interest. Numerous factors must 
be considered such as: The nature of the information to be disclosed 
(i.e., Do individuals normally have an expectation of privacy in the 
type of information to be disclosed?); importance of the public interest 
served by the disclosure and probability of further disclosure which may 
result in an unwarranted invasion of privacy; relationship of the 
requester to the public interest being served; newsworthiness of the 
individual to whom the information pertains (i.e., high ranking officer, 
public figure); degree of sensitivity of the information from the 
standpoint of the individual or the individual's family, and its 
potential for being misused to the harm, embarrassment, or inconvenience 
of the individual or the individual's family; the passage of time since 
the event which is the topic of the record (i.e., to disclose that an 
individual has been arrested and is being held for trial by court-
martial is normally permitted, while to disclose an arrest which did not 
result in conviction might not be permitted after the passage of time); 
and the degree to which the information is already in the public domain 
or is already known by the particular requester.
    (iv) Records or information from investigatory records, including 
personnel security investigatory records, are exempt from disclosure 
under the broader standard of ``an unwarranted invasion of personal 
privacy'' found in exemption (b)(7)(C) of 5 U.S.C. 552. This

[[Page 113]]

broader standard applies only to records or information compiled for law 
enforcement purposes.
    (v) A disclosure under 5 U.S.C. 552 about military members must be 
in accordance with Secretary of the Navy Instruction 5720.42F, 
``Department of the Navy Freedom of Information Act Program'', but the 
following information normally may be disclosed from military personnel 
records (except for those personnel assigned to sensitive or routinely 
deployable units, or located in a foreign territory), without a clearly 
unwarranted invasion of personal privacy: Full name, rank, date of rank, 
base pay, past duty stations, present duty station and future duty 
station (if finalized), unless the stations have been determined by the 
Department of the Navy to be sensitive, routinely deployable, or located 
in a foreign territory, office or duty telephone number, source of 
commission, promotion sequence number, awards and decorations, 
attendance at professional military schools, and duty status at any 
given time.
    (vi) The following information normally may be disclosed from 
civilian employee records about CONUS employees: Full name, present and 
past position titles and occupational series, present and past grades, 
present and past annual salary rates (including performance awards or 
bonuses, incentive awards, merit pay amount, Meritorious and 
Distinguished Executive Ranks, and allowances and differentials), past 
duty stations, present duty station and future duty station (if 
finalized), including room numbers, shop designations, or other 
identifying information regarding buildings or places of employment, 
unless the duty stations have been determined by the Department of the 
Navy to be sensitive, routinely deployable, or located in a foreign 
territory, position descriptions, identification of job elements, and 
those performance standards (but not actual performance appraisals) that 
the disclosure of which would not interfere with law enforcement 
programs or severely inhibit Department of the Navy effectiveness.
    (viii) Disclosure of home addresses and home telephone numbers 
normally is considered a clearly unwarranted invasion of personal 
privacy and is prohibited. However, they may be disclosed if the 
individual has consented to the disclosure; the disclosure is required 
by the FOIA; the disclosure is required by another law, such as 42 
U.S.C. 653, which provides assistance to states in locating parents who 
have defaulted on child support payments, or the collection of alimony, 
and to state and local tax authorities for the purpose of enforcing tax 
laws. However, care must be taken prior to release to ensure that a 
written record is prepared to document the reasons for the release 
determination.
    (A) When compiling home addresses and telephone numbers, the 
individual may be offered the option of authorizing disclosure of the 
information without further consent for specific purposes, such as 
locator services. In that case, the information may be disclosed for the 
stated purpose without further consent. If the information is to be 
disclosed for any other purpose, a signed consent permitting the 
additional disclosure must be obtained from the individual.
    (B) Before listing home addresses and telephone numbers in 
Department of the Navy telephone directories, give the individual the 
opportunity to refuse such a listing. If the individual requests that 
the home address or telephone number not be listed in the directory, do 
not assess any additional fee associated with maintaining an unlisted 
number for government-owned telephone services.
    (C) The sale or rental of lists of names and addresses is prohibited 
unless such action is specifically authorized by Federal law. This does 
not prohibit the disclosure of names and addresses made under Secretary 
of the Navy Instruction 5720.42F, ``Department of the Navy Freedom of 
Information Act Program.''
    (D) In response to FOIA requests, information concerning special and 
general courts-martial results (e.g., records of trial) are releasable. 
However, information regarding summary courts-martial and non-judicial 
punishment are generally not releasable. The balancing of interests must 
be done. It

[[Page 114]]

is possible that in a particular case, information regarding non-
judicial punishment should be disclosed pursuant to a FOIA request 
(i.e., the facts leading to a nonjudicial punishment are particularly 
newsworthy or the case involves a senior official abusing the public 
trust through office-related misconduct, such as embezzlement). 
Announcement of nonjudicial punishment dispositions under JAGMAN, 
subsection 0107, is a proper exercise of command authority and not a 
release of information under FOIA or this subpart and subpart G of this 
part. Exceptions to this policy must be coordinated with CNO (N09B30) or 
CMC (ARAD) prior to responding to requesters, including all requests for 
this type of information from members of Congress.
    (3) Disclosures for established routine uses. (i) Records may be 
disclosed outside the Department of the Navy if the disclosure is for an 
established routine use.
    (ii) A routine use shall:
    (A) Be compatible with and related to the purpose for which the 
record was created;
    (B) Identify the persons or organizations to whom the record may be 
disclosed;
    (C) Identify specifically the uses for which the information may be 
employed by the receiving person or organization; and
    (D) Have been published previously in the Federal Register.
    (iii) A routine use shall be established for each user of the 
information outside the Department of the Navy who needs the information 
for an official purpose.
    (iv) Routine uses may be established, discontinued, or amended 
without the consent of the individuals to whom the records pertain. 
However, new and amended routine uses must be published in the Federal 
Register at least 30 days before the information may be disclosed under 
their provisions.
    (v) In addition to the routine uses established by the Department of 
the Navy for each system of records, common ``Blanket Routine Uses,'' 
applicable to all record systems maintained with the Department of the 
Navy, have been established. These ``Blanket Routine Uses'' are 
published at the beginning of the Department of the Navy's Federal 
Register compilation of record systems notices rather than at each 
system notice and are also reflected in periodic Chief of Naval 
Operations Notes (OPNAVNOTEs) 5211, ``Current Privacy Act Issuances.'' 
Unless a system notice specifically excludes a system of records from a 
``Blanket Routine Use,'' all ``Blanket Routine Uses'' apply to that 
system.
    (vi) If the recipient has not been identified in the Federal 
Register or if the recipient, though identified, intends to employ the 
information for a purpose not published in the Federal Register, the 
written consent of the individual is required before the disclosure can 
be made.
    (4) Disclosures to the Bureau of the Census. Records may be 
disclosed to the Bureau of the Census for purposes of planning or 
carrying out a census, survey, or related activities authorized by 13 
U.S.C. 8.
    (5) Disclosures for statistical research or reporting. Records may 
be disclosed to a recipient for statistical research or reporting if:
    (i) Prior to the disclosure, the recipient has provided adequate 
written assurance that the records shall be used solely for statistical 
research or reporting; and
    (ii) The records are transferred in a form that does not identify 
individuals.
    (6) Disclosures to the National Archives and Records Administration. 
(i) Records may be disclosed to the National Archives and Records 
Administration for evaluation to determine whether the records have 
sufficient historical or other value to warrant preservation by the 
Federal government. If preservation is warranted, the records will be 
retained by the National Archives and Record Administration, which 
becomes the official owner of the records.
    (ii) Records may be disclosed to the National Archives and Records 
Administration to carry out records management inspections required by 
Federal law.
    (iii) Records transferred to a Federal Records Center operated by 
the National Archives and Records Administration for storage are not 
within this

[[Page 115]]

category. Those records continue to be maintained and controlled by the 
transferring naval activity. The Federal Records Center is considered 
the agent of Department of the Navy and the disclosure is made under 
paragraph (b)(1) of this section.
    (7) Disclosures when requested for law enforcement purposes. (i) A 
record may be disclosed to another agency or an instrumentality of any 
governmental jurisdiction within or under the control of the U.S. for a 
civil or criminal law enforcement activity if:
    (A) The civil or criminal law enforcement activity is authorized by 
law (federal, state or local); and
    (B) The head of the agency (or his or her designee) has made a 
written request to the naval activity specifying the particular record 
or portion desired and the law enforcement purpose for which it is 
sought.
    (ii) Blanket requests for any and all records pertaining to an 
individual shall not be honored. The requesting agency must specify each 
record or portion desired and how each relates to the authorized law 
enforcement activity.
    (iii) If a naval activity discloses a record outside the Department 
of Defense for law enforcement purposes without the individual's consent 
and without an adequate written request, the disclosure must be under an 
established routine use, such as the ``Blanket Routine Use'' for law 
enforcement.
    (iv) Disclosure to foreign law enforcement agencies is not governed 
by the provisions of 5 U.S.C. 552a and this paragraph, but may be made 
only under established ``Blanket Routine Uses,'' routine uses published 
in the individual record system notice, or to other governing authority.
    (8) Disclosure to protect the health or safety of an individual. 
Disclosure may be made under emergency conditions involving 
circumstances affecting the health and safety of an individual (i.e., 
when the time required to obtain the consent of the individual to whom 
the records pertain might result in a delay which could impair the 
health or safety of a person) provided notification of the disclosure is 
sent to the record subject. Sending the notification to the last known 
address is sufficient. In instances where information is requested by 
telephone, an attempt will be made to verify the inquirer's and medical 
facility's identities and the caller's telephone number. The requested 
information, if then considered appropriate and of an emergency nature, 
may be provided by return call.
    (9) Disclosures to Congress. (i) A record may be disclosed to either 
House of Congress at the request of either the Senate or House of 
Representatives as a whole.
    (ii) A record also may be disclosed to any committee, subcommittee, 
or joint committee of Congress if the disclosure pertains to a matter 
within the legislative or investigative jurisdiction of the committee, 
subcommittee, or joint committee.
    (iii) Disclosure may not be made to a Member of Congress requesting 
in his or her individual capacity. However, for Members of Congress 
making inquiries on behalf of individuals who are subjects of records, a 
``Blanket Routine Use'' has been established to permit disclosures to 
individual Members of Congress.
    (A) When responding to a congressional inquiry made on behalf of a 
constituent by whose identifier the record is retrieved, there is no 
need to verify that the individual has authorized the disclosure to the 
Member of Congress.
    (B) The oral or written statement of a Congressional staff member is 
sufficient to establish that a request has been received from the 
individual to whom the record pertains.
    (C) If the constituent inquiry is made on behalf of an individual 
other than the record subject, provide the Member of Congress only that 
information releasable under 5 U.S.C. 552. Advise the Member of Congress 
that the written consent of the record subject is required before 
additional information may be disclosed. Do not contact the record 
subject to obtain consent for the disclosure to the Member of Congress 
unless the Congressional office specifically requests it be done.
    (10) Disclosures to the Comptroller General for the General 
Accounting Office (GAO). Records may be disclosed to the Comptroller 
General of the U.S., or authorized representative, in the course

[[Page 116]]

of the performance of the duties of the GAO.
    (11) Disclosures under court orders. (i) Records may be disclosed 
under the order of a court of competent jurisdiction.
    (ii) When a record is disclosed under this provision and the 
compulsory legal process becomes a matter of public record, make 
reasonable efforts to notify the individual to whom the record pertains. 
Notification sent to the last known address of the individual is 
sufficient. If the order has not yet become a matter of public record, 
seek to be advised as to when it will become public. Neither the 
identity or the party to whom the disclosure was made nor the purpose of 
the disclosure shall be made available to the record subject unless the 
court order has become a matter of public record.
    (iii) The court order must bear the signature of a federal, state, 
or local judge. Orders signed by court clerks or attorneys are not 
deemed to be orders of a court of competent jurisdiction. A photocopy of 
the order, regular on its face, will be sufficient evidence of the 
court's exercise of its authority of the minimal requirements of 
SECNAVINST 5820.8A,\9\ ``Release of Official Information for Litigation 
Purposes and Testimony by Department of the Navy Personnel.''
---------------------------------------------------------------------------

    \9\ Copies may be obtained: Judge Advocate General, Navy Department, 
(Code 34), 1322 Patterson Avenue, SE, Suite 3000, Washington Navy Yard, 
Washington, DC 20374-5066.
---------------------------------------------------------------------------

    (12) Disclosures to consumer reporting agencies. Certain information 
may be disclosed to consumer reporting agencies (i.e., credit reference 
companies such as TRW and Equifax, etc.) as defined by the Federal 
Claims Collection Act of 1966 (31 U.S.C. 952d). Under the provisions of 
that Act, the following information may be disclosed to a consumer 
reporting agency:
    (i) Name, address, taxpayer identification number (SSN), and other 
information necessary to establish the identity of the individual;
    (ii) The amount, status, and history of the claim; and
    (iii) The agency or program under which the claim arose. 31 U.S.C. 
952d specifically requires that the Federal Register notice for the 
system of records from which the information will be disclosed indicate 
that the information may be disclosed to a consumer reporting agency.
    (c) Disclosures to commercial enterprises. Records may be disclosed 
to commercial enterprises only under the criteria established by 
Secretary of the Navy Instruction 5720.42F and 42 U.S.C. 653, Parent 
Locator Service for Enforcement of Child Support.
    (1) Any information required to be disclosed by Secretary of the 
Navy Instruction 5720.42F and 42 U.S.C. 653, Parent Locator Service for 
Enforcement of Child Support may be disclosed to a requesting commercial 
enterprise.
    (2) Commercial enterprises may present a consent statement signed by 
the individual indicating specific conditions for disclosing information 
from a record. Statements such as the following, if signed by the 
individual, are considered sufficient to authorize the disclosure: I 
hereby authorize the Department of the Navy to verify my SSN or other 
identifying information and to disclose my home address and telephone 
number to authorized representatives of (name of commercial enterprise) 
to be used in connection with my commercial dealings with that 
enterprise. All information furnished will be used in connection with my 
financial relationship with (name of commercial enterprise).
    (3) When a consent statement as described in the preceding 
subsection is presented, provide the information to the commercial 
enterprise, unless the disclosure is prohibited by another regulation or 
Federal law.
    (4) Blanket consent statements that do not identify the Department 
of Defense or Department of the Navy, or that do not specify exactly the 
information to be disclosed, may be honored if it is clear that the 
individual, in signing the consent statement, was seeking a personal 
benefit (i.e., loan for a house or automobile) and was aware of the type 
of information necessary to obtain the benefit sought.
    (5) Do not honor requests from commercial enterprises for official 
evaluations of personal characteristics such as personal financial 
habits.

[[Page 117]]

    (d) Disclosure of health care records to the public. This paragraph 
applies to disclosure of information to the news media and the public 
concerning individuals treated or hospitalized in Department of the Navy 
medical facilities and, when the cost of care is paid by the Department 
of the Navy, in non-Federal facilities.
    (1) Disclosures without the individual's consent. Normally, the 
following information may be disclosed without the individual's consent:
    (i) Information required to be released by Secretary of the Navy 
Instruction 5720.42F and OPM Regulations and the Federal Personnel 
Manual, as well as the information listed in paragraphs (b)(2)(v) (for 
military personnel) and (b)(2) of this section.
    (ii) For civilian employees; and
    (iii) General information concerning medical conditions, i.e., date 
of admission or disposition; present medical assessment of the 
individual's condition if the medical practitioner has volunteered the 
information, i.e., the individual's condition presently is (stable) 
(good) (fair) (serious) (critical), and the patient is (conscious) 
(semi-conscious) (unconscious).
    (2) Disclosures with the individual's consent. With the individual's 
informed consent, any information about the individual may be disclosed. 
If the individual is a minor or has been declared incompetent by a court 
of competent jurisdiction, the parent of the minor or appointed legal 
guardian of the incompetent may give consent on behalf of the 
individual.
    (e) Disclosure of Personal Information on Group/Bulk Orders. Do not 
use personal information including complete SSNs, home addresses and 
phone numbers, dates of birth, etc., on group/bulk orders. This personal 
information should not be posted on lists that everyone listed on the 
orders sees. Such a disclosure of personal information violates the 
Privacy Act and this subpart and subpart G of this part.
    (f) Disclosure accounting. Keep an accurate record of all 
disclosures made from a record (including those made with the consent of 
the individual) except those made to DoD personnel for use in performing 
their official duties; and those made under the FOIA. Disclosure 
accounting is to permit the individual to determine what agencies or 
persons have been provided information from the record, enable 
Department of the Navy activities to advise prior recipients of the 
record of any subsequent amendments or statements of dispute concerning 
the record, and provide an audit trial of Department of the Navy's 
compliance with 5 U.S.C. 552a.
    (1) Disclosure accountings shall contain the date of the disclosure; 
a description of the information disclosed; the purpose of the 
disclosure; and the name and address of the person or agency to whom the 
disclosure was made.
    (2) The record subject has the right of access to the disclosure 
accounting except when the disclosure was made at the request of a civil 
or criminal law enforcement agency under paragraph (b)(7) of this 
section; or when the system of records has been exempted from the 
requirement to provide access to the disclosure accounting.
    (g) Methods of disclosure accounting. Since the characteristics of 
various records maintained within the Department of the Navy vary 
widely, no uniform method for keeping disclosure accountings is 
prescribed. The primary criteria are that the selected method be one 
which will:
    (1) Enable an individual to ascertain what persons or agencies have 
received disclosures pertaining to him/her;
    (2) Provide a basis for informing recipients of subsequent 
amendments or statements of dispute concerning the record; and
    (3) Provide a means to prove, if necessary that the activity has 
complied with the requirements of 5 U.S.C. 552a and this subpart and 
subpart G of this part.
    (h) Retention of disclosure accounting. Maintain a disclosure 
accounting of the life of the record to which the disclosure pertains, 
or 5 years after the date of the disclosure, whichever is longer. 
Disclosure accounting records are normally maintained with the record, 
as this will ensure compliance with paragraph (f) of this section.

[[Page 118]]



Sec. 701.113  Exemptions.

    (a) Using exemptions. No system of records is automatically exempt 
from all provisions of 5 U.S.C. 552a. A system of records is exempt from 
only those provisions of 5 U.S.C. 552a that are identified specifically 
in the exemption rule for the system. Subpart G of this part contains 
the systems designated as exempt, the types of exemptions claimed, the 
authority and reasons for invoking the exemptions and the provisions of 
5 U.S.C. 552a from which each system has been exempt. Exemptions are 
discretionary on the part of Department of the Navy and are not 
effective until published as a final rule in the Federal Register. The 
naval activity maintaining the system of records shall make a 
determination that the system is one for which an exemption may be 
established and then propose an exemption rule for the system. Submit 
the proposal to CNO (N09B30) for approval and publication in the Federal 
Register.
    (b) Types of exemptions. There are two types of exemptions permitted 
by 5 U.S.C. 552a.
    (1) General exemptions. Those that authorize the exemption of a 
system of records from all but specifically identified provisions of 5 
U.S.C. 552a.
    (2) Specific exemptions. Those that allow a system of records to be 
exempt from only a few designated provisions of 5 U.S.C. 552a.
    (c) Establishing exemptions. (1) 5 U.S.C. 552a authorizes the 
Secretary of the Navy to adopt rules designating eligible systems of 
records as exempt from certain requirements. The Secretary of the Navy 
has delegated the CNO (N09B30) to make a determination that the system 
is one for which an exemption may be established and then propose and 
establish an exemption rule for the system. No system of records within 
Department of the Navy shall be considered exempt until the CNO (N09B30) 
has approved the exemption and an exemption rule has been published as a 
final rule in the Federal Register. A system of records is exempt from 
only those provisions of 5 U.S.C. 552a that are identified specifically 
in the Department of the Navy exemption rule for the system.
    (2) No exemption may be established for a system of records until 
the system itself has been established by publishing a notice in the 
Federal Register, at least 30 days prior to the effective date, 
describing the system. This allows interested persons an opportunity to 
comment. An exemption may not be used to deny an individual access to 
information that he or she can obtain under Secretary of the Navy 
Instruction 5720.42F, ``Department of the Navy Freedom of Information 
Act Program.''
    (d) Exemption for classified material. All systems of records 
maintained by the Department of the Navy shall be exempt under section 
(k)(1) of 5 U.S.C. 552a, to the extent that the systems contains any 
information properly classified under E.O. 12958 and that is required by 
that E.O. to be kept secret in the interest of national defense or 
foreign policy. This exemption is applicable to parts of all systems of 
records including those not otherwise specifically designated for 
exemptions herein which contain isolated items of properly classified 
information.

    Note: Department of the Navy Privacy Act systems of records which 
contain classified information automatically qualify for a (k)(1) 
exemption, without establishing an exemption rule.

    (e) Exempt records in nonexempt systems. (1) An exemption rule 
applies to the system of records for which it was established. If a 
record from an exempt system is incorporated intentionally into a system 
that has not been exempt, the published notice and rules for the 
nonexempt system will apply to the record and it will not be exempt from 
any provisions of 5 U.S.C. 552a.
    (2) A record from one component's (i.e., Department of the Navy) 
exempted system that is temporarily in the possession of another 
component (i.e., Army) remains subject to the published system notice 
and rules of the originating component's (i.e., Department of the Navy). 
However, if the non-originating component incorporates the record into 
its own system of records, the published notice and rules for the system 
into which it is incorporated shall apply. If that system of records has 
not been exempted, the record shall

[[Page 119]]

not be exempt from any provisions of 5 U.S.C. 552a.
    (3) A record accidentally misfiled into a system of records is 
governed by the published notice and rules for the system of records in 
which it actually should have been filed.
    (f) General exemptions--(1)Central Intelligence Agency (CIA). The 
Department of the Navy is not authorized to establish an exemption for 
records maintained by the CIA under subsection (j)(1) of 5 U.S.C. 552a.
    (2) Law enforcement. (i) The general exemption provided by 
subsection (j)(2) of 5 U.S.C. 552a may be established to protect 
criminal law enforcement records maintained by Department of the Navy.
    (ii) To be eligible for the (j)(2) exemption, the system of records 
must be maintained by an element that performs, as one of its principal 
functions, the enforcement of criminal laws. The Naval Investigative 
Service, Naval Inspector General, and military police activities qualify 
for this exemption.
    (iii) Criminal law enforcement includes police efforts to detect, 
prevent, control, or reduce crime, or to apprehend criminals, and the 
activities of prosecution, court, correctional, probation, pardon, or 
parole authorities.
    (iv) Information that may be protected under the (j)(2) exemption 
includes:
    (A) Information compiled for the purpose of identifying criminal 
offenders and alleged criminal offenders consisting of only identifying 
data and notations of arrests; the nature and disposition of criminal 
charges; and sentencing, confinement, release, parole, and probation 
status;
    (B) Information compiled for the purpose of a criminal 
investigation, including reports of informants and investigators, and 
associated with an identifiable individual; and
    (C) Reports identifiable to an individual, compiled at any stage of 
the enforcement process, from arrest, apprehension, indictment, or 
preferral of charges through final release from the supervision that 
resulted from the commission of a crime.
    (v) The (j)(2) exemption does not apply to:
    (A) Investigative records maintained by a naval activity having no 
criminal law enforcement duties as one of its principle functions, or
    (B) Investigative records compiled by any element concerning 
individual's suitability, eligibility, or qualification for duty, 
employment, or access to classified information, regardless of the 
principle functions of the naval activity that compiled them.
    (vi) The (j)(2) exemption established for a system of records 
maintained by a criminal law enforcement activity cannot protect law 
enforcement records incorporated into a nonexempt system of records or 
any system of records maintained by an activity not principally tasked 
with enforcing criminal laws. All system managers, therefore, are 
cautioned to comply strictly with Department of the Navy regulations or 
instructions prohibiting or limiting the incorporation of criminal law 
enforcement records into systems other than those maintained by criminal 
law enforcement activities.
    (g) Specific exemptions. Specific exemptions permit certain 
categories of records to be exempted from specific provisions of 5 
U.S.C. 552a. Subsections (k)(1)-(k)(7) of 5 U.S.C. 552a allow exemptions 
for seven categories of records. To be eligible for a specific 
exemption, the record must meet the corresponding criteria.
    Note: Department of the Navy Privacy Act systems of records which 
contain classified information automatically qualify for a (k)(1) 
exemption, without an established exemption rule.
    (1) (k)(1) exemption: Information properly classified under 
Secretary of the Navy Instruction 5720.42F, ``Department of the Navy 
Freedom of Information Act Program'' and E.O. 12958, in the interest of 
national defense or foreign policy.
    (2) (k)(2) exemption: Investigatory information (other than that 
information within the scope of paragraph (f)(2) of this section) 
compiled for law enforcement purposes. If maintaining the information 
causes an individual to be ineligible for or denied any right, benefit, 
or privilege that he or she would otherwise be eligible for or entitled 
to under Federal law, then he or she shall be given access to the 
information, except for the information that would

[[Page 120]]

identify a confidential source (see paragraph (h) of this section, 
``confidential source''). The (k)(2) exemption, when established, allows 
limited protection on investigative records maintained for use in 
personnel and administrative actions.
    (3) (k)(3) exemption: Records maintained in connection with 
providing protective services to the President of the United States and 
other individuals under 18 U.S.C. 3056.
    (4) (k)(4) exemption: Records required by Federal law to be 
maintained and used solely as statistical records that are not used to 
make any determination about an identifiable individual, except as 
provided by 13 U.S.C. 8.
    (5) (k)(5) exemption: Investigatory material compiled solely for the 
purpose of determining suitability, eligibility, or qualifications for 
Federal civilian employment, military service, Federal contracts, or 
access to classified information, but only to the extent such material 
would reveal the identity of a confidential source (see paragraph (h) of 
this section, ``confidential source''). This exemption allows protection 
of confidential sources in background investigations, employment 
inquiries, and similar inquiries used in personnel screening to 
determine suitability, eligibility, or qualifications.
    (6) (k)(6) exemption: Testing or examination material used solely to 
determine individual qualifications for appointment or promotion in the 
Federal or military service if the disclosure would compromise the 
objectivity or fairness of the testing or examination process.
    (7) (k)(7) exemption: Evaluation material used to determine 
potential for promotion in the military services, but only to the extent 
that disclosure would reveal the identity of a confidential source (see 
paragraph (h) of this section, ``confidential source''.)
    (h) Confidential source. Promises of confidentiality are to be given 
on a limited basis and only when essential to obtain the information 
sought. Establish appropriate procedures for granting confidentiality 
and designate those categories of individuals authorized to make such 
promises.



Sec. 701.114  Enforcement actions.

    (a) Administrative remedies. An individual who alleges he or she has 
been affected adversely by a naval activity's violation of 5 U.S.C. 552a 
or this subpart and subpart G of this part shall be permitted to seek 
relief from SECNAV through proper administrative channels.
    (b) Civil court actions. After exhausting all administrative 
remedies, an individual may file suit in Federal court against a naval 
activity for any of the following acts:
    (1) Denial of an amendment request. The activity head, or his or her 
designee wrongfully refuses the individual's request for review of the 
initial denial of an amendment or, after review, wrongfully refuses to 
amend the record;
    (2) Denial of access. The activity wrongfully refuses to allow the 
individual to review the record or wrongfully denies his or her request 
for a copy of the record;
    (3) Failure to meet recordkeeping standards. The activity fails to 
maintain an individual's record with the accuracy, relevance, 
timeliness, and completeness necessary to assure fairness in any 
determination about the individual's rights, benefits, or privileges 
and, in fact, makes an adverse determination based on the record; or
    (4) Failure to comply with Privacy Act. The activity fails to comply 
with any other provision of 5 U.S.C. 552a or any rule or regulation 
promulgated under 5 U.S.C. 552a and thereby causes the individual to be 
adversely affected.
    (c) Criminal penalties. Subsection (i)(1) of 5 U.S.C. 552a 
authorizes three criminal penalties against individuals for violations 
of its provisions. All three are misdemeanors punishable by fines of 
$5,000.
    (1) Wrongful disclosure. Any member or employee of Department of the 
Navy who, by virtue of his or her employment or position, has possession 
of or access to records and willfully makes a disclosure knowing that 
disclosure is in violation of 5 U.S.C. 552a or this subpart and subpart 
G of this part.
    (2) Maintaining unauthorized records. Any member or employee of 
Department of the Navy who willfully maintains a system of records for 
which a

[[Page 121]]

notice has not been published under periodic Chief of Naval Operations 
Notes (OPNAVNOTEs) 5211, ``Current Privacy Act Issuances.''
    (3) Wrongful requesting or obtaining records. Any person who 
knowingly and willfully requests or obtains information concerning an 
individual under false pretenses.



Sec. 701.115  Computer matching program.

    (a) General. 5 U.S.C. 552a and this subpart and subpart G of this 
part are applicable to certain types of computer matching, i.e., the 
computer comparison of automated systems of records. There are two 
specific kinds of matching programs that are fully governed by 5 U.S.C. 
552a and this subpart and subpart G of this part:
    (1) Matches using records from Federal personnel or payroll systems 
of records;
    (2) Matches involving Federal benefit programs to accomplish one or 
more of the following purposes:
    (i) To determine eligibility for a Federal benefit.
    (ii) To comply with benefit program requirements.
    (iii) To effect recovery of improper payments or delinquent debts 
from current or former beneficiaries.
    (b) The record comparison must be a computerized one. Manual 
comparisons are not covered, involving records from two or more 
automated systems of records (i.e., systems of records maintained by 
Federal agencies that are subject to 5 U.S.C. 552a); or a Department of 
the Navy automated systems of records and automated records maintained 
by a non-Federal agency (i.e., State or local government or agent 
thereof). A covered computer matching program entails not only the 
actual computerized comparison, but also preparing and executing a 
written agreement between the participants, securing approval of the 
Defense Data Integrity Board, publishing a matching notice in the  
Federal Register before the match begins, ensuring that investigation 
and due process are completed, and taking ultimate action, if any.



                    Subpart G--Privacy Act Exemptions

    Authority: Pub. L. 93-579, 88 Stat. 1896 (5 U.S.C. 552a).

    Source: 65 FR 31471, May 18, 2000, unless otherwise noted.



Sec. 701.116  Purpose.

    Subparts F and G of this part contain rules promulgated by the 
Secretary of the Navy, pursuant to 5 U.S.C. 552a (j) and (k), and 
subpart F, Sec. 701.113, to exempt certain systems of Department of the 
Navy records from specified provisions of 5 U.S.C. 552a.



Sec. 701.117  Exemption for classified records.

    All systems of records maintained by the Department of the Navy 
shall be exempt from the requirements of the access provision of the 
Privacy Act (5 U.S.C. 552a(d)) under the (k)(1) exemption, to the extent 
that the system contains information properly classified under E.O. 
12958 and that is required by that E.O. to be kept secret in the 
interest of national defense or foreign policy. This exemption is 
applicable to parts of all systems of records including those not 
otherwise specifically designated for exemptions herein which contain 
isolated items of properly classified information.



Sec. 701.118  Exemptions for specific Navy record systems.

    (a) System identifier and name:
    (1) N01070-9, White House Support Program.
    (2) Exemption: (i) Information specifically authorized to be 
classified under E.O. 12958, as implemented by DoD 5200.1-R, may be 
exempt pursuant to 5 U.S.C. 552a(k)(1).
    (ii) Investigatory material compiled for law enforcement purposes 
may be exempt pursuant to 5 U.S.C. 552a(k)(2). However, if an individual 
is denied any right, privilege, or benefit for which he would otherwise 
be entitled by Federal law or for which he would otherwise be eligible, 
as a result of the maintenance of such information, the individual will 
be provided access to such information except to the extent that 
disclosure

[[Page 122]]

would reveal the identity of a confidential source.
    (iii) Records maintained in connection with providing protective 
services to the President and other individuals under 18 U.S.C. 3506, 
may be exempt pursuant to 5 U.S.C. 552a(k)(3).
    (iv) Investigatory material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for federal 
civilian employment, military service, federal contracts, or access to 
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), 
but only to the extent that such material would reveal the identity of a 
confidential source.
    (v) Portions of this system of records are exempt from the following 
subsections of the Privacy Act: (c)(3), (d), (e)(1), (e)(4) (G) through 
(I), and (f).
    (3) Authority: 5 U.S.C. 552a(k)(1), (k)(2), (k)(3), and (k)(5).
    (4) Reasons: (i) Exempted portions of this system contain 
information which has been properly classified under E.O. 12958, and 
which is required to be kept secret in the interest of national defense 
or foreign policy. Exempted portions of this system may also contain 
information considered relevant and necessary to make a determination as 
to qualifications, eligibility, or suitability for access to classified 
information, and which was obtained by providing an express or implied 
promise to the source that his or her identity would not be revealed to 
the subject of the record. Exempted portions of this system may also 
contain information collected and maintained in connection with 
providing protective services to the President and other individuals 
protected pursuant to 18 U.S.C. 3056. Exempted portions of this system 
may also contain investigative records compiled for law enforcement 
purposes, the disclosure of which could reveal the identity of sources 
who provide information under an express or implied promise of 
confidentiality, compromise investigative techniques and procedures, 
jeopardize the life or physical safety of law-enforcement personnel, or 
otherwise interfere with enforcement proceedings or adjudications.
    (ii) [Reserved]
    (b) System identifier and name:
    (1) N01131-1, Officer Selection and Appointment System.
    (2) Exemption: (i) Information specifically authorized to be 
classified under E.O. 12958, as implemented by DoD 5200.1-R, may be 
exempt pursuant to 5 U.S.C. 552a(k)(1).
    (ii) Investigatory material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for federal 
civilian employment, military service, federal contracts, or access to 
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), 
but only to the extent that such material would reveal the identity of a 
confidential source.
    (iii) Testing or examination material used solely to determine 
individual qualifications for appointment or promotion in the Federal 
service may be exempt pursuant to 5 U.S.C. 552a(k)(6), if the disclosure 
would compromise the objectivity or fairness of the test or examination 
process.
    (iv) Evaluation material used to determine potential for promotion 
in the Military Services may be exempt pursuant to 5 U.S.C. 552a(k)(7), 
but only to the extent that the disclosure of such material would reveal 
the identity of a confidential source.
    (v) Portions of this system of records are exempt from the following 
subsections of the Privacy Act: (c)(3), (d), (e)(1), (e)(4)(G) through 
(I), and (f).
    (3) Authority: 5 U.S.C. 552a(k)(1), (k)(5), (k)(6), and (k)(7).
    (4) Reasons: (i) Granting individuals access to portions of this 
system of records could result in the disclosure of classified material, 
or the identification of sources who provided information to the 
government under an express or implied promise of confidentiality. 
Material will be screened to permit access to unclassified material and 
to information that does not disclose the identity of a confidential 
source.
    (ii) [Reserved]
    (c) System identifier and name:
    (1) N01133-2, Recruiting Enlisted Selection System.
    (2) Exemption: (i) Information specifically authorized to be 
classified under E.O. 12958, as implemented by DoD 5200.1-R, may be 
exempt pursuant to 5 U.S.C. 552a(k)(1).

[[Page 123]]

    (ii) Investigatory material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for federal 
civilian employment, military service, federal contracts, or access to 
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), 
but only to the extent that such material would reveal the identity of a 
confidential source.
    (iii) Testing or examination material used solely to determine 
individual qualifications for appointment or promotion in the Federal 
service may be exempt pursuant to 5 U.S.C. 552a(k)(6), if the disclosure 
would compromise the objectivity or fairness of the test or examination 
process.
    (iv) Evaluation material used to determine potential for promotion 
in the Military Services may be exempt pursuant to 5 U.S.C. 552a(k)(7), 
but only to the extent that the disclosure of such material would reveal 
the identity of a confidential source.
    (v) Portions of this system of records are exempt from the following 
subsections of the Privacy Act: (c)(3), (d), (e)(1), (e)(4)(G) through 
(I), and (f).
    (3) Authority: 5 U.S.C. 552a(k)(1), (k)(5), (k)(6), and (k)(7).
    (4) Reasons: Granting individuals access to portions of this system 
of records could result in the disclosure of classified material, or the 
identification of sources who provided information to the government 
under an express or implied promise of confidentiality. Material will be 
screened to permit access to unclassified material and to information 
that does not disclose the identity of a confidential source.
    (d) System identifier and name:
    (1) N01640-1, Individual Correctional Records.
    (2) Exemption: (i) Parts of this system may be exempt pursuant to 5 
U.S.C. 552a(j)(2) if the information is compiled and maintained by a 
component of the agency which performs as its principle function any 
activity pertaining to the enforcement of criminal laws.
    (ii) Portions of this system of records are exempt from the 
following subsections of the Privacy Act: (c)(3), (c)(4), (d), (e)(2), 
(e)(3), (e)(4)(G) through (I), (e)(5), (e)(8), (f), and (g).
    (3) Authority: 5 U.S.C. 552a(j)(2).
    (4) Reason: (i) Granting individuals access to portions of these 
records pertaining to or consisting of, but not limited to, disciplinary 
reports, criminal investigations, and related statements of witnesses, 
and such other related matter in conjunction with the enforcement of 
criminal laws, could interfere with the orderly investigations, with the 
orderly administration of justice, and possibly enable suspects to avoid 
detection or apprehension. Disclosure of this information could result 
in the concealment, destruction, or fabrication of evidence, and 
jeopardize the safety and well-being of informants, witnesses and their 
families, and law enforcement personnel and their families. Disclosure 
of this information could also reveal and render ineffectual 
investigative techniques, sources, and methods used by these components 
and could result in the invasion of the privacy of individuals only 
incidentally related to an investigation. The exemption of the 
individual's right of access to portions of these records, and the 
reasons therefor, necessitate the exemption of this system of records 
from the requirement of the other cited provisions.
    (ii) [Reserved]
    (e) System identifier and name:
    (1) N01754-3, Navy Child Development Services Program.
    (2) Exemption: (i) Investigatory material compiled for law 
enforcement purposes may be exempt pursuant to 5 U.S.C. 552a(k)(2). 
However, if an individual is denied any right, privilege, or benefit for 
which he would otherwise be entitled by Federal law or for which he 
would otherwise be eligible, as a result of the maintenance of such 
information, the individual will be provided access to such information 
except to the extent that disclosure would reveal the identity of a 
confidential source.
    (ii) Portions of this system of records are exempt from the 
following subsections of the Privacy Act: (c)(3) and (d).
    (3) Authority: 5 U.S.C. 552a(k)(2).
    (4) Reasons: (i) Exemption is needed in order to encourage persons 
having knowledge of abusive or neglectful acts toward children to report 
such information, and to protect such sources from embarrassment or 
recrimination,

[[Page 124]]

as well as to protect their right to privacy. It is essential that the 
identities of all individuals who furnish information under an express 
promise of confidentiality be protected. Additionally, granting 
individuals access to information relating to criminal and civil law 
enforcement, as well as the release of certain disclosure accountings, 
could interfere with ongoing investigations and the orderly 
administration of justice, in that it could result in the concealment, 
alteration, destruction, or fabrication of information; could hamper the 
identification of offenders and the disposition of charges; and could 
jeopardize the safety and well being of parents and their children.
    (ii) [Reserved]
    (f) System identifier and name:
    (1) N03834-1, Special Intelligence Personnel Access File.
    (2) Exemption: (i) Information specifically authorized to be 
classified under E.O. 12958, as implemented by DoD 5200.1-R, may be 
exempt pursuant to 5 U.S.C. 552a(k)(1).
    (ii) Investigatory material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for federal 
civilian employment, military service, federal contracts, or access to 
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), 
but only to the extent that such material would reveal the identity of a 
confidential source.
    (iii) Portions of this system of records are exempt from the 
following subsections of the Privacy Act: (c)(3), (d), (e)(1), (e)(4) 
(G) through (I), and (f).
    (3) Authority: 5 U.S.C. 552a(k)(1) and (k)(5).
    (4) Reasons: (i) Exempted portions of this system contain 
information that has been properly classified under E.O. 12356, and that 
is required to be kept secret in the interest of national defense or 
foreign policy.
    (ii) Exempted portions of this system also contain information 
considered relevant and necessary to make a determination as to 
qualifications, eligibility, or suitability for access to classified 
information and was obtained by providing an express or implied 
assurance to the source that his or her identity would not be revealed 
to the subject of the record.
    (g) System identifier and name:
    (1) N04060-1, Navy and Marine Corps Exchange Security Files.
    (2) Exemption: (i) Investigatory material compiled for law 
enforcement purposes may be exempt pursuant to 5 U.S.C. 552a(k)(2). 
However, if an individual is denied any right, privilege, or benefit for 
which he would otherwise be entitled by Federal law or for which he 
would otherwise be eligible, as a result of the maintenance of such 
information, the individual will be provided access to such information 
except to the extent that disclosure would reveal the identity of a 
confidential source.
    (ii) Portions of this system of records are exempt from the 
following subsections of the Privacy Act: (c)(3), (d), (e)(4) (G) 
through (I), and (f).
    (3) Authority: 5 U.S.C. 552a(k)(2).
    (4) Reasons: (i) Granting individuals access to information 
collected and maintained by these activities relating to the enforcement 
of criminal laws could interfere with orderly investigations, with 
orderly administration of justice, and possibly enable suspects to avoid 
detection or apprehension. Disclosure of this information could result 
in the concealment, destruction, or fabrication of evidence, and could 
also reveal and render ineffectual investigative techniques, sources, 
and methods used by these activities.
    (h) [Reserved]
    (i) System identifier and name:
    (1) N05041-1, Inspector General (IG) Records.
    (2) Exemption: (i) Information specifically authorized to be 
classified under E.O. 12958, as implemented by DoD 5200.1-R, may be 
exempt pursuant to 5 U.S.C. 552a(k)(1).
    (ii) Investigatory material compiled for law enforcement purposes 
may be exempt pursuant to 5 U.S.C. 552a(k)(2). However, if an individual 
is denied any right, privilege, or benefit for which he would otherwise 
be entitled by Federal law or for which he would otherwise be eligible, 
as a result of the maintenance of such information, the individual will 
be provided access to such information except to the extent that 
disclosure would reveal the identity of a confidential source.

[[Page 125]]

    (iii) Portions of this system of records may be exempt from the 
provisions of 5 U.S.C. 552a(c)(3); (d); (e)(1); (e)(4)(G), (H), and (I); 
and (f).
    (3) Authority: 5 U.S.C. 552a(k)(1) and (k)(2).
    (4) Reasons: (i) From subsection (c)(3) because the release of the 
disclosure accounting would permit individuals to obtain valuable 
information concerning the nature of the investigation and would present 
a serious impediment to the orderly conduct of any investigative 
activities. Such accounting could result in the release of properly 
classified information which would compromise the national defense or 
disrupt foreign policy.
    (ii) From subsections (d) and (f) because access to the records 
would inform individuals of the existence and nature of the 
investigation; provide information that might result in the concealment, 
destruction, or fabrication of evidence; possibly jeopardize the safety 
and well-being of informants, witnesses and their families; likely 
reveal and render ineffectual investigatory techniques and methods and 
sources of information; and possibly result in the invasion of the 
personal privacy of third parties. Access could result in the release of 
properly classified information which could compromise the national 
defense or disrupt foreign policy. Amendment of the records would 
interfere with the ongoing investigation and impose an impossible 
administrative burden by requiring investigations to be continually 
reinvestigated.
    (iii) From subsection (e)(1) because in the course of the 
investigation it is not always possible, at least in the early stages of 
the inquiry, to determine relevance and or necessity as such 
determinations may only occur after the information has been evaluated. 
Information may be obtained concerning the actual or potential violation 
of laws or regulations other than those relating to the ongoing 
investigation. Such information should be retained as it can aid in 
establishing patterns of improper activity and can provide valuable 
leads in the conduct of other investigations.
    (iv) From subsection (e)(4)(G) and (H) because this system of 
records is exempt from individual access pursuant to subsections (k)(1) 
and (k)(2) of the Privacy Act of 1974.
    (v) From subsection (e)(4)(I) because it is necessary to protect the 
confidentiality of sources and to protect the privacy and physical 
safety of witnesses. Although the system is exempt from this 
requirement, the Department of the Navy has published a notice in broad, 
generic terms in the belief that this is all that subsection (e)(4)(I) 
of the Act requires.
    (j) System identifier and name:
    (1) N05300-3, Faculty Professional Files.
    (2) Exemption: (i) Investigatory material compiled solely for the 
purpose of determining suitability, eligibility, or qualifications for 
federal civilian employment, military service, federal contracts, or 
access to classified information may be exempt pursuant to 5 U.S.C. 
552a(k)(5), but only to the extent that such material would reveal the 
identity of a confidential source.
    (ii) Portions of this system of records are exempt from the 
following subsections of the Privacy Act: (c)(3), (d), (e)(4) (G) and 
(H), and (f).
    (3) Authority: 5 U.S.C. 552a(k)(5).
    (4) Reasons: Exempted portions of this system contain information 
considered relevant and necessary to make a release determination as to 
qualifications, eligibility, or suitability for Federal employment, and 
was obtained by providing an express or implied promise to the source 
that his or her identity would not be revealed to the subject of the 
record.
    (k) System identifier and name:
    (1) N05354-1, Equal Opportunity Information Management System.
    (2) Exemption: (i) Information specifically authorized to be 
classified under E.O. 12958, as implemented by DoD 5200.1-R, may be 
exempt pursuant to 5 U.S.C. 552a(k)(1).
    (ii) Investigatory material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for federal 
civilian employment, military service, federal contracts, or access to 
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), 
but only to the extent that such material would reveal the identity of a 
confidential source.
    (iii) Portions of this system of records are exempt from the 
following

[[Page 126]]

subsections of the Privacy Act: (c)(3), (d), (e)(4)(G) through (I), and 
(f).
    (3) Authority: 5 U.S.C. 552a(k)(1) and (k)(5).
    (4) Reasons: Granting access to information in this system of 
records could result in the disclosure of classified material, or reveal 
the identity of a source who furnished information to the Government 
under an express or implied promise of confidentiality. Material will be 
screened to permit access to unclassified material and to information 
that will not disclose the identity of a confidential source.
    (l) System identifier and name:
    (1) N05520-1, Personnel Security Eligibility Information System.
    (2) Exemption: (i) Information specifically authorized to be 
classified under E.O. 12958, as implemented by DoD 5200.1-R, may be 
exempt pursuant to 5 U.S.C. 552a(k)(1).
    (ii) Investigatory material compiled for law enforcement purposes 
may be exempt pursuant to 5 U.S.C. 552a(k)(2). However, if an individual 
is denied any right, privilege, or benefit for which he would otherwise 
be entitled by Federal law or for which he would otherwise be eligible, 
as a result of the maintenance of such information, the individual will 
be provided access to such information except to the extent that 
disclosure would reveal the identity of a confidential source.
    (iii) Investigatory material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for federal 
civilian employment, military service, federal contracts, or access to 
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), 
but only to the extent that such material would reveal the identity of a 
confidential source.
    (iv) Evaluation material used to determine potential for promotion 
in the Military Services may be exempt pursuant to 5 U.S.C. 552a(k)(7), 
but only to the extent that the disclosure of such material would reveal 
the identity of a confidential source.
    (v) Portions of this system of records are exempt from the following 
subsections of the Privacy Act: (c)(3), (d), (e)(4)(G) and (I), and (f).
    (3) Authority: 5 U.S.C. 552a(k)(1), (k)(2), (k)(5), and (k)(7).
    (4) Reasons: Granting individuals access to information collected 
and maintained in this system of records could interfere with orderly 
investigations; result in the disclosure of classified material; 
jeopardize the safety of informants, witnesses, and their families; 
disclose investigative techniques; and result in the invasion of privacy 
of individuals only incidentally related to an investigation. Material 
will be screened to permit access to unclassified information that will 
not disclose the identity of sources who provide the information to the 
government under an express or implied promise of confidentiality.
    (m) System identifier and name:
    (1) N05520-4, NCIS Investigative Files System.
    (2) Exemption: (i) Parts of this system may be exempt pursuant to 5 
U.S.C. 552a(j)(2) if the information is compiled and maintained by a 
component of the agency which performs as its principle function any 
activity pertaining to the enforcement of criminal laws.
    (ii) Portions of this system of records are exempt from the 
following subsections of the Privacy Act: (c)(3), (c)(4), (d), (e)(2), 
(e)(3), (e)(4)(G) through (I), (e)(5), (e)(8), (f), and (g).
    (3) Authority: 5 U.S.C. 552a(j)(2).
    (4) Reason:
    (i) Granting individuals access to information collected and 
maintained by this activity relating to the enforcement of criminal laws 
could interfere with the orderly investigations, with the orderly 
administration of justice, and possibly enable suspects to avoid 
detection or apprehension. Disclosure of this information could result 
in the concealment, destruction, or fabrication of evidence, and 
jeopardize the safety and well-being of informants, witnesses and their 
families, and law enforcement personnel and their families. Disclosure 
of this information could also reveal and render ineffectual 
investigative techniques, sources, and methods used by these components 
and could result in the invasion of the privacy of individuals only 
incidentally related to an investigation. The exemption of the 
individual's right of access to portions of these records, and the 
reasons therefor, necessitate the exemption of this system of records 
from

[[Page 127]]

the requirement of the other cited provisions.
    (ii) [Reserved]
    (5) Exemption:
    (i) Information specifically authorized to be classified under E.O. 
12958, as implemented by DoD 5200.1-R, may be exempt pursuant to 5 
U.S.C. 552a(k)(1).
    (ii) Records maintained in connection with providing protective 
services to the President and other individuals under 18 U.S.C. 3506, 
may be exempt pursuant to 5 U.S.C. 552a(k)(3).
    (iii) Records maintained solely for statistical research or program 
evaluation purposes and which are not used to make decisions on the 
rights, benefits, or entitlement of an individual except for census 
records which may be disclosed under 13 U.S.C. 8, may be exempt pursuant 
to 5 U.S.C. 552a(k)(4).
    (iv) Investigatory material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for federal 
civilian employment, military service, federal contracts, or access to 
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), 
but only to the extent that such material would reveal the identity of a 
confidential source.
    (v) Testing or examination material used solely to determine 
individual qualifications for appointment or promotion in the Federal 
service may be exempt pursuant to 5 U.S.C. 552a(k)(6), if the disclosure 
would compromise the objectivity or fairness of the test or examination 
process.
    (vi) Portions of this system of records are exempt from the 
following subsections of the Privacy Act: (c)(3), (d), (e)(1), (e)(4)(G) 
through (I), and (f).
    (6) Authority: 5 U.S.C. 552a(k)(1), (k)(3), (k)(4), (k)(5) and 
(k)(6).
    (7) Reason:
    (i) The release of disclosure accountings would permit the subject 
of an investigation to obtain valuable information concerning the nature 
of that investigation, and the information contained, or the identity of 
witnesses or informants, would therefor present a serious impediment to 
law enforcement. In addition, disclosure of the accounting would amount 
to notice to the individual of the existence of a record.
    (ii) Access to the records contained in this system would inform the 
subject of the existence of material compiled for law enforcement 
purposes, the premature release of which could prevent the successful 
completion of investigation, and lead to the improper influencing of 
witnesses, the destruction of records, or the fabrication of testimony. 
Exempt portions of this system also contain information that has been 
properly classified under E.O. 12958, and that is required to be kept 
secret in the interest of national defense or foreign policy.
    (iii) Exempt portions of this system also contain information 
considered relevant and necessary to make a determination as to 
qualifications, eligibility, or suitability for Federal civilian 
employment, military service, Federal contracts, or access to classified 
information, and was obtained by providing an express or implied 
assurance to the source that his or her identity would not be revealed 
to the subject of the record.
    (iv) The notice of this system of records published in the Federal 
Register sets forth the basic statutory or related authority for 
maintenance of the system.
    (v) The categories of sources of records in this system have been 
published in the Federal Register in broad generic terms. The identity 
of specific sources, however, must be withheld in order to protect the 
confidentiality of the source, of criminal and other law enforcement 
information. This exemption is further necessary to protect the privacy 
and physical safety of witnesses and informants.
    (vi) This system of records is exempted from procedures for notice 
to an individual as to the existence of records pertaining to him/her 
dealing with an actual or potential civil or regulatory investigation, 
because such notice to an individual would be detrimental to the 
successful conduct and/or completion of an investigation, pending or 
future. Mere notice of the fact of an investigation could inform the 
subject or others that their activities are under, or may become the 
subject of, an investigation. This could enable the subjects

[[Page 128]]

to avoid detection, to influence witnesses improperly, to destroy 
records, or to fabricate testimony.
    (vii) Exempt portions of this system containing screening board 
reports.
    (viii) Screening board reports set forth the results of oral 
examination of applicants for a position as a special agent with the 
Naval Investigation Service Command. Disclosure of these records would 
reveal the areas pursued in the course of the examination and thus 
adversely affect the result of the selection process. Equally important, 
the records contain the candid views of the members composing the board. 
Release of the records could affect the willingness of the members to 
provide candid opinions and thus diminish the effectiveness of a program 
which is essential to maintaining the high standard of the Special Agent 
Corps., i.e., those records constituting examination material used 
solely to determine individual qualifications for appointment in the 
Federal service.
    (n) System identifier and name:
    (1) N05520-5, Personnel Security Program Management Records System.
    (2) Exemption:
    (i) Information specifically authorized to be classified under E.O. 
12958, as implemented by DoD 5200.1-R, may be exempt pursuant to 5 
U.S.C. 552a(k)(1).
    (ii) Investigatory material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for federal 
civilian employment, military service, federal contracts, or access to 
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), 
but only to the extent that such material would reveal the identity of a 
confidential source.
    (iii) Portions of this system of records are exempt from the 
following subsections of 5 U.S.C. 552a: (d)(1-5).
    (3) Authority: 5 U.S.C. 552a(k)(1) and (k)(5).
    (4) Reasons:
    (i) Granting individuals access to information collected and 
maintained in this system of records could result in the disclosure of 
classified material; and jeopardize the safety of informants, and their 
families. Further, the integrity of the system must be ensured so that 
complete and accurate records of all adjudications are maintained. 
Amendment could cause alteration of the record of adjudication.
    (ii) [Reserved]
    (o) System identifier and name:
    (1) N05527-1, Security Incident System.
    (2) Exemption:
    (i) Parts of this system may be exempt pursuant to 5 U.S.C. 
552a(j)(2) if the information is compiled and maintained by a component 
of the agency which performs as its principle function any activity 
pertaining to the enforcement of criminal laws.
    (ii) Portions of this system of records are exempt from the 
following subsections of the Privacy Act: (c)(3), (c)(4), (d), (e)(2), 
and (e)(4)(G) through (I), (e)(5), (e)(8), (f) and (g).
    (3) Authority: 5 U.S.C. 552a(j)(2).
    (4) Reasons:
    (i) Granting individuals access to information collected and 
maintained by this component relating to the enforcement of criminal 
laws could interfere with orderly administration of justice, and 
possibly enable suspects to avoid detection or apprehension. Disclosure 
of this information could result in concealment, destruction, or 
fabrication of evidence, and jeopardize the safety and well being of 
informants, witnesses and their families, and of law enforcement 
personnel and their families. Disclosure of this information could also 
reveal and render ineffectual investigative techniques, sources, and 
methods used by this component, and could result in the invasion of 
privacy of individuals only incidentally related to an investigation.The 
exemption of the individual's right of access to his or her records, and 
the reason therefore, necessitate the exemption of this system of 
records from the requirements of other cited provisions.
    (ii) [Reserved]
    (p) [Reserved]
    (q) System identifier and name:
    (1) N05800-1, Legal Office Litigation/Correspondence Files.
    (2) Exemption:
    (i) Information specifically authorized to be classified under E.O. 
12958, as implemented by DoD 5200.1-R, may be exempt pursuant to 5 
U.S.C. 552a(k)(1).
    (ii) Investigatory material compiled for law enforcement purposes 
may be exempt pursuant to 5 U.S.C. 552a(k)(2). However, if an individual 
is denied any

[[Page 129]]

right, privilege, or benefit for which he would otherwise be entitled by 
Federal law or for which he would otherwise be eligible, as a result of 
the maintenance of such information, the individual will be provided 
access to such information except to the extent that disclosure would 
reveal the identity of a confidential source.
    (iii) Investigatory material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for federal 
civilian employment, military service, federal contracts, or access to 
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), 
but only to the extent that such material would reveal the identity of a 
confidential source.
    (iv) Testing or examination material used solely to determine 
individual qualifications for appointment or promotion in the Federal 
service may be exempt pursuant to 5 U.S.C. 552a(k)(6), if the disclosure 
would compromise the objectivity or fairness of the test or examination 
process.
    (v) Evaluation material used to determine potential for promotion in 
the Military Services may be exempt pursuant to 5 U.S.C. 552a(k)(7), but 
only to the extent that the disclosure of such material would reveal the 
identity of a confidential source.
    (vi) Portions of this system of records are exempt from the 
following subsections of the Privacy Act: (d), (e)(1), and (f)(2), (3), 
and (4).
    (3) Authority: 5 U.S.C. 552a(k)(1), (k)(2), (k)(5), (k)(6), and 
(k)(7).
    (4) Reasons:
    (i) Subsection (d) because granting individuals access to 
information relating to the preparation and conduct of litigation would 
impair the development and implementation of legal strategy. 
Accordingly, such records are exempt under the attorney-client 
privilege. Disclosure might also compromise on-going investigations and 
reveal confidential informants. Additionally, granting access to the 
record subject would seriously impair the Navy's ability to negotiate 
settlements or pursue other civil remedies. Amendment is inappropriate 
because the litigation files contain official records including 
transcripts, court orders, investigatory materials, evidentiary 
materials such as exhibits, decisional memorandum and other case-related 
papers. Administrative due process could not be achieved by the 
``exparte'' correction of such materials.
    (ii) Subsection (e)(1) because it is not possible in all instances 
to determine relevancy or necessity of specific information in the early 
stages of case development. What appeared relevant and necessary when 
collected, ultimately may be deemed unnecessary upon assessment in the 
context of devising legal strategy. Information collected during civil 
litigation investigations which is not used during subject case is often 
retained to provide leads in other cases or to establish patterns of 
activity.
    (iii) Subsections (f)(2), (3), and (4) because this record system is 
exempt from the individual access provisions of subsection (d).
    (r) System identifier and name:
    (1) N01000-5, Naval Clemency and Parole Board Files.
    (2) Exemption:
    (i) Parts of this system may be exempt pursuant to 5 U.S.C. 
552a(j)(2) if the information is compiled and maintained by a component 
of the agency which performs as its principle function any activity 
pertaining to the enforcement of criminal laws.
    (ii) Portions of this system of records are exempt from the 
following subsections of the Privacy Act: (c)(4), (d), (e)(4)(G), and 
(f).
    (3) Authority: 5 U.S.C. 552a(j)(2).
    (4) Reasons:
    (i) Granting individuals access to records maintained by this Board 
could interfere with internal processes by which Board personnel are 
able to formulate decisions and policies with regard to clemency and 
parole in cases involving naval prisoners and other persons under the 
jurisdiction of the Board. Material will be screened to permit access to 
all material except such records or documents as reflecting items of 
opinion, conclusion, or recommendation expressed by individual board 
members or by the board as a whole.
    (ii) The exemption of the individual's right to access to portions 
of these records, and the reasons therefore, necessitate the partial 
exemption of this

[[Page 130]]

system of records from the requirements of the other cited provisions.
    (s) System identifier and name:
    (1) N06320-2, Family Advocacy Program System.
    (2) Exemption:
    (i) Investigatory material compiled for law enforcement purposes may 
be exempt pursuant to 5 U.S.C. 552a(k)(2). However, if an individual is 
denied any right, privilege, or benefit for which he would otherwise be 
entitled by Federal law or for which he would otherwise be eligible, as 
a result of the maintenance of such information, the individual will be 
provided access to such information except to the extent that disclosure 
would reveal the identity of a confidential source.
    (ii) Investigatory material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for federal 
civilian employment, military service, federal contracts, or access to 
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), 
but only to the extent that such material would reveal the identity of a 
confidential source.
    (iii) Portions of this system of records are exempt from the 
following subsections of the Privacy Act: (c)(3) and (d).
    (3) Authority: 5 U.S.C. 552a(k)(2) and (k)(5).
    (4) Reasons:
    (i) Exemption is needed in order to encourage persons having 
knowledge of abusive or neglectful acts toward children to report such 
information, and to protect such sources from embarrassment or 
recriminations, as well as to protect their right to privacy. It is 
essential that the identities of all individuals who furnish information 
under an express promise of confidentiality be protected. Additionally, 
granting individuals access to information relating to criminal and 
civil law enforcement, as well as the release of certain disclosure 
accounting, could interfere with ongoing investigations and the orderly 
administration of justice, in that it could result in the concealment, 
alteration, destruction, or fabrication of information; could hamper the 
identification of offenders or alleged offenders and the disposition of 
charges; and could jeopardize the safety and well being of parents and 
their children.
    (ii) Exempted portions of this system also contain information 
considered relevant and necessary to make a determination as to 
qualifications, eligibility, or suitability for Federal employment and 
Federal contracts, and that was obtained by providing an express or 
implied promise to the source that his or her identity would not be 
revealed to the subject of the record.
    (t) System identifier and name:
    (1) N12930-1, Human Resources Group Personnel Records.
    (2) Exemption:
    (i) Investigatory material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for federal 
civilian employment, military service, federal contracts, or access to 
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), 
but only to the extent that such material would reveal the identity of a 
confidential source.
    (ii) Testing or examination material used solely to determine 
individual qualifications for appointment or promotion in the Federal 
service may be exempt pursuant to 5 U.S.C. 552a(k)(6), if the disclosure 
would compromise the objectivity or fairness of the test or examination 
process.
    (iii) Portions of this system of records are exempt from the 
following subsections of the Privacy Act: (d), (e)(4)(G) and (H), and 
(f).
    (3) Authority: 5 U.S.C. 552a(k)(5) and (k)(6).
    (4) Reasons:
    (i) Exempted portions of this system contain information considered 
relevant and necessary to make a determination as to qualifications, 
eligibility, or suitability for Federal employment, and was obtained by 
providing express or implied promise to the source that his or her 
identity would not be revealed to the subject of the record.
    (ii) Exempted portions of this system also contain test or 
examination material used solely to determine individual qualifications 
for appointment or promotion in the Federal service, the disclosure of 
which would comprise the objectivity or fairness of the testing or 
examination process.

[[Page 131]]

    (u) System identifier and name: N05813-4, Trial/Government Counsel 
Files.
    (1) Exemption. Parts of this system may be exempt pursuant to 5 
U.S.C. 552a(j)(2) if the information is compiled and maintained by a 
component of the agency which performs as its principle function any 
activity pertaining to the enforcement of criminal laws. Portions of 
this system of records that may be exempt pursuant to subsection 5 
U.S.C. 552a(j)(2) are (c)(3), (c)(4), (d), (e)(1), (e)(2), (e)(3), 
(e)(5), (e)(4)(G), (H), and (I), (e)(8), (f), and (g).
    (2) Exemption. Information specifically authorized to be classified 
under E.O. 12958, as implemented by DoD 5200.1-R, may be exempt pursuant 
to 5 U.S.C. 552a(k)(1).
    (3) Exemption. Investigatory material compiled for law enforcement 
purposes may be exempt pursuant to 5 U.S.C. 552a(k)(2). However, if an 
individual is denied any right, privilege, or benefit for which he would 
otherwise be entitled by Federal law or for which he would otherwise be 
eligible, as a result of the maintenance of such information, the 
individual will be provided access to such information except to the 
extent that disclosure would reveal the identity of a confidential 
source. Portions of this system of records that may be exempt pursuant 
to subsections 5 U.S.C. 552a(k)(1) and (k)(2) are (c)(3), (d), (e)(1), 
(e)(4)(G), (H), and (I), and (f).
    (4) Authority: 5 U.S.C. 552a(j)(2), (k)(1), and (k)(2).
    (5) Reason: (i) From subsection (c)(3) because release of accounting 
of disclosure could place the subject of an investigation on notice that 
he/she is under investigation and provide him/her with significant 
information concerning the nature of the investigation, resulting in a 
serious impediment to law enforcement investigations.
    (ii) From subsections (c)(4), (d), (e)(4)(G), and (e)(4)(H) because 
granting individuals access to information collected and maintained for 
purposes relating to the enforcement of laws could interfere with proper 
investigations and orderly administration of justice. Granting 
individuals access to information relating to the preparation and 
conduct of criminal prosecution would impair the development and 
implementation of legal strategy. Amendment is inappropriate because the 
trial/government counsel files contain official records including 
transcripts, court orders, and investigatory materials such as exhibits, 
decisional memorandum and other case-related papers. Disclosure of this 
information could result in the concealment, alteration or destruction 
of evidence, the identification of offenders or alleged offenders, 
nature and disposition of charges; and jeopardize the safety and well-
being of informants, witnesses and their families, and law enforcement 
personnel and their families. Disclosure of this information could also 
reveal and render ineffective investigation techniques, sources, and 
methods used by law enforcement personnel, and could result in the 
invasion of privacy of individuals only incidentally related to an 
investigation.
    (iii) From subsection (e)(1) because it is not always possible in 
all instances to determine relevancy or necessity of specific 
information in the early stages of case development. Information 
collected during criminal investigations and prosecutions and not used 
during the subject case is often retained to provide leads in other 
cases.
    (iv) From subsection (e)(2) because in criminal or other law 
enforcement investigations, the requirement that information be 
collected to the greatest extent practicable from the subject individual 
would alert the subject as to the nature or existence of an 
investigation, presenting a serious impediment to law enforcement 
investigations.
    (v) From subsection (e)(3) because compliance would constitute a 
serious impediment to law enforcement in that it could compromise the 
existence of a confidential investigation or reveal the identity of 
witnesses or confidential informants.
    (vi) From subsection (e)(4)(I) because the identity of specific 
sources must be withheld in order to protect the confidentiality of the 
sources of criminal and other law enforcement information. This 
exemption is further necessary to protect the privacy and physical 
safety of witnesses and informants.
    (vii) From subsection (e)(5) because in the collection of 
information for law enforcement purposes it is impossible

[[Page 132]]

to determine in advance what information is accurate, relevant, timely, 
and complete. With the passage of time, seemingly irrelevant or untimely 
information may acquire new significance as further investigation brings 
new details to light and the accuracy of such information can only be 
determined in a court of law. The restrictions of subsection (e)(5) 
would restrict the ability of trained investigators and intelligence 
analysts to exercise their judgment in reporting on investigations and 
impede the development of intelligence necessary for effective law 
enforcement.
    (viii) From subsection (e)(8) because compliance would provide an 
impediment to law enforcement by interfering with the ability to issue 
warrants or subpoenas and by revealing investigative techniques, 
procedures, or evidence.
    (ix) From subsection (f) and (g) because this record system is 
exempt from the individual access provisions of subsection (d).
    (x) Consistent with the legislative purpose of the Privacy Act of 
1974, the Department of the Navy will grant access to nonexempt material 
in the records being maintained. Disclosure will be governed by the 
Department of the Navy's Privacy Regulation, but will be limited to the 
extent that the identity of confidential sources will not be 
compromised; subjects of an investigation of an actual or potential 
criminal violation will not be alerted to the investigation; the 
physical safety of witnesses, informants and law enforcement personnel 
will not be endangered, the privacy of third parties will not be 
violated; and that the disclosure would not otherwise impede effective 
law enforcement. Whenever possible, information of the above nature will 
be deleted from the requested documents and the balance made available. 
The controlling principle behind this limited access is to allow 
disclosures except those indicated above. The decisions to release 
information from these systems will be made on a case-by-case basis.
    (v) System identifier and name:
    (1) N05211-1, Privacy Act Files and Tracking System
    (2) Exemption
    During the processing of a Privacy Act request (which may include 
access requests, amendment requests, and requests for review for initial 
denials of such requests), exempt materials from other systems of 
records may in turn become part of the case record in this system. To 
the extent that copies of exempt records from those `other' systems of 
records are entered into this system, the Department of the Navy hereby 
claims the same exemptions for the records from those `other' systems 
that are entered into this system, as claimed for the original primary 
system of which they are a part.
    (3) Authority
    5 U.S.C. 552a(j)(2), (k)(1), (k)(2), (k)(3), (k)(4), (k)(5), (k)(6), 
and (k)(7).
    (4) Records are only exempt from pertinent provisions of 5 U.S.C. 
552a to the extent such provisions have been identified and an exemption 
claimed for the original record and the purposes underlying the 
exemption for the original record still pertain to the record which is 
now contained in this system of records. In general, the exemptions were 
claimed in order to protect properly classified information relating to 
national defense and foreign policy, to avoid interference during the 
conduct of criminal, civil, or administrative actions or investigations, 
to ensure protective services provided the President and others are not 
compromised, to protect the identity of confidential sources incident to 
Federal employment, military service, contract, and security clearance 
determinations, and to preserve the confidentiality and integrity of 
Federal evaluation materials. The exemption rule for the original 
records will identify the specific reasons why the records are exempt 
from specific provisions of 5 U.S.C. 552a.
    (w) System identifier and name
    (1) N05720-1, FOIA Request Files and Tracking System
    (2) Exemption
    During the processing of a Freedom of Information Act request, 
exempt materials from other systems of records may in turn become part 
of the case record in this system. To the extent that copies of exempt 
records from those `other' systems of records are entered into this 
system, the Department

[[Page 133]]

of the Navy hereby claims the same exemptions for the records from those 
`other' systems that are entered into this system, as claimed for the 
original primary system of which they are a part.
    (3) Authority:
    5 U.S.C. 552a(j)(2), (k)(1), (k)(2), (k)(3), (k)(4), (k)(5), (k)(6), 
and (k)(7).
    (4) Records are only exempt from pertinent provisions of 5 U.S.C. 
552a to the extent such provisions have been identified and an exemption 
claimed for the original record and the purposes underlying the 
exemption for the original record still pertain to the record which is 
now contained in this system of records. In general, the exemptions were 
claimed in order to protect properly classified information relating to 
national defense and foreign policy, to avoid interference during the 
conduct of criminal, civil, or administrative actions or investigations, 
to ensure protective services provided the President and others are not 
compromised, to protect the identity of confidential sources incident to 
Federal employment, military service, contract, and security clearance 
determinations, and to preserve the confidentiality and integrity of 
Federal evaluation materials. The exemption rule for the original 
records will identify the specific reasons why the records are exempt 
from specific provisions of 5 U.S.C. 552a.

[65 FR 31471, May 18, 2000, as amended at 65 FR 48170, Aug. 7, 2000; 65 
FR 53171, Sept. 1, 2000; 66 FR 54928, Oct. 31, 2001; 67 FR 30554, May 7, 
2002]



Sec. 701.119  Exemptions for specific Marine Corps record systems.

    (a) System identifier and name:
    (1) MMN00018, Base Security Incident Reporting System.
    (2) Exemption:
    (i) Parts of this system may be exempt pursuant to 5 U.S.C. 
552a(j)(2) if the information is compiled and maintained by a component 
of the agency which performs as its principle function any activity 
pertaining to the enforcement of criminal laws.
    (ii) Portions of this system of records are exempt from the 
following subsections of the Privacy Act: (c)(3), (c)(4), (d), (e) (2) 
and (3), (e)(4)(G) through (I), (e)(5), (e)(8), (f), and (g).
    (3) Authority: 5 U.S.C. 552a(j)(2).
    (4) Reasons:
    (i) Granting individuals access to information collected and 
maintained by these activities relating to the enforcement of criminal 
laws could interfere with orderly investigations, with the orderly 
administration of justice, and might enable suspects to avoid detection 
or apprehension. Disclosure of this information could result in the 
concealment, destruction, or fabrication of evidence, and jeopardize the 
safety and well being of informants, witnesses and their families, and 
law enforcement personnel and their families. Disclosure of this 
information could also reveal and render ineffectual investigative 
techniques, sources, and methods used by this component, and could 
result in the invasion of the privacy of individuals only incidentally 
related to an investigation. The exemption of the individual's right of 
access to his or her records, and the reasons therefore, necessitate the 
exemption of this system of records from the requirements of other cited 
provisions.
    (ii) [Reserved]
    (b) System identifier and name:
    (1) MIN00001, Personnel and Security Eligibility and Access 
Information System.
    (2) Exemption:
    (i) Investigatory material compiled for law enforcement purposes may 
be exempt pursuant to 5 U.S.C. 552a(k)(2). However, if an individual is 
denied any right, privilege, or benefit for which he would otherwise be 
entitled by Federal law or for which he would otherwise be eligible, as 
a result of the maintenance of such information, the individual will be 
provided access to such information except to the extent that disclosure 
would reveal the identity of a confidential source.
    (ii) Records maintained in connection with providing protective 
services to the President and other individuals under 18 U.S.C. 3506, 
may be exempt pursuant to 5 U.S.C. 552a(k)(3).
    (iii) Investigatory material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for federal 
civilian employment, military service, federal contracts, or access to 
classified information may be

[[Page 134]]

exempt pursuant to 5 U.S.C. 552a(k)(5), but only to the extent that such 
material would reveal the identity of a confidential source.
    (iv) Portions of this system of records are exempt for the following 
subsections of the Privacy Act: (c)(3), (d), (e)(1), (e)(4)(G) through 
(I), and (f).
    (3) Authority: 5 U.S.C. 552a(k)(2), (k)(3), and (k)(5), as 
applicable.
    (4) Reasons:
    (i) Exempt portions of this system contain information that has been 
properly classified under E.O. 12958, and that is required to be kept 
secret in the interest of national defense or foreign policy.
    (ii) Exempt portions of this system also contain information 
considered relevant and necessary to make a determination as to 
qualifications, eligibility, or suitability for Federal civilian 
employment, military service, Federal contracts, or access to 
classified, compartmented, or otherwise sensitive information, and was 
obtained by providing an expressed or implied assurance to the source 
that his or her identity would not be revealed to the subject of the 
record.
    (iii) Exempt portions of this system further contain information 
that identifies sources whose confidentiality must be protected to 
ensure that the privacy and physical safety of these witnesses and 
informants are protected.



PART 705--PUBLIC AFFAIRS REGULATIONS--Table of Contents




Sec.
705.1 Purpose.
705.2 Chief of Information and the Office of Information (CHINFO).
705.3 [Reserved]
705.4 Communication directly with private organizations and individuals.
705.5 Taking of photos on board naval ships, aircraft and installations 
          by members of the general public.
705.6 Releasing public information material to the media.
705.7 Radio and television.
705.8 Motion pictures.
705.9 Availability of motion pictures to external audiences.
705.10 Still photography.
705.11 Supplying photographs and services to other than Navy and Marine 
          Corps.
705.12 Print media.
705.13 Commercial advertising.
705.14 Embarkation of media representatives.
705.15 Employment of Navy personnel as correspondents or staff members 
          of civilian news media.
705.16 Navy produced public information material.
705.17 Participation guidelines.
705.18 Authority and coordination.
705.19 Financing.
705.20 Use of Navy material and facilities.
705.21 Requests for Navy participation.
705.22 Relations with community groups.
705.23 Guest cruises.
705.24 Exhibits.
705.25 Navy Exhibit Center.
705.26 Exhibit availability report.
705.27-705.28 [Reserved]
705.29 Navy Art Collection.
705.30 Aerospace Education Workshop.
705.31 USS Arizona Memorial, Pearl Harbor.
705.32 Aviation events and parachute demonstrations.
705.33 Participation by Armed Forces bands, choral groups, and troops in 
          the public domain.
705.34 Other special events.
705.35 Armed Forces participation in events in the public domain.
705.36 Government transportation of civilians for public affairs 
          purposes.
705.37 Public affairs and public service awards.

    Authority: 5 U.S.C. 301; 10 U.S.C. 5031.

    Source: 41 FR 29101, July 15, 1976, unless otherwise noted.



Sec. 705.1  Purpose.

    The regulations and rules in this part prescribe policies and 
procedures for the Department of the Navy pertaining to public affairs 
practices.



Sec. 705.2  Chief of Information and the Office of Information (CHINFO).

    (a) The Chief of Information is the direct representative of the 
Secretary of the Navy and of the Chief of Naval Operations in all public 
affairs and internal relations matters. As such, the Chief of 
Information has the authority to implement public affairs and internal 
relations policies and to coordinate Navy and Marine Corps public 
affairs and internal relations activities of mutual interest.
    (b) The Chief of Information will keep Navy commands informed of 
Department of Defense policies and requirements. No command within the

[[Page 135]]

Department of the Navy, except Headquarters, Marine Corps, will deal 
directly with the Office of the Assistant Secretary of Defense (Public 
Affairs) on public affairs matters unless authorized to do so by the 
Chief of Information.
    (c) The Chief of Information will be consulted on all Navy public 
affairs and internal relations matters and informed of all operations 
and proposed plans and policies which have national or international 
(and in the case of audio-visual material, regional) public affairs 
aspects.
    (d) The Chief of Information heads the Navy Office of Information, 
the Navy Internal Relations Activity (NIRA), the Office of Information 
Branch Offices (NAVINFOs), the Navy Public Affairs Center (NAVPACENs) 
and the Fleet Home Town News Center (FHTNC). In addition, the Chief of 
Information has responsibility (on behalf of the Secretary of the Navy 
as Executive Agent for the Department of Defense) for the High School 
News Service and has operational control of the U.S. Navy Band, 
Washington, DC.
    (e) The Navy Office of Information Branch Offices (NAVINFOs) are 
located in Atlanta, Boston, Chicago, Dallas, Los Angeles, and New York. 
As representatives of the Secretary of the Navy, Chief of Naval 
Operations, and Chief of Information, the NAVINFOs have a primary 
mission of providing direct liaison with local and regional mass 
communications media.
    (1) The function of the NAVINFOs are as follows:
    (i) Establish and maintain close personal relationships with local 
television, radio, film, publishing, and other mass-media organizations 
including minority-group-oriented media.
    (ii) Seek ways through these media to inform the public about naval 
personnel and activities.
    (iii) Provide assistance to media organizations and respond to their 
interest in Navy programs, stories, and features. In this regard, 
maintain informal liaison with various information offices afloat and 
ashore in order to respond to requests from local media representatives, 
particularly those from inland areas, who desire to visit fleet units or 
activities ashore.
    (iv) Provide advice on Navy cooperation and assistance, as 
appropriate, to representatives of national industrial and commercial 
organizations, including advertising agencies.
    (v) Maintain a library of Navy motion picture films for use by local 
television stations, distribute news films and audio material, and 
otherwise perform normal audio-visual functions at the local level.
    (vi) Provide personnel and other assistance as appropriate, to 
special Command Information Bureaus and public information staffs of 
other naval activities as directed by the Chief of Information.
    (vii) Advise the Chief of Information on current trends and 
significant problems relating to local media requirements.
    (viii) Seek ways to support the long-range goals and immediate 
priorities of the Navy.
    (ix) Provide advice and assistance in the placement of news and 
feature materials to the field activities of the Navy Recruiting 
Command.
    (x) Perform such other tasks as may be assigned by the Chief of 
Information.
    (2) Additionally, NAVINFO Los Angeles is the Navy representative for 
all appropriate liaison with motion picture and network television 
offices in the Hollywood area. Naval activities will channel all 
requests for information or assistance from these media to NAVINFO Los 
Angeles, which will coordinate with CHINFO.
    (3) Additionally, NAVINFO New York is the Navy representative for 
all appropriate liaison with television and radio networks in the New 
York area and with magazine and book publishers in that area. Requests 
for assistance originating from these media should be directed to 
NAVINFO New York, which will coordinate with CHINFO.
    (4) Except as specifically directed by CHINFO, the Branch Offices do 
not have responsibility or authority for community relations or internal 
relations.
    (5) Direct liaison between NAVINFOs and Naval District public 
affairs offices, Navy recruiters and other naval activities afloat and 
ashore is encouraged.

[[Page 136]]

    (f) Areas covered by the respective offices are:
    (1) NAVINFO Atlanta: Alabama, the District of Columbia, Florida, 
Georgia, Kentucky, Maryland, Mississippi, North Carolina, South 
Carolina, Tennessee, Virginia, and Southern West Virginia.
    (2) NAVINFO Boston: Maine, Massachusetts, New Hampshire, Rhode 
Island, and Vermont.
    (3) NAVINFO Chicago: Illinois, Indiana, Iowa, Michigan, Minnesota, 
Nebraska, North Dakota, Ohio, South Dakota, Wisconsin, and Northern West 
Virginia.
    (4) NAVINFO Dallas: Arkansas, Colorado, Kansas, Louisiana, Missouri, 
New Mexico, Oklahoma, and Texas.
    (5) NAVINFO Los Angeles: Arizona, California, Idaho, Montana, 
Nevada, Oregon, Utah, Washington, and Wyoming.
    (6) NAVINFO New York: Connecticut, Delaware, New Jersey, New York, 
and Pennsylvania.
    (g) The Navy Public Affairs Centers (NAVPACENs) are located in 
Norfolk and San Diego. The centers have a primary mission of producing 
Navy stories for dissemination to the media through normal information 
channels.
    (1) The following tasks are included among the functions of the 
NAVPACENs.
    (i) Produce written, audio and photographic feature public 
information material about fleet and shore personnel, units and 
activities, as coordinated with and approved for policy and concept by 
the respective fleet and shore commander concerned.
    (ii) Serve as public affairs emergency reaction teams/resource 
personnel responsive to the requirements of the CNO and CHINFO, and when 
feasible and appropriate and as approved by CNO or CHINFO, serve as 
public affairs emergency reaction teams/resource personnel in support of 
Fleet Commanders.
    (iii) Develop feature material to support the long range goals and 
the immediate priorities of the Navy. Direct liaison is authorized with 
the Navy Recruiting Command, Recruiting Areas, Recruiting Districts, and 
other Commanders as appropriate to achieve this function.
    (iv) Perform such other tasks as may be assigned by the Chief of 
Information.
    (2) NAVPACENs will have no public affairs news media 
responsibilities which conflict with the basic public affairs 
responsibilities of Fleet Commanders-in-Chief. Specifically, NAVPACENs 
are excluded from responding to news media queries, releasing news 
information, arranging news media embarkations, or any other day-to-day 
news media services concerning the respective fleets. These 
responsibilities remain with the Fleet Commander.
    (3) NAVPACENs have no direct responsibility or authority for 
community relations or internal relations and shall defer in these areas 
to the cognizant Naval District Commandant.
    (4) Direct liaison with Fleet Commanders-in-Chief and NAVINFOs is 
appropriate and authorized. As approved by the Fleet CINCs, direct 
liaison with forces afloat and shore activities under the Fleet CINCs is 
appropriate.
    (5) NAVPACENs will carry out their mission and functions in such a 
manner as not to interfere with the public affairs responsibilities of 
the District Commandants.

[44 FR 6389, Feb. 1, 1979]



Sec. 705.3  [Reserved]



Sec. 705.4  Communication directly with private organizations and individuals.

    (a) Questions from the public and requests from groups or 
individuals for pamphlets, photos, biographies, historical matter, etc., 
must be promptly answered. (32 CFR part 701, subparts A-D refers.)
    (b) Assistance within the command's capabilities should (and in some 
cases, must) be given. Where an established channel for obtaining the 
item exists, such as a publication stocked by the Superintendent of 
Documents (Government Printing Office), or photos, as explained in the 
subparagraph below, the requester may be directed to it. Under some 
circumstances, a charge may be made. (Consult part 701 or the command's 
Freedom of Information authority for details.) If a lengthy search,

[[Page 137]]

beyond the convenient manpower resources of the command, would be 
required, the requester may be offered the opportunity of examining the 
material at the command instead of copies being made.
    (c) If a request is refused, the reason must be fully and 
courteously explained, as required by part 701 of this chapter.
    (d) Copies of released U.S. Navy photos may be purchased by the 
general public.
    (1) Photos made within the last 10 years may be purchased from the 
Naval Photographic Center. Information on the conditions of sale can be 
obtained by writing to the Commanding Officer, Naval Photographic 
Center, Naval Station, Washington, DC 20390.
    (2) Photos made more than 10 years prior to the current date may be 
purchased from the National Archives. Details are available from: Audio-
Visual Branch National Archives and Records Service, General Services 
Administration, Washington, DC 20408.

[41 FR 29101, July 15, 1976, as amended at 44 FR 6390, Feb. 1, 1979]



Sec. 705.5  Taking of photos on board naval ships, aircraft and installations by members of the general public.

    (a) Visitors will not be allowed to take photographic equipment on 
board a naval ship or aircraft or into a naval activity or to take 
photographs within a naval jurisdiction unless specially authorized by 
the officer in command or higher authority.
    (b) Guests of the Navy who wish to take photos within naval 
jurisdictions will be advised of areas where photography is permitted. 
An escort will be assigned to assure that security is maintained, unless 
photography is permitted throughout the ship, aircraft or installation, 
or the areas in which it is not permitted are appropriately guarded or 
secured.
    (c) If there is reason to believe that film exposed by a visitor or 
media photographer contains classified information, the film will be 
processed under Navy jurisdiction.
    (1) Classified photos, if any, will be retained. All unclassified 
film will be returned to the owner.
    (2) When film exposed by civilian visitors or media representatives 
in sensitive areas is beyond the capability of the local command to 
process, it may be forwarded to the Commanding Officer, Naval 
Photographic Center, for processing. Any special processing instructions 
should be sent with the film.



Sec. 705.6  Releasing public information material to the media.

    (a) Methods of releasing information:
    (1) Release at the seat of government and/or as approved by the 
Assistant Secretary of Defense (Public Affairs).
    (i) Overall responsibility for release of information rests with the 
Assistant Secretary of Defense (Public Affairs). The Chief of 
Information is responsible for coordinating with him releases of 
national and international interest (and in the case of audiovisual 
material of regional interest) and for arranging for local release of 
such material if considered appropriate by OASD(PA). Information of the 
above types and also information proposed for release at the seat of 
government, with the exception of ``spot news,'' as described in 
paragraph (b) of this section, following.
    (2) Releases by local commands:
    (i) News of purely local interest may be released by the command 
concerned. Higher and coordinating authorities (such as the District 
Commandant) will be informed, when appropriate, that the release has 
been made.
    (ii) News of national or other wide interest may be released by a 
local command under the following circumstances:
    (A) The Assistant Secretary of Defense (Public Affairs), having 
approved a release, directs that it be issued by the command concerned.
    (B) An event of immediate and urgent news interest, such as a 
disasterous accident, occurs at the command, and emergency announcements 
must be made as delay in issuing information would be against the best 
interests of the Navy. The officer in command will make a ``spot news'' 
release of all appropriate information considered releasable.
    (1) Copies of spot news releases made (or a description if the 
announcement

[[Page 138]]

is made orally) will be forwarded promptly to the Chief of Information.
    (2) If the situation is considered critical, the spot news release 
will be forwarded by telephone or message.
    (b) Means through which information is released to media:
    (1) Navy oriented information material (written, taped, motion 
picture, still photo) is regularly released to all media presumed to be 
interested.
    (2) Similar material is provided in response to query from a news 
media representative. The material may be produced by the Navy, or the 
newsman may be assisted in researching, filming, etc. himself.
    (3) Exclusive releases:
    (i) Information concerning naval activities may be provided on an 
exclusive basis only when a specific request or inquiry is received from 
one news media representative for material not requested by other media.
    (ii) In such cases, and assuming that the information is properly 
releasable, the following rules will apply:
    (A) If prior to the time information is given to the newsman making 
the original inquiry or request substantially similar inquiries or 
requests are received from other newsmen, the first inquirer will be so 
informed, and subsequent inquirers will be advised that a prior request 
has been received. None of the inquirers will be told the identity of 
the individuals or media who have placed these similar inquiries.
    (B) If not more than three similar requests are received, the 
information will be provided simultaneously to each inquirer.
    (C) If more than three requests for substantially the same 
information have been received before any are answered, inquirers will 
be advised as soon as possible that the information cannot be given on 
an exclusive or limited basis, and a general release covering the 
subject will be issued to all media.
    (4) News conferences:
    (i) A news conference is held when a command has something specific 
to announce to the press that cannot be handled in a news release or by 
phone call. A news conference should not be called just to get together 
with the press. A request from the press is also a reason for conducting 
a news conference. Special events, significant operations or serious 
accidents are frequent reasons for calling news conferences. If 
requested, spokesmen may be made available to the press for questions 
without specific subject matter in mind, but the press should be clearly 
informed of the nature of this meeting. Technically, this is not 
considered a news conference.
    (ii) When a news conference is held, it is essential that all 
interested media be invited to attend.
    (iii) A record of what is said should be kept. Ideally, the news 
conference should be tape recorded and a public affairs officer should 
be present.
    (iv) Official spokesmen will be prepared to answer questions in a 
frank and candid manner. If the answer would compromise military 
security, the inquirer should be so advised. If the answer is not known 
to the spokesman, he should say so and add that the matter will be 
checked and any available unclassified information provided later.
    (v) Newsmen are not normally asked to submit their questions in 
advance. If this is considered advisable, as in cases where highly 
technical answers may be required, the answers are prepared in advance 
and given to all attending newsmen (not just the questioner) at the news 
conference.
    (5) Interviews. These are similar to news conferences except that 
they involve a single newsman (who has usually requested the interview) 
and a single Navy spokesman.
    (i) Required procedures are essentially the same as for news 
conferences. However, a public affairs officer should be present only if 
desired by the person being interviewed. The interview may be taped, if 
the newsman agrees.
    (ii) Without penalizing initiative displayed by a newsman in asking 
pertinent questions, care should be exercised by the naval spokesman not 
to make a major revelation of news material to a single media outlet in 
the course of a routine interview.
    (iii) If major areas of difficulty arise in the interview, the Chief 
of Information should be notified of them.

[[Page 139]]

    (6) Background briefings; ``Not for attribution''; or ``Off the 
record.''
    (i) Since there is a possibility or risk of a misunderstanding 
arising in these briefings, it is important that all concerned 
understand and agree to the ground rules.
    (ii) In general, information will not be made public unless it can 
be openly attributed to the Navy and disseminated without reservation. 
Occasionally, a backgrounder may be helpful. An example is a briefing of 
embarked newsmen in advance of an operation, providing information which 
may not be reported until the operation is over. The purpose is to help 
the newsmen understand the operation while it is taking place.



Sec. 705.7  Radio and television.

    (a) Navy relationships with radio and TV representatives are of two 
types:
    (1) Dissemination to them of Navy produced tapes, photos, films, 
etc. (This is discussed in more detail in Sec. 705.17).
    (2) Cooperation with them when they produce a program on a Navy 
subject. This is discussed in the paragraph following:
    (b) Requirement for approval by higher authority.
    (1) Commanding officers may:
    (i) Release audiovisual material which is spot news, as defined in 
Sec. 705.6(a)(2)(ii) preceding, or is of purely local interest.
    (ii) Participate in local community audiovisual projects of benefit 
to the Department of Defense or in the national interest.
    (iii) Approve one-time, one-station participation by personnel of 
their commands (as individuals) in programs of purely local interest.
    (2) All other audiovisual material originated by the Department of 
the Navy or requiring Navy cooperation must be approved by the Chief of 
Information, who will effect the necessary coordination and/or approval 
of the Assistant Secretary of Defense (Public Affairs).
    (i) Requests for assistance from non-governmental audiovisual media 
will be forwarded, with the maximum available details and an evaluation 
of the request, through the chain of command to the Chief of 
Information.
    (ii) No direct coordination or contact between local naval commands 
and the Assistant Secretary of Defense (PA) is authorized unless 
specifically provided for by separate directives or correspondence.
    (c) Navy cooperation in productions by audiovisual media 
representatives (nongovernment).
    (1) The production or project must:
    (i) Be consistent with the goals and aims of the Department of 
Defense and/or be in the national interest.
    (ii) Portray military operation, historical incidents, persons and 
places, in such a manner as to give a true portrayal and interpretation 
of military life.
    (iii) Comply with accepted standards of dignity and propriety in the 
industry.
    (2) There will be no deviation from established safety standards.
    (3) Operational readiness shall not be impaired.
    (4) Official activities of military personnel assisting the 
production must be within the scope of normal military activities. 
Exceptions to this policy will be made only in unusual circumstances.
    (5) Diversion of ships, equipment, personnel and material resources 
from normal military locations or military operations will not normally 
be authorized for filming. Exceptions to such policy must be authorized 
by the Assistant Secretary of Defense (Public Affairs), through the 
Chief of Information.
    (i) The production company concerned must reimburse the government 
for any extra expense involved. A strict accounting of the additional 
expenses incurred and charged to the production company must be 
maintained by the designated project officer. A copy of this accounting 
will be forwarded to the Chief of Information.
    (6) Naval material and personnel will not be employed in such a 
manner as to compete with commercial and private enterprise. In this 
regard, any person or agency requesting their use will furnish a 
noncompetitive certification.

[[Page 140]]

    (7) Additional details on procedures will be found in DOD 
Instruction 5410.16.
    (8) In addition to cooperation requested by the media, commands will 
be alert to the advantages of providing Navy programming and/or 
encouraging participation by Navy personnel in local radio and TV 
programming. Examples are community forums, local talent shows, 
educational and religious programs, children's shows, sports programs, 
etc.
    (d) Participation by individual Navy personnel on radio or TV 
programs:
    (1) In general, such participation is encouraged if it is:
    (i) Dignified and considered in the interests of the Navy.
    (ii) Compatible with operational commitments.
    (iii) Not in competition with the regular employment of professional 
performers.
    (2) The public affairs officer will screen requests for such 
appearances for members of his command to see that the programs are in 
good taste, and that neither the Navy nor its personnel are exposed to 
embarrassment for the sake of entertainment.
    (3) Approval of participation by Navy individuals:
    (i) Approval is not required for personnel attending audience 
participation broadcasts if they are selected at random from the 
audience.
    (ii) One-time, one-station participation of purely local interest 
may be approved by the officer in command concerned.
    (iii) If participation will be on a network (defined as more than 
one station, even if local) of if the same person or program is 
requested by two or more unrelated stations, approval by the Chief of 
Information must be obtained even if the show is of local interest only.
    (e) Use of official footage:
    (1) Use of official U.S. Navy stock film footage on TV broadcasts is 
not authorized without approval and clearance by the Chief of 
Information and the Department of Defense.
    (2) Use of Navy public information motion pictures cleared for TV is 
authorized and encouraged except that such films may be used on 
subscription or pay TV only when offered to the viewers at no cost.
    (3) Navy films will not be cut or portions duplicated for TV use in 
lieu of stock footage without prior approval by the Chief of 
Information.
    (f) Music clearance. The Navy assumes no responsibility for 
clearance of music used on Navy recordings, transcriptions, or films not 
specially produced or authorized for radio or TV broadcast.
    (g) Disclaimers. A disclaimer is not necessary if a product is 
advertised on a program in which the Navy participates, but there must 
be no stated or implied endorsement of it by the Navy or by naval 
personnel appearing on the program.
    (h) Requests for courtesy prints of commercial television programs:
    (1) Requests will not be made directly to the producer or network 
concerned, but will be forwarded to the Chief of Information by the Navy 
requester.
    (2) These courtesy prints will be exhibited only under circumstances 
which cannot be construed as competitive with commercial ventures.



Sec. 705.8  Motion pictures.

    (a) The rules and procedures given in the preceding for TV will also 
apply to cooperation with commercial motion picture producers.
    (b) The Navy assists in the production of commercial, privately 
financed, nontheatrical motion pictures of institutional or of 
educational value to the public. They Navy will not:
    (1) Solicit their production.
    (2) Provide lists of subjects the Navy considers ``desirable.''
    (3) State that the Navy will use a commercially produced film.
    (4) Imply endorsement of a product.
    (5) Permit the use of official Navy seals.
    (c) Navy assistance to motion pictures and all other audio-visual 
products produced by Navy contractors will be subject to the same rules 
and procedures that apply to other non-government producers. Audio-
visual products produced by Navy contractors, with or without Navy 
assistance, will be submitted to the Chief of Information via

[[Page 141]]

the appropriate Navy headquarters activity for coordination with the 
Assistant Secretary of Defense (Public Affairs) for clearance for public 
release. They will be accompained by five copies of the script and a 
statement from the producer that costs were paid from corporate (vice 
contract) funds.
    (d) When a commercial film which has been produced with Navy 
cooperation is screened in a community, local commands can provide Navy 
exhibits for display in theater lobbies, coordinate displays of 
recruiting material, and arrange for personal appearances of Department 
of Defense and Department of the Navy military and civilian personnel, 
provided such cooperation is approved by the Chief of Information and 
the Assistant Secretary of Defense (Public Affairs).

[41 FR 29101, July 15, 1976, as amended at 44 FR 6390, Feb. 1, 1979]



Sec. 705.9  Availability of motion pictures to external audiences.

    (a) Public access. Navy and Marine Corps general motion pictures and 
motion picture projects not previously cleared for public exhibition 
will require clearance by the Chief of Information or the Marine Corps 
Director of Information, as appropriate, prior to public viewing. 
Concurrent review of legal rights and instruments associated with the 
production will be carried out by Patent Counsel, Naval Air Systems 
Command (AIR-OOP). Cleared motion pictures may also be made available 
for free loan as determined by the individual services. In addition, 
cleared motion pictures may be provided for rent or sale through the 
National Audio-Visual Center, National Archives and Records Service 
(GSA), Washington, DC 20409.
    (b) Foreign military training. Motion pictures from the Navy 
inventory may be made available for foreign military training programs 
on approval by the Chief of Naval Operations. Classified motion pictures 
selected for such use will also require a security review by the Chief 
of Naval Operations.



Sec. 705.10  Still photography.

    (a) Policy and procedures on taking photos by the general public, 
given in Sec. 705.5 apply also to media representatives.
    (b) Basic policy and procedures for still photos are set forth in 
the Manual of Naval Photography, OPNAVINST 3150.6D.
    (c) Authority to forbid photography:
    (1) On Navy property, the officer in command may forbid the taking 
of photographs and may confiscate film, reviewing it if it is suspected 
that classified material has been photographed. In such cases, all 
unclassified photos will be returned promptly to the photographer.
    (2) Navy personnel have no authority to confiscate film off Navy 
property. If, as in an accident, classified equipment is exposed which 
cannot be removed or covered, Navy representatives will ask news media 
photographers not to photograph it and will inform them of 18 U.S.C. 
793(e), 795, 797, which makes it a criminal offense to photograph 
classified material. Navy personnel will not use force if media 
photographers refuse to cooperate, but will instead seek the assistance 
of appropriate civil authorities and/or the photographer's superior in 
recovering film or photographs presumed to be of classified nature.
    (3) If media photographers are uncooperative in regard to protection 
of classified material, an account of the matter will be forwarded to 
the Chief of Information.
    (d) Release of photographs:
    (1) Most unclassified photographs of interest to the public may be 
released to news media. However, the rights of individuals photographed 
and special constraints such as those described in section 0403 of the 
Public Affairs Regulations must be taken into consideration before a 
decision is made to release a photograph. In addition, photos which 
might be harmful to recruiting or otherwise not be in the Navy's best 
interests will not be used unless this failure to release them 
constitutes suppression of legitimate news.
    (2) Photographs of strictly local interest can be made available by 
the command to local media without being submitted to review by higher 
authority.
    (3) If a feature type photo released locally is considered of 
possible interest

[[Page 142]]

elsewhere, because of its human interest or artistic merit, a single 
print should be forwarded to the Chief of Information, together with a 
notation of the distribution made.
    (4) Photographs of national interest:
    (i) ``Spot news'' photos may be released by a District Commandant or 
Fleet or Force Commander.
    (ii) If a photo has been released by a local command to national 
news media:
    (A) The original negative or transparency will be forwarded by the 
fastest available means to the Commanding Officer, Naval Photographic 
Center, Naval Station, Washington, DC 20390. Such forwarding will be in 
accordance with the Manual of Naval Photography, par. 0445, 
subparagraphs 3 and 4.
    (B) One print, a copy of the letter of transmittal, and the 
distribution list will be forwarded to the Chief of Information.
    (C) Navy units with a Unified Command will forward the photos 
through Unified Command channels.
    (D) All other commands will forward the photos to the Chief of 
Information who will effect coordination with the Office of the 
Assistant Secretary of Defense (Public Affairs) and, if necessary, 
arrange for security review.
    (iii) Photography of research activities is normally considered to 
be of national interest.
    (iv) Still photographs of national news interest may be forwarded, 
unprocessed, for release by the Chief of Information by any command not 
subject to the authority of a Unified or Specified Commander. Such 
forwarding will be in accordance with paragraph 0445, subparagraph 3, of 
the Manual of Naval Photography. All available caption material will be 
forwarded with this unprocessed photography.



Sec. 705.11  Supplying photographs and services to other than Navy and Marine Corps.

    (a) To avoid competition with civilian photographic organizations, 
naval aircraft will not be used to take photographs for, nor will 
photographs or mosaic maps be provided to any individuals, corporations, 
or agencies other than departments or agencies of the federal 
government, without specific permission from the Chief of Naval 
Operations.
    (b) In the case of natural catastrophe, or other circumstances where 
prompt action is required, the senior officer present may authorize a 
departure from the preceding paragraph. In all such cases, a report of 
the circumstances will be made to the Chief of Naval Operations.
    (c) This policy does not preclude releases to the media, news 
companies, and others in accordance with established procedures, or the 
sale of released photographs to private agencies or individuals under 
existing Department of Defense regulations and part 701, subparts A-D, 
Availability to the public of Department of the Navy Information and 
Records. Normally, requests by individuals for still photographs and 
motion picture photography for private use are forwarded to the 
Commanding Officer, Naval Photographic Center, Naval Station, 
Washington, DC 20390, for action. Procedures for the collection or 
authority for waiver of fees for service and material provided are set 
forth in Volume III, NAVCOMPT Manual, and part 701, subparts A-D.
    (d) Navy aerial photography released for sale to the public is 
transferred to the United States Department of the Interior. Inquirers 
regarding the purchase of this photography should be directed to Chief, 
Map Information Office, Geological Survey, Department of the Interior, 
Washington, DC 20025.
    (e) Navy training films suitable for sale to the public are 
transferred to the National Audio-Visual Center, National Archives and 
Records Service, General Services Administration, Washington, DC 20408. 
Inquires regarding the sale of Navy training films should be addressed 
to the National Audio-Visual Center.
    (f) This policy does not preclude releases to contractors and others 
properly engaged in the conduct of the Navy's business. However, when 
services are performed for other agencies of the government, and under 
certain conditions, for other military departments, the Navy Comptroller 
Manual prescribes that such are subject to reimbursement.

[[Page 143]]

    (g) All private inquiries from foreign nationals should be returned, 
advising the addressee to contact his local U.S. Information Service 
officer for the desired materials.



Sec. 705.12  Print media.

    Requests for reprints of items published in national media will be 
addressed to the Chief of Information. Commands will be careful not to 
reproduce on their own authority any copyrighted material without 
advance permission from the copyright holder.



Sec. 705.13  Commercial advertising.

    (a) The Navy encourages cooperation with advertisers. However, the 
layout, artwork and text of the proposed advertisement must be submitted 
to the Chief of Information for review and for clearance by other 
appropriate authorities.
    (b) Requests from commercial enterprises (including those with Navy 
contracts) for use of Navy personnel, facilities, equipment or supplies 
for advertising purposes must be referred to the Chief of Information.
    (c) Official Navy photos which have been cleared and are released 
for open publication may be furnished for commercial advertising, if 
properly identified and captioned. No photos will be taken exclusively 
for the use of an advertiser.
    (d) Navy cooperation in commercial advertising, publicity and other 
promotional activities will be based on the following requirements.
    (1) It must be in accordance with the provisions of 32 CFR part 721.
    (2) It must be in good taste and not reflect discredit on the Navy 
or the U.S. Government. Statements made must be matters of fact, without 
misleading information or other objectionable features.
    (3) It must not indicate that a product is used by the Navy to the 
exclusion of similar products offered by other manufacturers or appear 
to endorse or selectively benefit or favor (directly or indirectly) any 
private individual, sect, fraternal organization, commercial venture or 
political group, or be associated with solicitation of votes in a 
political election. It will not infer Navy responsibility for the 
accuracy of the advertiser's claims or for his compliance with laws 
protecting the rights of privacy of military personnel whose 
photographs, names or statements appear in the advertisement. It will 
neither indicate that a product has undergone Navy tests nor disclose 
data from any Navy tests which may have been made.
    (4) It may not promote the use of tobacco or alcohol.
    (e) Use of uniforms and naval insignias. These may be used provided 
it is done in a dignified manner.
    (f) Use of Naval personnel:
    (1) Personnel may receive no compensation.
    (2) Personnel will not be inconvenienced or have their training or 
normal duties interrupted.
    (3) Written consent from the person concerned must be obtained 
before a photo may be used.
    (4) Navy civilians and military personnel on active duty may not use 
their position titles or ranks in connection with any commercial 
enterprise or endorsement of a commercial product. (Retired personnel 
and Reserves not on active duty may use their military titles in 
connection with commercial enterprises if this does not give rise to the 
appearance of sponsorship of the enterprise by the Navy or Department or 
in any way reflect discredit upon them.)
    (5) Testimonials from naval personnel are not banned, but the person 
giving the testimonial must not be specifically identified.
    (i) The use of name, initials, rank or rate of Navy personnel 
appearing in testimonial advertising is not permitted, but such 
expressions as, ``says a Navy chief,'' may be used.
    (ii) Care will be taken to ensure that testimonials from Navy 
personnel are presented in such a way as to make clear that the views 
expressed are those of the individual and not of the Department of the 
Navy.



Sec. 705.14  Embarkation of media representatives.

    (a) General. (1) Although this paragraph applies primarily to 
embarkation in ships, provisions which are applicable to embarkation on 
aircraft

[[Page 144]]

or visits to shore installations apply also to those situations.
    (2) See also Sec. 705.37 on transportation of non-Navy civilians.
    (b) Invitations to embark. (1) Invitations should be extended as far 
in advance as possible and inclusive information on the following should 
be provided:
    (i) Type, scope and duration of operation or cruise.
    (ii) Communications, methods of press transmission, and charges, if 
any.
    (iii) Transportation arrangements.
    (iv) Approximate cost of meals and/or quarters, and the statement 
that the newsman will be expected to pay for these and other personal 
expenses incurred.
    (2) It should be made clear to the newsman that there may be limits 
on movement from one participating unit to another. If helicopters or 
highline transfers are to be used, their limitations and hazards should 
be explained.
    (3) On operations where security is critical, embarkation of newsmen 
may be made contingent to their agreement to submit copy for security 
review. Under such circumstances, the reason for the review will be made 
clear prior to embarkation, and every effort will be made to avoid any 
interpretation of such review as ``censorship'' or interference with 
freedom of the press.
    (c) Arrangements aboard ship. (1) Where appropriate, a briefing 
should be held at the earliest convenient time after embarkation at 
which newsmen may meet the commanding officer and other key personnel 
and guests and at which previously supplied information is reviewed.
    (2) If feasible, an escort officer will be assigned to each newsman 
(or group of newsmen having similar requirements).
    (3) It should be reported in the ship's newspaper (and on radio and 
closed-circuit TV, if any) that newsmen will be embarked, giving their 
names and the media they represent.
    (4) If a correspondent is interested in home town material, 
personnel from his area should be contacted in advance, if possible, to 
determine if and when they would be available for interviews and photos.
    (5) Representatives of press associations and radio and TV networks 
will be embarked in the Exercise Commander's flagship or the Exercise 
Control ship, when possible. This ship should also control the ship-to-
shore press radio and teletype (RATT).
    (6) When more than one representative from the same medium is 
embarked, an attempt should be made to have them located at separate 
vantage points.
    (d) Communications. (1) Every effort will be made to provide 
suitable communication facilities for newsmen embarked (including 
equipment and personnel, if feasible).
    (2) All persons embarked with permission of proper authority and 
accredited as correspondents are eligible to file press traffic, as 
authorized by the procedures set forth in Naval Telecommunication 
Procedures (NTP-9), ``Commercial Communications.''
    (3) Navy radio or wire transmission facilities, where available, may 
be made available to news media (including accredited civilian 
photographers) when operational requirements permit, in accordance with 
instructions set forth by the Director of Naval Communications. This 
includes making live broadcasts or telecasts. (A live network broadcast 
or telecast must, however, be approved by the Chief of Information.)
    (4) Messages and instructions from editors and station managers to 
embarked newsmen will be handled as press traffic, as authorized in 
Naval Telecommunication Procedures (NTP-9).
    (5) Stations receiving press circuits will be authorized to receipt 
for press traffic without asking for time-consuming ``repeats.''
    (6) Under normal circumstances, press copy will be transmitted on a 
first-come, first-served basis; however, newsmen will be informed that 
the prerogative of limiting the amount to be filed during any one period 
rests with the Exercise Commander.
    (7) If it becomes necessary for operational reasons for newsmen to 
pool copy, such messages shall be filed as ``multiple address messages'' 
or book messages, as appropriate, or when requested by the newsmen 
concerned.
    (8) If the locale of the exercise permits newsfilm and press mail to 
be

[[Page 145]]

flown ashore, flights should be scheduled on a high priority basis to 
connect with scheduled commercial air traffic. Operational aircraft as 
well as scheduled government air flights should be considered for 
delivery of television news film, radio tapes and photography to the 
nearest commercial communications facility.
    (e) Voluntary submission of material by a newsman for security 
review. When a review is not required but is sought by the newsman, no 
attempt will be made to delete or change any material, whether or not it 
appears critical of the Navy or of naval personnel. If any classified 
information is included, the newsman will be asked to delete it. In 
addition, his attention will be drawn to any inaccurate or possibly 
misleading statements.

[41 FR 29101, July 15, 1976, as amended at 44 FR 6390, Feb. 1, 1979]



Sec. 705.15  Employment of Navy personnel as correspondents or staff members of civilian news media.

    (a) A member of the naval service on active duty or Navy civilian 
may act as correspondent for a news periodical or service, radio or TV 
station or network, or may work part-time for such an organization. The 
Secretary of the Navy will, however, be immediately informed, via the 
Chief of Information.
    (1) See section 0307 (par. 5), section 0308 (par. 4), and section 
0309 (par. 3) of the Navy Public Affairs Regulations for regulations 
referring to personnel assigned to public affairs staffs receiving 
compensation for such work.
    (2) In time of war, only personnel assigned to public affairs 
billets and such other personnel as the Secretary of the Navy may 
authorize can act as correspondents for civilian media.
    (b) Military personnel on active duty and Navy civilians may not 
serve on the staff of a ``civilian enterprise'' newspaper published for 
personnel of a Navy installation or activity.



Sec. 705.16  Navy produced public information material.

    (a) Still photo--(1) General. (i) The policy and procedures given 
for media produced still photos in Sec. 705.10, apply to Navy produced 
photos.
    (ii) The Office of Information does not issue, nor have funds 
available for the purchases of, any photographic equipment or supplies 
for Navy commands. Details on the establishment of authorized 
laboratories and acquisition of equipment and supplies are given in the 
Manual of Navy Photography (OPNAVINST 3150.6D).
    (2) Photographic coverage of command events. (i) If more than two 
photographers are required to cover a public event, consideration should 
be given to having them wear appropriate civilian attire.
    (ii) Personnel in uniform who are amateur photographers and who are 
attending the event as spectators will not be discouraged from taking 
photos.
    (3) Unofficial photos taken by Navy personnel. (i) The following 
regulations apply to Navy civilian employees and to Navy personnel in 
transit through a command, as well as to active duty personnel assigned 
to the command.
    (ii) Personal cameras and related equipment are permitted on Navy 
ships, aircraft and stations at the discretion of the officer in 
command.
    (iii) An officer in command may screen all photos taken by naval 
personnel with personal cameras within the jurisdiction of the command 
to protect classified information or to acquire photos for official use, 
including public affairs. Photographs taken by bystanders at times of 
accident, combat, or similar significant events can be valuable for 
preparation of official report and public release. They should be 
collected for screening and review as expeditiously as possible.
    (iv) Amateur photographers should also be encouraged to volunteer 
the use of interesting or significant photos for public affairs use.
    (v) Photos made by naval personnel, with either personal cameras and 
film, Navy equipment and film, or any combination thereof, may be 
designated ``Official Navy Photo'' if it is considered in the best 
interests of the Navy.
    (A) All precautions will be taken to protect such film from loss or 
damage, and all unclassified personal photos not designated as 
``official'' will be returned to the owner immediately after review.

[[Page 146]]

    (B) When a photo taken by an individual who is not an official 
photographer is selected for public affairs release:
    (1) The photographer will receive credit for his work in the same 
manner as an official photographer.
    (2) The original negative or transparency will be retained and 
assigned an official file number. It will then be handled like any other 
official Navy photograph.
    (3) At least one duplicate negative or transparency of each 
unclassified personal photo which has been designated as ``official'' 
will be prepared and delivered to the photographer. A black-and-white 
print may also be prepared for the photographer's personal use.
    (b) Audiovisual. (1) The Chief of Information releases TV 
featurettes directly to local TV stations and the Office of 
Information's Branch Offices (NAV INFO's). After such featurettes have 
been cleared for public release by the Assistant Secretary of Defense 
(Public Affairs).
    (2) The Assistant Secretary of Defense (PA) must approve, prior to 
commitment of funds, the initiation of Navy audiovisual productions 
intended for public release.
    (3) Motion picture film.
    (i) Film of major news value will be forwarded immediately, 
unprocessed, to the Commanding Officer, U.S. Naval Photographic Center. 
The package should be labeled as follows:

                         News Film--Do Not Delay

Commanding Officer, U.S. Naval Photographic Center (ATTN: CHINFO 
Liaison), Washington, DC 20374.

                         News Film--Do Not Delay


The Commanding Officer of the Naval Photographic Center will be advised 
(with an information copy to the Chief of Information) of its 
forwarding, the subject, type and amount of footage, method of delivery, 
and estimated time of arrival in Washington.
    (ii) The original negative of motion picture photography of feature 
value (photography which will not lose its timeliness over a reasonable 
length of time) will be forwarded to the Naval Photographic Center, and 
a copy of the forwarding letter will be sent to the Chief of 
Information.
    (c) Fleet Home Town News Center (FHTNC). (1) All public affairs 
officers will assure that appropirate news and photo releases on 
personnel of their commands are regularly sent to the Fleet Home Town 
News Center.
    (2) Procedures, requirements and formats are contained in CHIN-
FOINST 5724.1.

[41 FR 29101, July 15, 1976, as amended at 44 FR 6390, Feb. 1, 1979]



Sec. 705.17  Participation guidelines.

    (a) The provisions of this section refer to participation by naval 
personnel and use of Navy facilities and material in events sponsored by 
nongovernment organizations except where otherwise stated.
    (b) In accordance with the established responsibilities of local 
officers in command, these officers will continue to determine whether 
facilities, equipment and personnel within their cognizance may be 
provided for such programs (except in the Washington, DC area where the 
Assistant Secretary of Defense (Public Affairs) is the authorizing 
authority).
    (c) Officers in command will ensure that participation is 
appropriate in scope and type, and is limited to those occasions which 
are: In keeping with the dignity of the Department of the Navy, in good 
taste and in conformance with the provisions of part 721 of this 
chapter. The national, regional, state or local significance of the 
event and the agency sponsoring the event will be used as guides in 
determining the scope and type of Navy participation to be authorized.
    (d) Participation in community relations programs is authorized and 
encouraged to accomplish the aims and purposes as set forth in 
Sec. 705.18 (following). Where mutually beneficial to the Department of 
Defense and the public, support authorized and provided is always 
subject to operational considerations, availability of requested support 
and the policy guidance provided herein.
    (e) Military personnel, facilities, and materiel may be used to 
support non-government public affairs programs when:

[[Page 147]]

    (1) The use of such facilities, equipment and personnel will not 
interfere with the military mission or the training or operational 
commmitments of the command.
    (2) Such programs are sponsored by responsible organizations.
    (3) Such programs are known to be nonpartisan in character, and 
there is no reason to believe that the views to be expressed by the 
participants will be contrary to established national policy.
    (f) The sponsoring organizations or groups will be clearly 
identified in all cases where naval personnel participate as speakers, 
or military support is furnished.
    (g) Public affairs programs sponsored by civilian organizations will 
not be cosponsored by a naval command unless expressly authorized by the 
Chief of Information.
    (h) Participation will not normally be authorized in public events 
when the presence of military participants deprives civilians of 
employment. Officers in command will screen all requests for use of 
material and personnel in Navy-sponsored social functions held off 
military installations.
    (i) Navy participation and cooperation must not directly or 
indirectly endorse, or selectively benefit, or appear to endorse, 
benefit or favor, any private individual, group, corporation (whether 
for profit or nonprofit), sect, quasi-religious or ideological movement, 
fraternal, or political organization, or commercial venture, or be 
associated with the solicitation of votes in a political election.
    (1) Providing use of government facilities, such as transportation, 
housing, or messing, at government expense to private groups is normally 
interpreted as a selective benefit or favor and is not authorized as 
part of a community relations program. Therefore, such provisions are 
normally not authorized as part of a community relations program, even 
though certain uses of facilities may be authorized under directives on 
domestic action or other programs.
    (2) The above does not bar private groups from providing 
entertainment on base. However, the appearance must be for entertainment 
and not for fund-raising, or any political or promotional purpose.
    (j) Community relations programs must always be conducted in a 
manner free from any discrimination because of race, creed, color, 
national origin, or sex.
    (1) Navy participation in a public event is not authorized if 
admission, seating and other accommodations and facilities are 
restricted in a discriminatory manner.
    (2) Exceptions for participation may be made under certain 
circumstances for an ethnic or ideological group when they do not 
entertain any purpose of discriminating against any other group. Any 
such exceptions must be referred to the Chief of Information for 
consideration.
    (3) Support to nationally recognized veterans' organizations is 
authorized when the participation is in support of positive programs 
which are not in themselves discriminatory.
    (4) Navy support to nonpublic school activities is authorized when 
the participation is clearly in support of educational programs or Navy 
recruiting.
    (5) Commands should ensure minority participation in all community 
relations activities and events, as appropriate. This includes but is 
not limited to the following:
    (i) Ensure that the minority community is aware of the procedure for 
obtaining Navy support for community events and that they are appraised 
of the use of Navy demonstration teams, units, and speakers.
    (ii) Encourage Navy involvement in, and attention to, local minority 
community events.
    (iii) Continue to cultivate a rapport with key members of all 
minority communities.
    (k) Participation is not authorized if there is fund raising of any 
type connected with the event, except as provided for in Sec. 705.34.
    (l) No admission charge may be levied on the public solely to see an 
Armed Forces demonstration, unit, or exhibit.
    (1) When admission is charged, the Armed Forces activity must not be 
the sole or primary attraction.
    (2) A general admission charge need not be considered prohibitory to 
Navy

[[Page 148]]

participation, but no specific or additional charge may be made because 
of Navy participation.
    (3) Participation shall be incidental to the event except for 
programs of a patriotic nature, celebration of national holidays, or 
events which are open to the general public at no charge for admission.
    (4) The provisions of this paragraph do not apply to the Navy's Blue 
Angel Flight Demonstration Team or to the Navy Band and other special 
bands engaged in authorized concert tours conducted at no additional 
cost to the government.
    (m) Some participation in or support of commercially sponsored 
programs on audio or visual media is allowable. See Secs. 705.7 and 
705.8.
    (n) Some participation which supports commercial advertising, 
publicity and promotional activities or events is allowable. See section 
0405, par. 3 of the Navy Public Affairs Regulations.
    (o) Navy speakers may be provided for certain events at which other 
forms of Navy participation may not be appropriate. See section 0604, 
par. 8 of the Navy Public Affairs Regulations.
    (p) When participation is in the mutual interest of the Navy and the 
sponsor of the event, participation will be authorized at no additional 
cost to the government. Additional costs to the government (travel and 
transportation of military personnel, meals and quarters, or standard 
per diem allowances, etc.) will be borne by the sponsor.
    (q) Department of Defense policy prohibits payment by the Armed 
Forces for rental of exhibit space, utilities, or janitorial costs. 
Other exceptions may be given under unusual circumstances.
    (r) Navy participation in professional sports events and post-season 
bowl games will frequently be authorized at no additional cost to the 
government, will emphasize Joint Service activity when possible, and 
must support recruiting programs. Chief of Information approval is 
required.
    (s) Navy participation in public events shall be authorized only 
when it can be reasonably expected to bring credit to the individuals 
involved and to the Armed Forces and their recruiting objectives. Naval 
personnel will not be used in such capacities as ushers, guards, parking 
lot attendants, runner or messengers, baggage handlers or for crowd 
control, or in any installations.
    (t) Maximum advantage of recruiting potential will be taken at 
appropriate events for which Navy participation has been authorized.
    (u) Navy support will not normally be authorized for commercially-
oriented events such as shopping center promotions, Christmas parades, 
and other such events clearly sponsored by, or conducted for the benefit 
of commercial interests. However, this policy does not preclude 
participation of Navy recruiting personnel and their organic equipment, 
materials and exhibits so long as their participation is not used to 
stimulate sales or increase the flow of business traffic or to give that 
appearance. Requests for exceptions will be considered on a case-by-case 
basis by the Chief of Information.
    (v) Questions as to appropriateness of Navy participation, or as to 
existing Navy and OASD (PA) policy, may be referred to the Chief of 
Information.
    (w) Procedures for requesting participation are addressed in 
Sec. 705.21.

[41 FR 29101, July 15, 1976, as amended at 44 FR 6390, Feb. 1, 1979]



Sec. 705.18  Authority and coordination.

    (a) Each naval command will coordinate its community relations 
program with the senior authority having responsibility for community 
relations in its area (District Commandant, Unified Commander, or 
other).
    (b) Within policy limitations outlined in this section, the command 
receiving a request for Navy participation, and processing the required 
resources, has the authority to process the request and provide the 
support requested.
    (c) Requests for support exceeding local capability, or requiring 
approval from higher authority, or requiring an exception to policy will 
be referred as directed in Sec. 705.21 for determination.
    (d) The Assistant Secretary of Defense (Public Affairs) has the 
overall responsibility for the Department of Defense community relations 
program. Civilian sponsors should be advised to address requests for 
approval of the following types of programs directly to

[[Page 149]]

the Director of Community Relations, Office of the Assistant Secretary 
of Defense (Public Affairs), Pentagon, Washington, DC 20301:
    (1) National and international events, including conventions, except 
those taking place in overseas areas which are primarily of internal 
concern to Unified Commanders.
    (2) Events outside the United States which have an interest and 
impact extending beyond the Unified Command areas, or which require 
assistance from outside the command area.
    (3) Public events in the Washington, DC area.
    (4) Aerial, parachute, or simulated tactical demonstrations held in 
the public domain, except those held in areas assigned to overseas 
Unified Commands.
    (5) Aerial reviews on military installations within the United 
States if the review involves more than one Service.
    (6) Programmed national sports, professional athletic events, formal 
international competitions, and contests between a Navy and professional 
team in the public domain. See section 0605, par. 18 of the Navy Public 
Affairs Regulations.
    (7) Performing Navy units appearing on regional or national 
television.
    (8) Overall planning for Armed Forces Day (not including local 
activities).
    (9) Granting exceptions to policy.
    (e) Overseas, Unified Commanders are designated to act for and on 
behalf of the Secretary of Defense in implementing community relations 
programs within their command areas and in granting any exceptions to 
policy or regulations. This authority may be delegated.
    (1) Policy, direction and guidance for Unified Command community 
relations programs are provided to Navy components of these commands by 
the Unified Commander concerned.
    (2) Authority of the Commander-in-Chief, Pacific extends to planning 
and execution of community relations programs in Alaska and Hawaii. 
Participation in events held in Alaska and Hawaii will be governed by 
the same principles as policies applicable to other states.
    (3) Community relations programs and events taking place within the 
United States which have an effect on a Unified or Specified Command as 
a whole, or are otherwise of significant concern to the Unified Command, 
require complete coordination through appropriate channels between the 
Unified Command and naval activities concerned.
    (4) Unified Commanders overseas requiring Navy support for a 
community reltaions program or participation in a public event should 
coordinate their requirements with the appropriate Navy component 
command.
    (f) The Secretary of the Navy will plan and execute Navy community 
relations programs and approve Navy participation in public events not 
otherwise reserved or assigned to the Secretary of Defense. This 
authority may be delegated.



Sec. 705.19  Financing.

    (a) The financial requirements for community relations purposes will 
be kept to the minimum necessary to accomplish Department of Defense 
objectives.
    (b) Costs of participation will normally be at government expense 
for the following types of events and programs when they are in the 
primary interest of the Department of Defense:
    (1) Public observances of national holidays.
    (2) Official ceremonies and functions.
    (3) Speaking engagements.
    (4) Programmed, scheduled tours by Navy information activity support 
units (e.g., an exhibit from the Navy Exhibit Center) when this method 
of reaching special audiences is considered by the Secretary of the Navy 
to be the most effective and economical way of accomplishing a priority 
public affairs program.
    (5) Tours by units (e.g., the Navy Band) for which appropriated 
funds have been specifically provided.
    (6) Support of recruiting.
    (7) Events considered to be in the national interest, or in the 
professional, scientific, or technical interests of the Navy or 
Department of Defense, when approved by the Secretary of Defense or the 
overseas Unified Commander, as appropriate.

[[Page 150]]

    (c) Navy participation in all other public events will normally be 
at no additional costs to the government.
    (1) Continuing type costs to the government which would have existed 
had the Navy not participated in the event will not be reimbursed by the 
sponsor.
    (2) Transportation costs may be excluded from the costs to be borne 
by the sponsor when the transportation can be accomplished by government 
aircraft on a normal training flight or opportune airlift.



Sec.  705.20  Use of Navy material and facilities.

    (a) The loan of equipment and permission to use facilities will be 
dependent on the following:
    (1) The program support must be within the command's public affairs 
responsibility.
    (2) The loan of the equipment must not interfere with the military 
mission of the command.
    (3) Equipment must be available within the command or obtainable 
from another Navy command in the local area.
    (4) The event must be of the type for which participation is 
considered appropriate.
    (5) It must not be in any direct or implied competition with a 
commercial source.
    (6) There must be no potential danger to persons or private property 
that could result in a claim against the government. Safety requirements 
will be observed.
    (b) Use of open mess facilities will be permitted only under one of 
the following conditions:
    (1) Incident to the holding of a professional or technical seminar 
at the command.
    (2) Incident to an official visit to the command by a civic group.
    (3) Navy League Council luncheon or dinner meetings (not to exceed 
one per quarter per group).
    (4) Incident to group visits by the Boy Scouts of America, Boys 
Clubs of America, the Navy League Sea Cadets (by virtue of their federal 
charters), Girl Scouts and the Navy League Shipmates, and a few 
representative adult leaders.
    (c) Use of the official Navy flag will be in accordance with 
SECNAVINST 10520.2C and of official emblem in accordance with OPNAVINST 
5030.11B.
    (d) Requests not meeting the criteria cited here, but which are 
considered by the officer in command to have merit, may be referred to 
the Chief of Information.

[41 FR 29101, July 15, 1976, as amended at 44 FR 6391, Feb. 1, 1979]



Sec.  705.21  Requests for Navy participation.

    (a) Decisions will be made on a case-by-case basis. Events which are 
inappropriate for one type of participation may be entirely appropriate 
for another type of participation. A positive and flexible approach 
should be employed.
    (b) Requests by civilian organizations for Navy participation in 
programs or events they sponsor should be addressed to the nearest naval 
installation and should be evaluated and authorized at that level if 
possible. Request exceeding local resoures, or requiring authorization 
from higher authority, should be forwarded through appropriate channels.
    (c) Requests for Armed Forces participation in public events are to 
be submitted on official request forms (Secs. 705.33, 705.34 and 705.36) 
by the sponsors of events occurring outside a command's area of direct 
knowledge and local capability, or involving a type or level of 
participation unavailable locally, or requiring approval of higher 
authority.
    (d) Fact sheets expounding upon normally requested assets are 
enclosed in Secs.  705.33, 705.34 and 705.36 and may be reproduced and 
distributed locally.
    (e) The official request form is to be used on all requests referred 
to the Chief of Information and to the Office of Assistant Secretary of 
Defense (Public Affairs).



Sec. 705.22  Relations with community groups.

    (a) Naval commands will cooperate with and assist community groups 
within their capabilities, to the event authorized by current 
instructions, and will participate in their activitis to the extent 
feasible.

[[Page 151]]

    (b) Navy commands will encourage membership of personnel in 
community organizations.
    (c) Officers in command will withhold approval of requests from 
community groups, organizations or individuals whose purposes are 
unclear, pending advice from the Chief of Information.
    (d) Commands may make facilities, less housing and messing, 
available to community groups, at no expense to the government, when it 
is in the best interest of the Navy to do so. Mess facilities may not be 
used for meetings of civic groups or other asociations unless all the 
members of the group concerned are authorized participants of the mess 
as prescribed in NAVPERS 15951, except as provided below:
    (1) Requests to make open mess facilities available to professional 
or technical seminars or civic groups meeting in connection with an 
official visit to the activity may be submitted to the officer in charge 
of the mess, or other appropriate authority. Such requests may be 
approved when it is shown that the inspection of the activity or the 
holding of a professional seminar is of principal importance and the use 
of mess facilities is incidental thereto.
    (2) Because of the exceptional nature of the Navy League, as 
recognized by the Secretary of the Navy, open mess facilities may be 
used for luncheon or dinner meetings of Navy League Councils, but not 
more often than once per quarter per group.
    (e) Relations with Industry and Labor in the Community (refer to 
SECNAVINST 5370.2F and DOD Directive 5500.7):
    (1) Relations with Navy contractors and with industry and business 
in general are the responsibility of the officer in command, with the 
assistance of his public affairs officer.
    (2) Navy commands will cooperate with industry and its 
representatives in planning and executing community relations projects 
of mutual interest.
    (i) Visits to commands will be scheduled for industrial and employee 
groups under the same conditions as for other civilian groups.
    (ii) A contractor may be identified in a news release, exhibit, or 
the like whenever the major responsibility for the product can be 
clearly and fairly credited to him. In such cases, both the 
manufacturer's name for the product and the Navy designation of it will 
be used.
    (iii) Commands will not solicit, nor authorize others to solicit, 
contractors to provide advertising, contributions, donations, 
subscriptions, etc. Where there is a legitimate need for industrial 
promotion items, such as scale models, the command will contact the 
Chief of Information for advice as to the procedure for requesting 
procurement.
    (iv) Similarly, if Defense contractors wish to distribute 
information material through official Navy channels, the Office of 
Information will be queried as to the desirability and feasibility of 
undertaking the desired distribution.
    (v) Visits to contractor facilities are governed by the provisions 
of DOD Manual 5520.22-M (Industrial Security Manual for Safeguarding 
Classified Information). If nationally known press representatives will 
be involved, prior approval must be obtained both from the contractor 
(via the Chief of Information) and from the Assistant Secretary of 
Defense (Public Affairs).
    (3) Commands will maintain the same relationship with labor unions 
as with other community groups and will not take action in connection 
with labor disputes. Personnel inadvertently or incidentally involved in 
labor disputes will consult officers in command for guidance.
    (f) Emergency Assistance to the Community:
    (1) Navy commands will offer and provide assistance to adjacent 
communities in the event of disaster or other emergency.
    (2) The Chief of Information will be advised immediately of action 
when taken, and copies of subsequent reports to the Chief of Naval 
Operations will be forwarded to the Chief of Information.
    (3) Navy commands will participate in planning by local Civil 
Defense officials.

[41 FR 29101, July 15, 1976, as amended at 44 FR 6391, Feb. 1, 1979]



Sec. 705.23  Guest cruises.

    (a) General policy. (1) The embarkation of civilian guests in Navy 
ships

[[Page 152]]

is appropriate in the furtherance of continuing public awareness of the 
Navy and its mission.
    (i) Examples of embarkations for public affairs purposes are (but 
not limited to): Individuals, community service clubs, civic groups, the 
Navy League, and trade and professional associations.
    (ii) Embarkation of media representatives on assignment is discussed 
in Sec. 705.14.
    (iii) Other categories may be established by the Secretary of the 
Navy, subject to the approval of the Secretary of Defense.
    (2) It has also been demonstrated that the occasional embarkation on 
cruises of families and personal guests of naval personnel has 
contributed materially to the morale of the family circle and has 
instilled in each individual a sense of pride in his ship. For further 
information see OPNAVINST 5720.2G.
    (3) Embarkations should be conducted within the framework of 
regularly scheduled operations; underway periods solely to accommodate 
guests are not authorized.
    (4) Commander-in-Chief, Pacific Fleet, Commander-in-Chief, Atlantic 
Fleet, Commander-in-Chief, U.S. Naval Forces Europe, Commander Military 
Sealift Command (and their subordinate commands if so designated), Chief 
of Naval Education and Training, and District Commandants may authorize 
the embarkation of female civilians for daylight cruises. Embarkation of 
civilians for overnight cruises must be authorized by the Chief of Naval 
Operations via the Chief of Information.
    (5) All guest visits are normally authorized on an unclassified 
basis.
    (6) In all instances, due precautions must be taken for the safety 
of the guests. (See section 0403, pars. 6(b) and, 6(e), of the Navy 
Public Affairs Regulations, for procedures to be followed in the case of 
death of, or injury to, civilians embarked on naval ships.)
    (7) For further information on policy, procedures, and eligibility 
criteria, see OPNAVINST 5720.2G.
    (b) Authority. (1) Authority to establish procedures for the conduct 
of the embarkation of guests for public affairs purposes (including the 
Secretary of the Navy Guest Cruise and Guest of the Navy Cruise 
programs, which are discussed in Sec. 705.24) is vested in the Secretary 
of the Navy. This authority is limited only insofar as the Chairman of 
the Joint Chiefs of Staff and the commanders of the Unified and 
Specified Commands (and their component commanders, if so designated) 
have the authority to use Navy ships to embark individuals other than 
news media representatives for public affairs purposes.
    (i) Public affairs embarkations originating within the geographical 
limits of the Unified Command will be approved by and coordinated with 
the commanders of such commands. This authority may be delegated. 
Requests for such embarkations originating with the subordinate fleet or 
force command of a Unified Command will be submitted via the operational 
chain of command, to the appropriate commander of the Unified Command, 
unless delegated.
    (ii) Requests for public affairs embarkations originating from any 
Navy source other than the Chairman of the Joint Chiefs of Staff, or the 
Unified and Specified Commanders or their subordinate commands, will be 
submitted to the Chief of Information, who will effect coordination with 
the Chief of Naval Operations and/or the Assistant Secretary of Defense 
(Public Affairs) as appropriate.
    (iii) When guests debark in a foreign port which is in the 
geographic area of a Unified Command other than that in which the cruise 
originated, the Chief of Information will coordinate travel by obtaining 
concurrence of all appropriate commanders and the approval of the Chief 
of Naval Operations, and the Assistant secretary of Defense (Public 
Affairs) as appropriate.
    (2) Officers in command to whom authority to embark guests for 
public affairs purposes is delegated will make maximum use of this 
authority.
    (c) Secretary of the Navy Guest Cruise and Guest of the Navy Cruise 
Programs. (1) The objective of these two programs is: To expose top-
level and middle-level opinion leaders in the fields of business, 
industry, science, education, and labor to the operation of the U.S. 
Navy, in order that they may gain a better understanding of its 
capabilities and problems, the complicated nature

[[Page 153]]

of modern sea-based equipment, and the high levels of responsibility and 
training required of Navy men and women.
    (2) In addition to policy contained in paragraph (c)(1) of this 
section, the following policy guidelines apply to the conduct of the 
Secretary of the Navy Guest Cruise and the Guest of the Navy Cruise 
Programs.
    (i) Secretary of the Navy Guest Cruise Program. (A) Only aircraft 
carriers and cruisers will be used.
    (B) Cruises will be conducted once each quarter on each coast, 
contingent upon the availability of appropriate ships.
    (C) The optimum number of guests is 15.
    (D) Guests will be drawn from top-level executives and leaders who 
have not had previous exposure to the Navy. ``Previous exposure'' is 
defined as active or reserve service in the U.S. Navy or U.S. Marine 
Corps within the last 10 years; membership in the Navy League or any 
other Navy-oriented organization; or participation in a cruise on a U.S. 
Navy ship in the last 10 years.
    (E) Whenever feasible, Secretary of the Navy Guests will be greeted 
by CINCLANTFLT or CINCPACFLT, or in their absence by the SOPA. 
Comprehensive unclassified briefings will be given dealing with the 
Navy's mission, fleet operations, and current problems.
    (F) Cruises will vary in length from 3 to 7 days, when appropriate, 
to conform with the operating schedule of the ship.
    (ii) Guests of the Navy Cruise Program. (A) All types of ships will 
be used. This will include carriers when available, after selection of a 
cruise for the Secretary of the Navy Guest Cruise Program.
    (B) Guest of the Navy Cruise guests will be drawn from middle-level 
executives and leaders who have not had previous exposure to the Navy. 
Guests should include persons who have direct impact on recruiting, such 
as secondary school principals, guidance counselors, coaches and 
teachers.
    (C) Cruises of relatively short duration (3 to 5 days) are 
preferred, although cruises up to 7 days are authorized. Protracted 
cruises will not be approved except for special circumstances.
    (D) Invitations will be extended by the District of Commandants. 
Invitations will include:
    (1) Statement of the purpose of the Guest of the Navy Cruise 
Program.
    (2) Authorization for embarkation and, if applicable, for COD 
flights, with instructions for reporting on board.
    (3) Name and rank of the commanding officer and, if applicable, name 
and rank of embarked flag officer.
    (4) A caution that guests should not accept the invitation unless 
they are in good health.
    (5) Statement to the effect that the tempo of operations might cause 
changes in scheduling which could result in the invitation having to be 
withdrawn.
    (E) The following necessary information may be included separately 
with a letter of invitation: Recommended wardrobe, passport and 
immunization requirements, availability of emergency medical and dental 
facilities, ship's store and laundry facilities, statement that guest's 
use of a camera will be authorized subject to certain restrictions, and 
a listing of those restrictions. In addition, the following statement 
will be included with each invitation, or form part of the attached 
information sheets:

    The Department of the Navy has no specific authority to use its 
funds to defray or reimburse any personal expenses of a navy guest. As a 
result, the Department of the Navy cannot provide you with 
transportation to the port of embarkation or from the port of 
debarkation back to your home. Your expenses for meals will be quite 
nominal while you are on board a naval ship or facility. You should make 
provision for any extraordinary expense which may arise. For example, if 
a personal or other emergency arises which necessitates your returning 
home during the cruise, you should be prepared to take commercial 
transportation at your own expense from the most distant point on the 
cruise itinerary.
    Navy ships and aircraft, by their very nature, present certain 
hazards not normally encountered on shore. These hazards require persons 
on board to exercise a high degree of care for their own safety.
    Acceptance of this invitation will be considered your understanding 
of the above arrangements and limitations.


[[Page 154]]


    (iii) Applicable to both programs. (A) Guests will provide their own 
transportation from home to the ship and return, and must reimburse the 
Navy for living and incidental expenses while embarked so that the 
program may be conducted at no additional expense to the government.
    (B) Because the number of billets available to accommodate all of 
the potential guests is limited, the guest's opportunity to communicate 
his experience to his associates must be considered. For this reason, 
one of the criteria for selection of guests will be their level of 
activity in civic, professional, and social organizations. In nominating 
and selecting guests, effort will be made to ensure that minority 
citizens are included as appropriate.
    (C) Atlantic cruises will be made on ships operating between East 
Coast ports, or between CONUS and the U.S. Caribbean ports of San Juan, 
PR, or Charlotte Amalie (St. Thomas), Virgin Islands. Pacific cruises 
will be made on ships operating between West Coast ports: Between CONUS 
and ports in Hawaii, Alaska, Mexico or Canada; or between ports within 
Hawaii or Alaska.
    (D) Guests will be informed of security restrictions. Unclassified 
photography should be permitted on board, as pictures renew guests' 
feelings of identification with a ship. Guests will be advised of areas, 
however, where photography is prohibited, and security regulations will 
be courteously but firmly enforced.
    (E) Guests will be billeted in officers quarters and normally 
subsisted in the wardroom. It is not necessary that guests be assigned 
individual rooms. Billeting with ship's officers promotes mutual 
understanding, and guests feel more closely identified with the ship's 
company. They will be invited to dine at least once in each mess on 
board, if the length of the cruise permits. Guests will be encouraged to 
speak freely and mingle with the crew.
    (F) Guests will be accorded privileges of the cigar mess 
commissioned officers mess (open) ashore--with the exception of package 
store privileges--and the use of ship's or Navy Exchange laundry and 
tailor shops. Other Navy Exchange privileges will be limited to purchase 
of items for immediate personal use.
    (G) Only emergency medical and dental care will be provided and then 
only where civilian care is not conveniently available.
    (1) In the event of injury to civilians embarked in Navy ships and 
aircraft or visiting naval activities, commanding officers will notify 
the Chief of information, the appropriate Commandant, and operational 
commanders, by message, of the injury and action taken.
    (2) In the event of an emergency not covered by Navy Regulations, 
the facts and circumstances will be reported immediately to the 
Secretary of the Navy.
    (H) Guests may be allotted time for side trips at their own expense 
when an itinerary includes naval activities or ports adjacent to 
recognized points of interest.
    (I) As a souvenir of the cruise, it is suggested that guests be 
provided with a photograph of the ship, perhaps suitably inscribed by 
the commanding officer prior to debarkation.
    (J) Any publicity will be limited to that initiated by the 
participants. Navy-sponsored publicity will be avoided unless sought by 
the participants. At the same time, media inquiries or inquiries from 
the general public will be answered fully, the purposes of the cruise 
program outlined and the fact stressed that no cost to the government is 
incurred.

[41 FR 29101, July 15, 1976, as amended at 44 FR 6391, Feb. 1, 1979]



Sec. 705.24  Exhibits.

    (a) Navy exhibits are representations or collections of naval 
equipment, models, devices and information and orientation material 
placed on public display for information purposes before audiences at 
conventions, conferences, seminars, demonstrations, exhibits, fairs, or 
similar events. Also included are general purpose displays in public 
buildings or public locations. Museums also occasionally request a Navy 
exhibit on a permanent or temporary loan basis.
    (1) Exhibits may be displayed in any appropriate location or event 
(including commercially owned spaces such as shopping centers, malls, 
etc.) provided

[[Page 155]]

it is clearly established that such areas are places the general public 
frequents and that the exhibit is not for the purpose of drawing the 
public to that location, and that it is determined that participation is 
in the best interests of the Department of Defense and the Department of 
the Navy.
    (2) [Reserved]
    (b) Exhibits will be used for the following purposes only:
    (1) To inform the public of the Navy's mission and operations.
    (2) To disseminate technical and scientific information.
    (3) To assist recruiting of personnel for Navy military service and 
for civilian employment in the Department of the Navy.
    (c) Exhibit requests and procedures:
    (1) Requests for Navy exhibits, other than local exhibits may be 
forwarded to the Navy Recruiting Exhibit Center via the local Navy 
recruiter with an information copy to the Chief of Information. The 
primary mission of the Navy Recruiting Exhibit Center is to support 
local Navy recruiters. Requests for exhibits for community relations 
events will be considered favorably only when not in conflict with 
recruiting requirements.
    (i) Requests for exhibits must be submitted well in advance of their 
proposed dates of use.
    (ii) Requests for mobile exhibits requiring tractor-trailer 
transportation should be forwarded prior to November 15th previous to 
the year desired. A tour itinerary of mobile exhibits will then be 
established for the following year.
    (iii) The period of time for which an exhibit is authorized will be 
determined by the nature of the event and the type of exhibit (e.g., 
equipment from local resources used for a local celebration would 
normally not be exhibited for more than three days; but, a formal 
exhibit at an exposition might remain for the duration of the event).
    (2) The office of the Assistant Secretary of Defense (Public 
Affairs) is the approving authority for Navy exhibits in events of 
international or national scope, or those requiring major coordination 
among the Armed Forces, or with other agencies of the Federal 
Government.
    (i) All Navy activities will forward such requests to the Chief of 
Information for coordination with the OASD (PA).
    (ii) Subordinate commands of a Unified Command will forward exhibit 
requests of the above types to the Unified Commander concerned, via the 
chain of command.
    (3) The official OASD(PA) Request Form for Armed Forces 
Participation will be used. See Armed Forces Request Form, Sec. 705.36.
    (4) Requests for exceptions to policy for exhibit displays should be 
forwarded to the Officer in Charge, Navy Recruiting Exhibit Center.
    (5) Policy guidance on costs is defined in Sec. 705.19.
    (6) Occasionally, a project officer will be assigned to coordinate 
use of the exhibit with the sponsor.
    (i) Project officers are normally commissioned officers, equivalent 
civilian personnel, local recruiters or reservists, who have been 
assigned the responsibility of coordinating Service participation in a 
special event.
    (ii) The project officer should establish immediate liaison with the 
sponsor.
    (iii) The project officer should assist in determining the actual 
location of the exhibit, make arrangements for assembling and 
disassembling the exhibit material, and supervise these operations.
    (iv) The project officer will ensure Navy and Department of Defense 
policies are followed, and will coordinate local news releases 
concerning Navy participation.

[41 FR 29101, July 15, 1976, as amended at 44 FR 6391, Feb. 1, 1979]



Sec. 705.25  Navy Exhibit Center.

    (a) The center is a field activity of the Chief of Information and 
is located in the Washington Navy Yard. Its primary mission is to 
produce, transport and display U.S. Navy exhibits throughout the United 
States. It also facilitates assignments of Navy combat artists and, 
additionally, produces exhibits for its own tours and for short-term 
loans to naval commands.
    (b) [Reserved]

[41 FR 29101, July 15, 1976, as amended at 44 FR 6391, Feb. 1, 1979]

[[Page 156]]



Sec. 705.26  Exhibit availability report.

    (a) A center index of exhibits which are available at the local 
level in each Naval District is maintained by the exhibit center. To 
achieve maximum effectiveness for an overall integrated program, an up-
to-date registry of all exhibits is required.
    (b) A current inventory of exhibits headquartered in Washington, DC, 
and managed by the Navy Recruiting Exhibit Center for scheduling 
purposes may be obtained by writing to: Officer-in-Charge, Navy 
Recruiting Exhibit Center, Washington Navy Yard, Washington, DC 20374.

[41 FR 29101, July 15, 1976, as amended at 44 FR 6391, Feb. 1, 1979]



Secs. 705.27-705.28  [Reserved]



Sec. 705.29  Navy Art Collection.

    (a) The U.S. Navy has continued to record its military actions, 
explorations, launchings, etc., in fine art form since before World War 
II. The present Navy Combat Art Collection contains over 4,000 paintings 
and sketches. A significant number of new works is being added each 
year. The combat artists of World War II have been replaced by civilian 
artists who witness today's Navy in action, record their impressions, 
and donate their works of art to the Department of the Navy.
    (1) The voluntary services of most of the artists are arranged 
through the Navy Art Cooperation and Liaison Committee (NACAL) which 
operates in close cooperation with the Salmagundi Club of New York City 
and the Municipal Art Department of the City of Los Angeles.
    (2) The Chief of Information has established liaison with the 
Salmagundi Club in order to maintain a continuing historical record of 
the Navy. Organized in 1871, the Salmagundi Club is the oldest club of 
professional artists in the United States. The Club appointed a Navy Art 
Cooperation and Liaison (NACAL) Committee to advise the Navy on art 
matters and to nominate artists for assignment to paint Navy activities 
through the world. The Chief of Information reviews the nominations, and 
issues SECNAV invitational travel orders to each artist approved.
    (3) The following policy pertains:
    (i) All finished art portraying the Navy and produced by Navy 
artists on active duty for that purpose and by guest artists working 
under invitational travel orders becomes the property of the Department 
of the Navy.
    (ii) Civilian artists selected to paint Navy life through 
cooperation of a private sponsor and the Chief of Information may be 
authorized by the Chief of Information or the Office of the Secretary of 
Defense to retain their works.
    (iii) Paintings, sketches, drawings and other forms of artwork will 
not be accepted by the Department of the Navy unless all reproduction 
rights are surrendered and unless they become the permanent property of 
the Department of the Navy.
    (iv) Requests for reproduction of combat art for use in advertising 
or publication will be directed to the Chief of Information.
    (b) Responsibilities:
    (1) The Chief of Information exercises supervision and control of 
the Navy Art Program and issues SECNAV invitational travel orders and 
letters of invitation to artists selected for assignment.
    (2) When directed by the Chief of Information or other appropriate 
Navy authority, a NACAL project officer will perform the following 
functions:
    (i) Act as a local liaison officer for the NACAL Program.
    (ii) Assist NACAL artists on assignments within his area.
    (3) The Curator Navy Combat Art Center, in coordination with the 
Chief of Information, will:
    (i) Plan trips for the NACAL Program.
    (ii) Approve requests for art displays.
    (iii) Provide logistic support for the maintenance, storage, 
shipment and display of the Navy Combat Art Program.
    (c) Requests for art displays should be forwarded to the Director, 
Community Relations Division, Office of Information, Navy Department, 
Washington, DC 20350.
    (d) Exhibition of Navy Art:
    (1) Operation Palette I'' is a carefully selected group of 75 to 100 
combat art

[[Page 157]]

paintings depicting Navy and Marine Corps activities during World War 
II. The schedule of ``Operation Palette I'' is promulgated by the 
Officer-in-Charge, Navy Recruiting Exhibit Center and supervised by the 
Chief of Information, with the concurrence of District Commandants. 
Schedules are arranged so that the exhibition travels within a 
particular Naval District for several months at a time. District 
Commandants designate project officers for each city where ``Operation 
Palette I'' is exhibited. The project officer makes all arrangements, 
including suitable location, publicity and personnel to assist the chief 
petty officer who travels with the collection. Promotional kits are 
provided by the Officer-in-Charge, Navy Recruiting Exhibit Center. 
Requests for exhibitions are not desired, since the collection always 
travels on a prearranged tour.
    (2) ``Operation Palette II'' consists of 75 to 100 paintings 
representative of the worldwide operations of the contemporary Navy and 
Marine Corps * * * the Navy today * * *, and travels on prearranged 
tours similar to ``Operation Palette I.''
    (3) Other exhibitions of original paintings from the Combat Art 
Collection may be scheduled on request by either Navy commands or 
civilian art groups. Requests should be directed to the Director, 
Community Relations Division, Office of Information, Navy Department, 
Washington, DC 20350 and contain the following:
    (i) The occasion.
    (ii) Inclusive dates. (Not less than 10 days or more than 90 days 
sub-custody.)
    (iii) Expected attendance and type of publicity planned.
    (iv) Amount of space allotted.
    (v) If Navy-sponsored show, certification that 24-hour security will 
be provided for the paintings while in custody.
    (vi) If civilian-sponsored show, statement that transportation and 
insurance requirements will be met. (Physical security must be available 
for exhibit, with an attendant on duty during open hours and locked 
building or other means of protecting exhibit when closed to the 
public.)
    (e) Navy Combat Art Lithograph Program:
    (1) This program makes available full color, high quality 
lithographs which are faithful reproductions of the original artwork on 
quality paper of selected works of art from the Navy Art Collection.
    (2) Additional information and ordering details are contained in 
CHINFO NOTICE 5605, which is issued periodically.

[41 FR 29101, July 15, 1976, as amended at 44 FR 6391, Feb. 1, 1979]



Sec. 705.30  Aerospace Education Workshop.

    (a) This program is devised by the Navy to give students at colleges 
and universities conducting teacher training a comprehensive background 
in the field of aviation. The teachers in turn integrate this knowledge 
into their education programs.
    (b) Appropriate commands are encouraged to provide assistance to 
educational institutions sponsoring the workshop program: Provided, That 
such support does not interfere with the command's primary mission and 
that such cooperation involves no additional expense to the government.
    (c) The Chief of Naval Operations has cognizance of all assistance 
provided by the Navy to all Aerospace Education Workshop program. A 
summary report of local command participation in Aerospace projects will 
be submitted to the Chief of Naval Operations via the appropriate chain 
of command. Information copies of such reports will be sent to 
Commander, Navy Recruiting Command and the Chief of Information. For 
further information see OPNAVINST 5726.1C.



Sec. 705.31  USS Arizona Memorial, Pearl Harbor.

    (a) Limited space and the desirability of keeping the Memorial 
simple and dignified require the following practices to be observed:
    (1) Rendering of formal ceremonies on the USS Arizona Memorial will 
be confined to Memorial Day.
    (2) Observances on December 7, or any other date, at the request of 
individuals or organizations, will consist of

[[Page 158]]

simple wreath-laying, or other appropriate expressions conducted with 
dignity.
    (3) Plaques intended for display on the Memorial may be presented by 
headquarters of national organizations only. Plaques from regional, 
state or local organizations cannot be accepted. Only one plaque will be 
accepted from any organization. The overall size of the plaques, 
including mounting, must be no larger than 12 inches square.
    (b) The Commandant, Fourteenth Naval District, is designated to 
coordinate all formal or informal observances involving the Memorial.



Sec. 705.32  Aviation events and parachute demonstrations.

    (a) Armed Forces aircraft and parachutists may be authorized to 
participate in appropriate in public events which meet basic Department 
of Defense criteria. This participation may be one of the officially 
designated military flight or parachute demonstration teams, flyover by 
aircraft, a general demonstration of capabilities by aircraft, or the 
static display of aircraft.
    (b) Events which are appropriate for aviation participation include: 
Dedication of airports; aviation shows; aircraft exposition; air fairs; 
recruiting programs; civic events which contribute to the public 
knowledge of naval aviation equipment and capabilities and to the 
advancement of general aviation; public observances of certain national 
holidays (Armed Forces Day, Veterans Day, Memorial Day and Independence 
Day); national conventions of major veterans organizations; memorial 
services for deceased, nationally recognized dignitaries; and receptions 
for foreign dignitaries.
    (c) Support of Armed Forces recruiting is the primary purpose of 
military flight and parachute demonstration teams. Armed Forces 
recruiting teams are available to assist sponsors in coordinating 
advance publicity and information coverage to insure maximum exposure 
for the demonstration team and the event. This assistence is at no 
additional expense to the sponsor; however, the sponsor is required to 
give full support to the recruiting effort and to cooperate fully with 
local service officials. Such support could include (but is not limited 
to) the provision of prime space for recruiters at the event site and 
the provision of courtesy passes in controlled quantities to recruiters 
for the purpose of bringing recruit prospects and recruiting advisors to 
view the show.
    (d) DOD support of air show fund raising efforts in the form of 
provision of military flight and parachute demonstration teams is 
limited to charities recognized by the Federal Services Fund-Raising 
Program. These include such agencies as the United Givers Fund, 
Community Chests, National Health Agencies (as a group), International 
Service Agencies and the military aid societies. Armed Forces support to 
fund-raising events for a single cause, even though the charity is a 
member of a federated or joint campaign or donates in part to one or 
several of the campaigns, is inconsistent with the basic position of 
Department of Defense. The name of the nearest Combined Federal Campaign 
coordinator will be supplied to the sponsor, or if he chooses, he might 
elect to work with the local United Givers Fund (Community Chest). As a 
minimum, the sponsor must agree to provide at least half of the profit 
above costs to the Combined Federal or United Givers Campaigns to 
receive Armed Forces support.
    (e) Request form. This form is used to request military flight and 
parachute demonstration team participation in public events. The 
information is required to evaluate the event for appropriateness and 
compliance with Department of Defense policies and for coordination with 
the units involved.

                                 General

1. Title of Event_______________________________________________________
Town or City: -------------- State:_____________________________________
Date: ---------------- Time--From:______________________________________
To: -------- Place: (Airport, etc.)_____________________________________
2. Sponsor:_____________________________________________________________
3. The sponsor (is) (is not) a civic organization and the event (does) 
(does not) have the official backing of the mayor.
4. The sponsoring organization (does) (does not) exclude any person from 
its membership or practice any form of discrimination in its functins, 
based on race, creed, color or national origin.
5. Sponsor's representative authorized to complete arrangements for 
Armed Forces

[[Page 159]]

participation and responsible for reimbursing Department of Defense for 
accrued expenses when required:

Name:___________________________________________________________________
Address:________________________________________________________________
City, State: ------------------ Zip:____________________________________
Telephone: (Office) -------- (AC)_______________________________________
________________________________________________________________________
(home) -------------------- (AC)________________________________________
________________________________________________________________________
6. Purpose of this event (explain fully):_______________________________
________________________________________________________________________
7. Expected attendance:_________________________________________________
8. Is this event being used to promote funds for any purpose?___________
9. Admission charge:____________________________________________________
``Charge for seating:___________________________________________________
10. Disposition of profits which may accrue:____________________________
11. Will admission, seating and all other accommodations and facilities 
connected with the event be available to all persons without regard to 
race, creed, color or national origin?__________________________________
12. Will the standard Military Services allowance for quarters and meals 
be provided by the sponsor for Armed Forces participants?_______________
13. Will transportation at sponsor's expense be proviced for Armed 
Forces participants between the site of this event and hotel?
________________________________________________________________________
14. Will telephone facilities, at sponsor's expense, be made available 
for necessary official communications regarding the event?______________
________________________________________________________________________
15. It may be necessary for representatives of the requested unit to 
visit the site prior to the event. Will transportation, meals and hotel 
accommodations be provided by the sponsor?______________________________
________________________________________________________________________
16. Please describe the space which will be provided to recruiters:_____
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________
17. Designate charity beneficiary(s):___________________________________
________________________________________________________________________

             Flight Team, Parachute Team, Flyovers, Statics

1. This request is for (check appropriate line):

Flight Team Demonstration...................................  ..........
U.S. Navy Blue Angels.......................................  ..........
U.S. Air Force Thunderbirds. (Cost for either team is         ..........
 $1500.00 for each day team scheduled at your event.).......
Aircraft Flyover: (No cost to sponsor.).....................  ..........
Static Aircraft: (Cost is $25.00 per day per crewmember.)...  ..........
U.S. Army Silver Eagles: (Cost for this team is $750.00 for   ..........
 each day team scheduled at your event.)....................
Parachute Team Demonstration U.S. Army Golden Knights: (Cost  ..........
 is $25.00 per day per man for each day required to support
 your event. Team consists of 10-14 personnel.).............
(Other).....................................................  ..........
 

2. Flight and/or Parachute Team demonstrations are restricted to 
appropriate events at airports, over open bodies of water, or over 
suitable open areas of land. Please give the specific location of your 
event___________________________________________________________________
________________________________________________________________________
If an airport, name of airdrome facility and longest usable landing 
runway. Airport:________________________________________________________
________________________________________________________________________
Runway data:----------------------------feet.
3. Flyovers, Flight and Parachute Team demonstrations require that 
sponsors secure FAA clearance or waiver. Will steps be taken by sponsor 
to accomplish this at least sixty days prior to the event?______________
4. Flight and Parachute Team demonstrations must adhere to FAA 
regulations which specify that spectators not be permitted within 1500 
feet of an area over which the flight demonstration takes place, or 250 
feet of the jump area over which parachutists are performing. What type 
of crowd control is planned?____________________________________________
________________________________________________________________________
5. Flight and Parachute Team demonstrations require that an ambulance 
and a doctor be on the site during the demonstration. Will this 
requirement be met?_____________________________________________________
6. Flight and Parachute Team demonstrations require that the sponsor 
provide a recent aerial photograph, taken vertically from an altitude of 
5,000 feet or higher, to the team(s) giving the demonstration. Will this 
requirement be met?_____________________________________________________
7. Flight Team demonstrations and Static Aircraft displays require that 
the sponsor provide suitable aircraft fuel (JP jet fuel or aviation gas, 
as appropriate) and pay the cost of transporting and handling this fuel, 
if it is not available at the staging airport under military contract 
prices. Will this requirement be met?___________________________________
8. Flight Team demonstrations and Static Aircraft displays require 
mobile firefighting, crash and ground-to-air communications equipment at 
the demonstration site. Will this requirement be met?___________________
9. Flight Teams and Static Aircraft displays require that the sponsor 
provide guards for the aircraft that land and are parked at the site 
during their entire stay. Will this requirement be met?_________________
10. Parachute Team demonstrations may require that the sponsor arrange 
aircraft transportation from the team's home base to the location of the 
event, for use as a jump platform and return to the home base. Will this 
requirement be met, if necessary?_______________________________________
________________________________________________________________________

[[Page 160]]

11. Name and address of any Armed Forces representative or government 
official with whom you have discussed possible participation:___________
________________________________________________________________________

                              Certification

    I certify that the information provided above is complete and 
correct to the best of my knowledge and belief. I understand that 
representatives of the Military Services will contact me to discuss 
arrangements and costs involved prior to final commitments.

Signature:______________________________________________________________
                                              (Sponsor's Representative)

Date of Request:________________________________________________________
Return this form to:____________________________________________________

    (f) Definitions. A flight team demonstration is an exhibition of 
precision aerial maneuvers flown by the official Department of Defense 
military flight demonstration teams, the U.S. Air Force Thunderbirds, 
the U.S. Navy Blue Angels and the U.S. Army Silver Eagles. An aircraft 
demonstration is a flight demonstration by aircraft other than those of 
the teams listed above and designed to portray tactical capabilities of 
aircraft by a single aircraft (i.e., the U.S. Marine Corps ``Harrier'') 
or group of aircraft, including air-to-air refueling, helicopter hover 
and pick-up or rappelling capabilities, Low Altitude Parachute 
Extraction System, maximum performance take-off, etc. A parachute 
demonstration is an exhibition of free-fall and precision landing 
techniques by the official DOD parachute team, the U.S. Army Golden 
Knights. Other parachute demonstrations can be performed by the U.S. 
Navy Parachute Team, or another unofficial team or sports parachute club 
representing the Department of Defense. A flyover is a flight of not 
more than four aircraft over a fixed point at a specific time and does 
not involve precision maneuvers or demonstrations. Flyovers are 
authorized for certain events when the presence of Armed Forces aircraft 
overhead would contribute to the effectiveness of the event based on a 
direct correlation between the event and the aircraft. Flyovers can also 
be authorized for occasions primarily designed to encourage the 
advancement of aviation and which are of more than local interest. 
Flyovers by any of the official DOD flight teams are not authorized. 
Parades are not considered an appropriate event for authorizing flyover 
support. The static display of aircraft is the ground display of any 
military aircraft and its related equipment, not involving flight, 
taxiing or starting of engines.
    (g) Events which are appropriate for Armed Forces aviation 
participation in the public domain include such activities as dedication 
of airports and facilities, aviation shows, expositions, and fairs; and 
other civic events which contribute to the public knowledge of the U.S. 
Military Services aviation equipment and capabilities. The number one 
priority for utilization of military aircraft and parachutists in such 
events in the public domain is to support the recruiting aspects of the 
all-volunteer force concept. The approval of any such military 
demonstration will only be authorized if a maximum recruiting benefit 
exists at each location.
    (h) Costs. (1) The cost for either the United States Air Force 
Thunderbirds or the United States Navy Blue Angels will be $1500 for 
each day a demonstration is scheduled. If the United States Army Golden 
Knights precision parachute team is scheduled for your event, the cost 
will be $25 per man per day for each day required to support your event, 
to include the days of travel if required. Under normal conditions, this 
group is comprised of fourteen members: Nine jumpers, three aircraft 
crewmen, one ground controller, and a narrator. The sponsor will be 
advised by the Golden Knights in advance of the costs related to his 
event for which the government must be reimbursed. The United States 
Army Silver Eagles helicopter team, composed of seven helicopters, 
performs precision formation manuevers and solo helicopter aerobatics to 
demonstrate the capabilities of modern helicopters and the skill of Army 
aviators. The Silver Eagles performance lasts about 30 minutes and is 
conducted entirely in full view of spectators on the crowd line. The 
cost for the team is $750 for each day a demonstration is scheduled. The 
sponsor should make a check payable to the Treasurer of the United 
States for the required amount and present it to the appropriate 
demonstration team commander in advance of the scheduled event.

[[Page 161]]

    (2) Costs associated with static aircraft are normally $25 per day 
for each crew member plus possible fuel requirements discussed below. 
Charges for any other military parachuting demonstration (i.e., U.S. 
Navy Parachute Team, local Armed Forces sport parachute clubs, etc.) 
will depend on the number of personnel and transportation involved. 
Checks payable to the Treasurer of the United States should be made 
available to the appropriate aircraft commander for static displays or 
parachute team commander upon arrival at the event.
    (i) As noted in the Department of Defense request form, the sponsor 
is required to pay per diem costs for team and static display crew 
members except for flyovers or aircraft demonstrations not involving 
landing.
    (3) These costs are binding after a team or crew personnel have 
arrived at the show site, even though weather conditions or other 
unforeseen circumstances force the event to be cancelled. These funds 
provided by the sponsor will be utilized by team members or crew 
personnel for paying housing and subsistence costs. The actual breakdown 
of the per diem involved is $13.20 for housing, $9.30 for subsistence, 
and $2.50 for incidental expenses. In those locations where housing and 
subsistence cannot be procured for these amounts, it will be the 
responsibility of the sponsor to absorb the additional cost. As stated, 
these costs will cover participation but does not include certain ground 
support requirements (i.e., ground transportation, telephone, etc.) to 
be furnished by a sponsor as outlined in a team support packet.
    (4) Other costs that could be incurred by the sponsor are in the 
area of the sponsor's agreement to provide suitable aircraft fuel 
(defined as JP jet fuel or aviation gas and lubricants) at U.S. 
Government contract prices. Where fuel is available from local military 
stocks--usually military installations--or when fuel is available from 
commercial into-plane contract locations, the U.S. Government will pay 
all fuel costs. If military contract fuel is not available at the show 
site, the sponsor will be required to pay all costs above the contract 
price and that price charged by the local supplier. However, the sponsor 
may choose to transport military contract fuel from a military base or a 
commercial airport having a U.S. Government into-plane contract. In this 
case, his cost would be only the transporting and handling of this fuel 
to the show site.
    (5) The Department of Defense no longer requires the sponsor to 
provide the Department with a public liability and property damage 
insurance policy. This should in no way deter the sponsor from obtaining 
such liability and property damage insurance he feels is necessary for 
his own protection. Due to the costs that could accrue to the sponsor in 
case of cancellations because of inclement weather, the sponsor may wish 
to consider rain insurance to protect his investment. Previous sponsors 
have advised us that such insurance is available from most commercial 
companies.
    (i) Other information. (1) Flight and/or parachute team 
demonstrations are restricted to appropriate events at airports, over 
open bodies of water, or over suitable open areas of land. For the U.S. 
Air Force Thunderbirds or U.S. Navy Blue Angels to operate from an 
airport show site, the following operational requirements must be met:
    (i) Minimum useable runway length for the Thunderbirds is 5000 feet 
by 150 feet in width.
    (ii) Minimum useable runway length for the Blue Angels is 6000 feet 
by 150 feet in width.
    (iii) Minimum single landing gear load bearing capacity for 
Thunderbirds is 45,000 pounds; for Blue Angels, 21,000 pounds. Tandem 
landing gear load bearing capacity is 155,000 pounds for Blue Angels and 
Thunderbirds.
    (2) A staged performance may not be given if the location planned 
for the show site does not meet these minimums. The maximum distance for 
a staged performance'' under normal conditions is 50 nautical miles. It 
should be noted that staged performances are seldom authorized since the 
recruiting potential is reduced at such events.
    (3) The type and number of static and/or flyover aircraft which may 
be assigned is entirely dependent upon the Military Services' capability 
to provide such resources at the time of your

[[Page 162]]

event. This capability is affected by operational commitments and 
sponsors are advised that confirmation of static/flyover aircraft cannot 
be made by the appropriate Service more than 15-30 days before your 
event.
    (4) The U.S. Army Silver Eagles are normally restricted to 
performances at airports. Other open land areas may be operationally 
suitable but require the prior approval of the team commander in each 
case.
    (5) Only one flight demonstration team and a parachute demonstration 
team may be authorized for any one event. Military aircraft 
demonstrations may not be authorized for events on the days a flight 
team is participating. A flyover is not authorized when a flight team is 
participating unless it can be provided by a locally-based National 
Guard or Reserve component.
    (6) Participation by the U.S. Navy Blue Angels and the U.S. Air 
Force Thunderbirds is normally limited to two consecutive years in any 
one event. This usually involves one appearance by each of the two 
flight teams. This provision may be waived when other appropriate 
requests have not been received, when the team is performing in the same 
geographical area and has open dates or when the event is national or 
international in nature and participation would be in the best interests 
of Department of Defense. Participation in an event is normally limited 
to two days unless a third day can be included without preempting other 
requests.
    (7) Sponsors are required to obtain a Federal Aviation Agency (FAA) 
waiver for any demonstration by military aircraft and/or parachutists in 
the public domain. The final authorization for such Armed Forces 
participation hinges upon the sponsor securing this waiver far enough in 
advance to permit adequate planning (normally not later than 60 days 
prior to the event). Further guidance on the details of obtaining this 
waiver will be contained in the team support packet or FAA. FAA 
regulations require that spectators be confined 1500 feet from a flight 
or aircraft demonstration and 250 feet from a parachute demonstration.
    (i) In some cases, parachute demonstrations require that the sponsor 
arrange for appropriate transportation for the team and equipment from 
its home station to the event and return.
    (ii) Mass parachute jumps, drops of equipment, assault aircraft 
demonstrations, or tactical helicopter troop landings under simulated 
tactical conditions, will be limited to military installations. These 
activities, except those scheduled as part of regular training programs, 
are not authorized for public events in the civil domain.
    (8) When civilian air racing is involved in an event where Armed 
Forces participation has also been scheduled, prize monies must come 
from sources other than admission charges.
    (9) Flight team, parachute and aircraft demonstrations also require 
that the sponsor provide: (i) Recent aerial photograph of the site; (ii) 
an ambulance and doctor at the site; and (iii) Guards for the Armed 
Forces aircraft during their entire stay. The aerial photograph should 
be recent, taken vertically from at least 5,000 feet.
    (10) Maximum advantage of Armed Forces recruiting will be taken at 
appropriate events in the public domain where demonstrations by military 
aircraft and parachutists have been authorized.
    (11) Exception to the policies contained herein will only be 
considered by OASD(PA) on events of national or international 
significance.
    (12) Department of Defense hosts a scheduling conference in mid-
December each year to prepare U.S. Air Force Thunderbirds, U.S. Navy 
Blue Angels, U.S. Army Golden Knights and U.S. Army Silver Eagles 
participation schedules for the ensuing year. All requests for such 
demonstrations from sponsors should reach OASD(PA) prior to the middle 
of November each year to be considered at this conference. In order to 
accommodate many requests Department of Defense receives for other 
parachuting demonstrations, aircraft demonstrations, static aircraft 
displays, and flyovers, each request must be received by OASD(PA) a 
minimum of 30 days in advance of the event and preferably 60 days in 
advance.

[[Page 163]]

    (13) If there are any points that a member of the public might wish 
to have clarified, contact Chief, Aerial Events Branch, OASD(PA), Room 
1E790, The Pentagon, Washington, DC 20301. Telephone: AC (202) 695-6795 
or 695-9900.



Sec. 705.33  Participation by Armed Forces bands, choral groups, and troops in the public domain.

    (a) Military musical participation in public events which otherwise 
meet the criteria outlined herein will be limited to patriotic programs 
as opposed to pure entertainment and will not duplicate a performance 
within the capability of a civilian group. For example, music to 
accompany the presentation of the national colors, or a performance of 
military or patriotic music by a military band, drum and bugle corps or 
choral group may be authorized; background, dinner, dance or other 
social music is considered ``entertainment.''
    (b) Requests received for military musical participation in 
appropriate events in the civilian domain must include an indication 
from the sponsor that there is no conflict with the local civilian 
musicians concerning the appearance of Navy musicians. A statement to 
this effect from the cognizant local musicians' union must be obtained 
by the sponsor and attached to his request.
    (c) Armed Forces musical units may be authorized to provide certain 
specified musical programs in the public domain. The performance must 
not place military musicians in competition with professional civilian 
musicians. Background, dinner, dance or other social music cannot be 
authorized. The specified programs which may be authorized usually 
include a short opening or closing patriotic presentation. Musical 
selections normally consist of a medley of military or patriotic songs, 
honors to the President or Vice President (if he is there), or music to 
accompany the presentation of colors by a Color Detail.
    (1) Armed Forces musical units may be authorized to participate in 
official government, military and civic functions.
    (i) Official government functions include those in which senior 
officials of the Federal government are involved in the performance of 
their official duties.
    (ii) Official military functions include social activities held on 
military installations (or off when the Military Service certifies that 
suitable facilities are not available on post) which are sponsored by 
the Military Services, have as their principal purpose the promotion of 
esprit de corps, and are conducted primarily for active duty personnel 
and their guests.
    (iii) Official civic functions include such State, county or 
municipal events as inaugurals, dedication of public buildings and 
projects, the convening of legislative bodies, and ceremonies for 
officially invited government visitors.
    (2) Armed Forces musical units may also be authorized to provide 
patriotic and military programs at national conventions and meetings of 
nationally-recognized civic, patriotic and veterans organizations.
    (d) Bands, drill teams and other units can normally participate at 
no cost to the sponsor if the event is within the installation's 
immediate community relations area (approximately 100-mile radius).
    (1) Normally, not more than one band or other musical unit will be 
authorized for a parade in the civilian domain. This guidance intended 
to assure widest possible participation in public events of local 
interest (particularly on national holidays) does not apply to national 
convention of veterans' groups or other events having national 
significance.
    (2) All Armed Forces participation in international and national 
events, and in the Washington, DC area, must be authorized by the 
Assistant Secretary of Defense (Public Affairs).
    (3) Requests for Armed Forces musical or troop units when no 
military installation is accessible, or for the Washington, DC-based 
ceremonial bands or troop units (when the event is outside the 
Washington, DC area), should be addressed to the parent Service of the 
unit:


[[Page 164]]



                              (I) U.S. Army

Chief of Public Information, Department of the Army, Washington, DC 
20310.

                             (II) U.S. Navy

Chief of Information, Code OI-321, Department of the Navy, Washington, 
DC 20350.

                          (III) U.S. Air Force

Director of Information, Secretary of the Air Force, Community Relations 
Division, Washington, DC 20330.

                         (IV) U.S. Marine Corps

Commandant of the Marine Corps, Code AG, Headquarters, U.S. Marine 
Corps, Washington, DC 20380.

    (4) Armed Forces units may not be authorized to participate when:
    (i) The event directly or indirectly endorses or selectively 
benefits or favors (or appears to do so) any private individual, 
commercial venture, sect, fraternal organization, political group, or if 
it is associated with solicitation of votes in a political election.
    (ii) Admission, seating and other accommodations or facilities are 
restricted in any manner with regard to race, creed, color or national 
origin.
    (iii) The sponsoring organization or group excludes any person from 
its membership or practices any form of discrimination in its functions, 
based on race, creed, color or national origin.
    (iv) An admission charge is levied on the public primarily to see 
participation by an Armed Forces unit.
    (v) There is fund-raising of any type connected with the event, 
unless all profits are to be donated to a charity which is one of the 
consolidated programs recognized by the Federal Services Fund-Raising 
Program. These are the United Givers Fund Community Chest, National 
Health Agencies (as a group), the International Service Agencies, and 
the American Red Cross (when not included in a consolidated campaign). 
The Military Services' Welfare Societies (Army Emergency Relief, Navy 
Relief and Air Force Aid Society) are also included.
    (5) Sponsors of an event must agree to reimburse the Military 
Services concerned for transportation and per diem when participation is 
authorized at no additional cost to the government.
    (6) Participation by Armed Forces musical units in other areas is 
within the authority of local military commanders, and requests for 
participation should be made directly to those local military 
installations. All requests should be submitted no earlier than 60 days 
and preferably no later than 45 days prior to the event.



Sec. 705.34  Other special events.

    (a) Ship visits. Requests for visits generally originate with civic 
groups desiring Navy participation in local events. Often, members of 
Congress endorse these requests, advising the Navy of their interest in 
a particular event. Because of the marked increase in requests for ship 
visits, and in order to give equal consideration to all requests, the 
Chief of Information has arranged for quarterly meetings of 
representatives from CHINFO, Commander, Navy Recruiting Command, Chief 
of Naval Operations and Chief of Legislative Affairs. Based on the 
importance of the event (nationally, regionally, or locally) location, 
and prospective audience, recommendations are consolidated and forwarded 
to the fleet commanders prior to their quarterly scheduling conferences.
    (b) Visits to Naval activities--(1) Types of visits. (i) General 
visits or Open House are occasions when a ship or station acts as host 
to the general public. These visits will be conducted in accordance with 
instructions issued by Fleet and Force Commanders, District Commandants, 
or other cognizant authority.
    (ii) Casual visits are visits to ships or stations by individuals or 
specific groups, as differentiated from the general public. Details and 
procedures concerning these visits are a matter of command discretion.
    (iii) Tours are occasions when a ship or station is host to a 
specific group on a scheduled date. Some of the larger shore commands 
also regularly schedule one or more sightseeing type tours daily during 
seasons when many vacationers ask to visit the command.
    (2) General rules. Prior approval for general visiting or Open House 
at any time other than civic-sponsored public observances and official 
ceremonies for Armed Forces Day, memorial Day, Independence Day, and 
Veterans Day, and for observances in overseas areas

[[Page 165]]

of similar significant holidays, will be requested as follows: Fleet 
units visiting U.S. ports, from Senior Officer present Afloat; fleet 
units visiting foreign ports, from commander ordering the visit; shore 
stations and district vessels in the United States, from District 
Commandants; and overseas shore stations, from the naval area commander.
    (c) Official functions. (1) Navy units may be authorized by local 
commanding officers to participate in official government military and 
civic functions, except in the Washington DC area where OASD(PA) retains 
authority.
    (2) Official government functions include those in which senior 
officials of the federal government are involved in the performance of 
their official duties.
    (3) Official military functions include social activities held on 
military installations (or off, when it is certified that suitable 
facilities are not available on base), which are sponsored by the Navy, 
have as their principal purpose the promotion of esprit de corps, and 
are conducted primarily for active duty personnel and their guests.
    (4) Official civic functions include such state, county or municipal 
events as inaugurals, dedications of public buildings and projects, and 
convening of legislative bodies and ceremonies for officially invited 
government visitors.
    (5) Overseas, similar functions attended by comparable host-country 
officials in their official capacities might also be considered 
appropriate for Navy participation.
    (d) A parade which is sponsored by the community as a whole (rather 
than by a single commercial venture) and held on a Sunday or holiday or 
at a time when shops are closed for business may be a public event for 
which participation could properly be authorized; representation by 
individual commercial ventures in such parades need not be a bar to Navy 
participation as long as the emphasis is planned and placed on the civic 
rather than commercial aspects. Such participation will be at no 
additional cost to the government.
    (e) Fund-raising events. (1) Navy support of fund-raising events 
must be limited to recognized, joint or other authorized campaigns. Navy 
support of fund-raising events or projects for a single cause, even 
though the cause is a member of one of the federated, joint or 
authorized campaigns, or donates in part to one of several of the 
recognized campaigns, is not authorized by Department of Defense.
    (2) Navy support for a single-cause fund-raising event may be 
authorized if the event is:
    (i) In support of Navy recruiting objectives;
    (ii) Supported by a letter indicating the local United Way 
representative has no objection; and
    (iii) Approved by the local Navy Commander as a single-cause charity 
which has broad local benefit.

[41 FR 29101, July 15, 1976, as amended at 44 FR 6391, Feb. 1, 1979]



Sec. 705.35  Armed Forces participation in events in the public domain.

    (a) Requests for bands, troops, units, teams, exhibits and other 
Armed Forces participation should be addressed to the nearest military 
installation. Local commanders have resources which they can commit to 
appropriate events if mission requirements permit. If no military 
installation is accessible, or if resources requested are not available 
locally or require approval by higher authorities, a standard Department 
of Defense Request Form should be completed. This form is used to 
evaluate the request, determine appropriateness of the event and 
compliance with Department of Defense policies, and eliminate repeated 
correspondence. The request form should be returned to the office or 
military command from which it was received unless another address is 
indicated.
    (b) Basic criteria governing Armed Forces participation in public 
events have been developed by the Department of Defense to ensure 
compliance with public law, to assure equitable distribution of 
resources to as many appropriate events as possible, and to avoid 
excessive disruption of primary training and operational missions of the 
Military Services. the following

[[Page 166]]

general rules and information are included as an aid to you in 
understanding Department of Defense policies and in planning programs of 
mutual benefit to the Armed Forces and your community.
    (1) When evaluating requests for Armed Forces participation in 
public events, the interests of the Department of Defense and the public 
at large, operational requirements of the Military services, and 
availability of resources are prime considerations. Commitment of 
resources to specific events must be balanced with the above factors and 
with requests for similar participation received from other sources.
    (2) Department of Defense participation and cooperation must not 
directly or indirectly:
    (i) Endorse or selectively benefit or favor or appear to endorse or 
selectively benefit or favor any private individual, group, corporation 
(whether for profit or nonprofit), sect, quasi-religious or ideological 
movement, fraternal organization, political organization, or commercial 
venture.
    (ii) Be associated with the solicitation of votes in a political 
election. Sites such as commercial theaters or department stores, 
churches or fraternal halls; and events such as testimonials to private 
individuals or sectarian religious services, are generally inappropriate 
for Armed Forces participation.
    (3) Participation by the Armed Forces in any event or activity may 
be authorized only if admission, seating and all other accommodations 
and facilities are available to all without regard to race, creed, color 
or national origin, and only if the sponsoring organization does not 
exclude any form of discrimination based on race, creed, color or 
national origin. This does not bar participation in events sponsored by 
nationally-recognized veteran's organizations when the program is 
oriented toward the veterans' interests, nor does it bar participation 
in non-public school events when the program is directed toward 
education or recruiting.
    (i) No admission charge may be levied on the public solely to see an 
Armed Forces demonstration, unit or exhibit. When admission is charged, 
the Armed Forces activity must not be the sole or primary attraction.
    (4) Armed Forces participation is authorized in a fund-raising event 
only when the sponsor certifies that all net profits in excess of actual 
operating costs will be donated to one of the consolidated programs 
recognized by the Federal Services Fund-Raising program. These include 
such agencies as the United Givers Fund, Community Chests, National 
Health Agencies (as a group), International Service Agencies and the 
military aid societies.
    (5) When Armed Forces participation in an event is in the mutual 
interest of the Department of Defense and the sponsor of the event, 
participation will be authorized at no additional cost to the 
government. Additional costs to the government--travel and 
transportation of military personnel, meals and quarters or standard per 
diem allowance, etc.--will be borne by the sponsor.
    (6) Department of Defense policy prohibits payment by the Armed 
Forces for rental of exhibit space, connection of electricity, or 
utility or janitorial costs.
    (7) The duration of participation by military units in any one event 
is limited in the interests of proper utilization and equitable 
distribution of Armed Forces manpower and resources. While an exhibit 
might be scheduled for the duration of an event, a unit such as a 
military band is limited to three days.
    (8) Armed Forces participation in professional sports events and 
post-season bowl games will normally be authorized at no additional cost 
to the government, will emphasize joint Service activity and must 
support recruiting programs. Participation in beauty contests, fashion 
shows, pageants, Christmas parades, and motion picture premieres is not 
authorized since military support would violate policy and 
appropriateness.



Sec. 705.36  Government transportation of civilians for public affairs purposes.

    (a) General policy. (1) Regulations on transportation of civilians 
vary according to whether:
    (i) The civilians are news media representatives or not.

[[Page 167]]

    (ii) The travel is local or nonlocal (see paragraph (b) of this 
section).
    (iii) The purpose of the travel is to get to a desired destination 
or is to observe the Navy at first hand.
    (2) Authority for embarkation of individuals in naval vessels and 
military aircraft is vested in the Chief of Naval Operations by 
Sec. 700.710 of this chapter. Nothing in this part shall be construed as 
limiting his authority in this regard.
    (3) The following policy has been established by DOD for providing 
all types of Navy transportation to non-Navy civilians.
    (i) Military transport facilities shall not be placed in a position 
of competition with U.S. commercial carriers.
    (A) When embarkation of a newsman is necessary for him to obtain 
news material about a ship, aircraft, cargo or embarked personnel, or 
when he is invited to report on a matter of special interest to the 
Navy, it is not considered that the transportation furnished him is in 
competition with commercial transport.
    (B) An exception is also made for short trips between an airport (or 
other transportation center) and the command. Cars and buses within the 
resources of the command may be used for meeting guests or taking them 
to make their travel connections.
    (ii) When authorization is requested for travel which is of interest 
to or will affect more than one command or Service, the approving 
authority will coordinate the request with all other interested 
commands, Services and Agencies.
    (iii) Travel in connection with any public affairs program arranged 
by the Navy jointly with another Federal Department or Agency or a 
foreign government will be authorized only by the Assistant Secretary of 
Defense (Public Affairs, or those to whom he has delegated this 
authority. Navy commands desiring authorization of such travel will 
forward the request to the Chief of Information.
    (iv) If a request for travel for nonlocal public affairs purposes is 
disapproved, sufficient reasons should be provided so that the action is 
clearly understood by the individual or group concerned.
    (b) Definition of local v. nonlocal travel. (1) Local travel is 
travel within the immediate vicinity of the command concerned in 
connection with a public affairs program of local interest only. (For 
air travel within the continental U.S., about 150 miles or less is 
generally considered local.)
    (2) Nonlocal travel is that conducted in connection with a public 
affairs program affecting more than one Service, geographic area or 
major command, usually of primary concern to higher authority.
    (c) Transportation of news media representatives. (1) This section 
applies to media representatives who are embarked for the purpose of 
news gathering or of traveling to an area in order to cover a news 
event. It does not apply to:
    (i) Correspondents when members of groups embarked as regular cruise 
guests of the Navy.
    (ii) Casual trips by correspondents to ships in port or to shore 
stations in CONUS. Such visits may be authorized by officers in command 
or higher authority in accordance with instructions promulgated by the 
Chief of Naval Operations. Written orders are not required.
    (2) Local travel. Commanding officers at all levels are authorized 
(under Defense Department policy) to approve local travel for public 
affairs purposes within the scope of the mission and responsibilities of 
their command, if:
    (i) Public interest in the public affairs purpose involved is 
confined primarily to the vicinity of that command.
    (ii) The travel is being provided for the benefit of local media and 
meets a naval public affairs objective.
    (iii) Scheduled commercial air transportation is not readily 
available.
    (iv) The aircraft to be used is a helicopter, or multiengine dual 
piloted aircraft, and is within the resources of the host command on a 
not-to-interfere basis. This provision does not apply to orientation 
flights.
    (3) Nonlocal travel. (i) Requests for nonlocal travel will be 
submitted to the Chief of Information, who will forward them with his 
recommendations to the Chief of Naval Operations and/or

[[Page 168]]

the Assistant Secretary of Defense (Public Affairs), as appropriate.
    (ii) When the proposed travel is for news coverage of a major 
emergency nature and the coverage will be impaired or delayed, to the 
serious detriment of the interests of the Department of Defense, if 
military transportation is not provided, requests for such travel will 
be submitted to the Chief of Information, who will forward the request--
if approved--to the Assistant Secretary of Defense (Public Affairs). The 
most expeditious means (including telephone) will be used by commands 
requesting such emergency travel. Justification will include both the 
public affairs purpose and the necessity for military carriers.
    (4) Travel between the U.S. and overseas area. (i) The Chief of 
Naval Operations may authorize military transportation for 
correspondents in unusual circumstances, upon recommendations of the 
Chief of Information and the Defense Department.
    (ii) Requests for government transportation to cover specific 
assignments overseas should be made at least three weeks prior to the 
date required and should be addressed to the Assistant Secretary of 
Defense (Public Affairs) via the Chief of Information or Unified 
Commander, as appropriate. The requests should include:
    (A) A statement that the correspondent is a full-time employee, or 
has a specific assignment, and that the trip is for the purpose of news 
gathering.
    (B) Appropriate date of entry into area, port of entry, method of 
travel, proposed duration of visit and travel termination date.
    (C) Assurance that the correspondent will observe currency control 
regulations, and sponsoring agency will guarantee financial obligations 
incurred.
    (5) Embarkation of male correspondents between ports within CONUS. 
(i) Male correspondents may be embarked in naval ships for passage 
between ports within the area of a single Fleet command for the purpose 
of news gathering at the discretion of the Sea Frontier Commander, 
Commandants of the Naval Districts, the Chief of naval Air Training, 
Fleet, Force and Type commanders and flag officers afloat who have been 
delegated authority to arrange directly with appropriate Fleet, Force 
and Type commanders for embarkation of civilians on a local cruise 
basis.
    (ii) Invitational travel orders may be issued.
    (6) Embarkation of female correspondents in naval vessels. (i) 
Privileges equal to those given male correspondents will be accorded 
female correspondents whenever practicable.
    (ii) Female correspondents may not be embarked overnight in a naval 
ship without prior approval of the appropriate Fleet Commander-in-Chief. 
This authority may be delegated to the numbered Fleet Commanders.
    (7) Travel in ships of the Military Sealift Command. Correspondents 
may be carried in ships of the Military Sealift Command on either a 
space-required or space-available basis when travel is in the best 
interests of the Navy or the Department of Defense.
    (i) Space-available travel will be used when practicable. A nominal 
charge is made by the Military Sealift Command and must be borne by the 
correspondents.
    (ii) Space-required travel may be authorized when sufficiently in 
the interest of the Navy, and the charge may be borne by the Navy.
    (iii) In either case, determination of Navy interests will be made 
by the Chief of Information, guided by the transportation policy of the 
Chief of Naval Operations, whose approval of such embarkation is 
required.
    (iv) Requests for such travel will be submitted to the Chief of 
Information, who will coordinate with the Chief of Naval Operations and/
or the Assistant Secretary of Defense (Public Affairs), as appropriate.
    (8) Point to point transportation within the continental United 
States in naval aircraft other than those operated by the Military 
Airlift Command.
    (i) SECNAVINST 4630.2A contains guidance for travel in military 
aircraft other than those operated by the Military Airlift Command.
    (ii) Naval activities desiring to arrange such transportation will 
address requests via the chain of command to the operational command of 
the lowest

[[Page 169]]

echelon which has been delegated authority to approve such requests.
    (iii) Upon approval of such a request, the naval activity sponsoring 
the correspondent shall:
    (A) Prepare travel orders.
    (B) Ensure that any waiver forms, as may be required by governing 
directives, are executed.
    (9) Embarkation of news media representatives of foreign 
citizenship:
    (i) Requests from foreign news media representatives to cruise with 
units of the U.S. Navy are usually made to the nearest U.S. military 
installation known to the correspondent, and are often not made in the 
proper chain of command to the Fleet Commander unless authorized to 
effect arrangements for an underway cruise.
    (A) if the request is received by a command which is not a 
subordinate of the Fleet Commander concerned, it will be forwarded to 
the U.S. Naval Attache assigned to the foreign newsman's country. The 
Attache will then forward the request to the appropriate Fleet 
Commander, with his recommendations and the result of a brief background 
check on the newsman and his employer.
    (B) If the request is received by a subordinate of the appropriate 
Fleet Commander, it may be forwarded directly to the latter, but the 
U.S. Naval Attache in the newsman's country will be given the 
opportunity to comment on the proposed embarkation.
    (ii) Naval commands should not introduce an embarked third-party 
(i.e., a foreign media representative) into a foreign country other than 
his own without first obtaining appropriate clearance from the country 
to be visited. Approval for entry should be forwarded via appropriate 
command channels to the cognizant U.S. Naval Attache.
    (10) Security considerations. (i) No media representative known to 
be affiliated with a group advocating the overthrow of the U.S. 
government will be permitted aboard naval ships or stations.
    (ii) If security review is directed, the reason will be made clear 
to the correspondent prior to embarkation. News media people refusing to 
agree to observe security regulations may have their privileges 
suspended. Failure to observe security regulations will be reported to 
CHINFO and interested commands.
    (d) Transportation of other civilians. (1) Although groups normally 
provide their own transportation to Navy commands, Navy transportation 
may be authorized when:
    (i) Commercial transport is not available.
    (ii) A professional group visit has been solicited by the Navy, such 
as participants in the Naval Academy Information Program (``Blue and 
Gold'') or educators invited to an Aerospace Education Workshop.
    (2) Requests for nonlocal transportation under the above 
circumstances will be made to the Chief of Naval Operations.
    (3) Carrier-on-board-delivery (COD) flights and helicopters flights 
to ships are considered local transportation.
    (4) When units or areas of a Unified Command are involved in the 
public affairs program in connection with which travel authorization is 
requested by a Navy command which is not a component of the Unified 
Command concerned, coordination will be effected by the host command, 
through command channels, via the Chief of Information, to the Assistant 
Secretary of Defense (Public Affairs), who--as appropriate--will consult 
with the Unified Commander concerned.
    (e) Special programs. (1) Cruises are discussed in Chapter 6, 
section 0604, para. 1 of the Navy Public Affairs Regulations.
    (2) Embarkation of news media representatives, especially on 
operations and exercises, is discussed in Chapter 4, section 0405, 
paragraph 4 of the Navy Public Affairs Regulations.
    (3) Other programs subject to special requirements or which have had 
exceptions authorized for them include:
    (i) Naval Air Training Command Civilian Orientation Cruise Program, 
conducted by the Chief of Naval Air Training.
    (ii) Joint Civilian Orientation Conference, conducted by the 
Assistant Secretary of Defense (Public Affairs).
    (iii) Orientation flights in government aircraft, conducted in 
accordance with OPNAVINST 37107H.

[[Page 170]]

    (iv) Space-available air transportation may be provided Navy League 
members if they are invited to accompany a flag officer attending a Navy 
League convention or regional meeting and if the trip is economically 
justifiable, based on military travel considerations and not community 
relations or public affairs reasons. Approval in each instance will be 
obtained in advance from the Chief of Naval Operations.
    (v) Air transportation for the Naval Sea Cadet Corps of the Navy 
League.
    (A) Flights must be in Navy multiengine, transport type craft.
    (B) Point-to-point flights on a space-required basis are governed by 
an annual quota set by the Chief of Naval Operations. Space-available 
transportation is authorized and will not be charged against this quota 
if it will not result in delays of takeoffs or a change in the itinerary 
planned for the primary mission.
    (C) Flights must not interfere with operational commitments or 
training or results in additional expense to the government.
    (D) This transportation is not available to other youth programs, 
including others sponsored by the Navy League.
    (f) Other instructions on transportation of non-Navy civilians. 
Details on policy, procedures, and the transportation of certain 
categories of people will be found in OPNAVINST 5720.2G and DOD 
Directive 4515.13.

[41 FR 29101, July 15, 1976, as amended at 44 FR 6391, Feb. 1, 1979]



Sec. 705.37  Public affairs and public service awards.

    (a) General. (1) A number of public service awards are presented by 
the Department of Defense and the Navy to business and civic leaders, 
scientists and other nongovernment civilians. Other awards--military and 
civilian--are presented to members of the naval establishment.
    (2) These awards are of public affairs interest in the locale where 
they are presented and also in the home towns of those who receive them.
    (b) Department of Defense awards. (1) The Department of Defense 
Medal for Distinguished Public Service is presented to individuals. The 
Department of Defense Meritorious Award honors organizations.
    (2) Details, including nominating procedures, are given in 
SECNAVINST 5061.12.
    (c) Secretary of the Navy awards. (1) The following awards are 
presented by the Secretary of the Navy: The Navy Distinguished Public 
Service Award and Navy Meritorious Public Service Citation to 
individuals; the Navy Certificate of Commendation to members of special 
committees and groups; and the Navy Certificate of Merit to 
organizations and associations.
    (2) Details are given in SECNAVINST 5061.12.
    (3) Nominations for awards to military personnel are considered by 
the Board of Decorations and Medals, in accordance with SECNAVINST 
1650.24A.
    (4) Nominations for honorary awards to Department of the Navy 
civilian employees are considered by the Distinguished Civilian Service 
Awards Panel. (See Civilian Manpower Management Instruction 451.)
    (d) Chief of Information awards--(1) Certificate of Public Relations 
Achievement. (i) This certificate is signed by the Chief of Information. 
It honors individuals who are not Navy employees, corporations, or 
associations.
    (ii) It was established to fill the need for a civilian award for 
public relations achievements which, while not meeting the criteria for 
public service awards presented by the Secretary of the Navy, are of 
such Navy-wide significance as to merit recognition at the Department 
level. Examples of these achievements might be a particularly well done 
feature article about the Navy in a nationally read newspaper or an 
outstanding contribution to a locally sponsored event, which ultimately 
gave national or regional recognition to the Navy.
    (iii) The achievement for which the certificate is given shall meet 
the following criteria:
    (A) Contribute to accomplishment of the public information 
objectives of the Navy.
    (B) Be the result of a single outstanding project or program.

[[Page 171]]

    (C) Have been accomplished within one year of the date of the 
official letter of nomination.
    (iv) Nominations will be submitted through appropriate 
administrative channels to the Chief of Information, and will include a 
description of the service rendered, a statement of its relevance to the 
accomplishment of the public affairs objectives of the Navy and a draft 
of the recommended citation. To avoid possible embarrassment, 
nominations shall be marked ``For Official Use Only'' and safeguarded 
until final action has been taken.
    (2) CHINFO Merit Awards. (i) These awards, or certificates, are 
presented quarterly to Navy publications and broadcasts considered to be 
outstanding or to have shown improvement in meeting professional 
standards of journalism.
    (ii) Publications and broadcasts eligible are those which inform the 
reader concerning aspects of service life or related matters which 
contribute to the well-being of naval personnel, their dependents, and 
civilian employees of the Navy. Civilian enterprise periodicals are 
included if produced for the exclusive use of a naval installation.
    (iii) Nominations are made in two ways:
    (A) Selection during regular review periodicals and broadast air-
checks received by the Internal Relations Activity.
    (B) Nominations from the field. Such nominations are informal and 
may be made by the officer-in-charge, publications editor, broadcast 
station manager, or public affairs officer to the chief of Information, 
Navy Department, Washington, DC 20350 (ATTN: OP-0071).
    (3) Other awards pertaining to public affairs/internal relations. 
(i) Silver Anvil award is given by the Public Relations Society of 
America for outstanding public relations programs carried out during the 
preceding year. Entry blanks and details may be obtained by writing 
directly to Public Relations Society of America, 845 Third Ave., New 
York, NY 10022. All Navy entries will be forwarded via the Chief of 
Information.
    (ii) Freedom Foundation Awards of cash and medals are annually given 
to service personnel for letters on patriotic themes. Details are 
carried in ship and station publications, or may be obtained by writing 
to Freedom Foundations, Valley Forge, PA 19481.
    (iii) Thomas Jefferson Awards are the prizes in an annual 
interservice competition sponsored by civilian media through the 
Department of Defense's Office of Information for the Armed Forces. The 
contest is open to all Armed Forces media--broadcast and print. Details 
can be obtained by writing to Office of Information, Department of the 
Navy, Washington, DC 20350.
    (iv) Navy League Awards. Several annual awards are presented to 
naval personnel and civilians who have made a notable contribution to 
the importance of seapower. The awards are for inspirational leadership, 
scientific and technical progess, operational competence, literary 
achievement, etc. Nominations should be forwarded directly to Board of 
Awards, Navy League of the United States, 818 18th St., NW., Washington, 
DC 20006.
    (v) Nonofficial awards to outstanding Navy students or training 
units.
    (A) Various civilian organizations and private individuals have 
established awards to be presented to outstanding training units or 
naval students.
    (B) Requests to establish an award for students in the Naval Air 
Training program should be forwarded to the Chief of Naval Air Training.
    (C) Requests to establish an award which will involve more than one 
school (other than the Naval Air Training Program) will be forwarded to 
the Chief of Naval Personnel.
    (D) All other cases may be decided by the Navy authority at the 
school concerned.
    (E) Directives in the 5061, 1650 and 3590 series issued by pertinent 
authorities may provide further guidance in individual cases.
    (vi) Awards established by a command to honor non-Navy civilians.
    (A) Examples of such awards are ``Good Neighbor'' or ``Honorary Crew 
Member'' certificates.
    (B) Established to honor persons who have been helpful to the 
command,

[[Page 172]]

they are a valuable community relations program. They should not be 
awarded to persons or organizations with which the command is associated 
in a commercial or governmental business capacity.

[41 FR 29101, July 15, 1976, as amended at 44 FR 6391, Feb. 1, 1979]



                        SUBCHAPTER B--NAVIGATION



PART 706--CERTIFICATIONS AND EXEMPTIONS UNDER THE INTERNATIONAL REGULATIONS FOR PREVENTING COLLISIONS AT SEA, 1972--Table of Contents




Sec.
706.1 Purpose of regulations.
706.2 Certifications of the Secretary of the Navy under Executive Order 
          11964 and 33 U.S.C. 1605.
706.3 Exemptions by the Secretary of the Navy under Executive Order 
          11964.

    Authority: 33 U.S.C. 1605.



Sec. 706.1  Purpose of regulations.

    (a) All ships are warned that, when U.S. naval vessels are met in 
international waters, certain navigational lights and sound-signalling 
appliances of some naval vessels may vary from the requirements of the 
International Regulations for Preventing Collisions at Sea, 1972 (33 
U.S.C. foll. section 1602 (1982)), as to number, position, range, or arc 
of visibility of lights, as well as to the disposition and 
characteristics of sound-signalling appliances. Those differences are 
necessitated by reason of the special construction or purpose of the 
naval ships. An example is the aircraft carrier where the two masthead 
lights are considerably displaced from the center or keel line of the 
vessel when viewed from ahead. Certain other naval vessels cannot comply 
with the horizontal separation requirements for masthead lights, and the 
two masthead lights on even large naval vessels will thus appear to be 
crowded together when viewed from a distance. Naval vessels may also 
have unorthodox navigational light arrangements or characteristics when 
seen either underway or at anchor.
    (b) Naval vessels may also be expected to display certain other 
lights. These lights include, but are not limited to, different colored 
rotating beacons, different colored fixed and rotary wing aircraft 
landing signal lights, red aircraft warning lights, and red or blue 
contour approach lights on replenishment-type ships. These lights may be 
shown in combination with the navigational lights.
    (c) During peacetime naval maneuvers, naval ships, alone or in 
company, may also dispense with showing any lights, though efforts will 
be made to display lights on the approach of shipping.
    (d) Executive Order 11964 of January 19, 1977, and 33 U.S.C. 1605 
provide that the requirements of the International Regulations for 
Preventing Collisions at Sea, 1972, as to the number, position, range, 
or arc of visibility of lights or shapes, as well as to the disposition 
and characteristics of sound-signalling appliances, shall not apply to a 
vessel of the Navy where the Secretary of the Navy shall find and 
certify that, by reason of special construction or purpose, it is not 
possible for such vessel to comply fully with the provisions without 
interfering with the special function of the vessel.
    (e) Executive Order 11964 also provides that the Secretary of the 
Navy is authorized to exempt, in accordance with Rule 38 of the 
International Regulations for preventing Collisions at Sea, 1972, any 
vessel, or class of vessels, the keel of which is laid, or which is at a 
corresponding stage of construction, before July 15, 1977, from full 
compliance with the International Regulations, provided that such 
vessel, or class of vessels, complies with the requirements of the 
International Regulations for Preventing Collisions at Sea, 1960.
    (f) This part consolidates and codifies certifications and 
exemptions granted by the Secretary of the Navy under Executive Order 
11964 and 33 U.S.C. 1605. It has been determined that, because of their 
special construction or purpose,

[[Page 173]]

the vessels and classes of vessels listed in this part cannot comply 
fully with all of the requirements of the International Regulations for 
Preventing Collisions at Sea, 1972.

[42 FR 36434, July 14, 1977, as amended at 42 FR 48876, Sept. 26, 1977; 
45 FR 43165, June 26, 1980; 52 FR 4770, Feb. 17, 1987]



Sec. 706.2  Certifications of the Secretary of the Navy under Executive Order 11964 and 33 U.S.C. 1605.

    The Secretary of the Navy hereby finds and certifies that each 
vessel listed in this section is a naval vessel of special construction 
or purpose, and that, with respect to the position of the navigational 
lights listed in this section, it is not possible to comply fully with 
the requirements of the provisions enumerated in the International 
Regulations for Preventing Collisions at Sea, 1972, without interfering 
with the special function of the vessel. The Secretary of the Navy 
further finds and certifies that the navigational lights in this section 
are in the closest possible compliance with the applicable provisions of 
the International Regulations for Preventing Collisions at Sea, 1972.

                                Table One
------------------------------------------------------------------------
                                                            Distance in
                                                             meters of
                                                              forward
                                                              masthead
                                                            light below
                    Vessel                       Number       minimum
                                                              required
                                                            height. Sec.
                                                           2(a)(i) Annex
                                                                 I
------------------------------------------------------------------------
USS DOLPHIN..................................    AGSS 555           0.8
USS MC INERNY................................       FFG 8           1.6
USS CLARK....................................      FFG 11           1.6
USS GEORGE PHILIP............................      FFG 12           1.6
USS SAMUEL ELIOT MORISON.....................      FFG 13           1.6
USS SIDES....................................      FFG 14           1.6
USS ESTOCIN..................................      FFG 15           1.6
USS JOHN A. MOORE............................      FFG 19           1.6
USS BOONE....................................      FFG 28           1.6
USS STEPHEN W. GROVES........................      FFG 29           1.6
USS JOHN L. HALL.............................      FFG 32           1.6
USS JARRETT..................................      FFG 33           1.6
USS UNDERWOOD................................      FFG 36           1.6
USS CROMMELIN................................      FFG 37           1.6
USS CURTS....................................      FFG 38           1.6
USS DOYLE....................................      FFG 39           1.6
USS HALYBURTON...............................      FFG 40           1.6
USS MCCLUSKY.................................      FFG 41           1.6
USS KLAKRING.................................      FFG 42           1.6
USS THACH....................................      FFG 43           1.6
USS DEWERT...................................      FFG 45           1.6
USS RENTZ....................................      FFG 46           1.6
USS NICHOLAS.................................      FFG 47           1.6
USS VANDEGRIFT...............................      FFG 48           1.6
USS ROBERT G. BRADLEY........................      FFG 49           1.6
USS TAYLOR...................................      FFG 50           1.6
USS GARY.....................................      FFG 51           1.6
USS CARR.....................................      FFG 52           1.6
USS HAWES....................................      FFG 53           1.6
USS FORD.....................................      FFG 54           1.6
USS ELROD....................................      FFG 55           1.6
USS SIMPSON..................................      FFG 56           1.6
USS REUBEN JAMES.............................      FFG 57           1.6
USS SAMUEL B. ROBERTS........................      FFG 58           1.6
USS KAUFFMAN.................................      FFG 59           1.6
USS RODNEY M. DAVIS..........................      FFG 60           1.6
USS INGRAHAM.................................      FFG 61          1.37
USS OGDEN....................................       LPD 5          4.15
USS DULUTH...................................       LPD 6           4.4
USS DUBUQUE..................................       LPD 8           4.2
USS DENVER...................................       LPD 9           4.4
USS JUNEAU...................................      LPD 10          4.27
USS TRIPOLI..................................      LPH 10           3.3
LCAC (class).................................      LCAC 1      \1\ 6.51
                                                  through
                                                 LCAC 100
LCAC (class).................................      LCAC 1      \2\ 7.94
                                                  through
                                                 LCAC 100
USS INCHON...................................      MCS 12           3.0
NR-1.........................................        NR 1           2.7
USS SEAWOLF..................................      SSN 21          4.62
USS CONNECTICUT..............................      SSN 22          4.62
USS PARCHE...................................     SSN 683          3.58
USS KAMEHAMEHA...............................     SSN 642          3.58
USS MENDEL RIVERS............................     SSN 686          2.40
USS LOS ANGELES..............................     SSN 688          6.10
USS PHILADELPHIA.............................     SSN 690          6.10
USS MEMPHIS..................................     SSN 691          6.10
USS BREMERTON................................     SSN 698          3.49
USS JACKSONVILLE.............................     SSN 699          3.35
USS DALLAS...................................     SSN 700           3.5
USS LA JOLLA.................................     SSN 701           3.5
USS CITY OF CORPUS CHRISTI...................     SSN 705           3.5
USS ALBUQUERQUE..............................     SSN 706           3.5
USS PORTSMOUTH...............................     SSN 707           3.5
USS MINNEAPOLIS-ST. PAUL.....................     SSN 708           3.5
USS HYMAN G. RICKOVER........................     SSN 709           3.5
USS AUGUSTA..................................     SSN 710           3.5
USS SAN FRANCISCO............................     SSN 711           3.5
USS HOUSTON..................................     SSN 713           3.5
USS NORFOLK..................................     SSN 714           3.5
USS BUFFALO..................................     SSN 715           3.5
USS SALT LAKE CITY...........................     SSN 716           3.5
USS OLYMPIA..................................     SSN 717           3.5
USS HONOLULU.................................     SSN 718           3.5
USS PROVIDENCE...............................     SSN 719           3.5
USS PITTSBURGH...............................     SSN 720           3.5
USS CHICAGO..................................     SSN 721           3.5
USS KEY WEST.................................     SSN 722           3.5
USS OKLAHOMA CITY............................     SSN 723           3.5
USS LOUISVILLE...............................     SSN 724           3.5
USS HELENA...................................     SSN 725           3.5
USS NEWPORT NEWS.............................     SSN 750           3.5
USS SAN JUAN.................................     SSN 751           3.5
USS PASADENA.................................     SSN 752           3.5
USS ALBANY...................................     SSN 753           3.5

[[Page 174]]

 
USS TOPEKA...................................     SSN 754           3.5
USS MIAMI....................................     SSN 755           3.5
USS SCRANTON.................................     SSN 756           3.5
USS ALEXANDRIA...............................     SSN 757           3.5
USS ASHEVILLE................................     SSN 758           3.5
USS JEFFERSON CITY...........................     SSN 759           3.4
USS ANNAPOLIS................................     SSN 760           3.5
USS SPRINGFIELD..............................     SSN 761           3.5
USS COLUMBUS.................................     SSN 762           3.5
USS SANTA FE.................................     SSN 763           3.5
USS BOISE....................................     SSN 764           3.5
USS MONTPELIER...............................     SSN 765           3.5
USS CHARLOTTE................................     SSN 766           3.5
USS HAMPTON..................................     SSN 767           3.5
USS HARTFORD.................................     SSN 768           3.5
USS TOLEDO...................................     SSN 769           3.5
USS TUCSON...................................     SSN 770           3.5
USS COLUMBIA.................................     SSN 771           3.5
USS GREENEVILLE..............................     SSN 772           3.5
USS CHEYENNE.................................     SSN 773           3.5
USS OHIO.....................................    SSBN 726          3.70
USS MICHIGAN.................................    SSBN 727          3.70
USS FLORIDA..................................    SSBN 728          3.70
USS GEORGIA..................................    SSBN 729          3.70
USS HENRY M. JACKSON.........................    SSBN 730          3.70
USS ALABAMA..................................    SSBN 731          3.70
USS ALASKA...................................    SSBN 732          3.70
USS NEVADA...................................    SSBN 733          3.70
USS TENNESSEE................................    SSBN 734          3.70
USS PENNSYLVANIA.............................    SSBN 735          3.70
USS WEST VIRGINIA............................    SSBN 736          3.70
USS KENTUCKY.................................    SSBN 737          3.70
USS MARYLAND.................................    SSBN 738          3.70
USS NEBRASKA.................................    SSBN 739          3.70
USS RHODE ISLAND.............................    SSBN 740          3.70
USS MAINE....................................    SSBN 741          3.70
USS WYOMING..................................    SSBN 742          3.70
USS LOUISIANA................................    SSBN 743          3.70
------------------------------------------------------------------------
\1\ The permanent masthead light is 5.26 meters athwartship to port of
  centerline, 5.49 meters above the main deck.
\2\ The temporary masthead light is 3.98 meters athwartship to starboard
  of centerline, 4.06 meters above the main deck.


                                                                        Table Two
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                AFT
                                                                                               anchor                               Side
                                                            Masthead    Forward                light,                  Side       lights,        Side
                                                            lights,      anchor     Forward   distance     AFT       lights,      distance     lights,
                                                            distance     light,     anchor     below      anchor     distance    forward of    distance
                                                            to stbd     distance    light,   flight dk    light,      below       forward     inboard of
                    Vessel                        Number    of keel      below      number       in       number    flight dk     masthead      ship's
                                                               in      flight dk   of; Rule   meters;    of; Rule   in meters;    light in     sides in
                                                            meters;    in meters;  30(a)(i)     Rule    30(a)(ii)  Sec.  2(g),    meters;      meters;
                                                              Rule    Sec.  2(K),              21(e),                Annex I    Sec.  3(b),  Sec.  3(b),
                                                             21(a)      Annex I                 Rule                              Annex I      Annex I
                                                                                             30(a)(ii)
--------------------------------------------------------------------------------------------------------------------------------------------------------
CSP (class)...................................    CSP-101       1.62  ...........  ........  .........  .........  ...........  ...........        3.93
                                                  through
                                                  CSP-182
USS KITTY HAWK................................      CV 63       27.8  ...........         1  .........          1         0.2   ...........  ...........
USS CONSTELLATION.............................      CV 64       28.2  ...........         1  .........          1         0.4   ...........  ...........
USS JOHN F. KENNEDY...........................      CV 67       27.5  ...........         1        9.0          2         0.4   ...........  ...........
USS ENTERPRISE................................     CVN 65       28.0  ...........  ........  .........  .........         0.4   ...........  ...........
USS NIMITZ....................................     CVN 68       31.0  ...........  ........  .........  .........         0.7   ...........  ...........
USS DWIGHT D. EISENHOWER......................     CVN 69      30.00  ...........         1        9.3          2         0.7   ...........  ...........
USS CARL VINSON...............................     CVN 70       29.9         0.3          2        9.4          2         0.5   ...........  ...........
USS THEODORE ROOSEVELT........................     CVN 71       30.0  ...........         1        9.0          2         0.6   ...........  ...........
USS ABRAHAM LINCOLN...........................     CVN 72       30.0  ...........  ........  .........  .........         0.6   ...........  ...........
USS GEORGE WASHINGTON.........................     CVN 73       30.0  ...........  ........  .........  .........         0.6   ...........  ...........
USS JOHN C. STENNIS...........................     CVN 74       30.0  ...........  ........  .........  .........         0.6   ...........  ...........
USS HARRY S TRUMAN............................     CVN 75      30.02  ...........         1  .........          1        0.56   ...........  ...........
USS TARAWA....................................      LHA 1       10.0  ...........         1  .........          1         2.4         71.0   ...........
USS SAIPAN....................................      LHA 2       10.1  ...........         1  .........          1         2.8         72.1   ...........
USS BELLEAU WOOD..............................      LHA 3       10.0  ...........  ........  .........  .........         2.7         72.4   ...........
USS NASSAU....................................      LHA 4       10.0  ...........  ........  .........  .........         2.7         72.4   ...........
USS PELELIU...................................      LHA 5       10.0           4   ........  .........  .........         2.6         72.4   ...........
USS WASP......................................      LHD 1        9.0  ...........  ........  .........  .........         2.8         89.0   ...........

[[Page 175]]

 
USS ESSEX.....................................      LHD 2  .........  ...........  ........  .........  .........         3.1         91.1   ...........
USS KEARSARGE.................................      LHD 3        8.9  ...........  ........  .........  .........         3.0           91   ...........
USS BOXER.....................................      LHD 4  .........  ...........  ........  .........  .........         3.0         90.9   ...........
USS BATAAN....................................      LHD 5  .........  ...........  ........  .........  .........         2.9         98.6   ...........
USS BONHOMME RICHARD..........................      LHD 6        9.0  ...........  ........  .........  .........         2.9         89.6   ...........
USS IWO JIMA..................................      LHD 7  .........  ...........  ........  .........  .........        2.97        88.80   ...........
USS TRIPOLI...................................     LPH 10       10.6  ...........         1        2.2          2         0.4         47.5   ...........
LCAC (class)..................................     LCAC 1       5.26  ...........  ........  .........  .........  ...........  ...........      \3\1.5
                                                  through  (Perm.)\2
                                                 LCAC 100          \
LCAC (class)..................................     LCAC 1       3.98  ...........  ........  .........  .........  ...........  ...........      \3\1.5
                                                  through  (Temp.)\4
                                                 LCAC 100          \
USS INCHON....................................     MCS 12       10.6  ...........         1        2.2          2         0.4         47.5   ...........
SLWT (class)..................................     SLWT 1       1.62  ...........  ........  .........  .........  ...........  ...........     \5\3.93
SLWT (class)..................................     SLWT 2       1.62  ...........  ........  .........  .........  ...........  ...........     \5\3.93
SLWT (class)..................................     SLWT 3       1.62  ...........  ........  .........  .........  ...........  ...........     \5\3.93
SLWT (class)..................................     SLWT-6       1.62  ...........  ........  .........  .........  ...........  ...........        3.93
SLWT (class)..................................     SLWT-8       1.62  ...........  ........  .........  .........  ...........  ...........        3.93
                                                  through
                                                  SLWT-19
SLWT (class)..................................    SLWT-22       1.62  ...........  ........  .........  .........  ...........  ...........        3.93
                                                  through
                                                  SLWT-24
SLWT (class)..................................    SLWT-26       1.62  ...........  ........  .........  .........  ...........  ...........        3.93
                                                  through
                                                  SLWT-65
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ [Reserved]
\2\ The permanent masthead light is 5.26 meters athwartship to port of centerline, at frame 3, 5.49 meters above the main deck.
\3\ The sidelights are on top of the port and starboard deckhouses 3.28 meters above the hull.
\4\ The temporary masthead light is 3.98 meters athwartship to starboard of centerline 4.06 meters above the main deck.
\5\ Port sidelight only.


                                                                       Table Three
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                              Side      Stern     Forward
                                                                                                             lights     light,     anchor      Anchor
                                                                      Masthead                              distance   distance    light,      lights
                                                                     lights arc  Side lights  Stern light   inboard    forward     height   relationship
                 Vessel                              No.                 of         arc of       arc of    of ship's   of stern    above    of aft light
                                                                    visibility;  visibility;  visibility;   sides in      in      hull in    to forward
                                                                     rule 21(a)   rule 21(b)   rule 21(c)    meters    meters;    meters;     light in
                                                                                                              3(b)       rule       2(K)     meters 2(K)
                                                                                                            annex 1     21(c)     annex 1      annex 1
--------------------------------------------------------------------------------------------------------------------------------------------------------
USS CYCLONE.............................  PC 1                      ...........  ...........  ...........  .........   \1\ 25.5        3.0          1.0
USS TEMPEST.............................  PC2                       ...........  ...........  ...........  .........  28.26 \1\       3.01    1.1 below
USS HURRICANE...........................  PC 3                      ...........  ...........  ...........  .........   \1\ 25.5        3.0    1.1 below
USS MONSOON.............................  PC 4                      ...........  ...........  ...........  .........   \1\ 25.5        3.0    1.1 below
USS TYPHOON.............................  PC 5                      ...........  ...........  ...........  .........   \1\ 25.5        3.0    1.1 below
USS SIROCCO.............................  PC 6                      ...........  ...........  ...........  .........   \1\ 25.5        3.0    1.1 below
USS SQUALL..............................  PC 7                      ...........  ...........  ...........  .........   \1\ 25.5        3.0          1.0
USS ZEPHYR..............................  PC-8                      ...........  ...........  ...........  .........  \1\ 28.26       3.01    1.1 below
USS CHINOOK.............................  PC 9                      ...........  ...........  ...........  .........   \1\ 25.5        3.0          1.0
USS FIREBOLT............................  PC 10                     ...........  ...........  ...........  .........   \1\ 25.5        3.0          1.0
USS WHIRLWIND...........................  PC 11                     ...........  ...........  ...........  .........   \1\ 25.5        3.0          1.0
USS THUNDERBOLT.........................  PC 12                     ...........  ...........  ...........  .........   \1\ 25.5        3.0          1.0
USS SHAMAL..............................  PC-13                     ...........  ...........  ...........  .........  \1\ 28.26       3.01    1.1 below
USS TORNADO.............................  PC-14                     ...........  ...........  ...........  .........   \1\ 27.8       3.01    1.1 below
USS DOLPHIN.............................  AGSS 555                  227.5\1/2\     119\1/2\     191\1/2\         2.1       10.8        1.8    0.5 above
NR-1....................................  NR 1                      238.5\1/2\     114[deg]   136.5[deg]         1.5        4.1        2.1  ............
USS SEAWOLF.............................  SSN 21                      225[deg]   111.5[deg]     205[deg]         5.1       10.7        2.8    1.8 below

[[Page 176]]

 
USS CONNECTICUT.........................  SSN 22                      232[deg]   112.8[deg]     207[deg]         5.1       10.7        2.8  1.63 below.
USS KAMEHAMEHA..........................  SSN 642                     236[deg]     117[deg]     252[deg]         3.8        7.6        2.1  same height
USS PARCHE..............................  SSN 683                     232[deg]   112.5[deg]     209[deg]         4.1        6.8        2.2    0.2 below
USS L. MENDEL RIVERS....................  SSN 686                     236[deg]     113[deg]     252[deg]         3.8        5.2        3.4    1.4 below
USS LOS ANGELES.........................  SSN 698                     236[deg]     115[deg]     252[deg]         4.2        6.1        2.0    1.6 below
USS PHILADELPHIA........................  SSN 690                     238[deg]     115[deg]     252[deg]         4.2        6.1        2.0    1.6 below
USS MEMPHIS.............................  SSN 691                     236[deg]     115[deg]     252[deg]         4.3        6.1        2.0    1.6 below
USS BREMERTON...........................  SSN 698                   ...........  ...........    209[deg]         4.2        6.1        3.5    1.7 below
USS JACKSONVILLE........................  SSN 699                   ...........  ...........    211[deg]         4.2        6.1        3.5    1.7 below
USS DALLAS..............................  SSN 700                   ...........  ...........  ...........        4.1        6.5        3.4    1.7 below
USS LA JOLLA............................  SSN 701                   ...........  ...........  ...........        4.2        6.1        3.5    1.7 below
USS CITY OF CORPUS CHRISTI..............  SSN 705                   ...........  ...........    209[deg]         4.2        6.1        3.5    1.7 below
USS ALBUQUERQUE.........................  SSN 706                   ...........    114[deg]   ...........        4.2        6.1        3.5    1.7 below
USS PORTSMOUTH..........................  SSN 707                   ...........  ...........    209[deg]         4.2        6.1        3.5    1.7 below
USS MINNEAPOLIS-ST. PAUL................  SSN 708                   ...........  ...........    209[deg]         4.2        6.2        3.5    1.7 below
USS HYMAN G. RICKOVER...................  SSN 709                   ...........  ...........    209[deg]         4.2        6.1        3.4    1.7 below
USS AUGUSTA.............................  SSN 710                   ...........  ...........    209[deg]         4.2        6.1        3.4    1.7 below
USS SAN FRANCISCO.......................  SSN 711                   ...........  ...........  ...........        4.1        6.5        3.4    1.7 below
USS HOUSTON.............................  SSN 713                   ...........  ...........    209[deg]         4.3        6.1        3.4    1.7 below
USS NORFOLK.............................  SSN 714                   ...........  ...........    209[deg]         4.3        6.1        3.4    1.7 below
USS BUFFALO.............................  SSN 715                   ...........  ...........    209[deg]         4.2        6.1        3.5    1.7 below
USS SALT LAKE CITY......................  SSN 716                   ...........  ...........    209[deg]         4.2        6.1        3.5    1.7 below
USS OLYMPIA.............................  SSN 717                   ...........  ...........    209[deg]         4.2        6.1        3.4    1.7 below
USS HONOLULU............................  SSN 718                   ...........  ...........    209[deg]         4.2        6.1        3.4    1.7 below
USS PROVIDENCE..........................  SSN 719                   ...........  ...........    209[deg]         4.2        6.1        3.4    1.7 below
USS PITTSBURGH..........................  SSN 720                   ...........  ...........    209[deg]         4.2        6.1        3.4    1.7 below
USS CHICAGO.............................  SSN 721                   ...........  ...........    209[deg]         4.3        6.1        3.4    1.7 below
USS KEY WEST............................  SSN 722                   ...........  ...........    209[deg]         4.2        6.1        3.4    1.7 below
USS OKLAHOMA CITY.......................  SSN 723                   ...........  ...........    209[deg]         4.3        6.1        3.4    1.7 below
USS LOUISVILLE..........................  SSN 724                   ...........    113[deg]     209[deg]         4.2        6.1        3.5    1.7 below
USS HELENA..............................  SSN 725                   ...........  ...........    207[deg]         4.2        6.2        3.5    1.7 below
USS NEWPORT NEWS........................  SSN 750                   ...........  ...........    209[deg]         4.3        6.1        3.4    1.7 below
USS SAN JUAN............................  SSN 751                     229[deg]     113[deg]     208[deg]         4.2        6.1        3.5    1.7 below
USS PASADENA............................  SSN 752                     255[deg]   112.5[deg]     206[deg]         4.2        6.1        3.5    1.7 below
USS ALBANY..............................  SSN 753                     225[deg]   112.5[deg]     209[deg]         4.3        6.1        3.4    1.7 below
USS TOPEKA..............................  SSN 754                   ...........  ...........    206[deg]         4.2        6.2        3.5    1.7 below
USS MIAMI...............................  SSN 755                   ...........  ...........    206[deg]         4.2        6.2        3.5    1.7 below
USS SCRANTON............................  SSN 756                   ...........  ...........    209[deg]         4.3        6.1        3.4    1.7 below
USS ALEXANDRIA..........................  SSN 757                   ...........  ...........    205[deg]         4.2        6.2        3.5    1.7 below
USS ASHEVILLE...........................  SSN 758                   ...........  ...........    209[deg]         4.3        6.1        3.4    1.7 below
USS JEFFERSON CITY......................  SSN 759                   ...........  ...........    209[deg]         4.3        6.1        3.4    1.7 below
USS ANNAPOLIS...........................  SSN 760                   ...........  ...........    205[deg]         4.2        6.2        3.5    1.7 below
USS SPRINGFIELD.........................  SSN 761                   ...........  ...........    205[deg]         4.2        6.2        3.5    1.7 below
USS COLUMBUS............................  SSN 762                   ...........  ...........    205[deg]         4.2        6.2        3.5    1.7 below
USS SANTA FE............................  SSN 763                   ...........  ...........    205[deg]         4.2        6.2        3.5    1.7 below
USS BOISE...............................  SSN 764                   ...........  ...........    209[deg]         4.3        6.1        3.4    1.7 below
USS MONTPELIER..........................  SSN 765                   ...........  ...........    209[deg]         4.3        6.1        3.4    1.7 below
USS CHARLOTTE...........................  SSN 766                   ...........  ...........    209[deg]         4.3        6.1        3.4    1.7 below
USS HAMPTON.............................  SSN 767                   ...........  ...........    209[deg]         4.3        6.1        3.4    1.7 below
USS HARTFORD............................  SSN 768                   ...........  ...........    205[deg]         4.2        6.2        3.5    1.7 below
USS TOLEDO..............................  SSN 769                   ...........  ...........    209[deg]         4.4        6.1        3.4    1.7 below
USS TUCSON..............................  SSN 770                   ...........  ...........    209[deg]         4.4        6.1        3.4    1.7 below
USS COLUMBIA............................  SSN 771                   ...........  ...........    205[deg]         4.2        6.2        3.5    1.7 below
USS GREENEVILLE.........................  SSN 772                   ...........  ...........    209[deg]         4.4        6.1        3.4    1.7 below
USS CHEYENNE............................  SSN 773                   ...........  ...........    209[deg]         4.4        6.1        3.4    1.7 below

[[Page 177]]

 
USS OHIO................................  SSBN 726                    225[deg]   112.5[deg]     209[deg]         5.3        9.0        3.8    4.0 below
USS MICHIGAN............................  SSBN 727                    225[deg]   112.5[deg]     209[deg]         5.3        9.0        3.8    4.0 below
USS FLORIDA.............................  SSBN 728                  ...........  ...........    209[deg]         5.3        9.0        3.8    4.0 below
USS GEORGIA.............................  SSBN 729                    225[deg]   112.5[deg]     209[deg]         5.3        9.0        3.8    4.0 below
USS HENRY M. JACKSON....................  SSBN 730                  ...........  ...........    209[deg]         5.3        9.0        3.8    4.0 below
USS ALABAMA.............................  SSBN 731                  ...........  ...........    209[deg]         5.3        9.0        3.8    4.0 below
USS ALASKA..............................  SSBN 732                  ...........  ...........    209[deg]         5.3        9.0        3.8    4.0 below
USS NEVADA..............................  SSBN 733                  ...........  ...........    209[deg]         5.3        9.0        3.8    4.0 below
USS TENNESSEE...........................  SSBN 734                  ...........  ...........    209[deg]         5.3        9.0        3.8    4.0 below
USS PENNSYLVANIA........................  SSBN 735                  ...........  ...........  211.5[deg]         5.3        9.0        3.8    4.0 below
USS WEST VIRGINIA.......................  SSBN 736                  ...........  ...........  211.5[deg]         5.3        9.0        3.8    4.0 below
USS KENTUCKY............................  SSBN 737                  ...........  ...........    209[deg]         5.3        9.0        3.8    4.0 below
USS MARYLAND............................  SSBN 738                  ...........  ...........    209[deg]         5.3        9.0        3.8    4.0 below
USS NEBRASKA............................  SSBN 739                  ...........  ...........    209[deg]         5.3        9.0        3.8    4.0 below
USS RHODE ISLAND........................  SSBN 740                  ...........  ...........    209[deg]         5.3        9.0        3.8    4.0 below
USS MAINE...............................  SSBN 741                  ...........  ...........    209[deg]         5.3        9.0        3.8    4.0 below
USS WYOMING.............................  SSBN 742                  ...........  ...........    209[deg]         5.3        9.0        3.8    4.0 below
USS LOUISIANA...........................  SSBN 743                  ...........  ...........    209[deg]         5.3        9.0        3.8    4.0 below
YTB (class).............................  YTB 769                   ...........  ...........  ...........       2.77      14.02  .........  ............
KEOKUK..................................  YTB 771                   ...........  ...........  ...........       3.11      13.00  .........  ............
YTB 781.................................  YTB 781                   ...........  ...........  ...........       2.56      13.41  .........  ............
YTB (class).............................  YTB 789                   ...........  ...........  ...........       2.50      14.99  .........  ............
YTB 806.................................  YTB 806                   ...........  ...........  ...........       2.79      10.97  .........  ............
YTB 812.................................  YTB 812                   ...........  ...........  ...........       3.03      14.02  .........  ............
YTB 813.................................  YTB 813                   ...........  ...........  ...........       2.63       19.2  .........  ............
YTB 820.................................  YTB 820                   ...........  ...........  ...........       3.08      14.20  .........  ............
SHABONEE................................  YTB 833                   ...........  ...........  ...........       2.77      13.34  .........  ............
YTB 835.................................  YTB 835                   ...........  ...........  ...........       3.00      14.02  .........  ............
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Only when towing.

                               Table Four

    1. Ships other than aircraft carrier types (CV, CVN, LHA, LHD, and 
LPH) may not simultaneously exhibit the masthead lights required by Rule 
27(b)(iii) and the lights required by Rule 27(b)(i) for vessels 
restricted in their ability to maneuver when such simultaneous 
exhibition will present a hazard to their own safe operations. In those 
instances, the lights required by Rule 27(b)(i) will be exhibited. Ships 
conducting flight operations also may not exhibit the stern light 
required by Rule 27(b)(iii).
    2. To provide all-round visibility, the lights required by Rules 27 
(a) and (b) will consist of two lights, one light port and one light 
starboard on the mast or superstructure at each location in the vertical 
array.
    3. The second masthead light required by Rule 23(a)(ii) and the 
lights and shapes required by Rules 24, 27, and 30(d)(i) are not 
displayed by submarines.
    4. On mine warfare type ships the masthead lights will not always be 
above and clear of the minesweeping lights, as is required by Annex I, 
Section 2(f). The positions of the masthead lights with relation to the 
minesweeping lights are as follows:


----------------------------------------------------------------------------------------------------------------
                                                          Relationship of    Relationship of    Relationship of
                                                         forward masthead     after masthead     after masthead
             Vessel                     MSO No.            light to all       light to lower     light to upper
                                                           minesweeping        minesweeping       minesweeping
                                                              lights              lights             lights
----------------------------------------------------------------------------------------------------------------
MSB............................                15       below.............  .................  .................
MSB............................                16        do...............  .................  .................
MSB............................                25        do...............  .................  .................
MSB............................                28        do...............  .................  .................
MSB............................                29        do...............  .................  .................
MSB............................                41        do...............  .................  .................
MSB............................                51        do...............  .................  .................
MSB............................                52        do...............  .................  .................
----------------------------------------------------------------------------------------------------------------


[[Page 178]]

    5. The masthead light required by Rule 23(a)(i) is not located in 
the forepart of the vessel on the CSP Class and SLWT Class.
    6. [Reserved]
    7. On the following ships the arc of visibility of the forward 
masthead light required by Rule 23(a)(i) may be obstructed through 
1.6[deg] arc of visibility at the points 021[deg] and 339[deg] relative 
to the ship's head.

USS MCINERNEY...............................  FFG 8
USS CLARK...................................  FFG 11
USS GEORGE PHILIP...........................  FFG 12
USS SAMUEL ELIOT MORISON....................  FFG 13
USS SIDES...................................  FFG 14
USS ESTOCIN.................................  FFG 15
USS JOHN A. MOORE...........................  FFG 19
USS BOONE...................................  FFG 28
USS STEPHEN W. GROVES.......................  FFG 29
USS JOHN L. HALL............................  FFG 32
USS JARRETT.................................  FFG 33
USS UNDERWOOD...............................  FFG 36
USS CROMMELIN...............................  FFG 37
USS CURTS...................................  FFG 38
USS DOYLE...................................  FFG 39
USS HALYBURTON..............................  FFG 40
USS MCCLUSKY................................  FFG 41
USS KLAKRING................................  FFG 42
USS THACH...................................  FFG 43
USS DEWERT..................................  FFG 45
USS RENTZ...................................  FFG 46
USS NICHOLAS................................  FFG 47
USS VANDERGRIFT.............................  FFG 48
USS ROBERT G. BRADLEY.......................  FFG 49
USS TAYLOR..................................  FFG 50
USS GARY....................................  FFG 51
USS CARR....................................  FFG 52
USS HAWES...................................  FFG 53
USS FORD....................................  FFG 54
USS ELROD...................................  FFG 55
USS SIMPSON.................................  FFG 56
USS REUBEN JAMES............................  FFG 57
USS SAMUEL B. ROBERTS.......................  FFG 58
USS KAUFFMAN................................  FFG 59
USS RODNEY M. DAVIS.........................  FFG 60
USS INGRAHAM................................  FFG 61
 


    8. Sidelights on the following ships do not comply with Annex 1, 
Section 3(b):


------------------------------------------------------------------------
                                                             Distance of
                                                             sidelights
                                                             forward of
                Vessel                        Number          masthead
                                                              light in
                                                               meters
------------------------------------------------------------------------
USS MCINERNEY.........................  FFG 8                      2.75
USS CLARK.............................  FFG 11                     2.75
USS GEORGE PHILIP.....................  FFG 12                     2.75
USS SAMUEL ELIOT MORISON..............  FFG 13                     2.75
USS SIDES.............................  FFG 14                     2.75
USS ESTOCIN...........................  FFG 15                     2.75
USS JOHN A. MOORE.....................  FFG 19                     2.75
USS BOONE.............................  FFG 28                     2.75
USS STEPHEN W. GROVES.................  FFG 29                     2.75
USS JOHN L. HALL......................  FFG 32                     2.75
USS JARRETT...........................  FFG 33                     2.69
USS UNDERWOOD.........................  FFG 36                     2.75
USS CROMMELIN.........................  FFG 37                     2.75
USS CURTS.............................  FFG 38                     2.75
USS DOYLE.............................  FFG 39                     2.75
USS HALYBURTON........................  FFG 40                     2.75
USS MCCLUSKY..........................  FFG 41                     2.75
USS KLAKRING..........................  FFG 42                     2.75
USS THACH.............................  FFG 43                     2.75
USS DEWERT............................  FFG 45                     2.75
USS RENTZ.............................  FFG 46                     2.75
USS NICHOLAS..........................  FFG 47                     2.75
USS VANDEGRIFT........................  FFG 48                     2.75
USS ROBERT G. BRADLEY.................  FFG 49                     2.75
USS TAYLOR............................  FFG 50                     2.75
USS GARY..............................  FFG 51                     2.75
USS CARR..............................  FFG 52                     2.75
USS HAWES.............................  FFG 53                     2.75
USS FORD..............................  FFG 54                     2.75
USS ELROD.............................  FFG 55                     2.75
USS SIMPSON...........................  FFG 56                     2.75
USS REUBEN JAMES......................  FFG 57                     2.75
USS SAMUEL B. ROBERTS.................  FFG 58                     2.75
USS KAUFFMAN..........................  FFG 59                     2.75
USS RODNEY M. DAVIS...................  FFG 60                     2.75
USS INGRAHAM..........................  FFG 61                     2.19
------------------------------------------------------------------------


    9. On LCAC-class amphibious vessels, full compliance with Rules 
21(a), 21(b), and 22(b), and Annex I, section 2(a)(i), 72 COLREGS, 
cannot be obtained. Tables One and Two of section 706.2 provide the 
dimensions of closest possible compliance of LCAC-class amphibious 
vessels with the aforementioned rules. The following paragraph details 
the specific dimensions of closest possible compliance and the basis for 
certification by the Secretary of the Navy that full compliance with the 
aforementioned rules is not obtainable.
    In LCAC-class amphibious vessels, there are permanent and temporary 
masts. The permanent masthead light is located 5.26 meters athwartship 
to port of centerline 5.49 meters above the hull. The temporary masthead 
light is located 3.98 meters athwartship to starboard of centerline 4.06 
meters above the hull. The temporary masthead light is displayed in lieu 
of the permanent masthead light only when LCAC-class amphibious vessels 
are operating with amphibious assault vessels. When operating in this 
mode, the sidelights are displayed at a height greater than three-
quarters of the height of the temporary masthead light. The sidelights 
are located on top of the port and starboard deckhouses to permit the 
required unobstructed arcs of visibility and are 3.28 meters above the 
hull, resulting in a vertical separation between those lights and the 
temporary masthead light of 0.78 meters. Because of the minimal vertical 
separation between the sidelights and the temporary masthead light and 
the luminous intensity of the temporary light, the sidelights on these 
vessels may not be distinguishable by the naked eye at the 2-mile range 
required by Rule 22(b).
    10. [Reserved]
    11. On USS DOLPHIN (AGSS 555) the masthead light will be visible at 
a distance of 4.3 nautical miles and the sidelights will be visible at a 
distance of 2 nautical miles.

[[Page 179]]

    12.-13. [Reserved]
    14. The following harbor tugs are equipped with a hinged mast. When 
the mast is in the lowered position as during a towing alongside or 
pushing operation, the two masthead lights required by Rule 24(c), and 
the all around lights required by Rule 27(b)(i) will not be shown; 
however, an auxiliary masthead light not meeting with Annex I, section 
2(a)(i) height requirement will be exhibited.


------------------------------------------------------------------------
                                                                Distance
                                                               in meters
                                                                of aux.
                                                                masthead
                                                                 light
                                                                 below
                          Vessel No.                            minimum
                                                                required
                                                                height.
                                                                Annex I,
                                                                  sec.
                                                                2(a)(i)
------------------------------------------------------------------------
YTB 769......................................................      3.86
YTB 771......................................................      3.89
YTB 781......................................................      3.66
YTB 789......................................................      3.30
YTB 806......................................................      3.58
YTB 812......................................................      4.04
YTB 813......................................................      6.15
YTB 820......................................................      3.30
YTB 833......................................................      3.68
YTB 835......................................................      4.04
------------------------------------------------------------------------


    15. Task (restricted maneuverability) lights on the following ships 
do not comply with Annex I, section 3(c).


------------------------------------------------------------------------
                                                            Horizontal
                                                           distance from
                                                           the fore and
                                                          aft centerline
                Vessel                       Number        of the vessel
                                                              in the
                                                            athwartship
                                                             direction
------------------------------------------------------------------------
USS ARLEIGH BURKE....................  DDG 51...........     1.85 meters
USS BARRY............................  DDG 52...........     1.94 meters
USS JOHN PAUL JONES..................  DDG 53...........     1.89 meters
USS CURTIS WILBUR....................  DDG 54...........     1.90 meters
USS STOUT............................  DDG 55...........     1.90 meters
USS JOHN S. MCCAIN...................  DDG 56...........     1.88 meters
USS MITSCHER.........................  DDG 57...........     1.93 meters
USS LABOON...........................  DDG 58...........     1.90 meters
USS RUSSELL..........................  DDG 59...........     1.91 meters
USS PAUL HAMILTON....................  DDG 60...........     1.88 meters
USS RAMAGE...........................  DDG 61...........     1.91 meters
USS FITZGERALD.......................  DDG 62...........     1.90 meters
USS STETHEM..........................  DDG 63...........     1.91 meters
USS CARNEY...........................  DDG 64...........     1.90 meters
USS BENFOLD..........................  DDG 65...........     1.90 meters
USS GONZALES.........................  DDG 66...........     1.90 meters
USS COLE.............................  DDG 67...........     1.90 meters
USS THE SULLIVANS....................  DDG 68...........     1.87 meters
USS MILIUS...........................  DDG 69...........     1.93 meters
USS HOPPER...........................  DDG 70...........     1.83 meters
USS ROSS.............................  DDG 71...........     1.96 meters
USS MAHAN............................  DDG 72...........     1.90 meters
USS DECATUR..........................  DDG 73...........     1.87 meters
USS MCFAUL...........................  DDG 74...........     1.91 meters
USS DONALD COOK......................  DDG 75...........     1.90 meters
USS HIGGINS..........................  DDG 76...........     1.92 meters
USS O'KANE...........................  DDG 77...........     1.92 meters
USS PORTER...........................  DDG 78...........     1.92 meters
USS ROOSEVELT........................  DDG 80...........     1.90 meters
USS WINSTON S. CHURCHILL.............  DDG 81...........    1.87 meters.
USS HOWARD...........................  DDG 83...........            1.88
USS LASSEN...........................  DDG 82...........            1.93
USS BULKELEY.........................  DDG 84...........            1.90
USS MCCAMPBELL.......................  DDG 85...........    1.85 meters.
USS SHOUP............................  DDG 86...........    1.90 meters.
------------------------------------------------------------------------

    16. On the following ships, the arc of visibility of the forward 
masthead light, required by rule 21(a), may be obstructed at the 
following angles relative to ship's heading:


------------------------------------------------------------------------
                                                      Obstruction angle
              Vessel                    Number         relative ship's
                                                          headings
------------------------------------------------------------------------
USS ARLEIGH BURKE.................  DDG 51........      100.00[deg] thru
                                                             112.50[deg]
USS BARRY.........................  DDG 52........      101.16[deg] thru
                                                             112.50[deg]
USS JOHN PAUL JONES...............  DDG 53........      103.29[deg] thru
                                                             112.50[deg]
USS CURTIS WILBUR.................  DDG 54........      102.61[deg] thru
                                                             112.50[deg]
USS STOUT.........................  DDG 55........      102.00[deg] thru
                                                             112.50[deg]
USS JOHN S. MCCAIN................  DDG 56........      102.53[deg] thru
                                                             112.50[deg]
USS MITSCHER......................  DDG 57........      102.27[deg] thru
                                                             112.50[deg]
USS LABOON........................  DDG 58........      102.80[deg] thru
                                                             112.50[deg]
USS RUSSELL.......................  DDG 59........       92.62[deg] thru
                                                             109.38[deg]
USS PAUL HAMILTON.................  DDG 60........      101.35[deg] thru
                                                             112.50[deg]
USS RAMAGE........................  DDG 61........      103.66[deg] thru
                                                             112.50[deg]
USS FITZGERALD....................  DDG 62........      108.30[deg] thru
                                                             112.50[deg]
USS STETHEM                         DDG 63........            108.5 thru
                                                             112.50[deg]
USS CARNEY........................  DDG 64........      105.06[deg] thru
                                                             112.50[deg]
USS BENFOLD.......................  DDG 65........      101.86[deg] thru
                                                             112.50[deg]
USS GONZALES......................  DDG 66........      101.69[deg] thru
                                                             112.50[deg]
USS COLE..........................  DDG 67........      101.83[deg] thru
                                                             112.50[deg]
USS THE SULLIVANS.................  DDG 68........      103.06[deg] thru
                                                             112.50[deg]
USS MILIUS........................  DDG 69........      102.30[deg] thru
                                                             112.50[deg]
USS HOPPER........................  DDG 70........      102.25[deg] thru
                                                             112.50[deg]
USS ROSS..........................  DDG 71........      104.05[deg] thru
                                                             112.50[deg]
USS MAHAN.........................  DDG 72........      102.11[deg] thru
                                                             112.50[deg]
USS DECATUR.......................  DDG 73........      103.00[deg] thru
                                                             112.50[deg]
USS MCFAUL........................  DDG 74........      102.00[deg] thru
                                                            112.50E[deg]
USS DONALD COOK...................  DDG 75........      108.78[deg] thru
                                                             112.50[deg]
USS HIGGINS.......................  DDG 76........           108.60 thru
                                                             112.50[deg]
USS O'KANE........................  DDG 77........           102.00 thru
                                                             112.50[deg]
USS PORTER........................  DDG 78........           108.43 thru
                                                             112.50[deg]
USS OSCAR AUSTIN..................  DDG 79........           107.94 thru
                                                            112.50[deg].
USS ROOSEVELT.....................  DDG 80........           109.34 thru
                                                            112.50[deg].
USS WINSTON S. CHURCHILL..........  DDG 81........           101.96 thru
                                                            112.50[deg].
USS LASSEN........................  DDG 82........           109.11 thru
                                                             112.50[deg]
USS HOWARD........................  DDG 83........           103.20 thru
                                                             112.50[deg]
USS BULKELEY......................  DDG 84........           104.74 thru
                                                             112.50[deg]
USS MCCAMPBELL....................  DDG 85........           108.61 thru
                                                             112.50[deg]
USS SHOUP.........................  DDG 86........           190.46 thru
                                                             112.50[deg]
------------------------------------------------------------------------


    17. The second masthead light required by Rule 23(a)(ii) will not be 
displayed on the PC 1 Class.
    18. On the following mine warfare type ships, the arc of visibility 
of the lower all-round minesweep lights required by Rule 27(f), may be 
obstructed through the following angles relative to the ship's heading:


------------------------------------------------------------------------
                                            Obscured angles relative to
                                                  ship's heading
            Vessel               Number  -------------------------------
                                               Port            STBD
------------------------------------------------------------------------
OSPREY.......................  MHC 51...  59.5[deg] to   281.7[deg] to
                                           78.3[deg].     300.5[deg]
HERON........................  MHC 52...  59.5[deg] to   281.7[deg] to
                                           78.3[deg].     300.5[deg]

[[Page 180]]

 
PELICAN......................  MHC 53...  59.5[deg] to   281.7[deg] to
                                           78.3[deg].     300.5[deg]
ROBIN........................  MHC 54...  59.5[deg] to   281.7[deg] to
                                           78.3[deg].     300.5[deg]
ORIOLE.......................  MHC 55...  65.0[deg] to   284.1[deg] to
                                           75.6[deg].     294.6[deg]
CORMORANT....................  MHC 57...  59.5[deg] to   281.7[deg] to
                                           78.3[deg].     300.5[deg]
BLACK HAWK...................  MHC 58...  65.0[deg] to   284.1[deg] to
                                           75.6[deg].     294.6[deg]
USS FALCON...................  MHC 59...  65.0[deg] to   284.1[deg] to
                                           75.6[deg].     294.6[deg]
CARDINAL.....................  MHC 60...  65.0[deg] to   284.1[deg] to
                                           75.6[deg].     294.6[deg]
------------------------------------------------------------------------


    19. Sidelights on the following ships do not comply with Annex I, 
Section 2 (g):


----------------------------------------------------------------------------------------------------------------
                                                                       Distance in meters of sidelights above
                 Vessel                            Number                      maximum allowed height.
----------------------------------------------------------------------------------------------------------------
USS OGDEN...............................  LPD 5                     3.40
USS DUBUQUE.............................  LPD 8                     1.2
USS DENVER..............................  LPD 9                     4.9
USS JUNEAU..............................  LPD 10                    1.6
----------------------------------------------------------------------------------------------------------------


                                                   Table Five
----------------------------------------------------------------------------------------------------------------
                                                      Masthead                      After masthead
                                                     lights not       Forward      light less than
                                                      over all     masthead light    \1/2\ ship's    Percentage
                                                    other lights   not in forward   length aft of    horizontal
             Vessel                     No.             and          quarter of        forward       separation
                                                   obstructions.   ship. annex I,  masthead light.    attained
                                                   annex I, sec.     sec. 3(a)      annex I, sec.
                                                        2(f)                             3(a)
----------------------------------------------------------------------------------------------------------------
 
USS FLINT......................   AE 32            .............  ...............   X                98
USS SHASTA.....................   AE 33            .............  ...............   X                98
USS NIAGARA FALLS..............   AFS 3            .............  ...............   X                97.9
USS CONCORD....................   AFS 5            .............  ...............   X                97
USS SAN JOSE...................   AFS 7            .............  ...............   X                98.1
USS LA SALLE...................   AGF 3            .............  ...............   X                54
USS CORONADO...................   AGF 11           .............  ...............   X                55
USS TICONDEROGA................   CG 47            .............   X                X                38.3
USS YORKTOWN...................   CG 48            .............   X                X                38.0
USS VINCENNES..................   CG 49            .............   X                X                38
USS VALLEY FORGE...............   CG 50            .............   X                X                38
USS THOMAS S. GATES............   CG 51            .............   X                X                38
USS BUNKER HILL................   CG 52            .............   X                X                38
USS MOBILE BAY.................   CG 53            .............   X                X                38
USS ANTIETAM...................   CG 54            .............   X                X                38
USS LEYTE GULF.................   CG 55            .............   X                X                38
USS SAN JACINTO................   CG 56            .............   X                X                38
USS LAKE CHAMPLAIN.............   CG 57            .............   X                X                38
USS PHILIPPINE SEA.............   CG 58            .............   X                X                38
USS PRINCETON..................   CG 59            .............   X                X                38
USS NORMANDY...................   CG 60            .............   X                X                38
USS MONTEREY...................   CG 61            .............   X                X                38
USS CHANCELLORSVILLE...........   CG 62            .............   X                X                38
USS COWPENS....................   CG 63            .............   X                X                38
USS GETTYSBURG.................   CG 64            .............   X                X                38
USS CHOSIN.....................   CG 65            .............   X                X                38
USS HUE CITY...................   CG 66            .............   X                X                38
USS SHILOH.....................   CG 67            .............   X                X                38
USS ANZIO......................   CG 68            .............   X                X                38
USS VICKSBURG..................   CG 69                     N/A    X                X                38
USS LAKE ERIE..................   CG 70                     N/A    X                X                38
USS CAPE ST. GEORGE............   CG 71                     N/A    X                X                38
USS VELLA GULF.................   CG 72                     N/A    X                X                38
USS PORT ROYAL.................   CG 73                     N/A    X                X                38
USS KITTY HAWK.................   CV 63            .............   X
USS CONSTELLATION..............   CV 64            .............   X
USS ENTERPRISE.................   CVN 65           .............   X
USS NIMITZ.....................   CVN 68           .............   X
USS DWIGHT D. EISENHOWER.......   CVN 69           .............   X
USS CARL VINSON................   CVN 70           .............   X
USS THEODORE ROOSEVELT.........   CVN 71           .............   X
USS ABRAHAM LINCOLN............   CVN 72           .............   X
USS GEORGE WASHINGTON..........   CVN 73           .............   X               ...............
USS JOHN C. STENNIS............   CVN 74           .............   X               ...............
USS HARRY S TRUMAN.............   CVN 75           .............   X               ...............  ............
USS SPRUANCE...................   DD 963           .............   X                X                46

[[Page 181]]

 
USS PAUL F. FOSTER.............   DD 964           .............   X                X                46.4
USS KINKAID....................   DD 965           .............   X                X                46.4
USS HEWITT.....................   DD 966           .............   X                X                46.4
USS ELLIOT.....................   DD 967           .............   X                X                46.4
USS PETERSON...................   DD 969           .............   X                X                46.4
USS ARTHUR W. RADFORD..........   DD 968           .............   X                X                46.4
USS CARON......................   DD 970           .............   X                X                46.4
USS DAVID R. RAY...............   DD 971           .............   X                X                46.4
USS OLDENDORF..................   DD 972                    N/A    X                X                45
USS JOHN YOUNG.................   DD 973           .............   X                X                46
USS O'BRIEN....................   DD 975           .............   X                X                46.1
USS BRISCOE....................   DD 977           .............   X                X                46.4
USS STUMP......................   DD 978           .............   X                X                46
USS MOOSBRUGGER................   DD 980           .............   X                X                46
USS JOHN HANCOCK...............   DD 981           .............   X                X                46.4
USS NICHOLSON..................   DD 982           .............   X                X                46.4
USS CUSHING....................   DD 985           .............   X                X                46
USS O'BANNON...................   DD 987           .............   X                X                46
USS THORN......................   DD 988           .............   X                X                46
USS DEYO.......................   DD 989           .............   X                X                46
USS FIFE.......................   DD 991           .............   X                X                48
USS FLETCHER...................   DD 992           .............   X                X                46
USS HAYLER.....................   DD 997                    N/A    X                X                44
USS ARLEIGH BURKE..............   DDG 51                      X    X                X                19.0
USS BARRY......................   DDG 52                      X    X                X                19.8
USS JOHN PAUL JONES............   DDG 53                      X    X                X                18.9
USS CURTIS WILBUR..............   DDG 54                      X    X                X                19.6
USS STOUT......................   DDG 55                      X    X                X                19.6
USS JOHN S. McCAIN.............   DDG 56                      X    X                X                19.8
USS MITSCHER...................   DDG 57                      X    X                X                19.8
USS LABOON.....................   DDG 58                      X    X                X                19.6
USS RUSSELL....................   DDG 59                      X    X                X                20.6
USS PAUL HAMILTON..............   DDG 60                      X    X                X                20.4
USS RAMAGE.....................  DDG 61                       X   X                X                19.2
USS FITZGERALD.................   DDG 62                      X    X                X                21.2
USS STETHEM....................  DDG 63                       X   X                X                20.9
USS CARNEY.....................   DDG 64                      X    X                X                19.7
USS BENFOLD....................  DDG 65                       X   X                X                 20.0
USS GONZALES...................   DDG 66                      X    X                X                20.4
USS COLE.......................   DDG 67                      X    X                X                14.0
USS THE SULLIVANS..............   DDG 68                      X    X                X                20.5
USS MILIUS.....................   DDG 69                      X    X                X                20.4
USS HOPPER.....................   DDG 70                      X    X                X                20.4
USS ROSS.......................   DDG 71                      X    X                X                20.6
USS MAHAN......................   DDG 72                      X    X                X                13.9
USS DECATUR....................   DDG 73                      X    X                X                14.0
USS MCFAUL.....................   DDG 74                      X    X                X                13.9
USS DONALD COOK................   DDG 75                      X    X                X                14.8
USS HIGGINS....................  DDG 76                       X    X                X                14.8
USS O'KANE.....................   DDG 77                      X    X                X                14.0
USS PORTER.....................  DDG 78                       X   X                X                14.4
USS OSCAR AUSTIN...............  DDG 79                       X   X                X                14.7
USS ROOSEVELT..................  DDG 80                       X   X                X                14.6
USS WINSTON S. CHURCHILL.......  DDG 81                       X   X                X                 13.8
USS HOWARD.....................  DDG 83                       X   X                X                14.0
USS LASSEN.....................   DDG 82                      X    X                X                14.5
USS BULKELEY...................  DDG 84                       X   X                X                14.1
USS MCCAMPBELL.................  DDG 85                       X    X                X                14.6
USS SHOUP......................   DDG 86                      X    X                X                14.6
USS BLUE RIDGE.................   LCC 19                    N/A   N/A               X                84
USS MOUNT WHITNEY..............   LCC 20           .............  ...............   X                84
USS TARAWA.....................   LHA 1            .............   X                X                13
USS SAIPAN.....................   LHA 2            .............   X                X                10.2
USS BELLEAU WOOD...............   LHA 3            .............   X                X                13
USS NASSAU.....................   LHA 4            .............   X                X                13

[[Page 182]]

 
USS PELELIU....................   LHA 5            .............   X                X                13
USS WASP.......................   LHD 1            .............   X                X                41
USS ESSEX......................   LHD 2            .............   X                X                39
USS KEARSARGE..................   LHD 3            .............   X                X                39.5
USS BOXER......................   LHD 4            .............   X                X                39.3
USS BATAAN.....................   LHD 5            .............   X                X                39.7
USS BONHOMME RICHARD...........   LHD 6            .............   X                X                39.8
USS IWO JIMA...................   LHD 7            .............   X                X                41.5
USS AUSTIN.....................   LPD 4            .............  ...............   X                37
USS OGDEN......................   LPD 5                     N/A   N/A               X                56.6
USS DULUTH.....................   LPD 6                     N/A   N/A               X                56.8
USS CLEVELAND..................   LPD 7            .............  ...............   X                49
USS DUBUQUE....................   LPD 8            .............  ...............   X                57
USS DENVER.....................   LPD 9                     N/A   N/A               X                54.7
USS JUNEAU.....................   LPD 10                    N/A   N/A               X                54.8
USS SHREVEPORT.................   LPD 12           .............  ...............   X                49
USS NASHVILLE..................   LPD 13           .............  ...............   X                48
USS TRENTON....................   LPD 14           .............  ...............   X                41
USS PONCE......................   LPD 15           .............  ...............   X                55
USS TRIPOLI....................   LPH 10           .............   X                X                12
USS ANCHORAGE..................   LSD 36           .............  ...............   X                46
USS PORTLAND...................   LSD 37           .............  ...............   X                46
USS MOUNT VERNON...............   LSD 39           .............  ...............   X                46
USS WHIDBEY ISLAND.............   LSD 41           .............  ...............   X                65
USS GERMANTOWN.................   LSD 42           .............  ...............   X                65
USS FORT McHENRY...............   LSD 43           .............  ...............   X                64
USS GUNSTON HALL...............   LSD 44           .............  ...............   X                64
USS COMSTOCK...................   LSD 46           .............  ...............   X                64
USS TORTUGA....................   LSD 46           .............  ...............   X                64
USS RUSHMORE...................   LSD 47           .............  ...............   X                64
USS ASHLAND....................   LSD 48           .............  ...............   X                64.1
USS HARPERS FERRY..............   LSD 49           .............  ...............   X                63.9
USS CARTER HALL................   LSD 50           .............  ...............   X                63.9
USS OAK HILL...................   LSD 51           .............  ...............   X                63.9
USS PEARL HARBOR...............   LSD 52           .............  ...............   X                63.9
USS FREDERICK..................   LST 1184         .............  ...............   X                90
USS CAYUGA.....................   LST 1186         .............  ...............   X                89
USS SAN BERNARDINO.............   LST 1189         .............  ...............   X                89
USS LA MOURE COUNTY............   LST 1194         .............  ...............   X                88
USS HARLAN COUNTY..............   LST 1196         .............  ...............   X                89
USS BARNSTABLE COUNTY..........   LST 1197         .............  ...............   X                88
USS AVENGER....................   MCM 1            .............  ...............   X                63
USS DEFENDER...................   MCM 2            .............  ...............   X                62
USS SENTRY.....................   MCM 3            .............  ...............   X                62
USS CHAMPION...................   MCM 4            .............  ...............   X                64
USS GUARDIAN...................   MCM 5            .............  ...............   X                63
USS DEVASTATOR.................   MCM 6            .............  ...............   X                64
USS PATRIOT....................   MCM 7            .............  ...............   X                64
USS SCOUT......................   MCM 8            .............  ...............   X                64
USS PIONEER....................   MCM 9            .............  ...............  ...............   64
USS WARRIOR....................   MCM 10           .............  ...............   X                64
USS GLADIATOR..................   MCM 11           .............  ...............   X                64
USS ARDENT.....................   MCM 12           .............  ...............   X                64
USS DEXTROUS...................   MCM 13           .............  ...............   X                64
USS CHIEF......................   MCM 14           .............  ...............   X                64
USS INCHON.....................   MCS 12           .............   X                X                11
USNS KILAUEA...................   T-AE 26          .............  ...............   X                94.1
----------------------------------------------------------------------------------------------------------------

[42 FR 36434, July 14, 1977]

    Editorial Note 1: For Federal Register citations affecting 
Sec. 706.2, see the List of CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and on GPO Access.

[[Page 183]]


    Editorial Note 2: At 66 FR 53532, Oct. 23, 2001, Tables Four and 
Five were amended by adding entries for the USS WINSTON CHURCHILL. Those 
tables have entries for the ship.



Sec. 706.3  Exemptions by the Secretary of the Navy under Executive Order 11964.

    The Secretary of the Navy hereby exempts, in accordance with Rule 38 
of the International Regulations for Preventing Collisions at Sea, 1972, 
the vessels and classes of vessels listed in this section, from full 
compliance with the Regulations, where an exemption is allowed by, and 
for the periods specified in, Rule 38. The Secretary of the Navy further 
finds that the vessels and classes of vessels listed have had their 
keels laid or are in corresponding stages of construction before July 
15, 1977, and that such vessels and classes of vessels comply with the 
requirements of the International Regulations for Preventing Collisions 
at Sea, 1960.

                                Table One
 [The following vessels and classes of vessels, less than 150 meters in
     length, are permanently exempted pursuant to rule 38(d)(i) from
  repositioning of masthead lights resulting from the prescriptions of
                         Annex I, section 3(a)]
------------------------------------------------------------------------
                             Vessel or class
-------------------------------------------------------------------------
USNS HAYES (T-AG-195)
T-AGOR 3 Class
T-AGS 26 Class
T-AOG 77 Class
T-ATF 166 Class
DDG 2 Class
FF 1040 Class
FF 1052 Class
FFG 7 Class
LCU 1610 Class
LCU 1648 Class
USS DOLPHIN (AGSS 555)
SSN 594 Class
SSN 637 Class
SSN 688 Class
SSBN 726 Class
YFU (Ex-LCU 1466 Class)
------------------------------------------------------------------------


[42 FR 36434, July 14, 1977, as amended at 55 FR 27818, July 9, 1990; 60 
FR 22506, May 8, 1995; 65 FR 79742, Dec. 20, 2000]



PART 707--SPECIAL RULES WITH RESPECT TO ADDITIONAL STATION AND SIGNAL LIGHTS--Table of Contents




Sec.
707.1 Purpose of regulations.
707.2 Man overboard lights.
707.3 Yard arm signaling lights.
707.4 Aircraft warning lights.
707.5 Underway replenishment contour lights.
707.6 Minesweeping station keeping lights.
707.7 Submarine identification light.
707.8 Special operations lights.
707.9 Convoy operations stern light.
707.10 Wake illumination light.
707.11 Flight operations lights.
707.12 Amphibious operations lights.

    Authority: 33 U.S.C. 182 and 1606, E.O. 11964.

    Source: 42 FR 61596, Dec. 6, 1977, unless otherwise noted.



Sec. 707.1  Purpose of regulations.

    All ships are warned that when U.S. naval vessels are met in 
international and inland waters, some of the navigational lights 
displayed by them may be special lights for naval purposes. When used, 
they may be displayed simultaneously with the ordinary navigational 
lights required by the International Regulations for Preventing 
Collisions at Sea, 1972, or the Inland Navigational Rules. The lights 
are located and characterized in such a fashion that, as far as 
possible, they cannot be mistaken for any light authorized by either set 
of rules. This part publishes the special rules with respect to these 
additional station and signal lights promulgated by the Secretary of the 
Navy for vessels of the Navy.



Sec. 707.2  Man overboard lights.

    Naval vessels may display, as a means of indicating man overboard, 
two pulsating, all round red lights in the vertical line located on a 
mast from where they can best be seen.



Sec. 707.3  Yard arm signaling lights.

    Naval vessels may display, as a means of visual signaling, white all 
round lights at the ends of the yard arms. These lights will flash in 
varying sequences to convey the intended signal.



Sec. 707.4  Aircraft warning lights.

    Naval vessels may display, as a means of indicating the presence of 
an obstruction to low flying aircraft, one all round red light on each 
obstruction.

[[Page 184]]



Sec. 707.5  Underway replenishment contour lights.

    Naval vessels may display, as a means of outlining the contour of 
the delivery ship during nighttime underway replenishment operations, 
either red or blue lights at delivery-ship-deck-edge extremities.

[42 FR 61596, Dec. 6, 1977, as amended at 44 FR 27991, May 14, 1979]



Sec. 707.6  Minesweeping station keeping lights.

    Naval vessels engaged in minesweeping operations may display, as an 
aid in maintaining prescribed intervals and bearings, two white lights 
in a vertical line visible from 070[deg] through 290[deg] relative.



Sec. 707.7  Submarine identification light.

    Submarines may display, as a distinctive means of identification, an 
intermittent flashing amber beacon with a sequence of operation of one 
flash per second for three (3) seconds followed by a three (3) second 
off-period. The light will be located where it can best be seen, as near 
as practicable, all around the horizon. It shall not be located less 
than two (2) feet above or below the masthead lights.

[48 FR 4284, Jan. 31, 1983]



Sec. 707.8  Special operations lights.

    Naval vessels may dispay, as a means of coordinating certain special 
operations, a revolving beam colored red, green, or amber, located on 
either yard arm or the mast platform from where it can best be seen all 
around the horizon.



Sec. 707.9  Convoy operations stern light.

    Naval vessels may display, during periods of convoy operations, a 
blue light located near the stern with the same characteristics as, but 
in lieu of, the normal white stern light.



Sec. 707.10  Wake illumination light.

    Naval vessels may display a white spot light located near the stern 
to illuminate the wake.



Sec. 707.11  Flight operations lights.

    Naval vessels engaged in night flight operations may display various 
arrangements of light systems containing combinations of different 
colored lights as a means of assisting in the launch and recovery of 
aircraft and enhancing flight safety. These light systems will be 
located at various points on the vessels, depending on the vessel type 
and the nature of the flight operations being conducted.



Sec. 707.12  Amphibious operations lights.

    Naval vessels engaged in night amphibious operations may display 
various arrangements of light systems containing combinations of 
different colored lights as a means of assisting in the launch and 
recovery of assault craft and enhancing the safety of the amphibious 
operation. These light systems will be located at various points on the 
vessel, depending on the vessel type and the nature of the amphibious 
operations being conducted.



                         SUBCHAPTER C--PERSONNEL



PART 716--DEATH GRATUITY--Table of Contents




    Subpart A--Provisions Applicable to the Navy and the Marine Corps

Sec.
716.1 Principal rule.
716.2 Definitions.
716.3 Special situations.
716.4 Eligible survivors.
716.5 Delegation of authority.
716.6 Death occurring after active service.
716.7 Payment of the death gratuity.
716.8 Payments excluded.
716.9 Erroneous payment.

              Subpart B--Provisions Applicable to the Navy

716.10 Procedures.

          Subpart C--Provisions Applicable to the Marine Corps

716.11 Procedures.


[[Page 185]]


    Authority: Sec. 301, 80 Stat. 379, 1(32)(A), 72 Stat. 1452; 5 U.S.C. 
301, 10 U.S.C. 1475-1480, Pub. L. 89-554.

    Source: 24 FR 7523, Sept. 18, 1959, unless otherwise noted.



    Subpart A--Provisions Applicable to the Navy and the Marine Corps



Sec. 716.1  Principal rule.

    Under title 10 U.S.C., section 1475, the Secretary of the Navy shall 
have a death gratuity paid immediately upon official notification of the 
death of a member of the naval service who dies while on active duty, 
active duty for training, or inactive duty training. The death gratuity 
shall equal six months' basic pay (plus special, incentive, and 
proficiency pay) at the rate to which the deceased member was entitled 
on the date of his death but shall not be less than $800 nor more than 
$3,000. A kind of special pay included is the 25% increase in pay to 
which a member serving on a naval vessel in foreign waters is entitled 
under 10 U.S.C. 5540 when retained beyond expiration of enlistment 
because such retention was essential to the public interest.



Sec. 716.2  Definitions.

    For the purposes of this part, terms are defined as follows:
    (a) Member of the naval service. This term includes:
    (1) A person appointed, enlisted, or inducted into the Regular Navy, 
Regular Marine Corps, Naval Reserve or Marine Corps Reserve, and 
includes a midshipman at the United States Naval Academy;
    (2) Enlisted members of the Fleet Reserve and Fleet Marine Corps 
Reserve and retired members;
    (3) A member of the Naval Reserve Officers Training Corps when 
ordered to annual training duty for 14 days or more, and while 
performing authorized travel to and from that duty; and
    (4) Any person while en route to or from, or at a place for final 
acceptance for entry upon active duty in the naval service who has been 
ordered or directed to go to that place, and who has been provisionally 
accepted for such duty.
    (b) Active duty. This term is defined as (1) full-time duty 
performed by a member of the naval service, other than active duty for 
training, or (2) as a midshipman at the United States Naval Academy, and 
(3) authorized travel to or from such duty or service.
    (c) Active duty for training. Such term means:
    (1) Full-time duty performed by a member of a Reserve component of 
the naval service for training purposes;
    (2) Annual training duty performed for a period of 14 days or more 
by a member of the Naval Reserve Officers Training Corps; and
    (3) Authorized travel to or from such duty.
    (d) Inactive-duty training. Such term is defined as any of the 
training, instruction, appropriate duties, or equivalent training, 
instruction, duty, appropriate duties, or hazardous duty performed with 
or without compensation by a member of a Reserve component prescribed by 
the Secretary of the Navy pursuant to sections 206, 309, and 1002 of 
title 37 U.S.C. or any other provision of law. The term does not 
include:
    (1) Work or study performed by a member of a Reserve component in 
connection with correspondence courses in which he is enrolled, or
    (2) Attendance at an educational institution in an inactive status 
under the sponsorship of the Navy or Marine Corps.

[24 FR 7523, Sept. 16, 1959, as amended at 37 FR 6471, Mar. 30, 1972; 44 
FR 25647, May 2, 1979]



Sec. 716.3  Special situations.

    (a) Service without pay. Any member of a Reserve component who 
performs active duty, active duty for training, or inactive-duty 
training without pay shall, for purposes of a death gratuity payment, be 
considered as being entitled to basic pay, including special pay and 
incentive pay if appropriate, while performing such duties.
    (b) Death occurring while traveling to and from active duty for 
training and inactive-duty training. Any member of a Reserve component 
who, when authorized or required by competent authority, assumes an 
obligation to perform active duty for training or inactive-duty training 
and who dies from an injury incurred on or after January 1,

[[Page 186]]

1957 while proceeding directly to or directly from such active duty for 
training or inactive-duty training, shall be deemed to have been on 
active duty for training or inactive-duty training as the case may be.
    (c) Hospitalization. A member of a Reserve component who suffers 
disability while on active duty, active duty for training, or inactive-
duty training, and who is placed in a new status while he is receiving 
hospitalization or medical care (including out-patient care) for such 
disability, shall be deemed, for purposes of death gratuity payment to 
have continued on active duty, active duty for training, or inactive-
duty training, as the case may be, in the event of his death in such 
status.
    (d) Discharge or release from a period of active duty. A person who 
is discharged or released from active duty (other than for training) is 
considered to continue on that duty during the period of time required 
for that person to go to his home by the most direct route. That period 
may not end before midnight of the day on which the member is discharged 
or released.

[24 FR 7523, Sept. 18, 1959, as amended at 25 FR 7792, Aug. 16, 1960]



Sec. 716.4  Eligible survivors.

    (a) The death gratuity shall be paid to or for the living survivor 
or survivors of the deceased member first listed below:
    (1) The lawful spouse. (For purpose of this part, a man or woman 
shall be considered to be the spouse if legally married to the member at 
the time of the member's death.)
    (2) His children (without regard to their age or marital status) in 
equal shares.
    (3) Parent(s), brother(s) or sister(s) or any combination of them, 
when designated by the deceased member.
    (4) Undesignated parents in equal shares.
    (5) Undesignated brothers and sisters in equal shares. In paragraphs 
(a)(2), (3) and (4), respectively, of this section, the terms ``child'' 
and ``parent'' have the meanings assigned to them by title 10 U.S.C. 
section 1477 and the term ``parents'' includes persons in loco parentis 
as indicated by that section. The terms ``brother'' and ``sister'' in 
paragraphs (a) (3) and (5) of this section include brothers and sisters 
of the half blood and those through adoption.
    (b) Designation of payee by service member. Where the service member 
has designated a beneficiary and is not survived by a spouse, child, or 
children, the payment will be made to the specific person designated by 
him provided the designee falls within the class of beneficiaries 
permitted as set forth in paragraph (a)(3) of this section. If more than 
one person is so designated on the Record of Emergency, payment will be 
made in equal shares unless the member designated a proportionate share 
to each beneficiary. Frivolous designations, such as one per centum to a 
particular beneficiary, should not be made.
    (c) Death of survivor prior to receipt of gratuity. (1) If a 
survivor dies before receiving payment, or if a designated beneficiary 
predeceases the member (and there is no other designated beneficiary) 
such amount shall be paid to the then living survivor or survivors 
listed first under paragraph (a) of this section.
    (2) In case one of the beneficiaries (parents or brothers or 
sisters) designated by a member, pursuant to paragraph (a)(3) of this 
section, to receive death gratuity payment dies prior to the member's 
death, or after his death but prior to the time payment is made, the 
share which would have been paid to the deceased designee may be paid to 
the other person or persons designated.

[24 FR 7523, Sept. 18, 1959, as amended at 37 FR 6471, Mar. 30, 1972]



Sec. 716.5  Delegation of authority.

    (a) Pursuant to the authority contained in title 10 U.S.C., section 
1479, as to deaths described in section 1475 thereof, the Secretary of 
the Navy has delegated to commanding officers of naval commands, 
installations, or districts, with respect to naval personnel, and to 
Marine Corps commanding generals and officers in command of regiments, 
battalions or equivalent units and of separate or detached commands who 
have custody of service records, with respect to Marine Corps personnel, 
authority to certify for the payment of death gratuity the lawful

[[Page 187]]

spouse or designated beneficiary(ies) of the deceased service member who 
was residing with him at or near his place of duty at the time of his 
death, except in cases in which a doubt may exist as to the identity of 
the legal beneficiary. Disbursing officers are authorized to make 
payment of the death gratuity upon receipt of certification from the 
Commanding Officer.
    (b) The Secretary of the Navy has delegated authority to the Chief 
of Naval Personnel as to naval personnel, and to the Commandant of the 
Marine Corps (Code MSPA-1) as to Marine Corps personnel, the authority 
to certify the beneficiary(ies) for receipt of payment of death gratuity 
in all appropriate cases of payment of death gratuity under the 
Servicemen's and Veterans' Survivor Benefits Act (now reenacted in 10 
U.S.C. 1475-1480), including, but not limited to:
    (1) Cases in which a doubt may exist as to the identity of the legal 
beneficiary; and
    (2) Cases in which the widow or designated beneficiary(ies) of the 
deceased service member was not residing with him at or near his place 
of duty at the time of his death.

[24 FR 7523, Sept. 18, 1959, as amended at 44 FR 25647, May 2, 1979]



Sec. 716.6  Death occurring after active service.

    (a) Under title 10 U.S.C., section 1476, the death gratuity will be 
paid in any case where a member or former member dies on or after 
January 1, 1957, during the 120-day period which begins on the day 
following the date of his discharge or release from active duty, active 
duty for training, on inactive duty training, if the Administrator of 
Veterans' Affairs determines that:
    (1) The decedent was discharged or released, as the case may be, 
from the service under conditions other than dishonorable from the last 
period of the duty or training performed; and
    (2) Death resulted from disease or injury incurred or aggravated 
while on such active duty or active duty for training; or while 
performing authorized travel to or from such duty; or
    (3) Death resulted from injury incurred or aggravated while on such 
inactive-duty training or while traveling directly to or from such duty 
or training.
    (b) For purposes of computing the amount of the death gratuity in 
such instances, the deceased person shall be deemed to be entitled on 
the date of his death to basic pay (plus any special, incentive and 
proficiency pay) at the rate to which he was entitled on the last day he 
performed such active duty, active duty for training, or inactive duty 
training. A kind of special pay included is a pay increase under 10 
U.S.C. 5540; see Sec. 716.1.
    (c) The Department of the Navy is precluded from making payment of 
the death gratuity pending receipt of the determinations described in 
paragraph (a) of this section. In view of this, commands should insure 
that the medical records and reports of investigations by fact-finding 
bodies be submitted to the Navy Department at the earliest possible 
date. The Veterans' Administration is promptly notified of all deaths of 
this category reported, and upon the request of that agency all 
pertinent data is forwarded.



Sec. 716.7  Payment of the death gratuity.

    (a) Claim certification and voucher for the death gratuity payment. 
The Comptroller General of the United States has approved DD Form 397 as 
the form to be used hereafter for claim certification and voucher for 
the death gratuity payment.
    (b) Active duty deaths (Navy). To effect immediate payment of death 
gratuity the following actions will be taken:
    (1) The commanding officer will ascertain that the deceased member 
died while on active duty, active duty for training, or inactive-duty 
training, and will obtain the name, relationship, and address of the 
eligible survivor from the Service Record of the deceased. The 
Dependency Application/Record of Emergency Data (NAVPERS 1070/602) or 
Record of Emergency Data (DD Form 93), will normally contain this 
information. In addition, in the case of enlisted personnel, the 
Application for Dependents Allowance (BAQ [Basic Allowance for 
Quarters]), NAVPERS Form 668, may serve as a source of corroboration. He 
will, with the cooperation of the disbursing officer, initiate

[[Page 188]]

preparation of a Claim Certification and Voucher for Death Gratuity 
Payment, DD Form 397, in original and five copies, completing blocks 5 
through 14 inclusive, and the administrative statement in block 18. The 
administrative statement in block 18 will be signed by the commanding 
officer or acting commanding officer.
    (2) The disbursing officer will, upon receipt of the DD Form 397, 
draw a check to the order of the eligible survivor named in block 5, 
complete blocks 2, 3, 4, and the check payment data portion of block 18.
    (3) Under arrangements made by the commanding officer, the check and 
the original and one copy of the voucher, DD Form 397, will be delivered 
to the payee. The payee will be required to complete block 15, sign in 
block 17a, and have two witnesses complete block 17 on the original 
voucher at the time the check is delivered. Under no circumstances will 
the check be delivered to the payee until this action has been 
accomplished. The payee will retain the copy of the voucher, DD Form 
397, and the signed original voucher will be returned by hand to the 
disbursing officer by the person designated to deliver the check.

[24 FR 7523, Sept. 18, 1959, as amended at 44 FR 25647, May 2, 1979]



Sec. 716.8  Payments excluded.

    (a) No payment shall be made if the deceased member suffered death 
as a result of lawful punishment for a crime or for a military or naval 
offense, except when death was so inflicted by any hostile force with 
which the Armed Forces of the United States have engaged in armed 
conflict.
    (b) No payment will be made to a survivor implicated in the homicide 
of the deceased in the absence of evidence clearly absolving such 
survivor of any felonious intent.
    (c) Unless the laws of the place where a minor beneficiary resides 
provide that such a payment would grant a valid acquittance of the 
Government's obligation to make a payment of death gratuity to or for a 
minor, a death gratuity of more than $1,000 may not be paid in whole or 
in part to a parent as natural guardian of a minor or to any other 
person who is not a legal guardian appointed by the civil court to 
manage the minor's financial affairs.

[24 FR 7523, Sept. 18, 1959, as amended at 37 FR 6471, Mar. 30, 1972; 44 
FR 25647, May 2, 1979]



Sec. 716.9  Erroneous payment.

    Where through administrative mistake of fact or law, payment of the 
death gratuity is made to a person clearly not entitled thereto, and it 
is equally clear that another person is entitled to the death gratuity, 
the Chief of Naval Personnel (Pers-732) or the Commandant of the Marine 
Corps (Code MSPA-1), as appropriate, will certify payment to the proper 
payee, irrespective of recovery of the erroneous payment. On the other 
hand, where a payment of the death gratuity has been made to an 
individual on the basis of representations of record made by the 
deceased member as to his marital and dependency status, and the 
Government otherwise has no information which would give rise to doubt 
that such status is as represented, the payment is not to be regarded as 
``erroneous.'' The Government has a good acquittance in such cases even 
though it may subsequently develop that the payee is not the proper 
statutory payee of the gratuity and no second payment is authorized.

[24 FR 7523, Sept. 18, 1959, as amended at 44 FR 25647, May 2, 1979]



              Subpart B--Provisions Applicable to the Navy



Sec. 716.10  Procedures.

    (a) Action by commanding officers. See Sec. 716.7(b)--(1) Immediate 
payment--Eligible beneficiary residing with deceased member. Commanding 
officers, in order to expedite the payment of the death gratuity, will, 
upon official notification of death, ascertain the duty status of the 
deceased, and determine the eligibility of the spouse or designated 
beneficiary who was residing with the deceased member on or near his 
duty station at the time of his death. The services of a staff or 
district legal officer will be utilized as required. Every effort should 
be made to effect prompt payment (within 24 hours, if possible). It is 
the intent that determinations of

[[Page 189]]

entitlement by commands in the field will be confined largely to spouses 
and parents designated by the service member who were living with him at 
the time of his death.
    (2) Questionable cases. If entitlement to the death gratuity payment 
is questionable after seeking advice of the staff or district legal 
officer, such case will be forwarded promptly to the Chief of Naval 
Personnel (Pers-732) with a brief statement relative to the facts which 
raised the issue of doubt. Every effort will be made to expedite action 
by a review of the official records of the decedent in the Bureau of 
Naval Personnel and the Family Allowance Activity at Cleveland, Ohio. 
Those cases wherein the service member was in a deserter status, absent 
without leave, or in the custody of civil authorities at the time of 
death, wherein guardianship must be provided for the protection of the 
decedent's children, or wherein a technicality exists which makes 
immediate certification legally unsound, will be considered 
questionable.
    (3) Exception. Where the entitlement of the survivor who is living 
with the deceased at the time of his death is questionable and such 
survivor is in dire financial circumstances, the Chief of Naval 
Personnel (Pers-G23) shall be requested by message to make an 
adjudication of entitlement. If it is determined that the survivor is 
entitled to the payment, the commanding officer will be authorized by 
message to execute DD Form 397.
    (b) Action by Casualty Assistance Calls Program (CACP) officers; 
Potential beneficiary not residing with member--(1) Widow(er). The CACP 
officer, on his or her initial visit to a widow(er), determines, 
propriety permitting, whether there is an urgent need for financial 
assistance. If there is an urgent need for financial assistance, the 
CACP officer should obtain DD Form 397 from any military disbursing 
office and, on his or her second visit to the widow(er), have him or her 
sign it and obtain the signatures of two witnesses on the form. It 
should be noted that the following procedure is confined to cases in 
which the decedent's eligible survivor for the death gratuity is a 
widow(er), and efforts to effect immediate payment in accordance with 
the intent of the governing statute are appropriate. In such cases, the 
CACP officer, upon learning that a widow(er), not residing with his or 
her spouse at or near the spouse's duty station, is in urgent need of 
financial assistance, shall advise the Chief of Naval Personnel (Pers-
732) of the need by message. The CACP officer shall send a copy of this 
message to the decedent's duty station, if known. Upon receipt, the 
disbursing officer will furnish the Navy Finance Center, Cleveland, Ohio 
44199, with the decedent's basic monthly pay [plus any special (see 
Sec. 716.1), incentive, and proficiency pay] in the event the pay 
account has not been forwarded previously to that center sufficiently 
early to have reached there. The CACP officer shall also send a copy of 
his message to the Navy Finance Center with the request that payment of 
the death gratuity be made upon receipt of the certification of 
beneficiary entitlement from the Chief of Naval Personnel (Pers-732).
    (2) Navy Relief. In cases where there is immediate need prior to 
receipt of the death gratuity, the Navy Relief Society will be contacted 
by the Casualty Assistance Calls Program officer.
    (c) Action by the Chief of Naval Personnel. (1) In all cases where 
death gratuity is not authorized to be paid locally and in cases where 
authority exists to pay locally but entitlement is questionable (see 
paragraph (a)(2) of this section), the Chief of Naval Personnel (Pers-
732) will expedite adjudication of claims. As indicated in paragraph 
(b)(1) of this section CACP officers will refer cases of urgent 
financial need to the Chief of Naval Personnel (Pers-732) by message for 
action.
    (2) If a minor is entitled to a death gratuity under 10 U.S.C. 1477 
not exceeding $1,000, such death gratuity may be paid to the father or 
mother as natural guardian on behalf of the minor, provided a legally 
appointed guardian has not been appointed, upon substantiation by a 
sworn (notarized) statement of the natural guardian:
    (i) That no legal guardian has been appointed and that such an 
appointment is not contemplated;

[[Page 190]]

    (ii) The relationship of the natural guardian to the minor;
    (iii) That the minor is in the actual custody of the natural 
guardian;
    (iv) That an amount paid to the natural guardian will be held for, 
or applied to, the use and benefit of the minor.

If the death gratuity to which a minor is entitled exceeds $1,000, the 
appointment of a legal guardian on behalf of the minor is requested. 
Certification of the minor eligible to receive the death gratuity is 
made by the Chief of Naval Personnel (Pers-732) and payment is effected 
by the Navy Finance Center, Cleveland, OH 44199;
    (d) Cross-servicing procedure. Payment of the death gratuity may be 
made by a disbursing officer who is maintaining the pay record of a 
member of another service, provided the command to which the member is 
attached and which maintains his service record is in the immediate 
vicinity and certificates the beneficiary eligible to receive payment on 
the proper voucher (DD Form 397). Otherwise the pay record will be sent 
to the Army Finance Center, Air Force Finance Center, Commandant of the 
Marine Corps (Code CDB), the Navy Finance Center, of the Commandant, 
U.S. Coast Guard, as appropriate.

[24 FR 7523, Sept. 18, 1959, as amended at 44 FR 25647, May 2, 1979; 45 
FR 43165, June 26, 1980]



          Subpart C--Provisions Applicable to the Marine Corps



Sec. 716.11  Procedures.

    (a) Action. Commanding officers will direct immediate payment of the 
gratuity where the deceased member's spouse was, in fact, residing with 
the member on or near the station of duty at the time of the member's 
death while on active duty, active duty for training, or inactive-duty 
training. Every effort should be made to effect such payment promptly 
(within 24 hours, if possible). In cases where the eligible survivor 
residing with the member on or near the duty station is other than a 
spouse, commanding officers may direct the payment of death gratuity 
when the case can be properly determined, and an urgent need exists for 
immediate payment. Proper determination is imperative.
    (b) Qualifications. (1) Where any doubt exists as to the legal 
recipient of the gratuity, the case will be referred to the Commandant 
of the Marine Corps (Code MSPA-1) for determination.
    (2) [Reserved]

[24 FR 7523, Sept. 18, 1959, as amended at 44 FR 25648, May 2, 1979]



PART 718--MISSING PERSONS ACT--Table of Contents




Sec.
718.1 General provisions.
718.2 Allotments.
718.3 Transportation of dependents.
718.4 Delegations.



Sec. 718.1  General provisions.

    (a) Under the provisions of the Missing Persons Act, as amended, a 
finding of presumptive death is made by the Secretary of the Navy when a 
survey of all available sources of information indicates beyond doubt 
that the presumption of continuance of life has been overcome. When a 
finding of presumptive death is made, a man's pay accounts are closed as 
of the day following the expiration of the 12 months' absence or a 
longer period when justified, and the various benefits, such as the six 
months' gratuity, become payable. A finding of presumptive death 
concerning an officer or enlisted man of the Navy means simply that as 
of the date thereof he is for the purposes of Naval administration no 
longer alive. It does not mean that death occurred on that or on any 
other certain date.
    (b) Findings of presumptive death are never made when the 
``missing'' status has not continued for at least 12 months. Whenever, 
subsequent to the expiration of the 12th month, cumulative or other 
evidence establishes by its preponderance that a ``missing'' person is 
no longer alive, a prompt finding of presumptive death will be made. 
Also, such a finding will be made whenever justified by the lapse of 
time beyond the 12 months' absence without specific information being 
received.
    (c) The Secretary of the Navy, or such subordinate as he may 
designate,

[[Page 191]]

has authority to make all determinations necessary in the administration 
of the act, and for the purposes of the act determinations so made shall 
be conclusive as to death or finding or death, as to any other status 
dealt with by the act, and as to any essential date including that upon 
which evidence or information is received in the Department. The 
determination of the Secretary of the Navy, or of such subordinate as he 
may designate, is conclusive as to whether information received 
concerning any person is to be construed and acted upon as an official 
report of death. When any information deemed to establish conclusively 
the death of any person is received in the department, action shall be 
taken thereon as an official report of death, notwithstanding any prior 
action relating to death or other status of such person. Under the 
foregoing provisions a determination of death is made prior to the 
expiration of 12 months when the evidence received is considered to 
establish conclusively the fact of death and settlement of accounts is 
made to the date established as the date of receipt of evidence on which 
the fact of death is established.

(Sec. 301, 80 Stat. 379; 5 U.S.C. 301. Interpret or apply 80 Stat. 112-
117, 248-254; 5 U.S.C. 5561-5568, 37 U.S.C. 551-558)

[17 FR 5390, June 14, 1952]



Sec. 718.2  Allotments.

    During such period as a person is in a status of missing, missing in 
action, interned in a foreign country, captured by a hostile force, 
beleaguered by a hostile force, or besieged by a hostile force, 
allotments from his pay and allowances may be initiated, continued, 
discontinued, increased, decreased, suspended or resumed in behalf of 
his dependents and for such other purposes as are justified by the 
circumstances and are in the interests of the person or of the 
Government.

(R.S. 161, sec. 5031, 70A Stat. 278, as amended; 5 U.S.C. 22, 10 U.S.C. 
5031, 50 U.S.C. App. 1013-1015)

[26 FR 12658, Dec. 29, 1961]



Sec. 718.3  Transportation of dependents.

    (a) Whenever a person in active service is officially reported as 
dead, injured, (Only when the anticipated period of hospitalization or 
treatment is expected to be of prolonged duration as shown by a 
statement of the commanding officer at the receiving hospital), missing 
for a period of 29 days or more, interned in a foreign country, or 
captured by a hostile force, his dependents, household and personal 
effects including one privately owned motor vehicle may be moved 
(including packing, crating, drayage, temporary storage, and unpacking 
of household and personal effects) to the official residence of record 
for any such person or to the residence of his dependent, next of kin, 
or other person entitled to receive custody of the effects in accordance 
with the provisions of paragraph (d) of this section; or, upon 
application by such dependent, next of kin, heir or legal 
representative, or other person determined in accordance with paragraph 
(d) of this section, or upon the person's application if injured, to 
such location as may have been determined in advance or as may be 
subsequently approved, except that a reasonable relationship must exist 
between the condition and circumstances of the dependents and the 
destination to which transportation is requested. In the case of a 
person in an injured status, transportation of his dependents or 
household and personal effects may be authorized only when the 
hospitalization or treatment of the injured person will be of prolonged 
duration. Payment in money of amounts equal to such commercial 
transportation costs or a monetary allowance in lieu of transportation 
as authorized by law for the whole or such part of the travel for which 
transportation in kind is not furnished, may be authorized, when such 
travel has been completed.
    (b) When the Secretary of the Navy or his designee determines that 
an emergency exists and that such sale would be in the best interests of 
the Government, he may provide for the disposition of the motor vehicles 
and other bulky items of such household and personal effects of the 
person by public or private sale. Prior to any such sale, and if 
practicable, a reasonable effort shall be made to determine the desires 
of the interested persons. The net proceeds received from such

[[Page 192]]

sale shall be transmitted to the owner, next of kin, heir or legal 
representative, or other person determined in accordance with paragraph 
(d) of this section; but if there be no such persons or if such persons 
or their addresses are not ascertainable within one year from the date 
of sale, the net proceeds may be covered into the Treasury as 
miscellaneous receipts.
    (c) The Secretary of the Navy or his designee is authorized to store 
the household and personal effects of the person until such time as 
proper disposition can be made. The cost of such storage and 
transportation, including packing, crating, drayage, temporary storage, 
and unpacking of household and personal effects, will be charged against 
appropriations currently available.
    (d) The following provisions apply to the determination of the 
``other person'' or persons referred to in paragraphs (a) and (b) of 
this section who may receive the effects or proceeds.
    (1) If no duly appointed legal representative of the owner of the 
personal effects makes demand upon the Department of the Navy for the 
effects, the determination by naval authorities as to the next of kin or 
heirs of the owner of the personal effects may be made on the basis of 
the following:
    (i) Personnel records; or
    (ii) Other documents applicable to the case; or
    (iii) Title 10 U.S.C., section 2771, to the extent that it 
prescribes an order of precedence among next of kin or heirs, namely, 
the widow or widower of the owner; if no widow or widower, then the 
child or children of the owner and descendants of deceased children, by 
representation; if none of the above, the parents of the owner or the 
survivor of them; or if none of the above, other persons determined to 
be eligible under the laws of the domicile of the owner.
    (2) Such determination should be regarded as administrative rather 
than legal, as the determination does not vest title to effects or 
proceeds in the next of kin, heirs, or legal representative to whom the 
effects are delivered. Therefore, delivery of the personal effects to 
other than the owner will be made subject to the following advisory note 
which should be written on a copy of the inventory or in a letter:

    Delivery of the personal effects into the custody of other than the 
owner thereof, by the Department of the Navy, does not in any way vest 
title to the effects in the recipient. Delivery of the effects to the 
recipient is made so that distribution may be made in accordance with 
the laws of the state in which the owner of the effects was legally 
domiciled or to restore the effects to the owner in the event of his 
return from a missing status.

    (3) When it is impracticable to divide the personal effects of a 
person into equal shares, and two or more persons within a class, as 
provided in 10 U.S.C. section 2771, are entitled to receive the effects 
but cannot agree among themselves as to which one of them shall receive 
the effects, then all of the effects will be retained by either the 
Personal Effects Distribution Center at Norfolk, VA, or the Personal 
Effects Distribution Center at Oakland, CA, for a period of two years 
from the date of death of the member. At the expiration of the two-year 
period such effects will be sold.

(R.S. 161, sec. 5031, 70A Stat. 278, as amended; 5 U.S.C. 22, 10 U.S.C. 
5031, 50 U.S.C. App. 1013-1015; Pub. L. 89-554, 80 Stat. 379 (5 U.S.C. 
301)

[26 FR 12659, Dec. 29, 1961, as amended at 37 FR 6472, Mar. 30, 1972; 44 
FR 22456, Apr. 16, 1979]



Sec. 718.4  Delegations.

    The Secretary of the Navy has delegated to the Director, Personal 
Services Division, Bureau of Naval Personnel with respect to personnel 
in the Navy, and to the Head, Personal Affairs Branch Manpower 
Department (Code MSPA), United States Marine Corps, with respect to 
personnel in the Marine Corps, authority to make all determinations to 
administer the act.

(Pub. L. 89-554, 80 stat. 379 (5 U.S.C. 301))

[17 FR 5391, June 14, 1952, as amended at 19 FR 7959, Dec. 2, 1954; 44 
FR 22456, Apr. 16, 1979]



PART 719--REGULATIONS SUPPLEMENTING THE MANUAL FOR COURTS-MARTIAL--Table of Contents




Subparts A-B [Reserved]

[[Page 193]]

                        Subpart C--Trial Matters

Sec.
719.112 Authority to grant immunity from prosecution.
719.113-719.114 [Reserved]
719.115 Release of information pertaining to accused persons; spectators 
          at judicial sessions.

Subpart D [Reserved]

                    Subpart E--Miscellaneous Matters

719.138 Fees of civilian witnesses.
719.139-719.141 [Reserved]
719.142 Suspension of counsel.
719.143 Petition for new trial under 10 U.S.C. 873.
719.144 Application for relief under 10 U.S.C. 869, in cases which have 
          been finally reviewed.
719.145-719.150 [Reserved]
719.151 Furnishing of advice and counsel to accused placed in pretrial 
          confinement.
719.155 Application under 10 U.S.C. 874(b) for the substitution of an 
          administrative form of discharge for a punitive discharge or 
          dismissal.

    Authority: 3 U.S.C. 301; 5 U.S.C. 301; 10 U.S.C. 815, 5013, 5148; 32 
CFR 700.206 and 700.1202.

Subparts A-B [Reserved]



                        Subpart C--Trial Matters



Sec. 719.112  Authority to grant immunity from prosecution.

    (a) General. In certain cases involving more than one participant, 
the interests of justice may make it advisable to grant immunity, either 
transactional or testimonial, to one or more of the participants in the 
offense in consideration for their testifying for the Government or the 
defense in the investigation and/or the trial of the principal offender. 
Transactional immunity, as that term is used in this section, shall mean 
immunity from prosecution for any offense or offenses to which the 
compelled testimony relates. Testimonial immunity, as that term is used 
in this section, shall mean immunity from the use, in aid of future 
prosecution, of testimony or other information compelled under an order 
to testify (or any information directly or indirectly derived from such 
testimony or other information). The authority to grant either 
transactional or testimonial immunity to a witness is reserved to 
officers exercising general court-martial jurisdiction. This authority 
may be exercised in any case whether or not formal charges have been 
preferred and whether or not the matter has been referred for trial. The 
approval of the Attorney General of the United States on certain orders 
to testify may be required, as outlined below.
    (b) Procedure. The written recommendation that a certain witness be 
granted either transactional or testimonial immunity in consideration 
for testimony deemed essential to the Government or to the defense shall 
be forwarded to an officer competent to convene a general court-martial 
for the witness for whom immunity is requested, i.e., any officer 
exercising general court-martial jurisdiction. Such recommendation will 
be forwarded by the trial counsel or defense counsel in cases referred 
for trial, the pretrial investigating officer conducting an 
investigation upon preferred charges, the counsel or recorder of any 
other fact-finding body, or the investigator when no charges have yet 
been preferred. The recommendation shall state in detail why the 
testimony of the witness is deemed so essential or material that the 
interests of justice cannot be served without the grant of immunity. The 
officer exercising general court-martial jurisdiction shall act upon 
such request after referring it to his staff judge advocate for 
consideration and advice. If approved, a copy of the written grant of 
immunity must be served upon the accused or his defense counsel within a 
reasonable time before the witness testifies. Additionally, if any 
witness is expected to testify in response to a promise of leniency, the 
terms of the promise of leniency must be reduced to writing and served 
upon the accused or his defense counsel in the same manner as a grant of 
immunity.
    (c) Civilian witnesses. Pursuant to 18 U.S.C. 6002 and 6004, if the 
testimony or other information of a civilian witness at a court-martial 
may be necessary in the public interest, and if the civilian witness has 
refused or is likely to refuse to testify or provide other information 
on the basis of a privilege

[[Page 194]]

against self-incrimination, then the approval of the Attorney General of 
the United States, or his designee, must be obtained prior to the 
execution or issuance of an order to testify to such civilian witness. 
The cognizant officer exercising general court-martial jurisdiction may 
obtain the approval of the Attorney General in such a circumstance by 
directing a message or letter requesting the assistance of the Judge 
Advocate General (Code 20) in the form prescribed in paragraph (e) of 
this section.
    (d) Cases involving national security. In all cases involving 
national security or foreign relations of the United States, the 
cognizant officer exercising general court-martial jurisdiction shall 
forward any proposed grant of immunity to the Judge Advocate General for 
the purpose of consultation with the Department of Justice. See section 
0126 of the Manual of the Judge Advocate General regarding relations 
between the Departments of Defense and Justice. The cognizant officer 
exercising general court-martial jurisdiction may obtain approval by the 
Attorney General of a proposed grant of immunity by directing a letter 
requesting the assistance of the Judge Advocate General (Code 20) in the 
form prescribed in paragraph (e) of this section.
    (e) Content of immunity requests. In all cases in which approval of 
the Attorney General of the United States is required prior to the 
issuance of a grant of immunity, whether under paragraph (c) or (d) of 
this section, the cognizant officer exercising general court-martial 
jurisdiction shall forward by message or letter the proposed order to 
testify and grant of immunity to the Judge Advocate General (Code 20). 
The order to testify should be substantially in the form set forth in 
appendix A-1-i(3) of the Manual of the Judge Advocate General. Requests 
for assistance shall be in writing, should allow at least three weeks 
for consideration, and must contain the following information:
    (1) Name, citation, or other identifying information of the 
proceeding in which the order is to be used.
    (2) Name of the witness for whom the immunity is requested.
    (3) Name of the employer or company with which a witness is 
associated or the military unit or organization to which a witness is 
assigned.
    (4) Date and place of birth, if known, of the witness.
    (5) FBI or local police file number, if any, and if known.
    (6) Whether any State or Federal charges are pending against the 
witness and the nature of the charges.
    (7) Whether the witness is currently incarcerated, under what 
conditions, and for what length of time.
    (8) A brief resume of the background of the investigation or 
proceeding before the agency or department.
    (9) A concise statement of the reasons for the request, including:
    (i) What testimony the witness is expected to give;
    (ii) How this testimony will serve the public interest;
    (iii) Whether the witness:
    (A) Has invoked the privilege against self-incrimination; or
    (B) Is likely to invoke the privilege;
    (iv) If paragraph (e)(9)(iii)(B) of this section is applicable, then 
why it is anticipated that the prospective witness will invoke the 
privilege.
    (10) An estimate as to whether the witness is likely to testify in 
the event immunity is granted.
    (f) Post-testimony procedure. After a witness immunized in 
accordance with paragraphs (c) and (d) of this section has testified, 
the following information should be provided to the United States 
Department of Justice, Criminal Division, Immunity Unit, Washington, DC 
20530, via the Judge Advocate General (Code 20).
    (1) Name, citation, or other identifying information, of the 
proceeding in which the order was requested.
    (2) Date of the examination of the witness.
    (3) Name and residence address of the witness.
    (4) Whether the witness invoked the privilege.
    (5) Whether the immunity order was used.
    (6) Whether the witness testified pursuant to the order.

[[Page 195]]

    (7) If the witness refused to comply with the order, whether 
contempt proceedings were instituted, or are contemplated, and the 
result of the contempt proceeding, if concluded. A verbatim transcript 
of the witness' testimony, authenticated by the military judge, should 
be provided to the Judge Advocate General at the conclusion of the 
trial. No testimony or other information given by a civilian witness 
pursuant to such an order to testify (or any information directly or 
indirectly derived from such testimony or other information) may be used 
against him in any criminal case, except a prosecution for perjury, 
giving a false statement, or otherwise failing to comply with the order.
    (g) Review. Under some circumstances, the officer granting immunity 
to a witness may be disqualified from taking reviewing action on the 
record of the trial before which the witness granted immunity testified. 
A successor in command not participating in the grant of immunity would 
not be so disqualified under those circumstances.
    (h) Form of grant. In any case in which a military witness is 
granted transactional immunity, the general court-martial convening 
authority should execute a written grant, substantially in the form set 
forth in appendix section A-1-i(1) of the Manual of the Judge Advocate 
General. In any case in which a military witness is granted testimonial 
immunity, the general court-martial convening authority should execute a 
written grant substantially in the form set forth in appendix section A-
1-i(2) of the Manual of the Judge Advocate General.

[56 FR 57803, Nov. 14, 1991]



Secs. 719.113-719.114  [Reserved]



Sec. 719.115  Release of information pertaining to accused persons; spectators at judicial sessions.

    (a) Release of information--(1) General. There are valid reasons for 
making information available to the public concerning the administration 
of military justice. The task of striking a fair balance among the 
protection of individuals accused of offenses, improper or unwarranted 
publicity pertaining to their cases, public understanding of the 
problems of controlling misconduct in the military service, and the 
workings of military justice requires the exercise of sound judgment by 
those responsible for administering military justice and by 
representatives of the press and other news media. At the heart of all 
guidelines pertaining to the furnishing of information concerning an 
accused or the allegations against him is the mandate that no statements 
or other information shall be furnished to news media for the purpose of 
influencing the outcome of an accused's trial, or which could reasonably 
be expected to have such an effect.
    (2) Applicability of regulations. These regulations apply to all 
persons who may obtain information as the result of duties performed in 
connection with the processing of accused persons, the investigation of 
suspected offenses, the imposition of nonjudicial punishment, or the 
trial of persons by court-martial. These regulations are applicable from 
the time of apprehension, the preferral of charges, or the commencement 
of an investigation directed to make recommendations concerning 
disciplinary action, until the imposition of nonjudicial punishment, 
completion of trial (court-martial sessions) or disposition of the case 
without trial. These regulations also prescribe guidelines for the 
release or dissemination of information to public news agencies, to 
other public news media, or to other persons or agencies for unofficial 
purposes.
    (3) Release of information. (i) As a general matter, release of 
information pertaining to accused persons should not be initiated by 
persons in the naval service. Information of this nature should be 
released only upon specific request therefor, and, subject to the 
following guidelines, should not exceed the scope of the inquiry 
concerned.
    (ii) Except in unusual circumstances, information which is subject 
to release under the regulation should be released by the cognizant 
public affairs officer; requests for information received from 
representatives of news media should be referred to the public affairs 
office for action. When an individual is suspected or accused of an 
offense, care

[[Page 196]]

should be taken to indicate that the individual is alleged to have 
committed or is suspected or accused of having committed an offense, as 
distinguished from stating or implying that the accused has committed 
the offense or offenses.
    (4) Information subject to release. On inquiry, the following 
information concerning a person accused or suspected of an offense or 
offenses may generally be released except as provided in paragraph (6) 
of this section:
    (i) The accused's name, grade, age, unit, regularly assigned duties, 
duty station, and sex.
    (ii) The substance of the offenses of which the individual is 
accused or suspected.
    (iii) The identity of the victim of any alleged or suspected 
offense, except the victim of a sexual offense.
    (iv) The identity of the apprehending and investigative agency, and 
the identity of accused's counsel, if any.
    (v) The factual circumstances immediately surrounding the 
apprehension of the accused, including the time and place of 
apprehension, resistance, pursuit, and use of weapons.
    (vi) The type and place of custody, if any.
    (vii) Information which has become a part of the record of 
proceedings of the court-martial in open session.
    (viii) The scheduling of any stage in the judicial process.
    (ix) The denial by the accused of any offense or offenses of which 
he may be accused or suspected (when release of such information is 
approved by the counsel of the accused).
    (5) Prohibited information. The following information concerning a 
person accused or suspected of an offense or offenses generally may not 
be released, except as provided in paragraph (a)(6) of this section.
    (i) Subjective opinions, observations, or comments concerning the 
accused's character, demeanor at any time (except as authorized in 
paragraph (4)(v) of this section), or guilt of the offense or offenses 
involved.
    (ii) The prior criminal record (including other apprehensions, 
charges or trials) or the character or reputation of the accused.
    (iii) The existence or contents of any confession, admission, 
statement, or alibi given by the accused, or the refusal or failure of 
the accused to make any statement.
    (iv) The performance of any examination or test, such as polygraph 
examinations, chemical tests, ballistics tests, etc., or the refusal or 
the failure of the accused to submit to an examination or test.
    (v) The identity, testimony, or credibility of possible witnesses, 
except as authorized in paragraph (4)(iii), of this section.
    (vi) The possibility of a plea of guilty to any offense charged or 
to a lesser offense and any negotiation or any offer to negotiate 
respecting a plea of guilty.
    (vii) References to confidential sources or investigative techniques 
or procedures.
    (viii) Any other matter when there is a reasonable likelihood that 
the dissemination of such matter will affect the deliberations of an 
investigative body or the findings or sentence of a court-martial or 
otherwise prejudice the due administration of military justice either 
before, during, or after trial.
    (6) Exceptional cases. The provisions of this section are not 
intended to restrict the release of information designed to enlist 
public assistance in apprehending an accused or suspect who is a 
fugitive from justice or to warn the public of any danger that a 
fugitive accused or suspect may present. Further, since the purpose of 
this section is to prescribe generally applicable guidelines, there may 
be exceptional circumstances which warrant the release of information 
prohibited under paragraph (a)(5) of this section or the nonrelease of 
information permitted under paragraph (a)(4) of this section. Attention 
should be given to the Secretary of the Navy instructions implementing 
the Freedom of Information Act (5720.42 series) and the Privacy Act 
(5211.5C series). Consultation with the command judge advocate, if one 
is assigned, or with the cognizant Naval Legal Service Office concerning 
interpretation and application of these instructions is encouraged.
    (b) Spectators. (1) The sessions of courts-martial shall be open to 
the public, which includes members of both

[[Page 197]]

the military and civilian communities. In order to maintain the dignity 
and decorum of the proceedings or for other good cause, the military 
judge may reasonably limit the number of spectators in, and the means of 
access to, the courtroom, exclude specific persons from the courtroom, 
and close a session. Video and audio recording and taking of 
photographs, except for the purpose of preparing the record of trial, in 
the courtroom during the proceedings and radio or television 
broadcasting of proceedings from the courtroom shall not be permitted. 
The military judge may, as a matter of discretion, permit 
contemporaneous closed-circuit video or audio transmission to permit 
viewing or hearing by an accused removed from the courtroom or by 
spectators when courtroom facilities are inadequate to accommodate a 
reasonable number of spectators.
    (2) At pretrial hearings. In any preliminary hearing, including a 
hearing conducted pursuant to 10 U.S.C. 832 or a court of inquiry or 
investigation conducted pursuant to the Manual of the Judge Advocate 
General, the presiding officer, upon motion of the Government or the 
defense or upon his motion, may direct that all or part of the hearing 
be held in closed session and that all persons not connected with the 
hearing be excluded therefrom. The decision to exclude spectators shall 
be based on the ground that dissemination of evidence, information, or 
argument presented at the hearing may disclose matters that will be 
inadmissible in evidence at a subsequent trial by court-martial and is 
therefore likely to interfere with the right of the accused to a fair 
trial by an impartial tribunal.

[38 FR 5997, Mar. 6, 1973, as amended at 47 FR 49644, Nov. 2, 1982; 50 
FR 23800, June 6, 1985]

Subpart D [Reserved]



                    Subpart E--Miscellaneous Matters



Sec. 719.138  Fees of civilian witnesses.

    (a) Method of Payment. The fees and mileage of a civilian witness 
shall be paid by the disbursing officer of the command of a convening 
authority or appointing authority or by the disbursing officer at or 
near the place where the tribunal sits or where a deposition is taken 
when such disbursing officer is presented a properly completed public 
voucher for such fees and mileage, signed by the witness and certified 
by one of the following:
    (1) Trial counsel or assistant trial counsel of the court-martial;
    (2) Summary court officer;
    (3) Counsel for the court in a court of inquiry;
    (4) Recorder or junior member of a board to redress injuries to 
property, or
    (5) Military or civil officer before whom a deposition is taken.

The public voucher must be accompanied by a subpoena or invitational 
orders (Joint Travel Regulations, vol. 2, chap. 6), and by a certified 
copy of the order appointing the court-martial, court of inquiry, or 
investigation. If, however, a deposition is taken before charges are 
referred for trial, the fees and mileage of the witness concerned shall 
be paid by the disbursing officer at or near the place where the 
deposition is taken upon presentation of a public voucher, properly 
completed as hereinbefore prescribed, and accompanied by an order from 
the officer who authorized the taking of the deposition, subscribed by 
him and directing the disbursing officer to pay to the witness the fees 
and mileage supported by the public voucher. When the civilian witness 
testifies outside the United States, its territories and possessions, 
the public voucher must be accompanied by a certified copy of the order 
appointing the court-martial, court of inquiry, or investigation, and by 
an order from the convening authority or appointing authority, 
subscribed by him and directing the disbursing officer to pay to the 
witness the fees and mileage supported by the public voucher.
    (b) Obtaining money for advance tender or payment. Upon written 
request by one of the officers listed in paragraph (a) of this section, 
the disbursing officer under the command of the convening or appointing 
authority, or the disbursing officer nearest the place where the witness 
is found, will, at once, provide any of the persons listed in paragraph 
(a) of this section, or any other officer or person designated for

[[Page 198]]

the purpose, the required amount of money to be tendered or paid to the 
witness for mileage and fees for one day of attendance. The person so 
receiving the money for the purpose named shall furnish the disbursing 
officer concerned with a proper receipt.
    (c) Reimbursement. If an officer charged with serving a subpoena 
pays from his personal funds the necessary fees and mileage to a 
witness, taking a receipt therefor, he is entitled to reimbursement upon 
submitting to the disbursing officer such receipt, together with a 
certificate of the appropriate person named in paragraph (a) of this 
section, to the effect that the payment was necessary.
    (d) Certificate of person before whom deposition is taken. The 
certificate of the person named in paragraph (a) of this section, before 
whom the witness gave his deposition, will be evidence of the fact and 
period of attendance of the witness and the place from which summoned.
    (e) Payment of accrued fees. The witness may be paid accrued fees at 
his request at any time during the period of attendance. The disbursing 
officer will make such interim payment(s) upon receipt of properly 
executed certificate(s). Upon his discharge from attendance, the witness 
will be paid, upon the execution of a certificate, a final amount 
covering unpaid fees and travel, including an amount for return travel. 
Payment for return travel will be made upon the basis of the actual fees 
and mileage allowed for travel to the court, or place designated for 
taking a deposition.
    (f) Computation. Travel expenses shall be determined on the basis of 
the shortest usually traveled route in accordance with official 
schedules. Reasonable allowance will be made for unavoidable detention.
    (g) Nontransferability of accounts. Accounts of civilian witnesses 
may not be transferred or assigned.
    (h) Signatures. Signatures of witnesses signed by mark must be 
witnessed by two persons.
    (i) Rates for civilian witnesses prescribed by law--(1) Civilian 
witnesses not in Government employ. A civilian not in Government employ, 
who is compelled or required to testify as a witness before a Naval 
tribunal at a specified place or to appear at a place where his 
deposition is to be taken for use before a court or fact-finding body, 
will receive fees, subsistence, and mileage as provided in 28 U.S.C. 
1821. Witness and subsistence fees are not prorated. Instead any 
fractional part of a calendar day expended in attendance or qualifying 
for subsistence entitles the witness to payment for a full day. Further, 
nothing in this paragraph shall be construed as authorizing the payment 
of attendance fees to witnesses for:
    (i) Attendance or travel which is not performed either as a direct 
result of being compelled to testify pursuant to a subpoena or as a 
direct result of invitational orders; or
    (ii) For travel which is performed prior to being duly summoned as a 
witness; or
    (iii) For travel returning to their places of residence if the 
travel from their places of residence does not qualify for payment under 
this paragraph.
    (2) Civilian witnesses in Government employ. When summoned as a 
witness, a civilian in the employ of the Government shall be paid as 
authorized by Joint Travel Regulations.
    (j) Supplemental construction of section. Nothing in this paragraph 
shall be construed as permitting or requiring the payment of fees to 
those witnesses not requested or whose testimony is determined not to 
meet the standards of relevancy and materiality set forth in accordance 
with MCM, 1984, R.C.M. 703.
    (k) Expert witnesses. (1) The convening authority will authorize the 
employment of an expert witness and will fix the limit of compensation 
to be paid such expert on the basis of the normal compensation paid by 
United States attorneys for attendance of a witness of such standing in 
United States courts in the area involved. Information concerning such 
normal compensation may be obtained from the nearest officer exercising 
general court-martial jurisdiction having a judge advocate assigned in 
other than an additional duty, temporary duty, or temporary additional 
duty capacity. Convening authorities at overseas commands will adhere to 
fees paid such witnesses in

[[Page 199]]

the Hawaiian area and may obtain information as to the limit of such 
fees from the Commander, Naval Base, Pearl Harbor. See paragraph (l) of 
this section for fees payable to foreign nationals.
    (2) The provisions of paragraph (i) of this section are applicable 
to expert witnesses. However, the expert witness fee prescribed by the 
convening authority will be paid in lieu of ordinary attendance fees on 
those days the witness is required to attend the court.
    (3) An expert witness employed in strict accordance with MCM, 1984, 
R.C.M. 703(d), may be paid compensation at the rate prescribed in 
advance by the official empowered to authorize his employment (11 Comp. 
Gen. 504). In the absence of such authorization, no fees other than 
ordinary witness fees may be paid for the employment of an individual as 
an expert witness. After an expert witness has testified pursuant to 
such employment, the certificate of one of the officers listed in 
subsection a above, when presented to the disbursing officer, shall also 
enclose a certified copy of the authorization of the convening 
authority.
    (l) Payment of witness fees to foreign nationals: Officers 
exercising general court-martial jurisdiction in areas other than a 
State of the United States shall establish rates of compensation for 
payment of foreign nationals who testify as witnesses, including expert 
witnesses, at courts-martial convened in such areas.

[38 FR 5997, Mar 6, 1973, as amended at 47 FR 49644, Nov. 2, 1982; 50 FR 
23801, June 6, 1985]



Secs. 719.139-719.141  [Reserved]



Sec. 719.142  Suspension of counsel.

    (a) Report of Allegations of Misconduct or Disability. When 
information comes to the attention of a member of a court-martial, a 
military judge, trial or defense counsel, staff judge advocate, member 
of the Navy-Marine Corps Court of Military Review or other directly 
interested or concerned party that a judge advocate or civilian who is 
acting or is about to act as counsel before a proceeding conducted under 
the UCMJ or MCM is or has been unable to discharge properly all the 
duties of his or her position by reason of mental or physical disability 
or has been engaged in professional or personal misconduct of such a 
serious nature as to demonstrate that he or she is lacking in integrity 
or is failing to meet the ethical standards of the profession or is 
otherwise unworthy or unqualified to perform the duties of a judge 
advocate or attorney, such information should be reported to the 
commanding officer of that judge advocate or, in the case of civilian 
counsel, to the officer exercising general court-martial jurisdiction 
over the command convening the proceedings or to the Judge Advocate 
General.
    (b) Form of Report. The report shall:
    (1) Be in writing, under oath or affirmation, and made and signed by 
the individual reporting the information.
    (2) State that the individual reporting the information has personal 
knowledge or belief or has otherwise received reliable information 
indicating that:
    (i) The counsel is, or has been, unable to discharge properly all 
the duties of his or her office by reason of mental or physical 
disability; or
    (ii) The counsel is or has been engaged in professional or personal 
misconduct of such a serious nature as to demonstrate that he or she is 
lacking in integrity or is failing to meet the ethical standards of the 
profession; or
    (iii) The counsel is unworthy or unqualified to perform his or her 
duties;
    (3) Set forth the grounds of the allegation together with all 
relevant facts; and
    (4) Be forwarded to the appropriate authority as set forth in 
paragraph (a).
    (c) Consideration of the Report--(1) Action by the Commanding 
Officer of a judge advocate. Upon receipt of the report, the commanding 
officer:
    (i) Shall dismiss any report relating to the performance of a judge 
advocate more properly appealed under law or any report that is 
frivolous, unfounded, or vague and return it to the reporting 
individual;
    (ii) May make further inquiry into the report at his or her 
discretion to determine the merits of the report. The commanding officer 
may appoint an officer to investigate informally the allegations of the 
report to determine whether further action is warranted.

[[Page 200]]

Any officer so appointed should be a judge advocate senior in rank to 
the judge advocate being investigated;
    (iii) May take appropriate action to address and dispose of the 
matter being mindful of such measures as warning, counseling, caution, 
instruction, proceedings in contempt, therapy, and other punitive or 
administrative action; or
    (iv) Shall, if the commanding officer is of the opinion that 
evidence of disability or professional or personal misconduct exists, 
and that remedial measures short of suspension or decertification are 
not appropriate or will not be effective, forward the original 
complaint, a written report of the inquiry or investigation, all other 
relevant information, and his or her comments and recommendations to the 
officer in the chain of command exercising general court-martial 
authority.
    (2) Action by Officer Exercising General Court-Martial Authority. 
(i) Upon receipt of a report of an allegation of misconduct or 
disability of a counsel, the officer exercising general court-martial 
convening authority:
    (A) May take the action authorized by subsections (c)(1)(i), (ii) or 
(iii); or
    (B) Shall, if he or she considers that evidence of disability or 
professional or personal misconduct exists and that other remedial 
measures short of suspension or decertification are not appropriate or 
will not be effective, appoint a board of officers to investigate the 
matter and to report its findings and its recommendations. This board 
shall be comprised of at least three officers, each an Article 27(b), 
Uniform Code of Military Justice, certified judge advocate. If 
practicable, each of the officers of the board should be senior to the 
judge advocate under investigation. If the counsel is a member of the 
Marine Corps, a majority of the members of the board should be Marine 
Corps judge advocates. The senior officer of the board shall cause 
notice to be given to the counsel, judge advocate or civilian 
(respondent), informing him or her of the misconduct or other 
disqualification alleged and affording him or her the opportunity to 
appear before the board for a hearing. The respondent shall be permitted 
at least ten (10) days' notice prior to the hearing. Failure to appear 
on a set date after notice shall constitute waiver of appearance, absent 
good cause shown. The respondent shall be generally afforded the rights 
of a party as set out in section 0304 of this Manual, except that, in 
the event the judge advocate respondent wishes to have military counsel 
appointed, he or she shall not have the right to select or identify a 
particular military counsel. A civilian respondent may not be 
represented by military counsel, but may be represented by civilian 
counsel at no expense to the Government. Upon ascertaining the relevant 
facts after notice and hearing, a written report of the findings and 
recommendations of the board shall be made to the officer who convened 
the board. In all cases, a written copy of the board's findings and 
recommendations shall be provided to the respondent. The respondent 
shall be given an opportunity to comment on the report in writing.
    (ii) Upon receipt of the report of the board of investigation, the 
officer exercising general court-martial authority shall:
    (A) Return the report to the board for further investigation, if the 
investigation is determined to be incomplete; or
    (B) Forward the report of the board of investigation to the Judge 
Advocate General together with comments and recommendations concerning 
suspension of the counsel involved.
    (3) Action by the Judge Advocate General. (i) Upon receipt of a 
report of an allegation of misconduct or disability of a counsel, the 
Judge Advocate General:
    (A) May take the action authorized by subsections (c)(1)(i), (ii), 
or (iii);
    (B) May appoint a board of officers for investigation and hearing in 
accordance with subsections (c)(2)(i)(B) or
    (C) May request the officer exercising general court-martial 
jurisdiction over the command of the respondent (if judge advocate 
counsel) or over the proceedings (if civilian counsel) to take the 
matter for investigation and hearing in accordance with subsection 
(c)(2)(i)(B).
    (ii) Upon receipt of the report of the investigating board, the 
Judge Advocate General:

[[Page 201]]

    (A) May determine whether the respondent is to be suspended or 
decertified and, if so, whether for a stated term or indefinitely;
    (B) May determine that the findings of the board do not warrant 
further action; or
    (C) May return the report to the sending officer with appropriate 
instructions for further inquiry or action. The Judge Advocate General 
may, sua sponte, or upon petition of the respondent, modify or revoke 
any prior order of suspension or dismissal of a report. Further, if the 
Judge Advocate General suspends counsel, the Judge Advocates General of 
the other armed forces will be notified.
    (d) Grounds justifying suspension of counsel or suspension or 
decertification of a Judge Advocate. (1) Suspension or decertification 
is to be employed only after it has been established that a counsel has 
been unable to discharge properly all the duties of his or her office by 
reason of mental or physical disability or has been engaged in 
professional or personal misconduct of such a serious nature as to 
demonstrate that he or she is lacking in integrity or is failing to meet 
the ethical standards of the profession or is otherwise unworthy or 
unqualified to perform the duties of a counsel Action to suspend or 
decertify should not be initiated because of personal prejudice or 
hostility toward counsel, nor should such action be initiated because 
counsel has initiated an aggressive, zealous or novel defense, or the 
apparent misconduct stems from inexperience or lack of instruction.
    (2) Specific grounds for suspension or decertification include, but 
are not limited to, the following:
    (i) Demonstrated incompetence while acting as counsel before, during 
or after a court-martial.
    (ii) Preventing or obstructing justice, including the deliberate use 
of frivolous or unwarranted dilatory tactics.
    (iii) Fabricating papers or other evidence.
    (iv) Tampering with a witness.
    (v) Abusive conduct toward the court-martial, the Navy-Marine Corps 
Court of Military Review, the military judge, or opposing counsel.
    (vi) Flagrant or repeated violations of any specific rules of 
conduct prescribed for counsel in the Manual for Courts-Martial.
    (vii) Conviction of an offense involving moral turpitude or 
conviction for violation of article 48, UCMJ.
    (viii) Disbarment by a State Bar, Federal Court, or the United 
States Court of Military Appeals.
    (ix) Suspension as counsel by the Judge Advocate General of the 
Navy, Army, or Air Force or the General Counsel of the Department of 
Transportation.
    (x) Flagrant or repeated violations of the Uniform Rules of Practice 
Before Navy-Marine Corps Courts-Martial as outlined in appendix A-1-p(1) 
of the Manual of the Judge Advocate General.
    (xi) Flagrant or repeated violations of the provisions of section 
0134 of this Manual of the Judge Advocate General dealing with the 
Release of Information Pertaining to Accused Persons; Spectators at 
Judicial Sessions.
    (xii) Failure to meet the rules set forth in the ABA Code of 
Professional Responsibility and the ABA Standards on Fair Trial and Free 
Press and The Prosecution Function and the Defense Function. In view of 
the unique mission and personal requirements of the military, many of 
the rules and principles of the ABA Code or Standards are not applicable 
to the military lawyer. Accordingly, the rules are to be used as a guide 
only, and a failure to comply with the specific wording of a rule is not 
to be construed as a violation of the rule where common sense would 
indicate to a reasonable person that there is a distinction between the 
civilian context, which the codes were drafted to embrace, and the 
unique concerns of the military setting, where the codes serve as a 
general guide.

[50 FR 23801, June 6, 1985]



Sec. 719.143  Petition for new trial under 10 U.S.C. 873.

    (a) Statutory provisions. 10 U.S.C. 873, provides, ``At any time 
within 2 years after approval by the convening authority of a court-
martial sentence, the accused may petition the Judge Advocate General 
for a new trial on the grounds of newly discovered evidence or fraud on 
the court. If the accused's

[[Page 202]]

case is pending before a Court of Military Review or before the Court of 
Military Appeals, that Judge Advocate General shall refer the petition 
to the appropriate court for action. Otherwise the Judge Advocate 
General shall act upon the petition.''
    (b) Submission Procedures: At any time within 2 years after approval 
by the convening authority of a court-martial sentence, the accused may 
petition the Judge Advocate General for a new trial on the ground of 
newly discovered evidence or fraud on the court-martial. The petition 
for new trial may be submitted by the accused personally, or by 
accused's counsel, regardless of whether the accused has been separated 
from the service. A petition may not be submitted after the death of the 
accused.
    (c) Contents of petitions: The form and contents of petitions for 
new trial are specified in MCM, 1984, R.C.M. 1210(c). The petition for a 
new trial shall be written and shall be signed under oath or affirmation 
by the accused, by a person possessing the power of attorney of the 
accused for that purpose, or by a person with the authorization of an 
appropriate court to sign the petition as the representative of the 
accused. The petition shall contain the following information, or an 
explanation why such matters are not included:
    (1) The name, service number, and current address of the accused;
    (2) The date and location of the trial;
    (3) The type of court-martial and the title or position of the 
convening authority;
    (4) The request for the new trial;
    (5) The sentence or a description thereof as approved or affirmed, 
with any later reduction thereof by clemency or otherwise,
    (6) A brief description of any finding or sentence believed to be 
unjust;
    (7) A full statement of the newly discovered evidence or fraud on 
the court-martial which is relied upon for the remedy sought;
    (8) Affidavits pertinent to the matters in subsection (6)i; and
    (9) Affidavit of each person whom the accused expects to present as 
a witness in the event of a new trial. Each affidavit should set forth 
briefly the relevant facts within the personal knowledge of the witness.
    (d) Who may act on petition. If the accused's case is pending before 
a Court of Military Review or the Court of Military Appeals, the Judge 
Advocate General shall refer the petition to the appropriate court for 
action. Otherwise, the Judge Advocate shall act on the petition.
    (e) Ground for New Trial. A new trial may be granted only on grounds 
of newly discovered evidence or fraud on the court-martial.
    (1) A new trial shall not be granted on the grounds of newly 
discovered evidence unless the petition shows that;
    (i) The evidence was discovered after the trial,
    (ii) The evidence is not such that it would have been discovered by 
the petitioner at the time of trial in the exercise of due diligence; 
and
    (iii) The newly discovered evidence, if considered by a court-
martial in the light of all other pertinent evidence, would probably 
produce a substantially more favorable result for the accused.
    (2) No fraud on the court-martial warrants a new trial unless it had 
a substantial contributing effect on a finding of guilty or the sentence 
adjudged.
    (f) Action on the petition. (1) The authority considering the 
petition may cause such additional investigation to be made and such 
additional information to be secured as that authority believes 
appropriate. Upon written request, and in his discretion, the authority 
considering the petition may permit oral argument on the matter.
    (2) When a petition is considered by the Judge Advocate General, any 
hearing may be before the Judge Advocate General or before an officer or 
officers designated by the Judge Advocate General.
    (3) If the Judge Advocate General believes meritorious grounds for 
relief under Article 74, Uniform Code of Military Justice have been 
established but that a new trial is not appropriate, the Judge Advocate 
General may act under article 74, Uniform Code of Military Justice, if 
authorized, or transmit the petition and related papers to the Secretary 
concerned with a recommendation.

[[Page 203]]

    (4) The Judge Advocate may also, in cases which have been finally 
reviewed but have not been reviewed by a Court of Military Review, act 
under article 69, Uniform Code of Military Justice.

[50 FR 23803, June 6, 1985]



Sec. 719.144  Application for relief under 10 U.S.C. 869, in cases which have been finally reviewed.

    (a) Statutory provisions. 10 U.S.C. 869 provides in pertinent part, 
``The findings or sentence, or both, in a court-martial case not 
reviewed under subsection (a) or under section 866 of this title 
(article 66) may be modified or set aside, in whole or in part, by the 
Judge Advocate General on the ground of newly discovered evidence, fraud 
on the court, lack of jurisdiction over the accused or the offense, 
error prejudicial to the substantial rights of the accused, or the 
appropriateness of the sentence. If such a case is considered upon 
application of the accused, the application must be filed in the Office 
of the Judge Advocate General by the accused on or before the last day 
of the two-year period beginning on the date the sentence is approved 
under section 860(c) of this title (article 60(c)), unless the accused 
establishes good cause for failure to file within that time.''
    (b) Time Limitations. In order to be considered by the Judge 
Advocate General, an application for relief must be placed in military 
channels if the applicant is on active duty, or be deposited in the mail 
if the applicant is no longer on active duty, on or before the last day 
of the two-year period beginning on the date the sentence is approved by 
the convening authority. An application not filed in compliance with 
these time limits may be considered if the Judge Advocate General 
determines, in his or her sole discretion, that ``good cause'' for 
failure to file within the time limits has been established by the 
applicant.
    (c) Submission procedures. Applications for relief may be submitted 
to the Judge Advocate General by letter. If the accused is on active 
duty, the application shall be submitted via the applicant's commanding 
officer, and the command that convened the court, and the command that 
reviewed the case under 10 U.S.C. 864(a) or (b). If the original record 
of trail is held by the command that reviewed the case under 10 U.S.C. 
864(a) or (b), it shall be forwarded as a enclosure to the endorsement. 
If the original record of trial has been filed in the National Personnel 
Records Center, the endorsement will include all necessary retrieval 
data (accession number, box number, and shelf location) obtained from 
the receipt returned from the National Personnel Records Center to the 
sending activity. This endorsement shall also include information and 
specific comment on the grounds for relief asserted in the application, 
and an opinion on the merits of the application. If the applicant is no 
longer on active duty, the application may be submitted directly to the 
Judge Advocate General.
    (d) Contents of applications. All applications for relief shall 
contain:
    (1) Full name of the applicant;
    (2) Social Security number and branch of service, if any;
    (3) Present grade if on active duty or retired, or ``civilian'' or 
``deceased'' as applicable;
    (4) Address at time the application is forwarded;
    (5) Date of trial;
    (6) Place of trial;
    (7) Command title of the organization at which the court-martial was 
convened (convening authority);
    (8) Command title of the officer exercising review authority in 
accordance with 10 U.S.C. 864 over the applicant at the time of trial, 
if applicable;
    (9) Type of court-martial which convicted the applicant, and 
sentence adjudged;
    (10) General grounds for relief which must be one or more of the 
following:
    (i) Newly discovered evidence;
    (ii) Fraud on the court;
    (iii) Lack of jurisdiction over the accused or the offense;
    (iv) Error prejudicial to the substantial rights of the accused;
    (v) Appropriateness of the sentence;
    (11) An elaboration of the specific prejudice resulting from any 
error cited. (Legal authorities to support the applicant's contentions 
may be included, and the format used may take the form of a legal brief 
if the applicant so desires.);

[[Page 204]]

    (12) Any other matter which the applicant desires to submit;
    (13) Relief requested; and
    (14) Facts and circumstances to establish ``good cause'' for a 
failure to file the application within the time limits prescribed in 
paragraph (b) of this section, if applicable; and
    (15) If the application is signed by a person other than the 
applicant pursuant to subsection e, an explanation of the circumstances 
rendering the applicant incapable of making application. The applicant's 
copy of the record of trial will not be forwarded with the application 
for relief, unless specifically requested by the Judge Advocate General.
    (e) Signatures on applications. Unless incapable of making 
application, the applicant shall personally sign the application under 
oath before an official authorized to administer oaths. If the applicant 
is incapable of making application, the application may be signed under 
oath and submitted by the applicant's spouse, next of kin, executor, 
guardian or other person with a proper interest in the matter. In this 
regard, one is considered incapable of making application for purposes 
of this section when unable to sign the application under oath due to 
physical or mental incapacity.

[50 FR 23804, June 6, 1985]



Secs. 719.145-719.150  [Reserved]



Sec. 719.151  Furnishing of advice and counsel to accused placed in pretrial confinement.

    The Department of the Navy Corrections Manual, SECNAVINST 1640.9, 
reiterates the requirement of Article 10, UCMJ, that, when a person is 
placed in pretrial confinement, immediate steps should be taken to 
inform the confinee of the specific wrong of which he is accused and try 
him or to dismiss the charges and release him. The Corrections Manual 
requires that this information normally will be provided within 48 hours 
along with advice as to the confinee's right to consult with lawyer 
counsel and his right to prepare for trial. Lawyer counsel may be either 
a civilian lawyer provided by the confinee at his own expense or a 
military lawyer provided by the Government. If a confinee requests to 
confer with a military lawyer, such lawyer should normally be made 
available for consultation within 48 hours after the request is made.

[39 FR 18437, May 28, 1974]



Sec. 719.155  Application under 10 U.S.C. 874(b) for the substitution of an administrative form of discharge for a punitive discharge or dismissal.

    (a) Statutory provisions. 10 U.S.C. 874(b) provides that the 
``Secretary concerned may, for good cause, substitute an administrative 
form of discharge for a discharge or dismissal executed in accordance 
with the sentence of a court-martial.''
    (b) Submission procedures. Applications for relief will be submitted 
to the Secretary using the following address: Secretary of the Navy 
(Judge Advocate General, Code 20), 200 Stovall Street, Alexandria, VA 
22332-2400. Except in unusual circumstances, applications will not 
normally be considered if received within five (5) years of the 
execution of the punitive discharge or dismissal, or within five (5) 
years of disapproval of a prior request under 10 U.S.C. 874(b).
    (c) Contents of the application. All applications shall contain:
    (1) Full name of the applicant;
    (2) Social Security Number, service number (if different), and 
branch of service of the applicant;
    (3) Present age and date of birth of the applicant;
    (4) Present residence of the applicant;
    (5) Date and place of the trial, and type of court-martial which 
resulted in the punitive discharge or dismissal;
    (6) Command title of the convening authority of the court-martial 
which resulted in the punitive discharge or dismissal;
    (7) Offense(s) of which the applicant was convicted, and sentence 
finally approved from the trial which resulted in the punitive discharge 
or dismissal;
    (8) Date the punitive discharge or dismissal was executed;
    (9) Applicant's present marital status, and number and ages of 
dependents, if any;
    (10) Applicant's civilian criminal record (arrest(s) with 
disposition, and

[[Page 205]]

conviction(s)), both prior and subsequent to the court-martial which 
resulted in the punitive discharge or dismissal;
    (11) Applicant's entire court-martial record (offense(s) of which 
convicted and finally approved sentence(s)), and nonjudicial punishment 
record (including offense(s) and punishment(s) awarded);
    (12) Any military administrative discharge proceedings 
(circumstances and disposition) initiated against the applicant;
    (13) Applicant's full employment record since the punitive discharge 
or dismissal was executed;
    (14) The specific type and character of administrative discharge 
requested pursuant to 10 U.S.C. 874(b) (a more favorable administrative 
discharge than that requested will not be approved);
    (15) At least three but not more than six character affidavits, (The 
character affidavits must be notarized, must indicate the relationship 
of the affiant to the applicant, and must include the address of the 
affiant as well as specific reasons why the affiant believes the 
applicant to be of good character. The affidavits should discuss the 
applicant's character primarily as reflected in the civilian community 
subsequent to the punitive discharge or dismissal which is the subject 
of the application);
    (16) Any matters, other than the character affidavits, supporting 
the considerations described in subparagraph (18) below;
    (17) Any other relief sought within the Department of the Navy and 
outside the Department of the Navy including dates of application and 
final dispositions;
    (18) A statement by the applicant, setting forth the specific 
considerations which the applicant believes constitute ``good cause,'' 
so as to warrant the substitution of an administrative form of discharge 
for the punitive discharge or dismissal previously executed. (In this 
connection, 10 U.S.C. 874(b) does not provide another regular or 
extraordinary procedure for the review of a court-martial. Questions of 
guilt or innocence, or legal issues attendant to the court-martial which 
resulted in the punitive discharge or dismissal, are neither relevant 
nor appropriate for consideration under 10 U.S.C. 874(b). As used in the 
statute, ``good cause'' was envisioned by Congress to encompass only 
Secretarial exercise of clemency and ultimate control of sentence 
uniformity. Accordingly, in determining what constitutes ``good cause'' 
under 10 U.S.C. 874(b), the primary Secretarial concern will be with the 
applicant's record in the civilian community subsequent to his or her 
punitive separation. Material submitted by the 10 U.S.C. 874(b) 
applicant should be consistent with the foregoing.)
    (d) Signature on application. Unless incapable of making application 
himself or herself, the applicant shall personally sign the application, 
under oath, before a notary or other official authorized to administer 
oaths. If the applicant is incapable of executing the application, the 
application may be signed under oath and submitted by the applicant's 
spouse, next of kin, executor, guardian and other person recognized as a 
personal representative by the law of the applicant's domicile. One is 
considered incapable of executing an application for purposes of this 
paragraph only when the applicant is unable to sign the application 
under oath due to physical or mental incapacity. When an application is 
signed by a person other than the applicant, the circumstances rendering 
the applicant incapable of making sworn application shall be set forth 
in the application, with appropriate documentation.
    (e) Privacy Act Statement. Disclosure of personal information 
requested by paragraph (c) of this section is voluntary; however, 
failure to accurately provide all requested information may result in 
the application being denied because of inadequate documentation of good 
cause.

[47 FR 49645, Nov. 2, 1982, as amended at 50 FR 23804, June 6, 1985]

[[Page 206]]



PART 720--DELIVERY OF PERSONNEL; SERVICE OF PROCESS AND SUBPOENAS; PRODUCTION OF OFFICIAL RECORDS--Table of Contents




                    Subpart A--Delivery of Personnel

Sec.
720.1 Delivery of persons requested by State authorities in criminal 
          cases.
720.2 Delivery when persons are within the territorial limits of the 
          requesting State.
720.3 Delivery when persons are beyond territorial limits of the 
          requesting State.
720.4 Persons stationed outside the United States.
720.5 Authority of the Judge Advocate General and the General Counsel.
720.6 Agreement required prior to delivery to State authorities.
720.7 Delivery of persons to Federal authorities.
720.8 Delivery of persons to foreign authorities.
720.9 Circumstances in which delivery is refused.
720.10 Members released by civil authorities on bail or on their own 
          recognizance.
720.11 Interviewing servicemembers or civilian employees by Federal 
          civilian investigative agencies.
720.12 Request for delivery of members serving sentence of court-
          martial.
720.13 Request for delivery of members serving sentence of a State 
          court.
720.14-720.19 [Reserved]

       Subpart B--Service of Process and Subpoenas Upon Personnel

720.20 Service of process upon personnel.
720.21 Members or civilian employees subpoenaed as witnesses in State 
          courts.
720.22 Members or civilian employees subpoenaed as witnesses in Federal 
          courts.
720.23 Naval prisoners as witnesses or parties in civilian courts.
720.24 Interviews and depositions in connection with civil litigation in 
          matters pertaining to official duties.
720.25 Repossession of personal property.
720.26-720.29 [Reserved]

                Subpart C--Production of Official Records

720.30 Production of official records in response to court order.
720.31 Production of official records in the absence of court order.
720.32 Certificates of full faith and credit.

   Subpart D--Compliance With Court Orders by Department of the Navy 
    Members, Employees, and Family Members Outside the United States

720.40 Purpose.
720.41 Definitions.
720.42 Policy.
720.43 Points of contact.
720.44 Responsible officials.
720.45 Procedures.
720.46 Overseas screening programs.
720.47 Report.

    Authority: 5 U.S.C. 301; 10 U.S.C. 5031 and 5148; 32 CFR 700.206 and 
700.1202.



                    Subpart A--Delivery of Personnel

    Source: 57 FR 5228, Feb. 13, 1992, unless otherwise noted.



Sec. 720.1  Delivery of persons requested by State authorities in criminal cases.

    Subpart A of this part deals with requests by State authorities for 
the surrender of members or civilians pursuant to arrest warrants or 
similar process, generally in connection with a criminal prosecution. 
Responding to such requests by a State for delivery of members or 
civilian employees involves balancing the Federal interest in preserving 
sovereign immunity and the productivity, peace, good order, and 
discipline of the installation against the right of the State to 
exercise its jurisdiction. Additionally, by regulation, naval and Marine 
authorities are limited in the extent to which they can directly assist 
such an act. Commands should respond to such requests as set out below, 
generally using the minimum authority necessary to preserve the Federal 
interests without unduly restricting State jurisdiction.



Sec. 720.2  Delivery when persons are within the territorial limits of the requesting State.

    When the delivery of any member or civilian is requested by local 
civil authorities of a State for an offense punishable under the laws of 
that jurisdiction, and such person is located at a Navy or Marine Corps 
installation within the requesting jurisdiction, or aboard a ship within 
the territorial waters of such jurisdiction, commanding officers are 
authorized to and normally

[[Page 207]]

will deliver such person when a proper warrant is issued. In the case of 
a member, delivery will only be effected upon compliance with 
Sec. 720.6, subject to the exceptions in Sec. 720.9. A judge advocate of 
the Navy or Marine Corps should be consulted before delivery is 
effected. The rule discussed above applies equally to civilian employees 
and civilian contractors and their employees when located on a Navy or 
Marine Corps installation, except that compliance with Sec. 720.6 and 
consideration of Sec. 720.9 are not required (for purposes of this part, 
``State'' includes the District of Columbia, territories, commonwealths, 
and all possessions or protectorates of the United States). Commands 
should normally not become actively involved in civilian law 
enforcement. When a command has determined that a person is to be 
delivered in response to a valid warrant, the following guidance should 
be considered. If the person to be delivered is a military member, the 
member may be ordered to report to a location designated by the 
commanding officer and surrendered to civil authorities under Article 
14, UCMJ (10 U.S.C. 814). If the person to be delivered is a civilian, 
the person may be invited to report to the designated space for 
delivery. If the civilian refuses, the civilian authorities may be 
escorted to a place where the civilian is located in order that delivery 
may be effected. A civilian may be directed to leave a classified area. 
All should be done with minimum interference to good order and 
discipline.



Sec. 720.3  Delivery when persons are beyond territorial limits of the requesting State.

    (a) General. When State civil authorities request delivery of any 
member of the Navy or Marine Corps for an alleged crime or offense 
punishable under the law of the jurisdiction making the request, and 
such member is not attached to a Navy or Marine Corps activity within 
the requesting State or a ship within the territorial waters thereof, 
the following action will be taken. Any officer exercising general 
court-martial jurisdiction, or officer designated by him, or any 
commanding officer, after consultation with a judge advocate of the Navy 
or Marine Corps, is authorized (upon compliance with the provisions of 
this section and Sec. 720.6, and subject to the exceptions in 
Sec. 720.9) to deliver such member to make the member amenable to 
prosecution. The member may be delivered upon formal or informal waiver 
of extradition in accordance with Sec. 720.3(b), or upon presentation of 
a fugitive warrant, in which case the procedures of Sec. 720.3(c) apply. 
The rule discussed above applies equally to civilian employees and 
civilian contractors and their employees when located on a Department of 
the Navy installation not within the requesting State, except that 
compliance with Sec. 720.6 and consideration of Sec. 720.9 are not 
required.
    (b) Waiver of extradition. (1) Any member may waive formal 
extradition. A waiver must be in writing and be witnessed. It must 
include a statement that the member signing it has received counsel of 
either a military or civilian attorney prior to executing the waiver, 
and it must further set forth the name and address of the attorney 
consulted.
    (2) In every case where there is any doubt as to the voluntary 
nature of a waiver, such doubt shall be resolved against its use and all 
persons concerned will be advised to comply with the procedures set 
forth in Sec. 720.3(c).
    (3) Executed copies of all waivers will be mailed to the Judge 
Advocate General immediately after their execution.
    (4) When a member declines to waive extradition, the nearest Naval 
Legal Service Office or Marine Corps staff judge advocate shall be 
informed and shall confer with the civil authorities as appropriate. The 
member concerned shall not be transferred or ordered out of the State in 
which he is then located without the permission of the Secretary of the 
Navy (Judge Advocate General), unless a fugitive warrant is obtained as 
set forth in Sec. 720.3(c).
    (c) Fugitive warrants. (1) A fugitive warrant, as used in this 
chapter, is a warrant issued by a State court of competent jurisdiction 
for the arrest of a member. Normally, a State requesting delivery of a 
member from another State will issue a fugitive warrant to the State 
where the member is then located.

[[Page 208]]

    (2) Upon issuance of a fugitive warrant by the requesting State to 
the State in which the member is located, the latter State will normally 
request delivery of the member to local State authorities. Delivery to 
local State authorities should be arranged by Navy or Marine Corps 
officers designated in Sec. 720.3(a), upon compliance with the 
provisions of Sec. 720.6, and subject to the conditions of Secs. 720.9 
and 720.3(c) (3) and (4).
    (3) Upon receipt of a request for delivery of a member under 
fugitive warrant to State authorities, if the member voluntarily waives 
extradition, the provisions of Sec. 720.3(b) apply. If the member is 
delivered to local authorities but refuses to waive extradition in the 
courts of the State in which he is located.
    (4) No delivery of a member by Navy or Marine Corps officers 
pursuant to a fugitive warrant or waiver of extradition shall be 
effected without completion of the agreement required by Sec. 720.6 and 
execution of such agreement either:
    (i) By authorities of both the requesting State and the State in 
which the member is located, or
    (ii) By authorities of the State in which the member is located if 
such authorities, on behalf of the requesting State, accept the full 
responsibility for returning the number to a command designated by the 
Department of the Navy.
    (d) Members stationed outside the United States. When the member 
sought by State authorities is not located within the United States, see 
Sec. 720.4.



Sec. 720.4  Persons stationed outside the United States.

    (a) Persons desired by local U.S. authorities. When delivery of any 
member in the Navy or Marine Corps, or any civilian employee or 
dependent, is desired for trial by state authorities and the individual 
whose presence is sought is stationed outside the United States, the 
provisions of subpart D of this part will be followed. In all such 
cases, the nearest judge advocate of the Navy or Marine Corps shall be 
consulted before any action is taken.
    (b) Members desired by U.S. Federal authorities. When delivery of 
any member of the Navy or Marine Corps is desired for trial in a Federal 
district court, upon appropriate representation by the Department of 
Justice to the Secretary of the Navy (Judge Advocate General), the 
member will be returned to the United States at the expense of the 
Department of the Navy and held at a military facility convenient to the 
Department of the Navy and to the Department of Justice. Delivery may be 
accomplished as set forth in Sec. 720.7, subject to the exceptions in 
Sec. 720.9.



Sec. 720.5  Authority of the Judge Advocate General and the General Counsel.

    (a) Authority of the Judge Advocate General. The Judge Advocate 
General, the Deputy Judge Advocate General, and the Assistant Judge 
Advocates General are authorized to act for the Secretary of the Navy in 
performance of functions under this chapter.
    (b) Authority of the General Counsel. The authority of the General 
Counsel of the Navy is prescribed by Navy Regulation (32 CFR 700.203 (a) 
and (g)) and by appropriate departmental directives and instructions 
(e.g., SECNAVINST 5430.25D).\1\ The principal areas of responsibility of 
the Office of the General Counsel (OGC) are commerical law, including 
maritime contract matters; civilian employee law; real property law; and 
Freedom of Information Act and Privacy Act matters as delineated in 32 
CFR part 701. The Office of the General Counsel shares responsibility 
with the Judge Advocate General for environmental law cases.
---------------------------------------------------------------------------

    \1\ Copies may be obtained if needed, from the Commanding Officer, 
Naval Publication and Forms Center, 5801 Tabor Avenue, Philadelphia, PA 
19120.
---------------------------------------------------------------------------

    (c) Points of contact. Commanding officers are advised to contact 
their local area judge advocates for assistance in referring matters to 
the appropriate office of the Judge Advocate General or General Counsel.
    (d) Coordination with the Commandant of the Marine Corps. Marine 
Corps commands shall inform the Commandant of the Marine Corps (CMC) of 
all matters referred to the Judge Advocate General or the Office of 
General Counsel. Copies of all correspondence and documents shall also 
be provided to CMC. The

[[Page 209]]

Staff Judge Advocate to the Commandant (CMC (JAR)) shall be advised of 
all matters referred to the Judge Advocate General. Counsel to the 
Commandant shall be advised of matters referred to the Office of General 
Counsel.



Sec. 720.6  Agreement required prior to delivery to State authorities.

    (a) Delivery under Article 14, UCMJ. When delivery of any member of 
the Navy or Marine Corps to the civilian authorities of a State is 
authorized, the member's commanding officer shall, before making such 
delivery, obtain from the Governor or other duly authorized officer of 
such State a written agreement. The State official completing the 
agreement must show that he is authorized to bind the State to the terms 
of the agreement. When indicating in the agreement the naval or Marine 
Corps activity to which the member delivered is to be returned by the 
State, care should be taken to designate the closest appropriate 
activity (to the command to which the member is attached) that possesses 
special court-martial jurisdiction. The Department of the Navy considers 
this agreement substantially complied with when:
    (1) The member is furnished transportation (under escort in cases of 
delivery in accordance with Sec. 720.12) to a naval or Marine Corps 
activity as set forth in the agreement;
    (2) The member is provided cash to cover incidental expenses en 
route thereto; and
    (3) The Department of the Navy is so informed.

As soon as practicable, a copy of the delivery agreement shall be 
forwarded to the Judge Advocate General.
    (b) Delivery under Interstate Agreement on Detainers Act. Special 
forms are used when delivering prisoners under the Interstate Agreement 
on Detainers Act. The Act is infrequently used and most requests are 
pursuant to Article 14, UCMJ. See Sec. 720.12 for a detailed discussion 
of the Detainers Act.



Sec. 720.7  Delivery of persons to Federal authorities.

    (a) Authority to deliver. When Federal law enforcement authorities 
display proper credentials and Federal warrants for the arrest of 
members, civilian employees, civilian contractors and their employees, 
or dependents residing at or located on a Department of the Navy 
installation, commanding officers are authorized to and should allow the 
arrest of the individual sought. The exceptions in Sec. 720.9 may be 
applied to members. A judge advocate of the Navy or Marine Corps should 
be consulted before delivery is effected.
    (b) Agreement not required of Federal authorities. The agreement 
described in Sec. 720.6 is not a condition to the delivery of members to 
Federal law enforcement authorities. Regardless of whether the member is 
convicted or acquitted, after final disposition of the case, the member 
will be returned to the Naval Service (provided that naval authorities 
desire his return) and the necessary expenses will be paid from an 
appropriation under the control of the Department of Justice.



Sec. 720.8  Delivery of persons to foreign authorities.

    Except when provided by agreement between the United States and the 
foreign government concerned, commanding officers are not authorized to 
deliver members or civilian employees of the Department of the Navy, or 
their dependents residing at or located on a naval or Marine Corps 
installation, to foreign authorities. When a request for delivery of 
these persons is received in a country with which the United States has 
no agreement or when the commanding officer is in doubt, advice should 
be sought from the Judge Advocate General. Detailed information 
concerning the delivery of members, civilian employees, and dependents 
to foreign authorities when a status of forces agreement is in effect is 
contained in DoD Directive 5525.1 of 9 April 1985 and SECNAVINST 
5820.4F.\2\
---------------------------------------------------------------------------

    \2\ See footnote 1 of Sec. 720.5(b).
---------------------------------------------------------------------------



Sec. 720.9  Circumstances in which delivery is refused.

    (a) Disciplinary proceedings pending. When disciplinary proceedings 
involving military offenses are pending, commanding officers should 
obtain legal guidance from a judge advocate of the Navy or Marine Corps 
prior to delivery

[[Page 210]]

of members to Federal or State authorities.
    (b) When delivery may be refused. Delivery may be refused only in 
the following limited circumstances:
    (1) Where the accused has been retained for prosecution; or
    (2) When the commanding officer determines that extraordinary 
circumstances exist which indicate that delivery should be refused.
    (c) Delivery under Detainers Act. When the accused is undergoing 
sentence of a court-martial, see Sec. 720.12.
    (d) Reports required. When delivery will be refused, the commanding 
officer shall report the circumstances to the Judge Advocate General by 
telephone, or by message if telephone is impractical. The initial report 
shall be confirmed by letter setting forth a full statement of the 
facts. A copy of the report shall be forwarded to the regional 
coordinator.



Sec. 720.10  Members released by civil authorities on bail or on their own recognizance.

    A member of the Navy or Marine Corps arrested by Federal or State 
authorities and released on bail or on his own recognizance has a duty 
to return to his parent organization. Accordingly, when a member of the 
Navy or Marine Corps is arrested by Federal or State authorities and 
returns to his ship or station on bail, or on his own recognizance, the 
commanding officer, upon verification of the attesting facts, date of 
trial, and approximate length of time that should be covered by the 
absence, shall grant liberty or leave to permit appearance for trial, 
unless this would have a serious negative impact on the command. In the 
event that liberty or leave is not granted, a judge advocate of the Navy 
or Marine Corps should immediately be requested to act as liaison with 
the court. Nothing in this section is to be construed as permitting the 
member arrested and released to avoid the obligations of bond or 
recognizance by reason of the member's being in the military service.



Sec. 720.11  Interviewing servicemembers or civilian employees by Federal civilian investigative agencies.

    Requests by the Federal Bureau of Investigation, Naval Investigative 
Service Command, or other Federal civilian investigative agencies to 
interview members or civilian employees of the Department of the Navy 
suspected or accused of crimes should be promptly honored. Any refusal 
of such a request shall be immediately reported to the Judge Advocate 
General, or the Office of General Counsel, as appropriate, by telephone, 
or by message if telephone is impractical. When the employee in question 
is a member of an exclusive bargaining unit, a staff judge advocate or 
General Counsel attorney will be consulted to determine whether the 
employee has a right to have a bargaining unit representative present 
during the interview.



Sec. 720.12  Request for delivery of members serving sentence of court-martial.

    (a) General. Article 14, UCMJ (10 U.S.C. 814), provides authority to 
honor requests for delivery of members serving a sentence of a court-
martial. Although seldom utilized, additional authority and mandatory 
obligation to deliver such members are provided by the Interstate 
Agreement on Detainers Act (18 U.S.C. app. 9, hereinafter ``the Act''), 
which applies to the Federal agency holding the prisoner. The Department 
of the Navy, as an agency of the Federal Government, shall comply with 
the Act. The Act is designed to avoid speedy-trial issues and to aid in 
rehabilitation efforts by securing a greater degree of certainty about a 
prisoner's future. The Act provides a way for a prisoner to be tried on 
charges pending before State courts, either at the request of the State 
where the charges are pending or the prisoner's request. When refusal of 
delivery under Article 14, UCMJ, is intended, comply with Sec. 720.9(d).
    (b) Interstate Agreement on Detainers Act. Upon request under the 
Act by either State authorities or the prisoner, the cognizant Navy or 
Marine Corps staff judge advocate, as appropriate,

[[Page 211]]

shall communicate with the appropriate State officials, and monitor and 
ensure that the cognizant commander acts on all such requests. The Act 
provides that court-martial sentences continue to run during temporary 
custody. This section does not cover requests between Federal 
authorities. The procedure set forth in Sec. 720.12(c) shall be applied 
in such cases.
    (1) State request. State officials may request delivery of prisoners 
in military custody under section 2, Article IV, of the Act. Where a 
detainer has been lodged against the prisoner, and the prisoner is 
serving a sentence (regardless of whether an appeal is in process), 
delivery is mandatory unless the request is disapproved by the Director 
of the Bureau of Prisons, Washington, DC, 20537 as the designee of the 
Attorney General for this purpose. 28 CFR 0.96(n). There has been no 
further delegation to military authority. The prisoner should be 
informed that he may request the Director of the Bureau of Prisons, 
Washington, DC 20537, within 30 days after such request is received, to 
deny the request. Upon the expiration of such 30-day period or upon the 
Director of the Bureau of Prisons' denial of the prisoner's request, 
whichever occurs first, the prisoner shall be delivered to the 
requesting authority.
    (2) Prisoner request. The obligation to grant temporary custody 
under the Act also applies to prisoners' requests to be delivered to 
State authority. Section 2, Article III(c) of the Act requires the 
custodial official to inform the prisoner of the existence of any 
detainer and of the prisoner's right to request disposition. The 
prisoner's request is directed to the custodial official who must 
forward it to the appropriate prosecuting official and court, with a 
certificate of prisoner status as provided by Article III of the Act.
    (c) Article 14, UCMJ. When a request for custody does not invoke the 
Interstate Agreement on Detainers Act, delivery of custody shall be 
governed by Article 14, UCMJ, and Secs. 720.2 through 720.9. The request 
shall be honored unless, in the exercise of discretion, there is an 
overriding reason for retaining the accused in military custody, e.g., 
additional courts-martial are to be convened or the delivery would 
severely prejudice the prisoner's appellate rights. Execution of the 
agreement discussed in Sec. 720.6 is a condition precedent to delivery 
to State authorities. It is not required before delivery to Federal 
authorities. See Sec. 720.7. Unlike delivery under the Act, delivery of 
custody pursuant to Article 14, UCMJ, interrupts execution of the court-
martial sentence.



Sec. 720.13  Request for delivery of members serving sentence of a State court.

    (a) General. Ordinarily, members serving protracted sentences 
resulting from a State criminal conviction will be processed for 
administrative discharge by reason of misconduct. It may, however, be in 
the best interest of the Naval Service to retain a member charged with a 
serious offense, subject to military jurisdiction, to try the member by 
court-martial. The Navy may obtain temporary custody of incarcerated 
members for prosecution with a request to the State under the Interstate 
Agreement on Detainers Act. 18 U.S.C. app. 9. The Department of the Navy 
may use the Act in the same manner in which State authorities may 
request members purusant to Sec. 720.12.
    (b) Interstate Agreement on Detainers Act. Military authorities may 
use the Act to obtain temporary custody of a member incarcerated in a 
State institution, pursuant to conviction by a State court, to resolve 
criminal charges against the member before a court-martial.
    (1) Detainer. If a command requests temporary custody under the Act, 
the commanding officer of the cognizant naval legal service office or 
the Marine Corps staff judge advocate, shall file a detainer with the 
warden, commissioner of corrections, or other State official having 
custody of the member. The detainer shall identify the member with 
particularity, enumerate the military charges pending, and request the 
command be notified in advance of any intention to release the member 
from confinement.
    (2) Request for delivery. As soon as practical after filing the 
detainer, the commanding officer of the cognizant

[[Page 212]]

naval legal service office or the Marine Corps staff judge advocate, 
shall prepare a written request for temporary custody of the member 
addressed to the State official charged with administration of the State 
penal system. The request shall designate the person(s) to whom the 
member is to be delivered and shall be transmitted via the military 
judge to whom the member's case has been assigned. If the request is 
properly prepared, the military judge shall approve, record, and 
transmit the request to the addressee official. The Act provides the 
State with a 30-day period after receipt of the request before the 
request is to be honored. Within that period of time, the governor of 
the State may disapprove the request, either unilaterally or upon the 
prisoner's request. If the governor disapproves the request, the command 
should coordinate any further action with the Judge Advocate General.
    (3) Responsibilities. The cognizant command shall ensure that the 
responsibilities of a receiving jurisdiction, delineated in section 2, 
Article IV of the Act, are discharged. In particular, the Act requires 
that the receiving jurisdiction:
    (i) Commence the prisoner's trial within 120 days of the prisoner's 
arrival, unless the court, for good cause shown during an Article 39(a), 
UCMJ, session, grants a continuance necessary or reasonable to promote 
the ends of justice;
    (ii) Hold the prisoner in a suitable jail or other facility 
regularly used for persons awaiting prosecution, except for periods 
during which the prisoner attends court or travels to or from any place 
at which his presence may be required;
    (iii) Return the prisoner to the sending jurisdiction at the 
earliest practical time, but not before the charges that underlie the 
request have been resolved (prematurely returning the prisoner will 
result in dismissal of the charges); and
    (iv) Pay all costs of transporting, caring for, keeping, and 
returning the prisoner to the sending jurisdiction, unless the command 
and the State agree on some other allocation of the costs or 
responsibilities.



Secs. 720.14-720.19  [Reserved]



       Subpart B--Service of Process and Subpoenas Upon Personnel

    Source: 57 FR 5232, Feb. 13, 1992, unless otherwise noted.



Sec. 720.20  Service of process upon personnel.

    (a) General. Commanding officers afloat and ashore may permit 
service of process of Federal or State courts upon members, civilian 
employees, dependents, or contractors residing at or located on a naval 
installation, if located within their commands. Service will not be made 
within the command without the commanding officer's consent. The intent 
of this provision is to protect against interference with mission 
accomplishment and to preserve good order and discipline, while not 
unnecessarily impeding the court's work. Where practical, the commanding 
officer shall require that the process be served in his presence, or in 
the presence of a designated officer. In all cases, individuals will be 
advised to seek legal counsel, either from a legal assistance attorney 
or from personal counsel for service in personal matters, and from 
Government counsel for service in official matters. The commanding 
officer is not required to act as a process server. The action required 
depends in part on the status of the individual requested and which 
State issued the process.
    (1) In-State process. When a process server from a State or Federal 
court from the jurisdiction where the naval station is located requests 
permission to serve process aboard an installation, the command 
ordinarily should not prevent service of process so long as delivery is 
made in accordance with reasonable command regulations and is consistent 
with good order and discipline. Withholding service may be justified 
only in the rare case when the individual sought is located in an area 
under exclusive Federal jurisdiction not subject to any reservation by 
the State of the right to serve process. Questions on the extent of 
jurisdiction should be referred to the staff judge advocate, command 
counsel, or local naval legal service office. If service is

[[Page 213]]

permitted, an appropriate location should be designated (for example, 
the command legal office) where the process server and the member or 
employee can meet privately in order that process may be served away 
from the workplace. A member may be directed to report to the designated 
location. A civilian may be invited to the designated location. If the 
civilian does not cooperate, the process server may be escorted to the 
location of the civilian in order that process may be served. A civilian 
may be required to leave a classified area in order that the process 
server may have access to the civilian. If unusual circumstances require 
that the command not permit service, see Sec. 720.20(e).
    (2) Out-of-State process. In those cases where the process is to be 
served by authority of a jurisdiction other than that where the command 
is located, the person named is not required to accept process. 
Accordingly, the process server from the out-of-State jurisdiction need 
not be brought face-to-face with the person named in the process. 
Rather, the process server should report to the designated command 
location while the person named is contacted, apprised of the situation, 
and advised that he may accept service, but also may refuse. In the 
event that the person named refuses service, the process server should 
be so notified. If service of process is attempted from out-of-State by 
mail and refused, the refusal should be noted and the documents returned 
to the sender. Questions should be referred to the staff judge advocate, 
command counsel, or the local naval legal service office.
    (b) Service of process arising from official duties. (1) Whenever a 
member or civilian employee of the Department of the Navy is served with 
process because of his official position, the Judge Advocate General or 
the Associate General Counsel (Litigation), as appropriate, shall be 
notified by telephone, or by message if telephone is impractical. 
Notification shall be confirmed by a letter report by the nearest 
appropriate command. The letter report shall include the detailed facts 
which give rise to the action.
    (2) Any member or civilian employee served with Federal or State 
court civil or criminal process or pleadings (including traffic tickets) 
arising from actions performed in the course of official duties shall 
immediately deliver all such process and pleadings to the commanding 
officer. The commanding officer shall ascertain the pertinent facts and 
notify the Judge Advocate General or Associate General Counsel 
(Litigation), as appropriate, by telephone or by message if telephone is 
impractical, of the service and immediately forward the pleadings and 
process to the relevant office. The member or civilian employee will be 
advised of the right to remove civil or criminal proceedings from State 
to Federal court under 28 U.S.C. 1442, 1442a, rights under the Federal 
Employees Liability Reform and Tort Compensation Act (28 U.S.C. 2679b), 
if applicable, and the right of a Federal employee to request 
representation by Department of Justice attorneys in Federal (civil) or 
State (civil or criminal) proceedings and in congressional proceedings 
in which that person is sued in an individual capacity, as delineated in 
28 CFR 50.15. Requests for representation shall be addressed to the 
Judge Advocate General or Associate General Counsel (Litigation), as 
appropriate, and shall be endorsed by the commanding officer, who shall 
provide all necessary data relating to the questions of whether the 
person was acting within the course of official duty or scope of 
employment at the time of the incident out of which the suit arose.
    (3) If the service of process involves a potential claim against the 
Government, see 32 CFR 750.12(a), 750.12(b), and 750.24. The right to 
remove to Federal Court under 28 U.S.C. 1442 and 1442a must be 
considered where the outcome of the State court action may influence a 
claim or potential claim against the United States. Questions should be 
directed to the Judge Advocate General or the Associate General Counsel 
(Litigation).
    (c) Service of process of foreign courts. (1) Usually, the 
amenability of members, civilian employees, and their dependents 
stationed in a foreign country, to the service of process from courts of 
the host country will have been settled by an agreement between

[[Page 214]]

the United States and the foreign country concerned (for example, in the 
countries of the signatory parties, amenability to service of civil 
process is governed by paragraphs 5(g) and 9 of Article VIII of the NATO 
Status of Forces Agreement, TIAS 2846). When service of process on a 
person described above is attempted within the command in a country in 
which the United States has no agreement on this subject, advice should 
be sought from the Judge Advocate General or the Associate General 
Counsel (Litigation), as appropriate. When service of process is upon 
the United States Government or one of its agencies or instrumentalities 
as the named defendant, the doctrine of sovereign immunity may allow the 
service of process to be returned to the court through diplomatic 
channels. Service of process directed to an official of the United 
States, on the other hand, must always be processed in accordance with 
the applicable international agreement or treaty, regardless of whether 
the suit involves acts performed in the course of official duties. The 
Judge Advocate General or the Associate General Counsel (Litigation), as 
appropriate, will arrange through the Department of Justice for defense 
of the suit against the United States or an official acting within the 
scope of official duties, or make other arrangements, and will issue 
instructions.
    (2) Usually, the persons described in Sec. 720.20(c)(1) are not 
required to accept service of process outside the geographic limits of 
the jurisdiction of the court from which the process issued. In such 
cases, acceptance of the service is not compulsory, but service may be 
voluntarily accepted in accordance with Sec. 720.20(b). In exceptional 
cases when the United States has agreed that service of process will be 
accepted by such persons when located outside the geographic limits of 
the jurisdiction of the court from which the process issued, the 
provisions of the agreement and of Sec. 720.20(a) will govern.
    (3) Under the laws of some countries (such as Sweden), service of 
process is effected by the document, in original or certified copy, 
being handed to the person for whom the service is intended. Service is 
considered to have taken place even if the person refuses to accept the 
legal documents. Therefore, if a commanding officer or other officer in 
the military service personally hands, or attempts to hand, that person 
the document, service is considered to have been effected, permitting 
the court to proceed to judgment. Upon receipt of foreign process with a 
request that it be served upon a person described in Sec. 720.20(c)(1), 
a commanding officer shall notify the person of the fact that a 
particular foreign court is attempting to serve process and also inform 
that person that the process may be ignored or received. If the person 
to be served chooses to ignore the service, the commanding officer will 
return the document to the embassy or consulate of the foreign country 
with the notation that the commanding officer had the document, that the 
person chose to ignore it, and that no physical offer of service had 
been made. The commanding officer will advise the Judge Advocate General 
or the Associate General Counsel (Litigation), as appropriate, of all 
requests for service of process from a foreign court and the details 
thereof.
    (d) Leave or liberty to be granted persons served with process. When 
members or civilian employees are either served with process, or 
voluntarily accept service of process, in cases where the United States 
is not a party to the litigation, the commanding officer normally will 
grant leave or liberty to the person served to permit compliance with 
the process, unless to do so would have an adverse impact on naval 
operations. When a member or civilian employee is a witness for a 
nongovernmental party because of performance of official duties, the 
commanding officer may issue the person concerned permissive orders 
authorizing attendance at the trail at no expense to the Government. The 
provisions of 32 CFR part 725 must also be considered in such cases. 
Members or civilian employees may accept allowances and mileage 
tendered; however, any fees tendered for testimony must be paid to the 
Department of the Navy unless the member or employee is on authorized 
leave while attending the judicial proceeding. When it would be in the 
best

[[Page 215]]

interests of the United States Government (for example, in State 
criminal trails), travel funds may be used to provide members and 
civilian employees as witnesses as provided in the Joint Federal Travel 
Regulations. Responsibility for the payment of the member's mileage and 
allowances will be determined pursuant to the Joint Federal Travel 
Regulations, Volume 1, paragraph M6300, subsections 1-3.\3\
---------------------------------------------------------------------------

    \3\ See footnote 1 of Sec. 720.5(b).
---------------------------------------------------------------------------

    (e) Report where service not allowed. Where service of process is 
not permitted, or where the member or civilian employee is not given 
leave, liberty, or orders to attend a judicial proceeding, a report of 
such refusal and the reasons therefor shall be made by telephone, or 
message if telephone is impractical, to the Judge Advocate General or 
the Associate General Counsel (Litigation), as appropriate.



Sec. 720.21  Members or civilian employees subpoenaed as witnesses in State courts.

    Where members or civilian employees are subpoenaed to appear as 
witnesses in State courts, and are served as described in Secs. 720.20, 
720.20(d) applies. If these persons are requested to appear as witnesses 
in State courts when the interests of the Federal Government are 
involved (e.g., Medical Care Recovery Act cases), follow the procedures 
described in Sec. 720.22. If State authorities are attempting to obtain 
the presence of a member or a civilian employee as a witness in a civil 
or criminal case, and such person is unavailable because of an overseas 
assignment, the command should immediately contact the Judge Advocate 
General, or the Associate General Counsel (Litigation), as appropriate.



Sec. 720.22  Members or civilian employees subpoenaed as witnesses in Federal courts.

    (a) Witnesses on behalf of Federal Government. When members or 
civilian employees of the Department of the Navy are required to appear 
as witnesses in a Federal Court to testify on behalf of the Federal 
Government in cases involving Department of the Navy activities, the 
Chief of Naval Personnel or the Commandant of the Marine Corps, as 
appropriate, will issue temporary additional duty orders to that person. 
The charges for such orders will be borne by the activity to which the 
required witness is attached. Payment to witnesses will be as provided 
by the Joint Federal Travel Regulations and U.S. Navy travel 
instructions. If the required witness is to appear in a case in which 
the activities of the Department of the Navy are not involved, the 
Department of the Navy will be reimbursed in accordance with the 
procedures outlined in the Navy Comptroller Manual, section 046268.
    (b) Witnesses on behalf of nongovernmental parties--(1) Criminal 
actions. When members or civilian employees are served with a subpoena 
to appear as a witness for a defendant in a criminal action and the fees 
and mileage required by rule 17(d) of the Federal Rules of Criminal 
Procedure are tendered, the commanding officer may issue the person 
subpoenaed permissive orders authorizing attendance at the trial at no 
expense to the Government, unless the person's absence would have an 
adverse impact on naval operations. In such a case, a full report of the 
circumstances will be made to the Judge Advocate General or, in the case 
of civilian employees, to the Associate General Counsel (Litigation). In 
those cases where fees and mileage are not tendered as required by rule 
17(d) of the Federal Rules of Criminal Procedure, but the person 
subpoenaed still desires to attend, the commanding officer also may 
issue permissive orders at no cost to the Government. Such persons, 
however, should be advised that an agreement as to reimbursement for any 
expenses incident to travel, lodging, and subsistence should be effected 
with the party desiring their attendance and that no reimnbursement 
should be expected from the Government.
    (2) Civil actions. When members or civilian employees are served 
with a subpoena to appear as a witness on the behalf of a 
nongovernmental party in a civil action brought in a Federal court, the 
provisions of Sec. 720.20 apply.

[[Page 216]]



Sec. 720.23  Naval prisoners as witnesses or parties in civilian courts.

    (a) Criminal actions. When Federal or State authorities desire the 
attendance of a naval prisoner as a witness in a criminal case, they 
should submit a written request for such person's attendance to the 
Judge Advocate General. The civilian authority should include the 
following averments in its request:
    (1) That the evidence to be derived from the prisoner's testimony is 
unavailable from any other source:
    (2) That the civilian authority will provide adequate security 
arrangements for the prisoner and assume responsibility for the prisoner 
while he is in its custody; and
    (3) that the civilian authority will assume all costs of 
transporting the prisoner from the brig, of maintaining that prisoner 
while in civilian custody, and of returning the prisoner to the brig 
from which he was removed.

The civilian authority should also include in its request an estimate of 
the length of time the prisoner's services will be required, and should 
specify the mode of transport by which it intends to return the 
prisoner. Upon receipt of such a request, authority by the Judge 
Advocate General will be given, in a proper case, for the production of 
the requested naval prisoner in court without resort to a writ of habeas 
corpus ad testificandum (a writ which requires the production of a 
prisoner to testify before a court of competent jurisdiction).
    (b) Civil actions. The Department of the Navy will not authorize the 
attendance of a naval prisoner in a Federal or State court, either as a 
party or as a witness, in private litigation pending before such a 
court. The deposition of a naval prisoner may be taken in such a case, 
subject to reasonable conditions or limitations imposed by the command 
concerned.



Sec. 720.24  Interviews and depositions in connection with civil litigation in matters pertaining to official duties.

    Requests to interview, depose, or call as witnesses, current or 
former members or civilian employees of the Department of the Navy, 
regarding information obtained in the course of their official duties, 
including expert testimony related thereto, shall be processed in 
accordance with 32 CFR part 725.



Sec. 720.25  Repossession of personal property.

    Repossession of personal property, located on a Navy or Marine Corps 
installation, belonging to a member or to any dependent residing at or 
located on a Department of the Navy installation, may be permitted in 
the discretion of the commanding officer of the installation where the 
property is located, subject to the following. The documents purporting 
to authorize repossession and the procedures for repossessing the 
property must comply with State law. Prior to permitting physical 
repossession of any property, the commanding officer shall cause an 
informal inquiry into the circumstances and then determine whether to 
allow the repossession. If repossession is to be allowed, the person 
whose property is to be repossessed should be asked if he wishes to 
relinquish the property voluntarily. Repossession must be carried out in 
a manner prescribed by the commanding officer. In the case of property 
owned by civilian employees of the Department of the Navy or civilian 
contractors or their employees or dependents, the commanding officer 
should direct that the disputed property be removed from the 
installation until the commanding officer is satisfied that the dispute 
is resolved.



Secs. 720.26-720.29  [Reserved]



                Subpart C--Production of Official Records



Sec. 720.30  Production of official records in response to court order.

    (a) General. Where unclassified naval records are desired by or on 
behalf of litigants, the parties will be informed that the records 
desired, or certified copies thereof, may be obtained by forwarding to 
the Secretary of the Navy, Navy Department, Washington, DC, or other 
custodian of the records, a court order calling for the particular 
records desired or copies thereof. Compliance with such court order will 
be effected

[[Page 217]]

by transmitting certified copies of the records to the clerk of the 
court out of which the process issues. See the provisions in the 
Secretary of the Navy Instruction 5211.5 series which set forth the 
additional requirement that reasonable efforts be made to notify all 
individuals to whom the record pertains of (1) the disclosure, and (2) 
the nature of the information provided, when the court order has become 
a matter of public record and the record is contained in a system of 
records as defined in the Secretary of the Navy Instruction 5211.5 
series. If an original record is produced by a naval custodian, it will 
not be removed from the custody of the person producing it, but copies 
may be placed in evidence. Upon written request of one or more parties 
in interest or their respective attorneys, records which would be 
produced in response to a court order as set forth above may be 
furnished without court order when such records are not in a `system of 
records' as defined by the Privacy Act (5 U.S.C. 552a) except as noted 
in paragraphs (b) and (c) of this section. In determining whether or not 
a record contained in a ``system of records'' will be furnished in 
response to a written request for that record, consideration shall be 
given to the provisions of the Secretary of the Navy Instruction 5720.42 
series. If the record is in a ``system of records,'' it may be produced 
upon written request of one or more parties in interest or their 
respective attorneys in the absence of a court order only if the 
individuals to whom the record pertains give written consent to the 
production or if the production is otherwise authorized under the 
Privacy Act and the Secretary of the Navy Instruction 5211.5 series. 
Whenever compliance with a court order for production of Department of 
the Navy records is deemed inappropriate for any reason, such as when 
they contain privileged or classified information, the records and 
subpoena may be forwarded to the Secretary of the Navy (Judge Advocate 
General) for appropriate action, and the parties to the suit so 
notified. Any release of classified information for civil court 
proceedings (whether civil or criminal in nature) must also be 
coordinated within the office of the Chief of Naval Operations (OP-009D) 
in accordance with the Chief of Naval Operations Instruction 5510.1 
series.
    (b) Records in the custody of National Personnel Records Center. 
Court orders, subpoenas duces tecum, and other legal documents demanding 
information from, or the production of, service or medical records in 
the custody of the National Personnel Records Center involving former 
(deceased or discharged) Navy and Marine Corps personnel shall be served 
upon the General Services Administration, 9700 Page Boulevard; St. 
Louis, MO 63132, rather than the Department of the Navy. In the 
following situations, the request shall be forwarded to the Secretary of 
the Navy (Judge Advocate General).
    (1) When the United States (Department of the Navy) is one of the 
litigants.
    (2) When the case involves a person or persons who are or have been 
senior officers or officials within the Department of the Navy; and
    (3) In other cases considered to be of special significance to the 
Judge Advocate General or the Secretary of the Navy.
    (c) Exceptions. Where not in conflict with the foregoing 
restrictions relative to personal information, the release of which 
would result in a clearly unwarranted invasion of personal privacy, the 
production in Federal, State, territorial, or local courts of 
evidentiary material from investigations conducted pursuant to this 
Manual, and the service, employment, pay or medical records (including 
medical records of dependents) of persons in the naval service is 
authorized upon receipt of a court order, without procuring specific 
authority from the Secretary of the Navy. When the request for 
production involves material related to claims in favor of the 
Government, notification should be made to the affirmative claims office 
at the naval legal service office having territorial responsibility in 
the area. Where travel is involved, it must be without expense to the 
Government.
    (d) Medical and other records of civilian employees. Production of 
medical certificates or other medical reports concerning civilian 
employees is controlled by the provisions of Executive

[[Page 218]]

Order 10561, 19 FR 5963, as implemented by Federal Personnel Manual, 
chapter 294, and chapter 339.1-4 (reprinted in MANMED article 23-
255(6)). Records of civilian employees other than medical records may be 
produced upon receipt of a court order without procuring specific 
authority from the Secretary of the Navy, provided there is not involved 
any classified or For-Official-Use-Only information, such as loyalty or 
security records. Records relating to compensation benefits administered 
by the Bureau of Employees' Compensation may not be disclosed except 
upon the written approval of that Bureau (20 CFR 1.21). In case of 
doubt, the matter should be handled in accordance with the provisions of 
subsection a above. Where information is furnished hereunder in response 
to a court order, it is advisable that certified copies rather than 
originals be furnished and that, where original records are to be 
produced, the assistance of the U.S. Attorney or U.S. Marshal be 
requested so that custody of the records may be maintained.

[38 FR 6021, Mar. 6, 1973, as amended at 48 FR 4466, Feb. 1, 1983]



Sec. 720.31  Production of official records in the absence of court order.

    (a) General. Release of official records outside the Department of 
the Navy in the absence of a court order is governed by the Privacy Act 
(5 U.S.C. 552a) and the Freedom of Information Act (5 U.S.C. 552). The 
following sources pertain: SECNAVINST 5211.5 series (Privacy) and 
SECNAVINST 5720.42 series (Freedom of Information).
    (b) Release of JAG Manual Investigations, Court-Martial Records, 
Articles 69 and 73 Petitions, and Article 138 Complaints of Wrongs. 
Except as provided in this section, only the Assistant Judge Advocates 
General (Civil Law) and (Military Law) shall make determinations 
concerning the release of the records covered herein if less than a 
release of the complete requested record will result. In all other 
instances the Deputy Assistant Judge Advocates General, who have 
cognizance of the record(s) in issue, may release such records. Local 
record holders are reminded that the authority to release records does 
not necessarily include denial authority.
    (1) JAG Manual Investigations (including enclosures). Any request 
for release outside the Department of the Navy shall be forwarded to the 
Assistant Judge Advocate General (Military Law) for determination, 
except that Privacy Act requests for release shall be forwarded to the 
Assistant Judge Advocate General (Civil Law) for determination.
    (2) Court-martial records and Articles 69 and 73 petitions. These 
are matters of public record and may be released by any local holder. 
Court-martial records should be released only following proper 
authentication.
    (3) Article 138 Complaints of Wrongs. Forward as in paragraph (b)(1) 
of this section.
    (c) Affirmative claims files. Affirmative claims files (including 
Medical Care Recovery Act files), except to the extent that such files 
contain copies of reports of investigations prepared under the Manual of 
the Judge Advocate General, or classified or privileged information, may 
be released by local holders to insurance companies to support claims; 
to civilian attorneys representing the injured party's and the 
Government's interests; and to other components of the Department of 
Defense, without the prior approval of the Judge Advocate General, 
provided that the amount of the claim is within the monetary settlement 
authority of the releaser. When the request for production involves 
material related to claims in favor of the Government, notification 
should be made to the affirmative claims office at the naval legal 
service office having territorial responsibility for the area.
    (d) Accounting for disclosures of records from systems of records. 
When records located in a ``system of records'' are released, the 
official responsible for releasing the records shall consult SECNAVINST 
5211.5 series regarding the requirement that accountings of the 
disclosures be maintained. Appendix A-3-a of the Manual of the Judge

[[Page 219]]

Advocate General is recommended for this purpose.


(1 CFR 18.14, and part 21, subpart B)

[45 FR 8599, Feb. 8, 1980, as amended at 48 FR 4466, Feb. 1, 1983]



Sec. 720.32  Certificates of full faith and credit.

    The Judge Advocate General, the Deputy Judge Advocate General, or 
any Assistant Judge Advocate General is authorized to execute 
certificates of full faith and credit certifying the signatures and 
authority of officers of the Department of the Navy.

[38 FR 6021, Mar. 6, 1973]



   Subpart D--Compliance With Court Orders by Department of the Navy 
    Members, Employees, and Family Members Outside the United States

    Authority: DoD Directive 5525.9, 54 FR 296, 32 CFR part 146.

    Source: 55 FR 47876, Nov. 16, 1990, unless otherwise noted.



Sec. 720.40  Purpose.

    This instruction:
    (a) Implements 32 CFR part 146.
    (b) Establishes policy and procedures for requesting the return to 
the United States of, or other action affecting, Department of the Navy 
(DON) personnel and employees serving outside the United States, and 
family members accompanying them, in compliance with court orders.



Sec. 720.41  Definitions.

    Court. Any judicial body in the United States with jurisdiction to 
impose criminal sanctions on a Department of the Navy member, employee, 
or family member.
    Employee. A civilian employed by the Department of the Navy or a 
component service, including an individual paid from non-appropriated 
funds, who is a citizen or national of the United States.
    Family member. A spouse, natural or adopted child, or other lawful 
dependent of a Department of the Navy employee or member accompanying 
the Department of the Navy member or employee assigned to duty outside 
the United States.
    Felony. A criminal offense that is punishable by incarceration for 
more than one year, regardless of the sentence that is imposed for 
commission of that offense.
    Member. An individual on active duty in the Navy, Naval Reserve, 
Marine Corps, or Marine Corps Reserve.
    Request for return. Any request or order received from a court, or 
from federal, state or local authorities concerning a court order, for 
the return to the United States of members, employees, or family 
members, for any reason listed in Sec. 720.42.
    Respondent. A member, employee, or family member whose return to the 
United States has been requested, or with respect to whom other 
assistance has been requested under this instruction.
    Responsible Official. Officials designated in this instruction to 
act on a request to return, or take other action affecting, members, 
employees or family members to the United States under this instruction.
    United States. The 50 states, the District of Columbia, Puerto Rico, 
Guam, the Northern Mariana Islands, American Samoa, and the Virgin 
Islands.



Sec. 720.42  Policy.

    (a) It is Department of the Navy policy to cooperate, as prescribed 
in this instruction, with courts and federal, state and local officials 
in enforcing court orders. The Department of the Navy will cooperate 
with requests when such action is consistent with mission requirements 
(including operational readiness), the provisions of applicable 
international agreements, and ongoing Department of Defense (DoD) 
investigations and courts-martial.
    (b) Every reasonable effort will be made to resolve the matter 
without the respondent returning to the United States, or other action 
being taken against the respondent under this instruction.
    (c) Requests to return members for felonies or for contempt 
involving unlawful or contemptuous removal of a child from the 
jurisdiction of a court or the custody of a parent or other person

[[Page 220]]

awarded custody by a court order will normally be granted, but only if 
the member cannot resolve the issue with the court without return to the 
United States. When the member's return is inconsistent with mission 
requirements, applicable international agreements, or ongoing DoD 
investigations or courts-martial, DoD approval of denial will be 
requested.
    (d) For all other requests involving members, return will be based 
on the circumstances of the individual case as provided in this 
instruction.
    (e) Members will normally be returned on a temporary additional duty 
(TAD) basis unless there are compelling reasons the return should be a 
permanent change of duty station (PCS).
    (f) The involuntary return of employees or family members in 
response to a request for return is not authorized. However, the 
following action will be taken:
    (1) Employees will be strongly urged to comply with court orders. 
Failure to comply with court orders involving felonies or contempt 
involving unlawful or contemptuous removal of a child from the 
jurisdiction of the court or the custody of a parent or other person 
awarded custody by a court order will normally require processing for 
adverse action, up to and including removal from federal service. 
Failure to comply with other court orders may require adverse action, 
depending on the circumstances of the individual case.
    (2) Family members will be strongly encouraged to comply with court 
orders. Family members who fail to comply with court orders involving 
felonies or contempt involving unlawful or contemptuous removal of a 
child from the jurisdiction of the court or the custody of a parent or 
other person awarded custody by a court order will normally have their 
command sponsorship removed. Failure to comply with other court orders 
may also result in removal of command sponsorship, depending on the 
circumstances of the individual case.
    (g) To facilitate prompt resolution of requests for return of 
members, minimize the burden on operating units, and to provide 
consistency during initial implementation of this new program, a limited 
number of responsible officials, designated in Sec. 720.44, will respond 
to requesting officials.



Sec. 720.43  Points of contact.

    (a) Authorities issuing requests for return or for other action 
under this instruction may contact the following activities:
    (1) Chief of Naval Personnel (Pers-14), Washington, DC 20370-5000 
(For Navy members and their family members).
    (2) Commandant, U.S. Marine Corps (Code JAR), Washington, DC 20380-
0001 (For Marine Corps members and their family members).
    (3) Director, Office of Civilian Personnel Management (Code OOL), 
800 N. Quincy Street, Arlington, VA 22203-1998 (For civilian personnel, 
including non-appropriated fund employees and their family members).
    (b) Upon receipt of a request for action under this instruction, the 
Office of Civilian Personnel Management will forward the request to the 
appropriate responsible official for action in accordance with 
Sec. 720.44.



Sec. 720.44  Responsible officials.

    The following officials are designated responsible officials for 
acting on requests to return or to take other action affecting members, 
employees or family members to the United States.
    (a) The Chief of Naval Personnel (CHNAVPERS) for requests involving 
Navy members and their family members who are not employees. The 
CHNAVPERS may delegate this authority within his headquarters, not below 
the 0-6 level for routine matters and not lower than the flag officer 
level for decisions to deny the request for return.
    (b) The Commandant of the Marine Corps (CMC) for requests involving 
Marine Corps members and their family members who are not employees. The 
CMC may delegate this authority within his headquarters, not below the 
0-6 level for routine matters and no lower that the general officer 
level for decisions to deny the request for return.
    (c) The local commanding officer or officer in charge for requests 
involving employees and their family members who are not active duty 
military members.

[[Page 221]]

    (d) The Assistant Secretary of the Navy (Manpower and Reserve 
Affairs) (ASN(M&RA)) for requests not covered by Secs. 720.44 (a) 
through (c).



Sec. 720.45  Procedures.

    (a) If the request pertains to a felony or to contempt involving the 
unlawful or contemptuous removal of a child from the jurisdiction of a 
court or the custody of a parent or another person awarded custody by 
court order, and the matter cannot be resolved with the court without 
the respondent returning to the United States:
    (1) For members: The responsible official shall direct the 
commanding officer or officer in charge to order the member to return to 
the United States. Failure to comply will normally be the basis for 
disciplinary action against the member.
    (2) For employees, military and civilian family members: The 
responsible official shall strongly encourage the respondent to comply. 
Failure to comply may subject employees to adverse action, to include 
removal from the Federal service, and subject military and civilian 
family members to withdrawal of command sponsorship.
    (b) For all other requests when the matter cannot be resolved with 
the court without returning the respondent to the United States, the 
responsible official shall take the action described in this instruction 
when deemed appropriate with the facts and circumstances of each 
particular case, following consultation with legal staff.
    (c) When a member's return is inconsistent with mission 
requirements, the provisions of applicable international agreements, or 
ongoing DoD investigations and courts-martial, the Department of the 
Navy will ask DoD to approve denial of the request for the military 
members's return. To initiate this action, there must be an affirmative 
showing of articulable harm to the unit's mission or violation of an 
international agreement.
    (d) When a responsible official has determined a request for return 
is apparently based on an order issued by a court of competent 
jurisdiction, the responsible official shall complete action on the 
request for return within 30 days of receipt of the request for return 
by the responsible official, unless a delay is authorized by the 
ASN(M&RA).
    (e) When a delay to complete the action is warranted, the ASN(M&RA) 
will grant a 45 day delay, and provide a copy of that approval to the 
Assistant Secretary of Defense (Force Management & Personnel (ASD(FM&P)) 
and the General Counsel, DoD. The 45 day period begins upon request by 
the responsible official of the request for return. Conditions which, 
when accompanied by full supporting justification, will warrant the 
granting of the 45 day delay are:
    (1) Efforts are in progress to resolve the matter to the 
satisfaction of the court without the respondent's return to the United 
States.
    (2) To provide sufficient time for the respondent to provide 
evidence to show legal efforts to resist the request or to show 
legitimate cause for noncompliance.
    (3) To provide commanding officers an opportunity to detail the 
specific effect on command mission and operational readiness anticipated 
from the loss of the member or Department of the Navy employee, and to 
present facts relating to any international agreement, or ongoing DoD 
investigation or courts-martial.
    (f) A commanding officer or officer in charge who receives a request 
for the return of, or other action affecting, a member, family member, 
or employee not of his/her command will forward the request to the 
appropriate commanding officer or officer in charge, copy to the 
responsible official, and advise both of them by message that a request 
for return or other action has been forwarded to them.
    (g) A commanding officer or officer in charge who receives a request 
for the return of, or other action affecting, a member, family member, 
or employee of his/her command will:
    (1) Notify the respondent of the right to provide evidence to show 
legal efforts to resist the request, or to show legitimate cause for 
noncompliance for inclusion in the submission to the responsible 
official.
    (2) For members and their family members who are not employees, 
forward the request immediately to the

[[Page 222]]

appropriate responsible official, together with:
    (i) Any information the individual desires to provide to show legal 
efforts to resist the request, or otherwise to show legitimate cause for 
noncompliance.
    (ii) Facts detailing the specific impacts on command missions and 
readiness anticipated from loss of the member.
    (iii) Facts relating to any international agreements or ongoing DoD 
investigations or courts-martial involving the respondent.
    (iv) Information regarding conditions expected to interfere with a 
member's return to the command after completion of proceedings. If, in 
the opinion of the commanding officer, there are compelling reasons for 
the member to be returned to the United States PCS, provide full 
justification to support that recommendation to the cognizant officer.
    (3) If a delay in processing is warranted under Sec. 720.42 or 
Sec. 720.45(e), make a recommendation with supporting justification to 
the responsible official.
    (4) Monitor, and update as necessary, information provided to the 
responsible official.
    (h) The responsible official shall:
    (1) Determine whether the request is based on an order issued by a 
court of apparent competent jurisdiction and if so, complete action on 
the request no later than 30 days after its receipt by the responsible 
official. If a conflicts of law issue is presented between competing 
state interests, or between a state and a foreign host-nation, or 
between two different foreign nations, the matter shall be referred to 
the ASN(M&RA) on the first issue and to the Judge Advocate General (Code 
10) on the second and third issues.
    (2) Encourage the respondent to attempt to resolve the matter to the 
satisfaction of the court or other requesting authority without return 
of or other action affecting the member, employee, or family member.
    (3) When a delay to complete action under this section is warranted, 
request the delay from ASN(M&RA) with full supporting justification.
    (4) Examine all information the respondent desires to provide to 
show legal efforts to resist the request, or otherwise to show 
legitimate cause for noncompliance.
    (5) Requests for exception from the requirements of this instruction 
shall be submitted, with supporting justification, to the ASN(M&RA) for 
submission to the ASD(FM&P).
    (6) If a member will be ordered to return to the United States, 
determine if the member will be ordered TAD or PCS and advise the 
member's commanding officer of the determination.
    (7) If a member will be ordered to return to an appropriate port of 
entry to comply with a request, ensure:
    (i) The requesting officer has given official notification to the 
responsible official that the requesting official or other appropriate 
party will initiate action with the receiving jurisdiction to secure the 
member's delivery/extradition, as appropriate, per chapter 6 of the 
Manual of the Judge Advocate General, and provide for all costs incident 
thereto, including any escort if desired.
    (ii) If applicable, the necessary accounting data are provided to 
the commanding officer of the member or orders are issued.
    (iii) The member has arranged satisfactory foster care for any 
lawful minor dependents who will be left unaccompanied overseas upon the 
member's return to the United States.
    (8) Notify the requesting official at least 10 days before the 
member's return to the selected port of entry.
    (9) In the case of an employee or of a family member, the commanding 
officer or officer in charge of the activity to which the family 
member's sponsor is attached, or by which the employee is employed, will 
carry out the following steps:
    (i) An employee shall be strongly encouraged to comply with the 
court order or other request for return. Failure to comply may be the 
basis for adverse action to include removal from Federal service. 
Adverse action should only be taken after coordination with the 
cognizant civilian personnel office and legal counsel and in compliance 
with Civilian Personnel Instruction 752.
    (ii) If a family member of either a member or an employee is the 
subject of a request for return, the family

[[Page 223]]

member shall be strongly encouraged to comply with the court order. 
Failure to respond may be the basis for withdrawal of command 
sponsorship of the family member.
    (10) Report promptly to the ASN(M&RA) any actions taken under 
Sec. 720.45 (a) or (b).
    (i) The ASN(M&RA):
    (1) May grant delays of up to 45 days from the date of a request for 
delay in accordance with Sec. 720.45(e).
    (2) Will report promptly all delays of requests for the return of 
members to the ASD(FM&P) and to the General Counsel of the Department of 
Defense.
    (3) Will request from the ASD(FM&P), when warranted, exception to 
the policies and procedures of DoD Directive 5525.9 of December 27, 
1988.
    (4) Consolidate and forward reports of action taken under 
Sec. 720.45 (a) or (b) to the ASD(FM&P) and the General Counsel, DoD as 
required by DoD Directive 5525.9 of December 27, 1988.



Sec. 720.46  Overseas screening programs.

    The Chief of Naval Operations (CNO) and the CMC shall incorporate 
procedures requiring members and employees to certify they have legal 
custody of all minor dependents accompanying them outside the United 
States into service overseas screening programs.



Sec. 720.47  Report.

    The report requirement in this instruction is exempt from reports 
control by SECNAVINST 5214.2B.

                        PARTS 721-722 [RESERVED]



PART 723--BOARD FOR CORRECTION OF NAVAL RECORDS--Table of Contents




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.

    Source: 62 FR 8166, Feb. 24, 1997, unless otherwise noted.



Sec. 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.



Sec. 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 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.



Sec. 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

[[Page 224]]

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 Sec. 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

[[Page 225]]

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.



Sec. 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 Sec. 723.5(b)(2).
    (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.



Sec. 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/

[[Page 226]]

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 
Sec. 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.



Sec. 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 Sec. 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,

[[Page 227]]

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,
    (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.



Sec. 723.7  Action by the Secretary.

    (a) General. The record of proceedings, except in cases finalized by 
the Board under the authority delegated in Sec. 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 
Sec. 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 Sec. 723.9.



Sec. 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

[[Page 228]]

delegated in Sec. 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 
Sec. 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 
Sec. 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.



Sec. 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.



Sec. 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.

[[Page 229]]

    (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 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.



Sec. 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 Sec. 723.3(e)(5) and Sec. 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.



PART 724--NAVAL DISCHARGE REVIEW BOARD--Table of Contents




                         Subpart A--Definitions

Sec.
724.101 Naval Service.
724.102 Naval Discharge Review Board.
724.103 NDRB panel.
724.104 NDRB Traveling Panel.
724.105 President of the NDRB.
724.106 Presiding Officer, NDRB Panel.
724.107 Discharge.
724.108 Administrative discharge.
724.109 Types of administrative discharges.

[[Page 230]]

724.110 Reason/basis for administrative discharge.
724.111 Punitive discharge.
724.112 Clemency discharge.
724.113 Application.
724.114 Applicant.
724.115 Next of kin.
724.116 Council/representative.
724.117 Discharge review.
724.118 Documentary discharge review.
724.119 Personal appearance discharge review.
724.120 National Capital Region (NCR).
724.121 Decisional document.
724.122 Recorder, NDRB Panel.
724.123 Complainant.

      Subpart B--Authority/Policy for Departmental Discharge Review

724.201 Authority.
724.202 Statutory/Directive Authority.
724.203 Broad objectives of naval discharge review.
724.204 Eligibility for naval discharge review.
724.205 Authority for review of naval discharges; jurisdictional 
          limitations.
724.206 Jurisdictional determinations.
724.207 Disposition of applications for discharge review.
724.208 Implementation of NDRB decisions.
724.209 Evidence supporting applications.
724.210 Review action in instances of unavailable records.
724.211 Regularity of government affairs.
724.212 Availability of records.
724.213 Attendance of witnesses.
724.214 Applicant's expenses.
724.215 Military representation.
724.216 Failure to appear at a hearing or respond to a scheduling 
          notice.
724.217 Limitation--Reconsiderations.
724.218 Limitation--Continuance and Postponements.
724.219 Withdrawal of application.
724.220 Review on motion of the NDRB.
724.221 Scheduling of discharge reviews.
724.222 Personal appearance discharge hearing sites.
724.223 NDRB support and augmentation by regular and reserve activities.
724.224 Court-martial specifications, presumption concerning.

  Subpart C--Director, Naval Council of Personnel Boards and President 
 Naval Discharge Review Board; Responsibilities in Support of the Naval 
                         Discharge Review Board

724.301 Mission.
724.302 Functions: Director, Naval Council of Personnel Boards.
724.303 Functions: President, Naval Discharge Review Board.
724.304 Responsibility for Department of the Navy suppport of the Naval 
          Discharge Review Board.
724.305 Functions of the CMC and CNO.
724.306 Functions of the Commander, Naval Medical Command.
724.307 Functions of the Commander, Naval Reserve Force.

 Subpart D--Principal Elements of the Navy Department Discharge Review 
                                 System

724.401 Applicants.
724.402 Naval Discharge Review Board.
724.403 President, Naval Discharge Review Board.
724.404 Director, Naval Council of Personnel Boards.
724.405 Commandant of the Marine Corps or the Commander, Naval Military 
          Personnel Command.
724.406 Commander, Naval Medical Command.
724.407 Commander, Naval Reserve Force.
724.408 Secretary of the Navy.

Subpart E--Procedural Rights of the Applicant and Administrative Actions 
                     Preliminary to Discharge Review

724.501 Procedural rights of the applicant.
724.502 Actions to be taken by the applicant preliminary to discharge 
          review.
724.503 NDRB response to application for discharge review.
724.504 NDRB actions preliminary to discharge review.

      Subpart F--Naval Discharge Review Board Mission and Functions

724.601 General.
724.602 Mission.
724.603 Functions.

       Subpart G--Organization of the Naval Discharge Review Board

724.701 Composition.
724.702 Executive management.
724.703 Legal counsel.

        Subpart H--Procedures of the Naval Discharge Review Board

724.801 Matters to be considered in discharge review.
724.802 Applicant's responsibilities.
724.803 The decisional document.
724.804 Decision process.
724.805 Response to items submitted as issues by the applicant.
724.806 Decisional issues.
724.807 Record of NDRB proceedings.
724.808 Issuance of decisions following discharge review.

[[Page 231]]

724.809 Final disposition of the record of proceedings.
724.810 Availability of Naval Discharge Review Board documents for 
          public inspection and copying.
724.811 Privacy Act information.
724.812 Responsibilities of the Reading Room.
724.813 The recommendation of the NDRB president.
724.814 Secretarial Review Authority (SRA).
724.815 Complaints.

                Subpart I--Standards for Discharge Review

724.901 Objective of discharge review.
724.902 Propriety of the discharge.
724.903 Equity of the discharge.

Appendix A to Part 724--Policy Statement by the Secretary of Defense--
          Addressing Certain Categories of Discharges
Appendix B to Part 724--Oath or Affirmation to be Administered to 
          Discharge Review Board Members
Appendix C to Part 724--Samples of Formats Employed by the Naval 
          Discharge Review Board
Appendix D to Part 724--Veterans' Benefits

    Authority: 5 U.S.C. 301; 10 U.S.C. 1553.

    Source: 50 FR 10943, Mar. 19, 1985, unless otherwise noted.

    Editorial Note: Nomenclature changes to part 724 appear at 65 FR 
62616, Oct. 19, 2000.



                         Subpart A--Definitions



Sec. 724.101  Naval Service.

    The Naval Service is comprised of the uniformed members of the 
United States Navy and the United States Marine Corps, including active 
and inactive reserve components.



Sec. 724.102  Naval Discharge Review Board.

    An administrative board, referred to as the ``NDRB'' established by 
the Secretary of the Navy pursuant to title 10 U.S.C., section 1553, for 
the review of discharges of former members of the Naval Service.



Sec. 724.103  NDRB panel.

    An element of the NDRB, consisting of five members, authorized to 
review discharges. In plenary review session, an NDRB panel acts with 
the authority delegated by the Secretary of the Navy to the Naval 
Discharge Review Board.



Sec. 724.104  NDRB Traveling Panel.

    An NDRB Panel that travels for the purpose of conducting personal 
appearances discharge review hearings at locations outside of the 
National Capital Region (NCR).



Sec. 724.105  President of the NDRB.

    A senior officer of the Naval Service designated by the Secretary of 
the Navy who is responsible for the direct supervision of the discharge 
review function within the Naval Service. (See subpart E).



Sec. 724.106  Presiding Officer, NDRB Panel.

    The senior member of an NDRB Panel shall normally be the Presiding 
Officer. He/she shall convene, recess and adjourn the NDRB Panel as 
appropriate.



Sec. 724.107  Discharge.

    In the context of the review function prescribed by 10 U.S.C. 1553, 
a discharge or dismissal is a complete separation from the Naval 
Service, other than one pursuant to the sentence of a general court-
martial. By reason of usage, the term ``discharge'' is predominantly 
applicable to the separation of enlisted personnel for any reason, and 
the term ``dismissal'' to the separation of officers as a result of 
Secretarial or general court-martial action. In the context of the 
mission of the NDRB, the term ``discharge'' used here shall, for purpose 
of ease of expression, include any complete separation from the naval 
service other than that pursuant to the sentence of general court-
martial. The term ``discharge'' also includes the type of discharge and 
the reason/basis for that discharge, e.g., Other Than Honorable/
Misconduct (Civil Conviction).



Sec. 724.108  Administrative discharge.

    A discharge upon expiration of enlistment or required period of 
service, or prior thereto, in a manner prescribed by the Commandant of 
the Marine Corps or the Commander, Naval Personnel Command, but 
specifically excluding separation by sentence of a general court-
martial.

[65 FR 62616, Oct. 19, 2000]

[[Page 232]]



Sec. 724.109  Types of administrative discharges.

    (a) A determination reflecting a member's military behavior and 
performance of duty during a specific period of service. The three 
characterizations are:
    (1) Honorable. A separation from the naval service with honor. The 
issuance of an Honorable Discharge is contingent upon proper military 
behavior and performance of duty.
    (2) Under Honorable Conditions (also termed General Discharge). A 
separation from the naval service under honorable conditions. The 
issuance of a discharge under honorable conditions is contingent upon 
military behavior and performance of duty which is not sufficiently 
meritorious to warrant an Honorable Discharge.
    (3) Under Other Than Honorable Conditions (formerly termed 
Undesirable Discharge). A separation from the naval service under 
conditions other than honorable. It is issued to terminate the service 
of a member of the naval service for one or more of the reasons/basis 
listed in the Naval Military Personnel Manual, Marine Corps Separation 
and Retirement Manual and their predecessor publications.
    (4) Entry Level Separation. (i) A separation initiated while a 
member is in entry level status will be described as an Entry Level 
Separation except in the following circumstances:
    (a) When characterization under Other Than Honorable Conditions is 
authorized and is warranted by the circumstances of the case; or
    (b) When characterization of service as Honorable is clearly 
warranted by the presence of unusual circumstances including personal 
conduct and performance of naval duty and is approved on a case-by-case 
basis by the Secretary of the Navy. This characterization will be 
considered when the member is separated by reason of Selected Changes in 
Service Obligation, Convenience of the Government, or Disability.
    (ii) With respect to administrative matters outside the 
administrative separation system that require a characterization of 
service as Honorable or General, an Entry Level Separation shall be 
treated as the required characterization. An Entry Level Separation for 
a member of a Reserve component separated from the Delayed Entry Program 
is under honorable conditions.
    (b) [Reserved]

[50 FR 10943, Mar. 19, 1985, as amended at 51 FR 44909, Dec. 15, 1986; 
65 FR 62616, Oct. 19, 2000]



Sec. 724.110  Reason/basis for administrative discharge.

    The terms ``reason for discharge'' and ``basis for discharge'' have 
the same meaning. The first is a Navy term and the second is a Marine 
Corps term. These terms identify why an administrative discharge was 
issued, e.g., Convenience of the Government, Misconduct. Reasons/basis 
for discharge are found in the Naval Military Personnel Manual and 
Marine Corps Separation and Retirement Manual as well as predecessor 
publications.



Sec. 724.111  Punitive discharge.

    A discharge awarded by sentence of a court-martial. There are two 
types of punitive discharges:
    (a) Bad conduct. A separation from the naval service under 
conditions other than honorable. It may be effected only as a result of 
the approved sentence of a general or special court-martial.
    (b) Dishonorable. A separation from the naval service under 
dishonorable conditions. It may be effected only as a result of the 
approved sentence of a general court-martial.



Sec. 724.112  Clemency discharge.

    (a) The clemency discharge was created by the President on September 
16, 1974, in his Proclamation 4313, ``Announcing a Program for the 
Return of Vietnam Era Draft Evaders and Military Deserters.'' Upon 
issuance to individuals who have an undesirable discharge or a punitive 
discharge, a clemency discharge serves as a written testimonial to the 
fact that the individual has satisfied the requirements of the 
President's program, and has fully earned his/her return to the 
mainstream of American society in accordance with that program.
    (b) The clemency discharge is a neutral discharge, neither honorable 
nor less than honorable. It does not effect a change in the 
characterization of the

[[Page 233]]

individual's military service as havng been under other than honorable 
condition, nor does it serves to change, seal, erase or in any way 
modify the individual's past military record. Therefore, if the 
underlying discharge was issued as a result of a general court-martial, 
the issuance of a Clemency Discharge does not subject the underlying 
characterization to review under 10 U.S.C. 1553. Clemency discharges are 
issued by the Commander, Naval Military Personnel Command or the 
Commandant of the Marine Corps when an individual has met the 
requirements of the Presidential Proclamation.



Sec. 724.113  Application.

    In the context of this Manual, a written application to the NDRB for 
the review of a discharge submitted by a former member of the naval 
service or, where a former member is deceased or incompetent, by spouse, 
next of kin or legal representative. Department of Defense Form 293 must 
be used for the application.



Sec. 724.114  Applicant.

    A former member of the naval service who has been discharged 
administratively in accordance with the directives of the naval service 
or by sentence of a special court-martial under title 10 U.S.C. 801 et 
seq. (Uniform Code of Military Justice) and, in accordance with 
statutory and regulatory provisions:
    (a) Whose case is considered by the NDRB at the request of the 
former member, of, if authorized under Sec. 724.113, the surviving 
spouse, next-of-kin or legal representative, or
    (b) Whose case is considered on the NDRB's own motion.



Sec. 724.115  Next of kin.

    The person or persons in the highest category of priority as 
determined by the following list (categories appear in descending order 
of priority): Surviving legal spouse; children (whether by current or 
prior marriage) age 18 years or older in descending precedence by age; 
father or mother, unless by court order custody has been vested in 
another (adoptive parent takes precedence over natural parent); siblings 
(whole or half) age 18 years or older in descending precedence by age; 
grandfather or grandmother; any other relative (precedence to be 
determined in accordance with the civil law of descent of the deceased 
former member's state of domicile at time of death).



Sec. 724.116  Council/representative.

    An individual or agency designated by the applicant who agrees to 
represent the applicant in a case before the NDRB. It includes, but is 
not limited to: a lawyer who is a member of the bar of a Federal Court 
or of the highest court of a State; an accredited representative 
designated by an organization recognized by the Administrator of 
Veterans Affairs; a representative from a State agency concerned with 
veterans affairs; or a representative from private organizations or 
local Government agencies.



Sec. 724.117  Discharge review.

    A nonadversary administrative reappraisal at the level of the Navy 
Department of discharges from the naval service. The object of the 
reappraisal is to determine whether the discharge should be changed, and 
if so, the nature of the change. This reappraisal includes the type and 
reason/basis for separation, the procedures followed in accomplishing 
separation, and the characterization of service. This term includes 
determinations made under the provisions of 38 U.S.C. 3103(2).



Sec. 724.118  Documentary discharge review.

    A formal session of the NDRB convened for the purpose of reviewing, 
on the basis of documentary data, an applicant's discharge. The 
Documentary data shall include the application together with all 
information accompanying that application, available service and medical 
records, and any other information considered relevant by the NDRB.



Sec. 724.119  Personal appearance discharge review.

    A formal session of the NDRB convened for the purpose of reviewing 
an applicant's discharge on the basis of a personal appearance, as well 
as documentary data. The personal appearance

[[Page 234]]

may be by the applicant or by a representative of the applicant, or 
both.



Sec. 724.120  National Capital Region (NCR).

    The District of Columbia; Prince Georges and Montgomery Counties in 
Maryland; Arlington, Fairfax, Loudoun, and Prince William Counties in 
Virginia; and all cities and towns included within the outer boundaries 
of the foregoing counties.



Sec. 724.121  Decisional document.

    The written recordation of the applicant's summary of service, the 
issue or issues presented together with any evidence offered in support 
of the application, the NDRB's response to the issue or issues, the 
votes of the members of the panel, and any recommendations or responses 
by the President of the NDRB or the Secretarial Reviewing Authority 
(SRA). The decisional document is promulgated by the ``en bloc letter''.



Sec. 724.122  Recorder, NDRB Panel.

    A panel member responsible for briefing an applicant's case from the 
documentary evidence available prior to a discharge review, presenting 
the brief to the panel considering the application, performing other 
designated functions during personal appearance discharge hearings, and 
drafting the decisional document subsequent to the hearing.



Sec. 724.123  Complainant.

    A former member of the Armed Forces (or the former member's counsel) 
who submits a complaint under 32 CFR Part 70 with respect to the 
decisional document issued in the former member's own case; or a former 
member of the Armed Forces (or the former member's counsel) who submits 
a complaint under reference (b) stating that correction of the 
decisional document will assist the former member in preparing for an 
administrative or judicial proceeding in which the former member's own 
discharge will be at issue.



      Subpart B--Authority/Policy for Departmental Discharge Review



Sec. 724.201  Authority.

    The Naval Discharge Review Board, established pursuant to 10 U.S.C. 
1553, is a component of the Naval Council of Personnel Boards. By 
SECNAVINST 5730.7 series, the Assistant Secretary of the Navy (Manpower 
and Reserve Affairs) is authorized and directed to act for the Secretary 
of the Navy within his/her assigned area of responsibility and exercises 
oversight over the Naval Council of Personnel Boards. SECNAVINST 
5420.135 series of July 15, 1983 states the organization, mission, 
duties and responsibilities of the Naval Council of Personnel Boards to 
include the Naval Discharge Review Board. The Chief of Naval Operations 
established the Office of Naval Disability Evaluation and Navy Council 
of Personnel Boards on 1 October 1976 (OPNAVNOTE 5450 Ser 09B26/535376 
of 9 Sep 1976 (Canc frp: Apr 77)). The Chief of Naval Operations 
approved the change in name of the Office of Naval Disability Evaluation 
and Navy Council of Personnel Boards to Naval Council of Personnel 
Boards on 1 February 1977 (OPNAVNOTE 5450 Ser 09B26/32648 of 24 Jan 1977 
(Canc frp: Jul 77)) with the following mission statement:

    To administer and supervise assigned boards and councils.

[50 FR 10943, Mar. 19, 1985, as amended at 65 FR 62616, Oct. 19, 2000]



Sec. 724.202  Statutory/Directive Authority.

    The NDRB, in its conduct of discharge review, shall be guided by the 
applicable statutes, regulations, and manuals and directives of the 
Department of the Navy, and other written public expressions of policy 
by competent authority:
    (a) 10 U.S.C. 1553, Review of discharge or dismissal:
    (1) ``The Secretary concerned shall, after consulting the 
Administrator of Veterans' Affairs, establish a board of review, 
consisting of five members, to review the discharge or dismissal (other 
than a discharge or dismissal by sentence of a general court-martial) of 
any former member of an armed force

[[Page 235]]

under the jurisdiction of his/her department upon its own motion or upon 
the request of the former member or, if he/she is dead, his/her 
surviving spouse, next of kin, or legal representative. A motion or 
request for review must be made within 15 years after the date of the 
discharge or dismissal.''
    (2) A board established under this section may, subject to review by 
the Secretary concerned, change a discharge or dismissal, or issue a new 
discharge, to reflect its findings.
    (3) A review by the board established under this section shall be 
based on the records of the armed forces concerned and such other 
evidence as may be presented to the board. A witness may present 
evidence to the board in person or by affidavit. A person who requests a 
review under this section may appear before the board in person or by 
counsel or an accredited representative or an organization recognized by 
the Administrator of Veterans' Affairs under title 38 U.S.C. 3401 et 
seq.''.
    (b) Pub. L. 95-126. See appendix D.
    (c) 32 CFR part 70. This provides for uniform standards and 
procedures for review of discharges from the military services of the 
Department of Defense. The provisions of 32 CFR part 70 are incorporated 
in this Manual.
    (d) The Secretary of Defense memoranda dated August 13, 1971 and 
April 28, 1972 (NOTAL). These directed a review for recharacterization 
of (1) administrative discharges under other than honorable conditions 
issued solely on the basis of personal use of drugs or possession of 
drugs for the purpose of such use, and (2) punitive discharges and 
dismissals issued solely for conviction of personal use of drugs and 
possession for the purpose of such use for those discharges executed as 
a result of a case completed or in process on or before July 7, 1971. 
(See appendix B).
    (e) 32 CFR part 41. This prescribes policy, standards and procedures 
which govern the administrative separation of enlisted persons from the 
Armed Forces.



Sec. 724.203  Broad objectives of naval discharge review.

    Naval discharge review shall have as its broad objectives:
    (a) The furtherance of good order and discipline.
    (b) The correction of injustice or inequity in the discharge issued.
    (c) The correction of administrative or clerical errors.



Sec. 724.204  Eligibility for naval discharge review.

    Any former member of the Naval Service, eligible for review under 
reference (a) or surviving spouse, next of kin or legal representative, 
shall upon submission of an application be afforded a review of the 
member's discharge from the Naval Service as provided in Secs. 724.205 
and 724.206. Discharge review may also be initiated on the motion of the 
NDRB (See Sec. 724.220).



Sec. 724.205  Authority for review of naval discharges; jurisdictional limitations.

    (a) The Board shall have no authority to:
    (1) Review a discharge or dismissal resulting from a general court-
martial;
    (2) Alter the judgment of a court-martial, except the discharge or 
dismissal awarded may be changed for purposes of clemency;
    (3) Revoke any discharge or dismissal;
    (4) Reinstate a person in the naval service;
    (5) Recall a former member to active duty;
    (6) Change a reenlistment code;
    (7) Make recommendations for reenlistment to permit entry in the 
naval service or any other branch of the Armed Forces;
    (8) Cancel or void enlistment contracts; or
    (9) Change the reason for discharge from or to a physical disability
    (b) Review of naval discharges shall not be undertaken in instances 
where the elapsed time between the date of discharge and the date of 
receipt of application for review exceeds fifteen years.



Sec. 724.206  Jurisdictional determinations.

    The determination as to whether the NDRB has jurisdiction in any 
case shall be predicated on the policy stated in Sec. 724.205. Decisions 
shall be made by

[[Page 236]]

administrative action without referral to the NDRB. Normally, they shall 
be made by the Executive Secretary of the NDRB, or they may be referred 
to the President, NDRB.



Sec. 724.207  Disposition of applications for discharge review.

    One of three dispositions will be made of an application for review 
of a discharge:
    (a) The application may be rejected for reason of:
    (1) Absence of jurisdiction;
    (2) Previous review on the same evidence; or
    (b) The application may be withdrawn by the applicant; or
    (c) The application may be accepted and the discharge reviewed by 
the NDRB, resulting in,
    (1) Change to the discharge, or
    (2) No change.



Sec. 724.208  Implementation of NDRB decisions.

    The Commandant of the Marine Corps and the Chief of Naval Operations 
are responsible for implementing Naval Discharge Review Board decisions 
within their respective services. The Commandant of the Marine Corps 
shall be notified of decisions in each discharge review case and shall 
implement the decisions within the Marine Corps. The Commander, Naval 
Military Personnel Command, acting for the Chief of Naval Operations and 
Chief of Naval Personnel, shall be notified of decisions in each 
discharge review case and shall implement the decisions within the Navy.



Sec. 724.209  Evidence supporting applications.

    In the absence of law, evidence or policy to the contrary, naval 
discharges shall be considered just, equitable and proper as issued. 
When hearings are scheduled, applicants must be prepared to present 
their case at the scheduled time. In the absence of any other evidence, 
naval discharge review shall be undertaken by examination of available 
service and health records of the applicant. Normally, the 
responsibility for presenting evidence from outside available service 
and health records shall rest with the applicant. Applications in which 
elements of relevant information are obviously omitted will be returned 
for completion and resubmission.



Sec. 724.210  Review action in instances of unavailable records.

    (a) In the event that Department of the Navy personnel or health 
records associated with a requested review of discharge are not located 
at the custodial activity, the following action shall be taken by the 
NDRB prior to consideration of the request for discharge review.
    (1) A certification that the records are unavailable shall be 
obtained from the custodial activity.
    (2) The applicant shall be notified of the situation and requested 
to provide such information and documents as may be desired in support 
of the request for discharge review. A period of not less than 60 days 
shall be allowed for such documents to be submitted. At the expiration 
of this time period, the review may be conducted with information 
available to the NDRB.
    (3) The presumption of regularity in the conduct of government 
affairs may be applicable in instances of unavailable records depending 
on the circumstances of the case. (See Sec. 724.211)
    (b) [Reserved]

[50 FR 10943, Mar. 19, 1985, as amended at 65 FR 62616, Oct. 19, 2000]



Sec. 724.211  Regularity of government affairs.

    There is a presumption of regularity in the conduct of governmental 
affairs. This presumption can be applied in any review unless there is 
substantial credible evidence to rebut the presumption.



Sec. 724.212  Availability of records.

    (a) Before applying for discharge review, potential applicants or 
their designated representatives may obtain copies of their military 
personnel records by submitting a General Services Administration 
Standard Form 180, ``Request Pertaining to Military Records,'' to the 
National Personnel Records Center (NPRC), 9700 Page Boulevard, St. 
Louis, MO 63132. Once the application for discharge review (DD Form 293) 
is submitted, an applicant's military records are forwarded to the

[[Page 237]]

NDRB where they cannot be reproduced. Submission of a request for an 
applicant's military records, including a request under the Freedom of 
Information Act (5 U.S.C. 552) or Privacy Act (5 U.S.C. 552a) after the 
DD Form 293 has been submitted, shall result automatically in the 
temporary suspension of processing of the application for discharge 
review until the requested records are sent to an appropriate location 
for copying, are copied, and are returned to the headquarters of the 
NDRB. Processing of the application shall then be resumed at whatever 
stage of the discharge review process is practicable. Applicants are 
encouraged to submit any request for their military records before 
applying for discharge review rather than after submitting DD Form 293 
to avoid delays in processing of applications and scheduling of reviews. 
Applicants and their counsel may also examine their military personnel 
records at the site of their scheduled review before the hearing. The 
NDRB shall notify applicants of the dates the records are available for 
examination in their standard scheduling information.
    (b) If the NDRB is not authorized to provide copies of documents 
that are under the cognizance of another government department, office, 
or activity, applications for such information must be made by the 
applicant to the cognizant authority. The NDRB shall advise the 
applicant of the mailing address of the government department, office, 
or activity to which the request should be submitted.
    (c) [Reserved]
    (d) The NDRB may take steps to obtain additional evidence that is 
relevant to the discharge under consideration beyond that found in the 
official military records or submitted by the applicant, if a review of 
available evidence suggests that it would be incomplete without the 
additional information, or when the applicant presents testimony or 
documents that require additional information to evaluate properly. Such 
information shall be made available to the applicant, upon request, with 
appropriate modifications regarding classified material.
    (1) In any case heard on request of an applicant, the NDRB shall 
provide the applicant and counsel or representative, if any, at a 
reasonable time before initiating the decision process, a notice of the 
availability of all regulations and documents to be considered in the 
discharge review, except for documents in the official personnel or 
medical records and any documents submitted by the applicant. The NDRB 
shall also notify the applicant or counsel or representative: (a) of the 
right to examine such documents or to be provided with copies of the 
documents upon request; (b) of the date by which such requests must be 
received; and (c) of the opportunity to respond within a reasonable 
period of time to be set by the NDRB.
    (2) When necessary to acquaint the applicant with the substance of a 
classified document, the classifying authority, on the request of the 
NDRB, shall prepare a summary of or an extract from the document, 
deleting all references to sources of information and other matters, the 
disclosure of which, in the opinion of the classifying authority, would 
be detrimental to the national security interests of the United States. 
Should preparation of such summary be deemed impracticable by the 
classifying authority, information from the classified source shall not 
be considered by the NDRB in its review of the case.
    (e) Regulations of a military department may be obtained at many 
installations under the jurisdiction of the Military Department 
concerned or by writing to the following address: DA Military Review 
Boards Agency, Attention: SFBA (Reading Room), Room 1E520, The Pentagon, 
Washington, DC 20310.

[50 FR 10943, Mar. 19, 1985, as amended at 65 FR 62616, Oct. 19, 2000]



Sec. 724.213  Attendance of witnesses.

    Arrangement for attendance of witnesses testifying in behalf of the 
applicant at discharge review hearings is the responsibility of the 
applicant. The NDRB is not authorized to subpoena or otherwise require 
their presence.



Sec. 724.214  Applicant's expenses.

    Unless otherwise specified by law or regulation, expenses incurred 
by the

[[Page 238]]

applicant, witnesses, or counsel/representative will not be paid by the 
Department of Defense. The NDRB is not authorized to issue orders or 
other process to enable the applicant to appear in person.



Sec. 724.215  Military representation.

    Military officers, except those acting pursuant to specific 
detailing by appropriate authorities desiring to act for or on behalf of 
an applicant in the presentation of a case before an NDRB Panel are 
advised to consult legal counsel before undertaking such representation. 
Such representation may be prohibited by 18 U.S.C. 205.



Sec. 724.216  Failure to appear at a hearing or respond to a scheduling notice.

    (a) Except as otherwise authorized by the Secretary concerned, 
further opportunity for a hearing shall not be made available in the 
following circumstances to an applicant who has requested a hearing:
    (1) When the applicant has been sent a letter containing the month 
and location of a proposed hearing and fails to make a timely response; 
or
    (2) When the applicant, after being notified by letter of the time 
and place of the hearing, fails to appear at the appointed time, either 
in person or by representative, without having made a prior, timely 
request for a continuation, postponement, or withdrawal.
    (b) In such cases, the applicant shall be deemed to have waived the 
right to a hearing, and the NDRB shall complete its review of the 
discharge. Further request for a hearing shall not be granted unless the 
applicant can demonstrate that the failure to appear or respond was due 
to circumstances beyond the applicant's control.



Sec. 724.217  Limitation--Reconsiderations.

    A discharge review shall not be subject to reconsideration except:
    (a) When the only previous consideration of the case was on the 
motion of the NDRB;
    (b) When the original discharge review did not involve a personal 
hearing and a hearing is now desired, and the provisions of Sec. 724.216 
do not apply;
    (c) When changes in discharge policy are announced after an earlier 
review of an applicant's discharge, and the new policy is made expressly 
retroactive;
    (d) When the NDRB determines that policies and procedures under 
which the applicant was discharged differ in material respects from 
policies and procedures currently applicable on a service-wide basis to 
discharges of the type under consideration, provided that such changes 
in policies or procedures represent a substantial enhancement of the 
rights afforded an applicant in such proceedings;
    (e) When an individual is to be represented by counsel or 
representative, and was not so represented in any previous consideration 
of the case by the NDRB;
    (f) When the case was not previously considered under uniform 
standards published pursuant to Pub. L. 95-126 and such application is 
made within 15 years after the date of discharge; or
    (g) On the basis of presentation of new, substantial, relevant 
evidence not available to the applicant at the time of the original 
review. The decision whether evidence offered by an applicant in support 
of a request for reconsideration is in fact new, substantial, relevant, 
and was not available to the applicant at the time of the original 
review will be based on a comparison of such evidence with the evidence 
considered in the previous discharge review. If this comparison shows 
that the evidence submitted would have had a probable effect on matters 
concerning the propriety or equity of the discharge, the request for 
reconsideration shall be granted.



Sec. 724.218  Limitation--Continuance and Postponements.

    (a) A continuance of a discharge review hearing may be authorized by 
the President of the NDRB or presiding officer of the panel concerned, 
provided that such continuance is of reasonable duration and is 
essential to achieving a full and fair hearing. When a proposal for 
continuance is indefinite, the pending application shall be returned to 
the applicant with the option to resubmit when the case is fully ready 
for review.

[[Page 239]]

    (b) Postponements of scheduled reviews normally shall not be 
permitted other than for demonstrated good and sufficient reason set 
forth by the applicant in a timely manner or for the convenience of the 
government.



Sec. 724.219  Withdrawal of application.

    An applicant shall be permitted to withdraw an application without 
prejudice at any time before the scheduled review, except that failure 
to appear for a scheduled hearing shall not be construed or accepted as 
a withdrawal.



Sec. 724.220  Review on motion of the NDRB.

    Reviews of Naval discharges may be initiated by the NDRB on its own 
motion (10 U.S.C. 1553) which includes reviews requested by the Veterans 
Administration under 38 U.S.C. 101, 3103 as amended by Pub. L. 95-126 of 
October 8, 1977 (See Pub. L. 98-209).



Sec. 724.221  Scheduling of discharge reviews.

    (a) If an applicant requests a personal appearance discharge review, 
or to be represented in absentia, the NDRB shall provide a hearing in 
the NCR or at another site within the forty-eight contiguous states.
    (b) The NDRB shall subsequently notify the applicant and 
representative (if any) in writing of the proposed personal appearance 
hearing time and place. This notice shall normally be mailed thirty to 
sixty days prior to the date of the hearing. If the applicant elects, 
this time limit may be waived and an earlier date set.
    (c) When an applicant requests a documentary review, the NDRB shall 
undertake the review as soon as practicable. Normally, documentary 
reviews shall be conducted in the order in which they are received.



Sec. 724.222  Personal appearance discharge hearing sites.

    (a) The NDRB shall be permanently located, together with its 
administrative staff, in the NCR. The NDRB shall routinely conduct 
personal appearance discharge reviews and documentary reviews at this, 
its permanent office.
    (b) In addition, as permitted by available resources, NDRB Panels 
shall travel to other selected sites within the contiguous 48 states for 
the purpose of conducting reviews. The selection of sites and frequency 
of visits shall be predicated on the number of requests pending within a 
region and the availability of resources.



Sec. 724.223  NDRB support and augmentation by regular and reserve activities.

    (a) When an NDRB Panel travels for the purpose of conducting 
hearings, it shall normally select Navy or Marine Corps installations in 
the area visited as review sites.
    (b) The NDRB Traveling Board shall normally consist of members from 
the NCPB and augmentees from regular and reserve Navy and Marine Corps 
sources, as required.
    (c) Navy and Marine Corps activities in the geographical vicinity of 
selected review sites shall provide administrative support and 
augmentation to an NDRB Panel during its visit where such assistance can 
be undertaken without interference with mission accomplishment. The NDRB 
shall coordinate requests for augmentees and administrative support 
through Commandant of the Marine Corps or the Chief of Naval Reserve, as 
appropriate.
    (d) The administrative staff of the NCPB shall undertake all 
arrangements for NDRB Traveling Panel visits and shall process 
associated review documents.



Sec. 724.224  Court-martial specifications, presumption concerning.

    (a) Relevant and material facts stated in a court-martial 
specification, shall be presumed by the NDRB Panel as established facts. 
With respect to a discharge or dismissal adjudged by a court-martial 
case tried under the Uniform Code of Military Justice, the action may 
extend only to change in the discharge or dismissal for purposes of 
clemency. This policy only applies to cases filed with the discharge 
review board after December 6, 1983.
    (b) Relevant and material facts stated in a court-martial 
specification, in the face of which the applicant requested a discharge 
for the good of the service to avoid trial by court-martial,

[[Page 240]]

shall be considered in accordance with the following:
    (1) If the applicant/accused was required to admit the facts 
contained in the charge sheet, or if the discharge authority was 
required to find that the stated facts were true, then the NDRB can 
presume the truth of such facts, unless there is a substantial credible 
evidence to rebut this presumption; or
    (2) If the discharge in lieu of court-martial only required a valid 
preferral, the NDRB may presume that the signer either had personal 
knowledge of, or had investigated the matters set forth, and that the 
charges were true in fact to the best of the signer's knowledge and 
belief.\1\ The weight to be given this presumption in determining 
whether the facts stated in the charge sheet are true is a matter to be 
determined by the NDRB. To the extent that the discharge proceeding 
reflects an official determination that the facts stated in the charge 
sheet are true; that the applicant/accused admitted the facts stated in 
the charge sheet; or that the applicant/accused admitted guilt of the 
offense(s), then the presumption is strengthened. In accordance with 
paragraph B12f of enclosure (3) to 32 CFR part 70 the presumption may be 
rebutted by ``substantial credible evidence.''
---------------------------------------------------------------------------

    \1\ Charges may be preferred by any person subject to the Uniform 
Code of Military Justice. The charges must be signed and sworn to before 
a commissioned officer authorized to administer oaths, and shall state 
that the signer has personal knowledge of, or has investigated the 
matters set forth therein; and that the charges are true in fact to the 
best of the signer's knowledge and belief. 10 U.S.C. 830 (1976) (Art. 30 
Uniform Code of Military Justice).
---------------------------------------------------------------------------



  Subpart C--Director, Naval Council of Personnel Boards and President 
 Naval Discharge Review Board; Responsibilities in Support of the Naval 
                         Discharge Review Board



Sec. 724.301  Mission.

    To administer and supervise assigned boards and councils within the 
Department of the Navy.



Sec. 724.302  Functions: Director, Naval Council of Personnel Boards.

    (a) Make recommendations to the Secretary of the Navy regarding 
organization, tasking and resources of the NDRB and its associated 
administrative support.
    (b) Submit recommendations to the Secretary of the Navy regarding 
policy and procedures for discharge review.
    (c) Provide administrative and clerical support for NDRB.
    (d) Inform the Secretary of the Navy of matters of interest to him.
    (e) Maintain a system of records, including as a minimum:
    (1) Records specified for the NDRB as stipulated in the procedures 
prescribed in subpart H of this Manual.
    (2) Records required for the administration of military and civilian 
personnel.
    (3) Files of correspondence received and issued.
    (f) Establish billet/position assignment criteria for the NDRB.
    (g) Propose to the Secretary of the Navy, changes to this 
instruction.
    (h) Issue requisite precepts and remove or add members to the NDRB 
from personnel detailed to serve on the Naval Council of Personnel 
Boards, or from personnel otherwise made available.



Sec. 724.303  Functions: President, Naval Discharge Review Board.

    (a) Exercise primary cognizance within the Department of the Navy 
for matters relating to discharge review.
    (b) Supervise and direct the activities of the NDRB.
    (c) Maintain appropriate liaison with discharge review activities in 
other services (use Army Discharge Review Board as focal point for 
service coordination).
    (d) Maintain coordination with the Commandant of the Marine Corps 
(Code M) and the Commander, Naval Military Personnel Command in matters 
associated with discharge review.
    (e) In conformance with SECNAVINST 5211.5C, protect the privacy of 
individuals in connection with discharge review.
    (f) Assure that NDRB functions are administered in accordance with 
the

[[Page 241]]

appropriate Secretary of the Navy instructions dealing with privacy and 
access to information.
    (g) Convene the NDRB as authorized by the Secretary of the Navy.
    (h) Direct the movement of the NDRB Traveling Panel(s) on the basis 
of regional hearing requests.
    (i) Monitor the performance of the naval discharge review system. 
Make recommendations for changes and improvements. Take action to avoid 
delays in processing of individual discharge review actions.
    (j) Provide NDRB inputs for the maintenance of a public reading file 
and maintain associated NDRB indexes updated quarterly.



Sec. 724.304  Responsibility for Department of the Navy support of the Naval Discharge Review Board.

    The Commandant of the Marine Corps; Commander, Naval Military 
Personnel Command; Commander, Naval Reserve Force; Commander, Naval 
Medical Command; and chiefs of other bureaus and offices of the 
Department of the Navy shall provide support, as requested, to the Naval 
discharge review process.



Sec. 724.305  Functions of the CMC and CNO.

    In the case of Navy, CNMPC, under the CNP, shall discharge 
responsibilities of the CNO.
    (a) Provide and facilitate access by the NDRB to service/health 
records and other data associated with performance of duty of 
applicants.
    (b) Advise the NDRB of developments in personnel management which 
may have a bearing on discharge review judgments.
    (c) Implement the discharge review decisions of the NDRB and those 
of higher authority within respective areas of cognizance.
    (d) Include the record of NDRB proceedings as a permanent part of 
the service record of the applicant in each case.
    (e) Where appropriate, recommend cases for the NDRB to review on its 
own motion.
    (f) Provide qualified personnel as NDRB members, recorders and 
administrative staff.
    (g) Establish administrative procedures to ensure that if a member 
is separated from the Navy or the Marine Corps under other than fully 
honorable conditions, the member is advised of:
    (1) The right to a review of his or her discharge under provisions 
of 10 U.S.C. 1553, and
    (2) The procedures for applying for such a review.
    (h) Provide Navy and Marine Corps units and activities with 
information on the mission of the Naval Discharge Review Board through 
entries in appropriate personnel administration directives.



Sec. 724.306  Functions of the Commander, Naval Medical Command.

    Under the CNO the COMNAVMEDCOM shall facilitate, as required, access 
by the NDRB to health records of applicants.



Sec. 724.307  Functions of the Commander, Naval Reserve Force.

    In the case of Navy, the COMNAVRESFOR shall discharge the 
responsibilities of the CNO--
    (a) Upon request and within available resources, provide qualified 
inactive duty reservists to serve as members of the NDRB.
    (b) Upon request, provide appropriate accommodations to the NDRB 
Traveling Panels for purposes of conducting reviews at Naval and Marine 
Corps Reserve Centers and aviation facilities.



 Subpart D--Principal Elements of the Navy Department Discharge Review 
                                 System



Sec. 724.401  Applicants.

    As defined in Sec. 724.114.



Sec. 724.402  Naval Discharge Review Board.

    As defined in Sec. 724.102.



Sec. 724.403  President, Naval Discharge Review Board.

    Supervises the Naval Discharge Review Board. (See subpart C).

[[Page 242]]



Sec. 724.404  Director, Naval Council of Personnel Boards.

    Exercises adminstrative control and oversight of the Naval discharge 
review process. (See subpart C).



Sec. 724.405  Commandant of the Marine Corps or the Commander, Naval Military Personnel Command.

    Personnel managers of the Marine Corps and the Navy; responsible for 
providing limited support to the Naval Discharge Review Board and for 
implementation of departmental discharge review decisions. (See subpart 
C).



Sec. 724.406  Commander, Naval Medical Command.

    Custodian of Navy and Marine Corps health records. (See subpart C).



Sec. 724.407  Commander, Naval Reserve Force.

    Manages Naval Reserve resources. Responsible for providing limited 
support to the Naval Discharge Review Board. (See subpart C).



Sec. 724.408  Secretary of the Navy.

    The final authority within the Department of the Navy in discharge 
review.



Subpart E--Procedural Rights of the Applicant and Administrative Actions 
                     Preliminary to Discharge Review



Sec. 724.501  Procedural rights of the applicant.

    Each applicant has the following procedural rights:
    (a) Within 15 years after the date of discharge, to make a written 
request for review of the applicant's discharge if the discharge was 
other than the result of a general court-martial. The request may 
include such other statements, affidavits, or documentation as desired.
    (b) To have that review conducted by the NDRB either in the NCR or 
other designated location, when a personal appearance discharge review 
is desired.
    (c) To appear before the NDRB in person, with or without counsel/
representative; with counsel/representative concurrence, to have 
counsel/representative present the applicant's case in the absence of 
the applicant; or to have the review conducted based on records and any 
additional documentation submitted by the applicant or counsel/
representative.
    (d) To request copies of any documents or other evidence to be 
considered by the NDRB in the review of the applicant's discharge or 
dismissal other than the documents or evidence contained in the official 
record or submitted by the applicant prior to the conduct of the formal 
review and to be afforded an opportunity to examine such other documents 
or evidence or to be provided with copies of them.
    (e) To withdrawn the request for discharge review without prejudice 
at any time prior to the scheduled review, except that failure to appear 
for a scheduled hearing shall not be construed or accepted as a 
withdrawal.
    (f) To request a continuance of the review when the continuance is 
of a reasonable duration and essential to achieving a full and fair 
hearing. The request must indicate the reason why the continuance is 
required.
    (g) To request postponement of the discharge review for good and 
sufficient reason set forth in a timely manner.
    (h) To request reconsideration of the discharge review under the 
conditions set forth in Sec. 724.217.
    (i) To have access to the information to be considered by the NDRB 
prior to the actual review of the applicant's case.
    (j) To have the applicant's right to privacy protected in any review 
conducted by the NDRB.
    (k) When appearing personally before the NDRB:
    (1) To introduce witnesses, documents, and sworn or unsworn 
testimony.
    (2) To present oral or written arguments personally or through 
counsel/representative.
    (l) To submit documents, affidavits, briefs or arguments in writing. 
When the counsel/representative appears in person before the NDRB, 
arguments may be presented orally.
    (m) To state clearly and specifically the issue or issues which the 
applicant desires the NDRB to answer in writing.

[[Page 243]]

These must be presented in writing on DD Form 293 by the applicant or 
counsel/representative.
    (n) To have the applicant's discharge reviewed under the standards 
of equity and propriety outlined in subpart I.
    (o) To be provided with a written decision on the applicant's 
review.
    (p) If the case is to be forwarded for Secretarial review, to 
present a timely statement rebutting any findings, conclusions, or 
reasons of the NDRB or the President, NDRB, which are alleged to be 
erroneous on the facts, against the substantial weight of the evidence, 
or contrary to law or governing regulation, prior to that Secretarial 
review.



Sec. 724.502  Actions to be taken by the applicant preliminary to discharge review.

    (a) Application for Review of Discharge or Dismissal from the Armed 
Forces of the United States, DD Form 293 must be used in requesting a 
discharge review. DD Form 293 is available at most military 
installations and regional offices of the Veterans Administration. This 
form is to be signed personally by the applicant. In the event the 
discharged individual is deceased or incompetent, the form must be 
signed by an authorized individual as discussed in Sec. 724.113 of this 
Manual.
    (b) The application is to be accompanied by:
    (1) A copy of the certificate of discharge, if available;
    (2) A copy of the Armed Forces of the United States Report of 
Transfer or Discharge (DD-214), if available;
    (3) Certification of death, incompetency and evidence of 
relationship in applicable cases (Sec. 724.113);
    (4) Other statements, affidavits, depositions, documents and 
information desired by the applicant to be considered by the NDRB.
    (c) Correspondence relating to review of naval discharges should be 
addressed to:

Naval Discharge Review Board, Suite 905--801 North Randolph Street, 
Arlington, VA 22203

    (d) NDRB telephone number is (202) 696-4881.



Sec. 724.503  NDRB response to application for discharge review.

    (a) The NDRB shall acknowledge receipt of the application.
    (b) In the event a documentary review is requested, the applicant 
shall normally receive no further communication from the NDRB until 
notified of the decision in the case.
    (c) In the event a personal appearance discharge review is 
requested, the applicant shall be notified of the proposed time and 
place of this review and shall be advised of the availability of the 
official documents to be considered by the NDRB.
    (d) A copy of NDRB correspondence to an applicant shall be sent to 
the representative of record, if any.



Sec. 724.504  NDRB actions preliminary to discharge review.

    (a) When each application for discharge review is received by the 
NDRB, the service record and health record of the applicant will be 
requested from the appropriate record custodian.
    (b) Upon receipt, each record of service will be reviewed to 
determine whether or not the applicant appears to have been discharged 
under circumstances which might act as a bar to Veterans' Administration 
benefits under 38 U.S.C. 3103. These circumstances of discharge are:
    (1) Discharge or dismissal by reason of the sentence of a general 
court-martial.
    (2) Discharge as a conscientious objector who refused to perform 
military duty, to wear the uniform or otherwise to comply with lawful 
orders of competent military authority.
    (3) Discharge as a deserter.
    (4) Discharge on the basis, or as part of the basis, of an absence 
without authority from active duty for a continuous period of at least 
180 days, if such discharge was under conditions other than honorable. 
Additionally, such absence is computed without regard to the applicant's 
normal or adjusted expiration of term of service.
    (5) Discharge or dismissal of an officer based on acceptance of the 
officer's resignation for the good of the service.
    (6) Discharge, on his/her own application, during a period of 
hostilities, as an alien.

[[Page 244]]

    (c) If it appears that the applicant was discharged under one or 
more of the circumstances outlined in Sec. 724.504b, a written 
notification will be sent which informs the applicant that:
    (1) An initial service record review reveals that the discharge may 
have been awarded under circumstances which make the applicant 
ineligible for receipt of VA benefits regardless of any action taken by 
the NDRB.
    (2) Separate action by the Board for Correction of Naval Records 
(BCNR) and/or the VA, in case of 180 days consecutive UA 
disqualification, may confer eligibility for VA benefits. Instructions 
for making application to the BCNR and for contacting the VA are 
provided.



      Subpart F--Naval Discharge Review Board Mission and Functions



Sec. 724.601  General.

    The NDRB is a component of the Naval Council of Personnel Boards and 
has its offices located in the NCR. The NDRB conducts documentary 
reviews and personal appearance reviews in the NCR and, on a traveling 
basis, at selected sites within the 48 contiguous states. Regional site 
selection is predicated on the number of pending applications 
accumulated from a given geographical area and the resources available 
to support distant personal appearance reviews. The NDRB does not 
maintain facilities other than at its NCR offices. The primary sites of 
NCR are: Chicago, IL; Dallas, TX; and San Francisco, CA.



Sec. 724.602  Mission.

    To decide, in accordance with standards of naval law and discipline 
and the standards for discharge review set forth in subpart I, whether a 
discharge or dismissal from the naval service is proper and equitable, 
or whether it should be changed.



Sec. 724.603  Functions.

    (a) Meet as frequently as necessary to provide expeditious review of 
naval discharges.
    (b) Meet at locations within the 48 contiguous states as determined 
appropriate on the basis of the number of discharge review applications 
received from various geographical areas and of available resources and 
facilities.
    (c) Review applications for review of discharges.
    (d) In consonance with directives of higher authority and the 
policies set forth in this Manual, grant or deny change of discharges.
    (e) Promulgate decisions in a timely manner.
    (f) Maintain a system of records.
    (g) Maintain liaison in discharge review matters with:
    (1) General Counsel of the Navy.
    (2) Commandant of the Marine Corps.
    (3) Chief of Naval Operations.
    (i) Commander, Naval Reserve Force.
    (ii) Commander, Naval Medical Command.
    (iii) Commander, Naval Military Personnel Command, under the Chief 
of Naval Personnel.
    (4) Judge Advocate General of the Navy.
    (5) Veterans' service organizations.
    (6) Discharge review boards of the other services, using the Army 
Discharge Review Board as the focal point for service coordination.
    (h) Protect the privacy of individuals whose records are reviewed.
    (i) Maintain for public access a reading file and associated index 
of records of NDRB proceedings in all reviews undertaken subsequent to 
July 1, 1975.



       Subpart G--Organization of the Naval Discharge Review Board



Sec. 724.701  Composition.

    The NDRB acting in plenary review session shall be composed of five 
members. Normally the members shall be career military officers, 
assigned to the Naval Council of Personnel Boards or otherwise made 
available; inactive duty officers of the Navy and Marine Corps Reserve 
may serve as members when designated to do so by the President, NDRB.
    (a) Presiding officers of the NDRB shall normally be Navy or Marine 
Corps officers in the grade of Captain/Colonel or above.
    (b) The remaining NDRB membership shall normally be not less than 
the grade of Lieutenant Commander/Major

[[Page 245]]

with preference being given to senior grades.
    (c) At least three of the five members of the NDRB shall belong to 
the service from which the applicant whose case is under review was 
discharged.
    (d) Individual membership in the NDRB may vary within the 
limitations of the prescribed composition.
    (e) Any member of a panel of the NDRB other than the presiding 
officer may act as recorder for cases assigned. The recorder will 
participate as a voting member of the panel.



Sec. 724.702  Executive management.

    The administrative affairs of the NDRB shall be managed by the 
Executive Secretary. This responsibility shall include schedules, 
records, correspondence and issuance of NDRB decisions.



Sec. 724.703  Legal counsel.

    Normally, the NDRB shall function without the immediate attendance 
of legal counsel. In the event that a legal advisory opinion is deemed 
appropriate by the NDRB, such opinion shall be obtained routinely by 
reference to the senior Judge Advocate assigned to the Office of the 
Director, Naval Council of Personnel Boards. In addition, the NDRB may 
request advisory opinions from staff offices of the Department of the 
Navy, including, but not limited to the General Counsel and the Judge 
Advocate General.



          Subpart H--Procedures of Naval Discharge Review Board



Sec. 724.801  Matters to be considered in discharge review.

    In the process of its review of discharges, the NDRB shall examine 
available records and pertinent regulations of the Department of the 
Navy, together with such information as may be presented by the 
applicant and/or representative, which will normally include:
    (a) The application for discharge review;
    (b) Statements, affidavits or documentation, if any, accompanying 
the application or presented during hearings;
    (c) Testimony, if any, presented during hearings;
    (d) Service and health records;
    (e) A brief of pertinent facts extracted from the service and health 
records, prepared by the NDRB recorder.



Sec. 724.802  Applicant's responsibilities.

    (a) Request for change of discharge. An applicant may request a 
change in the character of or reason for discharge (or both).
    (1) Character of discharge. Block 7 of DD Form 293 provides an 
applicant an opportunity to request a specific change in character of 
discharge (for example, General Discharge to Honorable Discharge; Other 
than Honorable Discharge to General or Honorable Discharge). A person 
separated on or after 1 October 1982 while in an entry level status may 
request a change from Other Than Honorable Discharge to Entry Level 
Separation. A request for review from an applicant who does not have an 
Honorable Discharge will be treated as a request for a change to an 
Honorable Discharge unless the applicant requests a specific change to 
another character of discharge.
    (2) Reason for discharge. Block 7 of DD Form 293 provides an 
applicant an opportunity to request a specific change in the reason for 
discharge. If an applicant does not request a specific change in the 
reason for discharge, the NDRB will presume that the request for review 
does not involve a request for change in the reason for discharge. Under 
its responsibility to examine the propriety and equity of an applicant's 
discharge, the NDRB will change the reason for discharge if such a 
change is warranted.
    (3) The applicant must ensure that issues submitted to the NDRB are 
consistent with the request for change in discharge set forth in block 7 
of the DD Form 293. If an ambiguity is created by a difference between 
and applicant's issue and the request in block 7, the NDRB will respond 
to the issue in the context of the action requested in block 7. In the 
case of a personal appearance hearing, the NDRB will attempt to resolve 
the ambiguity under Sec. 724.802(c).

[[Page 246]]

    (b) Request for consideration of specific issues. An applicant may 
request the Board to consider specific issues which, in the opinion of 
the applicant, form a basis for changing the character of or reason for 
discharge, or both. In addition to the guidance set forth in this 
section, applicants should consult the other sections in this manual 
before submitting issues for consideration by the Board.
    (1) Submission of issues on DD Form 293. Issues must be provided to 
the NDRB on DD Form 293 (82 Nov) before the NDRB closes the review 
process for deliberation.
    (i) Issues must be clear and specific. An issue must be stated 
clearly and specifically in order to enable the NDRB to understand the 
nature of the issue and its relationship to the applicant's discharge.
    (ii) Separate listing of issues. Each issue submitted by an 
applicant should be listed separately. Submission of a separate 
statement for each issue provides the best means of ensuring that the 
full import of the issue is conveyed to the NDRB.
    (iii) Use of DD Form 293. DD Form 293 provides applicants with a 
standard format for submitting issues to the NDRB, and its use:
    (A) Provides a means for an applicant to set forth clearly and 
specifically those matters that, in the option of the applicant, provide 
a basis for changing the discharge;
    (B) Assists the NDRB in focusing on those matters considered to be 
important by an applicant;
    (C) Assists the NDRB in distinguishing between a matter submitted by 
an applicant in the expectation that it will be treated as a decisional 
issue, and those matters submitted simply as background or supporting 
materials;
    (D) Provides the applicant with greater rights in the event that the 
applicant later submits a complaint concerning the decisional document;
    (E) Reduces the potential for disagreement as to the content of an 
applicant's issue.
    (iv) Incorporation by reference. If the applicant makes an 
additional written submission, such as a brief, in support of the 
application, the applicant may incorporate by reference specific issues 
set forth in the written submission in accordance with the guidance on 
DD Form 293. The reference shall be specific enough for the NDRB to 
identify clearly the matter being submitted as an issue. At a minimum, 
it shall identify the page, paragraph, and sentence incorporated. 
Because it is to the applicant's benefit to bring such issues to the 
NDRB's attention as early as possible in the review, applicants who 
submit a brief are strongly urged to set forth all such issues as a 
separate item at the beginning of the brief. If it reasonably appears 
that the applicant inadvertently failed expressly to incorporate an 
issue which the applicant clearly identifies as an issue to be addressed 
by the NDRB, the NDRB shall respond to such an issue. (See Secs. 724.805 
and 724.806.)
    (v) Effective date of the new Form DD 293. With respect to 
applications pending (before November 1982, the effective date of the 
new DD Form 293), the NDRB shall consider issues clearly and 
specifically stated in accordance with the rules in effect at the time 
of submission. With respect to applications received after November 
1982, if the applicant submits an obsolete DD Form 293, the NDRB shall 
accept the application, but shall provide the applicant with a copy of 
the new form and advise the applicant that it will only respond to 
issues submitted on the new form in accordance with this instruction.
    (2) Relationship of issues to character of or reason for discharge. 
If the application applies to both character of and reason for 
discharge, the applicant is encouraged, but not required, to identify 
the issue as applying to either the character of or the reason for 
discharge (or both). Unless the issue is directed at the reason for 
discharge expressly or by necessary implication, the NDRB will presume 
that it applies solely to the character of discharge.
    (3) Relationship of issues to the standards for discharge review. 
The NDRB reviews discharges on the basis of issues of propriety and 
equity. The standards used by the NDRB are set forth in Sec. 724.804. 
The applicant is encouraged to review those standards before submitting 
any issue upon which the applicant believes a change in discharge should 
be based.

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    (i) Issues concerning the equity of the discharge. An issue of 
equity is a matter that involves a determination whether a discharge 
should be changed under the equity standards of this part. This includes 
any issue, submitted by the applicant in accordance with 
Sec. 724.802(b)(1), that is addressed to the discretionary authority of 
the NDRB.
    (ii) Issues concerning the propriety of a discharge. An issue of 
propriety is a matter that involves a determination whether a discharge 
should be changed under the propriety standards of this part. This 
includes an applicant's issue, submitted in accordance with 
Sec. 724.802(b)(1), in which the applicant's position is that the 
discharge must be changed because of an error in the discharge 
pertaining to a regulation, statute, constitutional provision, or other 
source of law (including a matter that requires a determination whether, 
under the circumstances of the case, action by military authorities was 
arbitrary, capricious, or an abuse of discretion). Although a numerical 
reference to the regulation or other sources of law alleged to have been 
violated is not necessarily required, the context of the regulation or a 
description of the procedures alleged to have been violated normally 
must be set forth in order to inform the NDRB adequately of the basis 
for the applicant's position.
    (iii) The applicant's identification of an issue. The applicant is 
encouraged, but not required, to specify that each issue pertains to the 
propriety or the equity of the discharge. This will assist the NDRB in 
assessing the relationship of the issue to propriety or equity.
    (4) Citation of matter from decisions. The primary function of the 
NDRB involves the exercise of discretion on a case-by-case basis. 
Applicants are not required to cite prior decisions as the basis for a 
change in discharge. If the applicant wishes to bring the NDRB's 
attention to a prior decision as background or illustrative material, 
the citation should be placed in a brief or other supporting documents. 
If, however, it is the applicant's intention to submit an issue that 
sets forth specific principles and facts from a specific cited decision, 
the following requirements with respect to applications received on or 
after November 27, 1982 apply:
    (i) The issue must be set forth or expressly incorporated in the 
``Applicant's Issue'' portion of DD Form 293.
    (ii) If an applicant's issue cites a prior decision (of the NDRB, 
another Board, an agency, or a court), the applicant shall describe the 
specific principles and facts that are contained in the prior decision 
and explain the relevance of cited matter to the applicant's case.
    (iii) To ensure timely consideration of principles cited from 
unpublished opinions (including decisions maintained by the Armed Forces 
Discharge Review Board/Corrective Board Reading Room), applicants must 
provide the NDRB with copies of such decisions or of the relevant 
portion of the treatise, manual or similar source in which the 
principles were discussed. At the applicant's request, such materials 
will be returned.
    (iv) If the applicant fails to comply with requirements in 
Sec. 724.802(b)(4), the decisional document shall note the defect, and 
shall respond to the issue without regard to the citation.
    (c) Identification by the NDRB of issues submitted by an applicant. 
The applicant's issues shall be identified in accordance with this 
section after a review of the materials noted under Sec. 924.803, is 
made.
    (1) Issues on DD Form 293. The NDRB shall consider all items 
submitted as issues by an applicant on DD Form 293 (or incorported 
therein).
    (2) Amendment of issues. The NDRB shall not request or instruct an 
applicant to amend or withdraw any matter submitted by the applicant. 
Any amendment or withdrawal of an issue by an applicant shall be 
confirmed in writing by the applicant. Nothing in this provision:
    (i) Limits the NDRB's authority to question an applicant as to the 
meaning of such matter;
    (ii) Precludes the NDRB from developing decisional issues based upon 
such questions;
    (iii) Prevents the applicant from amending or withdrawing such 
matter any time before the NDRB closes the review process for 
deliberation; or

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    (iv) Prevents the NDRB from presenting an applicant with a list of 
proposed decisional issues and written information concerning the right 
of the applicant to add to, amend, or withdraw the applicant's 
submission. The written information will state that the applicant's 
decision to take such action (or decline to do so) will not be used 
against the applicant in the consideration of the case.
    (3) Additional issues identified during a hearing. The following 
additional procedure shall be used during a hearing in order to promote 
the NDRB's understanding of an applicant's presentation. If, before 
closing the case for deliberation, the NDRB believes that an applicant 
has presented an issue not listed on DD Form 293, the NDRB may so inform 
the applicant, and the applicant may submit the issue in writing or add 
additional written issues at that time. This does not preclude the NDRB 
from developing its own decisional issues.



Sec. 724.803  The decisional document.

    A decisional document shall be prepared for each review. At a 
minimum, this document shall contain:
    (a) The circumstances and character of the applicant's service as 
extracted from available service records, including health records, and 
information provided by other government authorities or the applicant, 
such as, but not limited to:
    (1) Information concerning the discharge under review, including:
    (i) Date (YYMMDD) of discharge;
    (ii) Character of discharge;
    (iii) Reason for discharge;
    (iv) The specific regulatory authority under which the discharge was 
issued;
    (v) Date (YYMMDD) of enlistment;
    (vi) Period of enlistment;
    (vii) Age at enlistment;
    (viii) Length of service;
    (ix) Periods of unauthorized absence;
    (x) Conduct and efficiency ratings (numerical or narrative);
    (xi) Highest rank achieved;
    (xii) Awards and decorations;
    (xiii) Educational level;
    (xiv) Aptitude test scores;
    (xv) Incidents of punishment pursuant to Article 15, Uniform Code of 
Military