[Title 32 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 2010 Edition]
[From the U.S. Government Printing Office]
[[Page 1]]
32
Parts 700 to 799
Revised as of July 1, 2010
National Defense
________________________
Containing a codification of documents of general
applicability and future effect
As of July 1, 2010
With Ancillaries
Published by
Office of the Federal Register
National Archives and Records
Administration
A Special Edition of the Federal Register
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Table of Contents
Page
Explanation................................................. v
Title 32:
SUBTITLE A--Department of Defense (Continued)
Chapter VI--Department of the Navy 5
Finding Aids:
Table of CFR Titles and Chapters........................ 525
Alphabetical List of Agencies Appearing in the CFR...... 545
List of CFR Sections Affected........................... 555
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Cite this Code: CFR
To cite the regulations in
this volume use title,
part and section number.
Thus, 32 CFR 700.101
refers to title 32, part
700, section 101.
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[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
regulation. Each title is divided into chapters which usually bear the
name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
volume.
LEGAL STATUS
The contents of the Federal Register are required to be judicially
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HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual
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To determine whether a Code volume has been amended since its
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Sections Affected (LSA),'' which is issued monthly, and the ``Cumulative
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Register page number of the latest amendment of any given rule.
EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal
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OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires
Federal agencies to display an OMB control number with their information
collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
amendments to existing regulations in the CFR. These OMB numbers are
placed as close as possible to the applicable recordkeeping or reporting
requirements.
OBSOLETE PROVISIONS
Provisions that become obsolete before the revision date stated on
the cover of each volume are not carried. Code users may find the text
of provisions in effect on a given date in the past by using the
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January 1, 2001, consult either the List of CFR Sections Affected, 1949-
1963, 1964-1972, 1973-1985, or 1986-2000, published in eleven separate
volumes. For the period beginning January 1, 2001, a ``List of CFR
Sections Affected'' is published at the end of each CFR volume.
``[RESERVED]'' TERMINOLOGY
The term ``[Reserved]'' is used as a place holder within the Code of
Federal Regulations. An agency may add regulatory information at a
``[Reserved]'' location at any time. Occasionally ``[Reserved]'' is used
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INCORPORATION BY REFERENCE
What is incorporation by reference? Incorporation by reference was
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This material, like any other properly issued regulation, has the force
of law.
What is a proper incorporation by reference? The Director of the
Federal Register will approve an incorporation by reference only when
the requirements of 1 CFR part 51 are met. Some of the elements on which
approval is based are:
(a) The incorporation will substantially reduce the volume of
material published in the Federal Register.
(b) The matter incorporated is in fact available to the extent
necessary to afford fairness and uniformity in the administrative
process.
(c) The incorporating document is drafted and submitted for
publication in accordance with 1 CFR part 51.
What if the material incorporated by reference cannot be found? If
you have any problem locating or obtaining a copy of material listed as
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CFR INDEXES AND TABULAR GUIDES
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and Finding Aids. This volume contains the Parallel Table of Authorities
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alphabetical list of agencies publishing in the CFR are also included in
this volume.
An index to the text of ``Title 3--The President'' is carried within
that volume.
[[Page vii]]
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the revision dates of the 50 CFR titles.
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Raymond A. Mosley,
Director,
Office of the Federal Register.
July 1, 2010.
[[Page ix]]
THIS TITLE
Title 32--National Defense is composed of six volumes. The parts in
these volumes are arranged in the following order: parts 1-190, parts
191-399, parts 400-629, parts 630-699, parts 700-799, and part 800 to
end. The contents of these volumes represent all current regulations
codified under this title of the CFR as of July 1, 2010.
The current regulations issued by the Department of Defense appear
in the volumes containing parts 1-189 and parts 190-399; those issued by
the Department of the Army appear in the volumes containing parts 400-
629 and parts 630-699; those issued by the Department of the Navy appear
in the volume containing parts 700-799, and those issued by the
Department of the Air Force, Defense Logistics Agency, Selective Service
System, National Counterintelligence Center, Central Intelligence
Agency, Information Security Oversight Office, National Security
Council, Office of Science and Technology Policy, Office for Micronesian
Status Negotiations, and Office of the Vice President of the United
States appear in the volume containing part 800 to end.
For this volume, Cheryl E. Sirofchuck was Chief Editor. The Code of
Federal Regulations publication program is under the direction of
Michael L. White, assisted by Ann Worley.
[[Page 1]]
TITLE 32--NATIONAL DEFENSE
(This book contains parts 700 to 799)
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SUBTITLE A--Department of Defense (Continued)
Part
chapter vi--Department of the Navy.......................... 700
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Subtitle A--Department of Defense (Continued)
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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.................. 136
SUBCHAPTER B--NAVIGATION
706 Certifications and exemptions under the
International Regulations for Preventing
Collisions at Sea, 1972................. 175
707 Special rules with respect to additional
station and signal lights............... 190
SUBCHAPTER C--PERSONNEL
716 Death gratuity.............................. 192
718 Missing Persons Act......................... 197
719 Regulations supplementing the Manual for
Courts-Martial.......................... 200
720 Delivery of personnel; service of process
and subpoenas; production of official
records................................. 213
721-722
[Reserved]
723 Board for Correction of Naval Records....... 230
724 Naval Discharge Review Board................ 237
725 Release of official information for
litigation purposes and testimony by
Department of the Navy personnel........ 270
726 Payments of amounts due mentally incompetent
members of the naval service............ 284
727 Legal assistance............................ 286
728 Medical and dental care for eligible persons
at Navy medical department facilities... 291
732 Nonnaval medical and dental care............ 355
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733 Assistance to and support of dependents;
paternity complaints.................... 369
734 Garnishment of pay of Naval military and
civilian personnel for collection of
child support and alimony............... 376
735 Reporting births and deaths in cooperation
with other agencies..................... 378
SUBCHAPTER D--PROCUREMENT, PROPERTY, PATENTS, AND CONTRACTS
736 Disposition of property..................... 380
744 Policies and procedures for the protection
of proprietary rights in technical
information proposed for release to
foreign governments..................... 384
746 Licensing of government inventions in the
custody of the Department of the Navy... 385
SUBCHAPTER E--CLAIMS
750 General claims regulations.................. 391
751 Personnel claims regulations................ 414
752 Admiralty claims............................ 423
755 Claims for injuries to property under
Article 139 of the Uniform Code of
Military Justice........................ 426
756 Procedures for processing claims involving
non-appropriated fund activities and
their employees......................... 428
757 Affirmative claims regulations.............. 431
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.................. 439
762
[Reserved]
763 Rules governing public access............... 451
SUBCHAPTER G--MISCELLANEOUS RULES
765 Rules applicable to the public.............. 454
766 Use of Department of the Navy aviation
facilities by civil aircraft............ 458
767 Application guidelines for archeological
research permits on ship and aircraft
wrecks under the jurisdication of the
Department of the Navy.................. 468
768-769
[Reserved]
770 Rules limiting public access to particular
installations........................... 472
771-774
[Reserved]
[[Page 7]]
775 Procedures for implementing the National
Environmental Policy Act................ 483
776 Professional conduct of attorneys practicing
under the cognizance and supervision of
the Judge Advocate General.............. 491
777-799
[Reserved]
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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.
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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.
700.1167 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;
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(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
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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
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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;
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(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;
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(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;
(10) To exercise authority for intelligence within the Navy.
(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) Discipline;
(iii) Communications; and
(iv) 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.
[64 FR 56062, Oct. 15, 1999, as amended at 68 FR 2697, Jan. 21, 2003]
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,
[[Page 23]]
in service'' shall be called ``United States Naval Ship'' or
``U.S.N.S.''
(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
[[Page 24]]
Commandant of the Marine Corps 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 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 exercise authority for intelligence within the Marine Corps.
[[Page 25]]
(6) To plan for and determine the present and future needs, both
quantitative and qualitative, for manpower, 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.
[64 FR 56062, Oct. 15, 1999, as amended at 68 FR 2697, Jan. 21, 2003]
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
[[Page 26]]
jurisdiction of the United States. This applies to those matters not
specifically delegated by law to some other executive department;
(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.'' The name of the
organization under the command of such an officer shall be added to form
his or her official title, e.g., ``Commander, U.S. Atlantic Fleet.''
Commander, U.S. Atlantic Fleet, Commander, U.S. Pacific Fleet, and
Commander, U.S. Naval Forces Europe, may also be referred to as a
``Geographic Fleet Commander.''
(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.
[64 FR 56062, Oct. 15, 1999, as amended at 68 FR 2697, Jan. 21, 2003]
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
[[Page 27]]
(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;
(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
[[Page 28]]
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.
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
[[Page 29]]
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.
(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
[[Page 30]]
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.
(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.
[[Page 31]]
Sec. 700.826 Physical security.
(a) The commanding officer shall take appropriate action to
safeguard 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 other form of
intoxicant while on duty,
[[Page 39]]
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 appropriate, will be informed by the most expeditious means of all
action
[[Page 40]]
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 service, with their consent, in time of
[[Page 41]]
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 geographic fleet commander, 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.
[64 FR 56062, Oct. 15, 1999, as amended at 68 FR 2697, Jan. 21, 2003]
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. 700.1167 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.
[[Page 45]]
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.
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_DON Privacy Program
701.100 Purpose.
701.101 Privacy program terms and definitions.
701.102 Online resources.
701.103 Applicability.
701.104 Responsibility and authority.
701.105 Policy.
701.106 Collecting information about individuals.
701.107 Record access.
701.108 Amendment of records.
701.109 Privacy Act (PA) appeals.
701.110 Conditions of disclosure.
701.111 Disclosure accounting.
[[Page 46]]
701.112 ``Blanket routine uses.''
701.113 PA exemptions.
701.114 PA enforcement actions.
701.115 Protected personal information (PPI).
701.116 PA systems of records notices overview.
701.117 Changes to PA systems of records.
701.118 Privacy, IT, and PIAs.
701.119 Privacy and the web.
701.120 Processing requests that cite or imply PA, Freedom of
Information (FOIA), or PA/FOIA.
701.121 Processing ``routine use'' disclosures.
701.122 Medical records.
701.123 PA fees.
701.124 PA self assessments/inspections.
701.125 Computer matching program.
Subpart G_Privacy Act Exemptions
701.126 Purpose.
701.127 Exemption for classified records.
701.128 Exemptions for specific Navy record systems.
701.129 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).
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
[[Page 47]]
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 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
[[Page 48]]
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 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.
[[Page 49]]
(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 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.
[[Page 50]]
(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), (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.
[[Page 51]]
(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, 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.
[[Page 52]]
(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 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
[[Page 53]]
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 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.
[[Page 54]]
(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 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.
[[Page 55]]
(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 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,
[[Page 56]]
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 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
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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 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
[[Page 58]]
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.
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
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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 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.
[[Page 60]]
(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 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
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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 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
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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 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
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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 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
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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 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.
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(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 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.
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(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 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
[[Page 67]]
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 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.
[[Page 68]]
(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 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.
[[Page 69]]
(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 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.
[[Page 70]]
(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.
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
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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
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).
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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.
(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
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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 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.
[[Page 74]]
(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 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
[[Page 75]]
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 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.
[[Page 76]]
(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 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
[[Page 77]]
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.''
(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
[[Page 78]]
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 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
[[Page 79]]
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 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
[[Page 80]]
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
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
[[Page 81]]
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:
(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
[[Page 82]]
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 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.
[[Page 83]]
(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 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
[[Page 84]]
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,
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
[[Page 85]]
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.
(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
[[Page 86]]
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 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
[[Page 87]]
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 (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
[[Page 88]]
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 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.
[[Page 89]]
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. 701.61 Purpose.
This subpart implements 5 U.S.C. 552(a) (1) and (2) and provisions
of Department of Defense Directive 5400.7 May 13, 1988 (32 CFR part 286,
55 FR 53104); Department of Defense Directive 5400.9, December 23, 1974
(32 CFR part 336, 40 FR 49111); and the Regulations of the
Administrative Committee of the Federal Register (1 CFR chaps. I and II)
by delineating responsibilities and prescribing requirements, policies,
criteria, and procedures applicable to:
(a) Publishing the following Department of the Navy documents in the
Federal Register:
(1) Certain classes of regulatory, organizational policy,
substantive, and procedural documents required to be published for the
guidance of the public;
(2) Certain classes of proposed regulatory documents required to be
published for public comment prior to issuance; and
(3) Certain public notices required by law or regulation to be
published;
(b) Making available, for public inspection and copying, certain
classes of documents having precedential effect on decisions concerning
members of the public;
(c) Maintaining current indexes of documents having precedential
effect on decisions concerning members of the public, and publishing
such indexes or making them available by other means;
(d) Receiving and considering petitions of members of the public for
the issuance, revision, or cancellation of regulatory documents of some
classes; and
(e) Distributing the Federal Register for official use within the
Department of the Navy.
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 public upon request. That a document may be published or indexed and
made available for public inspection and copying under this instruction
does not affect the possible requirement under subpart A for producing
it for examination, or furnishing a copy, in response to a request made
under that subpart.
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
[[Page 90]]
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.
(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
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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 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
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official pursuant to such recommendation might have that effect.
(c) Deletion of identifying details. (1) Although the exemptions
from public disclosure described in 5 U.S.C. 552 and subpart B of this
part are applicable to documents which are required to be indexed and
made available for public inspection and copying under this paragraph,
there is no general requirement that any segregable portions of
partially exempt documents be so indexed and made available for public
inspection and copying. As a general rule, a record may therefore be
held exempt in its entirety from the requirements of this paragraph if
it is determined that it contains exempt matter and that it is
reasonably foreseeable that disclosure would be harmful to an interest
protected by that exemption. An exception to this general rule does
exist with regard to a record which would be exempt only because it
contains information which, if disclosed, would result in a clearly
unwarranted invasion of privacy.
(2) Where necessary to prevent a clearly unwarranted invasion of a
person's privacy, identifying details should be deleted from a record
which is required to be indexed and made available for public inspection
and copying under this paragraph. In every such case, the justification
for the deletion must be fully stated in writing in a manner which
avoids creating inferences that could be injurious to the person whose
privacy is involved. Usual reasons for deletion of identifying details
include the protection of privacy in a person's business affairs,
medical matters, or private family matters; humanitarian considerations;
and avoidance of embarrassment to a person.
(d) Publication of indexes--(1) Form of indexes. Each index should
be arranged topically or by descriptive words, so that members of the
public may be able to locate the pertinent documents by subject, rather
than by case name or by a numbering system.
(2) Time of publication. Each component having cognizance of records
required under this paragraph to be indexed shall compile and maintain
an index of such records on a continually current basis. Each such index
was required to initially be published by July 1, 1975. An updated
version of each such index, or a current supplement thereto, shall be
published by an authorized method at least annually thereafter.
(3) Methods of publication. The methods authorized for publication
of the indexes contemplated in this paragraph are:
(i) Publication in the Federal Register;
(ii) Commercial publication, provided that such commercial
publication is readily available to members of the public, or will be
made available upon request, and payment of costs (if this method is
utilized, information on the cost of copies and the address from which
they may be obtained shall be published in the Federal Register); or
(iii) Furnishing internally reproduced copies upon request, at cost
not to exceed the direct cost of duplication in accordance with subpart
D of this part, provided that it is determined by an order published in
the Federal Register, that the publication of the index by methods 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
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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;
(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.
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(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_DON Privacy Program
Source: 71 FR 27536, May 11, 2006, unless otherwise noted.
Sec. 701.100 Purpose.
Subparts F and G of this part implement the Privacy Act (5 U.S.C.
552a), and the DOD Directives 5400.11 and 5400.11-R series, DOD Privacy
Program (see 32 CFR part 310) and provides DON policies and procedures
to ensure that all DON military members and civilian/contractor
employees are made fully aware of their rights and responsibilities
under the provisions of the Privacy Act (PA); to balance the
Government's need to maintain information with the obligation to protect
individuals against unwarranted invasions of their privacy stemming from
the DON's collection, maintenance, use, and disclosure of Protected
Personal Information (PPI); and to require privacy management practices
and procedures be employed to evaluate privacy risks in publicly
accessible DON Web sites and unclassified non-national security
information systems.
(a) Scope. Governs the collection, safeguarding, maintenance, use,
access, amendment, and dissemination of PPI kept by DON in PA systems of
records.
(b) Guidance. Provides guidance on how to respond to individuals who
seek access to information in a PA system of records that is retrieved
by their name and/or personal identifier.
(c) Verify identity. Establishes ways to verify the identity of
individuals who request their records before the records are made
available to them.
(d) Online resources. Directs the public to the Navy's PA Online Web
site at http://www.privacy.navy.mil that defines the DON's PA Program,
lists all Navy, Marine Corps, and Government-wide systems of records and
provides guidance on how to gain access to those records.
(e) Rules of conduct. Governs the PA rules of conduct for personnel,
who will be subject to either civil or criminal penalties for
noncompliance with 5 U.S.C. 552a.
(f) Privacy impact assessment (PIA) requirements. Establishes
requirements for conducting, reviewing, approving, and publishing PIAs.
Sec. 701.101 Privacy program terms and definitions.
(a) Access. Review or copying a record or parts thereof contained in
a system of records by any individual.
(b) Agency. For the purposes of disclosing records subject to the PA
between or among DOD components, DOD is considered a single agency. For
all other purposes, DON is considered an agency within the meaning of
PA.
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(c) 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.
(d) Federal personnel. Officers and employees of the U.S.
Government, members of the uniformed services (including members of the
reserve), individuals or survivors thereof, entitled to receive
immediate or deferred retirement benefits under any retirement program
of the U.S. Government (including survivor benefits).
(e) Individual. A living citizen of the U.S. or an alien lawfully
admitted to the U.S. for permanent residence. The custodial parent of a
minor or the legal guardian of any individual also may act on behalf of
an individual. Members of the United States Armed Forces are
``individuals.'' Corporations, partnerships, sole proprietorships,
professional groups, businesses, whether incorporated or unincorporated,
and other commercial entities are not ``individuals.''
(f) Individual access. Access to information pertaining to the
individual by the individual or his/her designated agent or legal
guardian.
(g) Information in identifiable form (IIF). Information in an
Information Technology (IT) system or online collection that directly
identifies an individual (e.g., name, address, social security number or
other identifying code, telephone number, e-mail address, etc.) or by an
agency intends to identify specific individuals in conjunction with
other data elements (i.e., indirect identification that may include a
combination of gender, race, birth date, geographic indicator, and other
descriptors).
(h) Information system. A discrete set of information resources
organized for the collection, processing, maintenance, transmission, and
dissemination of information.
(i) Maintain. Includes maintain, collect, use, or disseminate.
(j) Member of the public. Any individual or party acting in a
private capacity.
(k) Minor. Under this subpart, a minor is an individual under 18
years of age, who is not a member of the U.S. Navy or Marine Corps, or
married.
(l) Official use. Within the context of this subpart, this term is
used when DON 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.
(m) Personal information. Information about an individual that
identifies, relates, or is unique to, or describes him or her (e.g.,
Social Security Number (SSN), age, military rank, civilian grade,
marital status, race, salary, home/office phone numbers, etc.).
(n) 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.
(o) Privacy Impact Assessment (PIA). An ongoing assessment to
evaluate adequate practices in balancing privacy concerns with the
security needs of an organization. The process is designed to guide
owners and developers of information systems in assessing privacy
through the early stages of development. The process consists of privacy
training, gathering data from a project on privacy issues, identifying
and resolving the privacy risks, and approval by a designated privacy
representative.
(p) Protected personal information (PPI). Any information or
characteristics that may be used to distinguish or trace an individual's
identity, such as their name, SSN, or biometric records.
(q) Record. Any item, collection, or grouping of information,
whatever the storage media (e.g., paper, electronic, etc), about an
individual that is maintained by a DON 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.
(r) Review authority. An official charged with the responsibility to
rule
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on administrative appeals of initial denials of requests for
notification, access, or amendment of records. SECNAV has delegated
review authority to the Assistant Secretary of the Navy (Manpower &
Reserve Affairs) (ASN(M&RA)), General Counsel of the DON (GC), and the
Judge Advocate General of the Navy (JAG). Additionally, the Office of
Personnel Management (OPM) is the review authority for civilian official
personnel folders or records contained in any other OPM record.
(s) ``Routine use'' disclosure. A disclosure of a record made
outside DOD for a purpose that is compatible with the purpose for which
the record was collected and maintained by DOD. The ``routine use'' must
have been included in the notice for the system of records published in
the Federal Register.
(t) 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.
(u) System manager. An official who has overall responsibility for a
system of records. He/she may serve at any level in DON. 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).
(v) System of records. A group of records under the control of a DON
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 PA systems of records
must be published in the Federal Register and are also available for
viewing or downloading from the Navy's Privacy Act Online Web site at
http://www.privacy.navy.mil.
(w) Web site. A collection of information organized into a number of
Web documents related to a common subject or set of subjects, including
the ``home page'' and the linked subordinate information.
(x) Working day. All days excluding Saturday, Sunday, and legal
holidays.
Sec. 701.102 Online resources.
(a) Navy PA online Web site (http://www.privacy.navy.mil). This Web
site supplements this subpart and subpart G. It provides a detailed
understanding of the DON's PA Program. It contains information on Navy
and Marine Corps systems of records notices; Government-wide systems of
records notices that can be used by DON personnel; and identifies Navy
and Marine Corps exempt systems of records notices. It includes: PA
policy documents; sample training materials; DOD ``Blanket Routine
Uses;'' a checklist for conducting staff assistance visits; a copy of PA
statute; guidance on how to establish, delete, alter, or amend PA
systems of records notices; and provides updates on the DON's PA
Program.
(b) DON Chief Information Officer (DON CIO) Web site (http://
www.doncio.navy.mil). This Web site provides detailed guidance on PIAs.
(c) DOD's PA Web site (http://www.defenselink.mil/privacy). This Web
site is an excellent resource that contains a listing of all DOD and its
components' PA systems of records notices, DOD PA directive and
regulation, OMB Circulars, Defense Privacy Decision Memoranda, etc.
(d) DON Freedom of Information Act (FOIA) Web site (http://
www.foia.navy.mil). This Web site discusses the interface between PA and
FOIA and provides detailed guidance on the DON's FOIA Program.
Sec. 701.103 Applicability.
(a) DON activities. Applies to all DON activities that collect,
maintain, or disseminate PPI. Applies to DON activities and to
contractors, vendors, and other entities that develop, procure, or use
Information Technology (IT) systems under contract to DOD/DON, to
collect, maintain, or disseminate IIF from or about members of the
public.
(b) Combatant commands. Applies to the U.S. Joint Forces Command
(USJFCOM) and U.S. Pacific Command (USPACOM), except for U.S. Forces
Korea as prescribed by DOD Directive 5100.3.
(c) U.S. citizens and legally admitted aliens. Applies to living
citizens of the U.S. or aliens lawfully admitted for
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permanent legal residence. Requests for access to information in a PA
system of records made by individuals who are not U.S. citizens or
permanent residents will be processed under the provisions of the FOIA.
(d) Federal contractors. Applies to Federal contractors by contract
or other legally binding action, whenever a DON contract provides for
the operation, maintenance, or use of records contained in a PA system
of records to accomplish a DON function.
(1) When a DON activity contracts for the operation or maintenance
of a system of records or a portion of a system of records by a
contractor, the record system or the portion of the record system
affected are considered to be maintained by the DON activity and are
subject to this subpart and subpart G of this part.
(2) The contractor and its employees are considered employees of the
DON activity for purposes of the sanction provisions of the PA during
the performance of the contract.
(3) The Defense Acquisition Regulatory (DAR) Council, which oversees
the implementation of the Federal Acquisition Regulations (FAR) within
DOD, is responsible for developing the specific policies and procedures
for soliciting, awarding, and administering contracts that are subject
to this subpart and 5 U.S.C. 552a.
(4) Consistent with the FAR regulations, 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 solicitation and
resulting contract the terms as prescribed by the FAR (see http://
www.privacy.navy.mil (Admin Tools)).
(5) DON activities must furnish PA Program guidance to their
personnel who solicit and award or administer Government contracts;
inform prospective contractors of their responsibilities regarding the
DON PA Program; and establish an internal system of contractor
performance review to ensure compliance with the DON Privacy Program.
(6) This instruction does not apply to records of a contractor that
are:
(i) 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;
(ii) Maintained as internal contractor employee records, even when
used in conjunction with providing goods or services to a DON activity;
(iii) Maintained as training records by an educational organization
contracted by a DON 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;
(iv) Maintained by a consumer reporting agency to which records have
been disclosed under 31 U.S.C. 3711; or
(7) DON activities shall establish contract surveillance programs to
ensure contractors comply with the procedures established by the DAR
Council.
(8) Disclosing records to a contractor for use in performing a
contract let by a DON activity is considered a disclosure within DON
(i.e., based on an official need to know). The contractor is considered
the agent of DON when receiving and maintaining the records for that
activity.
(e) Precedence. In case of a conflict, this subpart and subpart G
takes precedence over any DON directive that deals with the personal
privacy and rights of individuals regarding their personal records,
except for disclosure of PPI required by 5 U.S.C. 552 and implemented by
Secretary of the Navy (SECNAVINST) 5720.42F.
Sec. 701.104 Responsibility and authority.
(a) Delegation. The Chief of Naval Operations (CNO) for
administering and supervising the execution of 5 U.S.C. 552a, DOD
Directive 5400.11 and DOD Regulation 5400.11-R. The Director, Navy Staff
(DNS) will administer this program through the Head, DON PA/FOIA Policy
Branch (DNS-36) who will serve as the Principal PA Program Manager for
the DON.
(b) CNO (DNS-36). (1) Develops and implements DON policy on the
provisions of the PA; serves as principal advisor on all DON PA matters;
oversees the administration of the DON's PA
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program; reviews and resolves PA complaints; maintains the DON's PA
Online Web site; develops a Navy-wide PA training program and serves as
training oversight manager; establishes, maintains, deletes, and
approves Navy and joint Navy/Marine Corps PA systems of records notices;
compiles reports that address the DON's PA Program to DOD and/or the
Office of Management and Budget (OMB); conducts PA reviews as defined in
OMB Circular A-130; publishes exempt systems of records in the CFR; and
conducts staff assistance visits/program evaluations within DON to
review compliance with 5 U.S.C. 552a, this subpart and subpart G of this
part.
(2) Serves as PA Coordinator for the Secretary of the Navy (SECNAV),
Office of the CNO (OPNAV) and the Naval Historical Center (NHC).
(3) Represents SECNAV on the Defense Privacy Board (DPO). Per DOD
Directive 5400.11, the Board has oversight responsibility for
implementation of the DOD Privacy Program.
(4) Represents SECNAV on the Defense Data Integrity Board. Per DOD
Directive 5400.11, the Board has oversight responsibility for reviewing
and approving all computer matching agreements between the DOD and other
Federal, State, or local government agencies, as well as memoranda of
understanding when the match is internal to DOD, to ensure that
appropriate procedural and due process requirements have been
established before engaging in computer matching activities.
(5) Provides input to the DPO on OMB's Federal Information Security
Management Act (FISMA) Report.
(6) Coordinates on all PIAs prior to the PIA being submitted to DON
CIO for review and final approval. Makes a determination as to whether
the new IT system constitutes a PA system of records. If it does,
determines whether an existing system covers the collection or whether a
new systems notice will have to be written and approved. As necessary,
assists the DON activity in creating and getting a new PA system of
records notice approved.
(7) Oversees the administration of OPNAV's PA program.
(8) Chairs the DON PA Oversight Working Group.
(c) Commandant of the Marine Corps (CMC). (1) Administers and
supervises the execution of this instruction within the Marine Corps and
maintains and approves Marine Corps PA systems of records notices. The
Commandant has designated CMC (ARSF) as the PA manager for the U.S.
Marine Corps.
(2) Oversees the administration of the Marine Corps' PA program;
reviews and resolves PA complaints; develops a Marine Corps privacy
education, training, and awareness program; reviews and validates PIAs
for Marine Corps information systems and submits the validation to CNO
(DNS-36); establishes, maintains, deletes, and approves Marine Corps PA
systems of records notices; and conducts staff assistance visits/program
evaluations within the Marine Corps to review compliance with 5 U.S.C.
552a, this subpart and subpart G of this part.
(3) Serves as the PA Coordinator for all Headquarters, U.S. Marine
Corps components, except for Marine Corps Systems Command and the Marine
Corps Combat Development Command.
(4) Provides input to CNO (DNS-36) for inclusion FISMA Report.
(5) Serves on the DON PA Oversight Working Group.
(6) Coordinates on all PIAs prior to the PIA being submitted to DON
CIO for review and final approval, making a determination as to whether
the new IT system constitutes a PA system of records. If it does,
determines whether an existing system covers the collection or whether a
new systems notice will have to be written and approved. As necessary,
assists the DON activity in creating and getting a new PA system of
records notice approved.
(d) DON CIO. (1) Integrates protection of PPI into the overall DON
major information system life cycle management process as defined in the
E-Government Act of 2002 (Pub. L. 107-347).
(2) Provides guidance for effective assessment and utilization of
privacy-related technologies.
(3) Provides guidance to DON officials on the conduct of PIAs (see
their Web site at http://www.doncio.navy.mil) and oversees DON PIA
policy and procedures to ensure PIAs are conducted
[[Page 99]]
commensurate with the information system being assessed, the sensitivity
of IIF in that system, and the risk of harm for unauthorized release of
that information. Also, DON CIO reserves the right to request that a PIA
be completed on any system that may have privacy risks.
(4) Reviews and approves all PIAs for the DON and submits the
approved PIAs to DOD and OMB according to Federal and DOD guidance.
(5) Serves as the focal point in establishing and validating DON
information systems privacy requirements and coordinating issues with
other DOD Military Departments and Federal Agencies.
(6) Develops and coordinates privacy policy, procedures, education,
training, and awareness practices regarding DON information systems.
(7) Compiles and prepares responses to either DOD or OMB regarding
PIA issues.
(8) Develops and coordinates DON web privacy policy, education,
training and an awareness program in accordance with DON Web privacy
requirements including annual Web site privacy posting training with CNO
(DNS-36).
(9) Provides guidance toward effective research and development of
privacy-related technologies.
(10) Serves as the focal point in establishing and validating DON
Web privacy requirements and coordinating issues with DOD, other
Military Departments, and other Federal agencies.
(11) Provides guidance on the use of encryption software to protect
privacy sensitive information.
(12) Implements DON IT privacy requirements and coordinates IT
information system requirements that cross service boundaries with the
Joint Staff.
(13) Provides recommended changes to CNO (DNS-36) on policy guidance
set forth in this instruction regarding IT privacy policy and procedures
that includes requirements/guidance for conducting PIAs.
(14) Provides input to CNO (DNS-36) for inclusion in the FISMA
Report.
(15) Serves on the DON PA Oversight Working Group.
(e) The Chief of Information (CHINFO) and U.S. Marine Corps Director
of Public Affairs (DIRPA). CHINFO and DIRPA, in accordance with DON CIO
guidance on Department-wide Information Management (IM) and IT matters,
are responsible for developing and administering Navy and Marine Corps
Web site privacy policies and procedures respectively per SECNAVINST
5720.47B. Additionally, CHINFO and DIRPA:
(1) Maintains master World Wide Web (WWW) page to issue new service-
specific Web privacy guidance. CHINFO will maintain a master WWW page to
issue DON guidance and DIRPA will link to that page. All significant
changes to this Web site and/or its location will be issued via Naval
(ALNAV) message.
(2) Maintains overall cognizance for DON and U.S. Marine Corps Web
sites and Web site content-related questions as they pertain to Web site
privacy requirements.
(3) Ensures that public-facing Web sites have machine-readable
privacy policies (i.e., web privacy policies are P3P-enabled or
automatically readable using some other tool).
(4) Provides input to CNO (DNS-36) for inclusion in the FISMA
Report.
(5) Serves on the DON PA Oversight Working Group.
(f) DON PA Oversight Working Group. The DON PA Oversight Working
Group is charged with reviewing and coordinating compliance with DON PA
program initiatives. CNO (DNS-36) will chair this working group, hosting
meetings as deemed appropriate to discuss best PA practices, PA issues,
FISMA reporting and other reporting requirements, PA training
initiatives, etc. At a minimum, membership shall consist of CNO (DNS-
36), DON CIO, CMC (ARSF), CMC (C4I-IA), OJAG (Code 13), OGC (PA/FOIA),
CMC (JAR), CHINFO, and CMC (PA).
(g) DON activities. Each DON activity is responsible for
implementing and administering a PA program under this subpart and
subpart G.
(h) Navy Echelon 2 and 3 Commands and Marine Corps Major Subordinate
Commands. Each Navy Echelon 2 and 3 Command and Marine Corps Major
Subordinate Command will designate a PA Coordinator to:
[[Page 100]]
(1) Serve as principal point of contact on PA matters.
(2) Advise CNO (DNS-36) promptly of the need to establish a new Navy
PA system of records; amend or alter an existing Navy system of records;
or, delete a Navy system of records that is no longer needed.
(3) Advise CMC (ARSF) promptly of the need to establish a new Marine
Corps PA system of records; amend or alter an existing Marine Corps
system of records; or, delete a Marine Corps system of records that is
no longer needed.
(4) Ensure no official files are maintained on individuals that are
retrieved by name or other personal identifier without first ensuring
that a system of records notice exists that permits such collection.
(5) Ensure that PA systems of records managers are properly trained
on their responsibilities for protecting PPI being collected and
maintained under the DON PA Program.
(6) Provide overview training to activity/command personnel on the
provisions of this subpart and subpart G.
(7) Issue an implementing instruction which designates the
activity's PA Coordinator, addresses PA records disposition, addresses
PA processing procedures, identifies those PA systems of records being
used by their activity; and provide training/guidance to those personnel
involved with collecting, maintaining, disseminating information from a
PA system of records.
(8) Review internal directives, forms, practices, and procedures,
including those having PA implications and where Statements (PAS) are
used or PPI is solicited.
(9) Maintain liaison with records management officials (e.g.,
maintenance and disposal procedures and standards, forms, and reports),
as appropriate.
(10) Provide guidance on handling PA requests; scope of PA
exemptions; and the fees, if any, that may be collected.
(11) Conduct staff assistance visits or program evaluations within
their command and lower echelon commands to ensure compliance with the
PA.
(12) Work closely with their PA systems managers to ensure they are
properly trained with regard to collecting, maintaining, and
disseminating information in a PA system of records notice.
(13) Process PA complaints.
(14) Ensure protocols are in place to avoid instances of loss of
PPI. Should a loss occur, take immediate action to apprise affected
individuals of how to ensure their identity has not been compromised.
(15) Work closely with their public affairs officer and/or web
master to ensure that PPI is not placed on public Web sites or in public
folders.
(16) Annually conduct reviews of their PA systems of records to
ensure that they are necessary, accurate, and complete.
(17) Provide CNO (DNS-36) or CMC (ARSF) respectively, with a
complete listing of all PA Coordinators under their jurisdiction. Such
information should include activity name, complete mailing and E-Mail
addresses, office code, name of PA Coordinator, and commercial, DSN, and
FAX telephone numbers.
(18) Review and validate PIAs for their information systems and
submit the validation to CNO (DNS-36) for Navy information systems or to
HQMC (ARSF) for Marine Corps information systems.
(i) DON employees/contractors. DON employees/contractors are
responsible for safeguarding the rights of others by:
(1) Ensuring that PPI contained in a system of records, to which
they have access or are using to conduct official business, is protected
so that the security and confidentiality of the information is
preserved.
(2) 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 instruction or the specific PA systems of records
notice.
(3) Not maintaining unpublished official files that would fall under
the provisions of 5 U.S.C. 552a.
(4) Safeguarding the privacy of individuals and confidentiality of
PPI contained in a system of records.
(5) Properly marking all documents containing PPI data (e.g.,
letters, E-Mails, message traffic, etc.) as ``FOR OFFICIAL USE ONLY--
PRIVACY
[[Page 101]]
SENSITIVE--Any misuse or unauthorized disclosure can result in both
civil and criminal penalties.''
(6) Not maintaining privacy-sensitive information in public folders.
(7) Reporting any unauthorized disclosure of PPI from a system of
records to the applicable Privacy Point of Contact (POC) for his/her
activity.
(8) Reporting the maintenance of any unauthorized system of records
to the applicable Privacy POC for his/her activity.
(j) Denial authority. Within DON, the head of the activity having
cognizance over an exempt PA system of record is authorized to deny
access to that information under the exemptions cited in the PA systems
of records notice. The denial authority may also deny requests to amend
a system of records or to deny notification that a record exists. As
deemed appropriate, the head of the activity may further designate
initial denial authority to an individual properly trained on the
provisions of the PA and this subpart and subpart G of this part.
(k) Release authority. Within DON, officials having cognizance over
a non-exempt PA system of record that is requested by a first party or
his/her authorized representative are authorized to release records. A
release authority may also grant requests for notification and amendment
of systems of records. The PA systems manager, who is properly trained
on the provisions of 5 U.S.C. 552a, DOD Directive 5400.11 and DOD
5400.11-R, may be delegated this responsibility.
(l) Review authority. (1) Assistant Secretary of the Navy (Manpower
& Reserve Affairs) (ASN(M&RA)) is designated to 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.
(2) Both the JAG and GC are designated to act upon requests for
administrative review of initial denials of records for notification,
access, or amendment of records under their cognizance.
(3) The authority of SECNAV, as the head of an agency, to request
records subject to the PA from an agency external to DOD for civil or
criminal law enforcement purposes, under (b)(7) of 5 U.S.C. 552a, is
delegated to CMC; the Commander, Naval Criminal Investigative Service;
JAG and GC.
(m) System manager. System managers are responsible for overseeing
the collection, maintenance, use, and dissemination of information from
a PA system of records and ensuring that all personnel who have access
to those records are aware of their responsibilities for protecting PPI
that is being collected or maintained. In this capacity, they shall:
(1) Establish appropriate administrative, technical, and physical
safeguards to ensure the records in every system of records are
protected from unauthorized alteration, destruction, or disclosure.
(2) 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.
(3) Work closely with their coordinator to ensure that all personnel
who have access to a PA system of records are properly trained on their
responsibilities under the PA. Training materials may be downloaded from
http://www.privacy.navy.mil.
(4) Ensure that no illegal files are maintained.
Note: Official files on individuals that are retrieved by name and/
or personal identifier must be approved and published in the Federal
Register.
(5) Review annually each PA system of records notice under their
cognizance to determine if the records are up-to-date and/or used in
matching programs and whether they are in compliance with the OMB
Guidelines. Such items as organization names, titles, addresses, etc.,
frequently change and should be reported to CNO (DNS-36) for updating
and publication in the Federal Register.
(6) Work with IT personnel to identify any new information systems
being developed that contain PPI. If a PA systems notice does not exist
to allow for the collection, assist in creating a new systems notice
that permits collection.
(7) Complete and maintain a PIA for those systems that collect,
maintain or
[[Page 102]]
disseminate IIF, according to DON PIA guidance found at http://
www.privacy.navy.mil and http://www.doncio.navy.mil.
(8) Complete and maintain a disclosure accounting form for all
disclosures made without the consent of the record subject, except those
made within DOD or under FOIA. (See 701.111).
(9) Ensure that only those DOD/DON officials with a ``need to know''
in the official performance of their duties has access to information
contained in a system of records.
(10) Ensure safeguards are in place to protect the privacy of
individuals and confidentiality of PPI contained in a system of records.
(11) Ensure that records are maintained in accordance with the
identified PA systems of records notice.
(12) Ensure that each newly proposed PA system of records notice is
evaluated for need and relevancy and confirm that no existing PA system
of records notice covers the proposed collection.
(13) Stop collecting any category or item of information about
individuals that is no longer justified, and when feasible remove the
information from existing records.
(14) Ensure that records are kept in accordance with retention and
disposal requirements set forth in SECNAVINST 5720.47B.
(15) Take reasonable steps to ensure the accuracy, relevancy,
timeliness, and completeness of a record before disclosing the record to
anyone outside the Federal Government.
(16) Identify all systems of records that are maintained in whole or
in part by contractor personnel, ensuring that they are properly trained
and that they are routinely inspected for PA compliance.
Sec. 701.105 Policy.
DON recognizes that the privacy of an individual is a personal and
fundamental right that shall be respected and protected and that PPI
shall be collected, maintained, used, or disclosed to ensure that it is
relevant and necessary to accomplish a lawful DON/DOD purpose required
to be accomplished by statute or Executive Order (E.O.). Accordingly, it
is DON policy that DON activities shall fully comply with 5 U.S.C. 552a,
DOD Directive 5400.11 and DOD 5400.11-R to protect individuals from
unwarranted invasions of privacy when information is collected,
processed, maintained, or disseminated. To ensure compliance, DON
activities shall follow the procedures listed in this section.
(a) Collection, maintenance and use. (1) Only maintain systems of
records that have been approved and published in the Federal Register.
(See http://www.privacy.navy.mil for a list of all DOD, Navy, Marine
Corps, and component systems of records notices, as well as, links to
Government-wide systems that the DON is eligible to use).
Note: CNO (DNS-36) can assist Navy activities in identifying
existing systems that may meet their needs and HQMC (ARSF) can assist
Marine Corps activities.
(2) Only collect, maintain, and use PPI needed to support a DON
function or program as authorized by law or E.O. and disclose this
information only as authorized by 5 U.S.C. 552a, this subpart and
subpart G of this part. In assessing need, DON activities shall consider
alternatives such as: truncating the SSN by only using the last four
digits; using information that is not individually identifiable; using a
sampling of certain data for certain individuals only. Additionally,
they shall consider the length of time the information is needed and the
cost of maintaining the information compared to the risks and adverse
consequences of not maintaining the information.
(3) Only maintain PPI that is timely, accurate, complete, and
relevant to the purpose for which it was collected.
(4) DON activities shall not maintain records describing how an
individual exercises his/her rights guaranteed by the First Amendment
(freedom of religion; freedom of political beliefs; freedom of speech;
freedom of the press; the right to peaceful assemblage; and petition for
redress of grievances), unless they are: expressly authorized by
statute; authorized by the individual; within the scope of an authorized
law enforcement activity; or are used for the maintenance of certain
items of information relating to religious affiliation for members of
the naval service who are chaplains.
[[Page 103]]
Note: This should not be construed, however, as restricting or
excluding solicitation of information that the individual is willing to
have in his/her record concerning religious preference, particularly
that required in emergency situations.
(b) Disposal. Dispose of records from systems of records to prevent
inadvertent disclosure. To this end:
(1) Disposal methods are considered adequate if the records are
rendered unrecognizable or beyond reconstruction (e.g., 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) DON activities may recycle PA data. Such recycling must be
accomplished to ensure that PPI is not compromised. Accordingly, the
transfer of large volumes of records in bulk to an authorized disposal
activity is not considered a disclosure of records.
(3) When disposing of or destroying large quantities of records from
a system of records, DON activities must ensure that the records are
disposed of to preclude easy identification of specific records.
(c) Individual access. (1) Allow individuals to have access to and/
or copies of all or portions of their records to which they are
entitled. In the case of a legal guardian or custodial parent of a
minor, they have the same rights as the individual he/she represents. A
minor is defined as an individual under the age of 18. In the case of
members of the Armed Forces under the age of 18, they are not considered
to be minors for the purposes of the PA.
(2) Enter all PA first-party access requests into a tracking system
and assign a case file number. (Files should comply with DON PA systems
of records notice NM05211-1, PA Request Files and Tracking System at
http://www.privacy.navy.mil/notices.)
(3) Allow individuals to seek amendment of their records when they
can identify and provide proof that factual information contained
therein is erroneous, untimely, incomplete, or irrelevant. While
opinions are not subject to amendment, individuals who are denied access
to amending their record may have a statement of disagreement added to
the file.
(4) Allow individuals to appeal decisions that deny them access to
or refusal to amend their records. If a request to amend their record is
denied, allow the individual to file a written statement of
disagreement.
(d) Posting and use of PA sensitive information. (1) Do not post PPI
on an Internet site. Also, limit the posting and use of PA sensitive
information on an Intranet Web site, letter, FAX, e-mail, etc.
(2) When posting or transmitting PPI, ensure the following legend is
posted on the document: ``FOR OFFICIAL USE ONLY--PRIVACY ACT SENSITIVE:
Any misuse or unauthorized disclosure of this information may result in
both criminal and civil penalties.''
(e) Safeguarding PPI. DON activities shall establish appropriate
administrative, technical and physical safeguards to ensure that the
records in every system of records are protected from unauthorized
alteration or disclosure and that their confidentiality is protected.
Protect the records against reasonably anticipated threats of hazards
that could result in substantial harm, embarrassment, inconvenience, or
unfairness to any individual about whom information is kept. At a
minimum, DON activities shall:
(1) Tailor system safeguards to conform to the type of records in
the system, the sensitivity of the PPI stored, the storage medium used,
and the number of records maintained.
(2) Treat all unclassified records that contain PPI that normally
would be withheld from the public under FOIA exemptions (b)(6) and
(b)(7)(C) as if they were designated ``For Official Use Only'' and
safeguard them from unauthorized disclosure.
(3) Ensure that privacy considerations are addressed in the
reengineering of business processes and take proactive steps to ensure
compliance with the PA and 5 U.S.C. 552a as they move from conducting
routine business via paper to electronic media.
(4) Recognize the importance of protecting the privacy of its
members, especially as it modernizes its collection systems. Privacy
issues must be addressed when systems are being developed, and privacy
protections must be
[[Page 104]]
integrated into the development life cycle of automated systems. This
applies also to contractors, vendors, and other entities that develop,
procure, or use IT systems under contract to DOD/DON, to collect,
maintain, or disseminate IIF from or about members of the public (see
Sec. 701.115).
(5) Ensure that adequate safeguards are implemented and enforced to
prevent misuse, unauthorized disclosure, alteration, or destruction of
PPI in records per 5 U.S.C. 552a, this subpart and subpart G of this
part.
Sec. 701.106 Collecting information about individuals.
(a) Collecting information 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 a Federal program.
(b) Collecting information about individuals from third persons. It
may not always be practical to collect all information about an
individual directly. For example, when 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 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/
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
PAS also must be provided.
(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 SSN. 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
DON, individuals are asked to provide their SSNs. In many instances,
this becomes 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/her SSN to
establish a record, a notification is not required when the SSN is
requested only for identification or to locate the records.
(6) DON activities are discouraged from collecting SSNs when another
identifier would suffice. In those instances where activities wish to
differentiate individuals, they may find it advantageous to only collect
the last four digits of the individual's SSN, which is not considered to
be privacy sensitive.
(7) If a DON activity requests 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, it must provide a PAS
and make it clear that disclosure of the number is voluntary. Should the
individual refuse to disclose his/her SSN, the activity must be prepared
to identify the individual by alternate means.
(d) Contents of a PAS. (1) When an individual is requested to
furnish PPI for possible inclusion in a system of
[[Page 105]]
records, a PAS must be provided to the individual, regardless of the
method used to collect the information (e.g., forms, personal or
telephonic interview, etc). If the information requested will not be
included in a system of records, a PAS is not required.
(2) The PAS shall include the following:
(i) The Federal law or E.O. that authorizes collection of
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. (Note: 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 precedent to granting a benefit or
privilege voluntarily sought by the individual, then the individual may
decline to provide the information and decline the benefit);
(iii) The principal purposes for collecting the information;
(iv) The routine uses that will be made of the information (e.g., to
whom and why it will be disclosed outside DOD); and
(v) The possible effects on the individual if the requested
information is not provided.
(3) The PAS 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 a means other than a
form completed by the individual, i.e., solicited over the telephone,
the PAS 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 PAS.
(e) Format for a PAS. When forms are used to collect information
about individuals for a system of records, the PAS 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 PAS);
(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.
(f) Using forms issued by non-DOD activities. Forms subject to the
PA issued by other Federal agencies have a PAS attached or included. DON
activities shall ensure that the statement prepared by the originating
agency is adequate for the purpose for which the form will be used by
the DON activity. If the PAS provided is inadequate, the DON activity
concerned shall prepare a new statement or a supplement to the existing
statement before using the form. Forms issued by agencies not subject to
the PA (state, municipal, and local agencies) do not contain a PAS.
Before using a form prepared by such agencies to collect PPI subject to
this subpart and subpart G, an appropriate PAS must be added.
Sec. 701.107 Record access.
The access provisions of this subpart and subpart G of this part are
intended for use by individuals about whom records are maintained in
systems of records. Accordingly, only individuals seeking first party
access to records retrieved by their name and/or personal identifier
from a system of records have access under the provisions of 5 U.S.C.
552a, this subpart and subpart G of this part, unless they provide
written authorization for their representative to act on their behalf.
(See Sec. 701.107(e) regarding access by custodial parents and legal
guardians.)
(a) How to request records. Individuals shall address requests for
access to records retrieved by their name and/or personal identifier to
the PA systems manager or to the office designated in the paragraph
entitled, ``Record Access Procedures.''
(1) DON activities may not require an individual to state a reason
or justify the need to gain access under 5 U.S.C. 552a, this subpart and
subpart G of this part.
(2) However, an individual must comply with the requirements of the
PA and this instruction in order to seek access to records under the
provisions of 5 U.S.C. 552a, this subpart and subpart G of this part.
Specifically, individuals seeking access to records about themselves
that are maintained in a PA system of records must sign their
[[Page 106]]
request and provide specific identifying data to enable a search for the
requested record. Failure to sign the request or to provide sufficient
identifying data to locate the record will result in the request being
returned for non-compliance with the ``Record Access Procedures'' cited
in the PA system of records notice.
(b) Authorized access. (1) Individuals may authorize the release of
all or part of their records to anyone they choose provided they submit
a signed authorization to that DON activity. Such authorization must
specifically state the records to which the individual may have access.
(2) Individuals may be accompanied by anyone they choose when
seeking to review their records. In such instance, DON activities shall
require the individual to provide a written authorization to allow the
record to be discussed in front of the other person.
(c) Failure to comply. First party requesters will be granted access
to their records under the provisions of the PA, unless:
(1) They did not properly identify the records being sought; did not
sign their request; and/or failed to provide sufficient identifying data
to locate the requested record(s);
(2) They are seeking access to information in a system of records
that is exempt from disclosure in whole or in part under the provisions
of 5 U.S.C. 552a;
(3) They are seeking access to information that was compiled in
anticipation of a civil action or proceeding (i.e., 5 U.S.C. 552a(d)(5)
applies). The term ``civil action or proceeding'' includes quasi-
judicial and pre-trial judicial proceedings, as well as formal
litigation. However, this does not prohibit access to records compiled
or used for purposes other than litigation or to records frequently
subject to litigation. The information must have been compiled for the
primary purpose of litigation to be withheld under 5 U.S.C. 552a(d)(5);
or
(4) They are seeking access to information contained in the system
that is currently and properly classified (see 5 U.S.C. 552a(k)(1)).
(d) Blanket requests. Many DON activities are unable to respond to
``blanket'' requests from individuals for access or copies of ``all
records pertaining to them,'' because they do not have a centralized
index that would allow them to query by name and personal identifier to
identify ``all files.'' Accordingly, it is the requester's
responsibility to identify the specific PA system of records notice for
which they seek information. To assist the requester in identifying such
systems, DON activities shall apprise the requester that a listing of
all DON PA systems of records can be downloaded from http://
www.privacy.navy.mil and that they should identify the specific records
they are seeking and write directly to the PA systems manager listed in
the notice, following the guidance set forth under the section entitled
``Record Access Procedures'' of the notice.
(e) Access by custodial parents and legal guardians. The custodial
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 under the provisions of the PA, if they are
acting on behalf of/in the best interest of/for the benefit of the minor
or incompetent. If the systems manager determines that they are not
acting on behalf of/in the best interest of/for the benefit of the minor
or incompetent, access will not be granted under the PA and the request
will be processed under FOIA (5 U.S.C. 552). See 701.122 regarding
access to medical records.
(f) Access by a minor or incompetent. The right of access of the
parent or legal guardian is in addition to that of the minor or
incompetent. Although a minor or incompetent has the same right of
access as any other individual under this subpart and subpart G of this
part, DON activities may wish to ascertain whether or not the individual
is being coerced to obtain records for the benefit of another. If so,
the activity may refuse to process the request under the provisions of
PA.
(g) Requests from members of Congress. Requests received from a
Member of Congress on behalf of a constituent shall be processed under
the provisions of the PA and this subpart and subpart
[[Page 107]]
G of this part if the requester is seeking access to records about the
constituent contained in a non-exempt PA system of records (i.e., first
party request). Otherwise, the request will be processed under the
provisions of the FOIA (see 5 U.S.C. 552) since the request is received
from a third party (i.e., not the record subject).
(1) The DOD ``Blanket Routine Uses'' enables DON activities to
process requests from Members of Congress on behalf of their
constituents without submitting a written authorization from the
constituent granting authorization to act on their behalf.
(2) In those instances where the DON activity wishes to verify that
a constituent is seeking assistance from a Member of Congress, an oral
or written statement by a Congressional staff member is sufficient to
confirm that the request was received from the individual to whom the
record pertains.
(3) If the constituent inquiry is made on behalf of an individual
other than the record subject (i.e., a third party requester), advise
the Member of Congress that a written consent from the record subject is
required before information may be disclosed. Do not contact the record
subject to obtain consent for the disclosure to the Member of Congress,
unless specifically requested by the Member of Congress.
(4) Depending on the sensitivity of the information being requested,
a DON activity may choose to provide the record directly to the
constituent and notify the congressional office that this has been done
without providing the record to the congressional member.
(h) Release of PPI. Release of PPI to individuals under the PA and/
or this subpart or subpart G is not considered to be a public release of
information.
(i) Verification of identity. (1) An individual shall provide
reasonable verification of identity before obtaining access to records.
In the case of seeking to review a record in person, identification of
the individual can be verified by documents they normally carry (e.g.,
identification card, driver's license, or other license, permit/pass).
DON activities shall not, however, deny access to an individual who is
the subject of the record solely for refusing to divulge his/her SSN,
unless it is the only means of retrieving the record or verifying
identity.
(2) DON activities may not insist that a requester submit a
notarized signature to request records. Instead, the requester shall be
offered the alternative of submitting 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.''
(j) Telephonic requests. DON activities shall not honor telephonic
requests nor unsigned E-Mail/FAX/letter requests for first party access
to a PA system of records.
(k) Denials. (1) An individual may be denied access to a record
pertaining to him/her only if the record was compiled in reasonable
anticipation of civil action; is in a system of records that has been
exempted from the access provisions of this subpart and subpart G of
this part under one of the permitted exemptions; contains classified
information that has been exempted from the access provision of this
instruction under the blanket exemption for such material claimed for
all DOD PA systems of records; is contained in a system of records for
which access may be denied based on some other federal statute.
(2) Only deny the individual access to those portions of the records
for which the denial of access serves some legitimate governmental
purpose.
(3) Only a designated denial authority may deny access to
information contained in an exempt PA system of records. The denial must
be in writing and at a minimum include the name, title or position and
signature of the designated denial authority; the date of the denial;
the specific reason for the denial, including specific citation to the
appropriate sections of the PA or other statutes, this instruction, or
CFR authorizing the denial; notice to the individual of his/her right to
appeal the denial through the component appeal procedure within 60
calendar days; and, the title or position and address of the PA appeals
official for the DON.
(l) Illegible or incomplete records. DON activities may not deny an
individual access to a record solely because the physical condition or
format of the
[[Page 108]]
record does not make it readily available (i.e., when the record is in a
deteriorated state or on magnetic tape). DON activities may either
prepare an extract or recopy the document and mark it ``Best Copy
Available.''
(m) Personal notes. (1) Certain documents under the physical control
of a DON employee and used to assist him/her in performing official
functions are not considered ``agency records'' within the meaning of
this instruction. Un-circulated personal notes and records that are not
disseminated or circulated to any person or organization (e.g., personal
telephone lists or memory aids) that are retained or discarded at the
author's discretion and over which the DON activity does not exercise
direct control, are not considered ``agency records.'' However, if
personnel are officially directed or encouraged, either in writing or
orally, to maintain such records, they may become ``agency records,''
and may be subject this subpart and subpart G of this part.
(2) The personal uncirculated handwritten notes of unit leaders,
office supervisors, or military supervisory personnel concerning
subordinates are not systems of records within the meaning of this
instruction. Such notes are an extension of the individual's memory.
These notes, however, must be maintained and discarded at the discretion
of the individual supervisor and not circulated to others. Any
established requirement to maintain such notes (such as, written or oral
directives, regulations, or command policy) make these notes ``agency
records'' and they then must be made a part of a system of records. If
the notes are circulated, they must be made a part of a system of
records. Any action that gives personal notes the appearance of official
agency records is prohibited, unless the notes have been incorporated
into a system of records.
(n) Compiled in anticipation of litigation. An individual is not
entitled to access information compiled in reasonable anticipation of a
civil action or proceeding. Accordingly, deny access under 5 U.S.C.
552a(d)(5) and then process under FOIA (SECNAVINST 5740.42F) to
determine releasibility.
Sec. 701.108 Amendment of records.
Amendments under this subpart and subpart G of this part are limited
to correcting factual or historical matters (i.e., dates and locations
of service, participation in certain actions of activities, not matters
of opinion (e.g., evaluations of work performance and assessments of
promotion potential contained in employee evaluations, fitness reports,
performance appraisals, or similar documents)) except when such matters
of opinion are based solely on inaccurate facts and the accuracy of
those facts has been thoroughly discredited.
(a) Individual review and correction. Individuals are encouraged to
make periodic reviews of the information maintained about them in
systems of records and to avail themselves of the amendment procedures
established by 5 U.S.C. 552a, this subpart and subpart G of this part,
and other regulations to update their records.
(b) Eligibility. An individual may request amendment of a record
retrieved by his/her personal identifier from a system of records,
unless the:
(1) System has been exempt from the amendment procedure under 5
U.S.C. 552a and/or
(2) Record is covered by another procedure for correction, such as
by the Board for Correction of Naval Records.
(c) Amendment requests. Amendment requests shall be in writing,
except for routine administrative changes, such as change of address.
(1) An amendment request must include: a description of the factual
or historical information to be amended; the reason for the amendment;
the type of amendment action sought (e.g., deletion, correction, or
addition); and copies of available documentary evidence that support the
request.
(2) The burden of proof rests with the individual. The individual
must demonstrate the existence of specific evidence establishing the
factual or historical inaccuracy, and in the case of matters of opinion,
must specifically discredit the underlying facts. General allegations of
error are inadequate.
(3) The individual may be required to provide identification to
prevent the inadvertent or intentional amendment of another's record.
[[Page 109]]
(d) Limits on attacking evidence previously submitted. (1) The
amendment process is not intended to permit the alteration of evidence
presented in the course of judicial or quasi-judicial proceedings. Any
amendments or changes to these records normally are made through the
specific procedures established for the amendment of such records.
(2) Nothing in the amendment process is intended or designed to
permit a collateral attack upon what has already been the subject of a
judicial or quasi-judicial determination. However, while the individual
may not attack the accuracy of the judicial or quasi-judicial
determination under this instruction, he/she may challenge the accuracy
of the recording of that action.
(e) Sufficiency of a request to amend. DON activities shall consider
the following factors when evaluating the sufficiency of a request to
amend: the accuracy of the information itself and the relevance,
timeliness, completeness, and necessity of the recorded information for
accomplishing an assigned mission or purpose.
(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. A record must
be accurate, relevant, timely, complete, and necessary. If the record in
its present state does not meet each of the criteria, the requester's
request to amend the record should be granted to the extent necessary to
meet them.
(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 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. If an amendment request is denied
in whole or in part, promptly notify the individual in writing and
include the following information in the notification:
(1) Those sections of 5 U.S.C. 552a, this subpart or subpart G of
this part upon which the denial is based;
(2) His/her right to appeal to the head of the activity for an
independent review of the initial denial;
(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 amendment of OPM records. The records in an OPM
Government-wide system of records are only temporarily in the custody of
DON activities. See the appropriate OPM Government-wide systems notice
at http://www.defenselink.mil/privacy/govwide for guidance on how to
seek an amendment of information. The custodian DON denial authority may
deny a request, but all denials are subject to review by the Assistant
Director for Workforce Information, Office of Merit Systems Oversight
and Effectiveness, 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.
[[Page 110]]
(2) If possible, DON activities shall 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 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 is also disclosed.
(k) Statement of reasons. (1) If the individual files a statement of
disagreement, the DON 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 DON activity, the statement of reasons
may be disclosed to those individuals, activities, and agencies that
receive the statement of disagreement.
Sec. 701.109 Privacy Act (PA) appeals.
(a) How to file an appeal. Individuals wishing to appeal a denial of
notification, access, or amendment of records shall follow these
guidelines:
(1) The appeal must be received by the cognizant review authority
(i.e., ASN (M&RA), OJAG, 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 and the requester
notified.
(c) Review authorities. ASN (M&RA), JAG, and GC are authorized to
adjudicate appeals made to SECNAV. JAG and GC are further authorized to
delegate this authority to a designated Assistant JAG or Deputy
Assistant JAG and the Principal Deputy General Counsel 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 DON.
(2) If the record pertains to the employment of a present or former
Navy or Marine Corps civilian employee, such as Navy or Marine Corps
civilian personnel records or an employee's grievance or appeal file,
send it to the General Counsel of the Navy, 1000 Navy Pentagon,
Washington, DC 20350-1000.
(3) If the record pertains to a present or former military member's
fitness reports or performance evaluations, send it to the Assistant
Secretary of the Navy (Manpower and Reserve Affairs), 1000 Navy
Pentagon, Washington, DC 20350-1000.
(4) All other records dealing with present or former military
members should be sent to the Office of the Judge Advocate General, 1322
Patterson Avenue SE., Suite 3000, Washington Navy Yard, DC 20374-5066.
(d) Appeal procedures. (1) If the appeal is granted, the review
authority shall advise the individual that his/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; the date of the appeal determination; the name, title, and
signature of the appellate authority; and a statement informing the
requester of his/her right to seek judicial relief in the Federal
District Court.
[[Page 111]]
(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/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. 701.110 Conditions of disclosure.
The PA identifies 12 conditions of disclosure whereby records
contained in a system of records may be disclosed by any means of
communication to any person, or to another agency, except pursuant to a
written request by, or with the prior written consent of, the individual
to whom the record pertains. These instances are identified as:
(a) Official need to know. Records pertaining to an individual may
be disclosed without the consent of the individual to any DOD official
who has need for the record in the performance of his/her assigned
duties. Rank, position, or title alone does not authorize access to PPI
about others. An official need must exist before disclosure can be made.
For the purposes of disclosure, DOD is considered a single agency.
Note: No disclosure accounting required.
(b) FOIA. Records must be disclosed if their release is required by
FOIA. 5 U.S.C. 552 and SECNAVINST 5720.42F require that records be made
available to the public unless exempted from disclosure by one of the
nine FOIA exemptions found in the Act. It follows, therefore, that if a
record is not exempt from disclosure, it must be released. Note: No
disclosure accounting required.
(c) Routine use. Each DON PA system of records notice identifies
what records may be disclosed outside DOD without consent of the
individual to whom the record pertains.
Note: Disclosure accounting is required.
(1) A routine use shall be compatible with and related to the
purpose for which the record was compiled; identify the persons or
organizations to whom the record may be released; identify specifically
the uses to which the information may be put by the receiving agency;
and, have been published previously in the Federal Register.
(2) A routine use shall be established for each user of the
information outside the DOD who needs the information for an official
purpose.
(3) A routine use may be established, discontinued, or amended
without the consent of the individuals involved. However, new or changed
routine uses must be published in the Federal Register for at least 30
days before actually disclosing the records.
(4) In addition to specific routine uses, the DOD has identified
certain ``Blanket Routine Uses'' that apply to all systems, unless the
systems notice states that they do not. (See Sec. 701.112 regarding
Blanket Routine Uses.)
(d) Bureau of Census. Records may be disclosed to the Bureau of
Census for purposes of planning or carrying out a census or survey or
related activity pursuant to the provisions of Title 13.
Note: Disclosure accounting is required.
(e) Statistical research and reporting. Records may be disclosed for
statistical research and reporting without the consent of the individual
to whom they pertain. Before such disclosures, the recipient must
provide advance written assurance that the records will be used as
statistical research or reporting records; only to transferred in a form
that is not individually identifiable; and will not be used, in whole or
in part, to make any determination about rights, benefits, or
entitlements of specific individuals.
Note: Disclosure accounting is required.
(f) National Archives and Records Administration (NARA). Records may
be
[[Page 112]]
disclosed to NARA as a record that has sufficient historical or other
value to warrant its continued preservation by the U.S. Government, or
for evaluation by the Archivist of the U.S. or his designee to determine
whether the record has such value.
Note: Disclosure accounting is required.
(1) Records may be disclosed to NARA to carry out records management
inspections required by law.
(2) Records transferred to a Federal Records Center (FRC) operated
by NARA for storage are not within this category. Those records continue
to be maintained and controlled by the transferring DON activity. The
FRC is considered to be the agency of the DON for this purpose.
(g) Disclosures for law enforcement purposes. Records may be
disclosed without the consent of the individual whom they pertain to
another agency or to an instrumentality of any governmental jurisdiction
within or under the control of the U.S. for a civil or criminal law
enforcement activity provided the civil or criminal law enforcement
activity is authorized by law; the head of the law enforcement activity
or a designee has made a written request specifying the particular
records desired and the law enforcement purpose (such as criminal
investigations, enforcement of a civil law, or a similar purpose) for
which the record is sought; and there is no Federal statute that
prohibits the disclosure of the records to the agency which maintains
the record specifying the particular portion desired and the law
enforcement activity for which the record is sought.
(1) Disclosure to foreign law enforcement agencies is not governed
by the provisions of 5 U.S.C. 552a. To enable disclosure, a specific
routine use must be published in the record system notice or another
governing authority must exist.
(2) If a DON activity discloses a record outside the DOD 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.
(3) Blanket requests from law enforcement activities for 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.
(4) When a record is released to a law enforcement activity under
this routine use, DON activities shall maintain a disclosure accounting.
This disclosure accounting shall not be made available to the individual
to whom the record pertains if the law enforcement activity requests
that the disclosure not be released.
(5) The Blanket Routine Use for law enforcement records applies to
all DON PA systems of records notices. Only by including this routine
use can a DON activity on its own initiative report indications of
violations of law found in a system of records to a law enforcement
activity without the consent of the individual to whom the record
pertains.
(h) Emergency disclosures. Records may be disclosed without the
written consent of the individual to whom they pertain if disclosure is
made under compelling circumstances affecting the health or safety of
any individual. The affected individual need not be the subject of the
record disclosed.
Note: Disclosure accounting is required.
(1) When such a disclosure is made, notify the individual who is the
subject of the record. Notification sent to the last known address of
the individual reflected in the records is sufficient.
(2) 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.
(3) The specific data to be disclosed is at the discretion of the
releasing authority. Emergency medical information may be released by
telephone.
(i) Disclosure to Congress. (1) Records may be disclosed without the
consent of the individual to whom they pertain to either house of the
Congress or to any committee, joint committee or subcommittee of
Congress if the release pertains to a matter within the jurisdiction of
the committee. Note: Disclosure accounting is required.
(2) See Sec. 701.107(g) regarding how to process constituent
inquiry requests.
[[Page 113]]
(j) Government Accountability Office (GAO). Records may be disclosed
to the Comptroller General, or any of his authorized representatives, in
the course of the performance of the duties of the GAO.
Note: Disclosure accounting is required.
(k) Court orders. Records may be disclosed without the consent of
the person to whom they pertain under a court order signed by a judge of
a court of competent jurisdiction. Releases may also be made under the
compulsory legal process of Federal and state bodies having authority to
issue such process.
Note: Disclosure accounting is required.
(1) 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 will be sufficient evidence of the court's exercise of its
authority of the minimal requirements of SECNAVINST 5820.8A, ``Release
of Official Information for Litigation Purposes and Testimony by DON
Personnel.''
(2) 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 nor 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.
(l) Disclosures to consumer reporting agencies. Certain information
may be disclosed to a consumer reporting agency in accordance with
section 3711(f) of Title 31.
Note: Certain information (e.g., name, address, SSN, other
information necessary to establish the identity of the individual;
amount, status, and history of the claim; and the agency or program
under which the claim arose, may be disclosed to consumer reporting
agencies (i.e., credit reference companies as defined by the Federal
Claims Collection Act of 1966, 31 U.S.C. 952d).
Note: Disclosure accounting is required.
Sec. 701.111 Disclosure accounting.
Disclosure accounting allows the individual to determine what
agencies or persons have been provided information from the record,
enable DON activities to advise prior recipients of the record of any
subsequent amendments or statements of dispute concerning the record,
and provide an audit trail of DON's compliance with 5 U.S.C. 552a. Since
the characteristics of various records maintained within the DON vary
widely, no uniform method for keeping disclosure accountings is
prescribed. The primary criteria are that the selected method be one
which will enable an individual to ascertain what persons or agencies
have received disclosures pertaining to him/her; provide a basis for
informing recipients of subsequent amendments or statements or dispute
concerning the record; and, provide a means to prove, if necessary, that
the activity has complied with the requirements of 5 U.S.C. 552a, this
subpart and subpart G of this part.
(a) Record of disclosures made. DON activities must 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 disclosures made under
FOIA. Accordingly, each DON activity with respect to each system of
records under its control must keep a record of 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. OPNAV Form 5211/9, Disclosure Accounting Form,
is downloadable from http://www.privacy.navy.mil and should be used
whenever possible to account for disclosures.
Note: DON activities do not have to maintain a disclosure accounting
for disclosures made under (b)(1), to those officers and employees of an
agency which maintains the record who have a need for the record in the
performance of their duties or under (b)(2)--which is required under
FOIA.
(b) Retention. Disclosure accountings must be kept for five years
after the
[[Page 114]]
disclosure is made or for the life of the record, whichever is longer.
(c) Right of access. 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 or when the system
of records has been exempted from the requirement to provide access to
the disclosure accounting.
(d) Correction. A DON activity must inform any person or other
agency about any correction or notation of dispute made by the agency in
accordance with subsection (d) of 5 U.S.C. 552a of any record that has
been disclosed to the person or agency if an accounting of the
disclosure was made. The exception is for intra-agency ``need to know''
and FOIA disclosures.
(e) Accurate accounting. A DON activity that does not keep a running
tabulation of every disclosure at the time it is made, must be able to
reconstruct an accurate and complete accounting of disclosures to be
able to respond to requests in a timely fashion.
Sec. 701.112 ``Blanket routine uses.''
In the interest of simplicity, economy, and to avoid redundancy, DOD
has established ``DOD Blanket Routine Uses.'' These ``blanket routine
uses'' are applicable to every PA system of records notice maintained
within DOD, unless specifically stated within a particular systems
notice. ``DOD Blanket Routine Uses'' are downloadable from http://
www.privacy.navy.mil (Notices) and are published at the beginning of the
Department of the Navy's Federal Register compilation of record systems
notices.
Sec. 701.113 PA exemptions.
(a) Exempt systems of records. 5 U.S.C. 552a authorizes SECNAV to
adopt rules designating eligible systems of records as exempt from
certain requirements of the Act. This authorization has been delegated
to CNO (DNS-36), who will be responsible for proposing an exemption
rule. Exempt systems of records are identified at http://
www.privacy.navy.mil.
(b) Exemption rule. No PA exemption may be established for a system
of records until the system itself has been established by publishing a
notice in the Federal Register. This allows interested persons an
opportunity to comment.
(c) Access. A PA exemption may not be used to deny an individual
access to information that he/she can obtain under 5 U.S.C. 552.
(d) Exemption status. An exempt system of records that is filed in a
non-exempt system of records retains its exempt status.
(e) Types of exemptions. There are two types of exemptions permitted
by 5 U.S.C. 552a, general and specific exemptions.
(1) General exemptions allow a system of records to be exempt from
all but specifically identified provisions of 5 U.S.C. 552a. They are:
(i) ``(j)(1)''--this exemption is only available for use by CIA to
protect access to their records.
(ii) ``(j)(2)''--this exemption protects criminal law enforcement
records maintained by the DON. To be eligible, the system of records
must be maintained by a DON activity that performs, as one of its
principal functions, the enforcement of criminal laws. For example, the
Naval Criminal Investigative Service and military police activities
qualify for this exemption. 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.
(A) This exemption applies to information compiled for the purpose
of identifying criminal offenders and alleged criminal offenders and
identifying data and notations of arrests; the nature and disposition of
criminal charges; and sentencing, confinement, release, parole and
probation status; information compiled for the purpose of a criminal
investigation, including reports of informants and investigators, and
associated with the identifiable individual; and 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.
[[Page 115]]
(B) The exemption does not apply to investigative records maintained
by a DON activity having no criminal law enforcement duties as one of
its principle functions; or investigative records compiled by any
element concerning an individual's suitability, eligibility; or,
qualification for duty, employment, or access to classified information,
regardless of the principle functions of the DON activity that compiled
them.
(2) Specific exemptions permit certain categories of records to be
exempted from specific provisions of 5 U.S.C. 552a. They are:
(i) ``(k)(1)'': Information which is properly classified under E.O.
in the interest of national defense or foreign policy.
Note: All DOD systems of records that contain classified information
automatically qualify for (k)(1) exemption, without establishing an
exemption rule.
(ii) ``(k)(2)'': Investigatory material compiled for law enforcement
purposes, other than material within the scope of exemption (j)(2). If
an individual is denied any right, privilege, or benefit that he would
otherwise be eligible, as a result of such material, such material shall
be provided to such individual, except to the extent that the disclosure
would reveal the identity of a source who furnished information to the
Government under an express promise that the identity of the source
would be held in confidence, or, prior to 27 September 1975 under an
implied promise that the identity of the source would be held in
confidence.
(iii) ``(k)(3)'': Information maintained in connection with
providing protective services to the President of the United States or
other individuals pursuant to section 3056 of Title 18.
(iv) ``(k)(4)'': Information required by statute to be maintained
and used solely as statistical records.
(v) ``(k)(5)'': 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 that the
disclosure of such material would reveal the identity of a source who
furnished information to the Government under an express promise that
the identity of the source would be held in confidence, or, prior to
September 27, 1975, under an implied promise that the identity of the
source would be held in confidence.
(vi) ``(k)(6)'': Testing and evaluation material used solely to
determine individual qualifications for appointment or promotion in the
Federal service the disclosure of which would compromise the objectivity
or fairness of the testing or examination process.
(vii) ``(k)(7)'': Evaluation material used to determine potential
for promotion in the armed services, but only to the extent that the
disclosure of such material would reveal the identity of the source who
furnished information to the government under an express promise that
the identity of the source would be held in confidence, or, prior to
September 27, 1975, under an implied promise that the identity of the
source would be held in confidence.
(f) Detailed analysis of PA exemptions. A detailed analysis of each
exemption can be found in the Department of Justice's (DOJ's) ``Freedom
of Information Act Guide & Privacy Act Overview'' that appears on http:/
/www.privacy.navy.mil.
Sec. 701.114 PA enforcement actions.
(a) Administrative remedies. Any individual who alleges that he/she
has been affected adversely by a DON activity's violation of 5 U.S.C.
552a and this subpart may seek relief from SECNAV through administrative
channels. It is recommended that the individual first address the issue
through the PA coordinator having cognizance over the relevant records
or supervisor (if a Government employee). If the complaint is not
adequately addressed, the individual may contact CNO (DNS-36) or CMC
(ARSF), for assistance.
(b) Civil court actions. After exhausting administrative remedies,
an individual may file a civil suit in Federal court against a DON
activity for the following acts:
(1) Denial of an amendment request. The activity head, or his/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.
[[Page 116]]
(2) Denial of access. The activity wrongfully refuses to allow the
individual to review the record or wrongfully denies his/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.
(4) Failure to comply with PA. The activity fails to comply with any
other provision of 5 U.S.C. 552a or any rule or regulation issued under
5 U.S.C. 552a and thereby causes the individual to be adversely
affected.
(c) Civil remedies. In addition to specific remedial actions, 5
U.S.C. 552a provides for the payment of damages, court costs, and
attorney fees in some cases.
(d) Criminal penalties. 5 U.S.C. 552a authorizes criminal penalties
against individuals for violations of its provisions, each punishable by
fines up to $5,000.
(1) Wrongful disclosure. Any member or employee of DON who, by
virtue of his/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, this subpart or subpart G.
(2) Maintaining unauthorized records. Any member or employee of DON
who willfully maintains a system of records for which a notice has not
been approved and published in the Federal Register.
(3) Wrongful requesting or obtaining records. Any person who
knowingly and willfully requests or obtains any record concerning an
individual from an agency under false pretenses.
(e) Litigation notification. Whenever a complaint citing the PA is
filed in a U.S. District Court against the DON or any DON employee, the
responsible DON activity shall promptly apprise CNO (DNS-36)) and
provide a copy of all relevant documents. CNO (DNS-36) will in turn
apprise the DPO, who will apprise the DOJ. When a court renders a formal
opinion or judgment, copies of the judgment and/or opinion shall be
promptly provided to CNO (DNS-36). CNO (DNS-36) will apprise the DPO.
Sec. 701.115 Protected personal information (PPI).
(a) Access/disclosure. Access to and disclosure of PPI such as SSN,
date of birth, home address, home telephone number, etc., must be
strictly limited to individuals with an official need to know. It is
inappropriate to use PPI in group/bulk orders. Activities must take
action to protect PPI from being widely disseminated. In particular, PPI
shall not be posted on electronic bulletin boards because the PA
strictly limits PPI access to those officers and employees of the agency
with an official need to know.
(b) Transmittal. In those instances where transmittal of PPI is
necessary, the originator must take every step to properly mark the
correspondence so that the receiver of the information is apprised of
the need to properly protect the information. For example, when
transmitting PPI in a paper document, FAX, or E-Mail, it may be
appropriate to mark it ``FOR OFFICIAL USE ONLY (FOUO)--PRIVACY
SENSITIVE. Any misuse or unauthorized disclosure may result in both
civil and criminal penalties.'' When sending a message that contains
PPI, it should be marked FOUO. It is also advisable to inform the
recipient that the message should not be posted on a bulletin board. In
all cases, recipients of message traffic that contain PPI, whether
marked FOUO or not, must review it prior to posting it on an electronic
bulletin board.
(c) Collection/maintenance. The collection and maintenance of
information retrieved by an individual's name and/or personal identifier
should be performed in compliance with the appropriate PA systems of
record notice (see http://www.privacy. navy.mil). If you need to collect
and maintain information retrieved by an individual's name and/or
personal identifier, you must have an approved PA systems notice to
cover that collection. If you are unsure as to whether a systems notice
exists or not, contact the undersigned for assistance.
[[Page 117]]
(d) Best practices. PA Coordinators should work closely with command
officials to conduct training, evaluate what PPI can be removed from
routine message traffic, review Web site postings, review command
electronic bulletin boards, etc., to ensure appropriate processes are in
place to minimize the misuse and overuse of PPI information that could
be used to commit identity theft. PA Coordinators should also ensure
that their PA systems of records managers have a copy of the appropriate
PA systems notice and understand PA rules. DON activities shall ensure
that PPI (e.g., home address, date of birth, SSN, credit card or charge
card account numbers, etc.) pertaining to a Service member, civilian
employee (appropriated and non-appropriated fund), military retiree,
family member, or another individual affiliated with the activity (i.e.,
volunteer) is protected from unauthorized disclosures. To this end, DON
activities shall:
(1) Notify their personnel of this policy. Address steps necessary
to ensure that PPI is not compromised.
(2) Conduct and document privacy awareness training for activity
personnel (e.g., military, civilian, contractor, volunteers, NAF
employees, etc.) Training options include: ``All Hands'' awareness
briefing; memo to staff; formal training; circulation of brief sheet on
Best Practices, etc.
(3) Examine business practices to eliminate the unnecessary
collection, transmittal and posting on internet/intranet of PPI. DON
activities shall reevaluate the necessity and value of including an
individual's SSN and other PPI in messages, e-mails, and correspondence
in order to conduct official business. The overuse and misuse of SSNs
should be discontinued to avoid the potential for identity theft. For
example, there is no need to include an individual's SSN in a welcome
aboard message. Such messages are routinely posted on command bulletin
boards that are viewable by all. If a unique identifier is needed,
truncate the SSN using only the last four digits.
(4) Mark all documents that contain PPI (e.g., letters, memos,
emails, messages, documents FAXed, etc) FOUO. Consider using a header/
footer that reads: ``FOR OFFICIAL USE ONLY--PRIVACY SENSITIVE: ANY
MISUSE OR UNAUTHORIZED DISCLOSURE MAY RESULT IN BOTH CIVIL AND CRIMINAL
PENALTIES.''
(5) Train DON military members/employees who maintain PPI on their
laptop computers/BlackBerrys, who telecommute, work from home, or take
work home, etc., to ensure information is properly safeguarded against
loss/compromise. Should a loss occur, ensure they are aware of how,
what, and where to report the loss.
(6) Review existing postings on activity Web sites and public
folders to ensure that the PPI is removed to prevent identity theft.
(7) Remove PPI from documents prior to posting or circulating
information to individuals without an ``official need to know.''
(8) Evaluate risks for potential compromise of PPI held in activity
files, databases, etc., to ensure proper safeguards are in place to
prevent unauthorized disclosures. Revise protocols as necessary.
(9) Ensure that PPI is not left out in the open or circulated to
individuals not having an official need to know.
(10) Ensure that PA systems of records are properly safeguarded and
that PPI is properly destroyed (http://www.privacy.navy.mil/
noticenumber/noticeindex.asp).
(11) Organizations that are moving or being disestablished need to
ensure they do not dispose of documents containing PPI in containers
that may be subject to public access/compromise.
(12) DON activities shall build a Privacy Team to identify ways to
preclude inadvertent releases of PPI.
(e) Unauthorized disclosure. In the event an unauthorized disclosure
of PPI is made, DON activities shall:
(1) Take immediate action to prohibit further damage/disclosure.
(2) Within 10 days, the DON activity shall notify all affected
individuals by letter, including the specific data involved and the
circumstances surrounding the incident. If the DON activity is unable to
readily identify the affected individuals, a generalized notice should
be sent to the potentially affected population. As part of any
notification process, individuals shall be
[[Page 118]]
informed to visit the Federal Trade Commission's (FTC's) Web site at
http://www.consumer.gov/idtheft for guidance on protective actions the
individual can take. A synopsis of the disclosure made, number of
individuals affected, actions to be taken, should be e-mailed to CNO
(DNS-36) with ``Identity Theft Notification'' in the subject line.
(3) If the DON activity is unable to comply with the notification
requirements set forth in paragraph (e)(2) of this section, the activity
shall immediately inform CNO (DNS-36) as to the reasons why. CNO (DNS-
36) will, in turn, notify the Secretary of Defense.
(4) DON activities shall identify ways to preclude future incidents.
Sec. 701.116 PA systems of records notices overview.
(a) Scope. A ``system of records notice'' consists of ``records''
that are routinely retrieved by the name, or some other personal
identifier, of an individual and under the control of the DON.
(b) Retrieval practices. How a record is retrieved determines
whether or not it qualifies to be a system of records. For example,
records must be retrieved by a personal identifier (name, SSN, date of
birth, etc.) to qualify as a system of records. Accordingly, a record
that contains information about an individual but IS NOT RETRIEVED by a
personal identifier does not qualify as a system of records under the
provisions of the PA. (Note: The ``ability to retrieve'' is not
sufficient to warrant the establishment of a PA system of records. The
requirement is retrieval by a name or personal identifier.) Should a
business practice change, DON activities shall immediately contact CNO
(DNS-36) to discuss the pending change, so that the systems notice can
be changed or deleted as appropriate.
(c) Recordkeeping standards. A record maintained in a system of
records subject to this instruction 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 must be related
to a lawful purpose or mission of the DON 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 mission or purpose established by Federal Law or E.0. of
the President.
(d) Approval. CNO (DNS-36) is the approval authority for Navy PA
systems of records actions. CMC (ARSF) is the approval authority for
Marine Corps PA systems of records actions. Activities wishing to
create, alter, amend, or delete systems should contact CNO (DNS-36) or
CMC (ARSF), respectively. Those officials will assist in electronically
preparing and coordinating the documents for DOD/Congressional approval,
as electronic processing is both time and cost efficient.
(e) Publication in the Federal Register. Per DOD 5400.11-R, the DPO
has responsibility for submitting all rulemaking and changes to PA
system of records notices for publication in the Federal Register and
CFR.
Sec. 701.117 Changes to PA systems of records.
CNO (DNS-36) is the approval authority for Navy/DON PA systems of
records actions. CMC (ARSF) is the approval authority for Marine Corps
PA systems of records actions. DON activities wishing to create, alter,
amend, or delete systems should contact CNO (DNS-36) or CMC (ARSF), who
will assist in electronically preparing the documents for coordination
and DOD/Congressional approval.
(a) Creating a new system of records. (1) A new system of records is
one for which no existing system notice has been published in the
Federal Register. DON activities wishing to establish a new PA system of
records notice shall contact CNO (DNS-36) (regarding Navy system of
records) or CMC (ARSF) (regarding Marine Corps system of records.) These
officials will assist in the preparation and approval of the notice.
Once approval is obtained
[[Page 119]]
from DOD, the systems notice will be published in the Federal Register
for comment by the public. In the case of an exempt system of records,
it will also be published at 32 CFR part 701. A listing of all DON PA
systems of records notices is available at http://www.privacy.navy.mil.
(2) A DON activity may not begin collecting or maintaining PPI about
individuals that is retrieved by their name and/or personal identifier
until a PA system of records notice has been approved and published in
the Federal Register. Failure to comply with this mandate could result
in both criminal and civil penalties.
(3) In those cases where a system of records has been cancelled or
deleted and it is later determined that it should be reinstated or
reused, a new system notice must be prepared.
(4) DON activities wishing to create a new PA system of records must
conduct a risk analysis of the proposed system to consider the
sensitivity and use of the records; present and projected threats and
vulnerabilities; and projected cost effectiveness of safeguards. (See
Sec. 701.118 regarding PIAs.)
(b) Altering a system of records notice. A systems manager shall
contact CNO (DNS-36)/CMC (ARSF) to alter a PA system of records notice
when there has been:
(1) A significant increase or change in the number or types of
individuals about who records are maintained. For example, a decision to
expand a system of records that originally covered personnel assigned to
only one 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.
(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 that adds a new routine use.
(5) 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.
(6) A change in the manner in which records are organized or in the
method by which records are retrieved.
(7) A combining of record systems due to reorganization.
(c) Amending a system of records notice. DON activities should
apprise CNO (DNS-36) or CMC (ARSF) respectively when a minor change has
been made to a system of records.
(d) 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 instruction, 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. Systems
managers who determine that a systems notice is no longer needed should
contact CNO (DNS-36)/CMC (ARSF) who will prepare the deletion notice and
submit it electronically to DOD for publication in the Federal Register.
(e) Numbering a system of records notice. Systems of records notices
are identified with an ``N'' for a Navy system; ``M'' for a Marine Corps
system; or an ``NM'' to identify a DON-wide system, followed by the
subject matter Standard Subject Identification Code (SSIC).
(f) Detailed information. Detailed information on how to write,
amend, alter, or delete a PA system of records notice is contained at
http://www.privacy.navy.mil.
Sec. 701.118 Privacy, IT, and PIAs.
(a) Development. Privacy must be considered when requirements are
being analyzed and decisions are being made about data usage and storage
design. This applies to all of the development methodologies and system
life cycles used in the DON.
[[Page 120]]
(b) E-Government Act of 2002. The E-Government Act of 2002 (Pub. L.
107-347) directs agencies to conduct reviews of how privacy issues are
considered when purchasing or creating new IT systems or when initiating
new electronic collections of IIF. See DOD Memo of 28 Oct 05, subject
``DOD PIA Guidance'' regarding DOD PIA Guidance.
(c) Purpose. To ensure IIF is only acquired and maintained when
necessary and the supporting IT that is being developed and used
protects and preserves the privacy of the American public and to provide
a means to assure compliance with applicable laws and regulations
governing employee privacy. A PIA should be prepared before developing
or procuring a general support system or major application that
collects, maintains, or disseminates IIF from or about DON civilian or
military personnel.
(d) Scope. The PIA incorporates privacy into the development life
cycle so that all system development initiatives can appropriately
consider privacy issues from the earliest stages of design. During the
early stages of the development of a system, both the system owner and
system developer shall work together to identify, evaluate, and resolve
any privacy risks. Accordingly,
(1) System owners must address what data is to be used, how the data
is to be used, and who will use the data.
(2) System developers must address whether the implementation of the
owner's requirements presents any threats to privacy.
(e) Requirements. Before developing, modifying or establishing an
automated system of records that collects, maintains, and/or
disseminates IIF, DON activities shall conduct a PIA to effectively
address privacy factors. Guidance is provided at http://
www.doncio.navy.mil.
(f) Coverage. E-Government Act of 2002 (Pub. L. 107-347) mandates
the preparation of a PIA either before developing or procuring IT
systems that collect, maintain, or disseminate IIF from or about members
of the public or initiating a new electronic collection of IIF for 10 or
more persons of the public. (Note: The public DOES NOT include DON
civilian or military personnel, but DOES cover family members of such
personnel, retirees and their family members, and DON contractors.) A
PIA should be prepared before developing, modifying, or procuring IT
systems that collect, maintain, or disseminate IIF from or about members
of the public or initiating a new electronic collection of IIF for 10 or
more members of the public. A PIA shall also be prepared before
developing, modifying or procuring a general support system or major
application that collects, maintains, or disseminates IIF from or about
DON civilian and military personnel.
(g) PIA not required. (1) Legacy systems do not require completion
of a PIA. However, DON CIO may request a PIA if the automation or
upgrading of these systems puts the data at risk.
(2) Current operational systems do not require completion of a PIA.
However, if privacy is a concern for a system the DON CIO can request
that a PIA be completed. If a potential problem is identified concerning
a currently operational system, the DON will use all reasonable efforts
to remedy the problem.
Sec. 701.119 Privacy and the web.
DON activities shall consult SECNAVINST 5720.47B for guidance on
what may be posted on a Navy Web site.
Sec. 701.120 Processing requests that cite or imply PA, Freedom of Information (FOIA), or PA/FOIA.
Individuals do not always know what Act(s) to cite when requesting
information. Nonetheless, it is DON policy to ensure that they receive
the maximum access to information they are requesting. Accordingly,
processing guidance is as follows:
(a) Cite/imply PA. (1) Individuals who cite to the PA and/or seek
access to records about themselves that are contained in a PA system of
records that is retrieved by their name and personal identifier, will
have their request processed under the provisions of the PA.
(2) If there is no ``Exemption Claimed for this System,'' then the
record will be released to the requester unless: it contains classified
information ((k)(1)
[[Page 121]]
applies); was compiled in anticipation of litigation ((d)(5) applies);
or contains information about another person. Although there is no
``privacy'' exemption under the PA, delete any information about other
persons and explain in the response letter that ``information not about
you'' was deleted from the response. There is no PA exemption to claim
and no appeal rights to be given.
(b) Cite/imply FOIA. (1) Individuals who cite/imply FOIA when
seeking access to records about themselves will have their request
processed under PA, if the records they seek are contained in a PA
system of records that is retrieved by their name and personal
identifier. However, if the system of records notice contains an
exemption rule, the release of information will be adjudicated using
both PA and FOIA, ensuring that the individual receives the maximum
amount of information allowable under the Acts.
(2) Individuals who cite/imply FOIA and seek access to records about
themselves that are not contained in a PA system of records that is
retrieved by their name and personal identifier will have their request
processed under FOIA.
(3) Individuals who cite to the FOIA, but do not seek access to
records about themselves, will have their request processed under FOIA.
(c) Cite to PA and FOIA. Individuals who cite to both PA and FOIA
and seek access to records contained in a PA system of record retrieved
by their name and personal identifier, will have their request as
follows:
(1) If the system of records does not cite to an exemption rule,
does not contain classified information, or was not compiled in
anticipation of litigation, the entire file is considered releasable
under the PA. However, if the file contains information about another
person, that information shall be withheld and the requester apprised
that information about another individual has been deleted, since the
information is not about them. Since no PA exemption exists for
protecting privacy, no exemption rule can be cited and appeal rights do
not have to be given.
(2) If the system of records does cite to a PA exemption rule, claim
the exemption and process the request under the provisions of the FOIA,
ensuring the requester receives the maximum release of information
allowed under the Acts.
(d) Processing time limits. DON activities shall normally
acknowledge receipt of PA requests within 10 working days and respond
within 30 working days.
Sec. 701.121 Processing ``routine use'' disclosures.
(a) ``Routine use'' disclosure. Individuals or organizations may
seek a ``routine use'' disclosure of information from a DON PA system of
records if the system provides for such a disclosure.
(1) The request must be in writing and state that it is being made
under a ``routine use'' established by a specific PA system of records
notice. For example: ``Under the ``routine use'' provisions of PA
systems notice N05880-1, Security Incident System, that allows release
of information to individuals involved in base incidents, their
insurance companies, and/or attorneys for the purpose of adjudicating a
claim, I am seeking access to a copy of my vehicle accident report to
submit a claim to my insurance company. Information needed to locate
this record is as follows * * *.''
(2) The individual is provided information needed to adjudicate the
claim. A release authority may sign the response letter since a release
of responsive information is being disclosed under a ``routine use,''
there is no ``denial'' of information (i.e., PA/FOIA exemptions do not
apply), and no appeal rights cited.
(3) DON activities shall retain a copy of the request and maintain a
disclosure accounting of the information released. (See Sec. 701.111.)
(b) Failure to cite to a ``routine use.'' Individuals or
organizations that seek access to information contained in a DON PA
system of records under PA/FOIA, but who have access under a ``routine
use'' cited in the systems notice, shall be apprised of the ``routine
use'' access and offered the opportunity to resubmit a ``routine use''
request, rather than having information denied under PA/FOIA. DON
activities shall not make a ``routine use'' disclosure
[[Page 122]]
without having a ``routine use'' request.
(c) Frequent ``routine use'' requests. DON activities (e.g.,
security and military police offices) that routinely receive requests
for information for which a ``routine use'' has been established should
offer a ``routine use'' request form. This will eliminate the
unnecessary burden of processing requests under PA/FOIA when the limited
information being sought is available under a ``routine use.''
Sec. 701.122 Medical records.
(a) Health Information Portability and Accountability Act (HIPAA).
(1) DOD Directive 6025.18 establishes policies and assigns
responsibilities for implementation of the standards for privacy of
individually identifiable health information established by HIPAA.
(2) DOD Directive 6025.18-R prescribes the uses and disclosures of
protected health information.
(3) Detailed guidance on HIPAA compliance is available from the
Bureau of Medicine and Surgery's Web site at http://
navymedicine.med.navy.mil and from DOD at http://www.tricare.osd.mil/
hipaa/.
(4) In addition to responsibilities to comply with this subpart and
subpart G of this part, DOD Directive 6025.18 and DOD 6025.18-R must
also be complied with to the extent applicable. Although nothing in this
subpart and subpart G violates DOD Directive 6025.18, compliance with
this subpart and subpart G in connection with protected health
information does not necessarily satisfy all requirements of DOD
6025.18-R.
(b) Disclosure. DON activities shall disclose medical records to the
individual to whom they pertain, even if a minor, unless a judgment is
made that access to such records could have an adverse effect on the
mental or physical health of the individual. Normally, this
determination shall be made in consultation with a medical practitioner.
(1) Deny the individual access to his/her medical and psychological
records if 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.
(2) If, however, the individual refuses or fails to designate a
medical practitioner, access will be refused. The refusal is not
considered a denial for reporting purposes under the PA.
(c) Access to a minor's medical records. DON activities may grant
access to a minor's medical records to his/her custodial parents or
legal guardians, observing the following procedures:
(1) In the United States, the laws of the State where the records
are located may afford special protection to certain medical records
(e.g., drug and alcohol abuse treatment and psychiatric records.) Even
if the records are maintained by a military medical facility, these
statutes may apply.
(2) For installations located outside the United States, the
custodial parent or legal guardian of a minor shall be denied access if
all of the following conditions are met: the minor at the time of the
treatment or consultation was 15, 16, or 17 years old; the treatment or
consultation was within a program authorized by law or regulation to
provide confidentiality to the minor; the minor indicated a desire that
the treatment or consultation record be handled in confidence and not
disclosed to a parent or guardian; and the custodial parent or legal
guardian does not have the written authorization of the minor or a valid
court order granting access.
(3) All members of the military services and all married persons are
not considered minors regardless of age, and the parents of these
individuals do not have access to their medical records without the
written consent of the individual to whom the record pertains.
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Sec. 701.123 PA fees.
The PA fee schedule is only applicable to first party requesters who
are seeking access to records about themselves that are contained in a
PA system of record. DON activities receiving requests under PA, FOIA,
or PA/FOIA shall only charge fees that are applicable under the Act(s)
in which the request is being processed.
(a) PA costs. PA fees shall include only the direct cost of
reproducing the requested record. There are no fees for search, review,
or any administrative costs associated with the processing of the PA
request. The cost for reproduction of documents/microfiche will be at
the same rate as that charged under the FOIA schedule (see SECNAVINST
5720.42F).
(b) Fee waiver. A requester is entitled to the first 100 pages of
duplication for free.
(1) DON activities shall waive fees automatically if the direct cost
for reproduction of the remaining pages is less than the minimum fee
waiver threshold addressed under FOIA fees (see SECNAVINST 5720.42F).
(2) However, DON activities should not waive fees when it is
determined that a requester is seeking an extension or duplication of a
previous request for which he/she was already granted a waiver.
(3) Decisions to waive or reduce fees that exceed the minimum fee
waiver threshold are made on a case-to-case basis.
(c) PA fee deposits. Checks or money orders shall be made payable to
the Treasurer of the United States. DON activities will forward any
remittances to the Treasury Department pursuant to the Miscellaneous
Receipts Act.
Sec. 701.124 PA self assessments/inspections.
(a) Self assessments. DON activities are encouraged to conduct
annual self-assessments of their PA program. This serves to identify
strengths and weaknesses and to determine training needs of personnel
who work with privacy records/information. A PA self-assessment
evaluation form is provided at http://www.privacy.navy.mil
(Administrative Tools) for use in measuring compliance with the PA.
(b) Inspections. During internal inspections, DON inspectors shall
be alert for compliance with this instruction and for managerial,
administrative, and operational problems associated with the
implementation of the DON's PA program.
(1) DON inspectors shall document their findings in official reports
furnished to the responsible DON officials. These reports, when
appropriate, shall reflect overall assets of the activity's PA program
inspected, or portion thereof, identify deficiencies, irregularities,
and significant problems. Also document remedial actions taken to
correct problems identified.
(2) Inspection reports and follow-up reports shall be maintained in
accordance with established records disposition standards (see
SECNAVINST 5210.8D). These reports shall be made available to PA program
officials and to CNO (DNS-36)/CMC (ARSF) respectively.
(c) Retention of reports. Retain staff visit reports and follow-up
reports per established records disposition standards contained in
SECNAVINST 5210.8D. Retain self-assessment reports until the next self-
assessment is completed. Make these reports available, upon request, to
CNO (DNS-36) or CMC (ARSF).
Sec. 701.125 Computer matching program.
The DPO has responsibility for coordinating the approval of DOD's
participation in Computer Matching agreements with other Federal, state,
and local agencies.
(a) Purpose. To establish or verify initial or continuing
eligibility for Federal benefit programs; verify compliance with the
requirements, either statutory or regulatory, of such programs; or
recoup payments or delinquent debts under such Federal benefit programs.
(b) Record comparison. The record comparison must be a computerized
one between two Federal Agencies or one Federal Agency and a state
agency. Manual comparisons are not covered.
(c) Types of programs not covered. (1) State programs and programs
using records about subjects who are not ``individuals'' as defined in
Sec. 701.101(e) are not covered.
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(2) Statistical matches whose purpose is solely to produce aggregate
data stripped of personal identifiers.
(3) Statistical matches whose purpose is in support of any research
or statistical project.
(4) Law enforcement investigative matches whose purpose is to gather
evidence against a named person or persons in an existing investigation.
(5) Tax administration matches.
(6) Routine administrative matches using Federal personnel records.
(7) Internal matches using only records from DOD systems of records.
(8) Background investigation and foreign counterintelligence matches
done in the course of performing a background check for security
clearances of Federal personnel or Federal contractor personnel or
foreign counterintelligence.
(d) Categories of individuals covered. Applicants for Federal
benefit programs (i.e., individuals initially applying for benefits);
program beneficiaries (i.e., individuals currently receiving or formerly
receiving benefits); and providers of services to support such programs
(i.e., those deriving income from them such as health care providers).
(e) Features of a computer matching program. A 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.
(f) Approval/denial of agreements. The Executive Secretary, Defense
Data Integrity Board, receives and processes for review all requests for
computer matching agreements involving DOD activities. Members of the
Defense Data Integrity Board are provided with a copy of the proposed
computer matching agreement that details the costs associated with the
match, length of agreement, and the number of computer matches expected,
for their approval/disapproval.
(g) Questions. CNO (DNS-36) represents the DON on the Defense Data
Integrity Board. Questions from DON personnel should be directed to CNO
(DNS-36).
Subpart G_Privacy Act Exemptions
Source: 71 FR 27536, May 11, 2006, unless otherwise noted.
Sec. 701.126 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 DON records from
specified provisions of 5 U.S.C. 552a.