[Federal Register Volume 61, Number 127 (Monday, July 1, 1996)]
[Proposed Rules]
[Pages 33886-33891]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-16524]


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DEPARTMENT OF TRANSPORTATION

Office of the Secretary

49 CFR Parts 1 and 8

[Docket No. OST-96-1427; Notice 96-16]
RIN: 2105-AC51


Classified Information; Revision

AGENCY: Department of Transportation (DOT), Office of the Secretary.

ACTION: Notice of proposed rulemaking.

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SUMMARY: DOT proposes to revise its regulations regarding 
classification and declassification of, and access to, classified 
information, and to delegate to the Assistant Secretary for 
Administration authority to ensure compliance within DOT with the 
regulations and the underlying Executive Orders. This action is taken 
in response to the President's Regulatory Reinvention Initiative and in 
order to implement recent Executive Orders.

DATES: Comments are due August 30, 1996.

ADDRESSES: Comments should be addressed to Documentary Services 
Division, Attention: Docket Section, Room PL401, Docket No. OST-96-
1427, Department of Transportation, C-55, Washington, DC 20590. Any 
person wishing acknowledgment that his/her comments have been received 
should include a self-addressed stamped postcard. Comments received 
will be available for public inspection and copying in the Documentary 
Services Division, Room PL401, Department of Transportation Building, 
400 Seventh Street, SW, Washington, DC, from 10:00 a.m. to 5:00 p.m. ET 
Monday through Friday except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Robert I. Ross, Office of the General 
Counsel, C-10, Department of Transportation, Washington, DC 20590, 
telephone (202) 366-9156, FAX (202) 366-9170.

SUPPLEMENTARY INFORMATION: In 1995, the President of the United States 
issued two Executive Orders making substantial revisions to the rules 
under which agencies of the Executive Branch, such as DOT, manage 
information that requires special treatment in the interest of national 
security. Briefly stated, Executive Order 12958 of April 17, 1995, 
Classified National Security Information, requires that less 
information be classified; and Executive Order 12968 of August 2, 1995, 
Access to Classified Information, requires agencies to provide 
administrative review of decisions to deny access to classified 
information. This proposal seeks to implement both Orders. To

[[Page 33887]]

foster uniform administration within DOT, authority to ensure 
compliance is being delegated to the Assistant Secretary for 
Administration.

Analysis of Regulatory Impacts

    This amendment is not a ``significant regulatory action'' within 
the meaning of Executive Order 12866. It is also not significant within 
the definition in DOT's Regulatory Policies and Procedures, 49 FR 11034 
(1979), in part because it does not involve any change in important 
Departmental policies. Because the economic impact should be minimal, 
further regulatory evaluation is not necessary. Moreover, I certify 
that this proposal will not have a significant economic impact on a 
substantial number of small entities.
    This proposal does not significantly affect the environment, and 
therefore an environmental impact statement is not required under the 
National Environmental Policy Act of 1969. It has also been reviewed 
under Executive Order 12612, Federalism, and it has been determined 
that it does not have sufficient implications for federalism to warrant 
preparation of a Federalism Assessment.
    Finally, the proposal does not contain any collection of 
information requirements, requiring review under the Paperwork 
Reduction Act of 1980.

List of Subjects

49 CFR Part 1

    Authority delegations (government agencies), Organization and 
functions (government agencies), Transportation Department.

49 CFR Part 8

    Classified information.

    In accordance with the above, DOT proposes to amend 49 CFR, as 
follows:

PART 1--[AMENDED]

    1. The authority citation for part 1 would continue to read as 
follows:

    Authority: 49 USC 322.

    2. In Sec. 1.59, a new paragraph (e)(9) would be added to read as 
follows:


Sec. 1.59  Delegations to the Assistant Secretary for Administration.

    (e) * * *.
    (9) Ensure Department-wide compliance with Executive Orders 10450, 
12829, 12958, 12968, and related regulations and issuances.
* * * * *
    3. Part 8 would be revised to read as follows:

PART 8--CLASSIFIED INFORMATION: CLASSIFICATION/DECLASSIFICATION/
ACCESS

Subpart A--General

Sec.
8.1  Scope.
8.3  Applicability.
8.5  Definitions.
8.7  Spheres of responsibility.

Subpart B--Classification/Declassification of Information

8.9  Information Security Review Committee.
8.11  Authority to classify information.
8.13  Authority to downgrade or declassify.
8.15  Mandatory review for classification.
8.17  Classification challenges.
8.19  Procedures for submitting and processing requests for 
classification reviews.
8.21  Burden of proof.
8.23  Classified information transferred to the Department of 
Transportation.

Subpart C--Access to Information

8.25  Personnel Security Review Board.
8.27  Public availability of declassified information.
8.29  Access by historical researchers and former Presidential 
appointees.
8.31  Industrial security.

    Authority: EO 10450, 18 FR 2489, 3 CFR 1949-1953, Com., p. 936; 
EO 12829, 58 FR 3479; EO 12458, 60 FR 19825; EO 12968, 60 FR 40245.

Subpart A--General


Sec. 8.1  Scope.

    This part sets forth procedures for the classification, 
declassification, and availability of information that must be 
protected in the interest of national security, in implementation of 
Executive Order 12958 of April 17, 1995, ``Classified National Security 
Information;'' and for the review of decisions to revoke, or not to 
issue, national security information clearances, or to deny access to 
classified information, under Executive Order 12968 of August 2, 1995, 
``Access to National Security Information''.


Sec. 8.3  Applicability.

    This part applies to all elements of the Department of 
Transportation.


Sec. 8.5  Definitions.

    As used in this part:
    Classification means the act or process by which information is 
determined to be classified information.
    Classification levels means the following three levels at which 
information may be classified:
    (a) Top Secret. Information that requires the highest degree of 
protection, and the unauthorized disclosure of which could reasonably 
be expected to cause exceptionally grave damage to the national 
security that the original classification authority is able to identify 
or describe.
    (b) Secret. Information that requires a substantial degree of 
protection, and the unauthorized disclosure of which could reasonably 
be expected to cause serious damage to the national security that the 
original classification authority is able to identify or describe.
    (c) Confidential. Information that requires protection and the 
unauthorized disclosure of which could reasonably be expected to cause 
damage to the national security that the original classification 
authority is able to identify or describe.
    Classified information or classified national security information 
means information that has been determined under Executive Order 12958, 
or any predecessor or successor order, to require protection against 
unauthorized disclosure, and is marked to indicate its classified 
status when in documentary form.
    Clearance means that an individual is eligible, under the standards 
of Executive Orders 10450 and 12968 and appropriate DOT regulations, 
for access to classified information.
    Damage to the national security means harm to the national defense 
or foreign relations of the United States from the unauthorized 
disclosure of information, to include the sensitivity, value, and 
utility of that information.
    Declassification means the authorized change in the status of 
information from classified information to unclassified information.
    Downgrading means a determination by a declassification authority 
that information classified and safeguarded at a specific level shall 
be classified and safeguarded at a lower level.
    Information means any knowledge that can be communicated, or 
documentary material, regardless of its physical form or 
characteristics, that is owned by, produced by or for, or is under the 
control of the United States Government. Control means the authority of 
the agency that originates information, or its successor in function, 
to regulate access to the information.
    Mandatory declassification review means the review for 
declassification of classified information in response to a request for 
declassification that qualifies under Section 3.6 of Executive Order 
12958.
    Original classification means an initial determination that 
information requires, in the interest of national security, protection 
against unauthorized disclosure.
    Original classification authority means an individual authorized in

[[Page 33888]]

writing, either by the President or by agency heads or other officials 
designated by the President, to classify information in the first 
instance.


Sec. 8.7  Spheres of responsibility.

    (a) Pursuant to Section 5.6(c) of Executive Order 12958, and to 
Section 6.1 of Executive Order 12968, the Assistant Secretary for 
Administration is hereby designated as the senior agency official of 
the Department of Transportation with assigned responsibilities to 
assure effective compliance with and implementation of Executive Order 
12958, Executive Order 12968, Office of Management and Budget 
Directives, these regulations, and related issuances.
    (b) In the discharge of these responsibilities, the Assistant 
Secretary for Administration will be assisted by the Director of 
Security, who, in addition to other actions directed by this part, will 
evaluate the overall application of and adherence to the security 
policies and requirements prescribed herein and who will report his/her 
findings and recommendations to the Assistant Secretary for 
Administration, heads of Departmental elements, and, as appropriate, to 
the Secretary.
    (c) Secretarial Officers and heads of Departmental elements will 
assure that the provisions herein are effectively administered, that 
adequate personnel and funding are provided for this purpose, and that 
corrective actions that may be warranted are taken promptly.

Subpart B--Classification/Declassification of Information


Sec. 8.9  Information Security Review Committee.

    (a) There is hereby established a Department of Transportation 
Information Security Review Committee, which will have authority to:
    (1) Act on all suggestions and complaints not otherwise resolved 
with respect to the Department's administration of Executive Order 
12958 and implementing directives, including those regarding 
overclassification, failure to declassify, or delay in declassifying;
    (2) Act on appeals of requests for classification reviews, and 
appeals of requests for records under 5 U.S.C. 552 (Freedom of 
Information Act) when the initial, and proposed final, denials are 
based on continued classification of the record; and
    (3) Recommend to the Secretary, when necessary, appropriate 
administrative action to correct abuse or violation of any provision of 
Executive Order 12598 and implementing directives.
    (b) The Information Security Review Committee will be composed of 
the Assistant Secretary for Administration, who will serve as Chair; 
the General Counsel; and the Director of Security. When matters 
affecting a particular Departmental agency are at issue, the Associate 
Administrator for Administration for that agency, or the Chief of Staff 
for the U.S. Coast Guard, as the case may be, will participate as an ad 
hoc member, together with the Chief Counsel of that agency. Any regular 
member may designate a representative with full power to serve in his/
her place.
    (c) In carrying out its responsibilities to review decisions to 
revoke or not to issue clearances, or to deny access to classified 
information, the Committee will establish whatever procedures it deems 
fit.


Sec. 8.11  Authority to classify information.

    (a) Executive Order 12958 confers upon the Secretary of 
Transportation the authority to originally classify information as 
SECRET with further authorization to delegate this authority.
    (b) The following delegations of authority to originally classify 
information as ``SECRET'', which may not be redelegated, are hereby 
made:
    (1) Office of the Secretary of Transportation. The Deputy 
Secretary; Assistant Secretary for Administration; Director of 
Intelligence and Security; Director of Security.
    (2) United States Coast Guard. Commandant; Chief, Office of Law 
Enforcement and Defense Operations.
    (3) Federal Aviation Administration. Administrator; Assistant 
Administrator for Civil Aviation Security.
    (4) Maritime Administration. Administrator.
    (c) Although the delegations of authority set out in paragraph (b) 
of this section are expressed in terms of positions, the authority is 
personal and is invested only in the individual occupying the position. 
The authority may not be exercised ``by direction of'' a designated 
official. The formal appointment or assignment of an individual to one 
of the identified positions or a designation in writing to act in the 
absence of one of these officials, however, conveys the authority to 
originally classify information as ``SECRET''.
    (d) Previous delegations and redelegations of authority within the 
Department of Transportation to originally classify information are 
hereby rescinded.


Sec. 8.13  Authority to downgrade or declassify.

    Information originally classified by the Department may be 
specifically downgraded or declassified by either the official 
authorizing the original classification, if that official is still 
serving in the same position, the originator's current successor in 
function, a supervisory official of either, officials delegated 
declassification authority in writing by the Secretary, or by the 
Departmental Information Security Review Committee.


Sec. 8.15  Mandatory review for classification.

    (a) All information classified by the Department of Transportation 
under Executive Order 12958 or predecessor orders shall be subject to a 
review for declassification if:
    (1) the request for review describes the information with 
sufficient specificity to enable its location with a reasonable amount 
of effort; and
    (2) the information has not been reviewed for declassification 
within the prior two years. If the information has been reviewed within 
the prior two years, or the information is the subject of pending 
litigation, the requestor will be informed of this fact, and of the 
Department's decision not to declassify the information and of his/her 
right to appeal the Department's decision not to declassify the 
information to the Interagency Security Classification Appeals Panel.
    (b) All information reviewed for declassification because of a 
mandatory review will be declassified if it does not meet the standards 
for classification in Executive Order 12958. The information will then 
be released unless withholding is otherwise authorized and warranted 
under applicable law.


Sec. 8.17  Classification challenges.

    (a) Authorized holders of information classified by the Department 
of Transportation who, in good faith, believe that its classification 
status is improper are encouraged and expected to challenge the 
classification status of the information before the Departmental 
Information Security Review Committee.
    (1) No individual will be subject to retribution for bringing such 
a challenge; and
    (2) Each individual whose challenge is denied will be advised that 
he/she may appeal to the Interagency Security Classification Appeals 
Panel established by Sec. 5.4 of Executive Order 12958.
    (b) This classification challenge provision is not intended to 
prevent an authorized holder of information classified by the 
Department of

[[Page 33889]]

Transportation from informally questioning the classification status of 
particular information. Such information inquiries should be encouraged 
as means to resolve classification concerns and reduce the 
administrative burden of formal challenges.


Sec. 8.19  Procedures for submitting and processing requests for 
classification reviews.

    (a) The Director of Security is hereby designated as the official 
to whom a member of the public or another department or agency should 
submit a request for a classification review of classified information 
produced by or under the primary cognizance of the Department. Elements 
of the Department that receive a request directly will immediately 
notify the Director.
    (b) If the request for classification review involves material 
produced by or under the cognizance of the U.S. Coast Guard or the 
Federal Aviation Administration, the Director will forward the request 
to the headquarters security staff of the element concerned for action. 
If the request involves material produced by other Departmental 
elements, the Director will serve as the office acting on the request.
    (c) The office acting on the request will:
    (1) Immediately acknowledge receipt of the request and provide a 
copy of the correspondence to the Director. If a fee for search of 
records is involved pursuant to 49 CFR part 7, the requester will be so 
notified;
    (2) Conduct a security review, which will include consultation with 
the office that produced the material and with source authorities when 
the classification, or exemption of material from automatic 
declassification, was based upon determinations by an original 
classifying authority; and
    (3) Assure that the requester is notified of the determination 
within 30 calendar days or given an explanation as to why further time 
is necessary, and provide a copy of the notification to the Director.
    (d) If the determination reached is that continued classification 
is required, the notification to the requester will include, whenever 
possible, a brief statement as to why the requested material cannot be 
declassified. The notification will also advise the requester of the 
right to appeal the determination to the Departmental Information 
Security Review Committee. A requester who wishes to appeal a 
classification review decision, or who has not been notified of a 
decision after 60 calendar days, may submit an appeal to the 
Departmental Information Security Review Committee.
    (e) If the determination reached is that continued classification 
is not required, the information will be declassified and the material 
remarked accordingly. The office acting on the request will then refer 
the request to the office originating the material or higher authority 
to determine if it is otherwise withholdable from public release under 
the Freedom of Information Act (5 U.S.C. 552) and the Department's 
implementing regulations (49 CFR part 7).
    (1) If the material is available under the Freedom of Information 
Act, the requester will be advised that the material has been 
declassified and is available. If the request involves the furnishing 
of copies and a fee is to be collected, the requester will be so 
advised pursuant to 49 CFR part 7, Departmental regulations 
implementing the Freedom of Information Act.
    (2) If the material is not available under the Freedom of 
Information Act, the requester will be advised that the material has 
been declassified but that the record is unavailable pursuant to the 
Freedom of Information Act, and that the provisions concerning 
procedures for reconsidering decisions not to disclose records, 
contained in 49 CFR part 7, apply.
    (f) Upon receipt of an appeal from a classification review 
determination based upon continued classification, the Departmental 
Information Security Review Committee will acknowledge receipt 
immediately and act on the matter within 30 calendar days. With respect 
to information originally classified by or under the primary cognizance 
of the Department, the Committee, acting for the Secretary, has 
authority to overrule previous determinations in whole or in part when, 
in its judgment, continued protection in the interest of national 
security is no longer required. When the classification of the material 
produced in the Department is based upon a classification determination 
made by another department or agency, the Committee will immediately 
consult with its counterpart committee for that department or agency.
    (1) If it is determined that the material produced in the 
Department requires continued classification, the requester will be so 
notified and advised of the right to appeal the decision to the 
Interagency Classification Review Committee.
    (2) If it is determined that the material no longer requires 
classification, it will be declassified and remarked. The Committee 
will refer the request to the General Counsel, or to the head of the 
Departmental agency concerned, as the case may be, to determine if the 
material is otherwise withholdable from the public under the Freedom of 
Information Act (5 U.S.C. 552) and Departmental regulations, (49 CFR 
Part 7), and paragraphs (f)(1) and (2) of this section will be 
followed. A copy of the response to the requester will be provided to 
the Committee.
    (g) Requests for a classification review of material more than 25 
years old will be referred directly to the Archivist of the United 
States and the requester will be notified of the referral. In this 
event, the provisions of Sec. 8.19 apply.
    (h) Whenever a request is insufficient in the description of the 
record sought, the requester will be asked to limit his request to 
records that are reasonably obtainable. If, in spite of these steps, 
the requester does not describe the records with sufficient 
particularity, or the record requested cannot be obtained with a 
reasonable amount of effort, the requester will be notified of the 
reasons why the request is denied and of his/her right to appeal the 
determination to the Departmental Information Security Review 
Committee.


Sec. 8.21  Burden of proof.

    For the purpose of determinations to be made under Secs. 8.13, 
8.15, and 8.17, the burden of proof is on the originating Departmental 
agency to show that continued classification is warranted.


Sec. 8.23  Classified information transferred to the Department of 
Transportation.

    (a) Classified information officially transferred to the Department 
in conjunction with a transfer of function, and not merely for storage 
purposes, will be considered to have been originated by the Department.
    (b) Classified information in the custody of the Department 
originated by a department or agency that has ceased to exist and for 
whom there is no successor agency will be deemed to have been 
originated by the Department. This information may be declassified or 
downgraded by the Department after consultation with any other agency 
that has an interest in the subject matter of the information. Such 
agency will be allowed 30 calendar days in which to express an 
objection, if it so desires, before action is taken. A difference of 
opinion that cannot be resolved will be referred to the Departmental 
Information Security Review Committee, which will consult with its

[[Page 33890]]

counterpart committee for the other agency.
    (c) Classified information transferred to the National Archives and 
Records Administration will be declassified or downgraded by the 
Archivist in accordance with Executive Order 12958, Departmental 
classification guides, and any existing procedural agreement between 
the Archivist and the Department. The Department will take all 
reasonable steps to declassify information contained in records 
determined to have permanent historical value before they are 
accessioned in the National Archives.
    (d) To the extent practicable, the Department will adopt a system 
of records management that will facilitate the public release of 
documents at the time such documents are declassified under the 
provisions of this part for automatic declassification. To the maximum 
extent possible without destroying the integrity of the Department's 
files, all such material will be segregated or set aside for public 
release upon request. The Department will cooperate with the Archivist 
in efforts to establish a Government-wide database of information that 
has been declassified.

Subpart C--Access to Information


Sec. 8.25  Personnel Security Review Board.

    (a) There is hereby established a Department of Transportation 
Personnel Security Review Board, which will, on behalf of the Secretary 
of Transportation (except in any case in which the Secretary personally 
makes the decision), make the administratively final decision on an 
appeal arising in any part of the Department from:
    (1) A decision not to grant access to classified information;
    (2) A decision to revoke access to classified information; or
    (3) A decision under Sec. 8.29 of this part to deny access to 
classified information.
    (b) The Personnel Security Review Board will be composed of:
    (1) two persons appointed by the Assistant Secretary for 
Administration: one from the Office of Personnel and Training, and one, 
familiar with personnel security adjudication, from the Office of 
Security, who will serve as Chair;
    (2) one person appointed by the General Counsel, who, in addition 
to serving as a member of the Board, will provide to the Board whatever 
legal services it may require; and
    (3) one person appointed by each of the Commandant of the Coast 
Guard and the Federal Aviation Administrator.
    (4) Any member may designate a representative, meeting the same 
criteria as the member, with full power to serve in his/her place.
    (c) In carrying out its responsibilities to review final decisions 
to revoke or deny access to classified information, the Board will 
establish whatever procedures it deems fit.


Sec. 8.27  Public availability of declassified information.

    (a) It is a fundamental policy of the Department to make 
information available to the public to the maximum extent permitted by 
law. Information that is declassified for any reason loses its status 
as material protected in the interest of national security. 
Accordingly, declassified information will be handled in every respect 
on the same basis as all other unclassified information. Declassified 
information is subject to the Departmental public information policies 
and procedures, with particular reference to the Freedom of Information 
Act (5 U.S.C. 552) and implementing Departmental regulations (49 CFR 
part 7).
    (b) In furtherance of this policy, all classified material produced 
after June 1, 1972 that is of sufficient historical or other value to 
warrant preservation as permanent records in accordance with 
appropriate records administrative standards, and that becomes 
declassified, will be systematically reviewed prior to the end of each 
calendar year for the purpose of making the material publicly 
available. To the maximum extent possible without destroying the 
integrity of the Department's files, all such material will be 
segregated or set aside for public release upon request.


Sec. 8.29  Access by historical researchers and former Presidential 
appointees.

    (a) Historical researchers. (1) Persons outside the executive 
branch who are engaged in historical research projects may have access 
to classified information provided that:
    (i) Access to the information is clearly consistent with the 
interests of national security; and
    (ii) The person to be granted access is trustworthy.
    (2) The provisions of this paragraph apply only to persons who are 
conducting historical research as private individuals or under private 
sponsorship and do not apply to research conducted under Government 
contract or sponsorship. The provisions are applicable only to 
situations where the classified information concerned, or any part of 
it, was originated by the Department or its contractors, or where the 
information, if originated elsewhere, is in the sole custody of the 
Department. Any person requesting access to material originated in 
another agency or to information under the exclusive jurisdiction of 
the National Archives and Records Administration will be referred to 
the other agency or to the National Archives and Records 
Administration, as appropriate.
    (3) When a request for access to classified information for 
historical research is received, it will be referred to the appropriate 
local security office. That office will obtain from the applicant 
completed Standard Form 86, Questionnaire for National Security 
Positions, in triplicate, and Standard Form 87, Fingerprint Chart; a 
statement in detail to justify access, including identification of the 
kind of information desired and the organization or organizations, if 
any, sponsoring the research; and a written statement (signed, dated, 
and witnessed) with respect to the following:
    (i) That the applicant will abide by regulations of the Department:
    (A) To safeguard classified information; and
    (B) To protect information that has been determined to be 
proprietary or privileged and is therefore not eligible for public 
dissemination.
    (ii) That the applicant understands that any classified information 
that the applicant receives affects the security of the United States.
    (iii) That the applicant acknowledges an obligation to safeguard 
classified information or privileged information of which the applicant 
gains possession or knowledge as a result of the applicant's access to 
files of the Department.
    (iv) That the applicant agrees not to reveal to any person or 
agency any classified information or privileged information obtained as 
a result of the applicant's access except as specifically authorized in 
writing by the Department, and further agrees that the applicant shall 
not use the information for purposes other than those set forth in the 
applicant's application.
    (v) That the applicant agrees to authorize a review of the 
applicant's notes and manuscript for the sole purpose of determining 
that no classified information or material is contained therein.
    (vi) That the applicant understands that failure to abide by 
conditions of this statement will constitute sufficient cause for 
canceling the applicant's access to classified information and for 
denying the applicant any future access, and may subject the applicant 
to criminal provisions of Federal law as referred to in this statement.
    (vii) That the applicant is aware and fully understands that title 
18, United

[[Page 33891]]

States Code, Crimes and Criminal Procedures, and the Internal Security 
Act of 1950, as amended, title 50, United States Code, prescribe, under 
certain circumstances, criminal penalties for the unauthorized 
disclosure of information respecting the national security, and for 
loss, destruction, or compromise of such information.
    (viii) That this statement is made to the U.S. Government to enable 
it to exercise its responsibilities for the protection of information 
affecting the national security.
    (ix) That the applicant understands that any material false 
statement that the applicant makes knowingly and willfully will subject 
the applicant to the penalties of 18 U.S.C. 1001.
    (4) The security office will process the forms in the same manner 
as specified for a preappointment national agency check for a critical-
sensitive position. Upon receipt of the completed national agency 
check, the security office, if warranted, may determine that access by 
the applicant to the information will be clearly consistent with the 
interests of national security and the person to be granted access is 
trustworthy. If deemed necessary, before making its determination, the 
office may conduct or request further investigation. Before access is 
denied in any case, the matter will be referred through channels to the 
Director of Security for review and submission to the Personnel 
Security Review Board for final review.
    (5) If access to TOP SECRET or intelligence or communications 
security information is involved a special background investigation is 
required. However, this investigation will not be requested until the 
matter has been referred through channels to the Director of Security 
for determination as to adequacy of the justification and the consent 
of other agencies as required.
    (6) When it is indicated that an applicant's research may extend to 
material originating in the records of another agency, approval must be 
obtained from the other agency prior to the grant of access.
    (7) Approvals for access will be valid for the duration of the 
current research project but no longer than 2 years from the date of 
issuance, unless renewed. If a subsequent request for similar access is 
made by the individual within 1 year from the date of completion of the 
current project, access may again be granted without obtaining a new 
National Agency Check. If more than 1 year has elapsed, a new National 
Agency Check must be obtained. The local security office will promptly 
advise its headquarters security staff of all approvals of access 
granted under these provisions.
    (8) An applicant may be given access only to that classified 
information that is directly pertinent to the applicant's approved 
project. The applicant may review files or records containing 
classified information only in offices under the control of the 
Department. Procedures must be established to identify classified 
material to which the applicant is given access. The applicant must be 
briefed on local procedures established to prevent unauthorized access 
to the classified material while in the applicant's custody, for the 
return of the material for secure storage at the end of the daily 
working period, and for the control of the applicant's notes until they 
have been reviewed. In addition to the security review of the 
applicant's manuscript, the manuscript must be reviewed by appropriate 
offices to assure that it is technically accurate insofar as material 
obtained from the Department is concerned, and is consistent with the 
Department's public release policies.
    (b) Former Presidential appointees. Persons who previously occupied 
policymaking positions to which they were appointed by the President 
may be granted access to classified information or material that they 
originated, reviewed, signed, or received, while in public office, 
provided that:
    (1) It is determined that such access is clearly consistent with 
the interests of national security; and
    (2) The person agrees to safeguard the information, to authorize a 
review of the person's notes to assure that classified information is 
not contained therein, and that the classified information will not be 
further disseminated or published.


Sec. 8.31  Industrial security.

    (a) Background. The National Industrial Security Program was 
established by Executive Order 12829 of January 6, 1993 for the 
protection of information classified pursuant to Executive Order 12356 
of April 2, 1982, National Security Information, or its predecessor or 
successor orders, and the Atomic Energy Act of 1954, as amended. The 
Secretary of Defense serves as the Executive Agent for inspecting and 
monitoring contractors, licensees, grantees, and certificate holders 
that require or will require access to, or that store or will store, 
classified information, and for determining the eligibility for access 
to classified information of contractors, licensees, certificate 
holders, and grantees, and their respective employees.
    (b) Implementing regulations. The Secretary of Transportation has 
entered into agreement for the Secretary of Defense to render 
industrial security services for the Department of Transportation. 
Regulations prescribed by the Secretary of Defense to fulfill the 
provisions of Executive Order 12829 have been extended to protect 
release of classified information for which the Secretary of 
Transportation is responsible. Specifically, this regulation is DOD 
5220.22-M, National Industrial Security Program Operating Manual. This 
regulation is effective within the Department of Transportation, which 
functions as a User Agency as prescribed in the regulation. Appropriate 
security staffs, project personnel, and contracting officers assure 
that actions required by the regulation are taken.

    Issued in Washington, DC, on May 31, 1996.
Federico Pena,
Secretary of Transportation.
[FR Doc. 96-16524 Filed 6-28-96; 8:45 am]
BILLING CODE 4910-62-P