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ing is otherwise authorized and warranted under applicable law.
designated official. The formal ap pointment 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 originally to classify information as "SECRET''.
(d) Previous delegations and redelegations of authority within the Department of Transportation originally to classify information are hereby rescinded.
88.13 Authority to downgrade or de
classify. 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.
88.17 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 section 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 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.
$ 8.15 Mandatory review for classifica
(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 withhold
88.19 Procedures for submitting and
processing requests for classifica
tion reviews. (a) The Director of Security and Administrative Management 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, De
partmental 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 this section 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.
sified or downgraded by the Archivist of the United States in accordance with Executive Order 12958, Departmental classification guides, and any existing procedural agreement between NARA 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 NARA.
(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.
88.21 Burden of proof.
For the purpose of determinations to be made under $88.13, 8.15, and 8.17, the burden of proof is on the originating Departmental agency to show that continued classification is warranted.
Subpart C-Access to Information
$ 8.23 Classified information trans
ferred to the Department of Trans
portation. (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 counterpart committee for the other agency.
(c) Classified information transferred to the National Archives and Records Administration (NARA) will be declas
8 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 $8.29 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 and Administrative Management, 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 rep resentative, 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.
88.27 Public availability of declas
(a) It is a fundamental policy of the Department
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.
may have access to classified information provided that:
(1) 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 (NARA) will be referred to the other agency or to NARA, 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 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
$ 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
knowledge as a result of the applicant's worthy. If deemed necessary, before access to files of the Department.
making its determination, the office (iv) That the applicant agrees not to may conduct or request further invesreveal to any person or agency any tigation. Before access is denied in any classified information or privileged in- case, the matter will be referred formation obtained as a result of the through channels to the Director of Seapplicant's access except as specifi- curity and Administrative Managecally authorized in writing by the De- ment for review and submission to the partment, and further agrees that the Personnel Security Review Board for applicant shall not use the information final review. for purposes other than those set forth (5) If access to TOP SECRET or intelin the applicant's application.
ligence or communications security in(v) That the applicant agrees to au- formation is involved a special backthorize a review of the applicant's ground investigation is required. Hownotes and manuscript for the sole pur- ever, this investigation will not be repose of determining that no classified quested until the matter has been reinformation or material is contained ferred through channels to the Director therein.
of Security and Administrative Man(vi) That the applicant understands agement for determination as to adethat failure to abide by conditions of quacy of the justification and the conthis statement will constitute suffi- sent of other agencies as required. cient cause for canceling the appli- (6) When it is indicated that an applicant's access to classified information cant's research may extend to material and for denying the applicant any fu- originating in the records of another ture access, and may subject the appli- agency, approval must be obtained cant to criminal provisions of Federal from the other agency prior to the law as referred to in this statement.
grant of access. (vii) That the applicant is aware and (7) Approvals for access will be valid fully understands that title 18, United for the duration of the current research States Code, Crimes and Criminal Pro- project but no longer than 2 years from cedures, and the Internal Security Act the date of issuance, unless renewed. If of 1950, as amended, title 50, United a subsequent request for similar access States Code, prescribe, under certain is made by the individual within one circumstances, criminal penalties for year from the date of completion of the the unauthorized disclosure of informa- current project, access may again be tion respecting the national security, granted without obtaining a new Naand for loss, destruction, or com- tional Agency Check. If more than one promise of such information.
year has elapsed, a new National Agen(viii) That this statement is made to cy Check must be obtained. The local the U.S. Government to enable it to ex- security office will promptly advise its ercise its responsibilities for the pro- headquarters security staff of all aptection of information affecting the na- provals of access granted under the tional security.
provisions of this section. (ix) That the applicant understands (8) An applicant may be given access that any material false statement that only to that classified information that the applicant makes knowingly and is directly pertinent to the applicant's willfully will subject the applicant to approved project. The applicant may the penalties of 18 U.S.C. 1001.
review files or records containing clas(4) The security office will process sified information only in offices under the forms in the same manner as speci- the control of the Department. Procefied for a preappointment national dures must be established to identify agency check for a critical-sensitive classified material to which the appliposition. Upon receipt of the completed cant is given access. The applicant national agency check, the security of- must be briefed on local procedures esfice, if warranted, may determine that tablished to prevent unauthorized acaccess by the applicant to the informa- cess to the classified material while in tion will be clearly consistent with the the applicant's custody, for the return interests of national security and the of the material for secure storage at person to be granted access is trust- the end of the daily working period,