(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. That he understands that any material false statement which he makes knowingly and willfully will subject him to the penalties of Title 18, United States Code, section 1001.

(4) The security office shall 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 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 Investigations and Security for review and submission to the Secretary for final denial.

(5) If access to Top Secret, intelligence, or communications security information is involved a full field investigation is required. However, this investigation shall not be requested until the matter has been referred through channels to the Director of Investigations and 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 shall 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 shall promptly advise its security staff, headquarters, of all approvals of access granted under these provisions.

(8) An applicant may be given access only to that classified information which is directly pertinent to his approved project. He 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 he is given access. He must be briefed on local procedures established to prevent unauthorized access to the classified material while in his custody, for the return of the material for secure storage at the end of the daily working period, and for the control of his 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 which 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 his notes to assure that classified information is not contained therein, and that the classified information will not be further disseminated or published.

(c) Contractors. Classified information may be disclosed to DOT contractors, subcontractors, bidders, and grantees, and to contractors of other Government agencies, provided access to the information is necessary to the performance of the contract and required security clearances have been issued.

§ 8.29 Industrial security.

Order

(a) Background. Executive 10865, as amended, Safeguarding Classified Information Within Industry (25 FR 1583, February 24, 1960) states,

The Secretary of State, the Secretary of Defense, the Secretary of Transportation, the Commissioners of the Atomic Energy Commission, the Administrator of the National Aeronautics and Space Administration, respectively, shall, by regulation, prescribe such specific requirements, restrictions, and other safeguards as they consider necessary to protect:

(1) Releases of classified information to or within U.S. industry that relate to bidding on, or the negotiation, award, performance, or termination of, contracts with their respective agencies; and

(2) Other releases of classified information to or within industry that such agencies have responsibility for safeguarding. So far as possible, regulations prescribed by them under this order shall be uniform and provide for full cooperation among the agencies concerned.

Executive Order 10865 also prescribes criteria for the issuance of security clearances to industry personnel and requirements for the adjudication of controverted cases.

(b) Implementing regulations. Under an agreement between the Department of Defense and the Department of Transportation, regulations prescribed by the Secretary of Defense to fulfill the provisions of Executive Order 10865, as amended, have been extended to protect releases of classified information for which the Secretary of Transportation is responsible. Specifically, these regulations are:

(1) DOD 5220.22-R, Industrial Security Regulation;

(2) DOD 5220.22-M, Industrial Security Manual for Safeguarding Classified Information, together with supplements; and

(3) DOD 5220.6, Industrial Personnel Security Clearance Program.

These regulations are effective within the Department, which functions as a User Agency as prescribed in the regulations. Appropriate security staffs, project personnel, and contracting officers assure that actions required by the regulations are taken.

(c) Liaison and coordination with Department of Defense. The Director of Investigations and Security shall

(a) This part prescribes the policies and procedures of the Department with respect to testimony of its employees as witnesses in legal proceedings, the acceptance of service of legal process and pleadings in legal proceedings involving the Department, and the production of records of the Department pursuant to subpoena.

(b) The General Counsel or the appropriate counsel of the operating administration concerned may grant permission to deviate from a policy or procedure prescribed by this part. He may grant that permission only when the deviation will not interfere with matters of operational or military necessity, and when:

(1) It is necessary to prevent a miscarriage of justice;

(2) The Department has an interest in the decision that may be rendered in the legal proceeding; or

(3) The deviation is in the best interests of transportation activities fostered by the Department or the United States.

(c) This part does not apply to any legal proceeding in which an employee is to testify, while in leave status, as to facts or events that are in no way related to the duties he performs or to the functions of the Department.

§ 9.3 Definitions.

For purposes of this part:

Appropriate counsel of the operating administration concerned includes the General Counsel or Chief Counsel of the operating administration concerned and any person to whom he has delegated his authority under this part.

Department means the Department

of Transportation, including the Office of the Secretary and the following operating administrations:

(a) The U.S. Coast Guard.

(b) The Federal Aviation Administration.

(c) The Federal Highway Administration.

(d) The Federal Railroad Administration.

(e) The Urban Mass Transportation Administration.

(f) The St. Lawrence Seaway Development Corporation.

Legal proceeding includes any proceeding before a court of law, administrative board or commission, hearing officer, or other body conducting a legal or administrative proceeding.

Legal proceeding between private litigants means any legal proceeding in which neither the United States nor the Department of Transportation is directly or indirectly involved.

Employee of the Department means an officer or employee of the Department and an active duty officer or enlisted member of the Coast Guard.

(g) The National Highway Traffic Safety Administration.

[Amdt. 9-1, 34 FR 11972, July 16, 1969, as amended by Amdt. 9-2, 35 FR 5331, Mar. 31,

1970; Amdt. 9-3, 36 FR 431, Jan. 13, 1971; Amdt. 9-4, 36 FR 4291, Mar. 4, 1971]

§ 9.5 Testimony by employees in proceedings involving the United States.

(a) Except as provided in paragraph (c) of this section, an employee of the Department may not testify as an expert or opinion witness for any party other than the United States in any legal proceeding in which the United States is involved, but may testify as to facts.

(b) Whenever, in any legal proceeding involving the United States, the attorney in charge of presenting the case for the United States requests it, the General Counsel or appropriate counsel of the operating administration concerned shall arrange for an employee of the Department to testify as a witness for the United States.

(c) An employee of the Department may appear and testify as an expert or opinion witness on behalf of an active duty officer or enlisted member of the Coast Guard in any legal proceeding conducted by the Coast Guard.

[Amdt. 9-1, 34 FR 11972, July 16, 1969, as amended by Amdt. 9-4, 36 FR 4290, Mar. 4, 1971]

§ 9.7 Legal proceedings between private litigants; general rule.

Subject to §§ 9.9 and 9.13, an employee of the Department may not testify as an expert or opinion witness, as to any matter related to his duties or the functions of the Department, in any legal proceeding between private litigants, for the following reasons:

(a) To conserve the time of employees for conducting official business.

(b) To minimize the possibility of involving the Department in controversial issues that are not related to its mission.

(c) To prevent the possibility that the public will misconstrue variances between the personal opinions of employees and departmental policy.

(d) To avoid spending the time and money of the United States for private purposes.

§ 9.9 Legal proceedings between private litigants; subpoenas.

(a) Whenever, in a legal proceeding between private litigants, an employee of the Department is served with a subpoena or is requested to testify, he shall immediately report the service or request to the General Counsel or appropriate counsel of the operating administration concerned, who shall determine whether the employee is required to comply and shall, in appropriate cases, arrange for legal representation for the employee.

(b) Whenever an employee's compliance with a subpoena would adversely affect the performance of official duties or require producing records that are not available for public disclosure, the General Counsel or appropriate counsel of the operating administration concerned shall attempt to have the subpoena withdrawn modified.

or

§ 9.11 Legal proceedings between private litigants; factual testimony.

(a) An employee of the Department who has been subpoenaed in a legal proceeding between private litigants, and who is required to comply with the subpoena, shall testify only as to facts within his personal knowledge, even if the facts are contained in a report that he is not allowed to produce. However, he must obtain the permission of the General Counsel or appropriate counsel of the operating administration concerned before disclosing any information that is restricted by statute or regulation.

(b) An employee who gives factual testimony shall avoid any statements of opinion.

§ 9.13 Legal proceedings between private litigants; expert or opinion testimony. If, while testifying in a legal proceeding between private litigants, an employee of the Department is asked for expert or opinion testimony, he shall decline to answer on the grounds that he is forbidden to do so by this part. If he is then ordered by the body conducting the proceeding to testify, he shall do so.

§ 9.15 Legal proceedings between private litigants; disclosure of records.

(a) Copies of any records available for public inspection under part 7 of this subtitle, "Public Availability of Information", are available, as provided in that part, to litigants upon request.

(b) If an employee of the Department receives a subpoena or request to produce records in court or before any other body, he shall refer it to the General Counsel or appropriate counsel of the operating administration concerned. If the subpoena or request calls for producing records the release of which is authorized, counsel shall advise that the subpoena or request be honored.

(c) An employee of the Department may not produce a record except upon a clearance from the General Counsel or appropriate counsel of the operating administration concerned. If copies of records that are available for public inspection under part 7 of this subtitle are subpoenaed, the person subpoenaing them is liable for the fee established under that part for the production of those records, including any search for them.

(d) If an employee is served with a subpoena calling for records that the General Counsel or appropriate counsel of the operating administration concerned determines should not be released, the General Counsel or appropriate counsel of the operating administration concerned shall attempt to have the subpoena withdrawn or modified. If this cannot be done, the employee shall appear at the time and place specified in the subpoena, accompanied by an attorney from the Office of the General Counsel, appropriate counsel of the operating administration concerned, or the Department of Justice, as appropriate, and explain to the authority conducting the proceeding that a statute or regulation prohibits him from producing the records.

(e) If an employee who follows the procedure in paragraph (d) of this section is ordered to show cause why he should not be cited for contempt of court, the General Counsel or appropriate counsel of the operating admin

istration concerned shall request the Department of Justice to represent the employee.

§ 9.17 Acceptance of service on behalf of Secretary.

Process or pleadings in any legal proceeding may be served, at the option of the server, on the General Counsel or appropriate counsel of the operating administration concerned, with the same effect as if served upon the Secretary or the head of the operating administration concerned, as the case may be. The official accepting the service under this section shall acknowledge the service and take further action as appropriate.

APPENDIX H ΤΟ

PART 10-URBAN MASS TRANSPORTATION ADMINISTRATION

APPENDIX I TO PART 10-SAINT LAWRENCE SEAWAY DEVELOPMENT CORPORATION APPENDIX J TO PART 10-RESEARCH AND SPECIAL PROGRAMS ADMINISTRATION

AUTHORITY: Pub. L. 93-579, sec. 9, Department of Transportation Act, Pub. L. 89-670; 49 U.S.C. 1657.

SOURCE: 45 FR 8993, Feb. 11, 1980, unless otherwise noted.

Subpart A-Applicability and Policy § 10.1 Applicability.

(a) This part implements section 552a of title 5, United States Code, as well as other provisions of the Privacy Act of 1974, and prescribes rules governing the availability of those records of the Department of Transportation which relate to citizens of the United States and aliens lawfully admitted for permanent residence.

(b) Appendices B through J to this part:

(1) Describe the places and times at which records are available for inspection and copying;

(2) Indicate the systems of records located at each facility;