§ 8.5 Definitions.

As used in this part:

Classified information means official information which requires protection against unauthorized disclosure in the interest of the national security of the United States and which has been so designated. The specific degree of protection required is designated by the following classification categories:

(a) Top secret. That information or material which 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.

(b) Secret. That information or material which requires a substantial degree of protection and the unauthorized disclosure of which could rea

sonably be expected to cause serious damage to the national security.

(c) Confidential. That national security information or material which requires protection and the unauthor ized disclosure of which could reason. ably be expected to cause damage to the national security.

Classify means to determine that of ficial information requires, in the interest of national security, a specific degree of protection against unauthor ized disclosure, coupled with a designation signifying that such a determination has been made.

Declassify means to determine that information no longer requires protec tion against unauthorized disclosure in the interest of national security. Mate rial will be re-marked to reflect this determination.

Downgrade means to determine that classified information requires a lesser degree of protection against unauthorized disclosure in the interests of na tional security than that currently as signed. Material will be re-marked to reflect this determination.

§ 8.7 Spheres of responsibility.

(a) Pursuant to the provisions of section 7(B)(2) of Executive Order 11652 the Assistant Secretary for Adminis tration is hereby designated as the senior staff officer of the Secretary of Transportation with assigned responsibilities to assure effective compliance with and implementation of the order. National Security Council Directives. and this part.

(b) In the discharge of these respon sibilities, the Assistant Secretary for Administration shall be assisted by the Director of Investigations and Security who, in addition to other actions directed by this part, shall evaluate the overall application of and adherence to the security policies and require ments prescribed herein and who shall report his findings and recommendations to the Assistant Secretary for Administration, heads of administrations, Chairman, National Transportation Safety Board, and, as appropriate, to the Secretary.

(c) Secretarial Officers, heads of ad ministrations, and the Chairman, National Transportation Safety Board.

$1 shall assure the effective administration of the provisions prescribed herein, that adequate personnel and * funding are provided for this purpose, and that corrective actions which may be warranted are taken promptly.

§ 8.9 Security Review Committee.

(a) There is hereby established a Department of Transportation Security Review Committee which shall have authority to:

15 (1) Act on all suggestions and complaints not otherwise resolved with respect to the Department's administration of the Executive Order 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 section 552 of title 5, United States Code, (Freedom of Information Act), when the initial denial is 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 the Executive order and implementing directives.

(b) The Security Review Committee shall be composed of the Assistant Secretary for Administration who shall serve as Chairman, the General Counsel, and the Director of Investigations and Security. When matters affecting a particular administration or the National Transportation Safety Board are at issue, the Associate Administrator for Administration for that administration, the Chief of Staff for the U.S. Coast Guard, or the GenBeral Manager for the National Transportation Safety Board, as the case may be, shall participate as an ad hoc member, together with the Chief Counsel for the particular element.

(c) The Chairman shall submit to the Interagency Classification Review Committee quarterly reports of Departmental Committee actions on classification review requests, classification abuses, and unauthorized disclosure of classified information.

§ 8.11 Authority to classify information. (a) Executive Order 11652 confers upon the Secretary of Transportation

the authority to originally classify information as SECRET or CONFIDENTIAL with further authorization to delegate this authority.

(b) The following delegations of authority to originally classify information as "SECRET" or "CONFIDENTIAL", which may not be redelegated, are hereby made:

(1) Office of the Secretary of Transportation. The Under Secretary; Assistant Secretary for Policy and International Affairs; Assistant Secretary for Administration; Director of Investigations and Security; Director, Transportation Systems Center.

(2) United States Coast Guard. The Commandant; Assistant Commandant; Chief of Staff; Chief, Office of Marine Environment and Systems; Chief, Office of Operations; Chief, Intelligence Staff; Commander, Eastern Area; Commander, Western Area; Commanders, Coast Guard Districts; Commander, Coast Guard Activities Europe.

(3) Federal Aviation Administration. The Administrator; Deputy Administrator; Associate Administrator for Administration; Assistant Administrator for International Aviation Affairs; Director of Air Transportation Security; Regional Directors; Director, Aeronautical Center; Director, National Aviation Facilities Experimental Center.

(4) National Transportation Safety Board. Chairman of the Board; General Manager.

(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" or "Confidential."

(d) Previous delegations and redelegations of authority within the Department of Transportation to originally classify information "Top Secret," "Secret," or "Confidential" are hereby rescinded.

§ 8.13 Authority to downgrade or declassify.

Information originally classified by the Department may be specifically downgraded or declassified by the official authorizing the original classification or by his successor; by a supervisory official of either, or by higher authority; or by the Departmental Security Review Committee.

§ 8.15 Review of exempted and excluded material.

(a) Background—(1) Classified material produced after June 1, 1972. Executive Order 11652 establishes a General Declassification Schedule under which classified material produced after June 1, 1972, becomes automatically downgraded and declassified at prescribed intervals. Exceptions to the General Declassification Schedule with respect to material produced after June 1, 1972, are:

(i) Material which is downgraded or declassified earlier than provided by the Schedule, based upon a predictable event or other development; and

(ii) Material which is exempt from automatic declassification because it may warrant protection for a period exceeding that provided by the Schedule.

Decisions to exempt material from the General Declassification Schedule may be made only by an official authorized to originally classify information as Top Secret, and only if the information falls within one of four categories established by the Executive order. Material which has been exempted from the General Declassification Schedule is subject to a mandatory classification review as specified in paragraph (b) of this section.

(2) Classified material produced prior to June 1, 1972. Classified material produced prior to June 1, 1972, and which was marked group 1, group 2, or group 3 in accordance with the provisions of Executive Order 10501, as amended (26 FR 8932, Sept. 22, 1961), or which is not group marked, is excluded from automatic declassification, but is subject to a mandatory classification review as specified in paragraph (b) of this section.

(b) Requirement for classification review. Classified material which is exempt from the General Declassification Schedule, and classified material which is excluded from automatic declassification shall be subject to a mandatory classification review for declassification purposes at any time after the expiration of 10 years from the date it was produced, provided that:

(1) A department or agency or a member of the public requests a review;

(2) The request describes the record with sufficient particularity to permit the record to be identified; and

(3) The record can be obtained with only a reasonable amount of effort.

(c) Remarking. Material which no longer warrants classification as determined by the review shall be declassified, and so marked. Material which continues to warrant classification shall be marked to indicate that a review was conducted. Whenever possible, a date for automatic declassification shall be established and the material so marked.

(a) The Director of Investigations and Security, Office of the Secretary of Transportation, 400 Seventh Street SW, Washington, DC 20590, is hereby designated as the office to whom a member of the public or another department or agency should submit a request for a classification review of classified material produced by or under the primary cognizance of the Department. Elements of the Depart ment which may receive a request directly shall 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, the Federal Aviation Administration, or the National Transportation Safety Board, the Director shall 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

shall serve as the office acting on the request.

(c) The office acting on the request shall:

(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 part 7, subpart H of the regulations of the Office of the Secretary (part 7, subpart H, of this subtitle), or, in the case of material of the National Transportation Safety Board, pursuant to the regulations of the National Transportation Safety Board (14 CFR part 401, subpart C) [part 401 was redesignated as 49 CFR part 801, at 40 FR 30235, July 17, 1975], the requester shall be so notified;

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(2) Conduct a security review which shall include consultation with the office which 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 days or given an explanation as to why further time is necessary, and provide a copy of the notification to the Director of Investigations and Security.

(d) Whenever a request is insufficient in the description of the record sought, the requester shall 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 shall be notified of the reasons why the request is denied and of his right to appeal the determination. Denial of a request to review based on the provisions of this paragraph shall be taken only under the most extreme circumstances.

(e) If the determination reached is that continued classification is required, the notification to the requester shall include, whenever possible, a brief statement as to why the requested material cannot be declassified. The notification shall also advise the requester of his right to appeal the determination. A requester who wishes

to appeal a classification review decision, or who has not been notified of a decision after 60 days, may submit his appeal to the Chairman, Security Review Committee, Department of Transportation, 400 Seventh Street SW., Washington, DC 20590.

(f) If the determination reached is that continued classification is not required, the information shall be declassified and the material remarked. The office acting on the request shall then refer the request to the office originating the material or higher authority to determine if it is otherwise available for public release under the Freedom of Information Act (5 U.S.C. 552) and part 7 of the regulations of the Office of the Secretary (part 7 of this subtitle, "Public Availability of Information").

(1) If the material is available under the Freedom of Information Act, the requester shall 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 shall be so advised pursuant to part 7, subpart H of the regulations of the Office of the Secretary (part 7, subpart H, of this subtitle), or in the case of National Transportation Safety Board material, pursuant to the regulations of the National Transportation Safety Board (14 CFR part 401, subpart C) [part 401 was redesignated as 49 CFR part 801, at 40 FR 30235, July 17, 1975].

(2) If the material is not available under the Freedom of Information Act, the requester shall 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 subpart G of part 7 of the regulations of the Office of the Secretary (part 7, subpart G, of this subtitle), or in the case of National Transportation Safety Board material, in 14 CFR part 401, subpart E [part 401 was redesignated as 49 CFR part 801, at 40 FR 30235, July 17, 1975], apply.

(g) Upon receipt of an appeal from a classification review determination based upon continued classification, the Departmental Security Review

§ 8.19

Committee shall immediately acknowledge receipt and act on the matter within 30 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 Security Review Committee shall immediately consult with its counterpart committee for that department.

(1) If it is determined that the material produced in the Department requires continued classification, the requester will be so notified and advised of his right to appeal the decision to the Interagency Classification Review Committee.

(2) If it is determined that the material no longer requires classification, it shall be declassified and remarked. The committee shall refer the request to the general counsel, or to the head of the operating administration concerned, or to the Chairman, National Transportation Safety Board, as the case may be, to determine if the material is otherwise available for public release under the Freedom of Information Act (5 U.S.C. 552) and the relevant regulations, and the provisions set forth in paragraphs (f)(1) and (2) of this section shall be followed. A copy of the response to the requester shall be provided to the committee.

(h) Requests for a classification review of material more than 30 years old shall be referred directly to the Archivist of the United States and the requester shall be notified of the referral. In this event, the provisions of § 8.19 apply.

§ 8.19 Declassification of classified material after 30 years.

(a) Classified material produced in the Department after June 1, 1972, which remains in a protected status, will become automatically declassified at the end of 30 full calendar years after the date of its original classifica

tion. If it appears, however, that continued protection is essential to the national security or that disclosure would place a person in immediate jeopardy, the matter shall be referred to the Secretary, through the Director of Investigations and Security. A determination that continued classification is warranted may be made only by the Secretary.

(b) Classified material produced before June 1, 1972, and which is more than 30 years old will be reviewed systematically for declassification by the Archivist of the United States by the end of the 30th full calendar year following the year in which it was originated. In his review, the Archivist will separate and keep protected only such material produced by the Department as is specifically identified by the Secretary as requiring protection. The Director of Investigations and Security is designated as the liaison officer for the Department with the Archivist for this purpose. Each administration shall advise the Director of Investigations and Security of classified material under its cognizance which is or becomes 30 years old. This notification shall also include recommendations for protection of the material considered to warrant continued classification in order that a determination by the Secretary may be obtained.

§ 8.21 Burden of proof.

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

§ 8.23 Classified material transferred to the Department of Transportation.

(a) Classified material officially transferred to the Department pursuant to statute or Executive order in conjunction with a transfer of function, and not merely for storage purposes, shall be considered to have been originated by the Department for the purpose of downgrading and declassification.

(b) Classified material in the custody of the Department originated by a department or agency which has ceased to exist and whose functions and