PAGENO="0001" ~- ~ HEARINGS RELATING TO HI, 15626, H.R. 15649, H.R. 16613, H.R. 16757, HI. 15018, HI. 15092, HI. 15229, H.R. 15272, III. 15336, an~ HI. 15828, AMENDING THE SUBVERSIVE ACTWITIES CONTROL ACT OF 1950 PART 2 APPENDIX TO HEARINGS BEFORE THE COMMITTEE ON UN-AMERICAN ACTIVITIES HOUSE OF REPRESENTATIVES NINETIETH CONGRESS SECOND SESSION APRIL 30, MAY 1, 2, AND 22, 1968 Printed for the use of the Committee on Un-American Activities i'-1 ( U S GOVERN lENT PRINTING OFFICE 94-756 0 WASHINGTON 1968 PAGENO="0002" COMMITTEE ON UN-AMERICAN ACTIVITIES UNITED STATES HOUSE OF REPRESENTATIVES EDWIN II. WILLIS, Louisiana, Chairnvan WILLIAM M. TUCK, Virginia JOHN M. ASHBROOK, Ohio JOE R. POOL, Texas DEL OLAWSON, California RICHARD H. ICHORD, Missouri RICHARD L. ROUDEBUSH, Indiaüa JOHN C. CULVER, Iowa ALBERT W. WATSON, South Carolina FRANCIS J. MCNAMARA, Director CHaSTER D. SMITH, Geaerai Counsel ALFRED M. NITTLE, Counsel II PAGENO="0003" CONTENTS Court Decisions: Page United States v. Eugene Frank Robel 1569 Greene v. McElroy 1601 Dexter C. Shoultz v. Robert S. McNamara, Secretary of Defense, et al 1652 Herbert Schneider v. Willard Smith, Commandant, U.S. Coast Guard 1665 Department of Defense Directive No. 5220.6 1677 Executive Orders: No. 10421-Decemier 31, 1952 1710 No. 10438-March 13, 1953 1713 No. 10501-November 5, 1953 1714 No. 10773-July 1, 1958 1729 No. 11051-September 27, 1962 1731 "Security of Vessels and Waterfront Facilities" (Coast Guard Regulations) 1739 Department of Defense Industrial Security Letter-February 29, 1968~. 1807 III PAGENO="0004" The House Committee on Un-American Activities is ~a standing committee of the House of Representatives, constituted as such by the rules of the House, adopted pursuant to Article I, section 5, of the Constitution of the United States which authorizes the House to de- termine the rules of its proceedings. RULES ADOPTED BY THE 90TH CONGRESS House Resolution 7, January 10, 1967 RESOLUTION Resolved, That the Rules of the House of Representatives of the Eighty-ninth Congress, together with all applicable provisions of the Legislative Reorganiza- tion Act of 1946, as amended, be, and they are hereby, adopted as the Rules of the House of Representatives of the Ninetieth Congress * * * * * * * * * RULnX STANDING COMMITTEES 1. There shall be elected by the House, at the commencement of each Congress, * * 4 * * * * (r) Committee on Un-American Activities, to consist of nine Members. * * * **~ * * - * RULE XI POWERS AND DUTIES OF COMMITTEES * * * * * * * 18. Committee on Un-American Activities. (a) Un-American activities. (b) The Committee on Un-American Activities, as a whole or by subcommittee, is authorized to make from time to time investigations of (1) the extent, charac- ter, and objects of un-American propaganda activities in the United States, (2) the diffusion within the United States of subversive and un-American propaganda that is instigated from foreign countries or of a domestic origin and attacks the principle of the form of government as guaranteed by our Constitution, and (3) all other questions in relation thereto that would aid Congress in any necessary remedial legislation. The Committee on Un-American Activities shall report to the House (or to the Clerk of the House if the House is not in session) the results of any such investi- gation, together with such recommendations as it deems advisable. For the purpose of any such investigation, the Committee on Un-American Activities, or any subcommittee thereof, is authorized to sit and act at such times and places within the United States, whether or not the House is sitting, has recessed, or has adjourned, to hold such hearings, to require the attendance of such witnesses.and the production of such books, papers, and documents, and to take such testimony, as it deems necessary. Subpenas may be issued under the signature of the chairman of the committee or any subcommittee, or by any mem- ber designated by any such chairman, and may be served by any person desig- nated by any such chairman or member. * * * * * * * 27. To assist the House in appraising the administration of the laws and in developing such amendments or related legislation as it may deem necessary, each standing committee of the House shall exercise continuous watchfulness of the execution by the administrative agencies concerned of any laws, the subject matter of which is within the jurisdiction of such committee; and, for that pur- pose, shall study all pertinent reports and data submitted to the House by the agencies in the executive branch of the Government. * * * * * * Iv * PAGENO="0005" APPENDIX TO HEARINGS RELATING TO H.R. 15626, 15649, 16613, 16757, 15018, 15092, 15229, 15272, 15336, AND 15828, AMENDING THE SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 Part 2 SUPREME COURT OF THE UNITED STATES No. 8.-OcToBER TERM, 1967. On Appeal From the United United States, Appellant, States District Court for the Western District of Eugene Frank Robel. Washington. [December 11, 1967.] MR. CHIEF JUSTICE WARREN delivered the opinion of the ~Court. This appeal draws into question the constitutionality of § 5 (a) (1) (D) of the Subversive Activities Control Act of 1950, 50 U. S. C. § 784 (a)(1)(D),' which provides that, when a Communist-action organization 2 is under a final order to register, it shall be unlawful for any mem- ber of the organization "to engage in any employment ` Act was passed over the veto of President Truman. In his veto message, President Truman told Congress, "The Department of Justice, the Department of Defense, the Centrai Intelligence Agency, and the Department of State have all advised me that the bill would seriously damage the security and the intelligence opera- tions for which they are responsible. They have strongly expressed the hope that the bill would not become law." H. R. Doc. No. 708, 81st Cong., 2d Sess., 1 (1950). President Truman also observed that "the language of the bill is so broad and vague that it mIght well result in penalizing the legitimate activities of people who are not Communists at all, but loyal citizens." Id., at 3. 2 Section 3 (3) (a) of the Act, 50 U. S. C. § 782 (3) (a), defines a "Communist-action organization" as: "any organization in the United States (other than a diplomatic representative or mission of a foreign government accredited as such by the Department of State) which (i) is substantially directed, (1569) PAGENO="0006" 1570 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 UNITED STATES v. ROBEL. dominated, or controlled by the foreign government or foreign organization controlling the world Communist movement . . ~. and (ii) operated primarily to advance the objectives of such world Communist movement . . . ." in any defense facility." In Communist Party v. Sub- ver.sive Activities Control Board, 367 U. S. 1, this Court sustained an order of the SACB requiring the Commu- nist Party of the United States to register as a Communist-action organization under the Act. The Board's order became final on October 20, 1961. At that time appellee, a member of the Communist Party, was employed as a machinist at the Seattle, Washington, shipyard of Todd Shipyards Corporation. On August 20, 1962, the Secretary of Defense, acting under authority delegated by § 5 (b) of the Act, designated that ship- yard a "defense facility." Appellee's continued employ- ment at the shipyard after that date subjected him to prosecution under § 5 (a)(1)(D), and on May 21, 1963, an indictment was filed charging him with a violation of that section. The indictment alleged in substance that appellee had "unlawfully and willfully engage[d] in employment" at the shipyard with knowledge of the outstanding order against the Party and with knowledge and notice of the shipyard's designation as a defense facility by the Secretary of Defense. The United States District Court for the Western District of Washington granted appellee's motion to dismiss the indictment on October 5, 1965. To overcome what it viewed as a "likely constitutional infirmity" in § 5 (aXl)(D), the Dis- trict Court read into that section "the requirement of active membership and specific intent." Because the indictment failed to allege that appellee's Communist Party membership was of that quality, the indictment was dismissed. The Government, unwilling to accept that narrow construction of § 5 (a)(1)(D) and insisting on the broadest possible application of the statute, ini- tially took its appeal to the Court of Appeals for the Ninth Circuit.3 On the Government's motion, the case 3The Government has persisted in this view in its arguments to this Court. Brief of the Government, pp. 48-513. PAGENO="0007" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 1571 IThTITED STATES v. ROBEL. was certified here as properly a direct appeal to this Court under 18 U. S. C. § 3731. We noted probable jurisdiction. 384 U. S. 937~4 We affirm the judgment of the District Court, but on the ground that § 5 (a) (1)(D) is an unconstitutional abridgment of the right of association protected by the First Amendment.5 We cannot agree with the District Court that § 5 (a) (1)(D) can be saved from constitutional infirmity by limiting its application to active members of Communist- action organizations who have the specific intent of furthering the unlawful goals of such organizations. The District Court relied on Scales v. United States, 367 U. S. 203, in placing its limiting construction on § 5 (a) (1) (D). It is true that in Scales we read the elements of active membership and specific intent into the mem- bership clause of the Smith Act.6 However, in Aptheker v. Secretary of State, 378 U. S. 500, we noted that the Smith Act's membership clause required a defendant to have knowledge of the organization's illegal advocacy, a requirement that "was intimately connected with the construction limiting membership to `active' members." We initially heard oral argument in this case on November 14, 1966. On June 5, 1967, we entered the following order: "This case is restored to the calenda.r for reargument and counsel are directed to brief and argue, in addition to the questions pre- sented, the question whether the delegation of authority to the Secretary of Defense to designate `defense facilities' satisfies perti- nent constitutional standards." We heard additional arguments on October 9, 1967. ~ In addition to arguing that § 5 (a)(1) (D). is invalid under the First Amendment, appellee asserted the statute was also unconsti- tutional because (1) it offended substantive and procedural due process under the Fifth Amendment; (2) it contained an uncon- stitutional delegation of legislative power to the Secretary of De- fense; and (3) it is a bill of attainder. Because we agree that the statute is contrary to the First Amendment, we find it unnecessary to consider the other constitutional arguments. 618 U.S.C. § 2385. PAGENO="0008" 1572 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 UNITED STATES v. ROBEL. Id., at 511, n. 9. Aptheker involved a challenge to § 6 of the Subversive Activities Control Act, which provides that, when a Communist organization is registered or under a final order to register, it shall be unlawful for any member thereof with knowledge or notice thereof to apply for a passport. We held that "[t]he clarity and preciseness of the provision in question make it impos- sible to narrow its indiscriminate cast and overly broad scope without substantial rewriting." Id., at 515. We take the same view of § 5 (a) (1) (D). It is precisely because that statute sweeps indiscriminately across all types of associations with Communist-action groups, with it régárd tO the quality and degree of membership, tiTiff it runs afoul of the First Amendment. In Aptheker, we held § 6 unconstitutional because it too broadly and indiscriminately infringed upon consti- tutionally protected rights. The Government has argued that, despite the overbreadth which is obvious on the face of § 5 (a) (1) (D), Aptheker is not controlling in this case because the right to travel is a more basic free- dom than the right to be employed in a defense facility. We agree Aptheker is not controlling since it was de- cided under the Fifth Amendment. But we cannot agree with the Government's characterization of the essential issue in this case. It is true that the specific disability imposed by § 5 (a) (1) (D) is to limit the employment opportunities of those who fall within its coverage, and such a limitation is not without serious constitutional implications. See Greene v. McElroy, 360 U.. S. 474, 492. But the operative fact upon which the job disability depends is the exercise of an individual's right of asso- ciation, which is protected by the provisions of the First Amendment.7 Wherever one would place the right to ~ Our decisions leave little doubt that the right of association is specifically protected by the First Amendment. E. g., Aptheker v. Secretary of State, supra, at 507; Gibson v. Florida Legislative PAGENO="0009" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 19501573 UNITED STATES v. ROBEL. travel on a scale of constitutional values, it is clear that those rights protected by the First Amendment are no less basic in our democratic scheme. The Government seeks to defend the statute on the ground that it was passed pursuant to Congress' war power. The Government argues that this Court has given broad deference to the exercise of that constitu- tional power by the national legislature. That argument finds support in a number of decisions of this Court.8 However, the phrase "war power" cannot be invoked as a talismanic incantation to support any exercise of con- gressional power which can be brought within its ambit. "[E]ven the war power does not remove constitutional limitations safeguarding essential liberties." Home Bldg. & Loan Assn. v. Blai~dell, 290 U. S. 398, 426. More specifically in this case, the Government asserts that § 5 (a)(1)(D) is an "expression of the growing concern shown by the executive and legislative branches of gov- ernment over the risks of internal subversion in plants on which the national defense depend[s] ." ~ Yet, this concept of "national defense" cannot be deemed an end in itself, justifying any exercise of legislative power de- signed to promote such a goal. Implicit in the term "national defense" is the notion of defending those val- ues and ideals which set this Nation apart. For almost two centuries, our country has taken singular pride in the democratic ideals enshrined in its Constitution, and the most cherished of those ideals have found expression in the First Amendment. It would indeed be ironic if, in the name of national defense, we would sanction the Investigation Committee, 372 U. S. 539, 543; Bates v. City of Little Rock, 361 U. 5. 516, 522-523; NAACP v. Alabama ex rel. Patterson, 357 U. S. 449, 460. See generally Emerson, Freedom of Association and Freedom of Expression, 74 Yale L. J. 1 (1964). 8 See, e. g., Lichter v. United States, 334 U. S. 742, 754-772; Hirabayashi v. United States, 320 U. S. 81, 93. ~ Brief for the Government, p. 15. PAGENO="0010" 1574 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 UNITED STATES v. ROBEL. subversion of one of those liberties-the freedom of association-which makes the defense of the Nation worthwhile. When Congress' exercise of one of its enumerated powers clashes with those individual liberties protected by the Bill of Rights, it is our "delicate and difficult task" to determine whether the resulting restriction on freedom can be tolerated. See Schneider v. State, 308 U. S. 147, 161. The Government emphasizes that the purpose of §5(a)(1)(D) is to reduce the threat of sabotage and espionage in the Nation's defense plants. The Govern- ment's interest in such a prophylactic measure is not insubstantial. But it cannot be doubted that the means chosen to implement that governmental purpose in this instance cuts deeply into the right of association. Sec- tion 5 (a) (1)(D) put appellee to the choice of surrender- ing his organizational affiliation, regardless of whether his membership threatened the security of a defense facility,10 or giving up his job.11 When appellee refused to make that choice, he became subject to a possible criminal penalty of five years' imprisonment and a $10,000 fine.12 The statute quite literally establishes guilt by association alone, without any need to establish 10 The appellee has worked at the shipyard, apparently without incident and apparently without concealing his Communist Party membership, for more than 10 years. And we are told that, following appellee's indictment and arrest, "he was released on his own recog- nizance and immediately returned to his job as a machinist at the Todd Shipyards, where he has worked ever since." Brief for Ap- pellee, p. 6, n. 8. As far as we can determine, appeilee is the only individual the Government has attempted to prosecute under §5 (a)(1)(D). 11 We recognized in Greene v. McElroy, 360 IT. S., at 492, that "the right to hold specific private employment and to follow a chosen profession free from unreasonable governmental interference comes within the `liberty' and `property' concepts of the Fifth Amendment." - 125OUSC~794 (c). PAGENO="0011" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 1575 UNITED STATES v. ROBEL. that an individual's ass~ciation poses the threat feared by the Government in proscribing it.1' The inhibiting effect on the exercise of First Amendment rights is clear. It has become axiomatic that "[p~recision of regula- tion must be the touchstone in an area so closely touch- ing our most precious freedoms." NAACP v. Button, 371 U. S. 415, 438; see Aptheker v. Secretary of State, 378 U. S. 500, 512-513; Shelton v. Tucker, 364 U. S. 479, 488. Such precision is notably lacking in § 5 (a)(1)(D). That statute casts its net across a broad range of associa- tional activities, indiscriminately trapping membership which can be constitutionally punished 14 and member- ship which cannot be so proscribed.15 It is made irrele- vant to the statute's operation that an individual may be a passive or inactive member of a designated organi- zation, that he may be unaware of the organization's unlawful aims, or that he may disagree with those un- lawful aims.16 It is also made irrelevant that an mdi- vidual who is subject to the penalties of § 5 (a) (1) (D) may occupy a nonsensitive position in a defense facility.17 13 Government has insisted that Congress, in enacting §5 (a) (1) (D), has not sought "to punish membership in `Com- munist-action'. . . organizations." Brief for the Government, p. 53. Rather, the Government asserts, Congress has simply sought to regulate access to employment in defense facilities. But it is clea.r the employment disability is imposed only because of such membership. 14See Scales v. United States, 367 U. S. 203. 15See Elf brandt v. Russell, 384 U. S. 11. 16A number of complex motivations may impel an individual to align himself with a particular organization. See Gibscm v. Florida Legislative Investigation Committee, 372 U. S. 539, 562-565 (con- curring opinion). It is for that reason that the mere presence of an individual's name on an organization's membership rolls is insufficient to impute to him the organization's illegal goals. 17 See Cole v. Young, 351 U. S. 536, 546: "~!~ difficult to ju~f~imma~sujpensions and nonrev~ewable di~nissal~ri~I~yalty ~ are thus not situationed where they could bring about any discern- itile adverse effects on the Nation's security" PAGENO="0012" 1576 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 UNITED STATES v. ROBEL. Thus, § 5 (a)(1)(D) contains the fatal defect of over- breadth because it seeks to bar employment both for association which may be proscribed and for association which may not be proscribed consistently with First Amendment rights. See Elf brandt v. Russel~, 384 U. S. 11; Apth~eker v. Secretary of State, ~upra; NAACP v. Alabama ex rel. Flowers, 377 U. 5. 288; NAAUP v. Button, .s'upra. This the Constitution will not tOlerate. We are not unmindful of the congressional concern over the danger of sabotage and espionage in national defense industries, and nothing we hold today should be read to deny Congress the power under narrowly drawn legislation to keep from sensitive positions in defense facilities those who would use their positions to disrupt the Nation's production facilities. We have recognized that, while the Constitution protects against invasions of individual rights, it does not withdraw from the Govern- ment the power to safeguard its vital interests. Kennedy v. Mendoza-Martinez, 372 U. S. 144, 160. Spies and saboteurs do exist, and Congress can, of course, prescribe criminal penalties for those who engage in espionage and sabotage.'8 The Government can deny access to its secrets. to those who would use such information to harm the Nation.1~, And Congress can declare sensitive posi- tions in national defense industries off limits to those who would u~e such positions to disrupt the production of defense materials The Government hat, told us that C~i~réss, in passing § 5 (a)(1)(D), made a considered 18 Congress has already provided stiff penalties for those who conduct espionage and sabotage against the United States. 18 U. S. C. §~ 792-798 (espionage); §~ 2151-2156 (sabotage). `~ The Department of Defense, pursuant to Executive Order 10865, as amended by Executive Order 10909, has established de- tailed procedures for screening those working in private industry who, because of their jobs, must have access to classified defense information. 32 0. F. R. Part 155. The provisions of those regu- lations are n~t before the Court in this case. PAGENO="0013" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 1577 UNITED STATES v. ROBEL. judgment that one possible alternative to that statute- an industrial security screening program-would be inadequate and ineffective to protect against sabotage in defense facilities. It is not our function to examine the validity of that congressional judgment. Neither is it our function to determine whether an industrial security screening program exhausts the possible alter- natives to the statute under review. We are concerned solely with determining whether the statute before us has exceeded the bounds imposed by the Constitution when First Amendment rights are at stake. The task of writing legislation which will stay within those bounds has been committed to Congress. Our decision today simply recognizes that, when legitimate legislative con- cerns are expressed in a statute which imposes a sub- stantial burden on protected First Amendment activities, Congress must achieve its goal by means which have a "less drastic" impact on the continued vitality of First Amendment freedoms.2° Shelton v. Tucker, supra; cf. 20 It has been suggested that this case should be decided by "bal- ancing" the governmental interests expressed in § 5 (a) (1) (D) against the First Amendment rights asserted by the appellee. This we decline to do. We recognize that both interests are substantial, but we deem it inappropriate for this Court to label one as being more important or more substantial than the other. Our inquiry is more circumscribed. Faced with a clear conflict between a fed- eral statute enacted in the interests of national security and an individual's exercise of his First Amendment rights, we have con- fined our analysis to whether Congress has adopted a constitutional means in achieving its concededly legitimate legislative goal. In making this determination we have found it necessary to measure the validity of the means adopted by Congress against both the goal it has sought to achieve and the specific prohibitions of the First Amendment. But we have in no way "balanced" those respec- tive interests. We have ruled only that the Constitution requires that the conflict between congressional power and individual rights be accommodated by legislation drawn more narrowly to avoid the conflict. There is, of course, nothing nvel in that analysis. Such PAGENO="0014" 1578 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 UNITED STATES v. ROBEL. United States v. Brown, 381 U. 5. 437,461. The Consti- tution and the basic position of First Amendrrient rights in our democratic fabric demand nothing less. Affirmed. MR. JusTIcE MARSHALL took no part in the considera- tion or decision of this case. a course of adjudication was enunciated by Chief Justice Marshall when he declared: "Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but which consist with the letter and s-pint of the constitution, are constitutional." M'Culloch v. Maryland, 4 Wheat. 316, 421 (emphasis added). In this case, the means chosen by Congress are contrary to the "letter and spirit" of the First Amendment. PAGENO="0015" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 1579 SUPREME COURT OF THE UNITED STATES No. 8.-OCTOBER TERM, 1967. On Appeal From the United United States, Appellant, States District Court for the Western District of Eugene Frank Robel. Wasnington. [December 11, 1967.] MR. JUSTICE BRENNAN, concurring in the result. I too agree that the judgment of the District Court should be affirmed but I reach that result for different reasons. Like the Court, I disagree with the District Court that § 5 (a)(1)(D) can be read to apply only to active mem- bers who have the specific intent to further the Party's unlawful objectives. In Aptheker v. Secretary of State, 378 U. S. 500, we rejected that reacting of § 6 of the Act which provides that, when a Communist organization is registered or under final order to register, it shall be un- lawful for any member thereof with knowledge or notice of the order to apply for or use a passport. We held that "[t]he clarity and preciseness of the provision in question make it impossible to narrow its indiscriminately cast and overly broad scope without substantial rewriting." 378 U. S., at 515. I take the same view of § 5 (a)(1)(D). Aptheker held § 6 of the Act overbroad in that it de- prived Party members of the right to travel without regard to whether they were active members of the Party or intended to further the Party's unlawful objectives, and therefore invalidly abridged, on the basis of political associations, the members' constitutionally protected right to travel. Section 5 (a) (1) (D) also treats as ii'- relevant whether or not the members are active, or know the Party's unlawful purposes, or intend to pursue those PAGENO="0016" 1580 AMENDING SUBVERSIVE ACTIViTIES CONTROL ACT OF 1950 UNITED STATES v. ROBEL. purposes. Compare Keyishian v. Board of Regents, 385 U. S. 589; Elf brandt v. Russell, 384 U. S. 11, 17; Scales v. United States, 367 U. S. 203; Schneiderman v. United States, 320 U. S. 118, 136. Indeed, a member such as appellee, who has worked at the Todd Shipyards with- out complaint or known ground for suspicion for over 10 years, is afforded no opportunity to prove that the statute's presumption that he is a security risk is invalid as applied to him. And no importance whatever is at- tached to the sensitivity of the jobs held by Party mem- bers, a factor long considered relevant in security cases.1 Furthermore, like § 6, § 5 (a) (1) (D) affects constitu- tionally protected rights. "[T]he right to hold specific private employment and to follow a chosen profession free from unreasonable governmental interference comes within the `liberty' and `property' concepts cf the Fifth Amendment. . . ." Greene v. McElroy, 360 U. S. 474, 492. That right is therefore alsO included among the "[i] ndividual liberties fundamental to American institu- tions [which] are not to be destroyed under pretext of preserving those institutions, even from the gravest ex- ternal dangers." Communist Party v. SACB, 367 U. S. 1, 96. Since employment opportunities are denied by § 5(a) (1) (D) simply on the basis of political associations the statute also has the potential of curtailing free expression by inhibiting persons from establishing or retaining such associations. See Wieman v. Updegraff, 344 U. S. 183, 191. "Broad prophylactic rules in the area of free ex- pression are suspect . . . . Precision of regulation must be the touchstone in . . . area[s] so closely touching our most precious freedoms." NAACP v. Button, 371 U. S. 1&e Cole v. Young, 351 U. S. 536, 546: "[I]t is difficult to jii~tify summary suspensions and unreviewable dismissals on loyalty grounds of employees who are not in `sensitive' positions and who are thus not situated where they could bring about any discernible adverse effects on the Nation's security." PAGENO="0017" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 1581 UNITED STATES v. ROBEL. 415, 438; see Shelton v. Tucker, 364 U. S. 479; 488; Carttwell V. Connecticut, 310 U. 5. 296, 304. ~tjsi~e,iowever, as the Government points out, that Congress often regulates indiscriminately, through pre- `zentive or prophylactic measures, e. g., Board of Gover- nors v. Agnew, 329 U. 5. 441; North American Co. v. S. E. C., 327 U. S. 686, and that such regulation has been upheld even where fundamental freedoms are poten- tially affected, Hirabayashi v. U~nited States, 320 U. S. 81; Cafeteria Workers v. McElroy, 367 U. S. 886; Carison v. Lartdon,, 342 U. 5. 524. Each regulation must be ex- amined in terms of its potential impact upon funda- mental rights, the importance of the end sought and the necessity for the means adopted. The Government argues that § 5 (a) (1) (D) may be distinguished from § 6 on the basis of these factors. Section 5 (a) (1) (D) limits employment only in "any defense facility," while § 6 de- prived every Party member of the right to apply for or to hold a passport. If § 5 (a) (1) (D) were in fact nar- rowly applied, the restrictions it would place upon em- ployment are not as great as those placed upon the right to travel by § 6.2 The problems presented by the 2 The Government also points out that §5 (a) (1) (D) applies only to members of "Communist-action" organizations, while § 6 applied also to members of "Communist-front" organizations, groups which the Government contends are less dangerous to the national security under Congress' definitions, and whose members are therefore pre- sumably less dangerous. This distinction is, however, open to some ~1oubt. Even if a "front" organization, which is defined as an organization either dominated by or primarily operated for the pur- pose of aiding and supporting "action" organizations, could in some fashion be regarded as less dangerous, Aptheker held § 6 invalid because it failed to discriminate among affected persons on the bases of their activity and commitment to unlawful purposes, and nothing in the opinion indicates the result would have been different if Congress had been indiscriminate in these respects with regard only to "Communist-action" group members. 94-756 O-68-pt.2--2 PAGENO="0018" 1582 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 UNITED STATES v. ROBEL. employment of Party members at defense facilities, moreover, may well involve greater hazards to national security than those created by allowing Party members to travel abroad. We may assume, too, that Congress may have been justified in its conclusion that alternatives to § 5 (a)(1)(D) were inadequate.3 FQr~t~e~Qiii~. I am not persuaded to th~ç ~ is fatal to this statute, as I agreed it was in other con- texts; see, è. g~ Keyishian v. Board of Regents, 385 U. S. ~589;Elfbrandt v. Russell, 384 U. S. 11; Apt heker v. Sec- retary of State, 378 U. S. 500; NAACP v. Button, 371 U. 5. 415. However, acceptance of the validity of these distinc- tions and recognition of congressional power to utilize a prophylactic device such as § 5 (a) (1) (I)) to safe- guard against espionage and sabotage at essential defense facilities, would not end inquiry in this case. Even if the statute is not overbroad on its face-bc caus~here may be "defense facilities" so essential to our national ` The choice of a prophylactic measure "must be viewed in the light of less drastic means for achieving the same basic purpose." Shelton v. Tucker, 364 U. S. 479, 488. Since I would affirm on another ground, however, I put aside the question whether existing security programs were inadequate to prevent serious, possibly catastrophic consequences. Congress rejected suggestions of the President and the Department of Justice that existing security programs were adequate with only slight modifications. See H. R. Doe. No. 679, 81st Cong., 2d Sess., 5 (1950); Hearings on Legislation to Outlaw Certain Un-American and Subversive Activities before the House Un-American Activities Committee, 81st Cong., 2d Sess., 2122-2125 (1950). Those programs cover most of the facilities within the reach of § 5 (a) (1) (D) and make Party membership an important factor governing access. 32 CFR § 155.5. They provide measures to prevent and punish subversive acts. The Department of Defense, moreover, had screened some 3,000,000 defense contractor employees under these procedures by 1956, Brown, Loyalty and Security 179-180 (1958), thereby pro- viding at least some evidence of its capacity to handle this problem in a more discriminating manner. PAGENO="0019" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 1583 UNITED STATES u. ROBEL. security that Congress could constitutionally exclude all Party menEibers from employment in them-the con- gi~ision~r delegation of authority to the Secretary of Dgfn'~e1~o designate "defense facilities" creates the clinger of overbroad, unauthorized, and arbitrary apph- c~ioii of criminal sanctions in an area of protected freedoms and therefore, in my view, renders this statute invalid Because the statute contains no meaningful standard by which the Secretary is to govern his desig- nations, and no procedures to contest or review his desig- nations, the "defense facility" formulation is constitu- tionally insuffi&ent to mark "the field within which the [Secretary] is to act so that it may be known whether he has kept. within it. in compliance with the leg- islative will." Yakus v. United States, 321 U. 5. 414, 425. The Secretary's role in designating "defense facilities" is fundamental to the potential breadth of the statute, since the greater the number and types of facilities desig- nated, the greater is the indiscriminate denial of job opportunities, under threat of criminal punishment, to Party members because of their political associations. A clear, manageable standard might have been a signifi- cant limitation upon the Secretary's discretion. But the standard under which Congress delegated the designat- ing power is so indefinite as to be meaningless. The statute defines "facility" broadly enough to include virtually, every place of employment in the United States; the term includes "any plant, factory or other manufacturing, producing or servicing establishment, airport, airport facility, vessel, pier, waterfront-facility, mine, railroad, public utility, laboratory, station, or other establishment or facility, or any part, division or department of any of the for~igoing." And §5(b) grants jbe_ Secretary of Defense untrammelled disci~e- tion to designate as a "ç~ifen se facility" any fa~ci1ity "with respect to the operation of which he finds and de- PAGENO="0020" 1584 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 UNITED STATES v. ROBEL. termines that the security of the United States re- quires. . ." that Party members should not be employed thërö. Congress could easily have been more specific.4 Instead, Congress left the Secretary completely at large in `determining the relevance and weight to be accorded such factors as the importance and secrecy of the facility and of the work being done there, and the indispensability of the facility's service or product to the national security. Congress ordinarily may delegate power under broad standards. B. g., Dakota Central Tel. Co. v. South Dakota, 250 U. S. 163, 183; FPC v. Hope Natural Gas C'o., 320 U. S. 591; NBC v. United States, 319 U. S. 190. No other general rule would be feasible or desirable. Delegation of power under general directives is an in- evitable consequence of our complex society, with its myriad, ever changing, highly technical problems. "The Congress, in fact, originally proposed to limit the Secretary's discretion in designating "defense facilities." H. R. 9490, passed by both the House and Senate, provided that the Secretary should determine and designate each "defense plant" as defined in §3 (7) of the Act. The difference between that version and § 5 (a) (1) (D) adopted at conference is commented upon in Conf. Rep. No. 3112, 81st Cong., 2d Sess., 50 (1950): "Under section 3 (7) a defense plant was defined as any plant, factory, or other manufacturing or service establishment, or any part thereof, engaged in the production or furnishing, for the use of the Government of any commodity or service determined and designated by the Secretary of Defense to be of such character as to affect the military security of the United States. "Section 3 (7), and the provisions of section .5 relating to the desig- nation of defense plants by the Secretary of Defense, have been modified in the conference substitute so as to broaden the concept of defense plants to cover any appropriately designated plant, factory or other manufacturing, producing, or service establishment, airport, airport facility, vessel, pier, water-front facility, mine, railroad, public utility, laboratory, station, or other establishment or facility, or any part, division, or department of any of the foregoing. Because of this broader coverage, section 3 (7) has been changed so as to define the two terms `facility' and `defense facility."" PAGENO="0021" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 1585 UNITED STATES v. ROBEL. Constitution has never been regarded as denying to the Congress the necessary resources of flexibility and prac- ticality . . . to perform its function. . . ." Panama Re- fining Co. v. Ryan, 293 U. S. 388, 421; Currin v. Wallace, 306 U. S. 1, 15. It is generally enough that, in con- ferring power upon an appropriate authority, Congress indicate its general policy, and act in terms or within a context which limits the power conferred. See, e. g., Arizona v. California, 373 U. S. 546, 584-585; FCC v. RCA Communieations, Inc., 346 U. S. 86; Lichter v. United States, 334 U. 5. 742; Yalcus v. United States, s'upra, 321 U. S., at 424; Bandini Petroleum Co. v. Superior Conrt, 284 U. 5. 8; FTC v. Gratz, 253 U. 5. 421; Buttfield v. Stranahan, 192 U. S. 470. Given such a situation, it is possible for affected persons, within the procedural structure usually established for the purpose, to be heard by the implementing agency and to secure meaningful review of its action in the courts, and for Congress itself to review its agent's action to correct significant departures from Congress' intention. The area of permissible indefiniteness narrows, how- ever, when the regulation invokes criminal sanctions and potentially affects fundamental rights, as does § 5 (a) (1) (D). See Barenblatt v. United States, 360 U. S. 109, 140, n. 7 (dissenting opinion, BLACK, J.). This is because the numerous deficiencies connected with vague legislative directives, whether to a legislative com- mittee, United States v. Runwly, 345 U. S. 41, to an executive officer, Panama Refining Co. v. Ryan, 293 U. S. 388, to a judge and jury, Cline v. Frink Dairy Co., 274 U. S. 445, 465, or to private persons, Bantam Books, Inc. v. Sullivan, 372 U. S. 58, see Schechter Poultry Corp. v. United States, 205 U. S. 495, are far more serious when liberty and the exercise of funda- mental rights are at stake. See also Go jack v. United States, 384 U. S. 702; Kunz v. New York, 340 U. S. 200; PAGENO="0022" 1586 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 UNITED STATES v. ROBEL. Winters v. New York, 333 U. S. 507; Thornhill v. Ala- bama, 310 U. S. 88; Hague v. C. I. 0., 307 U. S. 496; Hermdon~ v. Lowry, 301 U. S. 242. First. The failure to provide adequate standards in § 5 (a) (1) (D) reflects Congress' failure to have made a "legislative judgment," Cantwell v. Co'rtnectic'ut, supra, 310US., at 307, on the extent to which the prophylactic measure should be applied. Formulation of policy is a legislature's primary responsibility, entrusted to it by the electorate, and to the extent Congress delegates authority under indefinite standards, this policy-making function is passed on to other agencies, often not answerable or responsive in the same degree to the people. "[S]tand- ards of permissible statutory vagueness are strict . . ." in protected areas. NAACP v. Button,. ~upra, 371 U. S., at 432. "Without explicit action by lawmakers, decisions of great constitutional import and effect would be rele- gated by default to administrators who, under our system of government, are not endowed with authority to decide them." Greene v. McElroy, 360 U. S. 474, 507. Congress has the resources and the power to inform itself, and is the appropriate forum where the conflict- ing pros and cons should have been presented and considered. But instead of a determination by Con- gress reflected. in guiding standards of the types of facilities to which § 5 (a) (1) (D) should be applied, the statute provides for a resolution by the Secretary of Defense acting on his own accord. . It is true that the Secretary presumably has at his disposal the in- formation and expertise necessary to make reasoned judgments on which facilities are importaut to national security. But that is not the question to be resolved under this statute. Compare Hague v. (310, 307 U. S. 496. Rather, the Secretary is in effect determining which facilities are so important to the national security that Party members, active or inactive, well-intentioned PAGENO="0023" AMENDING STJBVERSIVE ACTIVITIES CONTROL ACT OF 1950 1587 UNITED STATES v. ROBEL. or ill, should be prohibited from working within them in any capacity, sensitive or innocuous, under threat of criminal prosecution. In resolving this conflict of interests, the Secretary's judgment, colored by his over- riding obligation to protect the national defense, is not a constitutionally acceptable substitute for Congress' judgment, in the absence of further, limiting guidance.5 The need for a legislative judgment is especially acute here, since it is imperative when liberty and the exer- cise of fundamental freedoms are involved that consti- tutional rights not be unduly infringed. Cantwell v. Connecticut, supra, 310 U. S., at 304. Before we can de- cide whether it is an undue infringement of protected rights to send a person to prison for holding employment at a certain type facility, it ought at least to appear that Congress authorized the proscription as warranted and necessary. Such congressional determinations will not be assumed. "They must be made explicitly not only to assure that individuals are not deprived of cherished rights under procedures not actually authorized . . . ~ut also because explicit action, especially in areas of doubt- 5The Secretary has published criteria which guide him in applying the statute: "The list of `defense facilities' is comprised of (1) facilities engaged in important classified military projects; (2) facilities producing important weapons systems, subassemblies and their components; (3) facilities producing essential common components, intermediates, basic materials and raw materials; (4) important utility and service facilities; and (5) research laboratories whose contributions are im- portant to the national defense. The list, which will be amended from time to time as necessary, has been classified for reasons of security." Department of Defense Release No. 1363-62, Aug. 20, 1962. These broad standards, which might easily justify applying the statute to most of our major industries, cannot be read into the statute to limit the Secretary's discretion, since they are subject to unreviewable amendment. - PAGENO="0024" 1588 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 UNITED STATES v. ROBEL. ful constitutionality, requires careful and purposeful consideration by those responsible for enacting and implementing our laws." Greene v. McElroy, supra,. 360 U. S., at 507. Second. We said in Watkins v. United States, 354 U. S. 178, 205, that Congress must take steps to assure "respect for constitutional liberties" by preventing the existence of "a wide gulf between the responsibility for the use of . . . power and the actual, exercise of that power." Procedural protections to avoid that gulf have been recognized as essential when fundamental freedoms are regulated, Speiser v. Randall, 357 U. S. 513; Marcus v. Search Warrant, 367 U. S. 717, 730; A Quantity of Copies of Books v. Kansas, 378 U. S. 205, 213, even when Congress acts pursuant to its "great powers," Kennedy v. Mendoza-Martirtez, 372 U. S. 144, 164. Without procedural safeguards, regulatory schemes will tend through their indiscriminate application to inhibit the activity involved. See Marcus v. Search Warrant, supra, 367 U. S., at 734-735. It is true that "[al construction of the statute which would deny all opportunity for judicial determination of an asserted constitutional right is not to be favored." Lockerty v. Phillips, 319 U. S. 182, 188. However, the text and history of this section. compels the conclusion that Congress deliberately chose not to provide for pro- test either to the Secretary or the courts from any desig- nation by the Secretary of a facility as a "defense facility." The absence of any provision in this regard èontrasts strongly with the care that Congress took to provide for the determination by the SACB that the Party is a Communist-action organization, and for judi- cial review of that determination. The Act "requires the registration only of organizations which . . . are found to be under the direction, domination, or control of certain foreign powers and to operate primarily to PAGENO="0025" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 1589 ¶JNITED STATES v. ROBEL. advance certain objectives. This finding must be made after full administrative hearing, subject to judicial re- view which opens the record for the reviewing court's determination whether the administrative findings as to fact are supported by the preponderance of the evidence." Communist Party v. SACB, s~upra, 367 U. S., at 86-87. In contrast, the Act nowhere provides for an administra- tive hearing on the Secretary's designation., either public or private, nor is his finding subject to review. A Party member charged with notice of the designation must quit the Party or his job; he cannot contest the Secretary's action on trial if he retains both and is prosecuted.6 This is persuasive evidence that the matter of the designation of "defense facilities" was purposely com- mitted by Congress entirely to the discretionary judg- ment of the Secretary. Unlike the opportunities for hearing and judicial review afforded the Party itself, the Party member was not to be heard by the Secretary to protest the designation of his place of employment as a "defense facility," nor was the member to have recourse to the courts. This pointed distinction, as in the case of the statute before the Court in Schilling v. Rogers, ~ The statute contemplates only four significant findings before criminal liability attaches: (1) that the Communist Party is a "Communist-action organization"; (2) that defendant is a member of the Communist Party; (3) that defendant engaged in employ-. merit at a "defense facility"; and (4) that he had notice that his place of employment was a "defense facility." The first finding was made by the Subversive Activities Control Board. The third find- ing-that the shipyard is a "defense facility"-was made by the Secretary of Defense. The fourth finding refers to the notice re- quirement which is no more than a presumption from the posting required of the employer by § 5 (b). Thus the only issue which a defendant can effectively contest is whether he is a Communist Party member. In view of the result which I would reach, how- ever, I need not consider appellee's argument that this affords defendants only the shadow of a trial, and violates due process. PAGENO="0026" 1590 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 UNITED STATES v. ROBEL. 363 U. 5. 666, 674, is compelling evidence "that in this Act Congress was, advertent to the role of the courts, and an absence in any specific area of any kind of pro- vision for judicial participation strongly indicates a legis- lative purpose that there be no such participation." This clear indication of the congressional plan, coupled with a flexibility-as regards the boundaries of the Sec- retary's discretion-so unguided as to be entirely unguid- ing, must also mean that Congress contemplated that an affected Party member was not to be heard to contend even at his criminal trial that the Secretary acted beyond the scope of his powers, or that the designation of the particular facility was arbitrary and capricious. Of. Estëp v. United States, 327 U. S. 114. The legislative, history of the section confirms this conclusion. That history makes clear that Congress was concerned that neither the Secretary's reasons for a designation nor the fact of the designation should be publicized. This emerged after President Truman vetoed the statute. In its original form the Act required the Secretary to "designate and proclaim, and from time to time revise, a list of facilities . . . to be promptly pub- lished in the Federal Register . . ." `~ 5 (6). The President commented in his veto message, "[s] pies and saboteurs would willingly spend years of effort seeking to find out the information that this bill would require the Government to hand them on a silver platter." H. R. Doc. No. 708, 81s4 Cong., 2d Sess., 2(1950). Shortly after this Court sustained the registration provisions of the Act in SACB v. Communist Party, supra, the Act was amended at the request of the Secretary to eliminate the requirement that the list of designated facilities be published in the Federal Register. 76 Stat. 91. In- stead, the list is classified information. Whether or not such classification is practically meaningful-in light of the fact that notice of a designation must be posted in PAGENO="0027" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1050 1591 UNITED STATES v. ROBEL. the designated facility-the history is persuasive against any congressional intention to provide for hearings or judicial review that might be attended with undesired publicity. We are therefore not free to imply limita- tions upon the Secretary's discretion or procedural safe- guards that Congress obviously chose to omit. Compare Cole v. Young; 351 U. 5. 536; United States v. Rumely, supra; Ex parte Endo, 323 U. 5. 283, 299; Japanese Im- migrant Case, 189 U. 5. 86, 101; see Green v. McElroy, s'upra, 360 U. S., at 507. Third. The indefiniteness of the delegation in this case also results in inadequate notice to affected persons. Al- though the form of notice provided for in § 5 (b) affords affected persons reasonable opportunity to conform their behavior to avoid punishment, it is not enough that per- sons engaged in arguably protected activity be reason- ably well advised that their actions are subject to regula- tion. Persons so engaged must not be compelled to conform their behavior to commands, no matter how unambiguous, from delegated agents whose authority to issue the commands is unclear. Marcus v. Search War- rant, ~upra, 367 U. S., at 736. The legislative directive must delineate the scope of the agent's authority so that those affected by the agent's commands may know that his command is within his authority and is not his own arbitrary fiat. Cramp v. Board of Public Instruction~, 368 ,U. S. 278; Scull v. Virginia, 359 U. 5. 344; Watkins v. United States, supra, 354 U. S., at 208-209. There is no way for persons affected by § 5 (a)(1)(D) to know whether the Secretary is acting within his authority, and therefore no fair basis upon which they may determine whether or not to risk disobedience in the exercise of activities normally protected. section 5 (a) (1) (D) denies significant employment rights under threat of criminal punishment to persons simply because of their political associations. The Gov- PAGENO="0028" 1592 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 UNITED STATES v. ROBEL. ernment makes no claim that Robel is a security risk. He has worked as a machinist at the shipyards for many years, and we are told is working there now. We are in effect invited by the Government to assume that Robel is a law abiding citizen, earning a living at his chosen trade. The justificatiOn urged for punishing him is that Congress may properly conclude that members of the Communist Party, even though nominal or inactive members and believing only in change through lawful means, are more likely than other citizens to engage in acts of espionage and sabotage harmful to our national security. This may be so. But in areas of protected freedoms, regulation based upon mere association and not upon proof of misconduct or even of intention to act unlawfully, must at least be accompanied by standards or procedural protections sufficient to safeguard against indiscriminate application. "If . . . `liberty' is to be regulated, it must be pursuant to the law-making func- tións of Congress . . . [ajnd if that power is delegated, the standards must be adequate to pass scrutiny by the accepted tests." Kent v. Dulles, 357 U. S. 116, 129. PAGENO="0029" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 1593 SUPREME COURT OF THE UNITED STATES No. 8.-OCTOBER TERM, 1967. On Appeal From the United United States, Appellant, States District Court for V* the Western District of Eugene Frank Robel. Washington. [December 11, 1967.] MR. JUSTICE WHITE, with whom MR. JUSTICE HARLAN joins, dissenting. The Court holds that because of the First Amendment a member of the Communist Party who knows that the Party has been held to be a Communist-action organiza- tion may not be barred from employment in defense establishments important to the security of the Nation. It therefore refuses to enforce the contrary judgments of the Legislative and Executive Branches of the Govern- ment. Respectfully disagreeing with this view, I dissent. The constitutional right found to override the public interest in national security defined by Congress is the right of association, here the right of respondent Robel to remain a member of the Communist Party after being notified of its adjudication as a Communist-action orga- nization. Nothing in the Constitution requires this result. The right of association is not mentioned in the Constitution. It is a judicial construct appended to the First Amendment rights to speak freely, to asemble, and to petition for redress of grievances.1 While the right of ~Jf men may speak as individuals, they may speak in groups as well. If they may assemble and petition, they must have the right to associate to some extent. In this sense the right of associa- tion simply extends constitutional protection to First Amendment rights when exercised with others rather than by an individual alone. In NAACP v. Alabama, the Court said that the freedom to associate for the advancement of beliefs and ideas is constitutionally protected and that it is "immaterial whether the beliefs sought to be advanced PAGENO="0030" 1594 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 UNITED STATES v. ROBEL. association has deep roots in history and is supported by the inescapable necessity for group action in a re- public as large and complex as ours, it has only recently blossomed as the controlling factor in constitutional litigation; its contours as yet lack delineation. Although official interference with First Amendn~Ient rights has drawn close scrutiny, it is now apparent that the right of association is not absolute and is subject to significant regulation by the State. The law of criminal conspiracy restricts the purposes for which men may associate and the means they may use to implement their plans Labor unions, and membership in them, are intricately con- trolled by statutes, both federal and state, as are political parties and corporations. The relevant cases uniformly reveal the necessity for accommodating the right of association and the public interest. NAACP v. Alabama, 357 U. S. 449 (1958), by association pertain to political, economic, religious or cultural matters . . . ." 357 U. S. 449, 460 (1958). That case involved the propagation of ideas by a group as well as litigation as a form of petition. The latter First Amendment element was also involved in NAACP v. Button, 371 U. S. 415 (1963); Railroad Trainmen v. Virginia Bar, 377 U. S. 1 (1964); and United Mini Workers v. Illinois Bar Assn., ante, p. -. The activities in Eastern R. Preni- dents Conference v. Noerr Motor Freight, Inc., 365 U. S. 127 (1961), although commercially motivated, were aimed at influencing legislative action. Whether the right to associate is an independent First Amendment right carrying its own credentials and will be car- ried beyond the implementation of other First Amendment rights awaits a definitive answer. In this connection it should be noted that the Court recently dismissed, as not presenting a substantial federal question, an appeal challenging Florida regulations which forbid a Florida a.ccountant from associating in his work, whether as partner or employee, with any nonresident accountant; out-of- state associations are barred from the State unless every partner is a qualified Florida accountant, and in practice only Florida resi- dents can become qualified there. Mercer v. Hemmings, 36 U. S. L. Week 3167 (Oct. 23, 1967). PAGENO="0031" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 1595 UNITED STATES v. ROBEL. which contained the first substantial discussion of the right in an opinion of this Court, exemplifies the judicial approach. There, after noting the impact of official action on the right to associate, the Court inquired "whether Alabama has demonstrated an interest ih obtaining the disclosures it seeks from petitioner which is sufficient to justify the deterrent effect which we have concluded these disclosures may well have on the free exercise by petitioner's members of their constitutionally protected right of association." 357 U. S., at 463. The same path to decision is evident in Bates v. City of Little Rock, 361 U. S. 516 (1960); NAACP v. Button, 371 U. S. 415 (1963); and Railroad Trainmen v. Virginia Bar, 377 U. S. 1 (1964). Only last week, in United Mine Workers v. Illinois Bar Assn., ante, p. -, the Court weighed the right to associate in an organization furnish- ing salaried legal services to its members against the State's interest in insuring adequate and personal legal representation, and found the State's interest insufficient to justify its restrictions. Nor does the Court mandate a different course in this case. Apparently "active" members of the Communist Party who have demonstrated their commitment to the illegal aims of the Party may be barred from defense facilities. This exclusion would have the same deterrent effect upon associational rights as the statute before us, but the governmental interest in security would override that effect. Also, the Court would seem to permit barring respondent, although not an "active" member of the Party, from employment in "sensitive" positions in the defense establishment. Here, too, the interest in antici- pating and preventing espionage or sabotage would out- weigh the deterrent impact of job disqualification. If I read the Court correctly, associating with the Commu- nist Party may at times be deterred by barring members from employment and nonmembership may at times be PAGENO="0032" 1596 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 UNITED STATES v. ROBEL. imposed as a condition of engaging in defense work. In the case before us the Court simply disagrees with the Congress and the Defense Department, ruling that Robel does not present a sufficient danger to the national security to require him to choose between membership in the Communist Party and his employment in a defense facility. Having less confidence than the majority in the prescience of this remote body when dealing with threats to the security of the country, I much prefer the judgment of Congress and the Executive Branch that the interest of respondent in remaining a member of the Communist Party, knowing that it has been adjudicated a Communist-action organization, is less substantial than the public interest in excluding him from employment in critical defense industries. The national interest asserted by the Congress is real and substantial. After years of study, Congress prefaced the Subversive Activities Control Act of 1950, 64 Stat. 987, 50 U. S. C. §~ 781-798, with its findings that there exists an international Communist movement which by treachery, deceit, espionage, and sabotage seeks to over- throw existing governments; that the movement operates in this country through Communist-action oreganizations which are under foreign domination and control and which seek to overthrow the Government by any neces- sary means, including force and violence; that the Com- munist movement in the United States is made up of thousands of adherents, rigidly disciplined, operating in secrecy, and employing espionage and sabotage tactics in form and manner evasive of existing laws. Congress therefore, among other things, defined the character- istics of Communist-action organizations, provided for their adjudication by the SACB, and decided that the security of the United States required the exclusion of Communist-actiOn organization members from employ- ment in certain defense facilities. After long and corn- PAGENO="0033" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 1597 UNITED STATES v. ROBEL. plex litigation, the SACB found the Communist Party to he a Communist-action organization within the mean- ing of the Act. That conclusion was affirmed both by the Court of Appeals, Coirtmuni~t Party v. SACB, 107 U. S. App. D. C. 279, 277 F. 2d 78 (1959), and this Court, 367 U. 5. 1 (1961). Also affirmed were the underlying determinations, required by the Act, that the Party is directed or controlled by a foreign govern- ment or organization, that it operates primarily to ad- vance the aims of the world Communist movement, and that it sufficiently satisfies the criteria of Communist- action organizations specified by § 792 (e), including the finding by the Board that many Party members are sub- ject to or recognize the discipline of the controlling for- eign government or organization. This Court accepted the congressional appraisal that the Party posed a threat "not only to existing government in the United States, but to the United States as a sovereign, independent nation.. . ." 367 U. S., at 95. Against this background protective measures were clearly appropriate. One of them, contained in § 784 (a)(1)(D), which became activated with the affirmance of the Party's designation as a Communist-action organi- zation, makes it unlawful "[f] or any member of such organization, with knowledge or notice.. . that such order has become final . . . to engage in any employment in any defense facility . . . ." A defense facility is `any of the specified types of establishment "with respect to the operation of which [the Secretary of Defense] finds and determines that the security of the United States requires" that members of such organizations not be employed. Given the characteristics of the Party, its foreign domination, its primary goal of government over- throw, the discipline which it exercises over its members, and its propensity for espionage and sabotage, the exclu- sion of members of the Party who know the Party is a 94-756 0 - 68 - pt. 2 -- 3 PAGENO="0034" 1598 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 UNITED STATES v. ROBEL. Communist-action organization from certain defense plants is well within the powers of Congress. Congress should be entitled to take suitable precau- tionary measures. Some Party members may be no threat at all, but many of them undoubtedly are, and it is exceedingly difficult to identify those in advance of the very events which Congress seeks to avoid. If Party members such as Robel may be barred from "sensitive positions," it is because they are potential threats to security. For the same reason they should be excludable from employment in defense plants which Congress and the Secretary of Defense consider of critical importance to the security of the country. The statute does not prohibit membership in the Com- munist Party. Nor are respondent and other Com- munists excluded from all employment in the United States, or even from all defense plants. The touchstones for exclusion are the requirements of national security, and the facilities designated under this standard amount to only about one percent of all the industrial establish- ments in the United States. It is this impact on associational rights, although specific and minimal, which the Court finds impermis- sible. But as the statute's dampening effect on asso- ciational rights is to be weighed against the asserted and obvious government interest in keeping members of Communist-action groups from defense facilities, it would seem important to identify what interest Robel has in joining and remaining a member of a group whose pri- mary goals he may not share. We are unenlightened, however, by the opinion of the Court or by the record in this case, as to the purposes which Robel and others like him may have in associating with the Party. The legal aims and programs of the Party are not identified or appraised nor are Robel's activities as a member of PAGENO="0035" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 1599 UNITED STATES v. ROBEL. the Party. The Court is left with a vague and form- less concept of associational rights and its own notions of what constitutes an unreasonable risk to defense facilities. The Court says that mere membership in an associa- tion with knowledge that the association pursues unlaw- ful aims cannot be the basis for criminal prosecution, Scales v. United States, 367 U. S. 203 (1961), or for denial of a passport, Apthelcer v. Secretary of State, 378 U. S. 500 (1964). But denying the opportunity to be employed in some defense plants is a much smaller deter- rent to the exercise of associational rights than denial of a passport or a criminal penalty attached solely to membership, and the Government's interest in keeping potential spies and saboteurs from defense plants is much greater than its interest in keeping disloyal Ameri- cans from traveling abroad or in committing all Party members to prison. The "delicate and difficult judg- ment" to which the Court refers should thus result in a different conclusion from that reached in the Scales and Aptheker cases.2 The Court's motives are worthy. It seeks the widest bounds for the exercise of individual liberty consistent with the security of the country. In so doing it arro- 2 J cannot agree with my Brother BRENNAN that Congress dele- gated improperly when it authorized the Secretary of Defense to determine "with respect to the operation of which [defense facili- ties] . . . the security of the United States requires the application of the provisions of subsection (a) of this section." Rather I think this is precisely the sort of application of a legislative determination to specific facts within the administrator's expertise that today's complex governmental structure requires and that this Court has frequently upheld. E. g., Yakus v. United States, 321 U. S. 414 (1944). I would reject also appellee's contention that the statute is a bill of attainder. See United States v. Brown, 381 U. S. 437, 462 (1965) (WHITE, J., dissenting). PAGENO="0036" 1600 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 UNITED STATES v. ROBEL. *gates to itself an independent judgment of the require- ments of national security. These are matters about which judges should be wary. James Madi;son wrote: "Security against foreign danger is one of the primitive objects of civil society. . * ". . . The means of security can onl.y be regu- lated by the means and the danger of attack. They will in fact be ever determined by these rules, and by no others. It is in vain to oppose constitutional barriers to the impulse of self-preservation. It is worse than in vain; because it plants in the Consti- tution itself necessary usurpations of power, every precedent of which is a germ of unnecessary and multiplied repetitions." ~ The Federalist No. 41 (Cooke ed. 1961) 269-~27O. PAGENO="0037" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 195O~ 1601 [SUPREME COURT OF THE UNITED STATF~ OCTOBER TERM, 1958. Syllabus. 360 U. S. GREENE V~ MCELROY ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA `CIRCUIT. No. 180. Argued April 1, 1959.-Decided June 29, 1959. Petitioner, an aeronautical engineer, was general manager of a pri- vate corporation engaged in developing and producing for the Armed Forces goods involving military secret~s, under contracts requiring the corporation to exclude from its premises persons not having security clearances. Under regulations promulgated by the Secretary of Defense without explicit authorization by either the President or Congress, and after administrative hearings in which he was denied access to much of the information adverse to him and any opportunity to confront or cross-examine wit- nesses against him, petitioner was deprived of his security clearance on the grounds of alleged Communistic associations and sympathies. As a consequence, the corporation discharged him and he was unable to obtain other employment as an aeronautical engineer. He sued for a judgment declaring that the revocation of his security clearance was unlawful and void and an order restraining the Secretaries of the Armed Forces from acting pursuant to it. Held: In the absence of explicit authorization from either the President or Congress, the Secretaries of the Armed Forces were not authorized to deprive petitioner of his job `in a proceeding in which he was not afforded the safeguards of confrontation and cross-examination. Pp. 475-508. (a) Neither Executive Order No. 10290 nor Executive Order No. 10501 empowers any' executive agency to fashion security programs whereby persons are deprived of their civilian ~nlj~loy- ment and of the opportunity of continued activity in their chosen professions without being accorded the chance to challenge effec- tively the evidence and testimony upon which an adverse security determination might rest. Pp. 500-502. (b) Neither the National Security Act of 1947 nor the Armed Services Procurement Act of 1947, even when read in conjunction with 18 U. S. C. § 798, making it a crime to communicate to unauthorized persons information concerning cryptographic or in- telligence activities, and 50 U. S. C. § 783 (b), making it a crime PAGENO="0038" 1602 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 GREENE v. McELROY. 474 Opinion of the Court. for an officer or employee of the United States to communicate classified information to agents of foreign governments or officers and members of "Communist organizations," constitutes an au- thorization to create an elaborate clearance program under which persons may be seriously resti~.ined m their emplo ~`ment oppor- tunities through a denial of clearance without the safeguards of cross-examination and confrontation. Pp. 502-504. (c) Congressional ratification of the security clearance proce- dures cannot be implied from the continued appropriation of funds to finance aspects of the program fashioned by the I)epart.tnent of Defense. Pp. 504-505. (d) In this area of questionable constitutionality, this Court will not hold that a person may be deprived of the right to follow his chosen profession without full hearings where accusers may be confronted and cross-examined, when neither the President nor Congress has explicitly authorized such procedure. Pp. 506-508. 103 U. S. App. D. C. 87, 254 F. 2d 944, reversed and cause remanded. Carl W. Berueffy argued the cause and filed a.brief for petitioner. Assistant Attorney General Doüb argued the cause for respondents. With him on the brief were Solicitor Gen- eral Rankin, Samuel D. Skzde and Bernard Cedarbaum. David I. Shapiro filed a brief for the American Civil Liberties Union, as amicus curiae, urging reversal. MR. CHIEF JUSTICE WAirn~N delivered the opinion of the Court. This case involves the validity of the Government's revocation of security clearance granted to petitioner, an aeronautical engineer employed by a private manufac- turer which produced goods for the armed services. Peti- tioner was discharged from his employment solely as a consequence of the revocation because his access to classi- fied information was required by the nature of his job. After his / discharge, petitioner was unable to secure PAGENO="0039" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 1603 OCTOBER TERM, 1958. Opinion of the Court. 360 U. S. employment as an aeronautical engineer and for all prac- tical purposes that field of endeavor is now closed to him. Petitioner was vice president and general manager of Engineering and Research Corporation (ERCO), a busi- ness devoted primarily to developing and manufacturing various mechanical and electronic products. He began this employment in 1937 soon after his graduation from the Guggenheim School of Aeronautics and, except for a brief leave of absence, he stayed with the firm until his discharge in 1953. He was first employed as a junior engineer and draftsman. Because of the excellence of his work he eventually became a chief executive officer of the firm. During his career with ERCO, he was credited with the expedited development of a complicated elec- tronic flight simulator and with the design of a rocket launcher, both of which were produced by ERCO and long used by the Navy. During the post-World War II period, petitioner was given security clearances on three occasions.' These were required by the nature of the projects undertaken by ERCO for the various armed services.2 On November 21, 1 Petitioner was given a Confidential clearance by the Army on August 9, 1949, a Top Secret clearance by the Assistant Chief of Staff G-2, Military District of Washington on November 9, 1949, and a Top Secret clearance by the Air Materiel Command on Feb~ ruary 3, 1950. 2 ERCO did classified contract work for the various services. In 1951, in connection with a classified research project for the Navy, it entered into a security agreement in which it undertook "to pro- vide and maintain a system of security controls within its . . . own organization in accordance with the requirements of the Department of Defense Industrial Security Manual . .. . ." The Madual, in turn, provided in paragraphs 4 (e) and 6: ,, "The Contractor shall exclude (this does not imply the dismissal or separation of any emp'oyee) from any part of its plants, factories, or sites at which work for any military department is being per- formed, any persOn or persons whom the Secretary of the military PAGENO="0040" `1604 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 GREENE v. McELROY. Opinion of the Court. 1951, however, the Army..Navy- Air Force Personnel Secu- rity Board (PSB) advised ERCO that the company's clearances for access to classified information were in jeopardy because of a tentative decision to deny petitioner. access to `classified Department of Defense information and to revoke his clearance for security reasons.3 ERCO was invited to respond to this notification. The corpora- tion, through its president, informed PSB that petitioner had taken an extended furlough due to the Board's action. The ERCO executive also stated that in his opinion peti- tióner was a loyal and discreet United States citizen and that his absence denied to the firm the services of an, outstanding `engineer and administrative executive. On December 11, 1951, petitioner was informed by the Board that it had "decided that access by you to contract work and information [at ERCO] . . . would be inimical to department concerned or his duly authorized representative, in the interest of security, may designate in writing. "No individual shall be permitted to have access to classified matter unless cleared by the Government or the Contractor, as. the case may be, as specified in the following subparagraphs and then he will be given access to such matter only to the extent of his clearance ~ The PSB was created pursuant to an interim agreement dated October 9, 1947, between the Army, Navy, and Air Force and pursu- ant to a memorandum of agreement between the Provost ~`larslial General and the Air Provost Marshal, dated March 17, 1948. It was a three-man board, with one representative from each of the military departments . . . . Its functions were to grant or deny clearance for employment on aeronautical or classified contract work when such consent was required, and to ~usiwnd individuals, whose continued employment was considered inimical to the security inter- ests of the United States, from employment on classified work.' Report of the Commission on Government Security, 1957,' S. Doe. No. 64, 85th Cong., 1st Sess. 239. It established its own procedures which were approved by the Secretaries of the Army, Navy, and. Air Force. See "Procedures Governing the Army-Navy-Air Force Personnel Security Board, dated 19 June fl150.'~ PAGENO="0041" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 195 o( 1605 OCTOBER TERM, 1958. Opinion of the Court. 360 U. S. the best interests of the United States." Accordingly, the PSB revoked petitioner's clearances. He was informed that he could seek a hearing before the Industrial Employ- ment Review Board (IERB), and he took this course.4 Prior to the hearing, petitioner received a letter inform- ing him that the PSB action was based on information indicating that between 1943. and 1947 he had associated with Communists, visited officials of the Russian Embassy, and attended a dinner given by an allegedly Communist Front organization.5 On January 23, 1952, petitioner, with counsel, appeared before the IERB. He was questioned in detail concern- ing his background and the information disclosed in the IERB letter. In response to numerous and searching questions he explained in substance that specific "suspect" persons with whom he was said to have associated were actually friends of his ex-wife~ He explained in some detail that during his first marriage, which lasted from ~ IERB was a four-member board which was given jurisdiction to hear and review appeals from decisions of the PSB. Its charter, dated 7 November 1949 and signed by the Secretaries of the Army, Navy, and Air Force, contemplated that it would afford hearings to persons denied clearance. And see "Procedures Governing Appeals to the Industrial Employment Review Board, dated 7 November 1949." ~ The letter read, in part: "That over a period of years, 1943-1947, at or near Washington, D. C., you have closely and sympathetically associated with persons who are reported to be or to have been members of the Communist Party; that during the period 1944-1947 you entertained and were visited at your home by military representatives of the Russian Embassy, Washington, D. C.; that, further, you attended social func- tions during the period 1944-1947 at the Russian Embassy, Wash- ington, D. C.; and on 7 April 1947 attended the Southern Conference for Human Welfare, Third Annual Dinner, Statler Hotel, Washing- ton, D. C. (Cited as Communist Front organization, Congressional Committee on Un-American Activities)." PAGENO="0042" 1606 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 195 o\ GREENE v. McELROY. Opinion of the Court. 1942 through 1947, his then wife held views with which he did not concur and was friendly with associates and other persons with whom he had little in common. He stated that these basic disagreements were the prime rea- sons that the marriage ended in failure. He attributed to his then wife his attendance at the dinner, his member- ship in a bookshop association which purportedly was a "front" organization, and the presence in his home of "Communist" publications. He denied categorically that he had ever been a "Com.munist" and he spoke at length about his dislike for "a theory of Government. which has for its object the common ownership of property." Lastly, petitioner explained that his Visits to persons in various foreign embas8ies (including the Russian Embassy) were made in connection with his attempts to sell ERCO's products to their Governments. Petitioner's witnesses, who included top-level executives of ERCO and a number of military officers who had worked with petitioner in the past, corroborated many cf petitioner's statements and testified in substance that he was a loyal and discreet citizen. These top-level executives of ERCO, whose right to clearance was never challenged, corroborated petitioner's testimony concerning his reasons for visiting the Russian Embassy. The Government presented no. witnesses. It was ob- vious, however, from the questions posed to petitioner and to his witnesses, that the Board relied on confidential reports which were never made available to petitioner. These reports apparently were compilations of statements taken from various persons contacted by an investigatory agency. Petitioner had no opportunity to confront and question persons whose statements reflected adversely on him or to confront the government investigators who took~ their statements. Moreover, it Seemed evident that the Board itself had never questioned the investigators and PAGENO="0043" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 195 O~ 1607 OCTOBER TERM, 1958. * Opinion of the Court. 360 U. S. had never seen those persons whose statements were the subject of their reports. On January 29, 1952, the JERB, on the basis of the testimony given at the hearing and the confidential re- ports. reversed the action of the PSB and informed petitioner and ERCO that petitioner was authorized to work on Secret contract work. On March 27, 1953, the Secretary of Defense abolished the PSB and IERB and directed the Secretaries of the three armed services to establish regional Industrial Per- sonnel Security Boards to coordinate the industrial secu- rity program.6 The Secretaries were also instructed to establish uniform standards, criteria, and procedures.7 6 The Boards were abolished pursuant to a memorandum of March 27, 1953, issued by the Secretary of Defense to the Secretaries of the Army, Navy, and Air Force and to the Chairman of the Muni- tions Board. It provided in part: "5. The Department of the Army, Navy and Air Force shall estab- lish such number of geographical regions within the United States as seems appropriate to the work-load in each region. There shall then be established within each region an Industrial Personnel Set~u- rity Board. This board shall consist of two separate and distinct divisions, a Screening Division and an Appeal Division, with equal representation of the Departments of the Army~ Navy and Air Force on each such division. The Appeal Division shall have jurisdiction to hear appeals from the decision of the Screening Division and its decisions shall be determined by a majority vote which shall be final, subject only to reconsideration on its own motion or at the request of the appellant for good cause shown or at the request of the Secretary of any military department." ~ The memorandum from the Secretary of Defense also provided: "6. The Secretaries of the Army, Navy snd.Air Force, shall within thirty days (30), establish such' geographical regions and develop joint uniform standards, criteria, and detailed procedures to implement the above-described program. In developing the standards, criteria, and procedures, full considerationj; shall be given to the rights of indi- viduals, consistent with security requirements. After approval by PAGENO="0044" 1608 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 GREENE v. McELROY. Opinion of the Court. Cases pending before the PSB and IERB were. referred to these new Boards.8 During the interim period between the abolishment of the old program and the implementa- tion of the new one, the Secretaries considered themselves charged with administering clearance activities under previously stated criteria.9 On April 17, 1953, respondent Anderson, the Secretary of the Navy, wrote ERCO that he had reviewed peti- tioner's case and had concluded that petitioner's "con- tinued access to Navy classified security information [was] inconsistent with the best interests of National Security." No hearing preceded this notification. He requested ERCO to exclude petitioner "from any part of your plants, factories or sites at which classified Navy projects are being carried out and to bar him access to all Navy classified information." He also advised tile corporation that petitioner's case was being referred to the Secretary of Defense with the recommendation that the IERB'~ decision of January 29, 1952, be overruled. ERCO had no choice but to comply with the request.1° the Secretaries of the Army, Navy, and Air Force, the standards, criteria, and procedures shall govern the operations of the Board." 8 memorandum provided: "7. All cases pending before the Army-Navy-Air Force Personnel Security Board and the Industrial Employment lleview Board shall be referred for action under this order to the appropriate in(iustrial Personnel Security Board." 9 memorandum further provided: "4. The Criteria Governing Actions by the industrial Employment Review Board, dated 7 November 1949, as revised 10 November 1950, and approved by the Secretaries of. the Army, Navy, and Air Force, shall govern security clearances of industrial facilities and industrial personnel by the Secretaries of the Army, N ivy and Air Force until such time as uniform criteria are est.ablish'd in connection with paragraph 6 of this memorandum." ~° See note 2, supra. PAGENO="0045" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 195 o\ 1609 OCTOBER TERM, 1958. Opinion of the Court. 360 U. S. This led to petitioner's discharge.11 ERCO informed the Navy of what had occurred and requested an opportunity to discuss the matter in view of petitioner's importance to the firm.12 The Navy replied that "[a]s far as the Navy ~ The Chairman of the Board of ERCO, Colonel Henry Berliner, later testified by affidavit as follows: "During the year 1953, and for many years previous thereto, I was the principal stockholder of Engineering and Research Corpora- tion, a corporation which had its principal place of business at River- dale, Maryland. I was also the chairman of the board, and the principal executive officer of this corporation. "I am acquainted with William Lewis Greene. Prior to the month of April, 1953, Mr. Greene was Vice-President in charge of engineer- ing and General Manager of Engineering and Research Corporation. He has been employed by this corporation since 1937. His progress in the company had been consistent. He was one of our most valued and valuable employees, and was responsibje for much of the work which Engineering and Research Corporation was doing. In April, 1953, the company receiyed a letter from the Secretary of the Navy advising us that clearance had been denied to Mr. Greene and advis- ing us that it would be necessary to bar him from access to our plant. In view of his position with the company, there was no work which he could do in light of this denial of clearance by the Navy. As a result, it was necessary for the company to discharge him. There was no other reason for Mr. Greene's discharge, and in the absence of the letter referred to, he could have continued in the employment of Engineering and Research Corporation indefinitely." 12 The President of ERCO wrote to the Secretary of the Navy as follows: "The Honorable R. B. Anderson "Secretary of the Navy "Washington 25, D. C. "My dear Mr. Secretary: "Receipt is acknowledged of your letter of April 17, 1953 in which you state that you have reviewed the case history file on William Lewis Greene and have concluded that his continued access to Navy classified security information is inconsistent with the best interests of National Security. "You request this company to exclude Mr~ Greene from our plants, PAGENO="0046" 1610 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 GREENE v. McELROY. Opinion of the Court. Department is concerned, any further discussion on this problem.at this time will serve no useful purpose." Petitioner asked for reconsideration of the decision On October 13, 1953, the Navy wrote to him stating that it had requested the Eastern Industrial Personnel S~curity Board (EIPSB) to accept jurisdiction and to arrive at a final determination concerning petitioner's status.13 Var- factories or sites and to bar him from information, in the inter- ests of protecting Navy classified projects and claa.sified security information. "In accordance with your request, please be advised that since receipt of your letter this company has excluded Mr. Greene from any part of our plants, factories or sit.e~ and barred him access to all classified security information. "For your further information, Mr. Greene tendered his resigna- tion as an officer of this corporation and has left the plant. We shall have no further contact with him until his status is clarified although we have not yet formally accepted his resignation. "Mr. Greene is Vice President of this company in charge of en- gineering. His knowledge, experience and executive ability have proven of inestimable value in the past. The loss cf his services at this time is a serious blow to company operations. Accordingly, we should like the privilege of a personal conference to discuss the matter further~ "Furthermore, you state that you are referring the case to. the Secretary of Defense recommending that the Industrial Employment Review Board's decision of January 29, 1952 be overruled. If it is appropriate, we should like very much to have the privilege of discussing the matter with the Secretary of Defense. "Please accept our thanks for any official oourte~ies which you are in a position to extend. "Respectfully yours, "Engineering and Research Corporation "By /s/ L. A. Wells" `~ On May 4, 1953, pursuant to the memorandum of the Secretary of Defense dated March 27, 1953, see note 6, supi~a, the Secretaries of the military departments established regional Industrial Personnel Security Boards governed by generalized standards, criteria, and procedures. PAGENO="0047" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 195 o( 1611 OCTOBER TERM, 1958. Opinion of the Court. `360 U. S. ious letters were subsequently exchanged between peti- tioñer's counsel and the EIPSB. These resulted finally in generalized charges, quoted in the margin, incorporat- ing the information previously discussed with petitioner at his 1952 hearing before the IERB.'4 14 The specifications were contained in a letter to petitioner's counsel dated April 9, 1954, which was sent nineteen days before the hearing. That letter provided in part: "Security considerations permit disclosure of the following informa- tion that has thus far resulted in the denial of clearance to Mr. Greene: "1. During 1942 SUBJECT was a member of the Washington Book Shop Association, an organization that has been officially cited `by the Attorney General of the United States as Communist and subversive. "2. SUBJECT's first wife, Jean Hinton Greene, to whom he was married from approximately December 1942 to approximately De- cember 1947, was an ardent Communist during the greater part of the period of the marriage. "3. During the period of SUBJECT's first marriage he and his wife had many Communist publications in their home, including the `Daily Worker'; `Soviet Russia Today'; `In Fact'; and Karl Marx's `Das Kapital.' "4. Many apparently reliable witnesses have testified that during the period of SUBJECT's first marriage his personal political sym- pathies were in general accord with those of his wife, in that be was sympathetic towards Russia; followed the Communist Party `line'; presented `fellow-traveller' arguments; was apparently influenced by `Jean's wild theories'; etc. [Nothing in the record establishes that any witness "testified" at any hearing on these subjects and every- thing in the record indicates that they could have done no more than make such statements to investigative officers.] "5. In about 1946 SUBJECT invested approximately $1000. in the Metropolitan Broadcasting Corporation and later became a di- rector of its Radio, Station WQQW. It has been reliably reported that many of the s~ockho1ders of the Corporation were Communists or pro-Communists and that the news coverage and radio programs of Station WQQW frequently paralleled the Communist Party `line.' [This station is now Station WGMS, Washington's "Good Music' Station." Petitioner stated that he invested money in the station PAGENO="0048" 1612 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 * GREENE v. McELROY. Opinion of the Court. April 28, 1954, more. than one year after the * Secretary took action, and for the two days thereafter, petitioner presented his~ case to . the EIPSB and was. cmsa-exammed in detail The hearing began with a because be liked classical music and he considered it a good investment.] . "6. On 7 April 1947 SUBJECT and his wife Jean attended the Third Annual Dinner of the Southern Conference for Human We!- fare, an organization that has been oMcially cited as a Communist front. [This dinner was also attended by many Washington notables, including several members of this Court.] "7. Beginning about 1942 and continuing for several years there- after SUBJEC'F maintained sympathetic associations with various officials of the Soviet Embassy, including Major Constantine I. Ovchinnikov, Col. Pave! F. Berezin, Major Pave! N. Asseev, Col. Ilia M. Saraev, and Col. Anatoly Y. Golkovsky. [High-level execu- tives of ERCO, as above noted, testified that these associations were carried on to secure business for the corporation.] "8. During 1948 and 1947 SUBJECT had frequent sympathetic association with Dr. Vaso Syrzentic of the Yugoslav Embassy. Dr. Syrzentic has been identified as an agent of the International Com- munist Party. [Petitioner testified that he met this individual once in connection with a business transaction.] "9. During 1043 SUBJECT was in contact with Col. Alexander Hess of the Czechoslovak Embassy, who has been identified as an~ agent of the Red Army intelligence. [This charge was apparently abandoned as no adverse finding was based on it.] "10. During 1946 and 1947 SUBJECT maintained close and sym- pathetic association with Mr. and Mrs. Nathan Gregory Silvermaster and William Ludwig Uliman. Silvermaster and Uliman have been identified as members of a Soviet Espionage Apparatus active in Washington, D. C., during the 1940's. [Silvermaster was a top economist in the Department of Agriculture and the direct superior of petitioner's ex-wife who then worked in that department.] "11. SUBJECT had a series of contacts with Laughlin Currie * during the period 1945-48. Currie has also been identified as a member of the Silvermaster espionage group. [Petitioner met Currie in the executive offices of the President at a time when Carrie was a Special Assistant to the President.] * "12. During the period between 1942 and 1947 :~UBJECT main- tained frequent and close associations with many Communist Party PAGENO="0049" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1 95 O~ 1613 OCTOBER TERM, 1958. Opinion of the Court. 360 U. S. statement by the Chairman, which included the fQllowing passage: "The transcript to be made of this hearing will not include all material in* the file of the case, in that, it will not include reports of investigation conducted by the Federal Bureau of Investigation or other investigative agencies which are confidential. Nei- ther will it contain information concerning the iden- tity of confidential informants or information which will reveal the source of confidential evidence. The transcript will contain only the Statement of Rea- sons, your answer thereto and the testimony actually taken at this hearing." Petitioner was again advised that the revocation of his security clearance was based on incidents occurring be- tween 1942 and 1947, including his associations with alleged Communists, his visits with officials of the Russian Embassy. and the presence in his house of Communist literature. Petitioner, in response to a question, stated at the out- set of the hearing that he was then employed at a salary of $4,700 per year as an architectural draftsman and that he had been receiving $18,000 per year as Vice President and General Manager of ERCO. He later explained that members, including R- 5- -, and his wife E------.-~, B-.- W-- and his wife M --, M - P- -, M-~ - L. R N ~- and I ---- 8- . [These persons were apparently friends of petitioner's ex-wife.] "13. During substantially the same period SUBJECT maintained close association with many persons who have been identified as strong supporters of the Communist conspiracy, including 8- J. R-, 5- L.-, 0-.--- L~-.--, Fe- F--- and V- G . [These persons were apparently friends of his ex-wife.] "It is noted that all of the above information has previously been discussed with Mr. Greene at his hearing before the Industrial Em- ployment Review Board, and that a copy of the transcript of that hearing was made available to you in August of last year." 94-756 0 - 68 - pt. 2 --4 PAGENO="0050" 1614 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 GREENE v McELROY Opinion of the Court after his discharge from ERCO he had unsuccessfully tried to obtain, employment in the aeronautics field but had been barricaded from it because of lack of clearance.15 Petitioner was subjected to an intense examination sim- ilar to that which he experienced before the IERB in 1952. * During the course of the, examination, the Board injected new subjects of inquiry and made it evident that it was relying on various investigatory reports `and statements of confidential informants which were not made available * to petitioner.15 Petitioner reiterated in great detail the 15 Petitioner stated by affidavit in support of his motion for sum- mary judgment that "[a]fter my discharge from Engineering and Research Corporation, I made every possible effort to secure other employment at a salary commensurate with my experience, but I was unable to do so because all of my work history had been in the field of aeronautics. In spite of everything I could do, the best * position I could obtain was a draftsman-engineer in an architectural firm.. I was obliged to go to work for a salary of $4,400 per year, * because the basis upon which a higher salary would be justified was experience in a field which was not particularly useful in the type of' work which I was able to obtain. As a result of the actions of the defendants complained of, the field of aeronautical engineering was closed to me." ~ For instance, the following questions were asked in connection with the so-called "left wing" radio station in which petitioner owned stock, petitioner's acquaintanceship with alleged subversives, and petitioner's business relationships with foreign governments: "Q. We have information here, Mr. Greene, thai. one particular * individual specifically called your attention to the fact that [Con-. gressman] Rankin and [Senator] Bilbo had characterized this station as a Communist station, run by and for Communists? "Q. We have information here, this has come from an informant characterized to be of known reliability in which Fe refers to con- versations he had with you about January of 1947 in which you told him that you had visited M P the previous evening and had become rather chummy with him, do you wish to comment on that? `Q. Concerning your relationship with S~ - 1 , we have ~O9615 O-59--3.4 PAGENO="0051" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 1615 OCTOBER TERM, 1958. * Opinion of the Court. 360 U. S. explanations previously given before the IERB. He was subjected to intense cross-examination, however, concern- ing reports that he had agreed with the views held by his ex-wife. information here from an informant characterized as being one of known reliability, in which S-~ L told this informant that shortly following her Western High School speech in 1947, she remarked to you that probably many people will learn things about Russia and she quoted you as replying, `Well I hope they learn Some- thing good, at least.' Do you wish to say anything about that? "Q. Information `~e have, Mr. Greene, indicates first of all, that you didn't meet these Russians in 1942 but you met them in early 1943. "Q. Now, we have further information, Mr. Greene, indicating that the initiative of these contacts came from Col. Beresin. "Q. We have information here indicating that as a matter of fact, sir, we do know that the meeting between you and Col. Berezin was arranged through Hess and Hochfeld as you indicated. We also have information from a source identified as being one of known reliability referring to a conversation that this source had with Hess in April 1943 in which Hess stated that he had been talking to one Harry, not further identified but presumed to be Hochfeld and that Harry said to Hess that he had a young engineer who is a good friend of ours and of our cause and Harry wanted Hess to set up a meeting between Berezin and yourself. Can you give us some reason why Harry might have referred to you as a good friend of our cause? "Q. Of course, we can make certain assumptions as to why CoL Berezin might have wanted to meet you back in December 1942 when we look at a statement like this indicating that you. were con- sidered a good friend of their's and of their cause. Of course, some weight is lent to this assumption by the fact that your wife was strongly pro-Communist and after she left you she became very active in Communist affairs, in case you don't know that, I'll pass it on to you." And the following questions were asked of various witnesses presented PAGENO="0052" 1616 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 195 O~ GREENE `v. McELROY. Opinion àf the Court. Petitioner again presented a number of witnesses who testified. that he was loyal, that he had spoken approv- ingly of the United States and its economic system, that he was a valuable engineer~ and that he had made valu- able and significant contributions to this country's war efforts during World War II and the Korean War. `Soon after the conclusion of the hearing, the EIPSB notified* petitioner that it had affirmed the Secretary's action and that it had decided that the grantiirig of clear- ance to petitioner for access to classified information was "not clearly consistent with the interests of national secu- rity." Petitioner requested that he be furnished with a detailed statement of findings supporting the Board's decision. He was informed, however, that security con- by petitioner evidently because the Board had confidential informa- tion that petitioner's ex-wIfe was "eccentric." "Q. Now you were in Bill's home, that red brick house that you're talking about. "Q. Was there anything unusual about the house itself, the interior of it, was it dirty? "Q. Were there any beds in their house which had no mattresses on them? "Q. Did you ever hear it said that Jean slept on a board in order to keep the common touch? "Q. When you were in Jean's home did she dress conventionally when she received her guests? "Q. Let me ask you this, conventionally when somebody would invite you for dinner at their home would you expect them, if they were a woman to wear a dress and shoes and `stockin~gs and the usual clothing of the evening or would you expect them to `appear in overalls?" PAGENO="0053" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 195O~ 1617 OCTOBER TERM, 1958. Opinion of the Court. 360 U. S. * siderations prohibited such disclosure.1T On September * 16, 1955, petitioner requested review by the Industrial Personnel Security Review Board.18 On March 12, 1958, almost three years after the Secretary's action and nearly one year after the second hearing, he received a letter from the Director of the Office of Industrial Personnel Security Review informing him that the EIPSB had found that from 1942-1947 petitioner associated âlosely with his then wife and her friends, knowing that they were active in behalf of and sympathized with the Communist Party, that during part of this period petitioner maintained a sympathetiC association with a number of officials of the Russian Embassy, that during this period petitioner's * political views were similar to those of his then wife, that petitioner had been a member of a suspect bookehop asso~ ciation, had invested money in a suspect radio station, had attended a suspect dinner, and had, on occasion, Communist publications in his home, and that petitioner's credibility as a witness in the proceedings was doubtful. The letter also stated that the doubts concerning peti~ tioner's credibility a~ected the Board's evaluation of his trustworthiness and that only trustwort~iy persons could be afforded access to classified information.10 The EIPSB determination was affirmed. After the EIPSB decision in 1954, petitioner filed a complaint in the United States District Court for the Dic.~ 17 notification stated:. "Security considerations prohibit the furnishing to on appellant of a detailed statement of the findings on appeal inasmuch as the entire* file is considered and comments made by the Apps~l Divbico panel on security matters which could not for security znacona forni the basis of a statement of reasons.". * 18ThiS Board was created by the Secretary of Defeflz~ on February 2,1955, and given power to review adverse decisions rendered by the regional boards. 1'This was the first time that petitioner was charged or found to be untrustworthy. PAGENO="0054" 1618 AMENDING SUBVERSIVE ACTIVITIE.S CONTROL ACT OF 195 0' GREENE v~ McELROY.. O~ awn of the Court. trict of Columbia asking for a declaration that the revoca tion wa~ unlawful and void and for an order restraining' respondents from acting pursuant to it.~° He also asked for an order requiring respondents to advise ERCO that the clearance revocation was void. Following the affirm- ance of the EIPSB order by the Industris,l Personnel Review Board, petitioner moved for summai.y judgment, in the District Court. The Government cross-filed for dismissal of the coxn~laint or summary judgment. The District Court granted the Government's motion for sum- mary judgment, 150 F. Supp. 958, and the Court of Appeals affirmed that disposition, 103 U. S. App. D. C'. 87, 254 F. 2d 944. The Court of Appeals recogi~ized that petitioner had suffered substantial harm from the clearance revocation.~ But `in that court's view, petitioner's suit presented no "justiciable controversy"-no controversy which the courts could finally and effectively, decide. This conclu- sion followed from the Court of Appeals' reasoning that the Executive Department alone is competent to evaluate the competing considerations which exist in determining the persons `who are to be afforded security clearances. 20 complaint was filed before the establishment of the Indus-~ trial Personnel Security Review Board. See note 18, supra. 21 The Court of Appeals stated: `We have no doubt that, Greene has in fact been injured. He was forced out of a job that paid him $18,000 per year. He has since been reduced, so far as this `record shows, to working as an architectural draftsman at a salary of some' $4,400 per year. Further, as an aeronautical engine~r of considerable experience he says (without real contradiction) that he is effectively barred from pursuit of many aspects of his profession, given the current dependence of most phases of the aircraft industry on Defense, Department contracts not only for production but for research and development work as well. . . . Nor do we doubt that, following the Government's action, some stigma, in greater or less degree, has attached to Greene." 103 U. S. App. D. C. 87, 95-96, 254 F. 2d 944, 952-953. ` PAGENO="0055" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 195 O~ 1619 OCTOBER TERM, 1958. Opinion of the Court. 360 U. S.. The court also rejected petitioner's claim that he was deprived: of his livelihood without the traditional safé.~ guards required by "due process oflaw" such as confronta- tion of his accusers and access to confidential reports used to determine his fitness. Central to this determination was the court's unwillingness to order the Government to choose between disclosing the identities of informants or giving petitioner clearance. Petitioner contends that the action of the Department of Defense in barring him from access to classified in- formatiOn on the basis of statements of confidential informants made to investigators was not authorized by either Congress or the President and has denied him "liberty" and "property" without "due process of law" in contravention of the Fifth Amendment. The alleged property is petitioner's employment; the alleged liberty is petitioner's freedom to practicç his chosen profession. Respondents admit, as they must, that the revocation of security clearance caused petitioner to lose his job with ERCO and has seriously affected, if not destroyed, his ability to obtain employment in the aeronautics f~e1d. Although the right to hold specific private employment and to follow a chosen profession free from unrea- sonable governmental interference cOmes within the "liberty" and "property" concepts of the Fifth Amend- ment, Dent v. West Virginia, 129 U. S. 114; Schware v. Boatd of Bar Examiners, 353 U. S. 232; Peters v. Hobby, 349 U S 331, 352 (concurrmg opinion), cf Slochowet~' V Board of Education, 350 U. S. 551; Truax v. Raich, 239 U. S. 33, 41; .Allgeyer v. Louisiana, 165 U. S. 578, ~89- 590; Powell v. Pennsylvania, 127 U. S. 678, 684, respond- ents contend that the admitted interferences which have. occurred are indirect by-products of necessary govern- mental action to protect the integrity of secret information and hence are not unreasonable and do not coi~stitute deprivations within the meaning of the Amendment. PAGENO="0056" 1620 AMENDING SUBVERSIVE ACTIViTIES CONTROL ACT OF 1950 GREENE v. `McELROY. Opinion of the Court. Alternatively, respOndents urge that even if petitioner has been' restrained in the enjoyment of constitutionally protected righte, he was accorded due process of law in that, he was permitted to utilize those procedural safe-. guards consonant with an effective clearance program, in the administration of which the identity of informants and their statements are kept secret to insure, an unim- paired flow to the Government of information concerning subversive conduct. But in view of our conclusion that this case should be decided on the narrower ground of "authorization," we find that we need not determine the answers to these questions.22 The issue, as we see it, is whether the Department of Defense has been authoriZed to create an industrial secu- rity clearance program under which affected persons may lose their jobs and may be `restrained in following their, chOsen professions on the' basis `of fact determinations concerning their fitness for clearance made in proceedings in which they are denied the traditional procedural safeguards of confron~tion~and cross-examination. Prior to World War II, only sporadic efforts were made to control the clearance of persons who worked in private establishments which manufactured materials for national defense. Report of the Commission on Government Security, 1957, S. Doe. No, 64, 85th Cong., 1st Sess.',236. During World War [I the War Department instituted a 22 note our agreement with respondents' concession' that peti- tioner has standing to bring this suit and to assert ~vhatever rights he may have. Respondents' actions, directed at petitioner as an individaal, caused substantial injuries, Joint Anti-Fczscuit Committee~ V. McGrath, 341 U. 8. 123, 152 (concurring opinion), and, were they the subject of a suit, between private persons, they could be attacked as an invasion of a legally protected right to be free from arbitrary interference' with private contractual relationships, Moreover, peti-. tioner has the right to be free from unauthormed nctions of govern- ment officials which substantially impatr his plroperty interests. Cf. Philadelphia Co. v. Stimson, 223 U. 8. 605. PAGENO="0057" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950\ 1621 OCTOBER TERM,. 1958. Opinion of the Court. 360 U. S. formalized program to. obtain the discharge. from war plants of persons engaged in sabotage, espionage, and willful activity designed to disrupt the national defense program. Id., at 237. In 1946, the War Department began to require contractors, before being given access to classified information, to sign secrecy agreements which required consent before their employees were permitted access to Top Secret or Secret information. Id., at 238. At the outset, each armed service administered its own industrial clearance program. Id., at 239. Later, the PSB. and IERB were established by the Department of Defense and the Secretaries of the armed services to administer a more centralized program. Ibid. Confu- sion existed concerning the criteria and procedures to be employed by these boards. Ibid. Eventually, general- ized procedures were established with the approval of the Secretaries which provided in part that before the IERB "[tJ he hearing will be conducted in such manner as to protect from disclosure information affecting the national security or tending to compromise investigative sources or methods .~. . ." See "Procedures Governing Appeals to the Industrial Employment Review Board, dated 7 November 1949," note 4, supra, § 4 (c). Aftei~ aboli- tion of these boards in 1953, and the establishment of the IPSB, various new sets of procedures were promulgated which likewise provided for the non-disclosure of informa- tion "tending to compromise investigative sources or methods or the indentity of confidential informants." ~ 23 Industrial Personnel Security Review Regulation, 20 Pod. Reg. 1553, recommended by the Secretaries of the Army, Navy, cud Air Force, and approved by the Secretary. of Defense,' provided: "~ 67.1-4. Relea8e of informatioii. AU personnel in the Progrom will comply with applicable directives pertaining to the safeguarding of classified information and the handling of investigative reports. No classified information, nor any, information which might corn- PAGENO="0058" 1622 ~)AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 GREENE v. McELROY. Opinion of the Court. All of these programs and procedures were established by directives issued by the Secretary of Delense or the Secretaries of the Army, Navy, and Air Force None was the creature of statute or of an Executive Order issued by the President.~" Respondents maintain that congressional. authorization to the Président to fashion a program which denies secu- rity clearance to persons on the basis of confidential in- formation which the individuals have no opportunity to confront and test is unnecessary because the President has inherent authority to maintain military, secrets invio- late. And respondents argue that if's statutory grant of power is necessary, such a grant can readily be inferred "as a necessarily implicit authority, from the generalized provisions" of legislation dealing with the armed services. promise investigative sources or methods or the identity of confiden- tial informants, will be disclosed, to any contractor or contractor employee, or to his lawyer or representatives, or to ally other person not authorized to have access to such information. In Addition, in a case involving a contractor employee the contractor concerned will be advised only of the final determination in the case to grant, deny, or revoke clearance, and of any decision to suspend a clearance granted previously pending final determination in the case. The contractor will not be given a copy of the Statement ~f Reasons issued to the contractor employee except at the written request of the contractor employee concerned." 24See "Charter of the Industrial Employment Review Board, dated 7 November 1949," note 4, 8upra; "Charter of the Army-Navy-Air Force Personnel Security Board, dated 19 June 1950," note 3, supra; Memorandum issued by the Secretary of Defense to the Secretaries of the Army, Navy, and Air Force ~nd to the Chairman of the Munitions Board, dated March 27, .1953, notes 6, 7, 8 and 9, 8upra; "The Industrial Personnel and Facility Security Clearance Program," effective May 4, 1953, note 13, supra; "The Industrial Personnel Security Review Regulation," 20 Fed. Reg.. ISSa, 32 CFR Part 67 (1958 Supp.); Industrial Security Manual for Safeguarding Classi- fied Information, 20 Fed. Reg.. 6213, 21 Fed. Reg. 2814. PAGENO="0059" (AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 195 O~ 1623 OCTOBER TERM, 1958. Opinion of the Court. 360 Ti. S. But the question which must be decided in this case is not whether the President has inherent power to act or whether Congress has granted him such a power; rather, it is ~ hether either the President or Congress exercised such a power and delegated to the Department of Defense. the authority to fashion such a program Certain principles have remained relatively immutable in our jurisprudence. One of these is that where govern- mental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the Government's case must be disclosed to the individual so that he has an oppor- tunity to show that it is untrue. While this is important in the case of documentary evidence, it is even more important where the evidence consists of the testimony of individuals whose memory might be faulty or who, in fact, might be perjurers. or persons motivated by~ itiahee. vindictiveness, intolerance, prejudice, or jealousy. We have formalized these protections in the require- ments of confrontation and cross-examination. They have ancient roots.~ They find expression in the Sixth Amendment which provides that in all criminal cases the accused shall enjoy the right "tO be confronted with 25 When Festus more than two thousand years ago reported to King Agrippa that Felix had given him a prisoner named Paul and that the priests and elders desired to have judgment against Paul, Festus is reported to have stated: "It is not the manner of the Romans to deliver any man to die, before that he which is accused have the accusers face to face, and have licence to answer for himself concerning the crime laid against him." Acts 25:16. .~ Professor Wigmore explains in some detail the emergence of the principle in Anglo-American law that confrontation and cross examination are basic uigredlents m a fair trial 8 Wigmnore on Em dence (3d ed 1940) § 1364 And see O'Brian, National Security and Individual Freedom, 62 PAGENO="0060" 1624 \AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950' GREENE v. McELROY. Opinion of the Court. the witnesses against him." This Court has been zealous to protect these rights from erosion. It has spoken out hot only in criminal cases, e. g~, Mattox v. United State8, 156 U S 237, 242-244, Kwby v United States, 174 U. S. 47; Motes v. United States, 178 U. S. 458, 474; In re Oliver, 333 U S 257, 273, but also in all types of cases where administrative and regulatory actions were under scrutiny E g, Southern R Co v Virginia, 290 U. S. 190; Ohio Bell Telephone Co. v. Public Utilities Commis&ion, 301 U. S. 292; Morganv. United States; 304 U. S. 1, .19; Carter v. Kubler, 320 U. S. 243; Reilly v. Pinkus, 338 U. S. 269 Nor, as it has been pointed out, has Congress ignored these fundamental requirements in enacting regulatory legislation. Joint Anti-Fascist Committee v. McGrath, 341 U. S. 168-169 (concurring opinion). Professor Wigmore, commenting on the ~irnportance of cross-examination, states in his treatise, 5 Wigmore on Evidence (3d ed. 1940) § 1367: "For two centuries past, the policy of the Anglo- American system of Evidence has been to regard the necessity of testing by cross-examinal;ion as a vital feature of the law. The belief that no safeguard for testing the value of human statements is comparable to that furnished by cross-examination, and the con- viction that no statement (unless by special excep- tion) should be used as testimony until it has been probed and sublimated by that test, has found increasing strength in lengthening experience." Little need be added to this incisive summary statement except to point out that under the present clearance pro- cedures . not only is the testimony of absent witnesses allowed to stand without the probing questions of the person under attack which often uncover inconsistencies, PAGENO="0061" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 1625 OCTOBER TERM, 1958. Opinion of the Court. 360 U. S. lapses of recollection, and bias,~ but, in addition, even the members of the clearance boards do not see the informants or know their identities,, but normally rely on an investigator's summary report of what the in- 26 For instance, in' the instant case, to establish the charge that petitioner's "personal political sympathies were in general accord with those of his wife," the EIPSB apparently relied on statements made to investigators by "old" friends of petitioner. Thus, the following questions were asked petitioner: "Q. I'd like to read to you a quotation from the testimony of a person who had identified himself as having been a very close friend of yours over a long period of years. He states that you, as saying to him one day that you were reading a great deal of pro-Communist books and other literature. Do you wish to comment on that? "Q. Incidentally this man's testimony concerning you was entirely favorable in one respect. He stated that he didn't think you were a Communist but he did state that he thought that you had been influenced by Jean's viewpoints and that he had received impressions definite that it was your wife who was parlor pink and that you were going along with her. "Q. This same friend testified that he believed that you were influenced by Jean's wild theories and he decided at that time to have no further association with you and your wife . "Q. . . . Here's another man who indicates that he has been a friend of yours over a lông period of time who states that he was a visitor in your home on occasions and that regarding some of these visits, he met some of your wife's friends, these people we've been talking about in the past and that one occasion, he mentioned in particular, the topic of conversation was China and that you cet forth in the conversation and there seemed general agreement among all of you at that time that the revolutionists in China were not actu- ally Communists but were agrarian reformists which as you probably know is part of the Communist propaganda line of several years back. . . "Q. Mr. Greene we've got some information here. indicating that during the period of your marriage to your first wife that she was PAGENO="0062" 1626 AMENDING SUBVERSiVE ACTIVITIES CONTROL ACT OF 1950 GREE .v. McELROY. Q~inion of the Court. fm'rnant ~id ~ithotit even. e~~amining the investigator. p~r~pn~iy~.. We ~u~tdeterrnine ftg~inst thin background, whether the Pe'eni~i~t or~ Congrece line delegaLed to the Depart- constantly finding fault with the Amorican institutions, opposing the Anierican Capitalistic System and never had anything but praise for the Russians and everything they attempted to do. Did you find that to be the case? "Q. We have a statement here from another witness with respect to yourself in which he states that you felt that the modern people in this country were too rich and powerful, that the capitalistic system of this country was to the disadvantage of the working people and that the working people were exploited by the rich. "Q. I have a statement from another one of your associates to the effect that you would at times, present to him a fellow-traveler argument. This man indicated to us that he was pretty well versed on the Communist Party line himself at that time and found you parroting arguments which he assumed that you got from your wife. Do you wish to comment on that?" Confrofltation of the persons who allegedly made these statements would have been of prime Importance to petitioner, for cross-examina- tion might have shown that these "witnesses" were hazy in recol- lecting long-past incidents, or were irrationally motivated by bias or vindictiveness. This is made clear by the following testimony of Jerome D. Fenton, Director, Industrial Personnel Security, Department of De- fense, before the Subcommittee on Constitutional Rights of t.he Senate Judiciary Committee, given on November 23, 1955: What other type of evidence is received by the hearing boards besides the evidence of persons under oath? "[A,] The reports from the various governmental investigative agencies. "[Q.J And the reports of the various governmental investigations might, themselves, be hearsay, might they not? "[A.] I think that is a fair statement. "[Qj In fact, they might be, as the Court of Appeals for the Ninth District [sic] said with respect to the port security program, second, PAGENO="0063" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 195 O~ 1627 OCTOBER TERM, 1958. Opinion of the Court. 360 U. S~ ment of Defense the authority to by-pass these tradi- tional and well-recognized safeguards in an. industrial security clearance program which can operate to injure individuals substantially by denying to them the oppor- tunity to follow chosen private professions. Respondents cite two Executive Orders which they believe show presi- dential delegation. The first, Exec. Order No. 10290, 16 Fed. Reg. 9795, was entitled "Prescribing Regulations Establishing Minimum Standards For The Classifica- tion, Transmission, And Handling, By.Departments And or third, or fourth-hand hearsay, might they not? [This question refers to the opinion of the Court of Appeals for, the Ninth Circuit in Parker v. Lester, 227 F. 2d 708.] "[A.] The answer is `Yes.' Q] (`an you tell me what type of help is given to the hearing' bo~ird in these reports with respect to the matter of evahtation? What is the nature of the evaluation that is used for this purpose? "[A.] Well, each board has a person who is (~alled a security adviser, who is an expert in that particular area. Each screening board has one, and those individuals are well-trained people who know how to evaluate reports and evaluate information. They know how to separate the wheat from the chaff, and they assist these boards.' "[Q.] This expert, then, has to t~e the report and make his own determination in assisting the board as to the reliability of .~ witness that he has never seen, or perhaps hasn't even had the `opportunity to see the person who `interviëwed'the witfiess? "[A.] Well, he has nothing to do with the witness; no. "[Q.] What is that? "[A.] He has not interviewed the witness; no." Hearings before Subcommittee on Constitutional' Rights, Senate Juchciary Committee, on S Res 94, 84th Cong, 2d Ses~ 623-~24 And cf. Richardson, The Federal Employee Loyalty Program, &1' Cal. L. Rev. 546, and Hearings beforo"a Subcommittee of tbc ~ato Foreign Relations Committee on .8. flee. 231, S1~t Cong.1 2d Sec~'. 327-339 (statement'ôf J. Edgar Hoover, Director, Federal Bureau' of Investigation) PAGENO="0064" 1628 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 195 GREEN11~ v McELROY Opinion of the Coutt. Agencies of the Executive Branch, Of Official Informa- tion Which Requires Safeguarding In The Interest Of The Security Of The United States." It provided, in relevantpatt: "P~irr V-DISSEMINATION OF CLASSIFIED SECURITY INFORMATION "29. General. a. No person shall be entitled to knowledge or possession of, or access to, classified security information solely by virtue o~ his office or position. "L. Classified security information shall not be discussed with orin the presence of unauthorized per- sons, and the latter shall not be permitted to inspect or have access to such information. "c. The head of each agency shall establish a sys- tem for controlling the dissemination of classified Tsecurity information adequate to the needs of his agency. "30. Limitations on dissemination-a. Within the Executive Branch. The dissemination of classified security information shall be limited to persons whose official duties require knowledge of such information. Special measures shall be employed to limit the dis- semination of `Top Secret' security information to the absolute minimum. Only that portion of `Top Secret' security information necessary to the proper planning and appropriate action of any organizational unit or individual shall be released to such unit or individual. "b. Outside the Executive BranCh. Classified security information shall not be disseminated out- side the Executive Branch by any person or agency having access thereto or knowledge thereof except under conditions and through channels authorized by PAGENO="0065" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 1629 OCTOBER TERM, 1958. Opinion~ of the Court. 360 U. S. the head of the disseminating agency, even though such person or agency may have been solely or partly responsible for its production." - The second, Exec. Order No. 10501, 18 Fed. Reg. 7049, which revoked Exec. Order No. 10290, is entitled "Safe- guarding Official Information In The Interests Of The Defense Of The United States" and provides in relevant part: "Sec. 7. Accountability and Dissemination. "(b) Dissemination Out side the Executive &anch. Classified defense information shall not be dissemi- nated outside the executive branch -except under con- ditions and through channels authorized by the head of the disseminating -department or agency, even though the person or agency to which dissemination of such information is proposed to be made may have b*~s~n solely or partly responsible for its production." Clearly, t~either of these orders empowers any executive agency to fashion security programs whereby persons are deprived of their present civilian employment and of the opportunity of continued activity in their chosen pro- fessions without being accorded the chance to challenge effectIvely the evidence and testimony upon which an adverse security determination might rest.~ Turning to the legislative enactments which might be deemed as delegating authesity to the Department of Defense to fashion programs under which persons m~y be 28No better, for this purpose, is Exec. Order No. 8972, 8 Fed. Reg. 6420, filed on December 12, 1941, which empowered the eec- retary of War "to establish and maintain military guards and patrols, and to take other appropriate measures, to protect from injury or destruction national-defense material, national-defense premises, and national-defense utilities . . . ." Even if that order is relevant authority for programs create~I-after World War II, whiehis doubtful, it provides no specific authorisation for non-confrontation hearings. 94-756 0 - 68 - pt. 2 --5 PAGENO="0066" 1630 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 195 0,' GREENE v. McELROY. Opinion of the Court. seriously restrained in. their employment opportunities through a denial of clearance without the aifeguards of cross-examination and confrontatioz~, we note the Gov- ernment's own assertion, made in its brief, 1;hat "{w]ith petitioner's cOntention that the industrial Security Program is not explicitly authorized by statute we may `rea~dily agree.. . . The, first proffered statute is the National Security Act of 1947, a~ amended, 5 U. S. `C, § 171 et seq. That Act created the Department of Defense and gave to the Secre- tary of Defense and the Secretaries of the armed services the authority to administer their departments. Nowhere in the Act, or its amendments, is there found specific authority to create a clearance program similar to the one now, in effect~ Another Act cited by respondents is the Armed Service Procurement. Act of 1947, as amended. It provides in 10 U. .5. C. §2304 that: "(a) Purchases of and contracts for property or serviceS covered by this chapter shall be made by formal advertising. However, the head of an agency may negotiate such a purchase or contract, if- "(12) the purchase or contract is for property or services whose procurement he determines should not be' publicly disclosed because of' their character, ingredients, or components." It' further provides in 10 U. S. C. § 2306: "(a) The cost-plus-a-percentage-of~cost system of contracting may not be used. Subject to this limita- tion ~and subject to subsections (b)-('e), the head of an agency may, in negotiating contracts under sec- tion 2304 of this title, make any kind of contract that he considers will promote the best interests of the United States." 5O96i~ O-59--35 PAGENO="0067" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950' 1631 OCTOBER `TERM, 1958. Opinion of the Court. 360 U.S. Respondents argue that these statutes, together with 18 U. S. C. § 798, which makes it a crime willfully and know.. ingly to communicat,e to unauthorized persons informs,. tion concerning cryptographic or intelligence activities, and 50 U. S~ C. § 783 (b), which makes it a crime for an officer or employee of the United States to communicate classified information to agents of foreign governments or officers and members of "Communist organizations," re- flect a recognition by Congress of the existence of military secrets and the necessity of keeping those secrets inviolate. Although these statutes make it apparent that Congress recognizes the existence of military secrets, they hardly constitute an authorization to create an elaborate clear- ance program which embodies procedures traditionally believed to be inadequate~to protect affected pèrsons?~ Lastly, the Government urges that if werefuse to adopt its "inferred" authorization reasoning, nevertheless, con.. gressional ratification is apparent by the' continued apprö~. i~riation of funds to fluiance aspects of the program fashioned' by the Department of Defense. Respondents refer us to Hearings before the House Committee on Appropriations on Department of DefenseAppropriâtions for 1956, 84th Cong., `1st Sees. 774-~781. At those hearings, the Committee was asked to approve the appro- priation of funds to finance a program under which reim- bursement for lost wages would be made to employees of government contractors who were temporarily denied, but later granted, security clearance. Apparently, such reim.. 2aAs far as appears, the most substantial official nQtice which Congress had of the non-confrontation procedures used in screening industrial workers was embodied in S~ Doe. ~o. 40, 84tb~ Càng., let Sess., a 354-page compilation of laws, executive ordere, and regWa- tions relating~ to internal security, printed at the reqtsest of a single Senator, which reproduced, among other documents and without specific comment, the Industrial Personnel Security Review' Regulation. PAGENO="0068" 1632 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 O~ENE ~. McEL~OY. Opinion of the Court. bUtsement8 had been made prior ~to that time out of general appropriations. Although a specific appropria- ti6n was eventually made for this purpose, it could not conceivably constitute a ratification of the hearing pro- * cedures, for the ~rócedures were in no way involved in the special reimbursement program3° * ~°At the hearings to which we have been referred, the following passage from the testimony of the Department of Defense repre- sentative constitutes the only description made to the Committee concerning the procedures used in the Department's clearance program: "In connection with the procurement programs of the D~partment of Defenae~ regulations have been prescribed tO provide uniform standarde and criteria for dete~mining the eligibility of contractors, contractor employees, and certain other individuals, to have access to classified defense information. The regulations ah~o establish ad- ministrative procedures governing the disposition of cases in which a military department, or activity thereof, has made a recommenda- tion or determiziation (a) with respect to the denial, suspension, or' revocation of a clearance of a contractor or contractor employee; and (b) with respect to the denial or withdrawal of authorization for access by certain* other individuals. "While the Department of Defense assumes, unk~ss information to the contrary is received, that all contractors and contractor employees are loyal to the Government of the United States, the responsibilities of the Military Establishment necessitate vigorous application of policies designed to minimise the security risk incident to the use of classified information by such contractors and contractor employees. Accordingly, measures are taken to provide continuing assurance that ilo contractor or oonttactor employee will be granted a clearance if available information indicates .that the granting of such clearance may not be clearly consistent with the interests of national security. At the same time, every possible safeguard within the limitations of national security will be provided to ensure that no contractor or contractor employee will be denied a clearance without an opportunity for a fair hearing.". Id., st 774. This description hardly constitutes even notice to the Committee of the nature of the hearings afforded. Thus the appropriation could not "plainly show a purpose to bestow the preet~ie authority which is claimed." Ex. porte Endo, 323 U. S. 283. 303, a. 24. Likewise, PAGENO="0069" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 1633 OCTOBER TERM, 1958. Opinion of the Court. 360 U. S. Respondents' argument on delegation resolves itself into the following: The President, in general terms, has authorized the Department of Defense to create pro- cedures to restrict the dissemination of classified infor- mation and has apparently acquiesced in the elaborat program established by the Secretary of Defense even where application of the program results in restraints on traditional freedoms without the use of long-required procedural protections Similarly, Congress, although it has not enacted specific legislation relating to clearance procedures to be utilized for industrial workers, has acquiesced in the existing Department of Defense pro- gram and has ratified it by specifically appropriating funds to finance one aspect of it. If acquiescence or implied ratification were enough to show delegation of authority to take action@ within the area of questionable constitutionality, we might agree with respondents that delegation has been shown here. In many circumstances, where the Government's freedom to act is clear, and the Congress or the President has provided general standards of action and has acquiesced in administrative uiterpretation, delegation may be in- ferred Thus, even in the absence of specific delegation, we ha'~e no difficulty in finding, as we do, that the Depart- ment of Defense has been authorized to fashion and apply an industrial clearance program which affords affected persons the safeguards of confrontation and cross-examination But this case does not present that situation We deal here with substantial restr~pn employment opportunities of numerous persons ~uiposed in~I~manner which is in conflict with our long-accepted appropriations of specific arnounla for the MuniUons Boar4 ~r ito successors, agencies with multifold objectives, without eny rpe~tio~i of the uses to which the funds could be put, cannot be considered as a ratification of the use of the specified bearing procedures PAGENO="0070" 1634 AMENDING SUBVERSIVE ACTIVITIES CONTROL i~CT OF 1950 GREENE v McELROY Opinion of the Court notions of' fairproôedures.el: Before we are asked to judge whether, in the context of security clearance cases, a persoi:may be deprived of the right to follow his, chosen profession without full h~ gswbere accusers may be confronted, it must be made clear that the President or Congre~ within their respective constitutional powers, specx6cally has decided that the nn~osed procedures are necessary and warranted and has authoriz1'd their use Cf ~Watkzsis v United States, 354 U S 178, Scull v Virginia, 359 U S 344. Such decisions cannot be assumed by acquiescence or non-action Kent v DuLles, 357 U S 116, Pef~ers v Hobby, 349 U S 331, Ex pai te Endo, 323 15 S 283, 301-302 They must be made explicitly not only to' assure that individuals are not deprived of cher- ished rights under procedures not actually authorized, see Peter8 ~v. lThbby, 8upra, but also because explicit action, especjally.,in areas of doubtful constitutionality, requires `carefül'ánd purposeful consideration by those responsible for' enac1~ing and implementing our laws Without ex- * plicit action by lawmakers, decisions of great constitu-. tional `import and effect would be relegated by default to administrators who, under our system of government, are not endowed with authority to decide them Where administrative action has raised' serious con- ,stitutional problems, the Court has assumed that. Con- gress or the President intended to afford tho~e affected by `the action the traditional safeguards of due prOOess. See, e. g., The' Japanese Immigrant Case, 189 U. S. 86; 101; Di.smuke v. United States, 297 U. S. 167, 172; Ex parte Endo, 323 U. S. 283, 299-300; American Power Co. v. Securities and Exchange Comm'n, 329 U. 5. `90, 107- 81 It is estimated that approximately three million persons having access to classified information are covered by the industrial security program. Brown, Loyalty and Security (l~58), l7~-18O; Association of the `Bar of the City of New York, Report of the Special Committee on the Federal Loyalty-Security Program (l95~), 64, PAGENO="0071" * AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 1635 OCTOBER TERM, 1958. Opinion of the Court. 360 U. S. 108; Hannegan v. Esquire, 327 U. S. 146, 156; Wong Yang Sung v. McGrath, 339 U. S. 33, 49. Cf. . Anni~ton MI g. Co. v. Davis, 301 U. S. 337;. United States v. Rumely, ~45 * U. S. 41. These cases reflect tbe Court's cOncern that traditional forms of fair procedure not be restricted by implication or. without the most explicit action by the Nation's lawmakers, even in areas where it is pocsible that the Constitution presents no inhibition. ... In the instant case, petitioner's work opportunities have been severely limited on the basis of a fact determination rendered after a hearing which failed to comport with our traditional ideas of fair procedure. The type of hearing was the product of administrative decision not explicitly authorized by either Congress or the President. Whetber those procedures under the circumstances comport with the Constitution we do not decide. Nor do we decide whether the President has inherent authority to create. such a program, whether congressional action is neees sary, or v~hat the limits on executive or legislative author ity may be. We decide only that in ~ eb~n~s:of 7 explicit authorization from either the President Or: Coii~ gross the respondents were not empowered to deprive petitioner of his job in a proceeding in which he was not afforded the safeguards of confrontation and examination. .. .. Accordingly, the judgment is reversed and the c~e' is remanded to the District Court for proceedings not inconsistent herewith. S * ft is so ordered. MR JUSTICE FRANKFURTER, MR Jtrerio~ H~aw and MR. JUSTICEWHITrAKER concur in the judgme~it on the ground that it has not been shown that either Congress or the President authonzed the procedures whereby peti~ tioner's security clearance was revoked, intimating z~o views as to the validity of `those procedures. ~. PAGENO="0072" 1636 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950. GREENE~ v. McELROY. )~j~ "of RAR!I~N, J~ MR JtTS'riCE HAiu~AN, concurring epeeially What has been written on both sides of this case makes appropriate a further word from one who concurs in the judgment of the Court, but can~ot join its cpmion Unlike my brother Cv~u~ who finds this case "both `dIear and simple," I consider the constitutional issue it presents most difficult and far-reaching In my view the Court quite properly declines to decide it in the present posture of the case. My unwillingness to sub- scribe *` to the Court's opinion is due to the fact that it unnecessarily deals with the very issue it disclaims deciding..~ `Por present purposes no more need be said than `that we should not be drawn into deciding' the constitutionality of the security-clearan e revocation procedures employed in this case until the use of such procedures in matters of this kind has been deliberately considered and ~*pressly authorized by the' Congress or the President who alone are in a position to evaluate in the first instance the totality of factors bearing upon the necessity for their use That much the courts are entitled to before they are asked to express a constitutional judgment upon an i~ue fraught with such important consequences both to `the Government and the citizen. `Ample justification for abstaining from a constitutional décisión `at this stage of the case is afforded by the Court's traditional and' wise rule of not reaching constitutional issues umiecessarily or prematurely. That rule indeed has been consistently followed' by. this Court when faced with "confrontation" issues in other security or loyalty cases.' See Peters v. Hobby, 349 U. S. 331; Vitarelli v. Seatc,n, 359 U. S. 535; cf. Service v. Did les, 354 U. S. 363; Kent v. Efl.dtes, 357 U. S. 116. Adherence to that rule is, ui understand it, the underlying basis of today's deci- sion, and it is on that basis that I join the judgment of the Court. PAGENO="0073" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 1637 OCTOBER TERM, 1958. Cx~ai~, J., dissenting. 360 U. S. It is regrettable that my brother CL~taK should have so far yielded to the temptations of colorful characteriza- tion as to depict the issue in this case as being whether a citizen has "a constitutional right to have access to the Government's military secrets," and to suggest that the Court's action today requires "the President's Cabinet members to revoke, their refusal to give" the petitioner "access to military secrets," despite any views they may have as to his reliability. Of course this decision involves no such issue or consequences. The basic constitutional issue is not whether petitioner is entitled to access to classified material, but rather whether the particular procedures here employed to deny clearance on security grounds were constitutionally permissible. With good reason we do not reach that issue as matters now stand. And certainly there is nothing in the Court's opinion which suggests that petitioner must be given access' to classified material. MR. JUSTICE Cz~.RE, dissenting. * To me this case is both clear and simple. The respondents, all members of the President's Cabinet, have, after a series of hearings, refused to give Greene further access to certain government military informa-. tion which has been classified "secret," The pertinent Executive Order defines "secret" information as - "defense information or material the unauthorized disclosure of which could result in serious, damage to the Nation, such as by jeopard17~ng the mterna- tional relations of the United States, endangering the effectiveness of a program or policy of vital impor- tance to the national defense, or coinproniising important military, or defei~se plans, scientjfie.' or technological developments important to national defense, or information revealing importaflt. intelli. PAGENO="0074" 1638 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 GREENE v McEtROY Cwiz, J., di~ent~ig genes operations" Rxec Order No 10501, Nov 5, 1053, 18 Fed Reg 7049, 3 CFR (1949- 1953 Comp), p 979, § 1 (b) Surely one does not have a constitutional right to have access to the `Government's military secrets.1 But the Coui~t says that because of the refusal to grant Greene further acce8s, he has lost his position as vice president and general manager, a chief executiye officer, of ERCO, whóse~business was devoted wholly to defense contracts `with the United States,8 and~ that his training in aero- nautical engineering~ together with the facts that ERCO engages solel~' in government work and that the Govern- ment j~: the country's largest airplane customer, has in some unaccountable fashion parla)~ed his Qmployment with ERCO into "a constitutional right" What for any- one else would be considered a' privilege at best has for Greene been enshrouded in constlti4tional protection This sleight of hand is too much for me. But this is not all After holding that Greene has con- stitutional protection for his private job, the Court has ordered the President's Cabinet members to revoke their refusal to give Greene access to military secrets ` It ~ My brother HA.at&N very kindly credite me with "colorful char- acterization" in stating this as the issue. While I `take great pride in authorship, I must say that in this instance I merely agreed with the statement of the issue by the Solicitor General and his co-counsel `in five 4i~erent places in the Brief for the United States. See pp. 2, 17, 19, 29, 59. ~ ERCO agreed in its government `contract, a~ wa~ well known to * Greene, to exclude any individual from any part of its Plant at which work under the contract was being performed who had not been cleared `by the Navy for access to military secrels. 3 Brother HARLAN states that I suggest `that the Court's action to- `day requires `the President's Cabinet members to revoke their refusal to give' the petitioner `access to military secrets' despite any views they may have as to his reliability . . . ~" Government officials, well versed in the applientioC of this Court's judg~nent~ to the practicalities PAGENO="0075" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1050 1639 OCTOBER TERM, 1958. CLARK, J., dissenting. 360 U. S. strikes down the present regulations as being insufficiently authorized by either the President or the Congress because the procedures fail to provide for confrontation or cross.~ examination at Board hearings. Let us first consider that problem. I. THE CONSTITUTIONAL ISSUE.. After full consideration the Coutt concludec "that in the absence of explicit authorization from either the President or Congress the respondents were not empow~ ered to deprive petitioner of his job in a proceeding in which he was not afforded the safeguards of confronta- tion and cross-examination." In so doing, as 1 eball point out, it holds for naught the Executive Orders of both President Roosevelt and President Truman and * the directives pursuant thereto of every Cabinet officer connected with our defense since 1942 plus the expIic~t order of General DwightD. Eisenhower as Chief of Staff in 1946. In addition, contrary to the Court'~'conelusion, the Congress was not only fully informed but had itself published the very procedures used in Greene's case. I believe that the Court is in error in holding tth it must, in order to reach this "authorization" issue, that. Greene s "right to hold specific private employment ~nd to follow a chosen profession free from unreasonthle.:gov- ernmental interference" Is protected by the FifthAi~éncL.. ment It cites four cases in support of this proposition and says compare four others As I read those ca~ not of government operation, say that the rebe' which Gres~e seeks here-and which the Court now grants-is "in substance, a maM$ory injunction requiring that the Government show hun (or, in practice, allow contractors to show him) def~nse secrets, notwithstanding the judgment of the executive branch that such disclosure might jeop.- ardize the national safety" Brief for the Unite4 States, 48 PAGENO="0076" 1640 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 v M~LILOY (!~ Ji, d~w~ng one 18 m point~ ~1n ~ ~ ~not find a single i-'ase in support of the~ Co~art/s~positaon~ even a smt~ for damages Øfl; thé~ ~ ünd~ó~j,~,f~rence!:with private contracts does net he against th~ nm~t~ The Cor~g~ese specifl. c~Zb~ e~xeinpted suel~ suite from the Tort Cligarns Act 28 U S' C ~268O (ii) BUt the action today ~nay have the efféát of'by-pasthng that e~einptáon since Greene will now cl~un, as has Viterdlli, aes Vitarsflt v Seaion, 359 t S ~ (p59),. reimbursement for he lbs~ of wages. See Taylor v~. McErroy~ 08t p 7O~ This will date back to I~953~ ~i aakwy at that tithe w $I8,O(X) a year. rn. holding that the Fifth ~mendment prntects Greene the Court ignores the basic. consideration in the case, nameI~. that no person, save the Pi~ethdent, has a con- stitutiOnal r1~ht to access to governmental secrets. Even theu~ such adces~ in necessary for one to keep a job 4Dent v. West Virginia, 129 ti. S. 114 (1889), held that aWest Virginia.. statute did not deprive one previously practicing medicine of Ma rights without due process by requiring him to obtain a license under the Act. Schware v. Board of Bar Examiners, 353 lJ. S. 232 (I95V)~,. likewise a license cans, did not pass upon the "right" or "privilege" to practice~ law, merely holding that on the facts the ~funst to permit Schwan~ to take the examination, was "invidiously dinan~" l~i Peters v. Hobby, 349 U. S. 331 (1955~, the Cour~t simply held the action taken violated the Executive Order invch~d~ The concurring opinion, DOUGLAS, J., p. 350, went further hut alone on the question of "right." The Court did not (liscuss that 4Uestion,. much less pass upon it. Slochower v. Board of Educe- tion, 3~O. U. a 851 (1~56'), held that the summary dismissal without further evidence by New York of a school teacher because he had pleaded' the Fifth Amendment before a United States Senate Com-~ mittee violated' due process. The ease merely touched' on the `right" to' plead the Fifth Amenrhnent, not to "property" rights. Truax v. J~oich, 239 U. ~. 33 (19t5); Altqeyer v. Lonisiaaa, 165 tJ. S. 578 (1~97);. and PoweU v. Pennsijlvania, 127 C. S. 678 (VsSS), were equal prot ction cases wherein discrimination was claimed. Greene alleges no discrimination. PAGENO="0077" (AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 1641 OCTOBER .ERM,. 1958. CLARK, J., dissenting. 380 U. S. in private industry, he is still not entitled to the secrets. It matters not if as a consequence he is unable to secure a specific job or loses one he presently enjoys. The simple reason for this conclusion is that he has no constitutional right to the secrets. If access to its secrets is granted by the Government it is entirely permissive and may be revoked at any time. That is all that the Cabinet officers did here. It is done every day in governmental opera~ tion. The Court seems to hold that the access granted Greene was for his benefit. It was not. Access was granted to secu~re for the Government the supplies or services it needed. The contract with ERCO specifically provided for the action taken by the Cabinet officers. Greene as General Manager of ERCO knew of its provi~ sions. If every person working on government contracts has the rights Greene is given here the Government is indeed in a box. But as was said in Perkins v. Lithen~ Steel Co., 310 U. S. 113, 127-128 (1940): "Like private individuals and businesses, the Gov~ ernment enjoys the unrestricted power to produce its own supplies, to determine those with whom it wiU deal, and to fix the terms and conditions upon which it will make needed purchases. . . . Judicial re~ straint of those who administer, the Government'o purchasing would constitute a break with settled judicial practice and a departure into fields hitherto wisely and happily apportioned by the genius of ou~ polity to the, administration of another branch of Government." The Court refuses to pass on the constitutionoiity of the procedures used in the hearings. It does say that. the hearings provided for in the program permit the restraint of "employment o~~portuthfies through a denial of clearance without the safeguards of confrontation and cross-examination." I think the Court confuses admin~ PAGENO="0078" 1642 \AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 195 0) GREENE v. McELROY. CLAa~, ST., dissenting. istrative action with judicial trials. This Court has long ago and repeatedly approved administrative action where the rights of. cross-examination and confrontation were not permitted. Chicago & Southern Air Lines v. Water- man Corp., 333 U. S. 103 (1948); Carl~n v. Landon, 342 11. S. 524 (1952); United States v. Nugent, 346 U. S. 1 (1953); United States v. Reynold8~ 345 U. S. 1 (1953); Knauff v. Shaughnessy, 338 U. S. 537 (1950); Shaughnessij v. `Mezei, `345 U. S. 206 (1953); and Jay v. Boyd, 351 U. S. 345 (1956). At no' time since the programs now in vogue were es- tablished in 1942 have the rights of cross-examination and confrontation of witnesses been required. In fact the present regulations were patterned after the Employee Loyalty `Program, first ins.ugurated upon the passage of the Hatch Act in 1939, in which the rights of confronts- `tion and cross-examination have never been recognized. Every.. Attorney General since that time has approved these procedures, as has every President. And it should be noted, though several cases here have attacked the regulations on this ground, this Court has yet to strike them down.5 I shall not labor the point further than to say that in my opinion the procedures here do comport with that fair- ness required of administrative action in the security field. A score of our cases, as I have cited, support me in this position. Not one is to the contrary. And the action of the Court in striking down the program for lack of spe- cific .authorization is indeed strange, and hard for me to understand at this critical time of national emergency. The defense establishment should know-and now- whether its program is constitutional and, if not, wherein 5See Bailey v. Richardson, 86 U. S. App. D. C. 248, 182 F. 2d 46, affirtned by an equally divided Court, 341 U. 8. 918 (1951); Peters v. Hobby, 349 U. 8. 331 (1955). PAGENO="0079" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 195 o\ 1643 OCTOBER TERM, 1958. Ci~nx, J., dissenting. 360 U.S. it is deficient. I am sure that it will remember that in other times of emergency-no more grave than the pres.- ent-it was permitted, without any hearing whatsoever- much less with confrontation and cross-examination-to remove American citizens from their homes on the West Coast and place them in concentration camps. See * Hirabayashi v. United States, 320 U. S. 81 (1943); Korematsu v. United States, 323 U. S. 214 (1q44). My examination of the Japanese exclusion orders indicates clearly that the Executive Order was a general authoriza- tion just as the two here. Congress at the time only created criminal offenses for violation of exclusion or curfew orders of the military commander. Likewise we have criminal statutes here. And while the Japanese orders were in time of war, those involved here had their inception in war and have been continued during the national emergency declared by the President. No one informed in present world affairs would say that our safety is less in jeopardy today. In fact. we are now spending nearly as much money to protect it as during the war period. In this light it is inescapable that the existing authorizations are entirely sufficient. Let us examine them. II. THE PRESIDENT AND THE CONGRESS HAvE GRANTED SUFFICIENT AUTHORITY TO THE CABINET Omc~n~. Since 1941 the industrial security program has been in operation under express directives from the President. Within a week after the attack on Pearl Harbor, Presi- dent Roosevelt issued Exec. Order No. 8972, 6 Fed. R.eg. 6420, Dec. 12, 1941, which authorized both the Secretary of War and the Secretary of the Navy "to establish and maintain military guards and patrols, and to take other appropriate -measures, to protect from injury and destruc- tion national-defense material, national-defense premises, and national-defense utilities, . ." (Emphasis added.) PAGENO="0080" 1644 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 G1~EENE v. McELROY. CLARK, 3., dissenting. In 1942, under the authority of that Executive Order, the Secretary of War undertOok the formulation and execu-~ tion of a progrsm of industrial security~ The procedures in. operation from 1942 and 1943 are outlined in a 1948 publication of the Department of War entitled "Suspen- mon of Subversives 1mm-Privately Operated Facilities of Importanee to the Security of the Nation's Army and Navy Programs." ~ Inter~tingly enough, the instruc- * tions were iasued in time of peace, did not give the suspect a hearing, and were signed by the then ChiEf of Staff- now President-Dwight D. Eisenhower. In 1947, the National Security Act, 61 Stat. 495, effected a reorganization of the military departments and placed the Secretary of Defense at the head of the National Military Establishment. Section 305 (a) of the Act transferred to the new organization "[a]ll laws, orders, regulations, and other actions applicable with respect to any function . . . transferred under this Act . . . ." Section 213 created a Munitions Board ~ Report of the Commission on Government &curity (1957), S. Doe. No. 64, 85th Cong., 1st Sess. 237, n. 7. ~ War . Department Pamphlet No. 32-4 (1946) provided both criteria and procedures for removal of subversives. The basic cri- terion was "good cause to suspect an employee of subversive ac- tivity . . ," the latter being defined as "sabotage, espionage, or any other wilful activity intended to disrupt the national defense program." The basic procedure for removal was set out in ¶ 10: "10. When adequate investigation has revealed that there is good cause to suspect an employee of subversive activity on a national defense project of importance to Army or Navy procurement, the vital success of the project, as well as the security of the loyal employees, may require that the Army or Navy, without revealing the nature or source of its evidence, request the immediate removal of such individual from the project. To this end the cooperation of the organizations representative of organized labor is solicited for the following program: . . ." - Clearly this procedure did not anticipate confrontation or cross- examination. PAGENO="0081" `AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1 95O~ 1645 OCTOBER TERM, 1958. Ci~iix, J., dissenting. 360 U. S. within the military establishment and under the super~ vision of the Secretary of Defense. Among its functions were "(1) to coordinate the appropriate activities within the National Military Establishment with regard to industrial `matters, including procurement `~ plans . . . ; (2) to plan for the military' aspects of industrial mobilization; . . and (10) to perform such other duties as the Secretary of Defense may direct." ~ In his first report to the President in 1948, Secretary of Defense Forrestal reported that: * . the Munitions Board is responsible for neces-. sary action to coordinate internal security within the National Military Establishment with regard to industrial matters. This work is being planned and in some phases carried forward by the following programs: "c. Development of plans and directives to protect classified armed fotces information in the hands of industry from potential enemies; "d. Establishment of uniform methods of handling of personnel cle~ran~ and secrecy agreements First Report of the Secretary of Defense (1948) 102~- 103 The forerunner of the exact program now in effect was put in operation in 1948 under the supervision of that Board And, in the Annual ~eport to the President, in 1949, the Secretary, then Louis Johnctni, reported that "Industrial Security...-A program toe or mate and develop uniform practices to protect classified xnili~ ~ National Security Act Amendments of 1949, 63 8tat 578, amended § 213 so as to delete subparagrAph 10. 94-756 0 - 68 - pt. 2 --6 PAGENO="0082" 1646 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 195 0 GREENE v. McELROY. CiiMtK,:J., di~sentãng. .tary information, placed in the hands of industry under procurement and research contracts was con- turned by the Mumtaons Board Criteria were devel- oped for the granting or denial of peirsonnel and facility clearances ~ the. performance of classified contracts. Work we started to establish a central security clearance register to centralize clearance data for. ready reference by all departments andto prevent duplication in making clearance iii vestigations. A' joint Personnel Security Board administers this program, and the Industrial Employment Review Board hears appeals from security clearance denials." SeóOnd Report of the Secretary of Defense, for the Flscal,Year 1949(1950), 85. Transmitted with that report to the President was the Annual Report of the Secretary of the Army, where the number of security cases processed by the Army-Navy- Air Force Personnel Board, and the number of appeals handled by the Industrial Employment Review Board were detailed.9 Again in. 1950 the Secretary of Defense informed the President, in a report required by law, of the status of the industrial security program. "In the past 6 months, the Munitions Board acti- vated the Industrial Employment Review Board, established procedures under which the latter will operate, and developed a set of uniform criteria stipu- lating the circumstances under which t;eeurity clear- ances will be denied. The Munitions Board also established a Central Index Security Clearance File to serve as a clearing house for all individual and facility clearances and denials, [and 1 developed a standard security requirements check list . °Annual Report of the Secretary of the Army for the Fiscal Year 1949 (1950), 192. 509613 O-39.-36 PAGENO="0083" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 195011647 OCTOBER TERM, 1958k CLAIu~, J., dissenting. 360 U.S. Uniform standards for security investigations of facility and contractors' personnel are being devel- oped . . . . A standard military security agreement is being coordinated to bind potential. suppliers to security regulations before a classified contract is awarded, and a manual to give security guidance to industry is being prepared." Semiannual Report of the Secretary of Defense, July 1 to Dec. 31, 1949 (1950), 97. The President, in 1953, in Reorganization Plan No. 6, 67 Stat. 638, trai..~ferred all of the "functions of the Muni- tions Board" to the Secretary of Defense and dissolved that Board. Since then the program has been in operation under the authority of the Secretary. Also in 1953, the President issued Exec. Order No. 10450, Apr. 27, 1953, 18 Fed. Reg. 2489, 3 CFR (1949-1953 Comp.), p. 936. That order dealt with the criteria and procedures to be used in the Federal Loyalty Security Program, which had been instituted under Exec. Order No. 9835, 12 Fed. Reg. 1935, 3 CFR (1943-1948 Comp.), p. 630, Mar. 21, 1947. The latter order made clear that federal employees suspected of disloyalty had no right of confrontation." And the regulation8 promulgated under the order pro- vided no such right. See 13 Fed. Reg.9365, 5 CFR (1949), § 210, Dec. 31, 1948. These procedures were revised under Exec. Order No. 10450, 8upra, although ~gain, con- frontation and cross-examination were not provided. See `° IV, §2 of Exec. Order No. 9835 specifically stated that; the investigative agency may refuse te. disclose the names of confidential informants, provided it furnishes sufficient information about such informants on the basis of which the requesti*~g depart- ment or agency can make an adequate evaluation of the inférmation furnished by them, and provided it advises the requesting department or agency in wntmg that it is essential to the protection of the informants or to the investigation of other cases that the identity of the informants not be revealed. . . ." PAGENO="0084" 1648 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 19591 GREENE v McELROY Ci4~, 3, diMenting 19 Fed Reg 1503,32 CFR, p 288, Mar 19, 1954 Thus, it was clear that the President bad not contemplated that there would be a right of confrontation in the Federal Loy~1ty Security Program.. And the report of the Sec- retary of the Army-tranaimtted to the President by the Secretary ~of Defen.e-ma4e. clear `that the criteria of Exec~ Order No. i04~50. were being utilized not only where the loyalty `of & government employee was ii~ doubt, but also in" carrying out the industrial security program. Semiannual' Report of the.Secretary of the Army, Jan. 1, 1954, to June 30, 1954; 135-136. Thus we see that the program has for 18 years been carried on under the express authority of the President, and has been regularly reported to him by his highest Cabinet officers. flow the Court can say, despite these facts, that the President, has not sufficiently authorized the program' is beyond me, unless the Court means that it is necessary for the President to write out the Industrial Security Manual in his own hand. Furthermore, `I think,Congress has sufficiently author- ized the program, as it has been kept fully aware of its development and has appropriated money to support it. During the formative period of the program, 1949-1951, the Congress, through appropriation hearings, was kept, fully informed as to the activity. In 1949 D. F. Carpen- ter, Chairman of the Munitions Board, appeared before a Subcommittee of the House Committee on Appropria- tions to testify concerning the requested appropriation for the Board. While the report indicates much of the testimony was "off the record," it does contain specific references to the program here under attack." Signifi- cantly the appropriation bill for 1950 included an item "House of Representatives, Hearings before the Subeomrnittee of the Committee on Appropriations on the National Military E~tab1ish- ment Appropriation Bill for 1950, 81st Cong., 1st Sess. 91. PAGENO="0085" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1050:1649 OCTOBER TERM, 1958. CL~iuc, J, dissenting 360 U S of ~11,300,000 for the maintenance, inter alia, of the Board. Again, in 1950 General Timberlake, a member of the Board, testified: "Then we~ are going to intensify the industrial mobilization planning within the Department of Defense, with particular emphasis on industrial - security . . . ." House of Representatives, Hearings before a Subcommittee of the Committee on Appro. priations on .the: Supplemental Appropriation for 1951, 81st Cong~, 2d Sess. 264. While, again, some of the testimony was "off the record" it was sufficiently urgent and detailed for the Congress to appropriate additional funds for the Board for 19~5L~' By the 1953 Reorganization Plan, the functions of the Munitions Board were transferred to various Assistant Secretaries of Defense. The industrial security program was put under the Assistant Secretary of Defense for Manpower, Personnel, and Resesve Forces. Of course, this office received an appropriation each year. These hearings, to cite but two,: certainly indicate an awareness " The reason for the dearth of legislative reference to the program appears in some 195~5 bearing8 on an appropriation bill. Under consideration at the time was a proposal for a fund to reimburse contractor employees who had been s~ispended during a security check and subsequently cleared. Geheral Moore testified that, in the past, such reimbursement had been made by the service secretaries out of their contingency funds. Thai followed this colloquy: "Mr. Mahon. Under. that [the contingency fundj yeu can buy a boy a top, or a toy, provided the Secretary of Defense thinks it is proper? `Gen Moore That is right and we come down here and explain to this committee with respect to this in a very secret cession, how much we have spent and precisely what we have spent it for" House of Representatives, Hearthg~ before the Subcommittee of the Committee on Appropriations oü flepartment of DefenesAppropri- ations for 1956, 84th Cong., 1st Sees. 780. - PAGENO="0086" 1650 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 195 O~ GREENE v McELROY Ci1&ax, J., dissenting. on the part of Congress of the existence of the industrial security program, and the continued appropriations hardly bespeak an unwillingness on the parib of Congress that. it be cathed `on~ In 1955, the Eighty-fourth Con- grecs, on the motion of Senato~ Wiley for unanimous con- sent, caused to be printed the so~called Internal Security Manual, S. Doc. No. 40, 84th Cong., 1st Sess. It is a compilation of all laws, regulations, and congressional committees relating to the national security. Contained in the volume is the "Industrial Personnel Security Review Regulation," i. e., a verbatim copy of the regula- tions set up by the Secretary of Defense on February 2, 1955. This Manual outlined in detail the hearing pro- cedures which are here condemned by the Court. And it is important to note that the `final denial of Greene's clearance was by a Board acting under these very regula- tions.~ Still not one voice was raised either within or without the Halls of Congress that the Defense Depart- ment had exceeded its authority or that contractor em- ployees were being denied their constitutional rights. In other cases we have held that the inaction of the Congress, in circumstances much less specific than here, was a clear ratification of a program as it was then being carried out by the Executive. Why, I ask., do we not do that here where it is so vital? We should not he "that blind Court . . . that does not see what `[ajil others can see and understand . . . .`" United States v. Rurncly, 345 U. S. 41, 44 (1953). While it certainly is not clear to me, I suppose that the present fastidiousness of the Court can be ~~~j~fied by the President's incorporating the present industrial security program into a specific Executive Order or the Congress' placing it on the statute books. To me this seems entirely superfluous in light of the clear authorizs~tion presently existing in the Cabinet officers. it also subjects the Government to multitudinous actions-and perhaps large PAGENO="0087" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 1651 OCTOBER TERM, 1958. CLAnS, J., dissenting. 360 U. S. damages-by reason of discharges made pursuant to the present. procedures. And I might add a nota bene. Even if the Cabinet officers are given this specific direction, the opinion today, by dealing so copiously with the constitutional issues, puts a cloud over both the Employee Loyalty Program and the one here under attack. Neither requires that hearings afford confrontation or cross~examination. While the Court disclaims deciding this constitutional question, no one reading the opinion will doubt that the explicit language of its broad sweep speaks in prophecy. Let us hope that the winds may change. If they do not the present temporary debacle wifl turn into a rout~ of our internal security. PAGENO="0088" 1652 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA DEXTER C. SHOULTZ, ) Plaintiff, ) vs. ) No. 47330 ROBERT S. McNAMABA, Secretary ) ~tEMORANDUN OF OPINION of Defense, and Does One Through Ten, ) Defendants. ) Plaintiff, a holder of a security clearance, employed by Lockheed Missiles and Space Company of Sunnyvale, California, seeks to enjoin the defendants, Secretary of Defense Robert S. McNamara and other Defense Department officials, from suspend- ing plaintiff l~ secret security clearance pursuant: to the pro- visions of Section V. B. of Department of Defense Directive 1/ 5220.6, effective January 6, 1967. Both parties move for 1/ "In the course of an investigation, interrogation, examina- tion, or hearing, the applicant may be requested to answer relevant questions, or to authorize others to release relevant information about himself. The applicant is expected to give full, frank, and truthful answers to such questions, and to authorize others to furnish relevant information. The applicant may elect on constitutional or other grounds not to comply. However, such a wilful failure or refusal to furnish or to authorize the fur- nishing of relevant and material information may prevent the Department of Defense from reaching the affirmative finding re- quired by reference (a) in which event any security clearance then in effect shall be suspended by the Assistant Secretary of Dafense (Administration), or his designee, and the further processing of his case discontinued. Section V. B. of Department of Defense Directive 5220.6. PAGENO="0089" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1 95 0~ 1653 summary judgment and agree that there is no dispute as to the material facts. A minute order was entered on February 2, 1968, granting plaintiff's motion and denying defendants' motion. The facts will not be fully repeated in this memorandum; instead, the Courtadopts the statement of facts filed by de-. fendants herein, augmented by the admitted allegations of the complaint and supplement to complaint filed herein, and such facts as do not appear in this memorandum are incorporated by this reference. Plaintiff has been employed by Lockheed Aircraft Corporation and its subsidiary, Lockheed Missiles and Space Company, since 1960. Since June of 1966, he has been employed in the capacity of a computer programmer. Since 1956, with a brief exception not material here, plaintiff has held a security clearance at the access level of "Secret". On or about October 13, 1967, plaintiff's security c1ea~ance was "suspended" under Section V., B. of Department of Defense Directive 5220.6 (hereinafter cited as Section V. B.). Further proceedings with respect thereto were discontinued because of plaintiff's earlier refusal to answer questions which he felt were irrelevant, immaterial or incompetent, or all of these, at a Defense Department interview held on June 30, 1967, in San Francisco, California. Almost immediately thereafter, plaintiff was informed by his employer that solely because of the suspension of h~s clearance he could no longer be employed by Lockheed but would be placed on "prolonged leave of absence" without pay until such time as his clearance status was settled. On November 16, 1967, this Court issued a Thmporary Rescrain- ing Order enjoining defendants from continuing the suspension of plaintiff's security clearance under Section V. B.; and at the hearing on the application for the Restraining Order and on PAGENO="0090" 1654 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 subsequent occasions, the parties consented to extensions of the Restraining Order until February 4, 1968. The crux of this case is the validity of Section V. B. and the procedures contained therein under which plaintiff's First, security clearance was to be suspended.! Plaintiff asserts that this Section is invalid because it is not expressly authorized by Congress or the President. Secondly, plaintif:~ asserts that if Section V. B. is authorized, it deprives plaindff of a security clearance without Due Process of law. - Plaintiff relies on Greene v. McElroy, 360 U.S. 474 (1959), in support of his argument that Section V. B. is invalid for lack of specific authorization. In Greene v. Mc~)~, ~pra, the Supreme Court defined the issue before it in that case as "whether the Department of Defense has been authorized to create an in- dustrial security clearance program under which affected persons may lose their jobs and may be restrained in following their chose professions on the basis of fact determinations concerning their fitness for clearance made in proceedings in which they are denied the traditional procedural safeguards of confrontation and cross-examination." (Id., at 508.) This Court believes that the teaching of Greene is that an agency of the federal government cannot, without affording the traditional forms of fair procedure, take administrative action which effectively deprives an individual of his means of livelihood on loyalty or security grounds unless, at the least, Congress (or the President, if he is the sov.rce of the power) has expressly authorized the lesser procedure. See Carrot v. United States, 340 F.2d 615, 618 (Ct. Cl. 1965). At the outset, defendants attempt to distinguish Greene by asserting that the suspension here is not a fina.l revocation because plaintiff has it within his power to reopen the proceedings PAGENO="0091" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 1655 at any time he chooses to ans~z t.I:e c~uestions which he declined to answer at his interview. Accordingly, defendants argue that Greene does not require specific authorization by the President or Congress for the Department of Defense to have included in Directive 5220.6 "normally accepted administrative practices" which permit suspension of a security clearance without a hear.. ing and related procedural rights when the suspension does not amount to a "final" revocation. In formulating the Greene test, the Supreme Court stressed the effect on the individual's livelihood of the challenged administrative action. Greene v. McE1rq~, ~ at 500, 502, 506-7, 508; Garrott v. United States, 340 F.2d 615, 619 (Ct. Cl. 1965). Here, it is undisputed that under Section V. B., once a security clearance has been suspended, there is no further administrative or judicial remedy to challenge the suspension. Further processing of the case is discontinued. Defendants argue that the suspension remains in effect and further processing is discontinued only for as long as plaintiff refuses to answer the propounded questions. The Court is of the opinion, however, that this remedy is illusory. In effect, it requires plaintiff to submit to procedures which he believes are unauthorized and un- constitutional., thus rendering moot his objections to the proced- ures, in order to obtain a hearing with the procedural safeguards 2/ of Sections 3, 4 and 5 of Executive Order 10865. In these 2/ Executive Order 10865 (25 Fed. Reg. 1583), entitled "Safe- guarding Classified Information Within Industry", sets up com- prehensive procedures to provide the "maximum possible safeguards' to protect the interests of a holder of a security clearance. It was issued in 1960 by President Eisenhower after Greene v. NcE1ro~. It will be discussed in more detail elsewhef~in this memorandum. PAGENO="0092" 1656 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950. circumstances, the Court believes that this "suspension' which has entailed a discontinuance of the processing of plaintiff's clearance, has the same final effect on plaintiff's livelihood that the Supreme Court was concerned about in Greene. Moreover, although plaintiff's employer was informed by the defendants that the suspension of plaintiff's security clearance was not intended to prevent utilization of plaintiff upon any non- classified work that may be available to plaintiff, defendants admit that plaintiff was informed by authorized agents of Lockheed that solely because of the suspension of his clearance he could no longer be employed by Lockheed and that he woul.d be placed on "prolonged leave of absence" without pay until such time as his clearance status was settled. In light of these facts, the Court feels that plaintiff has suffered a serious deprivation of his "right to hold specific private employment and to follow a chosen profession . . . [which come] . . . within the `liberty' and `property' concepts of the Fifth Amendment." Greene v. McElroy, supra, 360 U.S. 474, at 492. This Court is of the opinion that to hold otherwise would be honoring unduly the semantic differ- ence between "final revocation" and "suspension", and would be disregarding the effect on plaintiff's livelihood so strongly emphasized in the Greene case. The Court must next inquire whether the governmental action that was taken here deprived plaintiff of traditional forms of fair procedure which are associated with procedural Due Process. The salient facts can be briefly summarized. Plaintiff was notified that "the Screening Board [of the Dcpartment of Defense] has some new information that might affect . . . [his] . . continued eligibility for a clearance", and that the Screening PAGENO="0093" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 19501657 Board was going to "use this information to re-examine the status" 3/ of plaintiff's clearance. It was indicated to plaintiff that this new information had been "developed by the investigation 4/ conducted in his case". Plaintiff was requested to attend an interview at which he would be questioned about "matters germane to his [continuedi eligibility for a security clearance." Plain- tiff was also informed that, "[i}n particular, the Board desires that he be questioned in order to determine the extent ofhis participation in Cuban affairs." No further notice of the pur- pose and scope of the inquiry was given to plaintiff, nor was he apprised of the nature of the "new information" possessed by the Screening Board which had prompted the re-examination of his security clearance. Plaintiff was informed that he could be represented by counsel at the interview and that he would be afforded an opportunity to make a statement in his own behalf. His counsel was provided before the interview with a copy of Defense Department Directive 5220.6, including Section V. B., and plaintiff was informed that the provisions of Section V. B. would be applicable. Further, plaintiff was told that if he 3/ Letter to plaintiff's counsel dated March 14, 1967, from Solis Horwitz, Assistant Secretary of Defense (Administration) Exhibit B to the Complaint). 4/ Letter to plaintiff's counsel dated April 14, 1967, from `ames E. Stauffer, Department Counsel (Department of Defense) (Exhibit A to Defendant's Statement of Material Facts). 5/ Letter to plaintiff's counsel dated February 1, 1967, from crilliam Scanlon, Director, Administrative Staff (Department of Defense)(Exhibit A to Complaint). PAGENO="0094" 1658 AMENDING SUBVERSIVE ACTIVITIE.S CONTROL ACT OF 1950 refused "to answer questions relevant to his continued eligibility for security clearance, his existing clearance will be suspended and further processing of his case will be discontinued." At the outset of the interview on June 30, 1967, plaintiff stated his name, address and employer in response to questions propounded by the Department Counsel who was conducting the inter- view. Thereafter, he declined to answer all other questions on the grounds that they were irrelevant, incompetent or immaterial, or all of these. There was no hearing officer or other impartial person present at the interview to make rulings on these objec- tions. After each objection, the Department Counsel proceeded to the next question. By.. letter dated October 13, 1967, plaintiff was informed by the Department of Defense in pertinent part that: "Having reviewed the transcript of that inter- view, the Screening Boardhas concluded that Mr. Shoultz's refusal to answer the questions addressed to him by Department Counsel denies the Board information it considers essential to a determination of his continued eligibility for security clearance. The conclusion by the Screening Board that the additional information is essential was based upon its evaluation of facts developed by investigation. Without that information the Board is unable to reach the affirmative finding required by Section2 of Executive Order 10865 dated February 20, 1960, i.e., that it is clearly consistent with the national interest to continue his clearance." Almost immediately, plaintiff was notified by his employer that he would be terminated solely because of the suspension. The Court is of the opinion that, as in Greene, there are serious constitutional problems inherent in the suspension pro- cedure as outlined above which is sanctioned by Section V. B. In Hannah V. Larche, 363 U.S. 420 (1960), the Supreme Court stated: "Whether the Constitution requires that a particular right obtain in a specific proceeding depends upon a complexity of factors. The nature of the alleged right involved, the nature of the proceeding, and the possible burden on that proceeding are all considerations which tnustle taken into account." (Id., at PAGENO="0095" AMENDiNG SUBVERSIVE ACTIVITIES CONTROL ACT OF 19501659 442.) In that case, it was held that the rights to know the specific charges that are being investigated and the identity of the complainants, and the right to confrontation and cross- examination of the complainants and other witnesses wererot constitutionally required at a Civil Rights Commission investiga- tive hearing. The Court emphasized the "purely investigative nature of the Commission proceedings" (Id., ad 451) and dis- tinguished between such a proceeding and one ~ihere the govern- ment agency involved is charged with making "determinations in the nature of adjudications affecting legal rights." (Ibid.) The Court stated that in contrast to this latter type of govern- mental action, as occurred in Greene v. McElroy, su~pra, "the Civil Rights Commission does not make any binding orders or issue `clearances' or licenses having legal effect. Rather, it investi- gates and reports leaving affirmative action, if there is to be any, to other governmental agencies where there must be action de novo." (Id., at 452.) Closely viewed, the personal interview is neither a purely investigative nor an adjudicatory hearing. Because of the direct effects it can have, it is a hyrbrid proceeding. The investi- gating officer, called the Department Counsel, is not empowered to make any determinations affecting an individual's security clear- ance. Yet the suspension which was ordered here was clearly more than a collateral or incidental effect of the interview. It was expressly sanctioned by Section V. B. for refusal to answer relevant questions. Plaintiff's clearance was ordered to be suspended precisely as he had been forewarned. This action of the Screening Board under Section V. B. transforms the personal interview into something more than a purely investigative hearing. PAGENO="0096" 1660 AMENDING STJBVERSIVE ACTIVITIES CONTROL ACT OF 1950 This two-stage process, like the governmental action in Greene, "was determining whether [plaintiff] could have a security clear- ance--a license in a real sense, and one that had a significant impact upon his employment." Hannah v. Larche, ~ 363 U.S. 420, at 452. The lesser procedures sanctioned here by Sect:ion V. B. must be viewed in light of the drastic impact which they have on an individual's livelihood after a refusal to answer questions at a personal interview. The finality of this impact: has heretofore been discussed. The only avenue available to plaLntiff to reopen the proceedings is to submit to the lesser procedures provided* by Section V. B. Finally, when viewing these procedures, the Court attaches significance to the fact that Defense Department Directive5220.6 contains an alternative procedure of a State- ment of Reasons and a full hearing which would more adequately 6/ protect plaintiff's procedural rights. Based on the foregoing analysis, the Court feels that SectionV. B., in sanctioning the procedures which took place here, raises serious constitutional questions. In sunmiation, Section V. B. permits an indefinite, if not effectively permanent, suspension of 6/ Section VIII. Further, subsection 8 thereof provides for a summary procedure when the Secretary of Defense "determLnes person- ally that the provisions of this Directive cannot: be ~tivo~ed ~ consistently with the national security.' PAGENO="0097" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 1661 an individual's security clearance, thereby nullifying employ- ment opportunity, without any statement of charges or other specific notice, without any opportunity to answer specific facts alleged to be jeopardizing an individual's security clearance, without any confrontation or cross-examination, and without any factual basis given as the reason for the suspension. The Court is not dissuaded from the opinion by the defend- ant's argument that a suspension so long as there is a refusal to furnish relevant information is reasonable and procedurally proper. The instant case does not present the question whether the refusal on unprivileged grounds to answer questions in a properly con- vened hearing could serve as the basis for the type of suspension which was prescribed here. Defendants strenuously rely on Ko~jg~~ v. State Bar, 366 U.S. 36 (1961) and on In Re Anastaplo, 366 U.S. 82 (1961). The government action involved in each of those cases occurred after the refusal to answer questions by an applicant for admission to a state bar in the midst of a hearing fully consonant with procedural Due Process requirements. Also, it is significant that those administrative decisions were subject to judicial review. Nor is the Court ~mrsuaded by the cases whichdefendants cite which stand for the proposition that an incomplete initial or renewal application entitles a governmental agency to discon- 7/ tinue processing the application. In reaching this conclusion 7/ Borrowv. FCC, 285 F.2d 666 (D.C. Cir. 1960), cert. denied, 364 U.S. 892 (1960); Cronan V. FCC, 285 F.2d 288 (D.C. Cir. 1960), cert. denied, 364 U.S. 892 (1961); Blumenthal V. FCC, 318 F.2d 276 (D.C. Cir. 1963), cert. denied, 373 U.S. 951 (1963); Schneider V. Roland, 263 F. Supp. 496 (W.D. Wash. 1967), rev'd. on other grounds, 36 Law Week (January 16, 1968). 94-756 0 - 66 - pt. 2 --7 PAGENO="0098" 1662 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 the Court is persuaded by the emphasis which the Supreme Court placed in Greene upon the right to be free from unr~asonable governmental action by which "affected persons may i2~ their jobs and may be restrain~4 infollowing their chose professions * . *`(Gre~i~~. McEl~py, supra, 360 U.S. 474, at 493).(ernphasis added). Having exposed the serious constitutional problems in Section V. B., this Court must next inquire whether "the President or Congress, within their respective constitutiona:L powers, speci- fically has decided that the imposed procedures ar~ necessary and warranted and has authorized their use." (Id., at 507). Plaintiff asserts, and defendants do not contend otherwise, that Congress has never enacted an industrial security clearance program. Therefore, if Section V. B. is authorized, the authorization must specifically appear in an Executive Order issued by the President. The defendants do not point to any Executive Order as specifically authorizing the procedures of Section V. B. In their Memorandum of Points and Authorities defendants argue that the authority and responsibility for the protection of official information affecting the national security is granted and dele- gated by Executive Order 10501, 18 Fed. Reg. 7049, 50 U.S.C. ~ 401 note. That Order, however, does not specifically authorize the procedure sanctioned by Section V. B. Defendants also discuss Executive Order 10865, 25 Fed. Reg. 1583, 50 U.S.C. § 401 note, as being relevant. Section 3 of that Order prov:Ldes, "[e~xcept as provided in Section 9 of this Order", a security clearance may not be finally denied or revoked "unless the applicant has been given the following": (1) a comprehensive and detailed written statement of reasons; (2) an opportunity to reply in writing; PAGENO="0099" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 1663 (3) an opportunity to appear personally at a hearing; (4) a reasonable opportunity to prepare for the appearance; (5) to be represented by counsel; (6) an opportunity to confront and cross- examine his accusers (except, as provided in Section 4, when the head of the department declares that such disclosure "would be substantially harmful to the national interest"); and (7), a written notice of a final decision which contains findings as to each allegation in the statement of reasons. This section clearly does not authorize the procedure of Section V. B. and the Court feels that by inference Section V. B. is Inconsistent with this Section of the Executive Order. Section 9 provides for a revocation or denial of a security clearance under lesser procedural protec- tion "only when the head of a department determines that the pro- cedures prescribed in Sections 3, 4, and 5 cannot be invoiced sonsistently with the national security". Defendants do not con- tend that this section has been complied with here or that it authorizes the procedure of SectionV. B. Finally, Sections 1(a) and 2, the sections of Executive Order 10865 which generally restate the authority and responsibility of the executive department heads to protect classified information and issue appropriate regulations, do not constitute the specific authorization for Section V. B. which is required by Greene v. McElroy, supra. As defendants point to no other Executive Orders which might provide the requisite authorization, this Court concludes that Section V. B. is invalid as not being authorized. This ruling makes it unnecessary for çhis Court to decide the other ground advanced by plaintiff in support of his motion for summary judgment. PAGENO="0100" 1664 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 For the foregoing reasons, plaintiff's motion for summary judgment has been granted ~and defendants' cross-motion for summary judgment has been denied. Defendants and each of them, their agents and subordinates are permanently enjoined from suspending plaintiff's security clearance for classified materials described in the complaint in this action under the provisions of Section V. B. of Department of Defense Directive 5220.6, dated December 7, 1966. This Order does not prevent defendants from taking appro- priate action to safeguard the national security under Section 9 of the Executive Order 10865 or any other authorized provisions 8/ of Directive 5220.6, if they be so advised. Dated: February 9, 1968. - - i',/ // ) 1' / United States District Judge / 8/ It is interesting to note that plaintiff was asked to attend an interview regarding his security clearance by the Defense Department at least as early as November 30, 1966. His clearance was not ordered to be suspended until on or about October 13, 1967. PAGENO="0101" (AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 1665 SUPREME COURT OF TRE UNITED STAT~ No. 196.-OCTOBER TERM, 1967. On Appeal From the Herbert Schneider, Appellant, United States District Court for the Western Willard Smith, Commandant, District of Washing- United States Coast Guard. ton. [January 16, 1968.] MR. JUSTICE DOUGLAS delivered the opinion of the Court. Appellant, who has served on board American-flag commercial vessels in various capacities, is now qualified to act as a second assistant engineer on steam vessels. But between 1949 and 1964 he was employed in trades other than that of a merchant seaman. In October 1964 he applied to the Commandant of the Coast Guard for a validation of the permit or license which evidences his ability to act as a second assistant engineer. Under the Magnuson Act, 50 U. S. C. § 191 (b), the President is authorized, if he finds that "the security of the United States is endangered by . . . subversive ac- tivity," to issue rules and regulations "to safeguard against destruction, loss, or injury from sabotage or other subversive acts" all "vessels" in the territories or waters subject to the jurisdiction of the United States.1 1'Section 191 provides in part: "~T1ienever the President finds that the security of the United States is endangered by reason of actual, or threatened war, or invasion, or insurrection, or subversive activity, or of disturbances or threatened disturbances of the international relations of the United States, the President is authorized `to institute such measures and issue such . rules and regulations- "(a) to govern the anchorage and movement of any foreign-flag vessels in the territorial waters of the United States, to inspect such vessels at any time, to place guards thereon, and, if necessary in his PAGENO="0102" 1666 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 196-OPINION SCHNEIDER v. SMITH. President Truman promulgated Regulations, 33 CFR, pt. 6, which gives the Commandant of the' Coast Guard authority to grant or withhold validation of any permit or license evidencing the right of a seaman to serve on a~ merchant vessel of the United States. § 6.10-3. He is directed not' to issue such validation, unless he is satisfied that "the character and habits of life of such person are such as `to authorize the belief that the pres- ence of the individual on board would not be inimical to the security of the United States." § 6.10-IL. The questionnaire, which appellant in' his application was required to submit, contained the following inquiry which he answered: "ITEM 4. Do you now advocate, or have yOu ever advocated, the overthrow or alteration of the Gov- ernment of the United States by force or violence or by unconstitutional means? "Answer: No." The questionnaire contained the following inquiries `which related to his membership and participation in organizations which were on the special list of ~the Attor- ney' General as authorized by Executive Order 10450~ 18 Fed. Reg. 2489: "ITEM 5. Have you ever submitted material for publication to any `of the organizations listed in Item 6 below? opinion in order to secure such vessels from damage or injury, or to prevent damage or injury to any harbor or waters of the United States, or to secure the observance of rights and obligations of the United States, may take for such purposes full possession and con- trol of such vessels and remove therefrom the officers and crew' thereof, and all other persons not especially authorized by him t& go or remain on board, thereof. "(b) to safeguard against destruction, loss, or injury from sabo-~ tage or other subversive acts, accidents, or other causes of similar' nature, vessels, harbors, ports, and waterfront facilities in the United States, the Canal Zone, and all territory and water, continental or insular, subject. to the jurisdiction of the United S'tates." PAGENO="0103" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 1667 196-OPINION SCHNEIDER v. SMITH. "Answer. No. "ITEM 6. Are you now, or have you ever been, a member of, or affiliated or associated with in any way, any of the organizations set forth below? [There followed a list of more than 2&~ organizations.} "Answer. Yes. "If your answer is `yes,' give full details in Item 7. "ITEM 7. (Use this space to explain Items 1 through 6. Attach a separate sheet if there is not enough space here.) "Answer. I have been a member of many political & social organizations, including several named on this list. "I cannot remember the names of most of them and could not be specific about any. "To the best of my knowledge, I have not been a member of or participated in the activities of these organizations for ten years." Upon receiving the questionnaire returned by the appellant, the Commandant advised him that the infor- mation was not sufficient and that answers to further interrogatories were necessary.2 2 "1. With respect to your statements above, furnish the following information, fully and honestly to the best of your al)ility: "(a) List the names of the political and social organizations to~ which you belonged, and location. "(b) Furnish approximate dates of membership. "(c) Furnish full particulars concerning the extent of your activi- ties and participation in the organizations (number and type of meetings/functions attended; positions or offices held; classes or schools attended; contributions made; etc.). "(d) Your reason for discontinuing the membership. "(e) Your present attitude toward the principles and ohjectives~ of the organizations. "If your answer is `YES' to the following Questions, explain fnily in the space provided at the end of the Interrogatories: "2. Are you now, or have you ever been a member of or affiliated PAGENO="0104" 1668 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 196-OPINION SCHNEIDER v. SMITH. In reply. appellant, speaking through his counsel,. admitted to the Commandant that he had been a mem-~ ber of the Communist Party as well as other organiza- tions on the Attorney General's list and that he had subscribed to People's World. He said that he had joined the Party because of his personal philosophy and idealistic goals, but later quit it and the other organiza- tions due to fundamental disagreement with Communist methods and techniques. But beyond that he said he would not answer because "it would be obnoxious to a truly free citizen to answer the kinds of questions under compulsion that you require." The Commandant declined to process the application further, relying upon 33 CFR § 121.05 (d)(2) which authorizes him to hold the application in abeyance, if an applicant fails or refuses to furnish the additional information. Appellant thereupon brought this action for declara- tory relief that the provisions of the Magnuson Act in question and the Commandant's actions thereunder were: unconstitutional, praying that the Commandant be di- rected to approve his application and that he be enjoined with, in any way, the Communist Party, its Subdivisio:ris, Subsidiaries,. or Affiliates? `C (Answer `Yes' or `No.') "3. Have you at any time been a subscriber to the `People's World'? If your answer is `Yes,' give dates. (Answer `Yes' or `No.') 4. "Have you at any time engaged in any activities in behalf of the `People's World'? (Answer `Yes' or `No.') "If your answer is `Yes,' furnish details. "5. What is your present attitude toward the Communist Party ~ "6. What is your present attitude toward the principles and objectives of Communism? "7. What is your attitude toward the form of Government of the United States? PAGENO="0105" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 1669 196-OPINION SCHNEIDER v. SMITH. from interfering with appellant's employment upon ves- sels flying the American flag. A three-judge court was convened and the complaint was dismissed. 263 Fed. Supp. 496. The case is here on appeal, 28 U. S. C. § 1253. We postponed the ques- tion of jurisdiction to the merits. 389 U. S. 810. We agree, as does appellee, that the case was one to be heard by a three-judge court and that accordingly we have jurisdiction of this appeal. For appellant did raise the question as to whether the statute was uncon- stitutional because of vagueness and abridgment of First Amendment rights and also questioned whether the power to install a screening program was validly dele- gated. A three-judge court was accordingly proper. Baggett v. Bullitt, 377 U. S. 360; Zemel v. Rusk, 381 U.S.1. The Magnuson Act gives the President no express: authority to set up a screening program for personnel on merchant vessels of the United States. As respects "any foreign-flag vessels" the power to control those who "go or remain on board" is clear. 50 U. S. C. § 191 (a). As respects personnel of our own merchant ships, the power exists under the Act only if it is found in the power to "safeguard" vessels and waterfront facili- ties against "sabotage or other subversive acts," that is,. under § 191 (b). The Solicitor General argues that the power to exclude persons from vessels "clearly implies authority to establish a screening procedure for deter- mining who shall be allowed on board." But that power- to exclude is contained in § 191 (a) which, as noted, applies "to foreign-flag vessels," while, as we have said, the issue tendered here must find footing in § 191 (b).3 ~ it is true that Senator Magnuson when discussing this measure stated that it "will give the President the authority to invoke the same kind of security measures which were invoked in World War I and World War II." 96 Cong. Rec. 10795. And from that Solicitor- PAGENO="0106" 1670 AMENDING SIJBVERSIVE ACTIVITIE.S CONTROL ACT OF 1950 196-OPINION SCHNEIDER v. SMITH. We agree with the District Court that keeping our merchant marine free of saboteurs is within the purview of this Act. Our question is the much narrower one. The Regulations prescribe the standards by which the Commandant is to judge the "character and habits of life" of the employee to determine whether his "presence on board" the vessel would be "inimical to the security of the United States": "(a) Advocacy of. the overthrow or alteration of the Government of tile United States by unconstitu- tional means. "(b) Commission of, or attempts or preparations to commit, an act of espionage, sabotag:e. sedition or treason, or conspiring with, or aiding or abetting another to commit such an act. General argues that the Act authorizes the broad sweeping personnel screening programs which were in force during World War II. But this reference by Senator Magnuson apparently was to § 191 (a.) which, as noted, covers "any foreign-flag vessels." When it came to § 191 (b) Senator Magnuson did not speak in terms of any screening program, but said: "It [the bill] also has this purpose, which I think is a good one: As I have said before, the last stronghold of subversive activity in this country, in my opinion, or at least the last concentrated strong- hold, has been around our water-fronts. It would be impossible for destruction to come to any great port of the United States, of which there a.re many, as the result of a ship coming into port with an atomic bomb or with biological or other destructive agency, without some liaison ashore. This would give authority to. the President to instruct the FBI, in cooperation with the Coast Guard, the Navy, or any other appropriate governmental agency, to go to our water fronts and pick out people who might be subversives or security risks to this country. I think it goes a long way toward taking care of the domestic situation, as related to this subjet, particularly in view of the large amount of talk we have had in the Senate within t.he past few days about Communists. The bill also protects that last loophole which is left, by which there might be some actual destruc- tion along the shores of the United States." 96 Cong. Rec. 11321. PAGENO="0107" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 1671 196-OPINION SCHNEIDER v. SMITH. "(c) Performing, or attempting to perform, duties or otherwise acting so as to serve the interests of another government to the detriment of the United States. "(d) Deliberate unauthorized disclosure of classi- fled defense information. "(e) Membership in, or affiliation or sympathetic association with, any foreign or domestic organiza- tion, association, movement, group, or combination of persons designated by the Attorney General pur- suant to Executive Order 10450, as amended." 33 CFR § 121.03. If we assume arguendo that the Act authorizes a type of sceening program directed at "membership" or "sym- pathetic association," the problem raised by it and the Regulations would be kin to the one presented in ~Shelton v. Tucker, 364 U. S. 479, where a teacher to be hired by a public school of Arkansas had to submit an affidavit. "listing all organizations to which he at the time belongs and to which he has belonged during the past five years." id., 481. / We held that an Act touching on First Amendment rights must be narrowly drawn so that the precise evil is exposed; that an unlimited and indiscriminate search of the employee's past which interferes with his associa- tional freedom is unconstitutional. Id., 487-490. If we gave § 191 (b) the broad construction the Solici- tor General urges, we would face here the kind of issue present in Shelton v. Tucker, supro, whether govern- ment can probe the reading habits, political philosophy, beliefs, and attitudes on social and economic issues of prospective seaman on our merchant vessels. A saboteur on a mechant vessel may, of course, be dangerous. But no charge of appellant being a saboteur was made. Indeed, no conduct of appellant was at issue PAGENO="0108" 1672 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 196-OPINION SCHNEIDER v. SMITH. before the Commandant. The propositions tendered in the complaint were (1) plaintiff is now and always has been loyal to the United States; (2) he has not been active in any orgathzation on the Attorney Genera:I's list for the past 10 years; (3) he has never committed any act of sabo- tage or espionage or any act inimical to the security of the United States. Those propositions were neither con- tested by the Commandant nor conceded. He took the position that admission of evidence on those propositions was "irrelevant and immaterial." We are loathe to conclude that Congress, in its grant * of authority to the President to "safeguard" vessels and waterfront facilities from "sabotage or other subversive acts," undertook to reach into the First Amendment area. The provision of the Act in question, 50 U. S. C. § 191 (b), speaks only in terms of actions, not ideas or be- liefs or reading habits or social, educational, or political associations. The purpose of the Constitution and Bill of Rights, unlike more recent models promoting a welfare state, was to take government off the backs of people. The First Amendment's ban against Congress "abridging" freedom of speech, the right peacably to assemble and. to petition, and the "associational freedom" (Shelton v. Tucker, supra, at 490) that goes with those rights create a preserve where the views of the individual are made inviolate. This is the philosophy of Jefferson that. "[T]he opinions of men are not the object of civil gov- ernment nor under its jurisdiction. . . . [lit is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace and good order . . . ." ` ~ A Bill for Establishing Religious Freedom, Jefferson Cyclopedia. 976 (1900). PAGENO="0109" (AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 1673 196-OPINION SCHNEIDER v. SMITH. No act of sabotage or espionage or any act inimical to the security of the United States is raised or charged in the present case, In United States v. Rumely, 345 U. 5. 41, the Court construed the statutory word "lobbying" to include only direct representation to Congress, its members, and its committees, not all activities tending to influence, en- courage, promote, or retard legislation. Id., at 47. Such an interpretation of the statute, it was said, was "in the candid service of avoiding a serious constitutional doubt"~ (ibid.)-doubts that were serious "in view of the prohibi- tion of the First Amendment." Id., at 46. The holding in Rumely was not novel. It is part of the stream of authority which admonishes courts to con- strue statutes narrowly so as to avoid constitutional questions.5 The Court said in Rumely, "Whenever constitutional limits upon the investigative power of Congress have to be drawn by this Court, it ought only to be done after Congress has demonstrated its full awareness of what is at stake by unequivocally authorizing an inquiry of dubious limits. Experience teaches us to tread warily in this domain." 345 U. S., at 46. The present case involves investigation, not by Con- gress but by the Executive Branch, stemming from congressional delegation. When we read that delega- tion with an eye to First Amendment problems, we hesi- tate to conclude that Congress told the Executive to~ ferret out the ideological strays in the maritime industry. The words it used-"to safeguard . . . from sabotage or other subversive acts"-refer to actions, not to ideas or ~ United States v. Delaware & H. Co., 213 U. S. 366, 407-408; United States v. Harris, 347 U. S. 612, 618, n. 6; Internationnr Machinists v. Street, 367 U. S. 740, 749; Lynch v. Overholser, 369' U. S. 705, 710-711; United States v. National Dairy Corp., 372" U. 5. 29, 32. PAGENO="0110" 1674 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 196-OPINION SCHNEIDER v. SMITH. beliefs. We would have to stretch those words beyond their normal meaning to give them the meaning the Solicitor General urges. Rurnely, and its allied cases, teach just the opposite-that statutory wOrds are to be read narrowly so as to avoid questions concerning the "associational freedom" that Shelton v. Tucker protected and concerning other rights within the purview of the First Amendment. Reversed. MR. JUSTICE BLACK, while concurring in the Court's judgment and opinion, also agrees with the statement in MR. JUSTICE FORTAS' concurring opinion that the statute under consideration, if construed to authorize the inter- rogatories involved, is offensive to the First Amendment. MR. JUSTICE MARSHALL tOok no part in the considera- tion or decision of this case. PAGENO="0111" /~MENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 1675 SUPREME COURT OF THE UNITED STATES No. 196.-OCT0BER TERM, 1967. On Appeal From the~ Herbert Schneider, Appellant, United States District Court for the Western Willard Smith, Commandant, District of Washing- United States Coast Guard. ton. [January 16, 1968.] MR. JUSTICE FORTAS, concurring. I concur in the opinion of the Court. Reversal is~ dictated because the interrogatories which petitioner re- fused to answer offend the First Amendment. Shelton v. Tucker, 364 U. S. 479 (1960). (They also pass the outermost bounds of reason. No agency may be permit- ted to require of a person, subject to heavy penalty, sworn essays as to his "attitude toward the form of gov- ernment of the United States" or "full particulars," under oath, without time limit, as to contributions made and functions attended with respect to 250 organizations.) I agree that since Congress did not specifically authorize~ a personnel screening program, authority to impose pro- cedures of the comprehensive type here involved, neces- sarily impinging on First Amendment freedoms, may not be inferred from dubious general language. The fault, however, is not that there was an inadequate or improper delegation, but that Congress did not authorize the type of investigation which was launched. Needless to say, Congress has constitutional power to authorize an appropriate personnel screening program and to dele- gate to executive officials the power to implement and administer it. See United States v. Robel, - U. S.. - (1967). MR. JUSTICE STEWART, agreeing with the separate views of MR. JUSTICE FORTAS, concurs in the judgment.. PAGENO="0112" 1676 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 SUPREME COURT OF THE UNITE]) STATES No. 196.-OCTOBER TERM, 1967. On Appe&{ From the Herbert Schneider, Appellant, United States District Court for the Western Willard Smith, Commandant District of Washing- United States Coast Guard. ton. [January 16, 1968.] MR. JUSTICE WHITE, with whom MR. JUSTICE HARLAN joins, concurring in the result. I agree with the Court that the Magnuson Act did not aUthorize the inqury' undertaken by the Coast Guard Commandant and that therefore the judgment of the District Court must be reversed. I express no opinion as to the scope of inqury which Congress could consti- tutionally provide with respect to applicants for the position of merchant seiman. PAGENO="0113" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 195 o(1677 0 December ASD(A) Department of Defense Directive SUBJECT Industrial Personnel Security Clearance Program References: (a) Executive Order 10865, Safeguarding Classi- fied Information Within Industry, dated February 20, 1960, as amended by Executive Order 10909, (Appendix A) (b) DoD Directive 5220. 6, Subject: Industrial Per- sonnel Access Authorization Review Regu- lation, dated July 28, 1960 (cancelled) (c) DoD Directive 5220. 22, DoD Industrial Secu- rity Program, dated July 30, 1965 Cd) DoD Directive 5515. 9, Settlement of Claims Under the Provisions of the Federal Tort Claims Act (28 U.S. Code; Sections 2671- 2680) (Delegation to the Secretary of the Army) dated November 15, 1961 (e) DoD Directive 5210. 8, Policy on Investigation and Clearance of DoD Personnel for Access to Classified Defense Information, dated February 15, 1962 PURPOSE In accordance with reference (a) this Directive establishes the standard and criteria for making security clearance determinations when persons employed in private industry require access to classified defense information, and sets forth procedures which shall be followed for cases arising under the DoD Industrial Personnel Security Clearance Program (hereinafter referred to as the Program). II. CANCELLATION Reference (b) is hereby superseded and cancelled, effective 30 days from the date hereof. 94-756 0 - 68 - pt. 2 --8 PAGENO="0114" 1678 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 III. DEFINITIONS A. Department of Defense components includes the Military Departments and Defense Agencies and as appropriate, their subordinate organizations. B. Agencies refers to Executive Departments and agencies outside of the Department of Defense w:hich have agreed to process industrial personnel security clearances under this Directive. C. Agency Case. A case arising out of the release of classi- fied information to or within industry by any Agency. D. Agency Head. The head of any of the Agencies in B. above. E. Applicant. A person eligible to have the status of his clearance determined under this Directive. F. Contractor. An industrial, educational, commercial, or other organization which has executed a Department of Defense Security Agreement. G. Examiner. An official designated by the Department of Defense to conduct hearings and make determinations under the Program. H. Hearing. A proceeding convened and conducted by an Examiner in accordance with this Directive for the pur- pose of determining an applicant's eligibility for a clearance. I. Security Clearance or Clearance. An authorization for a contractor or person employed by a contractor to have access to specified levels of classified defense informa- tion provided his duties so require. J. Statement of Reasons. A statement i~3sued by the Depart- ment of Defense setting out the reasons why an applicant's security clearance should be denied, suspended, or revoked. III.A. PAGENO="0115" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 1679 Dec 7, 66 5220.6 IV. APPLICABILITY AND SCOPE A. The provisions of this Directive are applicable to all Department of Defense components. B. By mutual agreement, the provisions of this Directive also extend to other Agencies. These agencies include the Department of State, Department of Treasury, Department of Commerce, General Services Administra- tion, National Science Foundation, Small Business Administration, Federal Aviation Agency, National Aeronautics and Space Administration, and such other Agencies as may agree to process industrial security clearance cases under this Directive. C. All applicants in private industry who require access to classified defense information shall as a minimum be investigated in accordance with the standards set forth in reference Ce). D. This Directive applies to cases in which the applicant is eligible to be considered for a clearance, and a Department of Defense activity has recommended either (1) that such clearance be denied or revoked, or (2) that such clearance be suspended under section IX. A. below. E. In cases where an applicantts clearance has been suspended or a Statement of Reasons issued, the subsequent termination of employment will not affect the applicantts right to pursue these procedures. F. The Program may be extended to other cases at the direction of the Assistant Secretary of Defense (Administration). G. The Program does not extend to cases involving access to communications analysis material or information, to cases in which a clearance is administratively withdrawn without prejudice upon a finding that the applicant is not eligible, or to cases in which an interim clearance is withdrawn during, an investigation. IV. A. PAGENO="0116" 1680 AMENDING SUBVERSIVE ACTIVITIE~ CONTROL ACT OF 1950 V. )LICY A. Access to classified information shall be granted or continued only to those individuals who have been determined eligible based upon a findin:~ that to do so is clearly consistent with the national interest. B. In the course of an investigation, inter:rogation, examination, or hearing, the applicant may be requested to answer relevant questions, or to authorize others to release relevant information about himself. The applicant is expected to give full, frank, and truthful answers to such questions, and to authorize others to f~irnish relevant information. The applicant may elect on constitutional or other grounds not-to comply. However, such a wilful failure or refusal to furnish or to authorize the furnishing of relevant and material infor- mation may prevent the Department of Defense from reaching the affirmative finding required by reference (a) in which event any security clearance then in effect shall be suspended by the Assistant Secretary of Defense (Admin- istration), or his designee, and the fu:rther processing of his case discontinued. C. Inquiries concerning an applicant will be limited to matters relevant to a determination whether granting access to classified information is clearly consistent with the national interest, and shall not be directed to the applicantts opinions about: (1) religious beliefs and - affiliations (2) racial matters; (3) political candidates or parties other than those included in section VI. D. below; (4) the constitutionality or wisdom of legislative policies. - D. Determinations under this Directive Ehall be in terms of the national interest and shall in no sense be deter- minations as to the loyalty of the applicant; nor shall they be considered a bar to employment in a position not requiring access to classified information. V.A. PAGENO="0117" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF l95O~, 1681 Dec 7, 66 5220.6 E. The conduct described in section VI. below may, in the light of all the surrounding circumstances, be the basis for denying or revoking a clearance. The conduct varies in implication, degree of seriousness, and significance depending upon all the factors in a particular case. Therefore, the ultimate deter- mination must be an over-all common sense one based upon all the information which may properly be con- sidered under this Directive including, but not limited to, such factors as the following: the seriousness of the conduct, its implications, its recency, the moti- vations for it, the extent to which it was voluntary and undertaken with knowledge of the circumstances involved and, to the extent that it can be estimated and is appropriate in a particular case, the probability that it will continue in the future. VI. CRITERIA The criteria for determining eligibility for a clearance shall relate, but not be limited to, the following: A. The attempt or commission of any act of sabotage, espionage, treason, or sedition, or conspiring with, or aiding or abetting, another to commit or attempt to commit any act of sabotage, espionage, treason, or sedition. B. Establishing or continuing a sympathetic association with a saboteur, spy, traitor, seditionist, anarchist, or with an espionage agent or other representative of a foreign nation whose interests may be inimical to th' nterests of the United States, or with any perst who advocates the use of force or violence to overthrow the Government of the United States or the alteration of the form of Government of the United States by unconstitutional means. V.E. PAGENO="0118" 1682 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 C. Advocacy of use of force or violence to overthr'ow the Government of the United States, or of the alteration of the form of Government of the United States by unconstitutional means. D. Membership in, or affiliation or sympathetic association with, or participation in the activities of any foreign or dome stic organization, as sociation, movement, group, or combination of persons which is totalitarian, fascist, communist, or subversive, or which has adopted or shows, a policy of advocating or approving the com- mission of acts of force or violence to deny other persons their rights under the Constitution of the United States, or which seeks to alter the form of Government of the United States by unconstitutional meant;. E. Intentional, unauthorized disclosure to any person of classified information, or of other information, dis- closure of which is prohibited by law. F. Performing or attempting to perform his duties, or otherwise acting, so as to serve the interests of another government in preference to the interests of the United States. G. Participation in the activities of an organization estab- lished as a front for an organization referred to in D., above, under circumstances indicating that his personal views were sympathetic to the subversive purposes of such organization. H. Participation in the activities of an organization with knowledge that it had been infiltrated by members of subversive groups under circumstances indicating that the individual was a part of, or sympathetic to, the infiltrating element or sympathetic to its purposes. Sympathetic interest in totalitarian, fascist, communist, or similar subversive movements. . VI. C. PAGENO="0119" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 1683 Dec 7, 66 5220.6 3. Sympathetic association with a member, or members, or an organization referred to in D., above. Ordinarily, this will not include chance or occasional meetings nor con.tacts limited to normal business or official relations. K. Currently maintaining a close continuing association with a person who has engaged in activities or associations of the type referred to in A. through 3., above. A close continuing association may be deemed to exist where the individual lives at the same premises as, frequently visits, or frequently communicates with, such person. L. Close continuing association of the type described in A. through K, above, even though later separated by distance, where the circumstances indicate that renewal of the association is probable. M. Wilful violation or disregard of security regulations. N. Any behavior, activities, or associations which tend to show that the individual is not reliable or trustworthy. 0. Any deliberate misrepresentations, falsifications or omission of material facts from a Personnel Security Questionnaire, Personal History Statement, or similar document. P. Any criminal, infamous, dishonest, immoral, or notoriously disgraceful conduct, habitual use of intoxi- cants to excess, drug addiction, or sexual perversion. Q. Acts of a reckless, irresponsible or wanton nature which indicate such poor judgment and instability as to suggest that the individual might disclose classified information to unauthorized persons, or otherwise assist such persons, whether deliberately or inadvertently, in activities inimical to the national `interest. R. Any illness, including any mental condition, of a nature which, in the opinion of competent medical authority, may cause significant defect in the judgment or reliability of the employee, with due regard to the transient or con- tinuing effect of the illness and the medical findings in such cases. VL 3. PAGENO="0120" 1684 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 S. Any facts or circumstances which furn:ish reason to believe that the individual may be subjected to coercion, influence, or pressure which may be likely to cause action contrary to the national interest. Such facts may include: The presence of a close relative of the applicant or of the applicantts spouse in a nation whose interests may be inimical to the interests of the United States, or in satellites or occupied areas of such a nation, under circumstances permitting coercion or pressure to be brought on the individual through such relatives which may be likely to cause action contrary to the national interest. The term close relative includes parents, brothers, sisters, offspring and spouse. T. Exce s sive indebtedness, recurring financial difficulties, unexplained affluence or repetitive unexplained absences. U. Refusal by the individual, without satisfactory subse- quent explanation, to answer questions before a Con- gressional Committee, Federal or State court, or Federal administrative body, regarding charges of his alleged disloyalty or other conduct relevant to his security eligibility. VII. AD~4INISTRATION A. The Assistant Secretary of Defense (Administration) shall provide over-all policy guidance for the Program and is responsible for its administration, including the organization and composition of the various boards and staffs, and the establishment of field offices. The Assistant Secretary of Defense (Administration), or his designee, may issue such supplemental instructions and guidance as may be desirable for efficient and equitable operation of the Program cr to accomplish the objectives set out in reference (a). B. An Office shall be established in the Office of the Assistant Secretary of Defense (Administration), to administer the Erogram and shall include an Administra- tive Staff, Department Counsel, Screening Board, Field Offices, and an Appeal Board. VI. S. PAGENO="0121" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 195 o~ 1685 Dec 7, 66 5220.6 C. DoD components designated to support boards, staffs, and field offices will provide, from resources avail- able to the designated DoD component, financing, per- sonnel and personnel spaces, office facilities, and related administrative support. D. The Assistant Secretary of Defense (Administration), or his designee, is authorized to issue in appropriate cases, invitations and travel orders to persons to appear and testify who have provided oral or written statements adverse to the applicant relating to a con- troverted issue. The Assistant Secretary of Defense (Administration), or his designee, is authorized to issue instructions regarding the issuance of travel orders, payment of travel expenses, and reimburse- ment for actual expenses as provided by section 6 of reference (a). E. Screening Board members will be designated by the Assistant Secretary of Defense (Administration), or his designee. The Screening Board will be divided into panels of three members each; one member of each panel will be designated as chairman. In an agency case, the Agency Head may appoint one member from his agency to such a panel. F. Examiners, who must be qualified civilian attorneys, will be designated by the Assistant Secretary of Defense (Administration), or his designee. A single Examiner will be assigned to each case. Examiners will be assigned to such locations as will best serve the needs of the Program. G. Qualified attorneys will be designated by the Assistant Secretary of Defense (Administration), or his designee, to act as counsel for the Department of Defense in cases in which hearings are held. Department Counsel will present the Departmentts case at the hearing and will con- duct examinations and cross-examinations of those persons testifying, as appropriate. Other functions of Department VII. C. PAGENO="0122" 1686 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 Counsel include (1) providing advice and assistance to the Screening Board as required, and (2) taking appeals to and arguing cases before the Appeal Board on behalf of the Department. Department Counsel will not participate in the deliberations or determinations of any of the Boards, no:~ present any argument or other representation to an Examiner or to the Appeal Board with respect to any case pending before such Examiner or Board unless the applicant involved is provided with adva:nce notice of intention and reasonable opportunity to be heard. H. Appeal Board members will be designated by the Assistant Secretary of Defense (Administration), or his designee. The Appeal Board will be divided into panels of three members each. One member of each panel will be designated as chairman. In an agency case, the Agency Head may appoint one member from his Agency to such a panel. The Screening Board, the Examiners, and the Appeal Board shall operate under the authority, direction, and control of the Assistant Secretary of Defense (Administration). VIII. PROCEDURES A. Screening Board 1. Where a Department of Defense component recommends that an industrial security clearance be denied or revoked, the applicant's case and the recommendation of the Defense component will be referred to the Screening Board. As an interim measure, where a determination is made that the applicant's continued access to classi- fied information, pending action by the Screening Board, would constitute an immediate threat to the national interest, an existing clearance will be suspended. This interim suspeneion authority, however, is limited to statutory appointees, and the Deputy Director for Contract Administration Services, Defense Supply Agency; where there is VII.H. PAGENO="0123" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 1687 Dec ~, 66 5220.6 significant evidence of espionage or sabotage, emergency suspension action may be taken by an authorized subordinate after consulting with appropriate investigative agency officials. The As sistant Secretary of Defense (Administration) shall be notified promptly of all suspension actions taken under this paragraph together with the basis therefor. 2. With respect to any case pending before it, the Screening Board may direct (a) further investi- gation, specifying the particular matters to be investigated; (b) written interrogatories; (c) inter- views with the applicant or other persons; (d) a medical examination of the applicant; or (e) recom- mend to the Assistant Secretary of Defense (Admin- istration), or his designee, the suspension of the applicant's clearance pending further proceedings. 3. Determinations of the Screening Board will be made by majority vote. 4. Where the Screening Board determines that clear- ance at the level requested is clearly consistent with the national interest, a written determination will be prepared, the Defense component concerned notified, and any outstanding suspension rescinded. 5. Where the Screening Board determines that the case does not warrant a favorable determination, it will prepare a Statement of Reasons informing the appli- cant of the grounds upon which his clearance may be denied or revoked. This Statement of Reasons shall be as comprehensive and detailed as the national security permits. 6. The Statement of Reasons shall be forwarded to the applicant by the Assistant Secretary of Defense (Administration), or his designee, with a letter of instructions clearly outlining subsequent actions required of the applicant, including information on his right to counsel and right to appeal. VflI.A.2. PAGENO="0124" 1688 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 7. To be entitled to a hearing the appli:ant must submit within twenty (20) days after receipt of the Statement of Reasons a detailed written answer under oath or affirmation which shall admit or deny specificallj each .aUegation and each supporting fact contained in the Statement of Reasons. A general denial or other similar answer is not sufficient. The answer must be sufficiently responsive to permit the Depart- ment of Defense to determine the issues that are controverted. Where an applicant is without knowledge or information sufficient to form a belief as to the truth of an allegation contained in the Statement of Reasons, he may, after setting out fully the circumstances so state, and it may have the effect of a denial, upon a showing that he has made reasonable inquiries as to the matters alleged and has b~en unable to obtain the requisite information or knowledge. If the Assistant Secretary of Defenee (Administra- tion), or his designee, finds that t1~e applicant's answer does not meet the above requirements, he shall suspend any security clearance then in effect, and shall discontinue further proceedings. 8. An applicant who answers the Statement of Reasons as prescribed above is entitled to a hearing before an Examiner at which he may be represented by counsel of his own choosing, and for which he shall have a reasonable time to prepare. At that hearing he may present evidence in his own behalf and may cross-examine adverse witne~;ses either orally or in writing as hereinafter provided. 9. Where the applicant answers the Statement of Reasons but does not request a hearing, the case will be assigned to one of the Examiners 1:or final deter- mination based upon all available information including the applicant's answer. VIII. A. 7. PAGENO="0125" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 1689 Oec 7, 66 5220.6 10. Should the applicant not answer the Statement of Reasons, the Department of Defense component which forwarded the case shall be directed to deny or revoke the clearance, and the applicant shall be so advised. B. Examiner and Prehearing Procedures 1. The applicant who requests and is granted a hear- ing will be notified of the time and place of the hearing by the Examiner to whom the case is referred. Upon request either of the applicant or Department Counsel, postponements may be granted in the discretion of the Examiner. Dilatory postponements will not be allowed. Normally the hearing will be held in the city where the Examiner's office is located. Where the cir- cumstances warrant convening at a different location, the Examiner may schedule the hearing elsewhere. 2. Department Counsel is authorized to consult directly with the applicant or his counsel for the purpose of reaching agreement with respect to matters in issue. Stipulations entered into shall be binding upon the applicant and the Department of Defense for the purpose of these proceedings. 3. The applicant is responsible for producing witnesses and other evidence in his own behalf at the hearing. Upon request, the Department Counsel and the Examiner may provide assistance upon a showing that it is practicable and necessary. 4. Department Counsel is responsible for producing witnesses and information relied upon by the Department to establish those facts alleged in the Statement of Reasons which have been contro- verted. All Department of Defense components shall cooperate fully with Department Counsel so that the Department's responsibilities under this paragraph may be fulfilled. VIII. A. 10. PAGENO="0126" 1690 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 5. Where an applicant answers the Statement of Reasons but fails, without good and sufficient cause, to appear at the time and place set for the proceeding, the Examiner shall return the case to the Assistant Secretary of Defense (Administration), or his designee, who will direct the denial or revocation of the clearance, as appropriate, and advise the applicant. C. Hearing 1. The purpose of a hearing under the Program is to ascertain all the relevant facts in the case in order that a fair and impartial determination may be reached. The rules, including the rules of evidence, governing court proceedings or administrative hearings conducted under the Administrative Procedure Act are not applicable to hearings under this Directive. 2. The hearing will be conducted in an orderly manner. It may be attended only ~y the Examiner, the applicant and his counsel, authorized personnel of the DoD and necessary clerical personnel. Unless the Examiner rules otherwise, a witness may be present only when testifying. Should the conduct of the applicant or counsel impair the orderly progress of the hearing or should the Examiner's rulings be ignored or flouted deliber- ately, the Examiner is authorized, in his discretion to recess the hearing forthwith. Further proceed- ings may be held only after satisfactory assurances are made to the Assistant Secretary of Defense (Administration), or his designee, that the rulings of the Examiner will be followed. Otherwise the recess will continue indefinitely, during which time the applicant will be ineligible for a clearance. 3. The Examiner will notify all witnesses testifying that 18 United States Code 1001 makes it a criminal offense punishable by a maximum of five years imprisonment, $10,000 fine, or both, knowingly and wilfully to make a false statement or VIILB. 5. PAGENO="0127" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 [691 Dec 7, 66 5220.6 representation to any department or agency of the United States as to any matter within the jurisdiction of any department or agency of the United States. Written interrogatories must be sworn to before a notary public or other official authorized to administer oaths. 4. After a hearing has been convened, and the State- ment of Reasons and the applicantts answer thereto have been entered into the record, the applicant shall have the right to make a general opening statement and to present his case. 5. The Examiner may require the applicant to respond to relevant questions, to undergo a medical examina- tion, or to authorize the release of relevant infor- mation in the possession of other parties. Should the applicant refuse, the Examiner shall refer the case to the Assistant Secretary of Defense (Administration) for action in accordance with the provisions of section V. B., above. 6. When appropriate, the Examiner will amend the Statement of Reasons to make it conform to the information presented and enter the amendment into the record. When such amendments are made, the Examiner will grant the applicant such addi- tional time as the Examiner deems appropriate to answer such amendments and present evidence pertaining thereto. 7. The Examiner may recess the hearing at the request of the applicant or his counsel, Department Counsel, or upon his own motion. 8. A verbatim transcript (in triplicate) will be made of the hearing and made a permanent part of the record. The transcript will not include informa- tion introduced in accordance with provisions of D. 4., and 5., below. The applicant will VIII.C.4. PAGENO="0128" 1692 AMENDING STJBVERSIVE ACTIVITIES CONTROL ACT OF 1950 be furnished without cost one copy of the transcript, less the exhibits. Corrections will be allowed by the Examiner solely for the purpose of conforming the transcript to the actual testimony. 9. Whenever the Examiner concludes that he requires further information in making a determination, he may request that a further investigation or examina- tion be conducted. Information thus developed shall be made available to the Examiner subject to the provisions of this Directive. D. The Case Record 1. The record of a case shall consist of all information presented in accordance with this Directive by the DoD and by or on behalf of the applicant. Irrelevant, immaterial, and unduly repetitious material shall be excluded in the discretion of the Examiner. 2. Information adverse to the applicant on any contro- verted issue may not be made a part of the hearing record unless (1) the information or a summary thereof has been made available tc the applicant and (2) he either offers no objection to its presentation, or is afforded an opportunity to cross-examine the persons supplying the information either orally or in writing. The foregoing restrictions do not apply to information received and consic~ered under 3., 4., 5., and 6., below. 3. Records compiled in the regular course of business, or other physical evidence other than investigative reports, may be made a part of the record in the case subject to rebuttal without authenticating witnesses, provided that such information has been furnished by an investigative agency pursuant to its responsibilities VZEI.C.9. PAGENO="0129" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 1693 Dec 7, 66 5220.6 in connection with assisting the Secretary of Defense, or the Agency Head concerned, to safeguard classified information within industry pursuant to Executive Order 10865. 4. Records compiled in the regular course of business or other physical evidence other than investigative reports, relating to a controverted issue, which, because they are classified, may not be inspected by the applicant, may be received and considered provided the Assistant Secretary of Defense (Administration), as designee of the Secre- tary of Defense, or when applicable, of the Agency Head concerned has (1) made a preliminary deter- mination that such. physical evidence appears to be material, and (2), determines that failure to receive and consider such physical evidence would, in view of the level of access sought, be substantially harm- ful to the national security. Information as to the authenticity and accuracy of such physical evidence furnished by the investigative agency involved shall be considered. 5. A written or oral statement adverse to the applicant on a controverted issue may be received and con- sidered without affording an opportunity to cross- examine the person making the statement only in the circumstances described in either of the following subparagraphs: a. The head of the department supplying the statement certifies that the person who furnished the information is a confidential informant who has been engaged in obtaining intelligence information for the Government and that disclosure of his identity would be substantially harmful to the national interest. b. The Assistant Secretary of Defense (Administration) as designee of the Secretary of Defense, or when applicable, of the Agency Head, has preliminarily determined, after considering the information VIII. D. 4. 94-756 0 - 68 - pt.2 --9 PAGENO="0130" 1694 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 195 O~ furnished by the investigative agency involved as to the reliability of the person and the accuracy of the statement concerned, that the statement concerned appears to be reliable and material, and has determined that failure to receive and consider such statement would, in view of the level of access sought, be substantially harm- ful to he national security, and that the person who furnished the information cannot appear to testify (a), due to death, severe illness, or similar cause, in which case the identity of the person and the information to be considered shall be made available to the applicant, or (b), due to some other cause determined by the Secretary of Defense, or, when appropriate, by the Agency Head concerned, to be good and sufficient. 6. A written or oral statement relating to the characteri- zation in the Statement of Reasons of any organization or individual other than the applicant may be received and considered without affording the applicant an opportunity to cross-examine the person making the statement irrespective of whether t~he statement is adverse to the applicant or relates to a controverted issue. 7. Whenever physical evidence or statements are received and considered under 4. and 5., above, the applicant will be furnished with as comprehensive and detailed a summary of the information or physical evidence as the national security permits. Certificates evidencing the deter- minations required by these Sectioss will be entered into the hearing record. Appropriate consideration shall be accorded by officials charg;ed with making determinations under this Directive to the fact that the applicant did not have an opportunity to cross- examine the person or persons who provided the infor- mation, or to inspect the physical evidence. E. Determinations 1. Following the hearing, the Examiner will determine whether it is clearly consistent with the national interest to grant or continue the ap~licant's clear- ance at a specific level. He will prepare findings VflI.D.6. PAGENO="0131" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT. OF 1950 1695 Dec 7, 66 5220.6 of fact for or against the applicant with respect to each allegation in the Statement of Reasons and reasons in support of the said findings of fact. The Examiner's determination shall be based on grounds set out in the Statement of Reasons and upon information placed in the record in conformity with this Directive. Where the Examiner's determination is adverse to the applicant, the Examiner shall also determine whether any clearance then held by the applicant should be suspended or limited pending appeal under this Directive. 2. Where the Examiner's determination is adverse to the applicant, a copy thereof will be furnished to the appli- cant. Where the determination is favorable to the appli- cant, a copy thereof will be furnished to the Department Counsel. In the absence of timely appeal under F., below, this determination constitutes the final decision in the case. Provided, in those cases in which information was received and considered under D. 4. and 5., above, a copy of the determination, less any deletions required in the interests of national security, will be furnished: a. To applicant, if adverse to him, with notice that, in the absence of a timely appeal under F., below, the case record and the Examiner's determination will be forwarded to the Secretary of Defense or an Agency Head, as appropriate, for final determination; b. To Department Counsel, if favorable to applicant, with notice that, in the absence of timely appeal under F., below, the determination constitutes the final determination in the case. F. ~ppeals 1. Within 10 days after receiving the Examiner's deter- mination, the applicant or Department Counsel may appeal by filing a Notice of Appeal with the Appeal Board. When a Notice of Appeal is filed, a copy of the Examiner's determination will be furnished to the appellee. 2. Appeals may be made either in person or by filing a brief, and shall be based solely upon the case record. No further testimony or other evidence shall be received. A brief shall state with particularity the VIII. E. 2. PAGENO="0132" 1696 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 specific issues involved in the appeal, cite the relevant portions of the record and set out the reasons why the determination shou~d be re- versed. Where an appeal is made in person, the appellant shall file with the Appeal Board, prior to the scheduled appeal hearing, a written statement identifying the issues to be considered before the Appeal Board. Appellant shall send a copy to the appellee who may file a statement in reply. 3. The Appeal Board may recommend to the Assistant Secretary of Defense (Administration), or his designee, that a case be returned (1) for further investigation, or (2) to the Examiner with instructions to take further testimony. 4. Appeal Board deliberations will be made in executive session and the Board's determination arrived at by majority vote. The Board will prepare a written determination setting forth whether it is clearly con- sistent with the national interest to grant or continue a clearance to a specific level. The determination will include findings for or against the applicant with respect to each allegation in the Statement of Reasons and a separate memorandum of reasons in support of the determination. 5. In those cases in which information was received and considered under D.4. and 5., above, and the Appeal Board's determination is adverse to the applicant, the case record, together with the deter- minations of the Examiner and the Appeal Board, will be referred to the Secretary of Defense or the appropriate Agency Head, who, following his personal review of the case, will make a final determination. In all other cases, the Appeal Board's determination will be announced as the final determination in the case. 6. If the final determination is adverse to the applicant, he will be furnished findings with respect to each allega- tion in the Statement of Reasons. The Appeal Board's memorandum of reasons will not be furnished to the applicant. VIII. F. 3. PAGENO="0133" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 (i 697 Dec 7, 66 5220.6 7. No provision of this Directive shall be construed as conferring a right upon an applicant to appeal from a final decision to the Secretary of Defense, to the Assistant Secretary of Defense (Administration) or to the Agency Head. 8. Nothing contained in this Directive shall be deemed to limit or affect the responsibility and powers of the Secretary of Defense or of an Agency Head to deny or revoke a clearance when the security of the nation so requires. This authority may be exercised only where he determines personally that the provisions of this Directive cannot be invoked consistently with the national security. Such determinations shall be conclusive. tX. SUSPENSION ACTIONS IN SECURITY VIOLATION CASES A. In any case alleging wilful, unauthorized use or release of classified information or documents, or wilful appro- priation or retention of classified documents for personal use or for the use of others, or where the loss or com- promise of classified documents or information is wilfully concealed, the Screening Board, irrespective of whether its determination under Section VLEI. A., above, is to grant or continue a clearance, or issue a Statement of Reasons, shall make a separate finding whether the acts are established by a preponderance of the evidence. In each case where it so finds, it shall suspend an existing clearance for a period of one year, subject to the provisions of B., below, and ~hall set out in writing its reasons therefor. B. Where within twenty (20) days after being notified of the Screening Board action, the applicant does not give notice of intent to contest the proposed suspension, it shall be ordered into effect. Where the applicant VIII. F. 7. PAGENO="0134" 1698 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 195 ~ contests the proposed suspension, the case shall be referred to an Examiner who shall make a final deter- mination following a hearing which shall be governed by the provisions of this Directive to the extent applicable. A determination by the Examiner under this Section shall be final and no further appeal may be taken. C. No action taken under this Section shall preclude other actions as provided in this Directive at any stage of the proceedings. Issues u:ader this Section shall be heard in the same proceeding as other issues under this Directive, unless otherwise agreed by the parties. D. The Assistant Secretary of Defense (Administration), or his designee, shall order suspe:rlsions under this Section which shall become effective immediately. E. When the suspension has expired the applicant will be eligible for reinstatement of his clearance upon filing the necessary forms. X. REIMBURSEMENT FOR LOSS OF EARNINGS A. An applicant may be reimbursed for a loss of earnings resulting directly from the suspension, revocation, or denial of his clearance provided (1) a final determination thereafter is made that it is clearly consistent with the national interest to grant him a cisarance for access to classified information at least equal to that which was suspended, revoked, or denied, and (2) it is found to be fair and equitable for the Department of Defense to reimburse the applicant for all or a part of the loss of earnings. B. It shall be considered fair and equitable, except as hereinafter provided, to reimburse any applicant who has suffered loss of earnings as a result of suspension IN. C. PAGENO="0135" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 195 O~ 1699 Dec 7, 66 5220.6 revocation, or denial of clearance when that clearance is, in the course of the timely exhaustion of remedies by the applicant, graiited or restored. A claim for reimbursement may be denied when: 1. The subsequent determination to grant the clear- ance depends upon material facts withheld by the applicant, or where circumstances have changed- since the suspension, revocation, or denial and the grant or restoration of the clearance; or 2. The suspension, revocation, or denial follows the applicant's failure to comply with procedural requirements. C. Claims for reimbursement in Department of Defense cases shall be initiated by a petition filed by the appli- cant with the Assistant Secretary of Defense (Administra- tion). The petition shall contain a detailed statement why fairness and equity require reimbursement, including the basis for the assertion that the loss of earnings is attributable to the suspension, denial, or revocation of the clearance, and shall identify the alleged errors of fact or judgment involved. D. Claims for reimbursement in Agency cases shall be initiated by a petition filed by the applicant with the Agency concerned. At the request of the Agency Head concerned, the Department of Defense under its pro- cedures will review the petition and furnish that Agency with a recommendation with respect to the merits of the petition. However, the Department of Defense is not responsible for payment of such claims. E. When a case has been reopened under Section XI., below, and thereupon a determination favorable to the applicant is made, a request for reimbursement may be considered only where (1) the applicant exhausted all of the administrative remedies available in the original proceeding, (2) the applicant made a full and complete X.B. 1. PAGENO="0136" 1700 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF l95O~ disclosure during the original proceeding, and (3) the determination to grant or restore: the clearance is not based upon circumstances occurring after the final denial or revocation. F. The amount of reimbursement shall riot exceed the difference between the earnings of the applicant at the time of the suspension, revocation, or `denial, whichever is earlier, and the interim net earnings. No reimbursement shall be allowed for any period of undue delay resulting from the applicant's acts or failure to act. Any payment shall be in full satisfac- tion of any further claim against the United States, the Department of Defense, and the Departments and Agencies referred to in Section IV. B., above, arising out of the suspension, revocation, or denial of a clearance. Any claim shall be forever barred unless it is filed within one year after the date such claim first accrues, or within one year of the final disposi- tion of the case, whichever is later, `Provided, a claim for reimbursement may be filed under this Section within one year from the effective date of this Directive where the applicant filed a claim under reference (b), but was denied solely on the ground that the clearance determination which resulted in the loss of earnings was not unjustified.. G. Approved claims against the Department of Defense shall be forwarded to the Department of the Army for payment from `Claims, Defense" Appropriation, in the same manner that Federal tort claims are, cur- rently processed under reference (d). XI. PENDING AND REOPENED CASES A. All cases pending before the Screening Board and the Field Boards 30 days from the date hereof shall proceed to a final determination under this Directive. All cases pending before the Central Board on that date, including those in which the applicant has requested a determination on the record, will be referred to an X. F. PAGENO="0137" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1050 1701 Dec 7, 66 5220.6 Examiner for determination, notwithstanding a tentative determination has been announced or oral argument heard. B. Any person whose clearance has been denied or revoked under this Program or any predecessor program, may have his eligibility for a clearance reconsidered upon a showing of newly discovered evidence or other good cause. The request for reconsideration shall set out fully the grounds therefor. The Assistant Secretary of Defense (Administration), or his designee, in his discre- tion, shall grant or deny such requests for reconsider- ation. C. Where a clearance previously has been granted under this Program, and a Department component or Agency receives additional derogatory information which was not considered at the time the case was decided, it shall refer the information to the Deputy Director for Contract Administration Services, or to the Federal Bureau of Investigation, as appropriate, for appro- priate action. XII. EFFECTIV~DATE Section VII. of this Directive is effective immediately. Other provisions are effective 30 days from the date hereof. Deputy Secretary of Defense Enclosure Appendix XI. B. PAGENO="0138" 1702 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 5220.6 (End i) Dec 7, 66 EXECUTIVE ORDER 10865 SAFEGUARDING CLASSIFIED INFORMATION WITHIN INDUSTRY WHEREAS it is mandatory that the United States protect itself against hostile or destructive activities by preventing unauthorized disclosures of classified information relating to the national defense; and WHEREAS it is a fundamental principle of our Government to protect the interests of individuals against unreasonable or unwarranted encroachment; and WHEREAS I find that the provisions and procedures prescribed by this order are necessary to assure the preser- vation of the integrity of classified defense information and to protect the national interest; and WHEREAS I find that those provisions and procedures recognize the interests of individuals affected thereby and provide maximum possible safeguards to protect such interest: NOW, THEREFORE, under and by virtue of the authority vested in me by the Constitution and statutes of the United States, and as President of the United States and as Commander in Chief of the armed forces of the United States, it is hereby ordered as follows: SECTION 1. (a) The Secretary of State, the Secretary of Defense, the Commissioners of the Atomic Energy Commission, the Administrator of the National Aeronautics and Space Admin- istration, and the Administrator of the Federal Aviat~Lon Agency, respectively, shall, by regulation, prescribe such specific require- ments, restrictions, and other safeguards as they co:risider neces- sary to protect (1) releases of classified information to or within United States industry that relate to bidding on, or the negotiation, award, performance, or termination of, contracts w~th their APPENDIX "A" PAGENO="0139" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 1703 5220.6 (End i) Dec 7, 66 respective agencies, and (2) other releases of classified infor- mation 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. (b) Under agreement between the Department of Defense and any other department or agency of the United States, including, but not limited to, those referred to in subsection (c) of this section, regulations prescribed by the Secretary of Defense under subsection (a) of this section may be extended to apply to protect releases (1) of classified information to or within United States industry that relate to bidding on, or the negotiation, award, performance, or termination of, contracts with such other department or agency, and (2) other releases of classified information to or within industry which such other department or agency has responsibility for safe- guarding. (c) When used in this order, the term "head of a department" means the Secretary of State, the Secretary of Defense, the Com- missioners of the Atomic Energy Commission, the Administrator of the National Aeronautics and Space Administration, the Admin- istrator of the Federal Aviation Agency, and, in sections 4 and 8, includes the Attorney General. The term "department" means the Department of State, the Department of Defense, and the Atomic Energy Commission, the National Aeronautics and Space Admin- istration, the Federal Aviation Agency, and, in sections 4 and 8, includes the Department of Justice. SECTION 2. An authorization for access to classified information may be granted by the head of a department or his designee, including, but not limited to, those officials named in section 8 of this order, to an individual, hereinafter termed an "applicant", for a specific classification category only upon a finding that it is clearly consistent with the national interest to do so. SECTION 3. Except as provided in section 9 of this order, an authorization for access to a specific classification category may not be finally denied or revoked by the head of a department or his designee, including, but not limited to, those officials named in section 8 of this order~, unless the applicant has been given the following: APPENDIX "A" PAGENO="0140" ~7O4 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 5220.6 (~nc1 i) Eec 7, 66 (1) A written statement of the reasons why his access authorization may be denied or revoked, which shall be as comprehensive and detailed as the national security permits. (2) A reasonable opportunity to reply in writing under oath or affirmation to the statement of reasons. (3) After he has filed under oath or affirniatio:a a written reply to the statement of reasons, the form and sufficiency of which may be. prescribed by regulations issued by the head of the depart- ment concerned, an opportunity to appear personally before the head of the department concerned or his designee, including, but not limited to, those officials named in section 8 of this order, for the purpose of supporting his eligibility for access authorization and to present evidence on his behalf. (4) A reasonable time to prepare for that appearance. (5) An opportunity to be represented by counsel. (6) An opportunity to cross-examine persons either orally or through written interrogatories in accordance with section 4 on matters not relating to the characterization in the statement of reasons of any organization or individual other than the applicant. (7) A written notice of the final decision in his case which, if adverse, shall specify whether the head of the department or his designee, including, but not limited to, those officials named in section 8 of this qrder, found for or against him with respect to each allegation in the statement of reasons. SECTION 4. (a) An applicant shall be afforded an oppor- tunity to cross-examine persons who have made oral. or written statements adverse to the applicant relating to a controverted issue except that any such statement may be received and considered without affording such opportunity in the circumstances described in either of the following paragraphs: (1) The head of the department supplying the statement certifies that the person who furnished the informat~on is a confiden- tial informant who has been engaged in obtaining intelligence infor- mation for the Government and that disclosure of his identity would be substantially harmful to the national interest. APPENDIX A PAGENO="0141" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 1705 5220.6 (End i) Dec 7, 66 (2) The head of the department concerned or his special designee for that particular purpose has preliminarily determined, after considering information furnished by the investigative agency involved as to the reliability of the person and the accuracy of the statement concerned, that the statement concerned appears to be reliable and material, and the head of the department or such special designee has determined that failure to receive and consider such statement would, in view of the level of access sought, be substan- tially harmful to the national security and that the person who furnished the information cannot appear to testify (A) due to death, severe illness, or similar cause, in which case the identity of the person and the information to be considered shall be made available to the applicant, or (B) due to some other cause determined by the head of the department to be good and sufficient. (b) Whenever procedures under paragraphs (1) or (2) of subsection (a) of this section are used (1) the applicant shall be given a summary of the information which shall be as comprehensive and detailed as the national security permits, (2) appropriate considera- tion shall be accorded to the fact that the applicant did not have an opportunity to cross-examine such person or persons, and (3) a final determination adverse to the applicant shall be made only by the head of the department based upon his personal review of the case. SEC TION 5. (a) Records compiled in the regular course of business, or other physical evidence other than investigative reports, may be received and considered subject to rebuttal without authen- ticating witnesses, provided that such information has been furnished to the department concerned by an investigative agency pursuant to its responsibilities in connection with assisting the head of the de- partment concerned to safeguard classified information within industry pursuant to this order. (b) Records compiled in the regular course of business, or other physical evidence other than investigative reports, relating to a controverted issue which, because they are classified, may not be inspected by the applicant, may be received and considered pro- vided that: (1) the head of the department concerned or his special designee for that purpose has made a preliminary determination that such physical evidence appears to be material, (2) the head of the department concerned or such designee has made a determination APPENDIX "A" PAGENO="0142" 1706 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 52206 (2nd 1) Dec 7, 66 that failure to receive and consider such physical evidence would, in view of the level of access sought, be substantially harmful to the national security, and (3) to the extent that the national secu- rity permits, a summary or description of such physical evidence is made available to the applicant. In every such case, information as to the authenticity and accuracy of such physical evidence fur- nished by the investigative agency involved shall be considered. In such instances a final determination adverse to the applicant shall be made only by the head of the department based upon his personal review of the case. SECTION 6. Because existing law does not authorize the Department of State, the Department of Defense, or the National Aeronautics and Space Administration to subpoena witnesses, the Secretary of State, the Secretary of Defense, or the Administrator of the National Aeronautics and Space Administration, or his repre- sentative, may issue, in appropriate cases, invitations and requests to appear and testify in order that the applicant may have the oppor- tunity to cross-examine as provided by this order. So far as the national security permits, the head of the investigative agency involved shall cooperate with the Secretary or the Administrator, as the case may be, in identifying persons who have made statemsnts adverse to the applicant and in assisting him in making them available for cross-examination. If a person so invited is an officer or employee of the executive branch of the Government or a member of the armed forces of the United States, the head of the department or agency concerned shall cooperate in making that person avaitable for cross- examination. SECTION 7. Any determination under this order adverse to an applicant shall be a determination in terms of the national interest and shall in no sense be a determination as to the loyalty of the applicant concerned. SECTION 8. Except as otherwise specified in the preceding provisions of this order, any authority vested in the head of a department by this order may be delegated to the (1) Under Secretary of State or a Deputy Under Secretary of State, in the case of authority vested in the Secretary of State; (2) Deputy Secretary of Defense or an Assisl;ant Secretary of Defense, in the case of authority vested in the Secretary of Defense; APPENDIX A' PAGENO="0143" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950~ 1707 5220.6 (2nd 1) Dec 7, 66 (3) General Manager of the Atomic Energy Commission, in the case of authority vested in the Commissioners of the Atomic Energy Commission; (4) Deputy Administrator of the National Aeronautics and Space Administration, in the case of authority vested in the Admin- istrator of the National Aeronautics and Space Administration; (5) Deputy Administrator of the Federal Aviation Agency, in the case of authority vested in the Administrator of the Federal Aviation Agency; or (6) Deputy Attorney General or an Assistant Attorney General, in the case of authority vested in the Attorney General. SECTION 9. Nothing contained in this order shall be deemed to limit or affect the responsibility and powers of the head of a depart- ment to deny or revoke access to a specific classification category if the security of the nation so requires. Such authority may not be delegated and may be exercised only when the head of a department determines that the procedures prescribed in sections 3, 4, and 5 cannot be invoked consistently with the national security and such determination shall be conclusive. DWIGHT D. EISENHOWER THE WHITE HOUSE February 20, 1960 APPENDIX "A" PAGENO="0144" 1708 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 5220.6 (End 1) Dec 7, 66 EXECUTIVE ORDER 10909 AMENDMENT OF EXECUTIVE ORDER NO. 10865, SAFEGUARDING CLASSIFIED INFORMATION. WITHIN INDUSTRY By virtue of the authority vested in me by the Constitution and statutes of the United States, and as President of the United. States, and as Commander in Chief of the armed forces of the United States, Executive Order No. 10865 of February 20, 1960 (25 F. R. 1583), is hereby amended as follows: Section 1. Section 1(c) is amended to read as lollows: `(c) When used in this order, the term `head of a department' means the Secretary of State, the Secretary of Defense, the Commis- sioners of the Atomic Energy Commission, the Administrator of the National Aeronautics and Space Administration, the Administrator of the Federal Aviation Agency, the head of any other department or agency of the United States with which the Department of Defense makes an agreement under subsection (b) of this section, and. in sections 4 and 8, includes the Attorney General. The term `departn~ent' means the Department of State, the Department of Defense, the Atomic Energy Commission, the National Aeronautics and Space Administration, the Federal Aviation Agency, any other department or agency of the United States with which the Department of Defense makes an agree- ment under subsection (b) of this section, and, in sections 4 and 8, includes the Department of Justice." Section 2. Section 6 is amended to read as follows: "Sec. 6. The Secretary of State, the Secretary of Defense, the Administrator of the National Aeronautics and Space Administration, the Administrator of the Federal Aviation Agency, or his represen- tative, or the head of any other department or agency of. the United States with which the Department of Defense makes an agreement under section 1(b), or his representative, may issue, in appropriate cases, invitations and requests to appear and testify in order that the applicant may have the opportunity to cross-examine as provided APPENDIX "A" PAGENO="0145" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 195 o\ 1709 5220.6 (End i) Dec 7, 66 by this order. Whenever a witness is so invited or requested to appear and testify at a proceeding and the witness is an officer or employee of the executive branch of the Government or a member of the armed forces of the United States, and the proceeding involves the activity in connection with which the witness is em- ployed, travel expenses and per diem are authorized as provided by the Standardized Government Travel Regulations or the Joint Travel Regulations, as appropriate. In all other cases (including non-Government employees as well as officers or employees of the executive branch of the Government or members of the armed forces of the United States not covered by the foregoing sentence), transportation in kind and reimbursement for actual expenses are authorized in an amount not to exceed the amount payable under Standardized Govern- ment Travel Regulations. An officer or employee of the executive branch of the Government or a member of the armed forces of the United States who is invited or requested to appear pursuant to this paragraph shall be deemed to be in the performance of his official duties. So far as the national security permits, the head of the investigative agency involved shall cooperate with the Secretary, the Administrator, or the head of the other department or agency, as the case may be, in identifying persons who have made statements adverse to the applicant and in assisting him in making them available for cross- examination. If a person so invited is an officer or employee of the executive branch of the Government or a member of the armed forces of the United States, the head of the department or agency concerned shall cooperate in making that person available for cross-examination." Sec. 3. Section 8 is amended by striking out the word "or" at the end of clause (5), by striking out the period at the end of clause (6) and inserting "; or" in place thereof, and by adding the following new clause at the end thereof: "(7) the deputy of that department, or the principal assistant to the head of that department, as the case may be, in the case of authority vested in the head of a department or agency of the United States with which the Department of Defense makes an agreement under section 1(b)." DWIGHT D. EISENHOWER THE WHITE HOUSE January 17, 1961 APPENDIX "A" 94-756 0 - 68 - pt. 2 --10 PAGENO="0146" 1710 AMENDING SUBVERSIVE ACTIVITIE.S CONTROL ACT OF 1950 /~jft~ FEDEtIAL~$REtii STEII $9 VOLUME 18 NID~'~ NUMBER 2 Washington, Saturday, January 3, 1953 TITLE 3-THE PRESIDENT measures for the physical security of facilities within the cognizance of such EXECUTIVE ORDER 10421 agencies, respectively. PROVIDING POE ~TE PHYSICAL SECURITY OI( Sac. 3. (a) In addition to carrying oub FACILITIES II(PORTANT TO THE NATZQNA&~ the functions conferred upon him by * DEWfSI law, the Chairman shall supervise and * bring into harmonious action the pro.. me by the Constitution and statutes, and grats measure - as President of the United States it is tiOn 2 u~ this oruer hereb ordered as follows' (b) More particularly, the Chairman J shall from time to time: SEcTIoN 1. As used In the following i prescribe pOlicies and programs sections of this order: ` governing the activities of Federal agen- (a) The word "facilities" means those des with respect to the physical security Government-owned and privately- of facilities, including the activities in- owned plants, mines, facilities (Includ- volved In carrying out section 4 (a) log buildings occupied in whole or in hereof (`respecting security ratings). part by any Federal agency), materials, (2) WIth the advice and assistance, of products, and processes, and those Oov- appropriate Federal agencies, develop ernment-provided and pr1vately-pro~ and promulgate standards of physical vided ~erv1ces, which are of Importance security to be applicable to facilities, to defense mobilization, defense PrOdUC' which standards shall as far as practica- tIQO, `or the essential civilian economy ble accommodate differences In degrees and are located' or provided In the con- and types of physical security required, tinental United States or In the Tern., different categories of facilities, different tories or possessions of the United States: security ratings, and such other consid- Provided, That the Chairman' of the erations as may be pertinent. National Security ResouEces Board may, (3) Assign facilities to Federal agen- upon proper notice to affected Federal des, insofar as deemed practicable by the agencies, from time to time amend the , Chairman on the basis of the interest.s foregoing definition of "facilities," with and general cogntzance of agencies, for * respect to any or all parts of this order, the,performaflCe by such agencies of the as he shall deem' to be' compatible with following functions, subject to the direc- the purposes of this order. tion of the Chairman: (A) the furnish- (b), The term "Physical security" ing~ of advice tO the management or means security against sabotage, esplo- owner of a facility with respect to de- nage, and other hostile activity and veloping and administering the physical other destructive acts an4 omissions, but security program thereof: (B)* in con- excludes security attributable to opera- sultation with the management or owner * tions of military defense or combat and of a facility and with other technically excludes also activities with' respect to qualified persons, the development of the dispersal and post-attack rehabili- ph.~sica1 security measures for such f a- tation `of facilities. cility and, when necessary, the author- (c) The word "Chairman" means the Izatlon of standards of physical security Chairman of the National Security F.e' therCfor which differ from the standards sources Board. prescribed under section 3 (b) (2) here- of; (C) such supervision as may be ap- * SEC. 2. With a view toward the mainS. propriate of the application of physical ter~ance of essential production and the security measures to assigned facilities; security of the United States, to the ex- (D) the furthering, by other measures tent permitted by law, and subject to the desIgnated by the Chairman, of the provisions of this order, Federal agencies physical security of as~igned facilities; shall develop and execute programs and and (E) the ap:praisal of the adequacy PAGENO="0147" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 195 Ok 1711 and efficiency of the physical security ~i (a hereof, Federal agencies which measures taken. have~ or can best obtain, data on plant (4) Approve or revise security ratings locations, plant capacities, production, established under section 4 (a) hereof service industries, technical processes, and. transmit the security ratings so ap- and production recluirements, and other similar information shall make available proved or revised to agencies assiiinecii to the Secretary of Commerce such data "facilities under section 3 (b) (3) hereof.. and information. In the event of any The Chairman may make any approved disagreement with respect to mak.. or revised security rating available tO ing data or information available tinder Federal agencies other than the agency this section 4 (C), the Chairman shall to which a facility concerned is assigned, resolve sucii disagreement and the decl~. for such uses related to the maintenance sion of the Chairman shall be finaL of production or the national security as (d) The Industry Evaluation Board is the Chairman may approve. contmued and shall, to such extent and (5) RevIew the physical security pro- in suchmanner as the Secretary of Coin- grams and measures of Federal agencies xnerce may direct, assist the Secretary as to effectiveness and as to conformity in carrying out the functions of the Sec.. with the policies and directives of the retary tinder section 4 (a) hereof. The Chairman under this order. Secretary, with the approval of the (6) Obtain from Federal agencies re~ Chairman, may from time to time alter ports, recommendations, and irtfornra-L the composition of the said Board. tion deemed by the Chairman to be, There is hereby terminated the now- essential to the discharge of his responsi'.. existing Presidentially approved assign- bilities under this order. ment of functions to the said Board. (7) Consult with Federal agencies SEC. 5. Each F e d e r a 1 procurement having responsibilities related to func.. agency which obtains in connection with tions set forth in this order, for the ~ its procurement contracts agreements pose of furthering coordination of requiring contractors to provide physical policies and activities; and develop, and security measures for their facilities report to the President concerning, shall provide in such agency for the re- programs which properly relate ~ view of such agreements. The purpose physical security of facilities and Other of such revjew shall be to assure con- measures designed to maintain and i~ formity of the physical security measures store essential productive capability. (8) Make available, or cause ~ ~j *equired by the agreements with the made available, to Federal agencies ~ standards prescribed under section 3 (b) (2) hereof. of the Information developed In connec~ tion with carrying out section 4 (a) SEC. 6. (a) The Facilities Protection hereof as the Chairman deems to be Board is transferred to the jurisdiction needed by those agencies in connection of the Chairman. Existing arrange- with the physical securityof facilities or ments concerning the physical location other aspects of the maintenance of of and administrative support for the production. Board may b~ continued. (9) Keep the President informed an (b) The Facilities Protection Board may be necessary concerning the mat- shall hereafter consist of one representa- ters encompassed by this order and fur- tive of each of the following agencies, nish him such recommendations as may namely, the Departments of Defense, be appropriate. Commerce, Interior, and Labor, the (10) Consistent with law, establish Atomic Energy Commission, the Federal such advisory bodies as the Chairman Civil Defense Administration, and such may deem necessary to assist him In other agencies as the Chairman may carrying out his functions under this from time to time designate. Each such order. _____ representative shall be designated by the bead of the agency he.is to represent. Sgc. 4. (a) The Secretary of Oom~ each person who is now a member of the merce shall from time to time establish Board may continue as a member with- and transmit to the Chairman security out the necessity of redesignation by ratings of facilities, based on the rela- reason of this order. The Chairman of tive Importance thereof to defense the National Security Resources Board mobilization, defense production, and Shall from time to time designate from essential civilian economy. among. the members of the Board a (b) In carrying out section 4 (a) Chairman of the Facilities Protection hereof, the Secretary of Commerce shall Board. consult with Federal agencies as may be (c) The Board shall assi~t and advise appropriate;. the Chairman in carrying out the func (c) To the extent necessary for the tions vested in him by this order. There performance of functions under section Ii hereby terminated the now-existing PAGENO="0148" 1712 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 * Presidentially approved assignment of ~èi5i~itment shall advise 8nd consi4$ functions to the Board. pith the Chairman concerning the phy~ Ssc 7 (a) The programs and mes~~ Ical security of any facility soexoludof. urea provided for in this order with ~`fl~ provisions of this order shall not~i respect to the physical security of fa~th~~~d to apply to military defense or ties shall be supplementary to, and not In co~b~t. except thai the Chairman and substitution for, similar or related actlv. the Secretar7 of Defense shall effect ap.. ities carried on by state and local aU. propriate coordination of the functions thorities and by private enterprise. `j~,j~ carried out under this order and of oper- order shall not be deemed to place in ations of military defense or combat the Federal Government the primary affect1fl~ facilities, responsibility for the physical. security. (e) Nothing in this order shall be of privately-owned facilities or of faci1~. deemed to confer 05 any Federal agency *lties owned by any state, any political 1flVest1~Rt1ve functions exercised by any * subdivision of any state, or any 1nter~ FedSl'9.l agency represented. In the In- governmental body. . terdepartinental Intelligence Confer- (b) This order shall not be deemed to ence or to alter or modify any function govern activities with respect to the of the said Confereiice. - post-attack immediately essential emer- (t) Nothing In this order shall be gency repair or restoration of damaged deemed to affect the responsi~ilities now vital facilities (64 Stat. 1247; 50 U. s. c. assigned to the Interdepartmental Corn- App. 2252 (b)), except that the Federal nilttee on Internal Security, except that * Civil Defense Administration and the there shall be gQverned by this order, (A) Chairman shall effect appropriate Co.. the Facilities Protection Board and the ordination of the said activities and Industry Evaluation Board and their functions carried out under this order; functions and supervision, (B) the pee- `(c)Thls orde ``iii ~ ~ of standards of physical a o cx n any ,,,~ facility of or under the cognizance of ` ~ ~ e maLLLRS 0 the Atomic Energy Commission, except ~ec~~ty ratings respecting facilities, and * those parts of any such facility which (D) the assignment of facilities to Fed.. are not the responsibility of the saId~ eral agencies for the performance by * Commission. *~ th~1U o~ physical security functions and (d) This order shall"not ~ the conduct y the said agencies of Federally-owned ~ physical security functions respecting * stations, arsenals, or other comnparabia facifities assigned 1o them, respectively. facilities under military command. The. * *` -`. BARRY 8. TRVXAN * *, Chairman may exclude partly or wholly' `j'~ WRITE Ho~as, from the operation of this order any J)ecernber 31, 1952. other facility under the cognizance of, ~ ~, ~ ea.1381~* the Department of Defense, except th.a& * ~ m~' Dec. 31, 1052, PAGENO="0149" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 195 G 1713 [Federal Register-vol. 18, no. 51, Mar. 17, 1953] TITLE 3--THE PRESIDENT EXECUTiVE ORDER 1043$ TRANSvERRING CERTAIN Fwrcrrous or ia~ NATIO1~AL SECURITY RxsOuac~ ~&RD AND 0? THE Caua*&i~ THa~wv TO THE DIRECTOR 0? DtrENaz MOIZLIZATW~ By virtue of the authorIty.vest~ed In me by the Constitution and laws of the United `States, and as President of the United States and Commande~ In CThlef of the armed forces of the United States, It Is hereby ordered as foliow*: SECTION 1. All of the functions vested In the~ NatIo~ial Security' Resources Board and In the Chairman of such Board by the follo~Vlng-des1gnated Ex. ecutive orders are hereby transfex~ód to the Director of Defense Mobilization, and the said Executive orderB are amended accordingly. (a) Executive Order No. 9181 of Sep. tember 19, 1946, as amended bi Execu. tive Order No, 10360 of Ju~e 11, 1952 (17 F. R.. 5337). jb) Execut1ve~ Order No. 10312 of De- cember 10, 1951 (16 P. R.124S2). (c) Executive Order No~ 10346 of April 17, 1952 (17?. R. 3477). (d) Executive Order N'o~ `10421 of De- cember 31,1952 (18 F. R. 57. Szc. 2. 8o much of the reecwds and. personnel under the jurlsdlctkn of the Chairman of the Natlolial Security Re- sources Board as such Chairman and the Director of Defense Mobilization shall jointly determine to relate primarily to the functions which are transferred to the Director of Defense Mobilization by section 1 of this order shall be t~tns- f erred, consonant with law, to the Of0~e of Defense MoblIIMt,tOD. DwEsw~ D. Ez~wow~ Thz WaITE HOuaz, March 13) 1953. EP. B. `Doe. 53~4I05: Piled. )tsr. 13, 1853; *:52p.ni3 PAGENO="0150" 1714 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950' EXECUTIVE ORDER No. 10501 ~ ~ NOVEMBER 5, 1953 SAFEGUARDING OFFICIAL INFORMATION iN THE INTERESTS OF THE DEFENSE OF THE UNITED STATES WHEREAS it is essential that the citizens of the United States be informed con~ cerning the activities of their government; and WHEREAS the interests of national defense require the preservation of the ability of the United States toprotect and defend itself against oil hostile or destruc- tive action by covert or overt means, including espionage as well as military action; and WHEREAS it is essential that certain official information affecting the national defense be protected uniformly against unauthorized disclosure: NOW, THEREFORE, by virtue of the authority vested in me by the Constitution and statutes, and as President of the United States, and deeming such action nec- essary in the be8t interests of the national security, it is hereby ordered as follows: Section 1. CLASSIFICATION CATEGORIES Official information which requires protection in the interests of national de- fense shall be limited to three categories of classificatio:i, which in descending order of importance shall carry one of the following designations: Top Secret, Secret, or Confidential. No other designation shall be used to classify defense in- formation, including military information, as requiring protection in the interests of national defense, except as expressly provided by statute. These categories are defined as follows: (a) Top Secret: Except as may be expressly provided by statute, the use of the classification Top Secret shall be authorized, by appropriate authority, only for defense information or material which requires the highest degree of proteátion. The Top Secret classification shallbe applied only to that informa- tion or material the defense aspect ofwbichis paramounl;, and the unauthorized disclosure of which could result in exceptionally grave damage to the Nation such as leading to a definite break in diplomatic relations affecting the defense of the .United States, an armed attack against the Uthted~ States or its allies, a war, or the compromise of military or defense plans, or intelligence operations, or scientific or technological developments vital to the national defense. (b) Secret: Except as may be expressly provided by statute, the u~e of the classification Secret shall be authorized, by appropriate authority, only'for de- fense information or material the unauthorized disclosure of which could result in serious damage to the Nation, such as by jeopardizing the international rela- tions of the United States, endangering the effectiveness of a progrant or policy of vital importance to the national defense, or compromising important military or defense plans, scientific or technological developments important to national defense, or information revealing important intelligence operations. (c) Confidential: Except as may be expressly provided by statute, the use of the classification Confidential shall be authorized, by appropriate authority, only for defense information or material the unauthorized disclosure of which could be prejudicial to the defense interests of the nation. PAGENO="0151" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 195 O~ 1715 Section 2. LThIT~TION OF ATJ~IORITY ~D ClASSIFY (NoTE~ 2, I~, ~) The authority to classify defense information or material under this order shall be limited in the departments, agencies, and other units of the executive branch as hereinafter specified. (a) In the following departments, agencies, and Governmental units having primary responsibility for matters pertaining to nat.. ional defense, the authority for original classification of infor- mation or material under this order may be exercised by the head of the department, agency, or Governmental unit concerned or by such responsible officers or employees as be, or his representative, may designate for that purpose. The delegation of such aixthority to classify shall be limited as severely as is consistent with the or.. deny and expeditious transaction of Government business. The ~1hite House Office President's Science Advisory Coternittee Bureau of the Budget Canal Zone Government Council of Econcmic Advisors Department of the Army Department of the Navy Department of the Air Force Department of Commerce Department of Defense Department of Labor Department of Justice Department of the ¶t~reasury Export-Import Bank of Washington Federal Aviation Agency Federal Communications Commission Federal Radiation Council General Services Administration Interstate Cczmnerce Ccnmission National Aeronautics and Space Administration National Aeronautics and Space Council Nattonal Security Council Office .of Imergency Planning Office of Science and Technology Peace Corps President's Foreign Intelligence Advisory Board The Special Representative for Trade Negotiations Ualted States Arms Control and Disarmament Agency United States Civil Service Commission United States Information Agency Agency for International Development Atomic Energy Commission Central Intelligence Agency* Department of State PAGENO="0152" 1716 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 (1,) In the following departments, agencies, and Governmental units, having partial but not primary responsibility for matters pertaining to national defense, the authority for original classi- fication of information or material under this order shall be exer~ cised only by the head of the department, agency, or Governmental unit without delegation: Civil Aeronautics Board Department of Agriculture Department of Health, Education and Welfare Department of the Interior Federal Earitime Commission Federal Power Commission Nations]. Science Foundation Post Office Department Renegotiation Board Small Business Administratinn Tennessee Valley Authority Panama Canal Ccc~pany (c) Any agency or unit of the executive branch not named herein, and any such agency or unit which may be established here- after shall be deemed not to have authority for original classifi- cation of information or material under this order, except as such authority may be specifically conferred upon any such agency or unit hereafter. Section 3. CLASSI~TC~T1ON Persons designated to have authority for original classification of information or material which requires protection in the interests of national defense under this order shall be held responslhle for its pro- per classification in accordance with the definitions of the three cate- gories in section 1, hereof. Unnecessary classification and over-classi- fication shall be scrupulously avoided. The following Epecia]. rules shall be observed in classification of defense information or material: (a) Documents in General: Documents shall be classified according to their own content and not necessarily according to their relationship to other documents * References to classified material which do not reveal classified defense information shall not be classified. (b) Physically Connected Documents: The classification of a file or group of physically connected documents nhall be at least as high as that of the most highly classified document therein. Documents separated from the file or group shall be handled in accordance with their individual defense classification. (c) Multiple Classification: A document, product, or substance shall bear~~lassification at least as high as that of its highest PAGENO="0153" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 1717 classified component. The document, product, or substance sha].]. bear only one over-afl classification, notwithstanding that pages, paragraphs, sections, or components thereof bear different classifications. (d) Transnitta]. Letters: A letter transmitting defense information~bal1 i~i classified at least as high as its highest classified enclosure. (e) Information Originated by a Foreign Government or g~~ation: Defense information of a classified nature furnished to the United States by a foreign government or international organi.. zation shall be assigned a classification whIch will assure a degree of protection equivalent to or greater than that required by the government or international organization which furnished the infor- mation. Section 1~. DECIASSIP~CATI0N, DOWNGRADING, OR UPGRADING (Note 1, 3) When classified Information or material no longer requires its present level of protection in the defense interest, it shall be down.- graded or declassified in order to preserve the effectiveness and integ- rity of the classification system and to eliminate classifications of information or material which no longer require classification protection. Heads of departments or agencies originating classified information or material shall designate persons to be responsible for continuing review of such classified information or material on a documentby-document category, project, program, or other systematic basis, for the purpose of declassifying or downgrading whenever national defense considerations permit, and for receiving requests for such review from all sources. However, Restricted I~ata and material formerly designated as Restricted ]~ta sha.U. be handled only in accordance with subparagraph 1~ (a) (i) below and section 13 of this order. The following special rules shall be observed with respect to changes of classification of defense information or material, including information or material heretofore classified: (a) Atrtonatic Changes. In order to insure uniform procedures for automatic changes, heads of departments and agencies having authority for original classification of information or material, as set forth in section 2, shall categorize such classified infor- nation or material into the following groups: (1) Group 1. Information or material originated by foreign governments or international organizations and over which the United States Government has no jurisdiction, information, or material provided for by statutes such as the Atomic Ener~r Act, and infor- ination or material requiring special handling, such as intelligence and cryptography. This information and material is excltded from automatic downgrading or declassification. PAGENO="0154" 1718 \ AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 195 Of (2) Group 2. Extremely sensitive information or material which the bead of the agency or his designees exempt, on an individual basis, frcsn autcasatic downgrading and declassification. (3) Group 3. Information or material which warrants sane degree of classification for an indefinite period. Such informa- tion or material shall become automatically downgraded at 12-year intervals until the lowest classification is reached, but shall not become è.ubomaticaUy declassified. (li) Group 1~. Information or material which does not qualify for, or is not assigned to, one of the first three groups. Such information or natarial shall become automatically downgraded at three-year intervals until the lowest classification is reached, and shall be automatically declassified twelve years after date of issuance. To the fullest extent practicable, the classifying authority shall indicate on the information or material at the time of original classification if it can be downgraded or declassified at an earlier date, or.if it can be downgraded or declassified after a specified event, or upon the removal of classified attachments or enclosures. The heads, or their designees, of departments and agencies in posses- sion of defense information or material classified pursuant to this order, but not bearing markings for automatic downgrading or declassi- fication, are hereby authorized to mark or designa~e for automatic downgrading or declassification such information o:~ material in accordance with the rules or regulations established by the depart- ment or agency that originally classified such information or material. (b) Non-Automatic ~ The persons designated to receive requests for review o~' classified material may doungrade or declass- ify such material when circumstances no longer warrant its retention in its original classification provided the consent of the appro- priate classifying authority has been obtained. The downgrading or declassification of extracts from or paraphrases cf classified docu- ments shall also require the consent of the appropriate classifying authority unless the agency making such extracts knows positively that they warrant a classification lower than that of the document from which extracted, or that they are not classified. (c) Material Officially ~anaferred: In the case of material transferred by or pursuant to statute orExecutive order from one department or agency to another for the latter1 a use and as part of its official files or property, as distinguished :~ron transfers i~rely for purposes of storage, the receiving department or agency shall be deemed to be the classifying authority for all purposes under this order, including declassifiction and downgrading. PAGENO="0155" `AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 1719 (d) rial Not Officially Transferred: `When any department or agency has ha~ in its possession any c]A~iified material which has become five years old, and it appears (1) that such material origi.. mated in an agency which has since become defunct and whose files and other property have not been officially transferred to another department or agency within the meaning of subsection (c), above, or (2) that it is impossible for the possessing department or agency to identify the originating agency, and (3) a review of the material indicates that it should be downgraded or declassified, the said possessing department or agency shall have power to declassify or downgrade such material. If it appears probable tInt another depart.. inent or agency may have a substantial interest in whether the classi.. fication of any particular information should be maintained, the possessing department or agency shall not exercise the power conferred upon it by this subsection, except with the consent of the other department or agency, until thirty days after it has notified such other department or agency of the nature of the material and of its intention to declassify or downgrade the same. During such thirty.. day period the other department or agency may, if it so desires, express its objections to declassifying or downgrading the partic.. ular material, but the power to make the ultimate decision shall reside in the possessing department or agency. (e) Information or I~aterial Transmitted by Electrical ~eans; The downgrading or declassification of. classified inforination oi~ material transmitted by electrical means shall be accomplished in accordance with the procedures described above unless specifically prohibited by the originating departmant or agency. Unclassified information or material which is transmitted in encrypted form shall be safeguarded and handled in accordance with the regulations of the originating department or agency. (f) Down~radin~z: If the recipient of classified material believes that it has been classified too highly, he may make a request to the reviewing official who may downgrade or declassify the material after obtaining the consent of the appropriate classifying authority. (g) ~p~rading: If the recipient of unclassified information or material believes that it should be classified, or if the reci- pient of classified information or material believes that its classification is not sufficiently protective, it shall be safe- guarded in accordance with the classification deemed appropriate and a request made to the reviewing official, who may classify the information or material or upgrade the classification after obtain- ing the consent of the appropriate classifying authority. The date of this action shall constitifte a new date of origin insofar as the downgrading or declassification schedule (paragraph (a) above) is concerned. PAGENO="0156" 1720 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 195 (h) Departments and Agencies Which Do Not have Authority for Original Classification: The provisions of this section relatiñj to the declassification of defense information or matérial shall apply to departments or agencies which do not, under the terms of this order, have authority for original classification of infor- mation or material, but which have formerly classified information. or material pursuant to Ececutive Order No. 10290 of September 21k, 1951. Ci) Not~ificatiôn of Change in Classification: In all cases in which action is taken by the reviewing official to downgrade or declassify earlier than called for by the automatic downgrading- declassification stamp, the reviewing official shall promptly notify all addressees to whom the information or material was originally transmitted. Recipients of original information or material, upon receipt of notification of change in classification, shall notify addressees to whom they have transmitted the classified information or material. Section 5. MARKING OF ClASSIFIED MATERIAL (Note 3) After a determination of the proper defense classification to be assigned has been made in accordance with the provision:; of this order, the classified material shall be marked as follows: (a) Downgrading~Deôiassification Markings:. At the time of origination, all classified information or materia:L shall be marked to indicate the downgrading-declassification schedule to be followed in accordancd~ with paragraph (a) of section l~ of this order. (b) Bound Documents: The assigned defense c:Lassification on bound documents, such as books or pamphlets, the pages of which are permanently and securely fastened together, shall be conspicuously marked or stamped on the outside of the front cove:s, on the title page, on the first page, on the back page and on the outside of the back cover. In each case the markings shall be applied to the top and bottom of the page or cover. (c) Unbound Documents: The assigned defense classification on unbound documents, such as letters, memoranda, reports, telegrams, and other similar documents, the pages of which are not permanently and securely fastened together, shall be conspicuo~sly marked or stamped at the top and bottom of each page, in such manner that the marking will be clearly visible when the pages are clipped or stapled together. (a) Charts~ Maps, and Drawings: Classified charts, maps, and drawings shall carry the defense classification marking under the legend, title block, or scale in such manner that it will be repro- duced on all copies made therefrom. Such classification shall also be marked at the top and bottom in each instance. PAGENO="0157" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 1721 Ce) ~otographs, Films and Becording~: Classified photographs, films and recordings, and their containers, shall be conspicuously and appropriately marked with the assigned defense classification. (f) ~pducts_or Substances: The assigned defense classifica- tion shall be conspicuously marked on classified products or sub- stances, if possible, and on their containers, if possible, or, if the article or container cannot be marked, written notification of such classification shall be furnished to recipients of such products or substances. (g) ~productions: All copies of reproductions of classified material shall be appropriatelymarked or stamped in the sane manner as the original thereof. (h) Unclassified Material: Normally, unclassified material shall not be marked or stamped Unclassified unless it is essential to covey to a recipient of such material that it has been examined specifically with a view to imposing a defense classification and has been determined not to require such classification. (i) Change or Removal of Classification: Whenever classified material is declassified, downgraded, or upgraded, the material shall be marked or stamped in a prominent place to reflect the change in classification, the authority for the action, the date of action, and the identity of the person or unit taking the action. In addi- tion, the old classification marking shall be cancelled and the new classification (if any) substituted therefor. Automatic change in classification shall be indicated by the appropriate classifying authority through marking or stamping in a prominent place to reflect information specified in subsection 1~ (a) hereof. (j) Material Furnished Persons not in the Executive Branch of the Government: When classified material affecting the nationaT~ defense is furnished authorized persons, in or out of Federal service other than those in the executive branch, the following notation, in addition to the assigned classification marking, shall whenever prac- ticable be placed on the material, on its container, or on the written notification of its assigned classification: "This material contains information affecting the national defense of the United States within the meaning of the espionage laws, Title 18, U.S.C., Secs. 793 and 791k, the transmission or revelation of which in any manner to an unauthorized person is prohibited by law." Use of alternative marking concerning "Restricted Data" as defined by the Atomic, Energy Act is authorized when appropriate. PAGENO="0158" 1722 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 Section 6. CUS~(ODY AdD SA EEPING (Note 3) The possession or use of classified defense information or material chail be limited to locations where facilities for secure storage or pro- tection thereof are available by means of which unautho:rized persons are prevented from gaining access thereto. l4henever such information or material is not ;under the personal supervision of its cuctodian, whether during or outside of working hours, the following means shall be taken to protect it: (a) Storage of Toy Secret Information and MateriaL: As a minimum, Top Secret defense information and material shall be st~red in a safe or safe-type steel file container having a three-position dial-type combina- tion lock, and being of such weight, size, construction, or installation as to minimize the possibility of unauthorized access to, or the physical theft of, such information and material. The head of a department or agency may approve other storage fhcilities which afford equal protection, such as an alarmed area, a vault, a vault-type room, or an area under contin- uous surveillance. (b) Storage of Secret and Confidential Information and Material: As a minimum, Secret a~td Ccnfidential defense informati~n ~hd material may be itored in a manner authorized for Top Secret information and material, or in steel file cabinets equipped with steel lockbar and a changeable three-combination dial-type padlock or in other storage facili- ties which afford equal protection and which are authorized by the head of the department or agency. (c) Storage or Protection Eau.tmnent: whenever nev security storage equipment is procured, it should, to the maximum extent practicable, be of the type designated as security filing cabinets on the Federal Supply. Schedule of the General Services Administration. (d) Other Classified Material: Heads of departments. and. agencies shall prescribe such protective facilities as may be necessary in their departments or agencies for material originating under statutory provi- sions requiring protection of certain information. (e) Changes of Lock Combinations: Combinations o:a locks of safe- keeping eaj±pmsat shall be changed,o±ily by persons having appropriate security clearance whenever such equipment is placed in use after procure- ment fran the manufacturer or other sources, whenever a person knowing the combination is transferred fran the office to which the equipment is assigned, or whenever the combination has been subjected to compromise, and at least once every year. Knowledge of combinations shall be limited to the minimum number of persons necessary for operating purposes. Records of combinations shall be classified no lower than the highest category of classified defense material authorized for storage in the eafekeeping equipment concerned. PAGENO="0159" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 1723 (f) Custodian's Resp~nsibilities: Custodians of classified defense material shall be responsible for providing the best possible protection and accountability for such material at all times and particularly for securely locking classified material in approved safekeeping equipment whenever it is not in use or under direct supervision of authorized em- ployees. Custodians shall follow procedures which insure that unauthorized persons do not gain access to classified defense information or material by sight or sound, and classified information shall not be discussed with or in presence of unauthorized persons. (g) ~~phone Conversations: Defense information classified in the three categories under the provisions of this order shall not be revealed in telephone conversations, except as may be authorized under section 8 hereof with respect to the transmission of Secret and Confidential material over certain military communications circuits. (h) Loss or Subjection to Conmroxnise: Any person in the executive branch who has knowledge of the loss or possible subjection to compromise of classified defense information shall promptly report the circumstances to a designated official of his agency, and the latter shall take appro- priate action forthwith, including advice to the originating department or agency. Section 7. ACC0UNT~BILITY AND DISSENINATION Knowledge or possession of classified defense information shall be permitted only to persons whose official duties require such access in the interest of promoting national defense and only if they have been deter- mined to be trustworthy. Proper control of dissemination of classified defense information shall be maintained at all tines, including good accoun- tability records of classified defense information documents, and severe limitation on the number of such documents originated as well as the number of copies thereof reproduced. The number of copiesof classified defense information documents shall be kept to a minimum to decrease the risk of compromise of the information contained in such documents and the financial burden on the Government in protecting such documents. The following spe- cial rules shall be observed in connection with accountability for and dissemination of defense information or material: (a) Accountability Procedures: Heads of departments and agencies shall prescribe such accountability procedures as are necessary to control effeôt- ively the dissemination of classified defense information, with particularly severe control on material classified Top Secret under this order. Top Secret Control Officers shall be designated, as required, to receive, maintain accountability registers of, and dispatch Top Secret material. (b) Dissemination Outside the Executive Branch: Classified defense information shall not be disseminated outside the executive branch except under conditions and through channels authorized by the head of the dis- seminating department or agency, even though the person or agency to which PAGENO="0160" 1724 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 dissemination of such information is proposed to be made may have been solely or partly responsible for its production. (a) Information Originating in Another Department `or Ag~~ç~: Except as otherwise provided by section 102 of the National Security Act of July 26, l9I~7, c. 31~3, 6i Stat. 1~98, as amended, 50 U.S.C. sec. 1~03, classified defense information originating in another de- partment or agency shall not be disseminated outside the receiving department or agency without the consent of the originating depart- ment or agency. Documents and material containing defense information which are classified Top Secret or Secret shall not be reproduced without the consent of the originating department or agency. Section 8. TRANSMISSION (Note 1, 3) For transmission outside of a department or agency~ classified defense material of the three categories originated under the provisions of this order shall be prepared and transmitted as follows: * (a) Preparation for Transmission: Such material shall be * .endlosed in opaque inner and outer covers. The inner cover shall be a sealed wrapper or envelope plainly marked with the assigned classi- fication of its contents. A receipt form shall be attached to or enclosed in the inner cover, except that Confidential material shall require a receipt only if the sender deems it neceosary. The receipt form shall identify the addressor, addressee, and the document, but shall contain no classified information. It shall be signed by the proper recipient and returned to the sender. (b) Transmitti~g Top Secret Material: The transmission of Top Secret material shall be effected preferably by direct contact of officials concerned, or, alternatively, by specifically designated personnel, by State Department diplomatic pouch, by a messenger- courier system especially created for that purposej or by electric means in encrypted form; or in the case of information transmitted by the Federal Bureau of Investigation, such means of transmission may be used as are currently approved by the Director, Federal Bureau of Investigation, unless express reservation to the contrary is made in exceptional cases by the originating agency. (c) Transmitting Secret Information and Material: Secret information and material shall be transmitted within and between the forty-eight contiguous States and the District of Columbia, or wholly within Alaska, Hawaii, the Commonwealth of Puerto Rico, or a United States possession, by one of the means established for Top Secret information ~nd material, by authorized courier, by United States registered mail, or by the use of protective services provided by commercial carriers, air or surface, under such conditions as may be prescribed by the head of the department or agency concerned. Secret PAGENO="0161" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 1725 information and material may be transmitted outside those areas by one of the means established for Top Secret information and material, by commanders or masters of vessels of United States registry, or by the United States registered nail through Army, Navy, Air Force, or United States civil postal facilities; pro- vided that the information or material does not at any time pass out of United States. Government control and does not pass through a foreign postal system. For the purposes of this section regis- tered mail in the custody of a transporting agency of the United States Post Office is considered within United States Government control unless the transporting agent is foreign controlled or operated. Secret information and material may, however, be trans- mitted between United States Government or Canadian Government installations, or both, in the forty-eight contiguous States, the District of Columbia, Alaska, and Canada by United States and Canadian registered mail with registered mail receipt. Secret information and material may also be transmitted over communications circuits in accordance with regulations pronulgated for such purpose by the Secretary of Defense. (a) Transmitting Confidential Information and Material: Confidential information and material shall be transmitted within the forty-eight contiguous States and the District of Columbia, or wholly within Alaska, Hawaii, the Commonwealth of Puerto Rico, or a United States possession, by one of the means established for higher classifications, or by certified or first-class mail. Outside those areas Confidential information and material shall be trans- mitted in the same manner as authorized for higher classifications.' (e) Within an Agency: Preparation of classified defense material for transmiss~on,and transmission of it, within a depart- meni~or agency shall be governed by regulations, issued by the head of the department or agency, insuring a degree of security equiva- lent to that outlined above for transmission outside a department or agency. Section 9. DISPOSAL AND DE~THUC?PION Documentary record material made or received by a department or agency in connection with transaction of public business and preserved as evidence of the organization, functions, policies, operations, decisions, procedures or other activities of any department or agency of the Government, or because of the informational value of the data contained therein, may be destroyed only in accordance with the act of July 7, l9l~3, c. 192, 57 Stat. 380, as amended, 1t4 U.S.C. 366-380. Non-record classified material, consisting of extra copies and duplicates including shorthand notes, pre- liniinary drafts, used carbon paper, and other material of similar tenroo- rary nature, may be destroyed, under procedures established by the head of the department or agency which meet the following requirements, as soon as it has served its purpose: 94-756 0 - 68 - pt. 2 --11 PAGENO="0162" 1726 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 (a) Methods of Destruction: Classified defense material shall be destroyed by burning in the presence of an appropriate official or by other methods authorized by the head of an agency provided the resulting destruction is equally complete. (b) Records of Destruction: Appropriate accountability records maintained in the department or agency s1all reflect the destruction of classified defense material. Section 10. ORIENTATION AND INSPECTION To promote the basic purposes of this order, heads of those depart- ments and agencies originating or handling classified defense information shall designate experienced persons to coordinate and supervise the activities applicable to their departments or agencies under this order. Persons so designated shall maintain active training and orientation pro- grams for employees concerned with classified defense information to impress each such employee with his individual responsibIlity for exer- cising vigilance and care in complying with the provisions of this order. Such persons shall be authorized on behalf of the heads of the departnents and agencies to establish adequate and active inspection programs to the end that the provisions of this order are administere3. effectively. Section ll. INTERPRETATION OF REGUlATIONS BY TEE APIORNEY GENERAL The Attorney General, upon request of the head of a department or~ agency or his duly designated representative, shall personally or through authorized representatives of the Departnent of Justice render an interpretation of these regulations in connection with any problems arming out of their administration.. Section 12. STATUTORY RRINAENTS Nothing in this order shall be construed to authorize the dissemi- nation, handling or transmission of classified information contrary to the provisions of any statute. Section 13. RESTRICTED DATA, MATERIAL FORME~RLY DESIGNATED AS `RESTRICTED DATA; COMMUNICATIONS INTELLIGENCE AND CRYPTOGRAPHY: (Note 3) (a) Nothing in this order shall supersede any requirements made by or under the Atomic Energy Act of Augusl; 30, l95~~, as amended~ `Restricted Data,' and material formerly designated as `Restricted Data," shall be handled, protected, classified, downgraded, and declassified in conformity with the provisions of the Atomic Energy Act of l95l~, as amended, and the regulations of the Atomic Energy Commission. PAGENO="0163" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 1727 (b) Nothing in this order shall prohibit any special requirements that the originating agency or other appropriate authority may impose as to communications intelligence, crypto- graphy, and matters related thereto. Section IA. COMBAT OPERATIONS The provisions of this order with regard to dissemination, trans- mission, or safekeeping of classified defense information or material may be so nodified in connection with combat or combat-related operations as the Secretary of Defense nay by regulations prescribe. Section 15. EXCEPTIONAL CASES (Note 1) When, in an exceptional case, a person or agency not authorized to classify defense information originates information which is believed to require classification, such person or agency shall protect that in- formation in the manner prescribed by this order for that category of classified defense information into which it is believed to fall, and shall transmit the information forthwith, under appropriate safeguards, to the department, agency, or person having both the authority to classify information and a direct official interest in the information (preferably, that department, agency, or person to which the information would be trans- mitted in the ordinary course of business), with a request that such department, agency, or person classify the information. historical Research. As an exception to the standard of access prescribed in the first sentence of section 7, but subject tO all other provisions of this order, the head of an agency may permit persons outside the executive branch performing functions in connection with historical research projects to have access to classified defense information originated within his agency if he determines that: (a) access to the information will be clearly con- sistent with the interests of national defense, and (b) the person to be granted access is trustworthy: Provided, that the head of the agency shall take appropriate steps to assure that classified information is not published or otherwise compromised.~ Section i6. REVIEW ¶10 INSURE ThAT INFORMATION IS NOT IMPROPERLY WIThHELD HERETJNDER The President shall designate a member of his staff who shall receive, consider, and take action upon, suggestions or complaints from non-Govern- mental sources relating to the operation of this order. Section 17. REVIEW ¶10 INSURE SAFEGUARDING OF CLASSI~ED DEFENSE INFORMATION The National Security Council shall conduct a continuing review of the implementation of this order to insure that classified defense infor- mation is properly safeguarded, in conformity herewith. PAGENO="0164" 1728 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 Section 18. REVIEW WITHIN DEPARTMENTS AND AGENCIES The head of each department and agency shall designate a member or members of his staff who shall conduct a continuing review of the in~ple- mentation of this order within the department or agency concerned to insure t1~t no information, is withheld hereunder which the people of the United States have a i'ight to know, and to insure that classified defense information is properly safeguarded in conformity herewith. Section 19. UNAUTHORIZED DISCLOSURE BY GOVERNMENT PERSONNEL (Note 3) The head of each department and agency is directed. to take prompt. and stringent administrative action against any officer or employee of the United States, at any level of employment, deternired to have been knowingly responsible for any release or disclosure of classified def- ease information or material except in the manner authorized by this order, and where a violation of criminal statutes may be involved, to refer promptly to the Department of Justice any such case. Section 20. REVOCATION OF EXECUTIVE ORDER NO. 10290 (Note 3) Executive Order No. 10290 of September 21~, 1951 is revoked as of the effective date of this order. Section 21. EFFECTIVE DATE (Note 3) This order shall become effective on December 15, 1953. DWIGHT D. EISENHOWER THE WHITE HOUSE November 5, l~53. NOTES: 1. As Amended by Executive Order 10816 dated May 7, 1959 2. As Amended by Executive Order 10901 dated January 9, 1961 3. As Amended by Executive Order lO961~ dated September 20, 1961 1~. As Amended by Executive Order 10985 dated January 12, 1962 5. As Amended by Executive Order 11097 dated February 28, 1963 PAGENO="0165" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 1729 ~NAL4~ - U11Z*A FEDEOAII4jIILbI SILO 4 - 4~E~ VOWME 23 `~NIT~D NUMBER 130 Washington, Thursday, July 3, 1958 - TITLE 3~THE PI~l~NT- La) EaCh refornce In any prior ~z. * ecutive order to the Director Of the Omee. EXE(~UTWE baDER 10773 of Defense Mobilization and each refer- ence in any prior Executive order to the AND T SFER1fl~O ~.; Federal Civil Defense. Administrator (or PuatcrxONs AND AFrM~5 ~ ~ ~ tothe Administrator of the Federal Civil or D~F~5 ~ND CIVILIAN MoBILIZ5TW~, I~fense Administration) is hereby By virture of the authority vested ~ a~eended to refer to the Director of the me as. President of the United St~Bs~ -Ø~ce of Defense and Civilian Mobiliza-. Including anthoriti vested In me by' the provisions of Reorgari1zat~on Plan ND; 1 1(b) Each reference in any prior Ex- of 1958 and Including C~O &llthOIIW: OcutiVe order to the Office of liefense vested In me by provlslons:of iaw sito. ~bllizatlon and each reference in any In the preambles of~ or retI~ ~UP~ in prior Executive order to the Federal connection with the Imiwncb o~, orders1 Civil Defense Administration is hereby amended by this order, It Is ordered as~ amended tO refer to the Office of Defense follows: 1. * * and.CMlian Mobilization. * ~, :4, Without limitlng the applica- SscrroN 1. The "Office of Defense and tlOn of sectiOn 3 of this order, the amend- Civilian Mobilization" and the "Director ments made thereby shall apply, subject of the Ofiucé of Defense and Civilian to the provisions of section 3 of this Mobilization", referred to In this order, Order: are the Office of that name and the (a) To references to the Federal Civil officer with that title, respectively, pro- Defense Administrator (or to the Admin- vided for In' ~eorgan1zat1Ofl Plan No. I - Isti'ator of the Federal Civil Defense Ad- of 1958. *. * ministration) and to references to the * Federal Civil Defense Administration In Sec 2 (a) There ore -nsreay ueie- * the following-designated Executive or- nse and Civilian Mob1llzation~ with ~ ome0i~r~ tlonstransferredtothepresidefltbythe (1) Ex C t' Ord N 10242 fM provisions of Reorganization Plan No. 1 8 1951. e U ive er o. o ay of 1958. `(2) Executive Order No. 10260 of June (b) Subject 1,0 the provisions of ~- 271951 tlon 7 of this order, all functions of the . ~ Executive Order No~ 10346 of April President of the United States hereto- ~ 1952 fore delegated or assigned to the ~ (4) ExecutIve Order No 10421 of Dc- rector of the Office of Defense Mobiliza- cember 31 1952 tion, the Office of Defense MobilIzation, (5) Executive Order No 10427 of the Federal Civil Defense Administrator Janu 16 1953 (or the Admlnistrat~or of the Federal (6) ExecutiVe Order No. 10529 of April Civil Defense AdmInIstratIefl),~Or the 22 1954 - -- Federa' Civil Defense Administration * (7) ExecutIve Order lo 10737 of are, to the extent that those delegations ()~ber 29 1957 or assignments wereIn effect June S0, (b) To references to the Director of 1958, redelegated or reasdgned, aS the the Office of Defense Mobilization and to case may be, to the DIr~itor of the OthOc references to the Office of Defense Mobi- of Defense Slid FIIISfl ~tIOli* Usation in the following-designated Ex- ~xC. 3.. Except In Instances wherein ecutive orders, including any Executive the provisions concerned are for any res- order amendatory thereof or supple- Sofl Inapplicable as of the effective 4te mentary thereto: of Reorgan1.~atiofl PIan;No. 1 of INS; * (1) ExecutIve Order No. * 10219 of PAGENO="0166" 1730 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 ~bruary 28,1951. ~ of any executWe departments and (2) Executive Order No. 10296 of ge,ncles may be designated, with their October 2, 1951. consent, as membcr~ of such units. The (3) Executive Order No. 10312 of De~ ~rector shall be the chairman of any cember 10,1951. *tthSidlary unit of which he is a member (4) Executive Order No. 10346 of April and he shall designate the chairman of 17 1952 any other subsidiary unit from among (5) EXecutive Order No. 10421 of De. the members ther'of. (c) The Board established by this sec-. - ce, `6) Exeàut.ive "rder No 10460 of June uOfl, tLUU earn suubiulary um~ i~nereo established under this section, shall ad-. 16,1953. vIse the Director of the Omce of Defense (7) Executive Order No. 10480 of and Civilian Mobilization with respect t,o August 14, 1953, (eiçcept sectIon 102). matters relating to his responsibilities ..~:.;($) ~ecntIve Order No. 10494 of as he shall reque~;t. .Oetober14,1953. Order No. 10524 of~ Szc. 7. The following are hereby re-. ~f~re3~31 1954 yoked: (10) ExecutIve Ord~r No. 10529 of~ (1) Executive Order No. 10224 of June22,1954 March15 1951 (113 ExecutIve Order No. 10560 of~ ~2) Executive Order -No. 10276 of July eeptember9,1954, .j31,1951. (12) Executive Order No. 10590 of. (3) Executive Order No. 10290 ct * J& uary tO, 1955. *5~pf~~b~r 27,1951. (13) ExecutIve Order No 10601 of (4) Executive Order No 10350 of May jEArch2l 1955 £4 1952 (14) Executive Order .No. 10634 of ~ Executive Order No. 10475 of July Ai~Eust25 1955 31, 1953. (15)~ Executive Order No. 1063~ of (6) SectIon 102 of Executive Order*~ Qàtobez, 10 1955 No. 10480 of August 14, 1953. 416) Executive Order No. 10655 of (7) Executive Order No. 10611 olMay * January 28, 1958. 11, 1955. (17) ExecutIve Order No. 10660 of . SEC. 8. ThIs o:rder shall not operate February 15, 19~6. . to ~erminate çr Impair any regulation, (18) Executive Order No. 10700 of ruling, order, directive, certificate. February 25, 1957. determinatIon, ~uthorIzation, co,ptraàt, * (19) Executive Order No. 10705 of agreement, or other action, ~ * April 17,1957. undertaken, or entered into with rósPéct~ `Sic. 5. Each reference In Executive to any function-affected by the provlsicms Order No. 10737 of October 29, 1957, ~ of sections 2, 3, or 4 oX this order; nor "a Regional Administrator of the Federal shall this order affect the validity or `Cl~il Defense Administration is hereby' (orce of anything heretofore done In con- amended to refer to a Regional Director nection with any such function. Any of aX the Office of Defense and Civilian the Instruments referred to in this sec~ Mobilization tion may be hereafter amended, modi- fled, or revoked, by appropriate au~ Sic. 6. (a) There is hereby estab- thority. fished In the Office of Defense and Civilian Mobilization the Defense and Sic. 9. The Director of the Offiqe of Civilian Mobilization Board. The Board Defense and Civilian Mobilization is shall be composed of the Director of the hereby au~orized to issue such regula-. Office of Defense and Civilian Mobillza.. tions. as he may deem necessary or de- tion, who shall be the chairman of the sirable to carry out the purposes of this Board, and of the heads of such execu- order. tive departments and agencies of the Sic. 10. The provisions of this order Government as may be designated, with shall be effective as of July 1, 1958, the their consent, from time to time by the eI~ective date of Reorganization Plan No, Director. - - 1 qf 1958. - (b) The Director of the Office of Dc-. DwicBT D. EISENBOWTR. fense and Civilian Mobilization may `T~ Wuirz Housi from time to time establish subsidiary ~ 1' 1958 units of the Board and assign suitable. ~p. R. D~. 5&-~169; Flied, July 1, 1958 names thereto. The Director a.nd the * 5:02 p. rn) PAGENO="0167" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 1731 Tuesday, October -2, 1962 FEDERAL REGISTER 27 FR 191, 2 Oct 62 Executive Order 11051 Ol~ ~ci~ss(C?) Rt Slip To /ioc(1.tnr) PRESCRIBING RESPONSIBILITIES OF THE (D~lCE OF EMERGENCY 0. 11051 ~oc(I&L)AGc(ADb1) PLANNING iN THE EXECUTIVE OFFICE OF THE PRESIDENT - For Into, 3Oct62 WHEREAS national preparedness must be achieved and main- tained to support such varying degrees of mobilization as may be - ~- - required to deal with increases in international tension, with limited war, or with general war including attack upon the United States; and - WHEREAS the national security and our continuing economic growth and prosperity are interdependent, appropriate attention must be directed to effective coordination of emergency preparedness meas- ures with national economic policies and objectives; and - WHEREAS mobilization readiness and civil defense activities can be accomplished most effectively and efficiently through the perform- ance by departments and agencies of the Government of those emer- gency preparedness functions related to their established roles and * capabilities; and * - WHEREAS responsibility for emergency preparedness involves virtually every agency of the Federal Government, and there is need to provide a central point of leadership and coordination in the - - Executive Office of the PrOsident: - - NOW, THEREFORE, by virtue of the authority vested in me as President of the United States, including the authorities contained in the National Security Act of 1947, the Defense Production Act of 1950 (50 U.S.C. App. 2061 et seq.), the Federal Civil Defense Act of - 1950 (50 U.S.C. App. 2251 et seq.), and other authorities of law vested in me pursuant to Reorganization Plan No. 1 of 1958 (72 Stat. 1799), and also including the authority vested in me by the provisions of - Section 301 of title 3 of the United States Code, it is hereby ordered as follows: - - PART I. SCOPE SECTION 101. Resumé of responsi5ilities. The Director of the Office of Emergency Planning (hereinafter referred to as the Director) shall: (a) Advise and assist the President in the coordination of and in the determination of policy for the emergency plans and preparedness assignments of the Federal departments and agencies (hereinafter referred to as Federal agencies) designed to make possible at Federal State and local levels the mobilization of the human, natural and industrial resources of the nation to meet all conditions of national emergency, including attack on the United States. (b) Under the direction -of the President, be responsible for the preparation of nonmilitary plans and preparedness programs with respect to organization and functioning of the Federal Governm~nt under emergency conditions and with respect to specific areas of Federal activity necessary in time of war which are neither performed in the normal operations of the regular departments and agencies nor assigned thereto by or under the authority of the President. (c) Perform such other functions as are vested in him by law or are by this order, or by orders referred to in this order, delegated or otherwise assigned to him. (d) Perform such additional functions as the President may from time to time direct. PART II. GENERAL CoononeATeNa REsPoNamialTirs SEC. 201. General. (a) The Director shall advise and assist the President in (1) the de-i-elopinent of planning assumptions and broad emergency preparedness objectives with respect to various conditions of national emergency, (2) the development of policies and proce- dures to determine the relationship between available - supplies of the nation's resources and the requirements of military, foreign. and essential civilian programs, including tho~e of civil defense, (3) the development of policies, programs, and control systems designed to deal with supply deficiencies and to meet effectively the most urgent requirements for those resources in the interests of national defense,- ~2 OCT 5 i~32 PAGENO="0168" 1732 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 - THE PRESIDENT and (4) coordinating the governmental programs designed to achieve these ends. (b) The Director shall advise and assist the Presiclentwith respect to resolving any issues, related to emergency preparedness responsi- bilities of Federal agencies, which arise between two or more such agencies. SEC. 202. Resources and Reguirements. The Director shall provide policy guidance to the heads of Federal agencies having -resourto * mobilization or claimancy responsibilities to assist them in (1) the development and submission of estimated military and foreign as * well as industrial and consumer requirements, (2) the development of resource supply estimates; and (3) the periodic evaluation of requirements estimates in relation to estImates of availability of resources from all sources. * SEC. 203. Central program deternsinatio~s. The Director shall do- velop. an overall emergency system for :~eachin~ central program decisions for the utilization of resources on the basis that he,will have the responsibility for making such central decisions in the initial period of an emergency. This system shall include uniform criteria and procedures for: (a) The development by each Federal agency of the amounts and types of resources which it must claim in order to meet the require- ments of its planned programs; * (b) The central consideration of the supply-requirements evalua- tions of planned programs; (c) The central determination of major resource utilization pro- grams under varied conditions of national emergency on a relative urgency basis and central direction for the adjustment of agency programs consistent with such determinations; and (d) The decentralization of controls if required by emergency conditions. Szc. 204. Control sgstencs. The Director shall develop policies and procedures for the coordinated applicat~.on by Federal agencies, in time of emergency, of priorities, allocations, and other resource con- trol and distribution systems (including a system for the rationing of consumer goods) for the conduct of approved major programs. SEC. 205. Researcls. The Director shall develop, maintain, and con- duct a central research planning program for emergency preparedness purposes. The Director shall maintain, with the participation and support of Federal agencies concerned, a national resources evaluation capability for predicting and monitoring the status of resources under * all degrees of emergency, for identifying resource deficiencies and feasible production programs and for supplying resource evaluations at national and subordinate levels to support mobilization base plan- * ning, continuity of government, resource management and economic recovery. SEC. 206. Dispersal and protection of facilities. (a) The Director, after consultation with the appropriate Federal agencies, shall advise the President concerningthe strategic relocation ofindustries, services, government and economic activities the operations of which are es- sential to the nation's security. H~e shall coordinate the efforts of Federal agencies with respect to the application of the principle of geographic dispersal of certain industrial facilities, both government- and privately-owned, in the interestof national defense. (b) The Director, under authority of, and in accordance with the provisions of, Executive Order No. 10421 of December 31, 1052, shall perform functions in respect of the ph~~sical security of facilities im- portant to the national defense. (c) In addition, the Director shall rsview all measures being taken by the Federal agencies with respect to the physical security and pro- tection of facilities important to defense mobilization, defense pro- duction civil defense ortlie essential ci'Tilian economy, including those under the provisions of emergency preparedness assignments to such PAGENO="0169" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1050 1733 Tuesday, October 2, 1962 FEDERAL REGISTER 5695 agencies and shall recommend to the President such actions as are necessary to strengthen such measures. SEC. 207. Civil defense. (a) Under authority of the provisions of Section 2 of Executive Order No. 10952 of July 20, 1961, and as there prescribed, the Director shall advise and assist the President, and shall perform other functions, in respect of civil defense. (b) Under authority of, and in accordance with the provisions of, * Executive OrderNo. 10958 of August 14, 1961, the Director shall advise and assist the President with respect to the stockpiling of food and medical supplies. (c) The Director shall advise and assist the President with respect to the need for stockpiling various items essential to the survival of the population, additional to food and medical supplies, and with respect to programs for the acquisition, storage, and maintenance of such stockpiles. SEC. 208. Federal-State relations. (a) The Director shall represent the President in working with State Governors to stimulate vigorous State and local participation in emergency preparedness measures. (b) He shall provide advice and guidance to the States with regard to preparations for the continuity of State and local civilian political authority in the event of nuclear attack on the United States which shall include, but i~ot be limited to, programs for maintaining lines of succession to office, safekeepin of essential records, provision for alternate sites of government, ti~e protection and effective use of gov- ernment resources, personnel, and facilities, and interstate compacts and reciprocal legislation relatingto emergency preparedness. (c) He shall assist the President in achieving a coordinated work- ing relationship between the various elements of State governments and the Federal agencies to which specific emergency preparedness functions havebeen assigned pursuant to statute orExecutive order. (d) The civil defense activities involved in the functions prescribed by the foregoing provisions of this section shall be carried out in accordance with the provisions of Section 2 of Executive Order No. 10952 of July 20,1961. Szc. 209. Review and evaluation. The Director shall from time to time furnish the President overall reports and recommendations con- cerning the emergency preparedness programs, including the state of preparedness of Federal, State, and local governments to carry out * their emergency functions. PAlrr Ill. SPECIAL EMEEGENCY PLANNING RsvroNslsrcrrsss Sass. 301. General. Under the direction of the President, the Direc- tor shall have primary responsibility (1) for planning assumptions and broad nonmilitary emergency preparedness objectives, (2) for planning the nonmilitary organization and functioning of the Federal Government in time of national emergency, (3) for developing, in * association with interested agencies, the emergency planning, includ- ing making recommendations to the President as to the appropriate - roles of Federal agencies, in currently unassigned matters, such as, but not necessarily limited to, economic stabilization, economic war- fare, emergency information, and wartime censorship, (4) for plan- * ninc'~for the emergency mobilization of telecommunications resources, ancf'(5) for the development of nonmilitary policies and programs for use in the event of enemy attack on the United States designed to restore the nations) defense potential of the nation. Sxc. 302. Emergency organization. The Director, in consultation with the Director of the Bureau of the Budget, shall plan for the organization and functioning of the Federal Government in an emer- gency, including provisions for the central direction of all emergency mobilization activities and the creation of such emergency agencies as may be required for the conduct of emergency activsties includine those within the normal jurisdiction of existing agencies. Plans shall p~rovide for maximum practicable reliance to be placed on existing Federal ~sgencies with competence in emergency operations and, as PAGENO="0170" 1734 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 D68~ THE PIIESIDENT best may be, shall be harmonious with related operations of the Government as a whole. Sec. 303. Esnergesics, authorities. The Director shall provide for the prompt exercise of Federal emergency authority through the advance preparation of such proposed legislation, Executive orders, - rules, regulations, and directives as would be necessary to put into effect operating programs appropriate to tke emergency situation. Sec. 304. Continuity of Federal Governssent. The Director shall develop policies and plans to assure the continuity of essential Federal Government activities through programs to provide for lines of suc- cession to office, safekeeping of essential rscords, alternate sites for Government operations. and the protection and effective use of Gov- ernment resources, personnel, and facilities. SEC. 305. Executive Reserve. The Director, under authority of, and in accordance with thee provisions of7 Executive Order No. 10660 of February 15, 1956, shall develop pohciss and plans for the pro- vision of an Executive Reserve of personnel capable of filling execu- tive positions in the Government in. time of emergency. SEC. 306. Emergency telecommunications. The Director shall be responsible for (1) plaasnin~ for the mobilization of the nation's tele- communications resources m time of nat~onal emerrvncy, and (2) carrying out, under the authority of, and in accor~ance with the provisions of, Executive Order No. 10701 of April 17, 1957, the functions thereby delegated or otherwise assigned to him. SEC. 307. Post-attack recosery. Under the direction of the Presi- dent, the Director, with the cooperation and assistance of the Federal agencies, shall develop policies, plans, and programs designed to pro- vide for the rapid restoration after an attack on the United States of a national capability to support a strong national defense effort. PAsrr IV. CURRENT Maceeoeamsrms-r Reseoccsmnrrns Sec. 401. Defense product-ion. Under the authority of, and in ac- cordance with the provisions of, Executive Order No. 10480 of August 14, 1953, the Director shall perform the functions thereby delegated * or otherwise assigned to him. SEC. 4&2. Strategic and critical materials stockpiling. (a) There are hereby delegated to the Director all those functions under the Strategicand Critical Materials Stockpilirg Act (50U.S.C. OS etseq.), under Section 4(h) of the Commodity Credit Corporation Charter Act (15 USC. 714b(h)), and under Section 204(f) of the Federal Property and Administrative Services Act of 1949 (40 U.S.C. 485(f)), which were transferred to the President Ly the provisions of Reorga- nization Plan No. 1 of 1958 (72 Stat. 1799). (b) The Director, under the provisions of the said Strategic and Critical Materials Stockpiling Act, shall determine which materials are stratecic and critical and the quality ar~d quantity of such miaterials winch sha~l be stockpiled, and shall direct the General Services Admin- istration in the purchase, storage, refinement, rotation, and disposal of materials. (c) The Director is hereby designated as an agency under and for the~purposes of the provisions of clause (b) of Section 5 of the Strategic and Critical Materials Stockpiling Act (50 U.S.C. 98d (chauso (b))); and, accordingly, in the event of enemy attack upon the United States the Director is aut.hcrized and directed to order the release by the Administrator of General Services of such materials from stockpiles established under the said Act, in such quantities, for such uses, and on such terms and conditions, as the Director deter- mines to be necessary in the interests of The national defense. Sac. 403. Supplemsntcd stockpile. The Director, under authority of the provisions of Section 4(d) (2) of Executive Order No. 10900 of January 6, 1911, shall determine from time to time the materials to be contracted for or purchased for a supplemental stockpile with forei"n- currencies pursuant to the Agricultural Trade Development and 2ssistance Act of 1054 (7 U.S.C. 1704(b)). PAGENO="0171" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 1735 Tuesday, October 2, 1962 FEDERAL REGISTER SEC~ 404. Imports threatening the national security. (a) The Director, under the authority of, and in accordance with the provisions of, Section 2 of the Act of July 1, 1954 (68 Stat. 360; 19 U.S.C. 1352a), shall make appropriate investigations of the effects of imports on the national security and shall advise the President of any case in which the Director is of the opinion that an article is bsisig imported into the United States in such c~uantities or under such circumstances as to threatçn to impair the national security. (b) The Director, under authority of, and in accordance with the provisions of, Section 3(d) of Executive Order No. 10582 of Decem- ber 17, 1954k shall furnish advice to procuring agencies with respect to the rejection of bids or offers to furnish materials of foreign origin on the ground that such rejection is necessary to protect essential national security interests. SEC. 405. Disaster relief. The Director, under authority of, and in accordance with the provisions of, Executive Order No. 10427 of January 16, 1953, and Executive Order No. 10737 of October 29, 1957 shall exercise authority under the Act of September 30, 1950, entitled "An Act to authorize Federal assistance to States and local ~overn- ments in major disasters, and for other purposes" (42 U.S.a 1855 etseq.). SEC. 406. Telecommunications. Under authority of, and in accord. ance with the provisions of, Executive Order No. 10995 of February 16, 1962, the Director shall perform functions in respect of telecommunica- tions. PAirr V. GENERAL PRovIsIoNs SEC. 501. Rules andregulationa. In carrying out liii responsibilities under this order, the Director is authorized to iesue such rules and renulations, and directives, consonant with law and Executive order, asehe deems necessary and appropriate to the functions involved. SEC. 502. Boards and committees. The Director is hereby author- ized to establish in headquarters and in the field such boards and com- mittees as he deems necessary to advise him in the conduct of activities outlined herein. SEC. 503. Certain additional authorities. (a) There are hereby dele5ated to the Director all those now-existino functions under the National Security Act of 1947 which were transrerred to the President by the provisions of Reorganization Plan No. 1 of 1958 (72 Stat. 1799). (b) In performino the functions under the Federal Civil Defense Act of 1950 assigner to him, and subject to applicable provisions of Executive orders, the Director is authorized to exercise the authority conferred by Title IV of that Act. The foregoing provision of this subsection shall not be deemed to derooate from any authority under Title IV heretofore available to the secretary of Defense. SEC. 504. Reports. The Director is authorized to require from Fed- eral aoencies such statistical data and progress reports at such intervals as he seems necessary to discharge his responsibilities under this order. Szc. 505. Prior actions. All orders, regulations, rulings, certificates, directives and other actions relating to any function affected by this order shall remain in effect except as they are inconsistent herewith or are hereafter amended or revoked under proper authority, and nothing in this order shall affect the validity or force of anything done under previous delegations or other assignments of the functions af- fectedby this order. SEC. 506. Executive Order 11030. Nothing in this order or in any order amended by this order shall derogate from the provisions of Executive Order No. 11030 of June 19, 1962. SEC. 507. References to orders and Acts. Except as may for any reasoilbe inappropriate, referencesin this order to any other Executive order or to any Act and references in this order or in any other Executive order to this order, shall be deemed to include references thereto, respectively, as amended from time to time. PAGENO="0172" 1736 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 9688 THE PRESIDENT PAnT VI. Psion EXECTYTIVE ORDERS AND PROCLAMATIONS SEC. 601. Genes-ce? amendments. Each reference to the Office of Civil and Defense Mobilization, or to the Director ci the Office of Civil and Defense Mobilization in the following is hereby amended to `refer to the Office of Emergency Planning and the ])irector of the Office of Emergency Planning, respectively: (1 Executive Order No. 10296 of October 2, 1951 (2 Executive OrderNo. 10312 of December 10, 1951 (3 Executive Order No. 10346 of April 17, 1952 (penultimate sentence of Section 2, only) 4 Executive Order No. 10421 of December 31,1952 5 Executive Order No. 10427 of January 16,1953 6 Executive Order No. 10480 of August 14, 1953 7 Executive Order No. 10494 of October 14,1953 8 Executive Order No. 10601 of March 21, 1955 (9 Executive Order No.10634 of August 25, 1955 (10 Executive Order No. 10660 of February 15,1956 (11 Executive Order No. 10705 of April 17,1957 (12) Executive Order No. 10737 of OcLober 29,1957 13 Executive Order No. 10900 of January 5,1961 14 Executive Order No.10952 of July 20, 1961 15 Executive Order No. 10958 of August 14,1961 16 Proclamation No.3279 of March 10,1959 SEc. 602. Esecutive Order 10240. Executive Order No. 10242 of May 8,1951, is hereby amended: `(1) By deleting from subsection 101 (a) thereof the following: "upon the Director of the Office of Civil acad Defense Mobilization, hereisaafterreferred to as the Director,". (2) By deleting from Sections 101(c), 101(d), 102, 103, 104, 106 (preamble), 201, and 301 the following: "upon the Director of the Office of Civil and Defense Mobilization". (3) `By substituting for the words "the Director of the Office of Civil and Defense Mobilization", at eacla place where they occur in the order and are scot deleted or otherwise amended by this order, the following: "the delegate of. the Prcside:at". (4) By substituting for ties words "shall not'be delegated" in sub- section 101(d) the following: "shall not be redelegated by the delegate of the President". (5) By adding after Section 106 new Sections 107, 108, end 109, reading as follows: ` - "SEC. 107. The words `the delegate of the President' as used in this order: "(1) In respect of functions under the Act delegated or otherwise~ assigned to the Secretary of Defense, mean the Secretary of Defense. "(2) In respect of functions delegated or otherwise assigned to the Director of the Office of Emergency Planning, mean the Director of the Office of Emergency Planning. "SEc. 108. The authority conferred by Section 401(a) of the Act to emyloy part.time or temporary advisory personnel deemed neces- sary m carrying out the provisions of the Act, and delepated by the provisions of Section 101(a) of this order, shall be available as fol- lows: (1) To .the Secretary of Defense it. respect of not to exceed eighty personnel ,(including not to exceed twenty subjects of the United Kingdom and Canada), and (2) to the Director of the Office of Emergency Planning in respect of not to exceed twenty personnel (including not to exceed five subjects of the United Kingdom and `Canada). "Sxc. 109. The relevant provisions of this Part shall be subject to, the provisions of the Memorandum of the President, pertaining to conflicts of interest, dated February 9, 1982 (27 F.R. 1341fl.).'c PAGENO="0173" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 1737 Tuesday, October 2, 1962 FEDERAL REGISTER o6s~ (d) By amending Section 401 to read as follows: "Sec. 401. The approval of the. Président is hereby given for the employment of retired personnel of the armed services, pursuant to the ~rovisions of subsection 401(a) of the Act as follows: (1) By the secretary of Defense, not to exceed twenty persons, and (2) by the Director of the Office of Emergency Planning, not to exceed five persons." SEO. 603. Other orders. (a) Executive Order No. 10260 of June 27, 1951, is hereby amended by striking from Section 1 thereof the follow- ing:. "Office of Civil and Defense Mobilization, the". (b) -Executive Order No. 10346 of April 17, 1952, is hereby amended * by substituting for the reference therein to the Director of the Office of Civil and ~efense Mobilization, and for each reference therein to the Office and Defense Mobilization except that in the penultimate sentence of Section 2, the following: "the Office of Emergency Plan- nina or the Department of Defense or both, as ma~' be determined uncfer the provisions of appropriate Executive orders'. (c) Executive Order No. 10421 of December 31, 1952, is hereby amended by insertin' before the period at the end of Section 3(b) (9) thereof a comma ana the following: "including recommendations as to actions necessary to strengthen the program provided for in this - order". * (d) Executive Order No. 10529 of April 22, 1954, is hereby amended by substituting for each reference therein to the Director of the Office of Civil and Defense Mobilization the following: "the Director of the Office of Emergency Planning or the Secretary of Defense or both as may be determined under appropriate Executive orders". (a) Executive Order No. 10582 of December 17, 1954, is hereby amended by striking from Section 3(d) thereof the words "from any officer of the Government designated by the President t.o furnish such advice" and by inserting in lieu of the stricken words the following: "from the Director of the Office of Emergency Planning. In pro- viding this advice the Director shall be governed by the principle that exceptions under this section shall be made only upon a clear showing that the payment of a greater differential than the procedures of this section generally prescribe is justified by consideration of national security". . - (f) Executi~-e Order No. 10789 of November 14, 1958, is hereby ~mmended by strikin~ from Section 21 thereof the words "Office of Civil and Defense ~,?obihization". SEC. 604. Superseded orders. To the extent that the following have not heretofore been made or become inapplicable, they are hereby superseded and revoked: 1 Executive Order. No. 9981 of July 26, 1948 2 Executive Order No. 10219 of February 28, 1951 - 3 Executive Order No. 10269 of July 6, 1951 4 Executive Order No. 10438 of March 13, 1933 5 Executive Order No. 10461 of June 17, 1953 6 Executive Order No. 10524 of March 31, 1954 7 Executive Order No. 10539 of June 22, 1954 (without prejudice to final liquidation of any affairs thereunder) (8 Executive Order No. 10638 of October 10, 1955 (9 Executive Order No. 10773 of July 1, 1958 (10 Executive Order No. 10783 of September 6, 1958 (11 Executive Order No. 10902 of January 9, 1961 JOHN F. KENNEDY - Tux WurrE House, September 27, 1962. [FR. Dec. 62-9660; Filed, Sept. 2.3, 1962; 1:27 p.m.] PAGENO="0174" PAGENO="0175" SECURITY OF VESSELS AND WATERFRONT FACILITIES (Title 33, C. F. R., Parts 3,6, 121, 122, 124, 125, and 126) MARCH 1, 1967 UNITED STATES COAST GUARD TREASURY DEPARTMENT UNITED STATES GOVERNMENT PRINTING OFFICE WASHINGTON 1967 CG-239 (1739) PAGENO="0176" 1740 AMENDING SUBVERSIVE ACTIVITIES CO~~ROL ACT OF 1950 TREASURY DEPARTMENT COMMANDANT (CMC) UNITED STATES COAST GUARD U~RD 20fl6 March 1, 1967 FOREWORD This pamphlet entitled "Security of Vessels and Waterfront Facilities," CG-239, relates to the safeguarding of vessels, harbors, ports, and waterfront facilities of the United States and all territory and water, continental or insular, subject to the jurisdiction of the United States exclusive of the Canal Zone; The regulations are issued pursuant to Executive Order 10178, as amended by Executive Orders 10277 and 10352, and cai~ry out the requirements of Section 1, Title II of the Act of June 15, 1917, as amended (40 Stat. 220, 50 U.S.C. 191). The regulations in this pamphlet are copied from Chapter I of Title 33-Navigation and Navigable Waters of the Code of Federal Regulations and include material published in Subchapter A-General, Subchapter K-Security of Vessels, and SubchapterL-Security of Waterfront Facilities, which have been published in various issues of the Federal Register prior to March 1, 1967. This pamphlet replaces the prior edition of July 1, 1964, and contains requirements currently in effect. For the convenience of all concerned, the appendix contains a current listing of the descriptions and addresses of the Captains of the Port and Coast Guard districts, as well as appropriate excerpts of law from the United States Code. General authority over and responsibility for the administration and enforcement of the laws and regulations relating to security of vessels and waterfront facilities in the ueveral Coast Guard districts are vested in and imposed upon the Coast Guard District Commanders in harge of such districts. The Captains of the Port have been designated for the purpose of giving immediate direction to Coast Guard enforcement activities within the general proximity of the port in which he is situated under the general supervision of a Coast. Guard District Commander. The masters, owners, operators, and agents of vessels or other waterfront facilities have t.he primary responsibility for the protection and security of such vessels or waterfront facilities. Masters, shipowners, operators, and agents, vessels' operating forces, and other pessons affected by the require- ments for security of vessels and waterfront facilities should familiarize themselves with the requirements contained in this publication. To this end, Coast Guard personnel concerned with the administ.ration and enforcement of these laws, namely the Coast Guard J)istrict Commander and the Captain of the Port who have jurisdiction over Coast Guard enforcement activities in the general area of the port in which he is situated, will extend upon request every possibte assistance. W. J. SMrm, Adnvira~ (LS. Coast Guard, Commandant. Dist. (SDL No. 84) A: None B: n(150); e(35); g(4); d(2); b p(l) C: o(30); m(2); g(1) D: bikmr(1) F: abwx(80);cy(20);gh(lo);r(1) Lists 112 160 PAGENO="0177" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 1741 CONTROL SHEET FOR CHANGES Federal Register date Section No. Subject 94-75e 0 - 68 - pt. 2 --12 PAGENO="0178" 1742 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 CONTROL SHEET FOR CHANGES Federal Register date Section No. Subject PAGENO="0179" CONTENTS Part Page Executive Order 10173, as amended by Executive Orders 10277, 10352 and 11249 . 1 SUBCHAPTER A-GENERAL' 6 Protection and security of vessels, harbors and waterfront facilities 1 SUBCHAPTER K-SECURITY OF VESSELS' 121 Special validation endorsement for emergency service for merchant marine personnel 5 122 Safety measures 11 124 Control over movement of vessels 13 SUBCHAPTER L-SECURITY OF WATERFRONT FACILITIES1 125 Identification credentials for persons requiring access to waterfront facilities or vessels - - - 15 126 Handling of explosives or other dangerous cargoes within or contiguous to waterfront facifities 23 APPENDIX Excerpts From the United States Code 29 Title 50.-War and National Defense 29 Title 14.-Coast Guard 30 Title 18.-Crimes and Criminal Procedure 31 Title 46.-Shipping 35 Coast Guard Port Security Cards 45 Part 3-Coast Guard Districts and Captain of the Port Areas 46 Changes Made in Text Since Last Edition 57 Index 58 `The regulations in this pamphlet are copied from Title 1, Chapter 1, Code of Federal Regulations of the United States of America, as amended. (1743) PAGENO="0180" 1744 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 THE TERMINOLOGY FOR NUMBERIP~IG This is an explanation of the numbering system used in Coast Guard pamphlets containing regulations and is the same as that used in the Code of Federal Regulations. The regulations are.divided into chapters, subchapters, parts, subparts, sections, paragraphs, subparagraphs, and subdivisions. The chapters are num- bered with a Roman numeral and the subchapters are given alphabetical designations. The terminology for numbering may be described as follows: TerminoZog~, Enample Part 6 Subpart 0.01 Section 6.01-.t Paragraph 6.01-1(a) Subparagraph 6.01-1(a) (1) Subdivision _ 6.01-1(a) (1) (1) PAGENO="0181" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 1745 Subpart 6.01-Definitions Sec. 0.01-1 Commandant 0.01-2 District Commander. 6.01-3 Captain of the Port. 6.01-4 Waterfront facility. 6.01-5 Security zone. Subpart 6.04-General Provisions 6.04-1 Enforcement. 6.04-5 Preventing access of persons, articles or things to vessels, or waterfront facilities. 6.04-6 Establishing security zones; prohibitions with respect thereto. 6.04-7 Visitation search and removal. 0.04-8 Possession and control of vessels. 6.04-11 Assistance of other agencies. Subpart 6.10-ldentitcation and Exclusion of Persons From Vessels and Waterfront FacilIties 6.10-1 Issuance of documents and employment of per. sons aboard vessels. 6.10-3 Special validation of merchant marine docu~ ments. 6.10-5 Access to vessels and waterfront facilities. 6.10-7 Identification credentials. 0.10-9 Appeals. Subpart 6.12-Supervision and Control of Explosives or Other Dangerous Cargo 6.12-1 General supervision and control. 6.12-3 Approval of facility for dangerous cargo. Subpart 6.14-Security of Waterfront FacilitIes and Vessels in Fort 6.14-1 Safety measures. 0.14-2 Condition of waterfront facility a danger to vessel. Subpart 6.1 6-Sabotagó and Subversive Activity 6.16-1 Reporting of sabotage and subversive activity. 6.16-3 Precautions against sabotage. Subparl 6.1 8-Penalties 0.18-1 Violations. Subpart 6.19-Responsibiiity for Security of Vessels and Waterfront Facilities 6.19-1 PrImary responsibility. Auvuosivo: if 8.01-i to 8.19-i, inclusive, tossed snder the act of Tone 15, 1017, 40 Stat. 220, 50 U.S.C. 101, as ameaded by Pob. Law 870, 81st Cong., 2d Session, approved Augast 9, 1950. Souncc: ii 6.01-i ts 6.10-1 contained in E.0. 10173 dated October 18 1050, and ublished in Federal Register October 20. 1950, 15 ~`.R. 7005. `1007, 7000. ii 6.04-1)5). 8.10-1, and 6.10-7 were amended and if 8.14-1, 6.14-2, and 8.10-1 were added by E.0. 10277, dated Asguot 1, 1951, and published in Federal Register August 2, 1951. 18 FR. 7537, 7520. 6.19-i woo farther asaended by E.O. 10352 dated May 18, 1952. and pubiisbed in Federal Register May 21, 1952, 17 FR. 4607. H 6.01-3, 6.01-4, 6.04-5, and 6.04-7 were amended and 85 8.01-5 and 8.04-8 were added by E.O. 11249 dated October 10, 1985, 30 F.R. 13001, 13002. EXECUTIVE ORDER 10173 AS AMENDED BY EXECUTIVE ORDERS 10277, 10352, AND 11249 REGULATIONS RELATING TO THE SAFEGUARDING OF VESSELS, HARBORS, PORTS, AND WATERFRONT FACILITIES OF THE UNITED STATES By virtue of the authority vested in me by Pub- in the United States, and all territory and water, lic Law 679, 81st Congress, 2c1 Session, approved continental or insular, subject to the jurisdiction August 9, 1950, which amended section 1, Title II of the United States, exclusive of the Canal Zone, of the act of June 15 1917,40 Stat. 220 (50 U.S.C. and the said regulations shall constitute Part 6, 191), and as Presid~ent of the United States, I Subchapter A, Chapter I, Title 33 of the Code of hereby find that the security of the United States Federal Regulations; and all agencies and an- is endangered by reason of subversive activity, and thorities of the Government of the United States I hereby prescribe the following regulations relat- shall, and all state and local authorities and all ing to the safeguarding against destruction, loss, persons are urged to support, conform to, and or injury from sabotage or other subversive acts, assist in the enforcement of these regulations and accidents, or other causes of similar nature, of all supplemental regulations issued pursuant vessels, harbors, ports, and waterfront facilities thereto. SUBCHAPTER A-GENERAL PART 6-PROTECTION AND SECURITY OF VESSELS, HARBORS, AND WATERFRONT FACILITIES SUBPART 6.01-DEFINITIONS 6.01-1 Commandant. "Commandant" as used in this part., means t.he Commandant of the United States Coast Guard. 6.01-2 District Commander. "District Com- mander" as used in this part, means the officer of the Coast Guard designated by the Commandant to command a Coast Guard District. 6.01-3 CaptaIn of the Port. "Captain of the Port" as used in this part, means the officer of the Coast Guard, under the command of a District Commander, so designated by the Commandant for the purpose of giving immediate direction to Coast Guard law enforcement activities within his assigned area. In addition, the District Com- mander shall be Captain of the Port with respect to remaining areas in his District not assigned to officers designated by the Commandant as Captain of the Port. (1) PAGENO="0182" 1746 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 6.01-4 UNITED STATES COAST GUARD 6.01-4 Waterfront facility. "Waterfront fa- cility" as used in this part, means all piers, wharves, docks, and similar structures to which vessels may be secured; areas of land, water, or land and water under and in immediate proximity to them; buildings on such structures or contigu- ous to them and equipment and materials on such structures or in such buildings. 6.01-5 Security zone. `Security zone" as used in this part, means all areas of land, water, or land and water, which are so designated by the Captain of the Port for such time as he deems necessary to prevent dan~iage or injury to miy vessel or water- front facility, to safeguard ports, harbors, terri- tories, Or waters of the United States or to secure the observance of the rights and obligations of the United States. SUBPART 6.04-GENERAL PROVISIONS 6.04-1 Enforcement. (a) The rules and reg- ulations in this part shall be enforced by the Cap- tain of the Port under the supervision and general direction of the District Commander and the Com- mandant, and all authority and power vested in the Captain of the Port by the regulations in this part shall be deemed vested in and may be exer- cised by the District Commander and the Com- mandant. (b) The rules and regulations in this part may be enforced by any other officerof the Coast Guard designated by the Commandant or the District Commander. 6.04-5 Preventing access of persons, articles or things to vessels, or waterfront facilities. The Captain of the Port may prevent any person, article, or thing from boarding or being taken or placed on board any vessel or entering or being taken into or upon or placed in or upon any water- front facility whenever it appears to him that such action is necessary in order to secure such vessel from damage or injury or to prevent damage or injury to any vessel, or waterfront facility or waters of the United States, or to secure the ob- servance of rights and obligations of the United States. 6.04-6 Establishing security zones; prohibitions with respect thereto. The Captain of a Port may establish security zones subject to the terms and conditions specified in Section 6.01-5. No person or vessel shall enter a security zone without the permission of the Captain of the Port. No person shall beard or take or place any article or thing on board any vessel in a security zone without the permission of the Captain of the Port. No person shall take or place any article or thins upon any waterfront facility in any such zone without such permission. * 6.04-7. VisItation, search, and removal. The Captain of the Port may cause to be inspected and searched at any time any vessel, waterfront fa- cility, or security zone, or any person, article, or thing thereon or therein, within the jurisdiction of the United States, may place guards upon any such vessel, waterfront facility, or security zone and may remove therefrom any and all persons, articles, or things not specifically authorized by him to go or remain thereon or therein. 6.04-8. Possession and control of vessels. The Captain of the Port may supervise and control the movement of any vessel and shall take full or par- tial possession or control of any vessel or any part thereof, -within the territrial waters of the United - States under his jurisdiction, whenever it appears to him that such action is necessary in order to secure such vessel from damage or injury, or to prevent damage or injury to any vessel or water- front facility or waters of the United States, or to secure the observance of rights and obligations of the United States.. 6.04-11 Assistance of other agencies. The Captain of the Port may enlist the aid and co- operation of Federal, State, county, municipal, and private agencies to assist in the enforcement of regulations issued pursuant to this part. SUBPART 6.10-IDENTIFICATION AND EXCLUSION OF PERSONS FROM VI!SSELS AND WATERFRONT FACI1.ITIES 6.10-1 lssuance of documents and employment of persons aboard vest els. No person shall be issued a document required for employment on a merchant vessel of the United States nor shall any person be employed on a merchant vessel of the United States unless the Commandant is satisfied that the character and habits of life of such per- son are such as to authorize the belief that the presence of the individual on board would not be inimical to the security of the United States: Provided, That, the Commandant may designate categories of merchant vessels to which the fore- going shall not apply. 6.10-3 Special validation of merchant marine do~uments. The Commandant may require that all licensed officers and certificated men who are employed on other than the exempted designated categories of merchant vessels of the United States be holders of specially validated documents. The form of such documents, the conditions, and the manner of their issuance shall be as prescribed by the Commandant. The. Commandant shall revoke and require the surrender of a specially validated document when he is no longer satisfied that the holder is entitled thereto. * 6.10-5 Access to vessels and waterfront facili- ties. Any person on board any vessel or any per- son seeking access to arty vessel or any waterfront facility within the jurisdiction of the United States may be required to carry identification cre- dentials issued by or otherwise satisfactory to the (2) PAGENO="0183" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 1747 Commandant. The Commandant may define and designate those categories of vessels and areas of the waterfront wherein such credentials are required. 6.10-7 Identification credentials. The identi- fication credential to be issued by the Commandant shall be known as the Coast Guard Port Security Card, and the form of such credential, and the conditions and the manner of its issuance shall be as prescribed by the Commandant after consulta- t.ion with the Secretary of Labor. The Comman- dant shall not issue a Coast Guard Port Security Card unless he is satisfied that the character and habits of life of the applicant therefor are such as to authorize the belief that the presence of such individual on beard a vessel or within a water- front facility would not be inimical to the security of the United States. The Commandant shall re- voke and require the surrender of a Coast Guard Port Security Card when he is no longer satisfied that the holder is entitled thereto. The Com- mandant may recognize for the same purpose such other credentials as he may designate in lieu of the Coast Guard Port Security Card. 6.10-9 Appeals. Persons who are refused employment or who are refused the issuance of documents or who are required to surrender such documents, under this subpart, shall have the right of appeal, and the Commandant shall appoint Boards for acting on such appeals. Each such Board shall, so far as practicable, be composed of one Coast Guard officer, one member drawn from management, and one member drawn from labor. The members drawn from management and labor shall, upon suitable security clearance, be nominated by the Secretary of Labor. Such members shall be deemed to be employees of the United States and shall be entitled to compensa- tion under the provisions of section 15 of the act of August 2, 1946 (5 U.S.C. 55a) while performin duties incident to such `employment. The Boar shall consider each appeal brought before it and, in recommending final action to the Commandant, shall insure the appellant all fairness consistent with the safeguarding of the national security. SUBPART 6.12-SUPERVISION AND CONTROL OF EXPLOSIVES OR OTHER DANGEROUS CARGO 6.12-1 General supervision and control. The Captain of the Port may supervise and control the transportation, handling, loading, discharging, stowage, or storage of explosives, inflammable or combustible liquids in bulk, or other dangerous articles or cargo covered by the regulations en- titled "Explosives or Other Dangerous Articles on Board Vessels" (46 CFR Part 146) and the regu- lations governing tank vessels (46 CFR Parts 30 to 39, inclusive). 6.16-3 6.12-3 Approval of facility for dangerous cargo. The Commandant may designate water- front facilities for the handling and storage of, and for vessel loading and discharging, explosives, inflammable or combustible liquids in bulk, or other dangerous articles or cargo covered by the regulations referred to in section 6.12-i, and may require the owners, operators, masters, and others concerned to secure permits for such handling, storage, loading, and unloading from the Captain of the Port, conditioned upon the fulfillment of such requirements for the safeguarding of such waterfront facilities and vessels as the Com- mandant may prescribe. SUBPART 6.14-SECURITY OF WATERFRONT FACILITIES AND VESSELS IN PORT 6.14-1 Safety measures. The Commandant, in order to achieve the purposes of this Part, may prescribe such conditions and restrictions relating to the safety of waterfront facilities and vessels in port as he finds to be necessary under existing circumstances. Such conditions and restrictions may extend, but shall not be limited to, the inspec- tion, operation, maintenance, guarding, and man- ning of, and fire-prevention measures for, such vessels and waterfront facilities. 6.14-2 Condition of waterfront facility a dan- ger to vessel. Whenever the Captain of the Port finds that the mooring of any vessel to a wharf, dock, pier, or other waterfront structure would en- danger such vessel, or any other vessel, or the har- bor or any facility therein by reason of conditions existing on or about such wharf, dock, pier, or other waterfront structure, including, but not limited to, inadequate guard service, insufficient lighting, fire hazards, inadequate fire protection, unsafe machinery, internal disturbance, or unsatis- factory operation, the Captain of the Port may prevent the mooring of any vessel to such wharf, dock, pier, or other waterfront structure until the unsatisfactory condition or conditions so found are corrected, and he may, for the same reasons, after any vessel has been moored, compel the shift- ing of such vessel from any such wharf, dock, pier, or other waterfront structure. SUBPART 6.16-SABOTAGE AND SUBVERSIVE ACTMTY 6.16-1 Reporting of sabotage and subversive activity. Evidence of sabotage or subversive ac- tivity involving or endangering any vessel, harbor, port. or waterfront facility shall be reported im- mediately to the Federal Bureau of Investigation and to the Captain of the Port, or to their respec- tive representatives. 6.16-3 Precautions against sabotage. The master, owner, agent, or operator of a vessel or SECURITY OF VESSELS AND WATERFRONT FACILITIES (3) PAGENO="0184" 1748 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 waterfront facility shall take all necessary pre- cautions to protect the vessel, waterfront facility, and cargo from sabotage. SUBPART 6.18-PENALTIES 6.18-1 Violations. Section 2, Title II of the act of June 15, 1917, as amended, 50 U.S.C. 192, provides as follows: If any owner, agent, master, officer, or~person in charge, or any member of the crew of any such vessel falls to comply with any regulation or rule Issued or order given under the provisions of this title, or obstructs or inter- feres with the exercise of any power conferred by this title, the vessel, together with her tackle, apparel, fur- niture, and equipment, shall be subject to seizure and forfeiture to the United States In the same manner as merchandise is forfeited for violation of the customs revenue laws; and the person guilty of such failure, ob- struction, or Interference shall be punished by imprison- mont for not more than ten ~ears and may, in the discre- tion of the court, be fined not more than $10,000. (a) If any other person knowingly falls to comply with any regulation or rule issued or order given under the provisions of this title. or knowingly obstructs or Interferes with the exercise of any power conferred by this title, he shall be punished by imprisonment for not more than ten years and may, at the discretion of the court, be fined not more than $10,000. SUBPART 6.19-RESPON1IBILITY FOR SECURITY OF VESSELS AND WATERFRONT FACILITIES 6.19-1 Primary respnsibility. Nothing con- tained in this part shall bo construed as relloving tho masters, owners, operators, and agents of ves- sels or other waterfront facilities from their pri- mary responsibility for the protection and se- curity of such vessels oi' waterfront facilities. hARRY S. TRUMAN THE Wssrrx HousE. 6.18 UNITED SPATES COAST GUARD (4) PAGENO="0185" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 1749 (2) A person who is a United States citizen and who is not in possession of a United States sea- man's document may be employed if no person specified in subparagraph (1) of this paragraph is available as established to the satisfaction of the United States consular representative for the area, and then only after approval of the Commandant is obtained by the United States consular repre- sentative for the area or by the master of the vessel. (3) A person who is not a citizen of the United States and who is not in possession of a United States seaman's document may be employed only if no person as specified in subparagraphs (1) and (2) of this paragraph is, available as established to the satisfaction of the United States consular representative for the area and then only after the following terms and conditions are met: (i) No such person shall be employed unless he presents evidence of temporary clearance from the United States consular representative for the area; (ii) In no case shall the number of such persons employed on any one vessel exceed ten (10) percent of the total complement of the vessel, unless it is established to the satisfaction of the United States consular representative for the area that it is necessary to exceed this percentage to avoid delay to the sailing of the vessel or that the employment of persons with special qualifications as additional crewmembers is necessary in the vessel's opera- tions; and (iii) No such person shall be employed to fill the berth of a licensed officer or registered staff officer, except that if no radio officer is available as estab- lished to the satisfaction of the United States consular representative for the area, a person may be employed as radio operator in accordance with the provisions of Article 24, section 2, of the International Telecommunications Convention (Atlantic City, 1947), which reads as follows:* 2. (1) In the case of complete unavailability of the operator in the course of a sea passage, a flight or a jour- ney, the master or the person responsible for the station may authorize, solely as a temporary measure, an operator holding a certificate issued by the government of another country member of the Union (Footnote: The term `Union" means those countries which are parties to the International Telecommunications Convention] to per- form the radio communication service. (2) When it is necessary to employ as a temporary operator a person without a certificate or an operator not holding an adequate certificate, his performance as such must be limited solely to signals of distress, urgency and SUBCHAPTER K-SECURITY OF VESSELS PART 121-SPECIAL VALIDATION ENDORSEMENT FOR EMERGENCY SERVICE FOR MERCHANT MARINE PERSONNEL See. 121.01 RequIrements for special validation endorsement. 121.03 Standards. 121.05 Applications. 121.07 Approval of applicant by Commandant. 121.09 Holders of special validationendorsement. 121.11 Notlceby Commandant. 121.13 Hearing Boards. 121.15 Notice by Hearing Board. 121.17 Challenges. 121.19 Hearingprocedure. 121.21 Action by Commandant. 121.23 Appeals. 121.25 Action by Commandant after appeal. 121.27 Outstanding endorsements and applications. 121.29 Applications previously denied. Ma~ 121.01 Requirements for i dorsement. (a) Except as o this section no person shall be chant vessel of the United States e,± or over unless he is in possession of a Merchant Mariner's document bearing a special validation endorsement for emergency service. (b) The vessels described in paragraph (a) of this section include those at anchor or made fast to a dock, but not those laid up or dismantled or out of commission. (c) By "employed" and "employment" is meant the engagement of any person to fill any licensed or certificated berth on board ship whether or not under articles and includes those engaged for standby relief, or other capacities. (d) ~he following terms and conditions shall apply with respect to the employment of any per- son as a replacement or addition in the crew of any vessel described in paragraph (a) of this section at foreign ports when persons m possession of documents bearing a special validation endorse- ment for emergency service are not available as established to the satisfaction of the United States consular representative of the are~: (1) A person in possession of a United States seaman's document notbearing a special validation endorsement for emergency service may be em- ployed only after approval of the Commandant is obtained by the United States consular representa. five forthe area or by the master of the vessel. (5) PAGENO="0186" 1750 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 121.03 UNITED STATES COAST OUABD safety, messages, relating thereto, messages relating di. reetly to the safety of life, urgent messages relating to movement of the ship and essential messages relating to the navigation and safe movement of the aircraft. Per- sons employed in these cases are bound by the provisions of 508 regarding the secrecy of correspondence. (3) In all cases, such temporary operators must be re- placed as soon as possible by operators holding the certifi- cate prescribed in Sec. 1 of this article. 121.03 Standards. Information concerning an applicant for special validation endorsement for emergency service, or a holder of such endorse- ment, which may preclude a determination that his character and habits of life are such as to war- rant the belief that his presence on board vessels of the United States would not be inimical to the security of the United States, shall relate to the following: (a) Advocacy of the overthrow or alteration of the Government of the United States by uncon- stitutional means. (b) Commission of, or attempts or preparations to commit, an act of espionage, sabotage, sedition or treason, or conspiring with, or aiding or abet- ting another to commit such an act. (c) Performing, or attempting to perform, duties or otherwise acting so as to serve the in- threats of another government to the detriment of the United States. (d) Deliberate unauthorized disclosure of clas- sified defense information. (e) Membership in, or affiliation orsympathetic association with, any foreign or domestic organi- zation association, movement, group, or combina- tion o~ persons designated by the Attorney Gen- eral pursuant to Executive Order 10450; as amended. 121.05 Applications. (a) Any person legally holding a current valid license or certificate, or an applicant for such a document may make appli- cation at any Coast Guard ~farine Inspection Office for a special validation endorsement for emergency service. (b) Each Marine Inspection Office shall for- ward promptly to the Commandant each applica- tion for a special validation endorsement received by it. (c) (1) Application for special validation en- dorsement shall be made under oath in writing and shall include applicant's answers in full to inquiries with respect to such matters as are deemed by the Commandant to be pertinent to the standards set forth in Section 121.03 and to be necessary for a determination whether the character and habits of life of the applicant are such as to warrant the belief that his presence on board vessels of the United States would not be inimical to the security of the United States. (2) If an applicant fails or refuses to furnish the required information or fails or refuses to make full and complete answer with respect to all matters of inquiry, the Commandant shall hold in abeyance further consideration of the applica- tion, and shall notify the applicant that further action will not be taken unless and until the applicant furnishes the required information and fully and completely answers all inquiries directed to him. (d) (1) If, in the judgment of the Comman- dant, an application doei; not contain sufficient in- formation to enable hini to satisfy himself that the character and habits of life of the applicant are such as to warrant the belief that his presence on board vessels of the United States would not be inimical to the security of the United States, the Commandant may require the applicant to furnish, under oath in writing or orally, such fur- ther information as he deems pertinent to the standards set forth in Section 121.03 andnecessary to enable him to make ouch a determination. (2) If an applicant fails or refuses to furnish such additional information, the Commandant shall hold in abeyance further consideration of the application, and shall notify the applicant that further action will not be taken unless and until the applicant furnishes such information. (e) Upon receipt, this application and such further information as the Commandant may have required shall be referred except in those instances where action on an app'ication is held in abey- ance pursuant to paragraphs (c) (2) or (d) (2) of this section, to a committee composed of a representative of the Legal Division, of the Mer- chant Vessel Personnel Division, and of the In- telligence Division, Coast Guard Headquarters. The committee shall p:repare an analysis of the available information and shall make recommen- dations for action by the Commandant. (COFE 59-62,25 P.R. 1588, P~(). 24, 1960) 121.07 Approval of applicant by Commandant. (a) If the Commandant is satisfied that the char- acter and habits of life of the applicant are such as to warrant the belief that his presence on board vessels of the United States would not be inimical to the security of the United States, he will direct that a special validation endorsement be entered on the applicant's Merchant Mariner's Document. (b) If the Commandant is not satisfied that the character and habits o:f life of the applicant are such as to warrant the belief that his presence on board vessels of the United States would not be inimical to the security of the United States, he wifi notify the applicant in writing as provided for in Section 121.11. 121.09 Holders of ipecial validation endorse- ment. (a) Whenever the Commandant is not satisfied that the character and habits of life of a holder of a document bearing a special validation endorsement are such as to warrant the belief that his presence.on board vessels of the United States would not be inimical to the security of the United States, he will request the holder to furnish under (0) PAGENO="0187" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1050 1751 oath in writing such information as he deems pertinent to the standards set forth in Section 121.03 and necessary for a determination on this issue. (b) If the holder fails or refuses to furnish such information within thirty (30) days after receipt of the Commandant's request, the Com- mandant may issue the written notice provided for in Paragraph 121.11 (a). (c) The holder's faflure or refusal to furnish such information shall preclude a determination that the holder's character and habits of life are such as to warrant the belief that his presence on board vessels of the United States would not be~inhnical to the security of the United States. (d) Upon receipt of such information as the Commandant may have required, the procedure prescribed in Paragraph 121.05(e) shall be fol- lowed. (e) If the Commandant is satisfied that the character and habits of life of the holder are such as to warrant the belief that his presence on board vessels of the United States would not be inimical to the security of the United States, he shall no- tify the holder accordingly. (f) If the Commandant is not satisfied that the character and habits of life of the holder are such as to warrant the belief that his presence on board vessels of the United States would not be inimical to the security of the United States, he shall notify the holder in writing as provided for in Section 121.11. (COFE 59-63, 25 P.R. 1589, Feb. 24, 1960) 121.11 Notice by Commandant. (a) The no- tice provided for in Sections 121.07 and 121.09 shall contain a statement of the reasons why the Commandant is not satisfied that the character and habits of life of the applicant or holder are such as to warrant the belief that his presence on board vessels of the United States would not be inimical to the security of the United States. Such notice shall be as specific and detailed as the interests of national security shall permit and shall include pertinent information such as names, dates, and places in such detail as to permit reasonable answer. (b) The applicant or. holder shall have 20 days from the date of receipt of the notice of reasons to file written answer thereto. Such answer may include statements or affidavits by third parties or such other documents or evidence as the applicant or holder deems pertinent to the matters in question. (c) Upon receipt of such answer the procedure prescribed in Paragraph 121.05 (e) shall be followed. (d) If the Commandant is satisfied that the character and habits of life of the applicant or holder are such as to warrant the belief that his presence on board vessels of the United States 121.17 would not be inimical to the security of the United States, he shall, in the case of an applicant, direct that a special validation endorsement be entered on his Merchant Mariner's Document or, in the case of a holder, notify him accordingly. (e) If the Commandant is not satisfied that the applicant's or holder's character and habits of life are such as to warrant the belief that his pres- ence on board vessels of the United States would not be inimical to the security of the United States, the Commandant shall refer the matter to a Hear- ing Board for hearing and recommendation in accordance with the provisions of this part. 121.13 Hearing Boards. The Commandant may establish a Hearing Board in each Coast Guard District. The Commandant shall designate for each Hearing Board a Chairman, who shall be, so far as practicable an officer of the Coast Guard. The Commandant shall designate, so far as prac- ticable, a second member from a panel of persons representing labor named by the Secretary of Labor, and a third member from a panel of persons rep~resenting management named by the Secretary of Labor. 121.15 Notice by Hearing Board. Whenever the Commandant refers a matter to a Hearing ]3oard, the Chairman shall: (a) Fix the time and place of the hearing; (b) Inform the applicant or holder of the names of the members of the Hearing Board, their occupations, and the businesses or organizations with which they are affiliated, of his privilege of challenge, and of the time and place of the hearing. (c) Inform the applicant or holder of his priv. ilege to appear before the Hearing Board in per. son or by counsel or representative of his choice, and to present testimonial and documentary evi- dence in his behalf, and to cross-examine any wit- nesses appearing before the Board; and (d) Inform the applicant or holder that if withm 10 days after receipt of the notice he does not request an opportunity to appear before the Hearing Board, either in person or by counsel or representative, the Hearing Board will proceed without further noticeto him. 121.17 Challenges. Within five days after re- ceipt of the notice described in Section 121.15 the applicant or holder may request disqualification of any member of the Hearing Board on the grounds of personal bias or other cause. The request shall be accompanied by an affidavit setting forth in detail the facts alleged to constitute grounds for disqualification. The affidavit may be supple- mented by an oral presentation if desired. If after due consideration the Chairman believes a. chal- lenged member is qualified notwithstanding the challenge, he shall notify the person who made the challenge and arrange to proceed with the hearing. If the person who made the challenge SECURITY OF VESSELS AND WATERFRONT FACILITIES (7) PAGENO="0188" takes exception to the ruling of the Chairman, the exception and data relating to the claim of dis- qualification shall be made a matter of record. If the Chairman finds that there is reasonable ground for disqualification he shall furnish the person who made the challenge with the name of an alternate in lieu of the challenged member and arrange to proceed with the hearing. In the event the Chairman is challenged, he shall forthwith notify the Commandant, furnishing the grounds for the claim of disqualification and the Com- mandant shall act upon the chal'enge in accord- ance with the foregoing procedure. In addition to the right of challenge for cause, a person who has requested a hearing shall have two peremptory challenges, one challenge for the management member and one challenge for the labor member of the Hearing Board. Should the management member .be so challenged, the person who made the challenge may elect to have the management mem- ber replaced by another management member or by a member not representing either management or labor; if the member peremptorily challenged represents labor, the person who made the chal- lenge may elect to have the labor member replaced by another labor member or by a member not representing either management or labor. 12L19 Hearing procedure. ~(a) Hearing shall be conducted in an orderly manner and in a serious, business-like atmosphere of dignity and decorum and shall be expedited as much as possible. (b) The hearing shall be in open or closed session at the option of the applicant or holder. (c) Testimony before the Hearing Board shall be given under oath or affirmation. (d) The Chairman of the Hearing Board shall inform the applicant or holder of his right to: (1 Participate in the hearing; (2 Be represented by counsel of his choice; (3 Present witnesses and offer other evidence in his own behalf and in refutation of the reasons set forth in the Notice of the Commandant; and (4) Cross-examine any witnesses offered in sup- port of such reasons. (e) Hearings shall be opened by the reading of the Notice of the Commandant and the answer thereto. Any statement and affidavits filed by the applicant or holder may be incorporated in the record by reference. (f) The Hearing Board may, in its discretion, mvite any person to appear at the hearing and testify. However, the Board shall not be bound by the testimony of such witness by reason of hav- ing called him and shall have full right to cross- examine the witness. Every effort should be made to produce material witnesses to testify in support of the reasons set forth in the Notice of the Corn- .mandant, in order that such witnesses may be confronted and cross-examined by the applicant or holder. (g) The applicant or holder may introduce such evidence as may be relevant and pertinent. Rules of evidence shall rtotbebindingon the Hear- ing Board, but reasonable restrictions may be im- posed as to the relevancy, competency and materiality of matters considered. If the appli- cant or holder is, or may be, handicapped by the non-disclosure to him of confidential sources, or by the failure of witnesses to appear, the Hearing Board shall take the fact into consideration. (h) The applicant or holder or his counsel Or representative shall have the right to control the sequence of witnesses called by him. (i) The Hearing Board shall give due consid- eration to documentary evidence developed by in- vestigation, including membership cards, petitions bearing the applicant's or holder's signature, books, treatises or artictes written by the applicant or holder and testimony by the applicant or holder before duly constituted authority. (j) Complete verbatim stenographic transcrip- tion shall be made of the hearing by qualified re- porters and the transcript shall constitute a per- manent part of the record. Upon request, the applicant or holder or his counsel or representa- tive shall be furnished, without cost, a copy of the transcript of the bearing. (k) The Board shall reach its conclusion and base its determination on information presented at'the hearing, together with such other informa- tion as may have been developed through investi- gations and inquiries or made available by the applicant or holder., (1) If the applicart or holder fails, without good cause shown to the satisfaction of the chair- man, to appear personally or to be represented be- fore the Hearing Board, the Board shall proceed with consideration of the matter. (m) The recommendation of the Hearing Board shall be in writing and shall be signed by all members of the Board. The Board shall for- ward to the Commanfunt, with its recommenda- tion, a memorandum of reasons in support thereof. Should any member be in disagreement with the majority a dissent should be noted setting forth the reasons therefor. The recommendation of the Board together with the complete record of the case, shall be sent to ~he Commandant as expedi- tiously as possible. 121.21 Action by Commandant. (a) If, upon receipt of the Board's; recommendation, the Com- mandant is satisfied that the character and habits of life of the applicant or holder are such as to warrant the belief that his presence on board ves- sels of the United States would not be inimical to the secñrity of the United States, he shall, in the case of an applicant, direct that a special valida- tion endorsement be entered on his Merchant Mariner's Document, or, in the case of a holder, notify him accordingly. 1752 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 121.19 v~n'xi STATES COAST GUABD (8) PAGENO="0189" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 1753 (b) If, upon receipt of the Board's recom- mendation, the Commandant is not satisfied that the character and habits of life of the applicant or holder are such as to warrant the belief that his presence on board vessels of the United States would not be inimical to the security of the United States, the Commandant shall: (1) In the case of an applicant for special vali- dation endorsement, notify him of the Comman- dant's refusal to enter such endorsement; (2) In the case of an applicant for a Merchant Mariner's Document, notify him of the Comman- dant's refusal to issue such document; or (3) In the case of a holder, revoke and require the surrender of his special validation endorse- ment. (c) Such applicant or holder shall be notified of his right, and shall have 20 days from the re- ceipt of such notice within which, to appeal under this part. 121.23 Appeals. (a) The Commandant shall establish at Coast Guard Headquarters, Washing- ton, D. C., an Appeal Board to hear appeals pro- vided for in this part. The Commandant shall designate for the Appeal Board a Chairman, who shall be, so far as practicable, an officer of the Coast Guard. The Commandant shall designate, so far as practicable, a member from a panel of persons representing management nominated by the Secretary of Labor, and a member from a panel of persons representing labor nominated by th~ Secretary of Labor. The Commandant shall in- sure that persons designated as Appeal Board members have suitable security clearance. The Chairman of the Appeal Board shall make all ar- rangements incident to the business of the Appeal Board. (b) If an applicant or holder appeals to the Ap- peal Board within 20 days after receipt of notice of his right to appeal under this part, his appeal shall be handled under the same procedure as that specified in Section 121.15 and the privilege of 121.29 challenge may be exercised through the same pro- cedure as that specified in Section 121.17. (c) Appeal Board proceedings shall be con- ducted in the same manner as that specified in Section 121.19. 121.25 Action by Commandant after appeal. (a) If, upon receipt of the Appeal Board's recom- mendation, the Commandant is satisfied that the character and habits of life of the applicant or holder are such as to warrant the belief that his presence on board vessels of the United States would not be inimical to the security of the United States, he shall in the case of an applicant, direct that a special validation endorsement be en- tered on his Merchant Mariner's Document, or, in the case of a holder, notify him accordingly. (b) If, upon receipt of the Appeal Board's recommendation, the Commandant is not satisfied that the character and habits of life of the appli- cant or holder are such as to warrant the belief that his presence on board vessels of the United States would not be inimical to the security of the United States, the Commandant shall notify the applicant or holder that his appeal is denied. 121.27 Outstanding endorsements and appli- cations. (a) All special validation endorsements for emergency service entered upon Merchant Mariner's Documents will be accepted as valid until canceled, revoked, or suspended by proper authority. (b) A person who has filed an application for a Merchant Mariner's Document bearing a special validation endorsement for emergency service and who has not received such an endorsement prior to May 1, 1956, shall submit a new application in ac- cordance with the requirements of this part. 121.29 Applications previously denied. A person who has been denied a Merchant Mariner's Document bearing a special validation endorse- ment for emergency service, before May 1, 1956, may file a new application for such an endorse- ment in accordance with the requirements of this part. SECURITY OF VESSELS AND WATERFRONT FACILITIES (9) PAGENO="0190" PAGENO="0191" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 1755 PART 122-SAFETY MEASURES 122.10 Atomic attack instructions for merchant vessels in port. A placard (Form CG 3216) con- taining atomic attack instructions for merchant vessels in port has been prepared for the informa- tion and assistance of persons on board merchant vessels. When given to the master of a vessel by the Coast Guard, the placards (Form CG 3256) shall be posted in conspicuous places in the pilot- house, engineroom, and in the seamen's firemen's, and steward's departments of the vesseL 122.oi General. 122.10 Atomic attack Instructions for merchant vessels in port. Auiasairr; 1* 122.01 and 122.10 iaaued under sec. 1, 40 Stat. 220 as amended; 50 U. 8. C. 191; 5. 0. 10173, 15 F. R. 7005, 3 CFfi. 1950 5upp., as amended b E. 0. 10277 16 F. 5. 7537 3 CF1t, 1951 Sup ., 5. 0. 10352. 17 F. 5. 4807, ~ CFR. 1952 Sup SOuacs §5 122.01 and 122.le costaiaed in COFE 52-11, 17 F. 5. 2183, Mar. 13.1952. 122.01 General. The regulations in this part require additional safety precautions for vessels in accordance with Section 6.14-1 of this chapter. (11) PAGENO="0192" PAGENO="0193" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 1757 PART 124-CONTROL OVER MOVEMENT OF VESSELS 124.01 General. 124.10 Advance notice of vessel's time of arrival to Cap tam of the Port. 124.14 Advance notice of arrival of vessel laden with ex- plosives or certain specified dangerous cargoes. 124.16 Advance notice of fire or other abnormal condition on arriving vessel. 124.20 Penalties for violations. AuTrissiry: §1 124.01 sad 124.10 lsssed under sec. 1, 40 Stst. 220 Os amended; 50 U.S.C. 191; 5.0. 10113, Oct. 10, 1950, 15 FR. 7005, 3 CFR. 1950 Sspp. E.0. 10277, Aug. 1, 1951, 16 F.R. 7537, 3 CFR, 1951 Supp., 5.0. 10353, Msy 19, 1952, 17 FR. 4007, 3 CFR, 1952 Sspp. Sauncn: 51 124.01 to 124.10 contaIned In CGFR 55.6, 20 FR. 1532, Mar. 12, 1955, escept as otherwIse nsted. 124.01 General. The regulations in this part implement the general enforcement provisions in Executive Order 10173, as amended, and desig- nated Sections 6.04-1 to 6.04-11 of this chapter. 124.10 Advance notice of vessel's time of ar- rival to Captain of the Port. (a) The master or agents of every registered vessel of the United States, and every foreign vessel arriving at a United States port or place from a port or place outside the United States, or any such, vessel destined from one port or place in the United States to another port or place in the United States, shall give at least 24 hours' advance notice of arrival to the Captain of the Port at every port or place where the vessel is to arrive, except as follows: (1) Registered United States pleasure vessels and registered United States fishing vessels are not required to suhmit advance notice of arrival report. (2~ When the port of arrival is not located within the geographical area assigned to a particu- lar Captain of the Port, this advance notice of time of arrival shall be made to the Commander of the Coast Guard District in which such port or place is located. (3) When the arrival is a direct result of the operation of "force majeure," and it is not pos- sible to give at least 24 hours' advance notice of time of arrival, then advance notice as early as practicable shall be furnished. (4) `When the vessel, while in United States waters, does not navigate any portion of the high sea, i.e., does not navigate beyond the low water mark along the coasts or beyond the waters con- tained within the headlands of the United States. (5) When a vessel is engaged upon a scheduled route if a copy of the schedule is filed with tile Captain of the Port for each port of call named in the schedule and the times of arrival at each such port are adhered to. (6) `When the master of a merchant vessel (ex- cept ott a coastwise voyage of 24 hours or less) reports in accordance with the U.S. Coast Guard's voluntary Automated Merchant Vessel Report (AMVER) System, he shall be considered to be in constructive compliance with the requirements of paragraph (a~ of this section and no additional advance notice of vessel's arrival reports to the Captain of the Port is required. The master or agent of a vessel on coastu-ise voyages of 24 `hours or less shall report the advance notice of vessel's arrival to the Captain of the Port at next port of call prior to or upon departure from port. (7)For that vessel.which is engaged in operations in and out of the same port to sea and return with- out. entering any other port, or on coastwise voy- ages betw-een ports in the same Coast Guard District, os on voyages between ports in the First, Ninth, Thirteenth, or Seventeenth Coast Guard Districts and adjacent Canadian ports, or between ports of the Commonwealth of Puerto Rico and ports in the Lesser Antilles, or between ports in the Lesser Antilles, or between ports ~n the east coast of Florida and the Bahama Islands, the Coast Guard District Commander having juris- tlict.ion may, when no reason exists which renders such action prejudicial to the rights and interests of the United States, prescribe conditions under which such vessels may be considered by the Cap- twsns of the Port as `being `in constructive compli- ance with the requirements of this section. (8) A westbound vessel which is to proceed to or through United States Ivaters of the St. Law- rence River and/or the Great Lakes shall be sub- ject to compliance with paragraph (b) of this section. (b) The master or agent of every vessel other than vessels of United States or Canadian na- tionality engaged in the coastal trade of their respective countries or in trade between their two countries without calling at any other country en route, when proceeding westbound to United States Ivaters of the St. Lawrence River and/or the Great Lakes shall: (1) At least 24 hours in advance of the vessel's arrival at the Snell Lock, Massena, New York, advmse the Commander, Ninth Coast Guard Dis- trict, Cleveland, Ohio, of estimated time of ar- rival of such vessel at the Sneil Lock. (2) In addition, at least 24 hours in advance of the vessel's arrival at the first United States port- of-call, advise the Commander, Ninth Coast Guard District, Cleveland, Ohio, of the estimated time of arrival at that port. 94-756 0 - 68 - pt. 2 --13 (13) PAGENO="0194" 1758 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 NOTE: For the information of those affected by requirements is 33 CFR Part 124 to file advance sotice of time of arrival with the local Captain of the Port or the Coast Guard District Com- mander, the addresses and d.eacri (loss of Coast Guard Districts. as well as Captain of the Port Odices and port arean are included in the appendix. (See pages 48 through 55.) (5) A master or agent of a vessel who files a copy of the scheduled route with the Commander, Ninth Coast Guard District, Cleveland, Ohio, at least 24 hours prior to arrival at Snell Lock, and who includes in the schedule the estimated time of arrival at the Snell Lock, Massena, N.Y., shall be considered to be in constructive compliance with requirements of subparagraph (1) of this para- graph and no additional advance notice of the vessel's arrival at the Snell Lock is required. Like- wise, a master or agent of such vessel who indicates in `this schedule the name of the first intended United States port of call and estimated time of ar- rival at that port shall be considered in construc- tive compliance with subparagraph (2) of this paragraph and no additional advance notice of ar- rival is required. (6) When the arrival is a direct result of the operation of "force majeure," and it is not possible to give at least 24 hours advance notice of time of arrival, then advance notice as early as practicable shall be furnished. 124.14 Advance notice of arrival of vessel laden with explosives or certain specified danger- ous cargoes. (a) The master, agent, or person in charge of any domest:ic or foreign vessel which is bound for a port or place in the United States and which is carrying as cargo any of the dangerous cargoes described in this paragraph, whether for discharge in the United States or not, shall, at least 24 hours in advance of arrival at each port or place, notify the Captain of the Port or the Com- mander of the Coast Guard District in which such port or place is located concerning the amount and location of stowage oii board the vessel of any of the following: (1) Explosives, Cliss A (commercial or mili- tary). (2) Oxidizing materials for which a special peru mit for water transportation is required' by 46 CFR 146.22. (3) Radioactive m~terials for which a special approval by the Commandant for water traaspor- tation is required by 46 CFR 146.25-30. (b) When the arrival is a direct result of "force majeure," and it is nct possible to give at least 24 hours' advance notice, then advance notice as early as possible shall be furnished. (CGFR 64-17, 29 FR. 5277, Apr. 17, 1964) 124.16 Advance notice of fire or other abnor- mal condition on arriving vessel. (a) The master, agent, or person in charge of any domestlc or for- eign vessel which is bound for a port or place in the United States shall give notice to the Captaln of the Port or the Colnmander of the Coast Guard District in which such port or place is located as early as possible in advance of arrival of any fire or other abnormal condition which may jeopardize the vessel's safety or t;hat of other vessels or facili- ties in port. (CGFR 64-17, 29 FR, 5277, Apr, 17, 1964) 124.20 Penalties for violationa. Failure to give advance notice will subject the master or agents of a vessel to the penalties of fine and im- prisonment, as well as subject the vessel to seizure and forfeiture, as provided in section 2, Title II of the Act of June 15, 1957, as amended, 50 U.S.C. 192. In addition, such failure may result in delay in the movement of the vessel from the harbor entrance to her facility destination within the particular port. (CGFR 60-15,25 F,R, 2666, Mar, 30, 1960) 124.14 UNITED STATES COAST GUARD (4) A master of a vessel who re~orts in ac- cordance with the U.S. Coast Guard s voluntary Automated Merchant Vessel Report (AMVER) System and who includes in this report an es- timated time of arrival at the Snell Lock, Mas- sena, New York, shall be considered to be in con- structive compliance with the requirements of subparagraph (1) of this paragraph and no ad- ditional advance notice of vessel's arrival at the Snell Lock is required: Likewise a master of such vessel who indicates in this report the name of the first intended United States port of call and estimated time of arrival at that port shall be considered in constructive compliance with sub- paragraph (2) of this paragraph and no ad- ditional advance notice of arrival is required. (56-54, 21 F,R. 9561, Dcc, 4, 1956) (CGFR 55-33, 20 FR. 5646, Aug. 5, 1955. CGFR 58-24, 21 FR, 9565, Dec. 4, 1956. CGFR 62-24, 27 F,R, 7823, Aug, 8, 1962. CGFR 63-26, 28 F,R, 5297, Stay 29, 1963. CGFR 63-60, 28 F,R. 10819, Oct 9, 1963, CGFR 66-32, 31 FR. 10324, July 30, 1966) (14) PAGENO="0195" Sec. 125.01 Commandant. 125.03 District Commander. 125.05 Captain of the Port. 125.06 Western rivers. 125.07 Waterfront facility. 125.08 Great Lakes. 125.09 Identification credentials. 125.11 Form of Coast Guard Port Security Card. 125.12 Period of validity of Coast Guard Port Security Cards. 125.13 Captain of the Port Identification Cards. 125.15 Access to waterfront facilities, and port and harbor areas, Including vessels and harbor craft therein. 125.17 Persons eligible for Coast Guard Port Security Cards. 125.19 Standards. 125.21 ApplicatIons. 125.23 UnIted States citizens. 125.25 Aliens. 125.27 Sponsorship of applicant. 125.29 InsufficIent Information. 125.31 Approval of applicant by Commandant. 125.33 Holders of Coast Guard Port Security Cards. 125.35 NotIce by Commandant. 125.37 Hearing Boards. 125.39 NotIce by Hearing Board. 125.41 Challenges. 125.43 Hearing procedure. 125.45 Action by Commandant. 125.47 Appeals. 125.49 Action by Commandant after appeal. 125.51 Replacement of lost Coast Guard Port Security Card. 125.53 RequIrements for credentials; certain vessels operating on navigable waters of the United States (Including the Great Lakes and Western Rivers). 125.55 OutstandIng Port Security Card Applications. 125.57 ApplIcations previously denied. Auinoarrc: 5~ 125.01 ts 125.57 Issued under sec. 1, 40 Stat. 220, as amended; 50 U.S.C. 191; 8.0. 10173, 15 FR. 7005, 3 CFR, 1950 Sap ., as amended by E.0. 10277, 16 FR. 7537, 3 CFR, 1951 Supp., 8.0. 10382, 17 FR. 4807, 3 CFR, 1952 Supp. Inter~ pret or apply; 8.5. 4517, as amended. 4518, as amended, sec. 19, 23 Stat. 58, as amended, sec. 2, 23 Stat. 118. as amended, sec. 7, 49 Stat. 1938, as amended; 46 U.S.C. 570, 571, 172 2, 889. Sounce: II 121.01 to 125.57 contaIned In COFR 111-15, 21 FR. 2940, May 3, 1956. except as otherwise noted. 125.01 Commandant. The term "Comman- dant" means Commandant of the Coast Guard. 125.03 District Commander. The term "Dis- trict Commander" means the officer of the Coast Guard designated b~ the Commandant to com- mand a Coast Guard District. 125.05 Captain of the Port. The term "Cap- tain of the Port" means the officer of the Coast Guard, under the command of a District Com- mander, so designated by the Commandant for the purpose of givmg immediate direction to Coast Guard law enforcement activities within the general proximity of the port in which he is situated. 125.06 Western rivers. The term "western rivers" as used in the regulations in this subchap- ter shall include only the Rod River of the North, the Mississippi River and its tributaries above the Huey P. Long Bridge, and that part of the Atchafalaya River above its junction with the Plaquemine-Morgan City alternate waterway. (CGFR 57-52, 22 F. It.. 10301, Dec. 20, 1957) 125.07 Waterfront facility. The term "water- front facility," as used in this subchapter, means all piers, wharves, docks, and similar structures to which vessels may be secured, buildings on such structures or contiguous to them, and equipment and materials on such structures or in such buildings. 125.08 Great Lakes. The term "Great Lakes" as used in the regulations in this subchapter shall include the Great Lakes and their connecting and tributary waters. (CGFR 57-52, 22 F. R. 10301, Dec. 20, 1957) 125.09 IdentifIcation credentials. The term "Identification credentials," as used in this sub- chapter means any of the following: (a) óoast Guard Port Security Card (Form CG 2514). (b) Merchant Mariner's Document bearing spe- cial validation endorsement for emergency service. (c) Armed Forces Identification Card. (d) Identification credentials issued by Federal Law enforcement and intelligence agencies to their officers and employees (e.g. Department of the Treasury, Department of ~ustice, Federal Communications Commission). (e) Identification credentials issued to public safety officials (e. g., police, firemen) when acting within the scope of their employment. (f) Such other identification as may be ap- proved by the Commandant from time to time. 125.11 Form of Coast Guard Port Security Card. The Coast Guard Port Security Card issued by the Coast Guard under the provisions of this sub- chapter shall be a laminated card bearing photo- graph, signature, fingerprint, and personal de- scription of the holder, and other pertinent data. 125.12 Period of validity of Coast Guard Port Security Cards. (a) The Coast Guard Port Secu- rity Card (Form CG-2514) shall be valid for a period of eight years from the date of issuance thereof unless sooner suspended or revoked by proper authority. On the first day after eight years from the date of issuance, the Coast Guard ~`Port Security Card (Form CG-2514) is hereby declared invalid and shall be considered null and void for all purposes. AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 1759 SUBCHAPTER L-SECURITY OF WATERFRONT FACILITIES PART 125-IDENTIFICATION CREDENTIALS FOR PERSONS REQUIRING ACCESS TO WATERFRONT FACILITIES OR VESSELS (15) PAGENO="0196" 1760 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 (b) The holder of a Coast Guard Port Secu- rity Card, which is about to expire or has expired, may apply for a new Coast Guard Port Securit Card in accordance with the procedures set fort in Section 125.21. In the event the applicant's Coast Guard Port Security Card has expired, such card shall accompany the application for a new Coast Guard Port Security Card. In the event the applicant is holding a valid Coast Guard Port Security Card at the time he submits his appli- cation for a new card, such person shall surrender the old or expired Coast Guard Port Security Card at the time he is issued a new Coast Guard Port Security Card. In the event the old Coast Guard Port Security Card was lost, stolen, or destroyed, then the applicant shall comply with the provisions in Section 125.51, regarding the replacement of a lost Coast Guard Port Security Card and the new card issued as a replacement for a lost card which has expired or is about to expire shall bear a current issuance date. (COiR 58-52, 23 FR. 9751, Dec. 1.8, 1058) 125.13 Captain of the Port Identification Cards. Captain of the Port Identification Cards issued under the form designation "Form CG 2514" prior to the revision of August 1950 were declared invalid by a notice published in the FEDERAL REGIsTER on September 11, 1946 (11 F.R. 10103), which declaration is hereby reaffirmed. 125.15 Access to waterfront facilities, and por) and harbor areas, including vessels and harbor craft therein. (a) The Commandant will, from time to time, direct Captains of the Port of certain ports to prevent access of persons who do not possess one or more of the identification creden- tials listed in Section 125.09 to those waterfront facilities, and port and harbor areas, including vessels and harbor craft therein, where the follow- ing shipping activities are conducted: (1) Those vital to the Military Defense Assist- .ance Program. (2) Those pertaining to the support of U. S. military operations. (3) Those pertaining to loading and unloading explosives and other dangerous cargo. (4) Those essential to the interests of national security and defense, to prevent loss, damage or injury, or to insure the observance of rights and obligations of the United States. (b) No person who does not possess one of the identification credentials aforesaid shall enter or remain in such facilities, or port or harbor areas, including vessels and harbor craft therein. (c) The Captain of the Port shall give local public notice of the restriction of access to water- front facilities, and pert andharbor areas, includ- ing vessels and harbor craft therein, as far in advance as practicable, and shall cause such facili- ties and areas to be suitably marked as to such restriction. 125.17 Persons eligible for Coast Guard Port. Security Cards. (a) (Jnly the following persons may be issued Coast Guard Port Security Cards: (1) Persons regularly employed on vessels or on waterfront facilities. (2) Persons having regular public or private business connected with the operation, mainte- nance, or administration of vessels, their cargoes, or waterfront facilities;. (b) A holder of a Merchant Mariner's Docu- ment, Validated for Emergency Service, shall not. be issued a Port Security Card, unless he sur- renders the Merchant Mariner's Document to the Coast Guard. In this connection, see Section 125.09. (CGFR 62-39, 27 P.R. 13215, Nov. 15, 1062) 125.19 Standards. InforIziation concerning an applicant for a Coast Guard Port Security Card, or a holder of such card, which may preclude a determination that his character and habits of life are such as to warrant the belief that his presence on waterfront facilities, and port and harbor areas, includi:ri~ vessels and harbor craft therein, would not be inimical to the security of the United States, shall relate to the following: (a) Advocacy of the overthrow or alteration of the Government of the United States by uncon- stitutional means. (b) Commission of, or attempts or preparations to commit, an act of Ispionage, sabotage, sedition or treason, or conspiring with, or aiding or abet- ting another to commA such an act. ~c) Performing, or attempting to perform, duties or otherwise acting so as to serve the inter- ests of another government to the detriment of the United States. (d) Deliberate unauthorized disclosure of clas- sified defense informistion. (e) Membership hi, or affiliation or sympa- trhetic association wi;;h, any foreign or domestic organization, association, movement, group, or combination of persons designated by the At- torney General pursuant to Executive Order 10450~ as amended. (f) Having been adjudged insane, having been legally committed to an insane asylum, or treated for serious mental or neurological disorder, with- out evidence of cure. (~) Having been convicted of any of the fol- lowmg offenses, indicative of a criminal tendenc potentially dangerous to the security of suc waterfront facilities and port and harbor areas, including vessels and harbor ciaft therein; arson, unlawful trafficking in drugs, espionage, sabotage, or treason. (h) Drunkenness on the job or addiction to the use of narcotic drugs, without adequate evidence of rehabilitation. (i) Illegal presence in the United States, its territories or possessions; having been found finally subject to deportation order by the United States Immigration and Naturalization Service. 125.13 UNITED STATES COAST GUARD scesa 56-15, 21 FR. 2940, May 3, 1956. COPE 58-43, 23 FR. 8542. Nov. 1, 1958) (10) PAGENO="0197" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 1761 125.21 ApplIcations. (a) (1) Application for a Coast Guard Port Security Card shall be made under oath in writing and shall include applicant's answers in full to inquiries with respect to such matters as are deemed by the Commandant to be pertinent to the standards set forth in Section 125.19, and to be necessary for a determination whether the character and habits of life of the applicant are such as to warrant the belief that his presence on waterfront facilities, and port and harbor areas, including vessels and harbor craft therein, would not be inimical to the security of the United States. (2) The application also shall include appli- cant's complete identification, citizenship record, personal description, military record, if any, and a statement of the applicant's sponsor certifying the applicant's employment or union membership and that applibant s statements are true and correct to the best of sponsor's knowledge. (3) The application shall be accompanied b two unmounted, dull finish photographs, 1 inc x 15/ inches, of passport type, taken within one year of the date of application. The photograph shall show the full face with the head uncovered and shall be a clear and satisfactory likeness of the applicant. It shall portray the largest image of the head and upper shoulders possible within the dimensions specified. (4) Fingerprint records on each applicant shall be taken by the Coast Guard at the time applica- tion is submitted. (5) The applicant shall present satisfactory proof of his citizenship. (6) The applicant shall indicate the address to which his Coast Guard Port Security Card can be delivered to him by mail. Under special circum- stances the applicant may arrange to call in person for the Coast Guard Port Security Card. (7) The applicant shall present his application, in person, to a Coast Guard Port Security Unit designated to receive such applications. Such units will be located in or near each port where Coast Guard Port Security Cards are required. Each Captain of the Port shall forward promptly to the Commandant each application for a Coast Guard Port Security Card received by him. (b) If an applicant fails or refuses to furnish the required information or to make full and complete answer with respect to all matters of in- quiry, the Commandant shall hold in abeyance further consideration o~.the application, and shall notify the applicant that further act,ion will not be taken unless and until the applicant furnishes the required information and fully and completely answers all inquiries directed to him. 125.23 United States citizens. Acceptable evi- dence of United States citizenship is described in this section in the order of its desirability; how- 125.25 ever, the Coast Guard will reject any evidence not believed to be authentic; (a) Birth certificate or certified copy thereof. (b) Certificate of naturalization. This shall be presented by all persons claiming citizenship through naturalization. (c) Baptismal certificate or parish record re- corded within one year after birth. (d) Statement of a practicing physician certi- fying that he attended the birth and that he has a record in his possession showing the date and place of birth. (e) United States passport. (f) A commission in one of the armed forces of the United States, either regular or reserve; or satisfactory documentary evidence of having been commissioned in one of the armed forces subse- quent to ~January 1, 1936, provided such com- mission or evidence shows the holder to be a citizen. (g) A continuous discharge book, or Merchant Mariner's Document issued by the Coast Guard which shows the holder to be a citizen of the United States. (h) If an applicant claiming to be a citizen of the United States submits a delayed certificate of birth issued under a State's seal, it may be ac- cepted as prima facie evidence of citizenship if no one of the requirements in paragraphs (a) to (~) of this section can be met by the applicant and in the absence of any collateral facts indicating fraud in its procurement. (i) If no one of the requirements in paragraphs (a) to (h) of this section can be met by the appli- cant, he should make a statement to that effect, and in an attempt to establish citizenship, he may submit for consideration data of the following character: (1) Report of the Census Bureau showing the earliest record of age or birth available. Re- quest for such information should be addressed to the Director of the Census, Washington, D.C., 20233. In making such request, definite informa- tion must be furnished the Census Bureau as to the place of residence when the first census was taken after the birth of the applicant, giving the name of the street and the number of the house, or other identification of place where living, etc.; also names of parents or the names of other persons with whom residing on the date specified. (2) School records, immigration records, or insurance policies (the latter must be at least 10 years old). 125.25 Aliens. Alien registration records to- gether with other papers and documents which indicate the country of which the applicant is a citizen shall be accepted as evidence of citizen- ship in a foreign nation. SECURITY OF VESSELS AND WATERFRONT FACILITIES (17) PAGENO="0198" 1762 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 125.27 Sponsorship of applicant. Applica- tions for a Coast Guard Port Security Card shall not be accepted unless sponsored. The applicant shall be sponsored by an authorized official of applicant's employer or by an authorized official of applicant's labor union. Each company and each labor union concerned shall file with the appropriate Captain of the Port a list of officials of the company or union who are authorized to sponsor applicants. Other sponsorship may be accepted where the circumstances warrant. 125.29 Insufficient information. (a) (1) If, in the judgment o~ the Commandant, an application does not contain sufficient information to enable him to satisfy himself that the character and hab- its of life of the applicant are such as to warrant the belief that his presence on waterfront facili- ties, and port and harbor areas, including vessels and harbor craft therein, would not be inimical to the security of the United States, the Com- mandant may require the applicant to furnish, under oath in writing or orally, such further in- formation as he deems pertinent to the standards set forth in Section 125.19 and necessary to enable him to make such a determination. (2) If an applicant fails or refuses to furnish such additional information, the Commandant shall hold in abeyance further consideration of the application, and shall notify the applicant that further action will not be taken unless and until the applicant furnishes such information. (b) Upon receipt, the application and such fur- ther information as the Commandant may have required shall be referred, except in those instances where action on an application is held in abeyance pursuant to Paragraph 125.21(b) or to subpara- graph (a) (2) of this section, to a committee com- posed of a representative of the Legal Division, of the Merchant Vessel Personnel Division and of the Intelligence Division Coast Guard Head- quarters. The committee sisall prepare an analysis of the available information and shall make rec- ommendations for action by the Commandant. (CGFR hO-CS, 25 FR. 1589, Feb. 24, 1960) 125.31 Approval of applicant by Commandant. (a) If the Commandant is satisfied that the char- acter and habits of life of the applicant are not such as to warrant the belief that his presence on waterfront'facilities, and port and harbor areas including vessels and harbor craft therein, would be inimical to tile security of the United States, he will direct that a Coast Guard Port Security Card be issued to the applicant. (b) If the Commandant is not satisfied that the character and habits of life of tile applicant are such as to warrant the belief that his presence on waterfront facilities, and port and harbor areas, including vessels and harbor craft therein would not be inimical tO the security of the United States he will notify the applicant in writing as provided for in Section 125.35. 125.33 Holders of Coast Guard Port Security Cards. (a) Whenever the Commandant is not sat- isfied that the character and habits of life of a holder of a Coast Guard Port Security Card are such as to warrant the belief that his presence on waterfront facilities arid port and harbor areas, including vessels and l~arbor craft therein, would not be inimical to the security of the United States, he will request the holder to furnish, under oath in writing, such information as he deems perti- nent and necessary for a determination on this issue. (b) If the holder fails or refuses to furnish such information within thirty (30) days after receipt of the Commandant's request, the Com- mandant may issue tile written notice provided for in Paragraph 125.35(a). (c) The holder's failure or refusal to furnish such information shall preclude a determination that the holder's character and habits of life are such as to warrant the belief that his presence on waterfront facilities, and port and harbor areas, including vessels and harbor craft therein, would not be inimical to the security of the United States. (d) Upon receipt of such information as the Commandant may have required, the procedure prescribed in Paragraph 125.29(b) shall be followed. (e) If the Commandant is satisfied that the character and habits cf life of the holder are such as to warrant the belief that his presence on water- front facilities, and port and harbor areas, in- cluding vessels and harbor craft therein, would not be inimical to the security of the United States, he shall notify the holder accordingly. (f) If the Commendant is not satisfied that the character and habits of life of the holder are such as to warrant the belief that his presence on waterfront facilities, and port and harbor areas including vessels and harbor craft therein, would not be inimical to the security of the United States he shall notify the holder in writing as provided for in Section 125.35. - (CGFR 59-63, 25 FR. 1589, Feb. 24, 5960) 125.35 Notice by Commandant. (a) The no- tice provided for in Sections 125.31 and 125.33 shall contain a statement of the reasons why the Commandant is not satisfied that the character and habits of life of the spplicant or holder are such as to warrant the belief that his presence on water- front facilities, and port and harbor areas, includ- ing vessels and harbor craft therein, would not be inimical to the security of the United States. Such notice shall be as specific and detailed as the interests of nationat security shall permit and shall include pertinent information such as names, dates, and places in such detail as to permit rea- sonable answer. (b) The applicant or holder shall have 20 days from the date of receipt of the notice of reasons to 125.27 UNITED STATES COAST GUARD (18) PAGENO="0199" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 1763 125.43 125.41 Challenges. Within five days after receipt of the notice described in Section 125.39 the applicant or holder may request disqualifi- cation of any member of the Hearing Board oh the grounds of personal bias or other cause. The re- quest shall be accompanied by an affidavit setting forth in detail the facts alleged to constitute grounds for disqualification. The affidavit may be supplemented by an oral presentation if desired. If after due consideration the Chairman believes a challenged member is qualified notwithstanding the challenge, he shall notify the person who made the challenge and arrange to proceed with the hear- ing. If the person who made the challenge takes exception to the ruling of the Chairman, the ex- ception and data relating to the claim of disqualifi- cation shall be made a matter of record. If the Chairman finds that there is reasonable ground for disqualification he shall furnish the person who made the challenge with the name of an alter- nate in lieu of the challenged member and arrange to proceed with the hearing. In the event the Chairman is challenged, he shall forthwith notify the Commandant, furnishing the grounds for the claim of disqualification, and the Commandant shall act upon the challenge in accordance with the foregoing procedure. In addition to the right to challenge for cause, a person who has requested a hearing shall have two peremptory challenges, one challenge for the management member and one challenge for the labor member of the Hear- ing Board. Should the management member be so challenged, the person who made the challenge may elect to have t.he management member re- placed by another management member or by a member not representing either management or labor; if the member peremptorily challenged represents labor, the person who made the chal- lenge may elect to have the labor member replaced by another labor member or by a member not representing either management or labor. 125.43 Hearing procedure. (a) Hearings shall be conducted in an orderly manner and in a serious, businesslike atmosphere of dignity and decorum and shall be expedited as much as possible. (b) The hearing shall be in open or closed ses- sion at the option of the applicant or holder. (c) Testimony before the Hearing Board shall be given under oath or affirmation. (d) The Chairman of the Hearing Board shall inform the applicant or holder of his right to: (1) Participate in the hearing; (2) Be represented by counsel of his choice; (3) Present witnesses and offer other evidence in his own behalf and in refutation of the reasons set forth in the Notice of the Commandant; and (4) Cross-examine any witnesses offered in sup- port of such reasons. SECURITY OF VESSELS AND WATERFRONT FACILITIES file written answer thereto. Such answer may include statements or affidavits by third parties or such other documents or evidence as the applicant or holder deems pertinent to the matters in ques- tion. (c) Upon receipt of such answer the procedure prescribed in Paragraph 125.29 (b) shall be followed. (d) If the Commandant is satisfied that the character and habits of life of the applicant or holder are such as to warrant the belief that his presence on waterfront facilities, and port and harbor areas, including vessels and harbor craft therein, would not be inimical to the security of the United States, he shall, in the case of an applicant, direct that a Coast Guard Port Security Card be issued to the applicant, or, in the case of a holder, notify him accordingly. (e) If the Commandant is not satisfied that the applicant's or holder's character and habits of life are such as to warrant the belief that his presence on waterfront facilities, and port and harbor areas including vessels and harbor craft therein, wouki not be inimical to the security of the United States, the Commandant shall refer the matter to a Hearing Board for hearing and recommendation in accordance with the provisions of this part. 125.37 Hearing Boards. The Commandant may establish a Hearing Board in each Coast Guard District. The Commandant shall desig- nate for each Hearing Board a Chairman, who shall be, so far as practicable, an officer of the Coast Guard. The Commandant shall designate, so far as practicable, a second member from a panel of persons representing labor named by the Secretary of Labor, and a third member from a panel of persons representing management named by the Secretary of Labor. 125.39 Notice by Hearing Board. Whenever the Commandant refers a matter to a Hearmg Board, the Chairman shall: (a) Fix the time and place of the hearmg; (b) Inform the applicant or holder of the names of the members of the Hearing Board, their occu- pations, and the businesses or organizations with which they are affiliated, of his privilege of chal- lenge, and of the time and place of the hearing; (c) Inform the applicant or holder of his privi- lege to appear before the Hearing Board in person or by counsel or representative of his choice and to present testimonial and documentary evhlence in his behalf, and to cross-examine any witnesses appearing before the Board; and (d) Inform the applicant or holder that if within 10 days after receipt of the notice he does not request an opportunity to appear before the Hearing Board, either in person or by counsel or representative, the Hearing Board will proceed without further notice to him. (19) PAGENO="0200" 1764 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 majority a dissent should be noted setting forth the reasons therefor. The recommendation of the Board, together with the complete record of the case, shall be sent~to the Commandant as expedi- tiously as possible. 125.45 Action by Commandant. (a) If, upon receipt of the Board's recommendation, the Com- mandant. is satisfied that the character and habits of life of the applicant or holder are such as to warrant the belief that his presence on waterfront facilities, and port and harbor areas, including vessels and harbor craft therein, would not be inimical to the security of the United States, he shall, in the case of in applicant, direct that a Coast Guard Port Security Card be issued to the applicant, or, in the case of a holder, notify him accordingly. (b) If, upon receipt; of the Board's recommen- dation, the Commandant is not satisfied that the character and habits of life of the applicant or holder are such as to warrant the belief that his presence on waterfront facilities, and port and harbor areas includir~ vessels and harbor craft therein, wouid not be inimical to the security of the United States, the Commandant shall: (1) In the case of a:a applicant, notify him that a Coast Guard Port Security Card will not be issued to the applicant, or, (2) In the case of a holder, revoke and require the surrender of his Coast Guard Port Security Card. (c) Such applicant or holder shall be notified of his right, and shall have 20 days from the receipt of such notice within which to appeal under this pant 125.47 Appeals. (a) The Commandant shall establish at Coast Gunrd Headquarters, Washing- ton, D.C. 20226, an Appeal Board to hear appeals provided for in this part.. The Commandant shall designate for thi Appeal Board a Chairman, who shall be, so far as practicable, an officer of the Coast Guard. The Commandant shall designate, so far as practicable, a member from a panel of persons representing management nominated by the Secretary of Labor, and a member from a panel of persons reprssenting labor nominated by the Secretary of Labor. The Commandant shall insure that persons designated as Appeal Board members have suitable security clearance. The Chairman of the Appeal Board shall make all arrangements incident to the business of the Appeal Board. (b) If an applicant or holder appeals to the Appeal Board within 20 days after receipt of notice of his right tc appeal under this part, his appeal shall be handled under the same procedure as that specified in Section 125.39, and the priv- ilege of challenge may be exercised through the same procedure as that specified in Section 125.41. 125.45 UNITED STATES COAST GUARD (e) Hearings shall be opened by the reading of the Notice of the Commandant and the answer thereto. Any statement and affidavits filed by the applicant or holder may be incorporated m the record by reference. (f) The Hearing Board may, in its discretion, invite any person to appear at the hearing and t~stify. However, the Board shall not be bound by the testimony of such witness by reason of hav- ing called him and shall have full right to cross- examine the witness. Every effort shall be made to produce material witnesses to testify in support of the reasons set forth in the Notice of the tom- mandant, in order that such witnesses may be con- fronted and cross-examined by the applicant or holder. (g) The applicant or holder may introduce such evidence as may be relevant and pertinent. Rules of evidence shall not be binding on the Hearing Board but reasonable restrictions may be imposed as to die relevancy, competency and materiality of matters considered. If the applicant or holder is, or may be, handicapped by the non-disclosure to him of confidential sources, or by the failure of witnesses to appear, the Hearing Board shall take the fact into consideration. (h) The applicant or holder or his counsel or representative shall have the right to control the sequence of witnesses called by him. (i) The Hearing Board shall give due consider- ation to documentary evidence developed byin- vesti~ation, including membership cards, petitions bearing the applicant's or holder's signature, books, treatises or articles written by the applicant or holder and testimony by the applicant or holder before duly constituted authority. (j) Complete verbatim stenographic transcrip- tion shall be made of the hearing by qualified re- porters and the transcript shall constitute a per- manent part of the record. Upon request, the ap- plicant or holder or his counsel or representative shall be furnished, without cost, a copy of the transcript of the hearing. (k) The Board shall reach its conclusion and base its determination on information presented at the hearing, together with such other informa- tion as may have been developed through investi- gation and inquiries or made available by the ap- plicant or holder. (1) If the applicant or holder fails, without good cause shown to the satisfaction of the chair- man, to appear personally or to be represented before the Hearing Board, the Board shall proceed with consideration of the matter. (m) The recommendation of the Hearing Board shall be in writing and shall be signed by all members of the Board. The Board shallfor- ward to the Commandant, with its recommenda- tion, a memorandum of reasons in support thereof. Should any member be in disagreement with the (20) PAGENO="0201" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 1765 SECURITY OF VESSELS AND WATERFRONT FACILITIES 125.57 (c) Appeal Board proceedings shall be con- ducted in the same manner as that specified in Section 125.43. 125.49 Action by Commandant after appeal. (a) If, upon receipt of the Appeal Board's recom- mendation, the Commandant is satisfied that the character and habits of life of the applicant or holder are such as to warrant the belief that his presence on waterfront facilities, and port and harbor areas, including vessels and harbor craft therein would not be inimical to the security of the United States, he shall, in the case of an appli- cant direct that a Coast Guard Port Security Carã be issued to the applicant, or in the case of a holder, notify him accordingly. (b) If, upon receipt of the Appeal Board's recommendation, the Commandant is not satisfied that the character and habits of life of the appli- cant or holder are such as to warrant the belief that his presence on waterfront facilities, and port and harbor areas including vessels and harbor craft therein, would not be inimical to the security of the United States, the Commandant shall notify the applicant or holder that his appeal is denied. 125.51 Replacement of lost Coast Guard Port Security Card. (a) Any person whose Coast Guard Port Security Card has been stolen, lost, or destroyed shall report that fact to a Coast Guard Port Security Unit or Captain of the Port as soon thereafter as possible. (b) A person who has lost a Coast Guard Port Security Card may apply for a replacement card by submitting "An Application for Replacement of Lost Port Security Card" (Form CO 2685A) to a Coast Guard Port Security Unit. A replace- ment will be issued only after a full explanation of the loss of the Coast Guard Port Security Card is made in writing to the Coast Guard and after a full check is made and authorization is granted by the Commandant. (c) Any person to whom a Coast Guard Port Security Card has been issued as a replacement for a lost card, shall immediately surrender the original card to the nearest Coast Guard Port Security Unit or Captain of the Port if the original card should be recovered. 125.53 RequIrements for credentials; certain vessels operating on navigable waters of the United States (including the Great Lakes and West- ern Rivers). (a) Every person desiring access to vessels, except public vessels, falling within any of the categories listed below, as a master, person in charge, or member of the crew thereof, shall be required to be in possession of one of the identifica- tion credentials listed in Section 125.09. (1) Towing vessels, barges, and lighters op- erating in the navigable waters of the continental United States other than the Great Lakes and Western Rivers. (2) Harbor craft, such as water taxis, junk boats, garbage disposal boats, bum boats, supply boats, repair boats, and ship cleaning boats, which in the course of their normal operations service or contact vessels, foreign or domestic, public or merchant, in the navigable waters of the conti- nental United States other than the Great Lakes and Western Rivers. (b) The term "master, person in charge, or mem- ber of the crew" shall be deemed to include any person who serves on board in any capacity con- cerned with the operation, maintenance, or admin- istration of the vessel or its cargo. (c) Where the Coast Guard Port Security Card (Form CO 2514) is to be used as the identification required by paragraph (a) of this section, applica- tion for such card may be made immediately by the persons concerned. The issuance of the Coast Guard Port Security Card shall be in the form and manner prescribed by Section 125.11. (d) At the discretion of the District Com- mander any person desiring access to vessels of the categories named in this section, who may be re- quired by the provisions hereof to possess identifi- cation credentials, may be furnished a letter signed by the District Commander or the Captain of the Port and this letter shall serve in lieu of a Coast Guard Port Security Card and will authorize such access for a period not to exceed 60 days, and such a letter issued shall be deemed to be satisfactory identification within the meaning of Section 125.09. The issuance of the letter shall be subject to the following conditions: (1) The services of the person are necessary to avoid delay in the operation of the vessel; (2) The person does not possess one of the iden- tification credentials listed in Section 125.09; (3) The person has filed his application for a Coast Guard Port Security Card or submits his application before the letter is issued; and, (4) The person has been screened by the Dis- trict Commander or Captain of the Port and such officer is satisfied concerning the eligibility of the applicant to receive a temporary letter. (COFR 56-51, 21 F. R. 9339, Nov. 30, 1956) 125.55 Outstanding Port Security Card Appli- cations. A person who has filed an application for a Coast Guard Port Security Card and who did not receive such a document prior to May 1, 1956, shall submit a new application in accordance with the requirements of this part. (CGFR 61-54, 26 F.R. 11862, Dee. 12. 1961) 125.57 Applications previously denied. A person who has been denied a Coast Guard Port Security Card before May 1, 1956, may file a new application for such a document in accordance with the requirements of this part. (21) PAGENO="0202" PAGENO="0203" 126.05 DesIgnated waterfront facility. The term "designated waterfront facility" shall mean a waterfront facility designated by Section 126.13 for the handling and storage of, and for vessel loading and discharging of explosives, inflam- mable or combustible liquids in bulk, or other dangerous articles or cargo covered by the regula- tions entitled "Explosives or Other Dangerous Articles on Board Vessels" (46 CFR Part 146) and the regulations governing tank vessels (46 CFR Parts 30 to 39, inclusive). 126.07 Dangerous cargo. The term "danger- ous cargo" shall mean all explosives and other dangerous articles or cargo covered by the regu- lations entitled "Explosives or Other Dangerous Articles on Board Vessels" (46 CFR Part 146) and the regulations governing tank vessels (46 CFR Parts 30 to 39, inclusive). 126.09 Designated dangerous cargo. The term "designated dangerous cargo" shall mean Explosives (commercial or military), Class A, as classified in 46 CFR Part 146. (COFR 52-30, 17 FR. 5397, lilac 14, 1952) 126.11 Waiver authority based on local or un- usual conditions. Whenever the Commandant, the District Commander, or the Captain of the Port shall find that the application of any provi- sion contained in this part is not necessary to the security of the port and vessels and waterfront facilities therein, or that its application is not practical because of local conditions or because the materials or personnel required for compli- ance are not available, or because the requirements of the national defense justify a departure from such provision, he may waive compliance with such provision to the extent and under such re- quirements as he may determine. 126.13 DesIgnation of waterfront facilities. (a) Waterfront facilities which fulfill the condi- tions required in Section 126.15, unless waived un- der provisions of Section 126.11, and only such waterfront facilities are designated for the han- dling, storing, stowing, loading, discharging, or transporting of dangerous cargo, subject to com- pliance with other applicable requirements and * provisions set forth in this part. (b) Handling, storing, stowing, loading, dis- charging, or transporting dangerous cargo at any waterfront facility other than one designated by this section is hereby prohibited, and violation of this prohibition will subject the violator to the penalties of fine and imprisonment provided in section 2, Title II of. the act of June 15, 1917, as amended, SOD. S. C. 192. (CGFR 57-52, 22 F. R. 10302, Dec. 20, 1957) 126.15 Conditions for designation as desig- nated waterfront facility. The conditions referred to in Section 126.13 for designation of a water- front facility for the purpose of handling, storing stowing, loading, discharging, or transporting of dangerous cargo shall be as follows: (a) Guards. That guards are provided by the owner or operator of the waterfront facility for AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 1767 PART 126-HANDLING OF EXPLOSIVES OR OTHER DANGEROUS CARGOES WITH1N OR CONTIGUOUS TO WATERFRONT FACILITIES Sec. 128.01 General definitions. 128.05 Designated waterfront facility. 128.07 Dangerous cargo. 128.09 Designated dangerous cargo. 128.11 Waiver authority based on local or unusual conditions. 128.13 Designation of waterfront facilities. 128.15 Conditions for designation as designated water- front facility. 128.17 Permits required for handiing designated danger- ous cargo. 126.19 Issuance of permits for handling designated dan- gerous cargo. 128.21 Permitted transactions. 126.23 Termination or suspension of permits. 126.25 Penalties for handling designated dangerous cargo without permit. 128.27 General permit for handling dangerous articles and substances. 126.28 Ammonium nitrate, ammonium nitrate fertilizers, fertilizer mixtures, or nitro carbo nitrate; general provisions. 126.29 Supervision and control of dangerous cargo. 126.31 Termination or suspension of general permit. 126.33 Penalties for handling dangerous cargo without permit. 126.35 Primary responsibility. 126.37 Separability. Avxnoaxrx:it 126.01 to 126.37 issued ssder sec. 1, 40 Stat. 220 as amended; 50 U.S.C. 191, 5.0. 10173, 15 FR. 7005, 3 CFR, 1950 5up ., as amended, 5.0. 10277. 16 FR. 7537, 3 CFR 1951 Sup . 9:0. 10352,17 FR. 4607. 3 CFR 1952 Sup Socacs: 11126.01 to 126.37 contained in COrk 51-37, 16 Fit. 8677, Aug. 28, 1951, except as otherwise noted. 126.01 General definitions. (a) The terms "Commandant", "District Commander", "Captain of the Port", and "Waterfront Facility" when used in this part shall have the meaning set forth in Sections 6.01-1, 6.01-2, 6.01-3, and 6.01-4, re- spectivel~', of Executive Order No. 10173 (15 FR. 7005, 3 CFR, 1950 Supp.), except that the term "waterfront facility" shall not include such a facility directly operated by the Departments of the Army, Navy, orAir Force. (b) The term "net tons" when used in Para- graph 126.27 (b), shall be "net weights" of the materials as prepared for shipment, i.e.: gross ~veight less tare (weight of packing and shipping containers). (COFR 57-52. 22 FR. 10302, Dec. 20. 1957) (23) PAGENO="0204" 1768 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 the protection thereof in such numbers and of such qualifications as to assure adequate surveil- lance, prevent unlawful entrance, detect fire haz- ards, and check the readiness of protective equipment. (b) Smoking. That smoking is prohibited on the waterfront facility except at such portions thereof as may be designated by the owner or operator thereof: Provided, That smoking in such areas shall only be permitted in accordance with local ordinances and regulations and that signs are conspicuously posted marking such authorized smoking areas and that "No Smoking" signs are conspicuously posted elsewhere on the waterfront facility. (c) Welding or hot work. That oxyacetylene or similar welding or burning, or other hot work in- cluding electric welding or the operation of equip- ment therefor is prohibited on the waterfront facility during the handling, storing, stowing, loading, discharging, or transporting of danger- ous cargo thereon, except when approved by the Captain of the Port: Provided, That such work shall not be conducted at any time during the handling, storing, stowing, loading, discharging, or transporting of explosives. (d) Trucks and other motor vehicles. That trucks and other motor vehicles are not permitted to remain or park upon the waterfront facility except under the following conditions: (1) When actually awaiting opportunity to load or discharge cargo, ship supplies, or passen- gers and is attended by a driver. (2) When loading or discharging tools, equip- ment or materials incident to maintenance, repair, or alterations and is attended by a driver. (3) When the vehicle is headed toward an un- impeded exit and is attended by a driver. (4) When a vehicle is handled and stored as an item of cargo. (5) When parking areas are designated and permitted in accordance with local ordinances and regulations and provided no fire lanes are blocked nor exits impeded by their presence, passenger vehicles may be parked in such portions of the waterfront facility as may be designated and marked off by the owner or operator. (e) Pier automotive equipment. That tractors, stockers, lift trucks, hoisters and other equipment driven by internal combustion engines used on the waterfront facility are of such construction and condition and free from excess grease, oil, or lint as not to constitute a fire hazard; that each unit of such equipment is provided with an ap- proved type fire extinguisher attached, except where waterfront facilities are provided with fire extinguishers approved by the Captain of the Port as being adequate in numbers, type and location for additional protection of pier automotive equipment; that, when not in use, such equip- ment is stored in a safe manner and location; that gasoline or other fuel. used for such equipment is stored and handled in accordance with accepted safe practices and is net stored on the waterfront facility, except in conformity with paragraph (g) of this section; and that refueling of such equip- ment or any vehicle is prohibited on any pier or wharf within the wate:~front facility. (f) Rubbish and woste materials. That the waterfront facility is free from rubbish, debris, and waste materials. (g) Maintenance stores and supplies. That supplies classified as dangerous by the provisions of the regulations entitled "Explosives or Other Dangerous Articles oii Board Vessels" (46 CFR Part 146), to be used is connection with operation or maintenance of the property or facility are not stored on any pier or wharf within the waterfront facility and are not stored elsewhere on the water- front facility except in amounts necessary for nor- mal current operating conditions; that such stor- age is in a compartment remote from combustible material and so constructed as to be readily acces- sible and provide safe storage; that storage com- partments are kept clean and maintained free of scrap materials, empty containers, soiled wiping rags, waste, and other debris; that covered metal containers are provided for storage of used wip- ing cloths and contents removed at the end of each working day; that clothing lockers are maintained clean and orderly and properly ventilated; and that fire-extinguishing equipment suitable for the type of hazard is readily available. (h) Electric wiring. That new installations of electric wiring and equipment are made in accord- ance with accepted safe practices (conformity with the requirements of the National Electric Code (current editior) and the requirements of applicable local regulations shall be deemed evi- dence of compliance nith such accepted safe prac- tices) ; that materials, fittings, and devices are of type and character approved for the intended use by Underwriters Laboratories, Inc., Associated Factory Mutual Laboratories, or United States National Bureau of Standards; that existing elec- tric wiring is maintai:aed in a safe condition, free of defects or modifications which may cause fire or personal injury; that defective or dangerous wirmg, equipment, arid devices are permanently disconnected from sources of energy. (i) Heating equipment. That heating equip- ment is safely installed and maintained in good operating condition; that adequate clearances to prevent undue heating of nearby combustible ma- terials are maintained between heating appliances, chimneys, stove pipes, gas vents, or other heat producing elements, and any combustible mate- rials of the floor, walEs, partitions or roofs; that, in general, clearances are such that continuous operation of the heat producing device at full Ca- 126.15 UNITED STATES COAST GUARD (24) PAGENO="0205" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 1769! pacity will not increase the temperature of nearby woodwork more than 90 degrees above the ambient temperature; that, where necessary to prevent contact withmovable combustible materials, heat- ing appliances are enclosed or screened; that spark arresters are provided on chimneys or appliances burning solid fuel used in locations where sparks constitute a hazard to nearby combustible mate- rials. (As a guide to safe installation of heating equipment, the appropriate chapters of the Na- tional Board of Fire Underwriters Building Code (current edition) are recommended.) (J) Fire extinguishing equipment. That fire ex- tinguishing appliances are made available in ade- quate quantities, locations, and types; that first aid fire appliances are installed and maintained in accordance with accepted safe practices (con- formity with the requirements prescribed in the current "Standards for the Installation, Main- tenance and Use of Portable Fire Extinguishers," issued by the National Fire Protection Associ- ation, shall be deemed evidence of compliance with such accepted safe practices); that fire ex- tinguishing equipment, fire alarm systems and de- vices, and fire doors and other safety ecjuipment are maintained in good operating condition at all times; that provision is made so that, when haz- ards arise which require such precaution, emer- gency hose lines will be led out and other emer- gency firefighting equipment will be placed immediately adjacent to such hazards. (k) Marking of fire appliance locations. That the locations of all fire appliances, including hy- drants, standpipe and hose stations, fire extin- guishers, and fire alarm boxes, are conspicuously marked; and that ready accessibility to such ap- pliances is maintained. (I) Lighting. That subject to applicable dimout and blackout regulations, such waterfront facility is adequately illuminated during the handling, storing, stowing, loading, discharging or trans- porting of dangerous cargo thereon; and that kerosene and gasoline lamps and lanterns are not used on such waterfront facility. (ml Arrangement of cargo, freight, merchandise or material. That cargo, freight, merchandise or material is arranged on the waterfront facility according to the individual structure of such facility, in a manner to permit complete access for the purpose of fire extinguishment; that, ex- cept on facilities used primarily for the transfer of railroad or highway vehicles to or from cargo vessels and carfloats; cargo, freight, merchandise or other material is placed on the waterfront facility in accordance with the following: (1) At least two feet of clear and open space shall be maintained free of rubbish, dunnage, or other obstructions between cargo, freight, mer- chandise, or other material piles and both sides 126.15 of the walls of the waterfront facility7 fire walls or fire stops in enclosed waterfront facilities. This distance shall be measured from the most promi- ment projection of the wall such as studding, bracings, or other obstructions that are part of the structure. In an unenclosed facility, two feet of clear and open space shall be maintained free of rubbish, dunnage, or other obstructions between cargo, freight, merchandise orother materials and the sides of the pier. (2) Inflammable or combustible cargo, freight, merchandise or material, not including bulk cargo, shall not be tiered higher than 12 feet. All cargo, freight, merchandise or other materials including inflammable or combustible cargo, freight, mer- chandise or materials shall be so tiered as to main- tain a clearance between the upper level of the top tier and trusses, beams, girders, or other structural members of not less than 36 inches, and between such upper level and sprinkler heads a clearance of at least 12 inches shall be maintained. (3) There shall be maintained at least four feet of clear and open operating space around any fire alarm box, standpipe, firehose, ~prinkler valve, fire door, deck hatch, or first-aid fire appliance. (4) When first aid fire appliances, alarm boxes, other safety equipment or deck hatches are located in a space surrounded by cargo, freight, merchan- dise, or other materials, there shall be maintained a straight, free, and open space at least three feet in width running therefrom to the center aisle. This space shall be kept clear of all rubbish, dun- nage, and other obstruction. (5) A main aisle of at least twenty feet in width shall be maintained the entire length of the water- front facility if control of fire requires trucks to come on the pier. The aisle may be reduced to eight feet in width if such access by fire trucks is not required. (6) Cross aisles, at least five feet wide, straight and at right angles to the main aisle, shall be maintained at intervals not exceeding seventy-five feet, and extending to the side of the waterfront facility. (n) Adequacy of guarding, fire extinguishing equipment, and lighting. That the word "ade- quate," as used in paragraphs (a), (j), and (1) of this section with respect to guarding, fire extin- guishing equipment, and lighting, respectively, means that determination which a reasonable per- son would make under the circumstances of the particular case. Unless there is gross noncom- pliance, the judgment and determination of the operator of the facility will be acceptable as ful- filling the requirements unless and until the Cap- tain of the Port inspects the facility and notifies the operator thereof in writing in what respect the guarding, fire extinguishing equipment, or light- SECURITY or VESSELS AND WATERFRONT FACILITIES (25) PAGENO="0206" 1770 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 ing, is deemed inadequate and affords such opera- tor an opportunity to correct the deficiency. jCGFR 51-52, 16 FR. 11311, Nov. 7, 1951 CGFR 57-52 22 .R. 10303, Dec. 20, 1957; CGFR 58-4 23 51 1597 Ma~ 0 1958' CGFR 58-46, 23 FR. 10487, Dec.'13 1058' COF~R 59-35' 240.11. 7581, Sept. 19, 1959; CGFR 64-0, 29 F.R.'1570, Jan. 30: 126.17 Permits required for handling desig- nated dangerous cargo. Designated dangerous cargo may be handled, loaded, discharged7 or transported at any designated waterfront facility only if a permit therefor has been issued by the Captain of the Port. This permit requirement may be waived, at the discretion of the Captain of the Port, when such cargoes are contained within railroad cars or highway vehicles which are moved on or across a waterfront facility used primarily for the transfer of~ railroad cars or highway ve- hicles to or from a railroad or highway vehicle ferry or carfioat; provided such designated car- goes are not removed from, or placed in, the rail- road car or highway vehicle while it is in or on such waterfront facility. (CGFR 58-43, 23 FR. 8542, Nov. 1,3958) 126.19 Issuance of permits for handling desig- nated dangerous cargo. (a) Upon the applica- tion of the owners or operators of a designated waterfront facility or of their authorized repre- sentatives, the Captain of the Port is authorized to issue apermit for each transaction of handling, loading, discharging, or transporting designated dangerous cargo at such waterfront facility pro- ruled the following requirements are met: (1) The facility shall comply in all respects with the regulations in this subchapter. (2) The quantity of designated dangerous cargo, except military explosives shipped by or for the Armed Forces of the United States, on the waterfront facility and vessels moored thereto shall not exceed the limits as to maximum quan- tity, isolation and remoteness established by local, municipal, territorial, or State authorities. Each permit issued under these conditions shall specify that the limits so established shall not be exceeded. (3) The quantity of designated dangerous cargo consisting of military explosives shipped by or for the Armed Forces of the United States on the waterfront facility and vessels moored thereto shall not exceed the limits as to maximum quan- tity, isolation and remoteness as established by the Captain of the Port. Each permit issued under these conditiOns shall specify that the limits so established shall not be exceeded. (CGFR 58-27, 18 F. R. 5348, Sept. 8, 1953) 126.21 Permitted transactions. All permits is- sued pursuant to Section 126.19 are hereby condi- tioned upon the observance and fulfillment of the following: (a) The conditions set forth in Section 126.15 shall at all times be strictly observed. - (b) No amount of designated dangerous cargo, except military explot;ives shipped by or `for the Armed Forces of the United States, in excess of the maximum quantity established by local, mu- nicipal, territorial, or State authorities shall be present on the waterfront facility and vessels moored thereto. (c) Designated dangerous cargo shall not be brought onto the waterfront facility from shore except when laden within a railroad car or high- way vehicle and shall remain in such railroad car or highway vehicle except when removed as an incident of its prompt transshipment. Desig- nated dangerous cargo shall not be brought onto the waterfront facility from a vessel except as an incident of its prompt; transshipment by railroad car or highway vehicle. (d) No other dangerous cargo shall be on the waterfront facility during tile period of trans- actions involving designated dangerous cargo, un- less its presence is authorized by the Captain of the Port. This shall not apply to maintenance stores and supplies on the waterfront facility in conformity with Paragraph 126.15(g). (CGFR 53-27, 18 F. 51. 5348, Sept. 3, 1953) 126.23 Termination or suspension of permits. Any permit issued pursuant to Section 126.19 shall terminate automatically at the conclusion of the transaction for which the permit has been issued and may be terminated, or suspended, prior thereto by the Captain of the Port whenever he deems that the security or safety of the port or vessels or waterfront facilities therein so requires. Con- firmation of such termination or suspension by the Captain of the Port shall be given to the permittee in writing. 126.25 Penalties f or handling designated dan- gerous cargo without permit. Handling, loading, discharging, or transporting any designated dan- gerous cargo without a permit, as provided under Section 126.17, being in force, will subjectpersons responsible therefor bo the penalties of fine and imprisonment provided in section 2, Title II of the act of. June 15, 1917, as amended, 50 U. S. C. 192. (COFR 53-27. 18 F. R. 5348 Sept. 8,1953) 126.27 General parmit for handling dangerous articles and substances. A general permit is here- by issued for the handling, storing, stowing, load- ing, discharging, or transporting of dangerous articles and substances (other than designated dangerous cargo) at designated waterfront facili- ties, conditioned upon the observance and fulfill- ment of the following: (a) The conditions set forth in Section 126.15 shall at all times be st;~ictly observed. (b) Tin- following classes of dangerous articles and substances as classified in the regulations en- titled "Explosives o:~ Other Dangerous Articles on Board Vessels" (46 CFR Part 146), in the 126.17 UNITED STATES COAST GUARD (26) PAGENO="0207" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 1771 amounts, specified, shall not be handled, stored, stowed, loaded, discharged, or transported, except when contained within railroad or highway. ve- hicles being transported across or on waterfront facilities used primarily for the transfer of rail- road or highway vehicles to or from a railroad car ferry or highway vehicle ferry, or carfloats, without written notification to the Captain of the Port: (1) Explosives, Class B, in excess of 1 net ton at any one time. (2) Explosives, Class C, in excess of 10 net tons at any one time. (3) Inflammable liquids, in containers, in ex- cess of 10 net tons at any one time. (4) Inflammable solids or oxidizing materials, in excess of 100 net tons at a~iy one time. (5) Inflammable compressed gases, in excess of 10 net tons at any one time. (6) Poisons, Class A, or radioactive materials, Class D, for which special approval for water transportation is required by the Commandant in 46 CFR 146.25-30. Storage of all Class D radio- active materials shall be so arranged as to preclude a gamma radiation in excess of 200 milliroentgens per hour or physical equivalent at any readily accessible surface. (c) Explosives or other dangerous articles pro- hibited from or not permitted transportation by 46 CFR Part 146 shall not be present on the waterfront facility. (d) Inflammable liquids and compressed gases shall be so handled and stored as to provide maxi- mum separation between articles consisting of acids, corrosive liquids, or combustible materials. Storage for inflammable solids or oxidizing ma- terials shall be so arranged as to prevent moisture coming in contact therewith. (e) Acids and corrosive liquids shall be so handled and stored as to prevent such acids and liquids, in event of leakage, from contacting any organic materials. (f) Poisonous gases, poisonous liquids, and poisonous solids shall be so handled and stored as to prevent their contact with acids, corrosive liquids, inflammable liquids or inflammable solids. (g) Dangerous articles and substances which may be stored on the waterfront facility shall be arranged in such manner as to retard the spread of fire. This may be accomplished by inter- spersing piles of dangerous articles with piles of inert or less combustible materials. (h) All dangerous articles and substances stored on the waterfront facility shall be pack- aged, marked, and labeled in accordance with 46 CFR Part 146. (CGFR 58-43, 23 FR. 8542, Nov. 1, 3958) 126.29 126.28 Ammonium nitrate, ammonium nitrate fertilizers, fertilizer mixtures, or nitro carbo nitrate; general provisions. (a) When any item of ammonium nitrate, am- monium nitrate fertilizers, fertilizer mixtures, or nitro carbo nitrate, described and defined as an oxidizing material by the regulations of 46 CFR 146.22, is handled, stored, stowed, loaded, dis- charged or transported on a waterfront facility, the following provisions shall apply: (1) All outside containers shall be marked with the proper shipping name of the nitrate packed within the container. (2) The building on a waterfront facility used for storage of any of these materials shall be of such construction as to afford good ventilation. (3) Storage of any of these materials shall be at a safe distance from electric wiring, steam pipes, radiators or any heating mechanism. (4) These materials shall be separated by a fire resistant wall or by a distance of at least 30 feet from organic materials or other chemicals and sub- stances which could cause contamination such as flammable liquids, combustible liquids, corrosive liquids, chlorates, permanganates, finely divided metals, caustic soda, charcoal, sulfur, cotton, coal, fats, fish oils or vegetable oils. (5) Storage of any of these materials shall be in a clean area upon clean wood dunnage, or on pallets over a clean floor. In the case of a concrete floor, storage may be made directly on the floor if it is first covered with a moisture barrier such as a polyethylene sheet or asphaltic laminated paper. (6) Any spilled material shall be promptly and thoroughly cleaned up and removed from the waterfront facility. If any spilled material has remained in contact with a wooden floor for any length of time the floor shall be scrubbed with water and all spilled material shall be thoroughly dissolved and flushed away. (7) An abundance of water for firefighting shall be readily available. (8) Such open drains, traps, pits, or pockets shall be eliminated or plugged as in case of fire could be filled with molten ammonium nitrate (and thus become potential detonators for the storage piles). (CGFR 64-17, 29 FR. 5277, Apr. 17, 1964) 126.29 Supervision and control of dangerous cargo. The Captain of the Port is authorized to require that any transaction of handling, storing, stowing, loading, discharging, or transporting the dangerous cargo covered by this subchapter shall be undertaken and continued only under the im- mediate supervision and control of the Captain of the Port or his duly authorized representative. In case the Captain of the Port exercises such au- thority, all directions, instructions, and orders SECURITY OF VESSELS AND WATERFRONT FACILITIES (27) PAGENO="0208" 1772 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 of the Captain of the Port or his representative, not inconsistent with this part, with respect to such handling, storing, stowing, loading, discharg- ing and transporting; with respect to the opera- tion of the waterfront facility; with respect to vessels handling, stowing, loading, or discharging of dangerous cargo at anchorages when the op- erations are under the immediate control and su- pervision of the Captain of the Port or his duly authorized representative; with respect to the in- gress and egress of persons, articles and things and to their presence on the waterfront facility or vessel; and with respect to vessels approaching, moored at, and departing from the waterfront fa- cility, shall be promptly obeyed. (CGFR i7-i2, 22 F. R. 10303, Dec. 20, hiT) 12631 Termination or suspension of general permit. The Captain of the Port is hereby au- thorized to termmate or to suspend the general permit granted by Section 12&27 in respect to any particular designated waterfront facility when- ever he deems that the security or safety of the port or vessels or waterfront facilities therein so requires. Confirmation of such termination or suspension shall be given to the permittee in writ- ing. After such termination, the general permit may be revived by the Commandant with respect to such particular waterfront facility upon a find- ing by him that the cause of termination no longer exists and is unlilesly to recur. After such sus- pension, the general permit shall be revived by the Captain of the Port with respect to such particular waterfront facility when the cause of suspension no longer exists, and he shall so advise the per- mittee in writing. 126.33 Penalties for handling dangerous cargo without permit. Handling, storing, stowing, load- ing, discharging, or transporting any dangerous cargo covered by Section 126.27 under circum- stances not covered by the general permit granted in Section 126.27 or when such general permit is not in force will subject persons responsible there- for to the penalties of fine and imprisonment pro- vided in section 2, Title II of the act of June 15, 1917, as amended, 50 U. S. C. 192. 126.35 Primary responsibility. Nothing con- tained in the rules, r~gulations, conditions, and designations in this part shall be construed as relieving the masters, owners, operators, and agents of vessels, docks, piers, wharves, or other waterfront facilities from their primary respon- sibility for the security of such vessels, docks, piers, wharves, or waterfront facilities. 126.37 Separability. If any provision of the rules, regulations, conditions, or designations con- tained in this part or the application of such pro- vision to any person waterfront facility, or cir- cumstances shall be b~~ld invalid, the validity of the remainder of the rules, regulations, conditions, or designations contained in this part and appli- cabihty of such provision to other psrsons, water- front facilities, or circumstances, shall not be affected thereby. 126.31 UNITED STATES COAST GUARD (28) PAGENO="0209" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 1773 CHAPTER 12.-VESSELS IN TERRITORIAL WATERS OF UNITED STATES ~ 191. Secretary of Treasury and Governor of Canal Zone authorized to regulate anchorage, move- ment, etc., of vessels. Whenever the President by proclamation or Executive order declares a national emergency to exist by reason of actual or threatened war, insur- rection, or invasion, or disturbance or threatened disturbance of the international relations of the United States, the Secretary of the Treasury may make, subject to the approval of the President, rules and regulations governing the anchorage and movement of any vessel, foreign or domestic, in the territorial waters of the United States, may inspect such vessel at any time, place guards thereon, and, if necessary in his opinion in order to secure such vessels from damage or injury, or to prevent damage or injury to any harbor or waters of the United States, or to secure the ob- servance of the rights and obligations of the United States, may take, by and with the consent of the President, for such purposes, full possession and control of such vessel and remove therefrom the officers and crew thereof and all other persons not specially authorized by him to go or remain on board thereof. Within the territory and waters of the Canal Zone the Governor of the Canal Zone, with the approval of the President, shall exercise all the powers conferred by this section on the Secretary of the Treasury. Whenever the President finds that the security of the United States is endangered by reason of actual or threatened war2 or invasion, or hisurrec- tion, or subversive activity, or of disturbances or threatened disturbances of the international rela- tions of the United States, the President is author- ized to institute such measures and issue such rules and regulations- * (a) to govern the anchorage and move- ment of any foreign-flag vessels in the territorial waters of the United States, to inspect such vessels at any time, to place guards thereon, and, if necessary in his opinion in order to secure such vessels from damage or injury, or to prevent damage or injury to any harbor or waters of the United * States, or to secure the observance of rights and obligations of the United States, may take for such purposes full possession and control of such vessels and remove there- from the officers and crew thereof, and all other persons not especially authorized by him to go or remain on board thereof; (b) to safeguard against destruction, loss, or injury from sabotage or other sub- versive acts, accidents, or other causes of similar nature, vessels, harbors, ports, and waterfront facilities in the United States, the Canal Zone, and all territory and water, continental or insular, subject to the juris- diction of the United States. Any appropriation available to any of the Ex- ecutive Departments shall be available to carry out the provisions of this title. (June 15, 1917, ch. 30, title II, § 1, 40 Stat. 220; as amended Aug. 9, 1950, ch. 656, § 1,64 Stat. 427; Sept. 26, 1950, ch. 1049, § 2 (b), 64 Stat. 1038.) EXECUTIVE ORDER 10637 Delegating to the Secretary of the Treasury Certain Functions of the President Relating to the United States Coast Guard By virtue of the authority vested in me by sec- tion 301 of title 3 of the United States Code, section 499 of title 14 of the United States Code, and Article 140 of the Uniform Code of Military Jus- tice (64 Stat. 145), and as President of the United States, it is hereby ordered as follows: SECTION 1. The Secretary of the Treasury is hereby designated and empowered to perform the following-described functions without the ap- proval, ratification, or other action of the President: * * ** * * * * (r) The authority vested in the Secretary of the Treasury by the first paragraph of section 1 of Title II of the act of June 15, 1917, ch. 30,40 Stat. 220, as amended (50 U. S. C. 191), during a na- tional emergency proclaimed as provided in the said paragraph (1) to make rules and regulations governing the anchorage and movement of any vessel, foreign or domestic, in the territorial waters of the United States, and (2) to take full posses- APPENDIX EXCERPTS FROM THE UNITED STATES CODE TITLE 5O.-WA~ AND NATIO~4AL DEFENSE 94-756 0 - 68 - pt. 2 --14 (29) PAGENO="0210" 1774 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 § 191.a sion and control of such vessel for the purposes set forth in the said paragraph. * * * * * * * DWIGHT D. EISENHOWER THE Wrnva HousE, ~September1C, 1955. § 191a. Same; transfer of Secretary of Treasury powers to Secretary of Navy when Coast Guard operates as part of Navy. When the Coast Guard operates as a part of the Navy pursuant to section 1 of Title 14, the powers conferred on the Secretary of the Treas- ury by section 191 of this title shall vest in and be exercised by the Secretary o~ the Navy. (Nov. 15, 1941, ch. 471, § 2, 55 Stat. 763.) chapter, or obstructs or interferes with the exer- cise of any power confsrred by this chapter, the vessel, together with her tackle, apparel, furni- ture, and equipment, shall be subject to seizure and forfeiture to the United States in the same man- ner as merchandise is fcrfeited for violation of the customs revenue laws; and the person guilty of such failure, obstruction, or interference shall be punishe!d by imprisonment for not more than ten years and may, in the discretion of the court, be fined not more than $10,000. (a) If any other per~~on knowingly fails to com- ply with any regulation or rule issued or order given under the provisions of this chapter, or knowingly obstructs or interferes with the exer- cise of any power conferred by this chapter, he shall be punished by i:rnprisonment for not more than ten years and may, at the discretion of the court, be fined not mom than $10,000. (June 15, 1917, ch. 30, title II, § 2, 40 Stat. 220; as amended Mar. 28, 1940, oh. 72, § 3 (a), 54 Stat. 79; Nov. 15, 1941, ch. 471, § 3, 55 Stat. 763; Aug. 9, 1950, ch. 656, § 3, 64 Stat. 428.) § 194. Enforcement of (:hapter. The President may employ such departments, agencies, officers, or instrumentalities of the United States as he may deem necessary to carry out the purpose of this chapter. (June 15, 1917, oh. 30, title II, 40 Stat. 220; so amended Aug. 9, 1950, oh. 656, § 2,64 Stat. 428.) Termination Date of Aug. 9, 1950, Amendments Section 4 of act Aug. 9, 1950, cited to text, pro- vided that the amendments to sections 191, 192 (a), and 194 of this title by said act Aug. 9, 1950, should expire on such date as Congress by concur- rent resolution may specify. TITLE 14.-COAST GUARD CHAPTER 5. FUNCTIONS AND POWERS § 89. Law enforcement. (a) The Coast Guard may make inquiries, ex- ammations, inspections, searches, seizures, and ar- rests upon the high seas and waters over which the United States has jurisdiction, for the preven- tion, detection, and suppression of violations of laws of the United States. For such purposes, commissioned, warrant, and petty officers may at any time go on board of any vessel subject to the jurisdiction, or to the operation of any law, of the United States address inquiries to those on board, examine the ship's documents and papers, and ex- amine, inspect, and search the vessel and use all necessary force to compel compliance. When from such inquiries, examination, inspection, or search it appears that a breach of the laws of the United States rendering a person liable to arrest is being, or has been committed, by any person, such person shall be arrested or, if escaping to shore, shall be immediately pursued and arrested on shore, or other lawful and appropriate action shall be taken; or, if it shall, appear that a breach of the laws of the United States has been committed so as to render such vessel, or the merchandise, or any part thereof, on board of, or brought into the United States by, such vessel, liable to forfeiture, or so as to render such vessel liable to a fine or penalty and if necessary to secure such fine or penalty, such vessel or such merchandise, or both, shall be seized. (b) The officers of the Coast Guard insofar as they are engaged, pursuant to the authority con-. UNITED STATES COAST GUARD § 191b. Effect of sections 191a-191c on certain laws relating to Canal Zone. Nothing in sections 191a-191c of this title shall be construed as affecting the authority conferred upon the Governor of The Canal Zone by the sec- ond paragraph of section 191 of this title, notwith- standing the provisions of section 191a of this title; nor shall anything in sections 191a-191c of this title be construed as affecting the powers and authority conferred by section 1306 of Title 48. (Nov. 15, 1941, ch. 471, § 4, 55 Stat. 763, as amended Sept. 26, 1950, oh. 1049, § 2 (b), 64 Stat. 1038.) § 192. Seizure and forfeiture of vessels for failure to observe regulations. If any owner, agent, master, officer, or person in charge, or any member of the crew of any such vessel fails to comply with any regulation or rule issued or order given under the provisions of this (80) PAGENO="0211" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 1775 tamed in this section, in enforcing any law of the United States shall: (1) be deemed to be acting as agents of the particular executive department or independ- ent establishment charged with the administra- tion of the particular law; and (2) be subject to all the rules and regulations promulgated by such department or independent establishment with respect to the enforcement of that law. (c) The provisions of this section are in addi- tion to any powers conferred by law upon such officers, and not in limitation of any powers con- ferred by law upon such officers, or any other offi- cers of the United States. (Aug. 4, 1949, ch. 393, § 1, 63 Stat. 502, amended Aug. 3, 1950, ch. 536, § 1, 64 Stat. 406.) ~ 91. Safety of naval vessels. The Captain of the Port, Coast Guard District § 1001 Commander, or other officer of the Coast Guard designated by the Commandant thereof, or the Governor of the Canal Zone in the case of the ter- ritory and waters of the Canal Zone, shall so con- trol the anchorage and movement of any vessel, foreign or domestic, in the territorial waters of the United States, as to insure the safety or se- curity of such United States naval vessels as may be present in. his jurisdiction. In territorial waters of the United States where immediate ac- tion is required or where representatives of the Coast Guard are not present, or not present in sufficient force to exercise effective control of ship- ping as provided herein, the senior naval officer present in command of any naval force may con- trol the anchorage or movement of any vessel, for- eign or domestic, to the extent deemed necessary to insure the safety and security of his command. (Aug. 4, 1949, ch. 393, § 1, 63 Stat. 503, amended Sept. 26, 1950, ch. 1049, § 2 (b), 64 Stat. 1038.) TITLE 1 f~ ~-.-CRlMES AND CRIMINAL PROCEDURE CHAPTER 25.-COUNTERFEITING AND FORGERY 5 499. Military, naval, or official passes. Whoever falsely makes, forges, counterfeits, al- ters, or tampers with any naval, military, or of- ficial pass or permit, issued by or under the au- thority of the United States, or with intent to defraud uses or possesses any such pass or permit, or personates or falsely represents himself to be or not to be a person to whom such pass or permit has been duly issued, or willfully allows any other person to have or use any such pass or permit, is- sued for his use alone, shall be fined not more than $2,000 or imprisoned not more than 5 years, or both. (June 25, 1948, ch. 645, § 1, 62 Stat. 712, eff. Sept. 1, 1948.) 5 506. Seals of departments or agencies. Whoever falsely makes, forges, counterfeits, mutilates, or alters the seal of any department or agency of the United States; or Whoever knowingly uses, affixes, or impresses any such fraudulently made, forged, counter- feited, mutilated, or altered seal to or upon any certificate, instrument, commission, document, or paper, of any description; or Whoever, with fraudulent intent, possesses any such seal, knowing the same to have been so falsely made, forged, counterfeited, mutilated, or al- tered- Shall be fined not more than $5,000 Or im- prisoned not more than 5 years, or both. (June 25, 1948, oh. 645, § 1, 62 stat. 714, eff. Sept. 1, 1948.) 5 701. Official badges, identification cards, other insignia. Whoever manufactures, sells, or possesses any badge, identification card, or other insignia, of the design prescribed by the head of any depart- ment or agency of the United States for use by any officer or employee thereof, or any colorable imitation thereof, or photographs, prints, or in any other manner makes or executes any engrav- ing, photograph, print, or impression in the like- ness of any such badge, identification card, or other insignia, or any colorable imitation thereof, except as authorized under regulations made pur- suant to law, shall be fined not more than $250 or imprisoned not more than 6 months, or both. (June 25, 1948, ch. 645 § 1, 62 Stat. 731, eff. Sept. 1, 1948~) CHAPTER 47.-FRAUD AND FALSE STATEMENTS 5 1001. Statements or entries generally. Whoever, in any matter withifi the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or cov- ers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements Or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent state- ment or entry shall be fined not more than $10,000 or imprisoned not more than 5 years, or both. (June 25, 1948, oh. 645. § 1, 62 Stat. 749, eff. Sept. 1, 1948.) SECURITY OF VESSELS AND WATERFRONT FACILITIES (81) PAGENO="0212" 1776 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 * CHAPTER 105.-SABOTAGE § 2153. Destruction of war material, war premises, or war utilities. (a) Whoever, when the United States is at war, or in times of national emergency as declared by the President or by the Congress, with intent to injure, interfere with, or obstruct the Uneted States or any associate nation in preparing for or carrying on the war or defense activities, or, with reason to believe that his act may injure, inter- fere with, or obstruct the United States or any associate nation in preparing for or carrying on the war or defense activities, willfully injures, destroys, contaminates or infects, or attempts to so injure, destroy, contaminate or infect any war material, war premises, or war utilities, shall be fined not more than $10,000 or imprisoned not more than thirty years, or both. (b) If two or more persons conspire to violate this section, and one or more of such persons do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be punished as provided in subsection (a) of this section. (As amended June 30, 1953, ch. 175, § 2, 67 Stat. 133; Sept. 3, 1954, ch. 1261, title I, § 102, 68 Stat. 1217.) § 2155. Destruction of national-defense materials, national-defense premises or national-de- fense utilities. (a) Whoever, with intent to injure, interfere with, or obstruct the national defense of the United States, willfully injures, destroys, con- taminates or infects, or attempts to so injure, destroy, contaminate or infect any national-de- fense material, national-defense premises, or na- tional-defense utilities, shall be fined not more than $10 000 or imprisoned not more than ten years, or both. (b) If two or more persons conspire to violate this section, and one or more of such persons do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be punished as provided in subsection (a) of this section. (As amended Sept. 3, 1954, ch. 1261, title I, § 104, 68 Stat. 1218.) CHAPTER 111.-SHIPPING § 2271. Conspiracy to destroy vessels. Whoever,on the high seas, or within the United States, willfully and corruptly conspires, com- bines, and confederates with any other person, such other person being either within or without the United States, to cast away or otherwise de- stroy any vessel, with intent to injure any person that may have underwritten or may thereafter underwrite any policy of insurance thereon or on goods on board thereof, or with intent to injure any person that has lent or advanced, or may lend or advance, any money on such vesselon bottomry or respondentia; or Whoever, within the United States, builds, or fits out any vessel to be cast away or destroyed, with like intent- Shall be fined not mere than $10,000 or impris- oned not more than 10 years, or both. (June 25, 1948, ch. 645, § 1, 62 Stat. 803, eff. Sept. 1, 1948.) § 2272. Destruction of vessel by owner. Whoever, upon the leigh seas or on any other waters within the admiralty and maritime juris- diction of the United States, willfully and cor- ruptly casts away or otherwise destroys any ves- sel of which he is owne:r, in whole or in part, with intent to injure any person that may underwrite any policy of insurance thereon, or any merchant that may have goods thereon, or any other owner of such vessel, shall be imprisoned for life or for any term of years. (June 25, 1948, ch. 645, § 1, 62 Stat. 803, eff. Sept. 1~ 1948.) § 2273. Destruction of vessel by nonowner. Whoever, not being an owner7 upon the high seas or on any other w.eters within the admiralty and maritime jurisdiction of the United States, willfully and corruptly casts away or otherwise destroys any vessel of the United States to which he belongs, or willfully attempts the destruction thereof, shall be imprisoned not more than 10 years. (June 25, 1948, ch. 645, § 1, 62 Stat. 804, eff. Sept. 1, 1948.) § 2274. Destruction or misuse of vessel by person In charge. Whoever, being the owner, master or person in charge or command of any private vessel, foreign or domestic, or a member of the crew or other per- son, within the territcrial waters of the United States, willfully causes or permits the destruction or injury of such vessel or knowingly permits said vessel to be used as a pluce of resort for any person conspiring with another or preparing to commit any offense against th United States, or any of- fense in violation of the treaties of the United States or of the obligations of the United States under the law of nations, or to defraud the United States; or knowingly permits such vessels to be used in violation of the rights and obligations of the United States under the law of nations, shall be fined not more than $10,000 or imprisoned not more-than 10 years, or koth. In case such vessels are so used, with the knowl- edge of the owner or master or other person in charge or command thereof, the vessel, together with her tackle, apparel, furniture, and equip- ment, shall be subject ~o seizure and forfeiture to § 2153 UNITED STATES COAST GUARD (32) PAGENO="0213" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 1777 SECURITY OF VESSELS AND WATERFRONT FACILITIES 8 2384 the United States in the same manner as mer- chandise is forfeited for violation of the customs revenue laws. (June 25, 1948, ch. 645, § 1, 62 Stat. 804, eff. Sept. 1, 1948.) § 2275. Firing or tampering with vessels. Whoever sets fire to any vessel of foreign reg- istry, or any vessel of American registry entitled to engage in commerce with foreign nations, or to any vessel of the United States, or to the cargo of the same, or tampers with the motive power or instrumentalities of navigation of such vessel, or places bombs or explosives in or upon such vessel, or does any other act to or upon such vessel while within the jurisdiction of the United States, or, if such vessel is of American registry, while she is on the high sea, with intent to injure or endanger the safety of the vessel or of her cargo, or of per- sons on board, whether the injury or danger is so intended to take place within the jurisdiction of the United States, or after the vessel shall have departed therefrom and whoever attempts to do so shall be fined not more than $10,000 or im- prisoned not more than 20 years, or both. (June 25, 1948, ch. 645, § 1, 62 Stat. 804, eff. Sept. 1, 1948.) O 2276. Breaking and entering vessel. Whoever, upon the high seas or on any other waters within the admiralty and maritime ~uris- diction of the United States, and out of the Juris- diction of any particular State, breaks or enters any vessel with intent to commit any felony, or maliciously cuts, spoils, or destroys any cordage, cable, buoys, buoy rope, head fast or other fast, fixed to the anchor or moorings belonging to any vessel, shall be fined not more than $1,000 or im- prisoned not more than 5 years, or both. (June 25,1948, ch. 645, § 1,62 Stat. 804, eff. Sept. 1, 1948.) 0 2277. Explosives or dangerous weapons aboard vessels. (a) Whoever brings, carries, or possesses any dangerous weapon, instrument or device2 or any dynamite, nitroglycerin, or other explosive arti- cle or compound on board of any vessel registered, eni!olled, or licensed under the laws of the United States, or any vessel purchased2 requisitioned, chartered, or taken over by the United States pur- suant to the provisions of Act June 6, 1941, ch. 174, 55 Stat. 242, as amended, without previously ob- taining the permission of the owner or the master of such vessel; or Whoever brings, carries, or possesses any such weapon or explosive on board of any vessel in the possession and under the control of the United States or which has been seized and forfeited by the United States or upon which a guard has been placed by the United States pursuant to the pro- visions of section 191 of Title 50, without pre- viously obtaining the permission of the Captain of the Port in which such vessel is located, shall be fined not more than $1,000 or imprisoned not more than 1 year, or both. (b) This section shall not apply to the person- nel of the Armed Forces of the United States or to officers or employees of the United States or of a State or of a political subdivision thereof, while acting in the performance of their duties, who are authorized by law or by rules or regulations to own or possess any such weapon or explosive. (June 25, 1948, ch. 645, § 1, 62 Stat. 804, eff. Sept. 1,1948.) 0 2278. Explosives on vessels carrying steerage passengers. Whoever, being the master of a steamship or other vessel referred to in section 151 of Title 46, except as otherwise expressly provided by law, takes, carries, or has on board of any such vessel any nitroglycerin, dynamite, or any other explo- sive article or compound, or any vitriol or like acids, or gunpowder, except for the ship's use, or any article or number of articles, whether as a cargo or ballast, which, by reason of the nature or quantity or mode of storage thereof, shall, either singly or collectively, be likely to endanger the health or lives of the passengers or the safety of the vessel, shall be fined not more than $1,000 or imprisoned not more than 1 year, or both. (June 25, 1948, ch. 645, § 1, 62 Stat. 805, eff. Sept. 1, 1948.) 0 2279. Boarding vessels before arrival. Whoever, not being in the United States service, and not being duly authorized by law for the pur- pose, goes on board any vessel about to arrive at the place of her destination, before her actual ar- rival, and before she has been completely moored, shall be fined not more than $200 or imprisoned not more than 6 months, or both. The master of such vessel may take any such person into custody, and deliver him up forthwith to any law enforcement officer, to be by him taken before any committing magistrate, to be dealt with according to law. (June 25, 1948, ch. 645, § 1, 62 Stat. 805, eff. Sept. 1, 1948.) CHAPTER 115.-TREASON, SEDITION, AND SUBVERSIVE ACTIVITIES § 2384. Seditious conspiracy. If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, (83) PAGENO="0214" 1778 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 §2384 UNITED STATES COAST GUARD or to destroy by force the Government of the or possess any property of the United States con- United States, or to levy war against them, or to trary to the authority thereof, they shall each be oppose by force the authority thereof, or by force fined not more than $~O,OOO or imprisoned not to prevent, hinder, or delay the execution of any more than twenty yeare, or both. (As amended law of the United States, or by force to seize, take, July 24, 1956, oh. 678, § 1, 70 Stat. 623.) (84) PAGENO="0215" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 1779 TITLE 46-SHIPPING CHAPTER 7-CARRIAGE OF EXPLOSIVES OR DAN- GEROUS SUBSTANCES 170. Regulation of carriage of explosives or other danger- ous articles on vessels. (1) Vessel defined. (2) Passenger-carrying vessel defined. (3) Transportation, etc., of certain explosives pro- hibited. (4) Transportation, etc., of certain high explosives on passenger-carrying vessels prohibited; exceptions. (5) Same; non-passenger-carrying vessels. (6) Transportation, etc., of other explosives or other dangerous articles; exceptions. (7) Regulations for protection against hazards created by explosives or other dangerous articles. (8) Masters, owners, etc., required to refuse unlaw- ful transportation of explosives or other dangerous articles. (9) Publication of, hearings on, and effective date of proposed regulations. (10) Tendering explosives or other dangerous articles for shipment without divulging true character or in violation of section. (11) Exemption of vessels from section or regula- tions when compliance unnecessary for safety. (12) Agencies charged with enforcement. (13) Detention of vessels pending compliance with section and regulations; penalty for false swearing. (14) Violation of section or regulations; penalty; liability of vessel. (15) Same; increased penalty in event of personal injury or death. (16) Transportation of motor vehicles carrying gasoline, etc., penalty for violations. 170a. Same; use by vessels of launches, lifeboats, etc., employing combustible fuel; regulations. 170b. Same; appropriations. § 170. Regulation of can-loge of explosives or other dangerous articles on vessels. (1) Vessel defined. The word "vessel" as used in this section shall include every vessel, domestic or foreign, regard- less of character, tonnage, size, service, and whether self-propelled or not, on the navigable waters of the United States, including its Terri- tories and possessions, but not including the Panama Canal Zone, whether arriving or depart- ing, or under way, moored, anchored, aground, or while in drydock; it shall not include any public vessel which is not engaged in commercial service, nor any vessel subject to the provisions of section 391a of this title, which is constructed or converted for the principal purpose of carrying inflammable or combustible liquid cargo in bulk in its own tanks: Provided, That the provisions of subsec- tion (3) of this section shall apply to every such vessel subject to the provisions of section 391a of this title, which is constructed or converted for the principal purpose of carrying inflammable or combustible liquid cargo in bulk in its own tanks. (2) Passenger-carrying vessel defined. The phrase "passenger-carrying vessel" as used in this section, when applied to a vessel subject to any provision of the International Convention for Safety of Life at Sea, 1929, means a vessel which carries or is authorized to carry more than twelve. passengers. (3) Transportation, etc., of certain explosives prohibited. It shall be unlawful knowingly to transport, carry, convey, store, stow, or use on board any vessel fulminates or other detonating compounds in bulk in dry condition, or explosive composi- tions that ignite spontaneously or undergo marked decomposition when subjected for forty-eight con- secutive hours to a temperature of one hundred and sixty-seven degrees Fahrenheit, or composi- tions containing an ammonium salt and a chlorate, or other like explosives. (4) Transportation, etc., of certain high explosives on passenger-carrying vessels prohibited; exceptions. It shall be unlawful knowingly to transport, carry, convey, store, stow, or use on board any passenger-carrying vessel any high explosives such as, and including, liquid nitroglycerin, dyna- mite, trinitrotoluene, picrates, detonating fuzes, fireworks that can be exploded en masse, or other explosives susceptible to detonation by a blastin cap or detonating fuze, except ships signal an emergency equipment, and samples of such explo- sives (but not including liquid nitroglycerin) for laboratory or sales purposes in restricted quan- tities as may be permitted by regulations of the Commandant of the Coast Guard established hereunder. (5) Same; non-passenger-carrying vessels. It shall be unlawful knowingly to transport, carry, convey, store, stow, or use on board any vessel other than a passenger-carrying vessel, any high explosive referred to in subsection (4) of this section except as permitted by the regulations of the Commandant of the Coast Guard estab- lished hereunder. (6) Transportation, etc., of other explosives or other dangerous articles; exceptions. (a) It shall be unlawful knowingly to transport, carry, convey, store, stow, or use (except as fuel for its own machinery) on board any vessel, ex- (85) PAGENO="0216" 1780 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 UNITED STATES COAST GUARD cept one specifically exempted by paragraph (b) of this subsection, any other explosives or other dangerous articles or substances, including in- flammable liquids, inflammable so]ids, oxidizing materials, corrosive liquids, compressed gases, poisonous articles or substances, hazardous arti- cles, and ships' stores and supplies of a dangerous nature, except as permitted by the regulations of the Commandant of the Coast t~1uard established hereunder: Provided, That all of the provisions of this subsection relating to the transportation, carrying, conveying, storing, stowing, or use of explosives or other dangerous articles or substances shall apply to the transportation, carrying, con- veying, storing, stowing, or using on board any passenger vessel of any barrels, drums, or other packages of any combustible liquid which gives off inflammable vapors (as determined by flash- point in open cup tester as used for test of burnin oil) at or below a temperature of one hundred an fifty degrees Fahrenheit and above eighty degrees Fahrenheit. (b) This subsection shall not apply to- (i) vessels not exceeding fifteen gross tons when not engaged in carrying passengers for hire; (ii) vessels used exclusively for pleasure; (iii) vessels not exceeding five hundred gross tons while engaged in the fisheries; (iv) tugs or towing vessels: Provided, however, That any such vessel, when engaged in towing any vessel that has explosives, inflammable liquids, or inflammable compressed gases on board on deck, shall be required to make such provisions to guard against and extinguish fire as shall be prescribed by the Commandant of the Coast Guard; (v) cable vessels, dredges, elevator vessels, fire- boats, icebreakers, pile drivers, pilot boats, welding vessels, salvage and wrecking vessels; (vi) inflammable or combustible liquid cargo in bulk: Provided, however, That the handling and stowage of any inflammable or combustible liquid cargo in.bulk shall be subject to the provisions of section 391a of this title. (7) Regulations for protection against hazards created by explosives or other dangerous articles. In order to secure effective provisions against the hazards of health, life, limb, or prop- erty created by explosives or other dangerous articles or substances to which subsection (3)- (4), (5) or (6) of this section apply- (a) The Commandant of the Coast Guard shall by. regulations define, describe, name, and classify all explosives or other dangerous articles or substances, and shall establish such regulations as may be necessary to make effective the pro- visions of this section with respect to the descrip- tive names, packing, marking, labeling, and certi- fication of such explosives or other dangerous articles or substances; with respect to the specifi- cations of containers for explosives or other dan- gerous articles or substances; with respect to the marking and labeling of said containers; and shall accept a~d adopt for the purposes above mentioned in this subsection such definitions, descriptions, descriptive names, classifications, specifications of containers, packing, marking, labeling, and certi- fication of explosives or other dangerous articles or substances to the extent as are or may be estab- lished from time to time by the Interstate Com- merce Commission insofar as they apply to ship- pers by common carriers engaged in interstate or foreign commerce by water. The Commandant of the Coast Guard shall also establish regulations with respect to the marking, handling, storage, stowage, and use of explosives or other dangerous articles or substances on board such vessels; with respect to the disposition of any explosives or other dangerous articles or substances found to be in an unsafe condition; with respect to the neces- sary shipping papers, manifests, cargo-stowage plans, and the description and descriptive names of explosives or other dangerous articles or sub- stances to be entered in such shipping documents; also any other regulations for the safe transporta- tion, carriage, conveyance, storage, stowage, or use of explosives or other dangerous articles or sub- stances on board such vessels as the Commandant of the Coast Guard shall deem necessary; and with respect to the inspection of all the foregoing men- tioned in this paragraph. The Commandant of the Coast Guard may utilize the services of the Bureau for the Safe Transportation of Explosives and Other Dangerous Articles, and of such other organizations whose services he may deem to be helpful. (b) The transportation, carriage, conveyance, storage, stowage, or use of such explosives or other dangerous articles or substances shall be in accord- ance with the regulations so established, which shall, insofar as applicable to them, respectively, be binding upon shippers and the owners, char- terers, agents, masters, or persons in charge of such vessels and upon all other persons transport- ing, carrying, conveying, storing, stowing, or usmg on board any such vessels any explosives or other dangerous articles or substances: Provided, That this section shall not be construed to prevent the transportation of military or naval forces with their accompanying munitions of war and stores. (c) Nothing contained in this section shall be construed to relieve any vessel subject to the provi- sions of this section from any of the require- ments of title 52 (sees. 4399 to 4500, inclusive) of the Revised Statutes or acts amendatory or sup- plementary thereto and regulations thereunder applicable to such vessel, which are not inconsistent herewith. (36) PAGENO="0217" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 1781 SECURITY OF VESSELS AND WATERFRONT FACILITIES (d) Nothing contained in this section shall be construed as preventing the enforcement of rea- sonable local regulations now in effect or hereafter adopted, which are not inconsistent or in conflict with this section or the regulations of the Com- mandant of the Coast Guard established here- under. (e) The United States Coast Guard shall issue no permit or authorization for the loading or dis- charging to or from any vessel at any point or place in the United States, its territories or posses- sions (not including Panama Canal Zone) of any explosives unless such explosives, for which a per- mit is required by the regulations promulgated pursuant to this section, are packaged, marked, and labeled in conformity with regulations pre- scribed by the Interstate Commerce Commission under section 835 of Title 18, and unless such per- mit or authorization specifies that the limits as to maximum quantity, isolation and remoteness established by local, municipal, territorial, or State authorities for each port shall not be ex- ceeded. Nothing herein contained shall be deemed to limit or restrict the shipment, transportation, or handling of military explosives by or for the Armed Forces of the United States. (8) Masters, owners, etc., required to refuse un- lawful transportation of explosives or other dangerous articles. Any master, owner, charterer, or agent shall re- fuse to transport any explosives or other dangerous articles or substances in violation of any provisions of this section and the regulations established thereunder, and may require that any container or package which he has reason to believe con- tains explosives or other dangerous articles or substances be opened to ascertain the facts. (9) Publication of, hearings on, and effective date of proposed regulations. Before any regulations or any additions, alterations, amendments, or repeals thereof are made under the provisions of this section, except in an emergency, such proposed regulations shall be published and public hearings with respect thereto shall be held on such notice as the Com- mandant of the Coast Guard deems advisable under the circumstances. Any additions, altera- tions, amendments, or repeals of such regulations shall, unless a shorter time is authorized by the Commandant of the Coast Guard, take effect ninety days after their promulgation. (10) Tendering explosives or other dangerous articles for shipment without divulging true character or in violation of section. It shall be unlawful knowingly to deliver or cause to be delivered, or tender for shipment to any vessel subject to this section any explosives or any other dangerous articles or substances defined in the regulations of the Commandant of the Coast Guard established hereunder under any false or deceptive descriptive name, marking, in- voice, shipping paper, or other declaration and without informing the agent of such vessel in writ- ing of the true character thereof at or before the time such delivery or transportation is made. It shall be unlawful for any person to tender for shipment or ship on any vessel to which this sec- tion applies, any explosives or other dangerous articles or substances the transportation, carriage, conveyance, storage, stowage, or use of which on board vessels is prohibited by this section. (11) Exemption of vessels from section or regu- lations when compliance unnecessary for safety. The Commandant of the Coast Guard may exempt any vessel or class of vessels from any of the provisions of this section or any regula- tions or parts thereof established hereunder upon a finding by him that the vessel, route, area of operations, conditions of the voyage, or other circumstances are such as to render the application of this section or any of the regulations established hereunder unnecessary for the purposes of safety: Provided, That except in an emergency such ex- ception shall be made for any vessel or class of vessels only after a public hearing. (12) Agencies charged with enforcement. The provisions of this section and the regu- lations established hereunder shall be enforced primarily by the Coast Guard of the Department of the Treasury; which with the consent of the head of any executive department, independent establishment, or other agency of the Government, may avail itself of the use of information, advice, services2 facilities, officers, and employees thereof (including the field service) in carrying out the provisions of this section: Provided, That no offi- cer or employee of the United States shall receive any additional compensation for such services, except as permitted by law. (13) Detention of vessels pending compliance with section and regulations; penalty for false swearing. Any collector of customs may, upon his own knowledge, or upon the sworn information of any reputable citizen of the United States, that any vessel subject to this section is violating any of the provisions of this section or of the regula- tions established hereunder, by written order served on the master, person in charge of such vessel, or the owner or charterer thereof, or the agent of the owner or charterer, detain such ves- sel until such time as the provisions of this sec- tion and of the regulations established hereunder have been complied with. If the vessel be ordered detained, the master, person in charge, or owner (87) PAGENO="0218" 1782 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 UNITED STATES COAST GUARD or charterer, or the agent of the owner or charterer thereof, may within five days appeal to the Com- mandant of the Coast Guard, who may, after in- vestigation, affirm, set aside, or modify the order of such collector. If any reputable citizen of the United States furnishes sworn information to any collector of customs that any vessel, subject to this section, is violating any of the provisions of this section or of the regulations established hereunder, and such information is knowingly false, the per- son so falsely swearing shall be deemed guilty of perjury. (14) Violation of section or regulations; penalty; liability of vessel. Whoever shall knowingly violate any of the pro- visions of this section or of any regulations estab- lished under this section shall be subject to a penalty of not more than $2,000 for each violation. In the case of any such violation on the part of the owner, charterer, agent, master, or person in charge of the vessel, such vessel shall be liable for the penalty and may be seized and proceeded against by way of libel in the district court of t,he United States in any district in which such vessel maybe found. (15) Same; increased penalty in event of per- sonal injury or death. When the death or bodily injury of any person results from the violation of this section or any regulations made in pursuance thereof, the person or persons who shall have knowingly violated or caused to be violated such provisions or regulations shall be fined not more than $10,000 or imprisoned notmore than ten years, orboth. (16) Transportation of motor vehicles carrying gasoline, etc., penalty for violations. The transportation by vessels of gasoline or any other inflammable or combustible liquid or inflam- mable gas when carried by motor vehicles using the same as a source of their own motive power, or motive power for driving auxiliaries forming a part of the vehicle, shall be lawful under the condi- tions as set forth in the regulations established by the Commandant of the Coast Guard under this section: Provided, however, That the motor or motors in any vehicle be stopped immediately after entering the said vessel, and that the same be not restarted until immediately before said vehicle shall leave the vessel after said vessel has been made fast to the wharf or ferry bridge at which she lands. All other fire, if any, in such vehicle shall be extinguished before entering the said vessel and the same shall not be relighted until after said vehicle shall leave the vessel: Provided further, That the Commandant of the Coast Guard, may, by regulation, permit the operation on board vessels of motive power for driving auxili- aries forming a part of motor vehicles, under such conditions as he may deem proper: Provided fur- ther, That any owner, charterer, agent, master, or other person having charge of a vessel shall have the right to refuse to transport motor vehicles tile fuel titnks of which contain gasoline or other in- flammable or combustible liquid or inflammable gas used as a source of power for tile vehicle or its auxiliaries: Provided further, That the owner, motor carrier, and operator of any such vehicle in which all fires have not been extinguished or the motor or motors stopped as required by this sub- section or regulations established thereunder, and the owner, charterer, agent, master, or person in charge of the vessel on lvhich such vehicle is trans- ported, shall each be liable to a penalty of not more than $500, for which the motor vehicle and vessel respectively, shall be liable: Altd provided further, That a violation of this subsection shall not subject any person to the penalty provided in subsection (14) or (15) of this section. (R.S. 4472; Feb. 27, 1877, eb. 69, 1, 19 Stat. 252; Feb. 20, 1901, cb. 386, 31 Stat. 799; Feb. 18, 1905, cb. 586, 33 Stat. 720; Mar. 3, 1905, cb. 1457. § 8, 33 Stat. 1031; May 25, 1906, cb. 2565, 14 Stat. 204; Jaa. 24. 1913, ch. 20, 37 Stat. 650; Mar. 4, 1913, cb. 145, § 1, 37 Stat. 716; Oct. 22, 1914, eb. 336, 38 Stat. 766' Star. 29. 1918, cb. 10, 40 Stat. 499; Mar. 2, 1925, eb. 3.87, 43 ~tat. 1093; Oct. 9, 1940, cb. 777, § 1, 54 Stat. 1023; Proc. No. 2695, Jaty 4, 1946, ii FR. 7517, 60 Stat. 1352; 1946 Reorg. Plan Na. 3, §~ 101-204, eff. Jaly 16. 1946, 11 FR. 7875, 60 Stat. 1097; July 16, 1952, cb. 887. 66 Stat. 730.) § 170a. Same; use by vessels of launches, lifeboats, etc., employing combustible fuel; regulations. Nothing contained in section 170 of this title shall prohibit the use by any vessel of motorboats, launches, or lifeboats equipped with engines using an inflammable or combustible fuel, nor shall any- thing contained in said section prohibit such motorboats, launches, or lifeboats from carrying such inflammable or combustible fuel in their tanks: Provided, Thatno such inflammable or com- bustible fuel for the engines of such motorboats, launches, or lifeboats shall be carried except as may be prescribed by regulations of the Comman- dant of the Coast Guard: Provided further, That the use of such lifeboats shall be under Such regu- lations as shall be prescribed by the Commandant of the Coast Guard. § 170b. Same; appropriations. There are authorized to be appropriated such sums of money as may be necessary to carry out the provisions of sections 170-170b, 391a, 402, 414, and 481 of this title and sections 382-885 of Title 18. (Oct. 9, 1940, ch. 777, § 8, 54 Stat. 1028.) (38) PAGENO="0219" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 1783 SECURITY OF VESSELS AND WATERFRONT FACILITIES CHAPTER 14-INSPECTION OF STEAM VESSELS 391a. Vessels having on board inflammable or combustible liquid cargo in bulk. (1) Vessels included. (2) Rules and regulations for handling liquid cargo. (3) Hearing before approval of rules. (4) Certificate of inspection and permit required; time of endorsing permit; inspection; duration of permit; vessels of foreign nations; permit for prohibited materials. (5) Shipping documents required on board; contents. (6) Number of officers and tankermen; certificate as tankerman; suspension or revocation of certificate. (7) Penalties. (5) Effective date of rules and regulations. t 391 a. Vessels having on board inflammable or combustible liquid cargo in bulk. (1) Vessels included. All vessels, regardless of tonnage, size, or man- ner of propulsion, and whether self-propelled or not, and whether carrying freight or passengers for hire or not, that shall have on board any in- flammable or combustible liquid cargo in bulk, except public vessels owned by the United States, other than those engaged in commercial service, shall be considered steam vessels for the purposes of title 52 of the Revised Statutes and shall be subject to the provisions thereof: Provided, That this section shall not apply to vessels having on board only inflammable or combustible liquid for use as fuel or stores or to vessels carrying liquid cargo only in drums, barrels, or other packages. (2) Rules and regulations for handling liquid cargo. In order to secure effective provision against the hazards of life and property created by the vessels to which this section applies, the Commandant of the Coast Guard shall establish such additional rules and regulations as may be necessary with respect to the design and construction, alteration, or repair of such vessels, including the superstruc- tures, hulls, places for stowing and carrying such liquid cargo, fittings, equipment, appliances, pro- pulsive machinery, auxiliary machinery, and boilers theriiof; and with respect to all materials used in such construction, alteration, or repair; and with respect to the handling and stowage of such liquid cargo; the manner of such handling or stowage; and the machinery and appliances used in such handling and stowage; and with re- spect to equipment and appliances for lifesaving and fire protection; and with respect to the opera- tion of such vessels; and with respect to the re- quirements of the manning of such vessels and the duties and qualifications of the officers and crews thereof; and with respect to the inspection of all the foregoing. In establishing such rules and regulations the Commandant of the Coast Guard may adopt rules of the American Bureau of Ship- ping or slmilar American classification society for classed vessels insofar as such rules pertain to the efficiency of hulls and the reliability of machinery of vessels to which this section applies. In estab- lishing such rules and regulations, the Comman- dant of the Coast Guard shall give due considera- tion to the kinds and grades of such liquid cargo permitted to be on board such vessel. (3) Hearing before approval of rules. Before any rules and regulations, or any altera- tion, amendment, or repeal thereof, are approved by the Commandant of the Coast Guard under the provisions of this section, except in an emergency the said Commandant shall publish such rules and regulations and hold hearings with respect thereto on such notice as he deems advisable under the circumstances. (4) Certificate of inspection and permit required; time of endorsing permit; inspection; duration of permit; vessels of foreign nations; permit for prohibited materials. No vessel subject to the provisions of this section shall, after the effective date of the rules and regu- lations established hereunder, have on beard such liquid cargo, until a certificate of inspection has been issued to such vessel in accordance with the provisions of title 52 of the Revised Statutes and until a permit has been endorsed on such certificate of inspection by the Coast Guard, indicating that such vessel is in compliance with the provisions of this section and the rules and regulations estab- lished hereunder, and showing the kinds and grades of such liquid cargo that such vessel may have on board or transport. Such permit shall not be endorsed by the Coast Guard on such certif- icate of inspection until such vessel, has been in- spected by the Coast Guard and found to be in compliance with the provisions of this section and the rules and regulations established hereunder. For the purpose of any such inspection, approved plans and certificates of class of the American Bu- reau of Shipping or other recognized classification society for classed vessels may be accepted as evi- dence of the structural efficiency of the hull and the reliability of the machinery of such classed ves- sels except as far as existing law places definite re- sponsibility on the Coast Guard. A permit issued under the provisions of this section shall be valid for a period of time not to exceed the duration of (39) PAGENO="0220" 1784 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 UNITED STATES COAST GUARD the certificate of inspection on which such permit is endorsed, and shall be subject to revocation by the Coast Guard whenever it shall find that the vessel concerned does not comply with the condi- tions upon which such permit was issued: Pro- vided, That the provisions of this subsection shall not apply to vessels of a foreign nation having on board a valid certificate of inspection recognized under law or treaty by the United States: And provided further, That no permit shall be issued under the provisions of this section authorizing the presence on board any vessel of any of the materials expressly prohibited from being thereon by subsection 3 of section 170 of thistitle. (5) Shipping documents required on board; contents. Vessels subject to the provisions of this section shall have on board such shipping documents as may be prescribed by the Commandant of the Coast Guard indicating the kinds, grades, and ap- proximate quantities of such liquid cargo on board such vessel, the shippers and consignees thereof, and the location of the shipping and destination points. (6) Number of officers and tankermen; certificate as tankerman; suspension or revocation of certificate. (a) In all cases where the certificate of inspec- tion does not require at least two licensed officers the Coast Guard shall enter in the permit issued to any vessel under the provisions of this section the number of the crew required to be certificated as fankermen. (b) The Coast Guard shall issue to applicants certificates as tankerman, stating the kinds of liquid cargo the holder of such certificate is, in the judgment of the Coast Guard, qualified to handle aboard vessels with safety, upon satisfac- tory proof and examination, in form and manner prescribed by the Commandant of the Coast Guard, that the applicant is in good physical con- dition, that such applicant is trained in and capa- ble efficiently to perform the necessary operations aboard vessels having such liquid cargo on board, and that the applicant fulfills the qualifications of tankerman as prescribed by the Commandant of the Coast Guard under the provisions of this sec- tion. Such certificates shall be subject to sus- pension or revocation on the same grounds and in the same manner and with like procedure as is provided in the case of suspensinn or revocation of licenses of officers under the provisions of sec- tion 239 of this title. (7) Penalties. The owner, master, or person in charge of any vessel subject to the provisions of this section, or any or all of them, who shall violate the provi- sions of this section, or of the rules and regulations established hereunder, shall besubject to a fine of not more than $1,000 or imprisonment for not more than one year, or both such fine and imprisonment. (8) Effective date of rules and regulations. The rules and regulations to be estnblishd pur- suant to this section shall become effective ninety days after their promulgation unless the Com- mandant of the Coast Guard shall for good cause fix a different time. (5.5. 4417a, as added June 28, 1988, oh. 720, 49 Stat. 1889, and amended Oct. 9, 1940, cl 777, 9 8 54 Stat. 1028; 2946 Smog. Plan No. 3, §9 101-104, off. Juiy 16, 1940, 11 P.R. 7875, 60 stat. 1097.) CHAPTER 24-MERCHANT MARINE ACT, 1920 § 882. Number of passengers cargo vessels may carry. Cargo vessels documented under the laws of the United States may carry not to exceed sixteen per- sons in addition to the crew between any ports or places in the United States or its Districts, Ter- ritories, or possessions, or between any such port or place and any forei~n.port, or from any foreign port to another foreign port, and such vessels shall not be held to be `passenger vessels" or "ves- sels carrying passengers" within the meaning of the inspection laws and the rules and regulations thereunder: Provided, That nothing herein shall be taken to exempt such vessels from the laws, rules, and regulations respecting life-saving equipment: Provided further, That when any such vessel carriks persons other than the crew as herein provided for, the owner, agent, or master of the vessel shall first notify such persons of the presenc.e on board of any dangerous articles, as defined by law, or of any other condition or circumstance which would constitute a risk of safety for passen- ger or crew. The privilege bestowed by this section on vessels of the United States shall be extended insofar as the foreign trade is concerned to the cargo vessels of any nation which allows the like privilege to cargo vessels of the United States in trades not restricted to vessels under its own flag. Failure on the part of the owner, agent, or mas- ter of the vessel to give such notice shall subject (40) PAGENO="0221" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 1785 SECTJRITY OF VESSELS AND WATERFRONT FACILITIES the vessel to a penalty of $500, which may be mitigated or remitted by the Commandant of the Coast Guard upon a proper representation of the facts. (June 5, 1920, cli. 250, 28, 41 Stat. 998; 1940 Reorg. Plan No. 3, §8 101-104, eff. July 10, 1948, 11 FR. 7875, 60 5tat. 1097.) NOTE: This law in modiied by the International Convention for Safety of Life at Sea, 1948, for all cargo vessels engaged on international voyages, which may carry no more than 12 p55. CHAPTER 28-CARRIAGE OF GOODS BY SEA 1300. Bills of lading subject to chapter. 1301. Definitions. 1302. Duties and rights of carrier. 1303. Responsibilities and liabilities of carrier and ship. (1) Seaworthiness. (2) Cargo. (3) Contents of bill. (4) Bill as prima facie evidence. (5) Guaranty of statements. (6) Notice of loss or damage; limitation of actions. (7) `Shipped" bill of lading. (8) Limitation of liability for negligence. 1304. Rights and immunities of carrier and ship. (1) tjnseaworthiness. (2) Uncontrollable causes of loss. (3) Freedom from negligence. (4) Deviations. (5) Amount of liability; valuation of cargo. (6) Inflammable, explosive, or dangerous cargo. 1305. Surrender of rights; increase of liabilities; charter parties; general average. 1306. Special agreement as to particular goods. 1307. Agreement as to liability prior to loading or after discharge. 1308. Rights and liabilities under other provisions of Title 46. 1309. Discrimination between competing shippers. 1310. Weight of bulk cargo. 1311. Liabilities before loading and after discharge; effect on other laws. 11(12. Scope of chapter; "United States"; "foreign trade". 1313. Suspension of provisions by President. 1314. Effective date; retroactive effect. 1315. Short title. g 1300. Bills of lading aublect to chapter. Every bill of lading or similar document of title which is evidence of a contract for the carriage of goods by sea to or from ports of the United States, in foreign trade, shall have effect subject to the provisions of this Chapter. (Apr. 16, 1930, ch. 229, 49 Stat. 1207.) f 1301. Definitions. When used in this chapter- (a) The term "carrier" includes the owner or the charterer who enters into a contract of carriage with a shipper. (b) The term "contract of carriage" applies only to contracts of carriage covered by a bill of lading or any similar document of title, insofar as such document relates to the carriage of goods by sea, including any bill of lading or any similar doc- ument as aforesaid issued under or pursuant to a charter party from the moment at which such bill of lading or similar document of title regulates the relations between a carrier and a holder of the same. (c) The term "goods" includes goods, wares, merchandise, and articles of every kind whatso- ever, except live animals and cargo which by the contract of carriage is stated as being carried on deck and is so carried. (d) The term "ship" means any vessel used for the carriage of goods by sea. (e) The term "carriage of goods" covers the period from the time when the goods are loaded on to the time when they are discharged from the ship. (Apr. 16, 1936, ch. 229, § 1, 49 5tat. 1208.) § 1302. Duties and rights of carrier. Subject to the provisions of section 1306 of this title, under every contract of carriage of goods by sea, the carrier in relation to the loading, han- dling, stowage, carriage, custody, care, and dis- charge of such goods, shall be subject to the re- sponsibilities and liabilities and entitled to the rights and immunities set forth in sections 1303 and 1304 of this title. (Apr. 18, 1936, ch. 229, § 2, 49 Stat. 1208.) § 1303. Responsibilities and liabilities of carrier and ship. (1) Seaworthiness. The carrier shall be bound, before and at the beginning of the voyage, to exercise due diligence to-. a) Make the ship seaworthy; b) Properly man, equip, and supply the ship; c) Make the holds, refrigerating and cooling chambers, and all other parts of the ship in which goods are carried, fit and safe for their reception, carriage, and preservation. - (2) Cargo. The carrier shall properly and carefully load, handle, stow, Carry, keep, care for, and discharge the goods carried. (3) Contents of bill. After receiving the goods into his charge the carrier, or the master or agent of the carrier, shall, on demand of the shipper, issue to the shipper a bill of lading showing among other things- (41) PAGENO="0222" 1786 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 UNITED STATES COAST GUARD (a) The leading marks necessary for identifica- tion of the goods as the same are furnished in writing by the shipper before the loading of such goods starts, provided such marks are stamped or otherwise shown clearly upon the goods if un- covered, or on the cases or coverings in which such goods are contained in such a manner as should ordinarily remain legible until the end of the voyage. (b) Either the number of packages or pieces, or the quantity or weight, as the case may be, as fur- nished in writing by the shipper. (c) The apparent order and condition of the goods: Provided, That no carrier, master, or agent of the carrier1 shall be bound to state or show in the bill of lading any marks, nuipber, quantity, or weight which he has reasonable ground for sus- pecting not accurately to represent the goods actually received, or which he has had no reason- able means of checking. (4) Bill as prima fade evidence. Such a bill of lading shall be prima facie evi- dence ofthe receipt by the carrier of the goods as therein described in accordance with paragraphs (?) (a), (b), and (c), of this section: Provided, That nothing in this chapter shall be construed as repealing or limiting the application of any part of sections 81-124 of Title 49. (5) Guaranty of statements. The shipper shall be deemed to have guaranteed to the carrier the accuracy at the time of shipment of the marks, number, quantity, and weight, as furnished by him; and the shipper shall indemnify the carrier against all loss, damages, and expenses arising or resulting from inaccuracies in such par- ticulars. The right of the carrier to such indem- nity shall in no way limit his responsibility and liability under the contract of carriage to any per- son other than the shipper. (6) Notice of loss or damage; limitation of actions. Unless notice of loss or damage and the general nature of such loss or damage be given in writing to the carrier or his agent at the port of discharge before or at the time of the removal of the goods into the custody of the person entitled to delivery thereof under the contract of carriage, such re- moval shall be prima facie evidence of the delivery by the carrier of the goods as described in the bill of lading. If the loss or damage is not apparent, the notice must be given within three days of the delivery. Said notice of loss or damage may be endorsed upon the receipt for the goods given by the person taking deliver~y thereof. The notice in writing need not be given if the state of the goods has at the time of their receipt been the subject of joint survey or inspection. In any event the carrier and the ship shall be discharged from all liability in respect of loss or damage unless suit is brought within one year after delivery of the goods or the date when the goods should have been delivered: Provided, That if a notice of loss or damage, either apparent or concealed, is not given as provided for in this sec- tion, that fact shall not affect or prejudice the right of the shipper to bring suit within one year after the delivery of the goods or the date when the goods should have been delivered. In the case of any actual or apprehended loss or damage the carrier and the receiver shall give all reasonable facilities to each other for inspect- ing and tallying the goods. (7) "Shipped" bill of lading. After the goods are loaded the bill of lad- ing to be issued by the carrier, master, or agent of the carrier to' the shipper shall, if the shipper so demands, be a "shipped" bill of lading: Pro- vided, That if the shipper shall have previously taken up any document of title to suck goods, he shall surrender the same as against the issue of the "shipped" bill of lading, but at the option of the carrier such document of title may be noted at the port of shipment by the carrier, master, or agent with the name or names of the ship or ships upon which the goods have been shipped and the date or dates of shipment, and when so noted the same shall for the purpose of this section be deemed to constitute a "shipped" bill of lading. (8) LImitation of liability for negligence. Any clause, covenant, or agreement in a contract of carriage relieving the carrier or the ship from liability for loss or damage to or in connection with the goods, arising from negli- gence, fault or failure in the duties and obliga- tions provided in this section, or lessening such liability otherwise than as provided in this chapter, shall be null and void and of no effect. A benefit of insurance in favor of the carrier, or similar clause, shall be deemed to be a clause relieving the carrier from liability. (Apr. 16, 1936, rh 229, 1 3, 49 5tat. 1208.) § 1304. Rights and immunities of carrier and ship. (1) Unseoworthlness. Neither the carrier nor the ship shall be liable for loss or damage arising or resulting from unsea- worthiness unless caused by want of due diligence on the part of the carrier to make the ship sea- worthy, and to secure that the ship is properly manned, equipped, and supplied, and to make the holds, refrigerating and cool chambers, and all other parts of the ship in which goods are carried fit and safe for their reception, carriage, and preservation in aCcordance with the provisions of paragraph (1) of section 1303 of this title. When- / (42) PAGENO="0223" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 1787 SECURITY OF VESSELS AND WATERFRONT FACILITIES ever loss or damage has resulted from the unsea- worthiness, the burden of proving the exercise of due diligence shall be on the carrier or other persons claiming exemption under this section. (2) Uncontrollable causes of loss. Neither the carrier nor the ship shall be respon- sible for loss or damage arising or resulting from- (a) Act, neglect, or default of the master, mar- iner, pilot, or the servants of the carrier in the navigation or in the management of the ship; (b) Fire, unless caused by the actual fault or privity of the carrier; (c) Perils, dangers, and accidents of the sea or other navigable waters; (d) ActofGod; (e) Actof war; (f) Act of public enemies; (g) Arrest or restraint of princes, rulers, or people, or seizure under legal process; (h) Quarantine restrictions; (i) Act or omission of the shipper or owner of the goods, his agent or representative; (j) Strikes or lockouts or stoppage or restraint of labor from whatever cause, whether partial or general: Provided, That nothing herein contained shall be construed to relieve a carrier from respon- sibility for the carrier's own acts; (k) Riots and civil commotions; (1) Saving or attempting to save life or prop- erty at sea; (m) Wastage in bulk or weight or any other loss or damage arising from inherent defect, qual- ity, or vice of the goods; (n) Insufficiency of packing; (o) Insufficiency or inadequacy of marks; (p) Latent defects not discoverable by due dili- gence; and (q Any other cause arising without the actual fault and privity of the carrier and without the fault or neglect of the agents or servants of the carrier, but the burden of proof shall be on the person claiming the benefit of this exception to show that neither the actual fault or privity of the carrier nor the fault or neglect of the agents or servants of the carrier contributed to the loss or damage. (3) Freedom from negligence. The shipper shall not be responsible for loss or damage sustained by the carrier or the ship aris- ing or resulting from any cause without the act, fault, or neglect of the shipper, his agents, or his servants. (4) DevIations. Any deviation in saving or attempting to save life or property at sea, or any reasonable devia- tion shall not be deemed to be an infringement or breach of this chapter or of the contract of carriage, and the carrier shall not be liable for any loss or damage resulting therefrom: Provided, however, That if the deviation is for the purpose of loading or unloading cargo or passengers it shall, prima facie, be regarded as unreasonable. (5) Amount of liability; valuation of cargo. Neither the carrier nor the ship shall in any event be or become liable for any loss or damage to or in connection with the transportation of goods in an amount exceeding $500 per package lawful money of the United States, or in case of goods not shipped in packages, per customary freight unit, or the equivalent of that sum in other currency, unless the nature and value of such goods have been declared by the shipper before shipment and inserted in the bill of lading This declaration, if embodied in the bill of lading, shall be prima facie evidence, but shall not be conclu- sive on the carrier. By agreement between the carrier, master, or agent of the carrier, and the shipper another maximum amount than that mentioned in this paragraph may be fixed: Provided, That such maximum shall not be less than the figure above named. In no event shall the carrier be liable for more than the amount of damage actually sus- tained. Neither the carrier nor the ship shall be respon- sible in any event for loss or damage to or in connection with the transportation of the goods if the nature or value thereof has been knowingly and fraudulently misstated by the shipper in the bill of lading. (6) Inflammable, explosive, or dangerous cargo. Goods of an inflammable, explosive, or danger- ous nature to the shipment whereof the carrier, master or agent of the carrier, has not consented with knowledge of their nature and character, may at any time before discharge be landed at any place or destroyed or rendered innocuous by the carrier without compensation, and the shipper of such goods shall be liable for all damages and expenses directly or indirectly arising out of or resulting from such shipment. If any such goods shipped with such knowledge and consent shall become a danger to the ship or cargo, they may in like manner be landed at any place, or destroyed or rendered innocuous by the carrier without lia- bility on the part of the carrier except to general average, if any. (Apr. iS, 1920, cli. 229, 1 4, 49 Stat. 1110.) § 1305. Sunencter of rights; increase of liabilities; charter parties; general average. A carrier shall be at liberty to surrender in whole or in part all or any of his rights and kit- munities or to increase any of his responsibilities and liabilities under this chapter, provided such surrender or increase shall be embodied in th bill of lading issued to the shipper. (48) PAGENO="0224" 1788 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 UNITED STATES COAST GUARD The provisions of this chapter shall not be appli- cable to charter parties; but if bills of lading are issued in the case of a ship under a charter party, they shall comply with the terms of this chapter. Nothing in this chapter shall be held to prevent the insertion in a bill of lading of any lawlul pro- vision regarding general average. (Apr. 16, 1926, ch. 229, § 5, 49 Stat. 1211.) § 1306. Special agreement as to particular goods. Notwithstanding the provisions of sections 1303- 1305 of this title, a carrier, master or agent of the carrier, and a shipper shall, in regard to any particular goods be at liberty to enter into any agreement in any terms as to the responsibility and liability of the carrier for such goods, and as to tile rights and immunities of the carrier in respect to such goods, or his obligation as to seaworthiness (so far as the stipulation regarding seaworthiness is not contrary to public policy), or the care or diligence of his servants or agents in regard to the loading, handling, stowage, carriage, custody, care, and discharge of the goods carried by sea: Provided, That in this case no bill of lading has been or shall be issued and that the terms agreed shall be embodied in a receipt which shall be a non- negotiable document and shall be marked as such. Any agreement so entered into shall have full legal effect: Provided, That this section shall not apply to ordinary commercial shipments made in the ordinary course of trade but only to other ship- ments where the character or condition of the property to be carried or the circumstances, terms, and conditions under which the carriage is to be performed are such as reasonably to justify a spe- cial agreement. (Apr. 16, 1956, ch. 229, 1.6, 49 Stat. 1211.) § 1307. Agreement as to liability prior to loading or after discharge. Nothing contained in this chapter shall prevent a carrier or a shipper from entering into any agreement, stipulation, condition, reservation, or exemption as to the responsibility and liability of the carrier or the ship for the loss or damage to or in connection with the custody and care and han- dling of goods prior to the loading on and subse- quent to the discharge from the ship on which the goods are carried by sea. (Apr. 16, 1916, CS. 229, § 7. 49 Stat. 1212.) § 1308. Rights and liabilities under other provisions of Titlö 46. The provisions of this chapter shall not affect the rights and obligations of the carrier under the provisions of the Shipping Act, 1916, or under the provisions of sections 175, 181-183, and 183b-188 of this title or of any amendments thereto; or under the provisions of any other enactment for the time being in force relating to the limitation of tile liability of the owners of seagoing vessels. (Apr. 141, 1936, ch. 229, § 5, 49 Stat. 1212.) § 1309. Discrimination between competing ship- pers. Nothing contained in this chapter shall be con- strued as permitting a common carrier by water to discriminate between competing shippers sim- ilarly placed in time and circumstances, either (a) with respect to their right to demand and receive bills of lading subject to the provisions of this chapter; or (b) when issuing such bills of lading, either in the surrender of any of the carrier s rights and immunities or in the increase of any of the carrier's responsibilities and liabilities pur- suant to section 1305 of this title: or (c) in any other way prohibited by the Shipping Act, 1916, as amended. (Apr. 16, 1936, cii. 229, § 6, 49 Stat. 1212.) § 1310. Weight of bulk cargo. Where under the customs of any trade the weight of any bulk cargo inserted in the bill of lading is a weight ascertained or accepted by a third party other than tile carrier or the shipper, and the fact that the weiffht is so ascertained or accepted is stated in the bill of lading, then, not- withstanding anything in this chapter, the bill of lading shall not be deemed to be prima facie evi- dence against the carrier of the receipt of goods of the weight so inserted in the bill of lading, and the accuracy thereof at the time of shipment shall not be deemed to have been guaranteed by the shipper. (Apr. 16, 1926, cii. 229, 1 11, 49 Stat. 1212.) 81311. Liabilities before loading and afterdis- charge; effect on other laws. Nothing in this chapter shall be construed as superseding any part of sections 190-196 of this title, or of any other law which would he appli- cable in the absence of this chapter, insofar as they relate to the duties; responsibilities, and liabilities of the ship or carrier prior to the time when the goods are loaded on or after the time they are dis- charged from the ship. (Apr. 16, 1936, cii. 229, § 12, 49 Stat. 1212.) § 1312. Scope of chapter; "United States"; "foreign trade." - This chapter shall apply to all contracts for carriage of goods by sea to or from ports of the United States in foreign trade. As used in this chapter the term "United States" includes its dis- tricts, territories, and possessions. The term "for- eign trade" means the transportation of goods be- tween the ports of the United States and ports~ of foreign countries. Nothing in this chapter (44) PAGENO="0225" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 1789 SECURITY OF VESSELS AND WATERFRONT FACILITIES shall be held to apply to contracts for carriage of goods by sea between any port of the United States or its possessions, and any other port of the United States or its possessions: Provided, how- ever, That any bill of lading or similar document of title which is evidence of a contract for the carriage of goods by sea between such ports, con- taining an express statement that it shall be sub- ject to the provisions of this chapter, shall be sub- jected hereto as fully as if subject hereto by the express provisions of this chapter: Provided, further, That every bill of lading or similar docu- ment of title which is evidence of a contract for the carriage of goods by sea from ports of the United States in foreign trade, shall contain a statement that it shall have effect subject to the provisions of this chapter. (Apr. 16, 1936, ch. 229 13, 49 Stat. 1112; Proc. No. 2695, July 4, 1946, 11 F.R. 7511', 60 stat. 1352.) § 1313. Suspension of provisions by President. Upon the certification of the Secretary of Com- merce that the foreign commerce of the United States in its competition with that of foreign na- tions is prejudiced by the provisions, or any of them, of sections 1301-1308 of this title, or by the laws of any foreign country or countries relating to the carriage of goods by sea, the President of the United States may, from time to time, by proclamation, suspend any or all provisions of* said sections for such periods of time or indefinite- ly as may be designated in the proclamation. The President may at any time rescind such suspen- sion of said sections, and any provisions thereof which may have been suspended shall thereby be reinstated and again apply to contracts thereafter made for the carriage of goods by sea. Any proc- lamation of suspension or rescission of any such suspension shall take effect on a date named there- in, which date shall be not less than ten days from the issue of the proclamation. Any contract for the carriage of goods by sea, subject to the provisions of this chapter, effective during any period when sections 1301-1308 of this title, or any part thereof, are suspended, shall be subject to all provisions of law now or hereafter applicable to that part of said sections which may have thus been suspended. (Apr. 16, 1936, oh. 229, § 14, 49 Stat. 1213.) § 1314. Effective date; retroactive effect. This chapter shall take effect ninety days after April 16, 1936; but nothing in this chapter shall apply during a period not to exceed one year fol- lowing April 16, 1936, to any contract for the car- riage of goods by sea, made before April 16, 1936, nor to any bill of lading or similar document of title issued, whether before or after such date in pursuance of any such contract as aforesaid. (Apr. 16, 1936, oh. 22.9, 15, 49 Stat. 1213.) 1315. Short title. This chapter may be cited as the "Carriage of Goods by Sea Act." (Apr. 16, 1936, oh. 229, 1 16, 49 Stat. 1213.) COAST GUARD PORT SECURITY CARDS The United States Coast Guard is authorized to issue Coast Guard Port Security Cards a-s one means of identification of persons regularly em- ployed on vessels or on waterfront facilities or of persons having regular public or private busi- ness connected with the operation, maintenance, or administration of vessels, their cargues, or waterfront facilities. The practice is to limit the validity of these Coast Guard Port Security Cards to a definite period of time from the date of issu- ance. The Coast Guard Port Security Cards is- sued prior to October 1952 bear a date of expira- tion two years after the date of issuance. Coast Guard Port Security Cards issued `between Octo- ber 1952 and January 1954 indicate a period of validity of four years from the date of issuance. The Coast Guard Port Security Cards issued be- tween January 1954 and January 1957 bear a validity period of six years from the date of issu- ance thereof. It is not deemed appropriate or nec- essary to require the rescreening of holders of Coast Guard Port Security Cards and the reissu- ance of such cards at this time. By virtue of the authority vested in me as Corn- man'dant, United States Coast Guard, by 33 CFR 6.10-7 in Executive Order 10173, as amended by Executive Orders 10277 `and 10352 (15 F.R. 7005, 7007, 7008, 16 F.R. 7537, 7538, 17 FR. 4607), notice is given to holders of Coast Guard Port Security Cards (Form CG-2514) that the period of validity of such cards, unless sooner sur- rendered or canceled by proper authority, will be for a period of eight years from the date of is- suance thereof instead of the various periods as indicated on the reverse of the cards. This document supersedes Coast Guard Docu- ment CGFR 53-62 entitled "Coast Guard Port Security Cards", dated January 11, 1954, and pub- lished January 16, 1954 (19 F. R. 306). Dated: January 22, 1957. [SEAL] J. A. HIRSHFIELD, Rear Admiral, U.S. Coast Guard, Acting Commnandant. (CGFR 57-3 pubilahed in Federal Register January 29, 1957) 94-756 0-68 - pt.2 --15 (45) PAGENO="0226" 1790. AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 Subpart or Section 3.05 First Coast. Guard District 3.05-i First District 3.05-55 Boston Captain of the Port 3.05-60 ProvidenCe Captain of the Port 3.05-70 Portland Captain of the Port 3.10 Second Coast Guard District 3.10-i Second District 3.10-55 Cairo Captain of the Port 3.10-60 Cincinnati Captain of the Port 310-65 Dubuque Captain of the Port 3.10-70 Huntington Captain of the Port 3.10-75 Louisville Captain of the Port 3.10-80 Memphis Captain of the Port 3.10-85 Nashville Captain of the Port 3.10-90 Pittsburgh Captain of the Port 3.10-95 St. Louis Captain of the Port 315 Third Coast Guard District 3.15-i Third Dittrict :i.ir-ao Albany Captain of the Port 3.15-55 New London Captain of the Port 3.15-60 New York Captain of the Port 3.15-65 Philadelphia Captain of the Port 325 Fifth Coast Guard District 3.25-i Fifth District 3.25-55 Baltimore Captain of the Port 3.25-60 Norfolk Captain of the Port 3.25-65 Wilmington Captain of the Port 3.35 Seventh Coast Guard District 3.35-i Seventh District 3.35-55 Cjsarleston Captain of the Port 3.35-60 Jacksonville Captain of the Port 3.35-65 Key West Captain of the Port 3.35-70 Miami Captain of the Port 3.35-72 Port Canaveral Captain of the Port 3.35-75 San Juan Captain of the Port 3.35-SO Savannah Captain of the Port 3.35-85 Tampa Captain of the Port 3.40 Eighth Coast Guard District 3.40-1 Eighth District 3.40-55 Corpus Christ! Captain of the Port 3.40-60 Galveston Captain of the Port 3.40-65 Houston Captain of the Pert 3.40-70 Mobile Captain of the Port 3.40-75 New Orleans Captain of the Port 3.40-80 Sabine Captain of the Port 3.40-85 Port Isabel Captain of the Port 3.45 Ninth Coast Guard DistriCt 3.45-i Ninth District 3.45-55 Bui!alo Captain of the Port 3.45-60 Chicago Captain of the Port 3.45-05 Cleveland Captain of the Port 3.45-70 Detroit Captain of the Port 3.45-75 Duluth Captain of the Port 3.45-80 Ludington Captain of the Port 3.45-85 Milwaukee Captsin of the Port 3.45-90 Oswego Captain of the Port 3.45-95 Sault Ste. Marie Captain of the Port 3.45-97 Toledo Captain of the Port 3.55 Mleventh Coast Guard District 3.55-i Eleventh District 3.55-55 San Diego Captain of the Port 3.55-60 Los Angeles Captain of the Port 3.60 Twelfth Coast Guard District 3.60-i Twelfth District 3.60-55 San Francisco Captain of the Port 3.65 Thirteenth Coast Guard District 3.65-1 Thirteenth District 3.65-55 Portland Captain of the Port 3.65-60 Seattle Captain of the Port Subpart or Section 3.70 Fourteenth Coast Guard District 3.70-1 Fourteenth District 3.70-55 Honolulu Captain of the Port 3.70-00 Guam Captain of the Port 3.85 Seventeenth Coast Guard District 3.85-i Seventeenth District 3.85-55 Anchorage Captain of the Port 3.85-60 Juneau Captain of the Port 3.85-05 Ketchikan Captain of the Port Aurnosivy: §1 3.05-1 to 3.85-63 issued snder sec. 3.60 Stat. 238, and sec. 635, 63 Stat. 145; U_s_c. 1002. 14 ~is.c. 633. Treasury Department Orders 110, July 31, 1950, 15 FR. 6521; 167-17, June 29, 1955, 20 FR. 4976. 3.05-FIRST COAST GUARD DISTRICT 3.05-1 First district. (a) The District Office is in Boston, Massachu- setts. (b) The First Coast Guard District shall com- prise Maine and New Hampshire; Vermont, ex- cept the counties of Orleans, Franklin, Grand Isle, Chittenden, and Addison; Massachusetts, except the waters of Congamond Lakes; Rhode Island, with the exception of Watch Hill Light Station; that portion of Connecticut containing the waters of Beach Pond in New London County; all United States naval reservations on shore in Newfound- land; the ocean area north of a line from Watch Hill Light south to Montauk Point Light, thence 1125T. 3.05-55 Boston Captain of the Port. (a) The Boston Captain of the Port Office is in Boston, Massachusetts. (b) The Boston Captain of the Port area com- prises all navigable waters of the United States and contiguous las.d areas within the following boundaries: On the east the 70°50' W. meridian, on the south the 42°13' N. parallel, on the west the 71°05' W. meridian, and on the north the 42°25' N. parallel. 3.05-60 Providence Captain of the Port. (a) The Providence Captain of the Port Office is in Providence, Rhode Island. (b) The Providence Captain of the Port area comprises all navigable waters of the United States and contiguous land areas within the fol- lowing boundaries: A line extending from Point Judith, RI., Light in an east-northeasterly direc- tion to the southern tip of Sakonnet Point, RI., thence in a north-northeasterly direction to 41°45' N., 71°07'40" W., thence westerly to 41°45'OO" N., 71°20' W., thence in a north-northwesterly direc: tion to 41°48' N., 71°22' W., thence northerly to 41°53'OO" N., 71°22' .%V., thence westerly to 41°53' N., 1i°29' W., thence southerly to Point Judith Light. TITLE 33-NAVIGATION AND NAVIGABLE WATERS PART 3-COAST GUARD DISTRICTS AND CAPTAIN OF THE PORT AREAS (46) PAGENO="0227" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 1791 SECURITY OF VESSELS AND WATERFRONT FACILITIES 3.05-70 Portland Captain of the Port. (a) The Portland Captain of the Port Office is in Portland, Maine. (b) The Portland Captain of the Port areacom- prises all navigable waters of the United States and contiguous land areas within the following boundaries: A line extending from Cape Eliza- beth Light in a northeasterly direction to Half wa7 Rock Light, thence north to 43°50' N., 70°02'lS W., in Maquoit Bay, thence west to 43°50' N., 70°19' W., thence south to 43°34' N., thence east- erly to Cape Elizabeth Light. 3.10-SECOND COAST GUARD DISTRICT 3.10-1 Second district. (a) The District Office is in St.. Louis, Missouri. (b) The Second Coast Guard District shall com- prise West Virginia, Kentucky, Tennessee, Okla- homa, Kansas, Nebraska, North Dakota, South Dakota, Wyoming, Colorado, Iowa, Missouri, Pennsylvania south of latitude 41° N. and west of longitude 790 W.; those parts of Ohio and Indiana south of latitude 41° N.; Illinois, except that part north of latitude 41° N. and east of longitude 900 W.; Wisconsin south of latitude 46°20' N. and west of longitude 90° W.; Minnesota south of lati- tude 46°20' N.; and those parts of Arkansas, Mis- sissippi, and Alabama north of latitude 34° N. 3.10-55 Cairo Captain of the Port. (a) The Cairo Captain of the Port Office is in Cairo, Illinois. (b) The Cairo Captain of the Port area com- prises all navigable waters of the United States and contiguous land areas within the following boundaries: Starting at 41° N. latitude and 87°10' W. longitude; thence south to, but not including Fowler, md.; thence southwest to, but not includ- ing Urbana, Ill.; thence south to, but not including Arcola, Ill.; thence south to, but not including Altamont, Ill.; thence south to, but not including Mount Vernon, Ill.; thence southwest to, but not including Oak Ridge, Mo.; thence southeast to, but not including Beiston, Mo.; thence south to, but not includiflg Sikeston, Mo.; thence due east to Scottsville, Ky.; thence northwest to, but not including Mount Vernon, md.; thence northeast to 86°10' W. longitude and 40°45' N. latitude; thence northwest to 41° N. latitude and 86°30' W. longitude; thence due west to 87°10' W. longitude. 3.10-60 Cincinnati Captain of the Port. (a) The Cincinnati Captain of the Port Office is in Cincinnati, Ohio. (b) The Cincinnati Captain of the Port area comprises all navigable waters of the United States and contiguous land areas within the fol- lowing boundaries: Starting at 86°30' W. longi- tude and 41° N. latitude; thence southeast to, but not including Anderson, md.; thence southeast to, but not including Carrollton, Ky.; thence to, but not including Winchester, Ky.; thence to, but not including Cannel City, Ky.; thence to, but not in- cluding Jenkins, Ky.; thence east and north along the Kentucky State line to Louisa, Ky.; thence in a northerly direction to Portsmouth, Ohio; thence north to 41° N. latitude approximately 8 miles west of New Washington, Ohio; thence due west to 86°30' W. longitude. 3.10-65 Dubuque Captain of the Port. (a) The Dubuque Captain of the Port Office is in Dubuque, Iowa. (b) The Dubuque Captain of the Port area com- prises all navigable waters of the United States and contiguous land areas within the following boundaries: Starting at a point where the Mon- tana-North Dakota State line touches the Cana- dian border; thence east along the Canadian border until it meets the Red River of the North; thence south along this river to 46°25' N. latitude and 96°35' W. longitude; thence due east until this line meets 90° W. longitude; thence due south to 41°10' N. latitude; thence in a southwesterly direc- tion to and including Keokuk, Iowa; thence in a northwesterly direction to and including Sioux City, Iowa; thence due west to the Idaho, Wyo- ming State line at 42°30' N. latitude and 111° W. longitude; thence north along the Idaho, Wyoming State line to 45° N. latitude; thence east along the Wyoming State line to 45° N. latitude and 104 W. longitude; thence due north along the Montana State line to the Canadian border. 3.10-70 Huntington Captain of the Port. (a) The Huntington Captain of the Port Office is in Huntington, West Virginia. (b) The Huntington Captain of the Port area comprises all navigable waters of the United States and contiguous land areas within the fol- lowing boundaries: Starting at 41° N. latitude, approximately 8 miles west of New Washington, Ohio; thence proceeds south to, but not including Portsmouth, Ohio; thence southeast to Louisa, Ky.; thence along the Kentucky, West Virginia State line (Big Sandy River) to the Kentucky, West Virginia, and Virginia State line; thence north and east along the West Virginia, Virginia State line to West Virginia, Virginia, and Mary- land State line (Potomac River) ; thence along the West Virginia, Maryland State line to Fairfax, W. Va.; thence northwest to, but not including Fairmont, W. Va.; thence northwest to Dam No. 13, Ohio River (about ~`/~ miles west of Wheeling, W. Va.) ; thence continuing northwest in a straight line to 81°40' W. longitude and 41° N. latitude; thence due west to approximately 8 miles west of New Washington, Ohio. (47) PAGENO="0228" 1792 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 UNITED STATES COAST GUARD 3.10-75 Louisville Captain of the Port. (a) The Louisville Captain of the Port Office is in Louisville, Kentucky. (b) The Louisville Captain of the Port area comprises all navigable waters of the United States and contiguous land areas within the fol- lowing boundaries: Starting at 86°10' W. longi- tude and 40°45' N. latitude; thence southwest to and including Mount Vernon, md.; thence south- east to, but not including Scottsville, Ky.; thence due east to the Virginia State line; thence north- east along the Virginia State line to Jenkins, Ky.; thence northwest to Cannel City, Ky.; thence northwest to Winchester, Ky.; thence northwest to Carrollton, Ky.; thence northwest to Anderson, md.; thence northwest to 86°1O' W. longitude and 40°45' N. latitude. 3.10-80 Memphis Captain of the Port. (a) The Memphis Captain of the Port Office is in Memphis, Tennessee. (b) The Memphis Captain of the Port area comprises all navigable waters of the United States and contiguous land areas within the fol- lowing boundaries: Starting at 38°30' N. latitude and 109° W. longitude, on the Utah, Colorado State line and runs due east to, but not including LaCrosse, Kans.; thence east to, but not including McPherson Kans.; thence southeast to, but not including dreenfield, Mo;; thence southeast to, but not including Springfield, Mo.; thence east to, but not including Cabool, Mo.; thence northeast to, but not including Licking, Mo.; thence east to, but not including Oak Ridge, Mo.; t.hence southeast to and including. Benton, Mo.; thence south to and including Sikeston, Mo.; thence east to and includ- ing Bardwell, Ky.; thence southeast to 34° N. lati- tude and 88° W. longitude; thence due west along 34° N. latitude to the Oklahoma, Arkansas State line; thence due south to the Red River; thence west, north, and west along the Oklahoma, Texas State line to t.he New Mexico State line; thence due north along the New Mexico, Oklahoma State line to 37° N. latitude; thence due west along the Colorado, New Mexico State line to 109° W. longi- tude; thence due north along the Utah, Colorado State line to 38°30' N. latitude. 3.10-85 NashvIlle Captain of the Port. (a) The Nashville Captain of the Port Office is in Nashville, Tennessee. (b) The Nashville Captain of the Port area comprises all navigable waters of the United States and contiguous land areas within the fol- lowing boundaries: Starting at 88° W. longitude and 34° N. latit.ude; thence due east. to the Georgia, Alabama State line; thence northwest to the Ten- nessee, Alabama State line; thence north and east to the North Carolina State line; thence following the Tennessee, North Carolina State line; thence west along the Tennessee, Virginia State line to the Kentucky State line; thence northeast along the Kentucky, Virginia State line to 36°45' N. lati- tude, thence due west to and including Scottsville, Ky.; and continuing west to, but not including Bardwell, Ky.; thence southeast to 88° W. longi- tude and 34° N. latitude. 3.10-90 Pittsburgh Captain of the Port. (n) The Pittsburgh Captain of the Port Office is in Pittsburgh, Pennsylvania. (b) The Pittsburgh Captain of the Port area comprises all navigable waters of the United States and contiguous land areas within the fol- lowing boundaries: Starting at 41° N. latitude and .79° W. longitude; thence due south to the junction of the Pennsylvania, Maryland State line; thence west and south along the Pennsylvania, Maryland State line to Fairfax, W. Va.; thence northwest to, and including Fairmont, W. Va.; thence northwest to, but not including Dam No. 13 Ohio River (about 31/2 miles west of Wheeling, W. Va.); thence continuing in a straight line to 41° N. lati- tude and 81°40' W. longitude; thence due east to 79° W. longitude. 3.10-95 St. Louis Captain of the Port. (a) The St.. Louis Captain of the Port Office is in St. Louis, Missouri. (b) The St. Louis Captain of the Port area comprises all navigable waters of the United States and contiguous land areas within the fol- lowing boundaries: Starting at 42°30' N. latitude and 111° W. longitude, on the Wyoming, Idaho State line and runs due east to, but not including Sioux City, Iowa; thence southeast to, but not including Keokuk, Iowa; thence northeast to 41°10' N. latitude and 90° W. longitude; thence due south to 41° N. latitude; thence due east to 87°10' W. longitude; thence due south to and in- cluding Fowler, md.; thence southwest to Urbana, Ill.; thence south to Arcola, fll.; thence south .to Altamont, Ill.; thence south to Mount Vernon, Ill.; thence south to Oak Ridge, Mo.; thence west to Licking, Mo.; thence southwest to Cabool, Mo.; thence west to Springfield, Mo.; thence northwest to Greenfleld, Mo.; thence northwest to McPher- son, Kans.; thence west to LaCrosse, Kans.; thence due west to where this line touches the Utah, Cob- rado State line; thence north along theUtah, Colo- rado State line to 41° N. latitude and 109° W. longitude; thence due west along the Utah, Wyo- ming State line to 111° W. longitude; thence due north along the Wyoming State line to 42°30' N. latitude and 111° W. longitude. (48) PAGENO="0229" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 19~5O 1793 SECURITY OF VESSELS AND WATERFRONT FACILITIES 3.15-THIRD COAST GUARD DISTRICT 3.15-1 Third district. (a) The District Office is in New York, N.Y. (b) The Third Coast Guard District shall coIn- prise the counties of Orleans, Franklin, Grand Isle, Chittenden, and Addison, in Vermont; Con- necticut, but not including the waters of Beach Pond in New London County; Watch Hill Sta- tion in Rhode Island; that portion of Massachu- setts containing the waters of Congamond Lakes in Hampden County; New York, except that part north of latitude 42° N. and west of longitude 74°39' W.; New Jersey; Pennsylvania east of longitude 79° W.; Delaware, including Fenwick Island Light but not including that portion of Delaware containing the reaches of the Nanticoke River and the Chesapeake and Delaware Canal; the ocean area between a line from Watch Hill Light due south to Montauk Point Light, thence 112° T. and a line from the Coastal end of the Third-Fifth Coast Guard District boundary, thence 122° T. 3.15-50 Albany Captain of the Port. (a) The Albany Captain of the Port Office is located in Albany, N.Y. (b) The Albany Captain of the Port area com- prises all the navigable waters of the United States and contiguous land areas within the fol- lowing boundaries: On the east, the 73°39' W. longitude; on the south, the 41°33' N. latitude; on the west, the 74°1O' W. longitude; and on the north, the 42°48' N. latitude. 3.15-55 New London Captain of the Port. (a) The New London Captain of the Port Office is in New London, Conn. (b) The New London Captain of the Port area comprises all navigable waters of the United States and contiguous land areas within the fol- lowing boundaries: On the east the 72°04'30" W. meridian, on the south a line extending through New London Harbor Light and Eastern Point, on the west the 72°06'30" W. meridian, and on the north the parallel extending through Ice House Light. 3.15-60 New York Captain of the Port. (a) The New York Captain of the Port Office is located in New York, N.Y. (b) The New York Captain of the Port area comprises all navigable waters of the United States and contiguous land areas within the fol- lowing boundaries: A line extending from Nave- sink South Tower through Ambrose Lightship to the 73°39'OO" W. meridian, 40°35' N. parallel; thence due north to 41° N. parallel; thence due west to the 74°1O' W. meridian; thence southwest- erly to a point located at 40°30' N., 74°30' W.; thence due south to the 40°23'48" N. parallel; thence due east to Navesink South Tower. 3.15-65 Philadelphia Captain of the Port. (a) The Philadelphia Captain of the Port Of- fice is located in Philadelphia, Pa. (b) The Philadelphia Captain of the Port area comprises all navigable waters of the United States and contiguous land areas within the fol- lowing boundaries: A line extending from Here- ford Inlet Light to the south tower at Indian River Inlet; thence northwesterly to a point on the Delaware-Maryland boundary at 39°20' N. latitude; thence northerly along Delaware-Mary- land boundary to a point at 39°35' N. latitude (not including the Chesapeake and Delaware Canal); thence northeasterly to a point 40°20' N. latitude, 74°50' W. longitude; thence east to the 74°40' W. longitude; thence south to the 40°07'30" N. latitude; thence southwesterly to a point at 39°35' N. latitude, 75°20' W. longitude; thence southeasterly to a point 39°20' N. latitude, 74055F W. longitude; thence south-southeasterly to Hereford Inlet Light. 3.25-FIFTH COAST GUARD DISTRICT 3.25-1 Fifth district. (a) The District Office is in Portsmouth, Va. (b) The Fifth Coast Guard District shall com- prise Maryland, Virginia, District of ~Columbia, North Carolina, and that portion of Delaware con- taining the reaches of the Nanticoke River and the Chesapeake and Delaware Canal; and the ocean between a line from the coastal end of the Third- Fifth Coast Guard District boundary, thence 122° T., and a line from the coastal end of the Fifth- Seventh Coast Guard District boundary, thence 122° T. 3.25-55 Baltimore Captain of the Port. (a) The Baltimore Captain of the Port Office is in Baltimore, Md. (b) The Baltimore Captain of the Port area comprises all navigable waters of the United States and contiguous land areas within the fol- lowing boundaries: On the east the 76°15' W. meridian; on the south the 38°53'30" N. parallel, on the west the 76°40' W. meridian and on the north the 39°18' N. parallel. 3.25-60 Norfolk Captain of the Port. (a) The Norfolk Captain of the Port Office is in Norfolk, Va. (b) The Norfolk Captain of the Port area corn- prises all navigable waters of the United States and contiguous land areas within the following boundaries: A line extending from Cape Charles (49) PAGENO="0230" 1794 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 UNITED STATES COAST GUARD Light in a south-southwesterly direction to a point located at 36°45' N., 76° W., thence west to 76°49' W., thence north to 37°15' N., thence in an easterly direction to Caps Charles Light. 3.25-65 Wilmington Captain of the Port. (a) The Wilmington Captain of the Port Office is in Wilmington, N.C. (b) The Wilmington Captain of the Port area comprises all navigable waters of the United States and contiguous land areas within the fol- lowing boundaries: On the east the 77°55' W. meridian, on the south the 33°50' N. parallel, on the west the 78°02' W. meridian, and on the north the 34°17' N. parallel. 3~35-SEVENTH COAST GUARD DISTRICT 3.35-1 Sovonth district.' (a) `The District Office is in Miami, Fla. (b) The Seventh Coast Guard District shall comprise South Carolina; Florida and Georgia, except that part of Florida west of the east bank of the Apalachicola River and part of Georgia west of the east bank of the Jim Woodruff Reservoir and the east bank of the Flint River up-stream to Montezuma, Georgia and south and west of a line between Montezuma and West Point, Ga.; Panama Canal Zone; all of the island possessions of the United States pertaining to Puerto Rico and tho Virgin Islands; all of the United States naval reservations in the islands of the West Indies and on the north coast of South America; and the ocean area between a line from the coastal end of the Fifth-Seventh Coast Guard District boundary, thence 122° T, and a line from the coastal end of the Seventh-Eighth Coast Guard District bound- ary, thence 193° T; and the ocean area bounded by a line from the border between Guatemala and Mexico on the Pacific Coast (14°38' N., 92°19' W.) southwesterly to latitude 5° S., longitude 1100 W., thence due east to the Coast of South America. 3.35-55 Charleston Captain of, the Port. (a) The Charleston Captain of the Port Office is in Charleston, S.C. (b) The Charleston `Captain of the Port area comprises all navigable waters of the United States and contiguous land areas within the following boundaries: A line extending from the eastern side of Little River Inlet at 33°41' N. latitude, 78°33' W. longitude, southwesterly to 33° N. latitude, 79°18' W. longitude; thence to 32°20' N. latitude, 80°04' W. longitude; thence to Bay Point, Edisto Island; thence along the eastern shore of Edisto River to 32°41' N. latitude; thence northeasterly to the South Carolina-North Carolina State bound- ary; thence to the point of beginning. 3.35-60 JacksonvIlle Captain of the Port. (a) The Jacksonville Captain of the Port Office is in Jacksonville, Fla. (b) The Jacksonville Captain of the Port area comprises all navigable waters of the United States and contiguous land areas within the followmg bou~idaries': A line extending from a point located at 30°5&' N. latitude, 81°48' W. longitude, east to 81°20' W. longitude; thence southeasterly to 30° 20' N. latitude, 81°10' W. longitude; thence south to 29°42.5' N. latitude; thence west to 81°48' W. longitude; thence north to the point of beginmng. 3.35-65 Key West Captain of the Port. (a) The Key West Captain of the Port Office is in Key West, Fla. (b) The Key West Captain of the Port area comprises all navigable waters of the United States and contiguous land areas within the following boundaries: A line extended from a point located at 25°16' N. latitude, 80°26' W. longitude, along southwest shoreline of Barnes Sound to eastern shorelineS thence 120° T. to 93°05' N. latitude, 80°12' W'. longitude; thence southwesterly to 24° 44' N. latitude, 80°45' W. longitude; thence to 24°37' N. latitude, 81°07' W. longitude; thence to 24°27' N. latitude, 81°44' W. longitude; thence west to 82°40' W. longitude; thence north to 24°39' N. latitude; thence east to 81°44' W. longi- tude; thence northeasterly to 25°05' N. latitude, 81°10' W. longitude; thence northwesterly to 9~3°41' N. latitude, 81°39' W. longitude; thence northeasterly to 25°48' N. latitude, 81°21' W. longitude; thence to 25°53' N. latitude, 81°16' W. longitude; thence southeasterly to the point of beginning. 3.35-70 Miami Captain of the Port. (a) The Miami Captain of the Port Office is in Miami, Fla. (b) The Miami Captain of the Port area com- prises all navigable waters of the United States and contiguous land areas within the following boundaries: A line extended from a point located at 27°09.5' N. latitude, 80°18' W. longitude, east to 80°05' W. longitude; thence southeasterly to 26°40' N. latitude, 79°55' W. longitude; thence southerly to 25°30' N. latitude, 80°02' W. longi- tude; thence to 25°05' N. latitude, 80°12' W. longi- tude; thence 300° T. to the Key Largo western shoreline; thence along the southwest shoreline of Barnes Sound to 25°16' N. latitude, 80°26' W. longitude; thence northerly to 25°30' N. latitude, 80°21' W. longitude; thence to 26°40' N. latitude, 80°11' ,W. longitude; thence to the point of beginning. (50) PAGENO="0231" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 1795 SECURITY OF VESSELS A~TD WATERFRONT FACILITIES 3.35-72, Port Canaveral Captain of the Port. (a) The Port Canaveral Captain of the Port Office is in Port Canaveral, Fla. (b) The Port Canaveral Captain of the Port area comprises all navigable waters of the United States and contiguous land areas within the fol- lowing boundaries: A line extended from a point located at 29°42.5' N. latitude, 81°28' W. longi- tude, east to 81°10' W. longitude; thence south- easterly to 28°30' N. latitude, 80°27' W. longitude; thence to 27°095' N. latitude, 80oC)5~ W. longitude; thence west to 80°18' W. longitude; thence to the point of beginning. 3.35-75 San Juan Captain of the Port. (a) The San Juan Captain of the Port Office is in San Juan, P.R. (b) The San Juan Captain of the Port area comprises all navigable waters of the United States and contiguous land areas within the United States' Commmonwealth of Puerto Rico and terri- tory of the Virgin Islands. 3.35-80 Savannah Captain of the Port. (a) The Savannah Captain of the Port Office is in Savannah, Ga. (b) The Savannah Captain of the Port area comprises all navigable waters of the United States and contiguous land areas within the following boundaries: A line extended from Bay Point Edisto Island, southeasterly to 32°20' N. latitude, 80°04' W. longitude; thence southwesterly to 31°45' N. latitude, 810 W. longitude; thence to 30°50' N. latitude, 81°23' W. longitude; thence west to 81°48' W. longitude; thence northerly to 31°54' N. latitude, 81°22' W. longitude; thence to 32°30' N. latitude, 80055k W. longitude; thence to 32°41' N. latitude, and eastern shore of Edisto River; thence along the eastern shore of Edisto River to the point of the beginning. 3.35-85 Tampa Captain of the Port. (a) The Tampa Captain of the Port Office is in Tampa, Fla. (b) The Tampa Captain of the Port area com- prises all navigable waters of the United States and contiguous land areas within the following boundaries: A line extended from a point located at 25°53' N. latitude, 81°16' W. longitude, to 25°48' N. latitude, 81°21' W. longitude; thence southwesterly to 25°41' N. latitude, 81°39' W. longitude; thence northwesterly to 26°20' N. lati- tude, 82°00' W. longitude; thence to 26°30' N. latitude, 82°15' W. longitude; thence to 27°00' N. latitude, 82°30' W. longitude; thence to 27°3(Y N. latitude, 82°55' W. longitude; thence west to 83°05' W. longitude; thence north to 27°45' N. latitude; thence east to 82°55' W. longitude; thence north to 28°0O' N. latitude; thence to 28°30' N. latitude, 82°50' W. longitude; thence to 29° N. latitude, 83°05' W. longitude; thence to 29°30' N. latitude, 83°30' W. longitude; thence to 29°50' N. latitude, 84°00' W. longitude; thence west to 84°20' W. longitude; thence south to 29°40' N. latitude; thence west to 84°40' W. longitude; thence to 29°32' N. latitude, 85°02' W. longitude; thence 013° T. to eastern shore of Apalachicola River Inlet; thence along the eastern shoreline of Apala- chicola River to 29°49.5' N. latitude; *thence to 30°10' N. latitude, 84°20' W. longitude; thence east to 84° W. longitude; thence southeasterly to 29°00' N. latitude, 82°30' W. longitude; thence south to 28°03' N. latitude; thence east to 82°20' W. longitude; thence south to 27°05' N. latitude; thence east to 82°00' W. longitude; thence south- easterly to 26°45' N. latitude, 81°46' W. longitude; thence to 26°00' N. latitude, 81°36' W. longitude; thence to the point of beginning. 3.40-EIGHTH COAST GUARD DISTRICT 3.40-1 Eighth district. (a) The District Office is in New Orleans, La. (b) The Eighth Coast Guard District shall comprise New Mexico, Texas and Louisiana; those parts of Alabama, Mississippi and Arkansas south of latitude 34° N.; and that part of Florida west of the east bank of the Apalachicola River and that part of Georgia west of the east bank of the Jim Woodruff Reservoir and the east bank of the Flint River upstream to Montezuma, Ga., and south and west of a line between Montezuma and West Point, Ga.; the water of the Gulf of Mexico westward of a line from the coastal end of the Seventh-Eighth Coast Guard District boundary thence 193° T. 3.40-55 Corpus Christi Captain of the Port. (a) The Corpus Christi Captain of the Port Office is in Corpus ()hristi, Tex. (b) The Corpus Christi Captain of the Port area comprises all navigable waters of the United States and contiguous land areas within the fol- lowing boundaries: On the east the Colorado River to the coast, thence southeasterly to a point located at 28°30' N. latitude, 95°50' W. longitude, then southwesterly to 27°15' N. latitude, 97° W. longi- tude; on the south the 27°15' N. latitude; on the west the 98° W. longitude; and on the north the 29° N. latitude. 3.40-60 Galveston Captain of the Port. (a) The Galveston Captain of the Port Office is in Galveston, Texas. (b) The Galveston Captain of the Port area comprises all navigable waters of the United States and contiguous land areas within the following boundaries: On the east the 94°15' W. longitude; (51) PAGENO="0232" 1796 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 UNITED STATES COAST GUARD on' the south a line extended from a point located at 29°20' N. latitude, 94°15' W. longitude, to a point located at 28°30' N. latitude, 95°50' W. lon~i- tude; on the west a line extended from a point located at 28°30' N. latitude, 95°50' W. longitude northwesterly to the mouth of the Colorado River, thence north-northwesterly along the Colorado River to the 29°40' N. latitude; on the north the 29°40' N. latitude to the 95° W. longitude, thence north to the 30° N. latitude, thence east to the 94°15' W. longitude. 3.40-65 Houston Captain of the Port. (a) The Houston Captain of the Port Office is in Galena Park, Texas. (b) The Houston Captain of the Port area com- prises all navigable waters of the United States and contiguous land areas' within the following boundaries: On the east the 95° W. longitude; on the south the 2~9°4O' N. latitude; on the west the Colorado River; and on the north the 30° N. latitude. 3.40-70 MobIle Captain of the Port. (a) The Mobile Captain of the Port Office is in Mobile, Ala. (b) The Mobile Captain of the Port area com- prises all navigable waters of the United States and contiguous land areas within the following boundaries: On the east the East Bank of the Flint River, the East Bank of the JimWoodruff Reservoir and the East Bank of the Apalachicola River to the Coast, thence southwesterly to a point located at 29°30' N. latitude, 85°10' W. longitude; on the south the 29°30' N. latitude; on the west the 88°10' W. longitude; on the north the 31° N. latitude. 3.40-75 New Orleans Captain of the Port. (a) The New Orleans Captain of the Port Of- flee is in New Orleans, La. (b) The New Orleans Captain of the Port area comprises all navigable waters of the United States and continuous land areas within the fol- lowing boundaries: On the east the 88°10' W. longitude; on the south the 28°50' N. latitude; on the west the 92°40' W. longitude; on the north the 31° N. latitude. 3.40-80 Sablne Captain of thi Port. (a) The Sabine Captain of the Port Office is in Sabine, Tex. (b) The Sabine Captain of the Port area Com- prises all navigable waters pf the United States and contiguous land areas within the following boundaries: On the east the 92°40' W. longitude; on the south the 29°20' N. latitude; on the west the 94°15' W. longitude; on the north the 30°30' N. latitude. 3.40-85 Port Isabel Captain of the Port. (a) The Port Isabel Captain of the Port Office is in Port Isabel, Tex. (b) The Port Isabel Captain of the Port area comprises all navigable waters of the United States and contiguous land areas within the following boundaries: On the east the 97° W. longitude; the south the North Bank of the Rio Grande River to the mouth of same, thence a line extended to a point located at 26° N. latitude, 97° W. longitude; on the west the 98° W. longitude; on the north the 27°15' N. latitude. 3.45-NINTH COAST GUARD DISTRICT 3.45-1 Ninth district. (a) The District Office is in Cleveland, Ohio. (b) The Ninth Coast Guard District shall com- prise Michigan, New York north of latitude 42° N. and west of longitude 74°39' W.; Pennsylvania north of latitude 41° N. and west of longitude 79° W.; those parts of Ohio and Indiana north of lati- t.ude 41° N. Illinois north of latitude 41° N. and east of longitude 90° W.; Wisconsin, except that part south of latitude 46°20' N. and west of lon- gitude 90° W.; and Minnesota north of latitude 46°20' N. 3.45-55 Buffalo Captain of the Port. (a) The Buffalo Captain of the Port Office is i~i Buffalo, New York. (b) The Buffalo Captain of the Port area com- prises, all navigable waters of the United States and contiguous land areas within the following boundaries: From the Canadian border in Lake Erie at 80°17' W. longitude; thence southeast to 41° N. latitude and 80° W. longitude; thence due east to 79° W. longitude; thence north to 42° N. latitude; thence east to 77°28' W. longitude; thence due north to the Canadian border; thence west along the Canadian border to 80°17' W. longitude. 3.45-60 Chicago Captain of tho Port. (a) The Chicago Captain of the Port Office is in Chicago, Illinois. (b) The Chicago Captain of the Port area com- prises all navigable waters of the United States and contiguous land areas within the following boundaries: From the Illinois-Wisconsin State line and 90° W. longitude; thence due east. to 84°45' W. longitude; thence due south to 41° N. latitudeS thence due west to 90° W. longitude; thence c'ue north to the Illinois-Wisconsin State line. 3.45-65 Cleveland Captain of the Port. (a) The Cleveland Captain of the Port Office is in Cleveland, Ohio. (52) PAGENO="0233" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 1797 SECURITY OF VESSELS AND WATERFRONT FACILITIES (b) The Cleveland Captain of the Port area comprises all navigable waters of the' United States and contiguous land areas within the fol- lowing boundaries: From the Canadian border in Lake Erie at 82°25' W. longitude; thence due south to 41° N. latitude; thence due east to 800 W. longitude; thence northwest to 80017P W. longitude on the Canadian `border; thence west along ~he Canadian border to 82°25' W. longitude. 3.45-70 DetroIt Captain of the Port. (a) The Detroit Captain of the Port Office is in Detroit, Michigan. (b) The Detroit Captain of the Port area com- prises all navigable waters of the United States and contiguous land areas within the following boundaries: From 84°45' W. longitude and 42° N. latitude; thence due east to the Canadian bor- der; thence north along the Canadian border to 45° N. latitude; thence due west to 84°45' W. longi- tude; thence due south to 42° N. latitude. 3.45-75 Duluth Captain of the Port. (a) The Duluth Captain of the Port Office is in Duluth, Minnesota. (b) The Duluth Captain of the Port area com- prises all navigable waters of the United States and contiguous land areas within the following boundaries: From the intersection of the Red River of the North and the Canadian border;* thence south along the Red River of the North to 46°20' N. latitude; thence due east to 88° W. longi- tude; thence northeast to the intersection of the International Boundary with 86°50' W. longitude; thence westward along the International Bound- ary to the Red River of the North. 3.45-80 Ludington Captain of the Port. (a~ The Ludington Captain of the Port Office is in Ludington Michigan. (b) The Ludington Captain of the Port area comprises all navigable waters of the United States and contiguous land areas within the fol- lowing boundaries: A line starting from 42°30' N. latitude,' 87° W. longitude; thence due east to 84°45' W. longitude; thence due north to 45° N. latitude; thence northwesterly to 45°22.5' N. lati- tude, 86°07.5' W. longitude; thence southwesterly to 44°30' N. latitude, 87° W. longitude; thence due south to starting point. 3.45-85 MIlwaukee Captain of the Port. (a) The Milwaukee Captain of the Port Office is in Milwaukee, Wisconsin. (b) The Milwaukee Captain of the Port area comprises all, navigable waters of the United States and contiguous land areas within the fol- lowing boundaries: From 42°30' N. latitude and 90° W. longitude; thence due east to 87° W. longi- tude; thence due north to 44030' N. latitude; thence northeasterly to 45°33' N. latitude and 85°56' W. longitude; thence due west to 88° W. longitude; thence due north to 46°20' N. lati- tude; thence due west to 90° W. longitude; thence due south to 42°30' N. latitude. 3.45-90 Oswego Captain of the Port. (a) The Oswego Captain of the Port Office is in Oswego, New York.. (b) The Oswego Captain of the Port area com- prises all navigable waters of the United States and contiguous land areas within the following boundaries: From the Canadian border in Lake Ontario at 77°28' W. longitude; thence due south to 42° N. latitude; thence due east to 74°40' W. longitude; thence due north to the Canadian bor- der; thence west and south along the Canadian border to 77°28' W. longitude. 3.45-95 Sault Ste. Marie Captain of the Port. (a) The Sault Ste. Marie Captain of the Port Office is in Sault Ste. Marie, Michigan. (b) The Sault Ste. Marie Captain of the Port area comprises all navigable waters of the United States and contiguous land areas within the fol- lowing boundaries: A line starting from the Inter- national Boundary in Lake Huron at 45° N. lati- tude; `thence along this boundary to 86°50' W. longitude; thence southwesterly to 46°20' N. lati- tude, 88° W. longitude; thence due south to 45033F N. latitude; thence due east to 85°56' W. longitude;. thence southwesterly to 45°22.5' N. latitude, 86°07.5' W. longitude; thence southeasterly to 45° N. latitude, 84°45' W. longitude; thence due east to starting point. 3.45-97 Toledo Captain of the Port. (a) The Toledo Captain of the Port Office is in Toledo Ohio. (b) ~he Toledo Captain of the Port area com- prises all navigable waters of the United States and contiguous land areas within the following boundaries: From 84°45' W. longitude and 42° N. latitude; thence due south to 41° N. latitude; thence due east to 82°25' W. longitude; thence due north to the Canadian border in Lake Erie; thence northwest along the Canadian border to 42° N. latitude; thence due west to 84°45' W. longitude. 3.55-ELEVENTH COAST GUARD DISTRICT 3.55-1 Eleventh district. (a) The District Office is in Long'Beach, Calif. (b) The Eleventh Coast Guard District shall comprise Arizona; Clark County in Nevada; Washington, Kane, San Juan, and Garfield Coun- ties in Utah; the southern part of California com- prising the Counties of Santa Barbara, Kern, and (53) PAGENO="0234" 1798 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 UNITED STATES COAST GUARD San Bernardino, and all counties south thereof; and the ocean area bounded by a line from Cali- fornia coast at latitude 34°58' N. (mouth of Santa Maria River) southwesterly to latitude 24°15' N., longitude 134°40' W.; thence southeasterly to lati- tude 50 S., longitude 110° W.; thence northeast- erly to the border between Guatemala and Mexico on the Pacific Coast (14°38' N. latitude, 92°19' W. longitude). 3.55-55 San Diego Captain of the Port. The San Diego Captain of the Port is located in San Diego, Calif. (b) The San Diego Captain of the Port area shall comprise all navigable waters of the United States and contiguous land areas within the fol- lowing boundaries: A line starting from the Cali- fornia coast at 33°23' N. latitude; thence due east to 117° W. longitude; thence due south to the in- ternational border; thence westerly along this border to the Pacific Coast; thence northwesterly to 32°48.2' N. latitude, 118°25.5' W. longitude; thence northwesterly to 33° N. latitude, 118 45' W. longitude, thence northeasterly to the starting point. 3.55-60 Los Angeles Captain of the Port. (a) The Los Angeles Captain of the Port is located in Long Beach, Calif. (b) The Los Angeles Captain of the Port area shall comprise all navigable waters of the United States and contiguous land areas within the fol- Lowing boundaries: A line starting from the Cali- fornia coast at 34°58' N. latitude (mouth of the Santa Maria River) due east to 120° W. longitude; thence southeasterly to 34° N. latitude, 117° W. longitude; thence due south to 33°23' N. latitude, 117° W. longitude; thence due west to the Pacific Coast; thence southwesterly to 33° N. latitude, 118°45' W. longitude; thence northwesterly to 33°10' N. latitude, 119°34' W. longitude; thence northwesterly to 34°01.3' N. latitude, 120°27.8' W. longitude; thence northerly to 34°34.6' N. latitude, 120°38.9' W. longitude (Point Arguello Light House); thence northerly along the Pacific Coast to the starting point. 3.60-TWELFTH COAST GUARD DISTRICT 3.60-1 Twelfth district. (a) The District Office is in San Francisco, Calif. (b) The Twelfth Coast Guard District shall comprise Utah, except for Washington, Kane, San Juan and Garfield. Counties; Nevada, except for Clark County; and the northern part of Cali- fornia comprising the Counties of San Luis Obispo, Kings, Tulare, and Inyo, and all counties north thereof; the ocean area bounded by a line from the California Coast at latitude 34°58' N. (mouth of the Santa Maria River) southwesterly to latitude 24°15' N., longitude 134°40' W.; thence northwesterly to latitude 40° N., longitude 150° W.; thence easterly to the California-Oregon State line. 3.60-55 San Francisco Captain of the Port. (a) The San Francisco Captain of the Port Office is in San Francisco, Calif. * (b) The San Francisco Captain of the Port area shall comprise all navigable waters of the United States and contiguous land areas within the following boundaries: A line extending from Point Reyes Light in a north-northeasterly direc- tion to a point located at 38°16' N., 122°42' W., thence in a general northeasterly direction to 38°38' N., 121°24' W., thence in a south-south- easterly direction to 37°57' N., 121°12' W., thence in a southwesterly direction to 37°15' N., 121°54' W., thence in a northwesterly direction to Point Reyes Light. 3.65-THIRTEENTH COAST GUARD DISTRICT 3.65-1. Thirteenth district. (a) The District Office is in Seattle, Wash. (b) The Thirteenth Coast Guard District shall comprise Washington, Oregon, Idaho, and Mon- tana; and the ocean area bounded by a line from California-Oregon State line westerly to latitude 40° N. longitude, 130° W., thence northeasterly to latitude 54°40' N.2 longitude 140° W., thence due east to the Canadian coast. 3.65-55 Portland Captain of the Port. (a) The Portland Captain of the Port Office is in Portland, Oreg. (b) The Portland Captain of the Port area comprises all navigable waters of the United States and contiguous land areas within the fol- lowing boundaries: A line starting at Cape Dis- appointment, Wash., running in an easterly direc-' tion to 46°55' N. latitude, 118° W. longitude; thence due south to 45°20' N. latitude; thence due west to 122° W. longitude; thence due south to 44° N. latitude; thence due west to 123° W. longi- tude; thence due south to the California-Oregon State line; thence west along the California-Ore- gon State line to the Pacific Ocean; thence north- erly following the coastline to Point Adams; thence northwesterly to the Columbia River Light- ship; thence northeasterly to starting point. 3.65-60 Seattle Captain of the Port. 4 ~J2 CD z C CD C PAGENO="0240" C) 02 02 ~Tj C) z w 02 C) 0 0 C) 0 C;' 0 PAGENO="0241" C12 0 0 a 0 0 0 0-4 P PAGENO="0242" I. CD CD t~11 CD 0 0 t-l 0 0 ~: ~: ~! P ~P P~PP ~ ~ PAGENO="0243" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 1807 OEPARTMEKT OF DEFENSE * DEFEKSE SUPPLY ARENCY o OFFICE OF INDUSTRIAL SECURITY INDUSTRIAL SECURITY ~ L~ETTER Id,*V~i.Z ~ ~ .111 b. i..u~dp.~~,dklly t, i,,I,,~ I,,d,.t~y U.~ ~ .,dD,D A~t:~,t:.. ~Id.'~.kp..nt. ,,t.ti,~ i,,d.,~j.: ~ ~ ~ ,i up,,.. i.it.~. ,, ea ~ l,, I~ th. in,.,n.I ,I.de'm. . .,th~.ü.d. s.g- ~ ..d.~tkI.. f~i ~ th~ ltt, .~II 6. ~ A,ti~f~ id~s ~~b'i6.6.d ViII 6.~... *6. F°p~f7 .1 DS4. No. 68L-2 29 February 1968 1.. THE PRIVACY PERSONNEL SECURITY QUESTIONNAIRE (PSQ) As has been previously announced, the decision has been made to place the privacy PSQ into effect. While there has been much discussion about the form, the purpose of this letter is to provide an initial look at some of the principles and procedures that will be involved in its implementa- tion. The personal information which is considered of a privacy nature and warrants special handling in the clearance program includes: arrest records; type of discharge from military service; prior security clearance suspension, denial or revocation; history of mental or nervous disorders; drug addiction; excessive use of alcohol; and membership in organizations cited by the Attorney General. Under the revised policy the employee will provide this information to the Government as a privileged communication. The procedures outlined below have been developed to implement this policy decision. The revised DD Form 48, Personnel Security Questionnaire (Industrial), will generally be used in those cases where the contractor is requesting a SECRET or CONFIDENTIAL clearance for a U. S. citizen employee. The DD Form 49, previously known as the Immigrant Alien Questionnaire, has been redesignated "Personnel Security Questionnaire (Industrial) (Mul- tiple Purpose)." This new DD Form 49 will continue to be used in requesting clearance for immigrant aliens. It will also be used when requesting recip- ro~cal clearances for Canadian and United Kingdom nationals. In addition the new DD Form 49 will be used in certain situations when requesting a clearance for U.S. citizens. These include requests for TOP SECRET clearance, requests involving an individual who is a representative of a foreign interest and requests where the applicant has relatives residing in Communist countries. The DD Forms 48 and 49 are almost identical in terms of information required on the form. The only difference is that the DD Form 49 includes certain questions applicable only to immigrant aliens. Another significant distinction between the DD Form 48 and the DD Form 49 is the make-uj of the forms. Henceforth both the DD Form 48 and DD Form 49 will be assembled in packets with interleaved carbon, so all information will be typed in register. The DD Form 48 packet will consist of a single copy of the DD Form 48 and three additional forms - the DD Form 1584 and two DSA Forms 705 (see illustra- tion on page 2). (The DD Form 1584 and DSA Form 705 are used by the Govern- ment in the processing of the case and therefore the contractor need not concern himself with these forms, per se.) PAGENO="0244" Arrangement of DD Form 48 Arrangement of DD Form 49 00 0 00 0 0 cli 0 0 0 a 0 0 PAGENO="0245" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 1809 The DD Form 49 will be assembled in a packet which will include five copies of the DD Form 49 and five additional forms used for internal processing by the Government. Further, the DD Form 48-1, Certificate of Nonaffiliation with Certain Organizations, will be eliminated. Questions pertaining to the employee's affiliation with organizations cited by the Attorney General as having interests in conflict with those of the UnitedStates will be included in the basic Personnel Security Questionnaire. The list of cited organizations will be provided separately as part of the instruction for the preparation of the form. This list will also be included as a new appendix to the Industrial Security Manual. The elimination of the DD Form 48-1 as a separate form will promote overall efficiency in requesting and processing personnel security clearances. The DD Form 48-2, Application and Authorization for Access to CONFIDEN- TLAL Information, and the DD Form 48-3, Personnel Security Questionnaire (Updating), have also been changed. The changes to the DD Form 48-2 are related only to the removal of privileged information from that form. The most significant change in this regard is that the questions relative to membership or association with cited organizations have been deleted. However, the revised DD Form 48-2 will include in the certification that the individual is not a member of any organization which has been cited by the Attorney General pursuant to Executive Order 10450. Therefore, in those cases when an applicant cannot sign this certification he will so advise his employer. The employer will then have the employee complete the DD Form 49 as described above. The revised DD Form 48-3, Personnel Security Questionnaire (Updating), will be used in the same manner as it is currently used, that is, for con- verting or transferring a personnel security clearance. The revised DD Form 48-3 has been amended so that privileged information is incorporated at the bottom of the form. Each cleared facility will receive an initial distribution of the new forms prior to the effective date. The distribution, in late April 1968, will consist of a standard package containing a six-month supply of forms for the average facility. Each package will include: 10 DD Form 48 packets, 3 DD Form 49 packets, 20 DD Forms 48-2, 10 DD Forms 48-3, 2 Instruction Sheets, 15 Worksheets (DSA Form 707), 23 DSA Form 703 envelopes, and 2 DSA Form 704 envelopes. It is recognized that under this standard distri- bution approach, some contractors may receive too many forms and others too few. In those cases where the initial distribution is not sufficient for the facility's needs, the contractor should order the additional quantities needed from DISCO. A sample reorder blank will be provided in the next issue of the Industrial Security Letter. In those cases where the initial distribution far exceeds the facility's anticipated six-month need, the contractor should return surplus forms to the Industrial Security Repre- sentative at the time of his next inspection or visit to the facility. As shown in the illustration of page 5, a contractor will first have the employee complete the Worksheet (DSA Form 707), which will be provided for the applicant's use in connection with the completion of the DD Forms PAGENO="0246" 1810 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 48 and 49 (Step 1). The Worksheet (DSA Form 707) will not contain any of the privileged information questions. Special instructions relative to the completion of the form will be provided to assist the applicant in the completion of the form. When the Worksheet (DSA Form 707) is completed, the contractor or the etnployee should type the DD Form 48 or 49 packet (Step 2). Part II of the form is the portion to be completed by the employer (Step 3). It contains about the same information as is called for on the top portion of the present DD Forms 48 and 49. This part of the new forms will now be found at the bottom of the first page of both the DD Form 48 and DD Form 49. When all of the information has been transcribed from the Worksheet (DSA Form 707) onto the DD Form 48 or 49, the contractor should check the form to make sure all questions are properly answered. The form will then be returned to the employee and he will be requested to complete the questions in `Part III of the form containing the privileged infor- mation discussed previously. This will be done in private (Step 4). When the employee has completed this portion of the form he will fold the form so that his responses to the privileged questions are concealed (Step 5). Then, in the presence of a witness, the employee will sign the form and date it. The witness shall also sign attesting that he has witnessed the signature (Step 6). The employer should then give the com- pleted Fingerprint card to the employee. The employee, in the presence of a representative of the employer, will then place the completed DD Form 48 or 49, together with the Fingerprint Card, in an envelope which will be provided. This preprinted envelope, addressed to DISCO, has been desig- nated as DSA Form 703. The employee will seal the envelope, sign across the flap of the envelope and return it immediately to his employer (Step 7). In those cases involving owners, officers, directors, partners, regents, trustees or executive personnel (OODEPs) - who are cleared as part of a facility security clearance - the contractor should not use the preaddressed envelope, DSA Form 703. Instead, the contractor shall trans- mit the forms to his cognizant security office. The DSA Form 704 envelope should be used for this pur~bse. The contractor will be required to address the DSA Form 704 to his cognizant security office. Because privileged information is being provided, new procedures have been adopted for the handling of those cases in which the DD Form 48 or 49 is not properly completed. Under the new procedures, if the infor- mation pertains to the nonprivileged (open) portion of the form, the employer will be queried. If.the information concerns the privileged portion of the form, a letter will be sent to the employee via the con- tractor. The letter to the employee will advise him with respect to the additional information which must be provided. This letter will be in a sealed envelope as an attachment to a letter to the contractor. The contractor will be advised to deliver the sealed envelope to the employee and to have the employee complete the privileged information in the same manner as when the original form was completed. The employee will then place his reply in the envelope provided. This envelope, after being sealed by the employee, will be given to'the contractor who will mail it to DISCO. PAGENO="0247" z -4 CI) C-) 0 0 C-) 0 I' WORK SHEET COMPLETED STEP1 BY EMPLOYEE WORK SHEEI DATA STEP 2 TRANSCRIBED -. ~ STEPS IN PREPARATION OF PSQ / PART U COMP~ED BY EMPLOYER s~p - AND PSQ RETURNED TO EMPLOYEE ~tinued ~: -- I PARTIII COMPLETED IN PRIVATE STEP 4 I * *` - - - -- - ;~-` BY EMPLOYEE / LMELOYLLSIUNSANUUPdL~ ( CERTIFICATION IN PRESENCE STEP 6 j4, *Q~ ~ - - -- - OF WITNESS; WITNESS SIGNS. COMPLETE PARTIU -- ONREVERSESIDE ~ EMPLOYERFIJRNISHESrtr~uu~rIcINI4.~w OF ORIGINAL COPY TO EMPLOYEE,. EMPLOYEE INSERTS PSQ AND -- * - FINGERPRINT CARD IN PRE-ADDRESSED TEP ENVELOPE, SEALS AND SIGNS ACROSS * * ENVELOPE FLAP. PAGENO="0248" 1812 AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 It is essential that a representative of the contractor carefully review the nonprivileged (open) portion of the form for conpleteness and accuracy. Further, he shall assure that the employer, or his designated representative, has signed Part II. He shall ask the employee whether each question in the privileged section has been answered. Before the form is mailed, both the employee and the witness shall be asked whether they have signed and witnessed the form. By following this simple pro- cedure, the return of the forms for correction can be prevented, thereby reducing unnecessary lost time in processing. Changes in the procedures for requesting personnel security clearances will require rather significant modification of the, procedures currently used by contractors in processing and preparing clearance applications. In order to assist industry during the transition period, the Department of Defense is planning a series of conferences throughout the country for the purpose of providing more detailed guidance. These conferences will also provide industry with an opportunity to resolve questions which they may have regarding the new PSQ procedure. Additional subjects will be presented at these conferences relative to the new "Contract Security Classification Specification" (DD Form 254) and the administrative termina- tion of personnel security clearances. By the middle of March, each con- tractor will receive a notification from his cognizant security office advising of the date, time and place of the conferences in his Defense Contract Administration Services Region (DCASR). A team from HQ DSA CAS will conduct at least one conference in each metropolitan area in which the DCASR headquarters is located. The DCASRs will schedule additional con- ferences when needed in other locations throughout the region. These presentations will be given by DCASR personnel. Contractors may elect to attend the HQ DSA CAS or DCASR presentation, whichever is more convenient for them. The changes to the Industrial Security Manual necessary to implement these new procedures will be published and distributed on or about 1 April 1968. The anticipated effective date for these new procedures is 1 May 1968. It is emphasized that the partnership presently enjoyed and being `effectively implemented by both industry and Government in the Industrial Security Program will continue undisturbed. With the cooperation of all concerned, the new P5Q can be placed into use without materially disrupting the industrial security clearance processing system. At the same time, the individual employee who requires access to classified information will be assured that his constitutional right to enjoy privacy on privileged or personal matters remains inviolate. 2. INDUSTRIAL SECURITY MANAGEMENT COURSE Contractors are advised that the Department of Defense, during the balance of FY68, will hold 5 Industrial Security Management Courses accord- ing to the schedule given below: PAGENO="0249" AMENDING SUBVERSIVE ACTIVITIES CONTROL ACT OF 1950 1813 FORT HOLABIRD * MARYLAND Convening Date Closing Date 18 March 1968 22 March 1968 8 April 1968 12 April 1968 Contractors interested in attending the Industrial Security Management Course at Fort Holabird should contact their cognizant security offices for reserva- tions. DENVER, COLORADO (Field Extension) The course will be held 6-10 May 1968 at the Sheraton-Malibu Motor Inn, 6160 Smith Road, Denver, Colorado 80216. Contractors desiring reservations should address their requests to Mr. Homer A. Grove, Defense Contract Admin- istration Services Area Office, Denver, Room 392, New Customs House, 19th and Stout Street, Denver, Colorado 80202. Telephone: Area Code 303, 297-3707. SANTA BARBARA, CALIFORNIA (Field Exten~~) The course will be held 13-17 May 1968 at the Santa Barbara U.S. Army Reserve Center, 3227 State Street, Santa Barbara, California, 93105. Con- tractors desiring reservations should address their requests to Mr. Philip W. John, Defense Contract Administration Services Region, Los Angeles, 11099 S. LaCienega Boulevard, Los Angeles, California 90045. Telephone: Area Code 213, 643-0192, 643-1086. NOTE: Because of limited accommodations at the Santa Barbara U.S. Army Reserve Center, contractors in the Santa Barbara, Ventura, Santa Maria and Lompoc areas will be given priority consideration. LOS ANGELES, CALIFORNIA (Field Extension) The course wil be held 20-24 May 1968 at the Hollywood Roosevelt Hotel, 7000 Hollywood Boulevard, Hollywood, California 90028. Contractors desiring reservations should address their request to Mr. Philip W. John, DCASR Los Angeles, 11099 S. LaCienega Boulevard, Los Angeles, California 90045. Tele- phone: Area Code 213, 643-0192, 643-1086. The above information supersedes Industrial Security Letter No. 67L-7, 30 Nov- ember 1967, Item 4, subject: Industrial Security Management Course - Field Extensions. ief, Office of Industrial Security Contract Administration Services 0