[Federal Register Volume 62, Number 250 (Wednesday, December 31, 1997)]
[Rules and Regulations]
[Pages 68502-68517]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-33949]



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Part X





Department of Energy





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Office of the Secretary



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10 CFR Part 1045



Nuclear Classification and Declassification; Final Rule

  Federal Register / Vol. 62, No. 250 / Wednesday, December 31, 1997 / 
Rules and Regulations  

[[Page 68502]]


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DEPARTMENT OF ENERGY

Office of the Secretary

10 CFR Part 1045

RIN 1901-AA21


Nuclear Classification and Declassification

AGENCY: Department of Energy.

ACTION: Final rule.

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SUMMARY: The Department of Energy (DOE or Department) is publishing a 
final rule revising its regulations concerning the policies and 
procedures on the identification of classified information. These 
regulations establish the policies and procedures implementing the 
requirements of the Atomic Energy Act of 1954 for the classification 
and declassification of information as Restricted Data and Formerly 
Restricted Data and also implement those requirements of Executive 
Order 12958 concerning National Security Information that directly 
affect the public. These regulations prescribe procedures to be used by 
all agencies of the Federal Government in the identification of 
Restricted Data and Formerly Restricted Data, and describe how members 
of the public may request DOE National Security Information and appeal 
DOE classification decisions regarding such requests.

EFFECTIVE DATE: This rule becomes effective June 29, 1998.

FOR FURTHER INFORMATION CONTACT: Janet O'Connell, Department of Energy, 
Office of Declassification, 19901 Germantown Road, Germantown, Maryland 
20874-1290, (301) 903-1113, or John Gurney, Department of Energy, 
Office of the Assistant General Counsel for National Security, 
Washington, DC 20585, (202) 586-8269.

SUPPLEMENTARY INFORMATION:

I. Introduction
II. Background
III. Discussion of Comments
IV. Rulemaking Requirements
    A. Review Under Executive Order 12866
    B. Review Under Paperwork Reduction Act
    C. Review Under the National Environmental Policy Act
    D. Review Under Executive Order 12612
    E. Review Under Executive Order 12988
    F. Review Under the Unfunded Mandates Reform Act of 1995
    G. Review Under the Regulatory Flexibility Act
    H. Review Under Small Business Regulatory Enforcement Fairness 
Act of 1996
V. Freedom of Information Act Considerations

I. Introduction

    On January 15, 1997, DOE published a Notice of Proposed Rulemaking 
(62 FR 2251) establishing Government-wide requirements for the 
classification and declassification of Restricted Data (RD) and 
Formerly Restricted Data (FRD) and implementing those provisions of 
Executive Order (E.O.) 12958 that directly affect the public. Under the 
Atomic Energy Act of 1954, 42 U.S.C. 2011, the Department of Energy is 
responsible for the classification and declassification of nuclear-
related information. Such information is classified as RD. The DOE has 
joint responsibility with the Department of Defense (DoD) for the 
classification and declassification of information which relates 
primarily to the military utilization of nuclear weapons. Nuclear 
weapons related military utilization information which can be protected 
as National Security Information (NSI) in the United States is 
classified as FRD. FRD is protected in the same manner as RD when 
transferred to another country or regional defense organization such as 
NATO. These regulations specify the policies and procedures that 
organizations and individuals shall follow in classifying and 
declassifying RD and FRD.
    In formulating these policies and procedures, DOE has solicited and 
made use of a significant number of recommendations from the public and 
other agencies of the Federal Government (hereafter referred to as 
``agencies''); and the Department has embraced the goal of ``open 
policies openly arrived at.'' The resulting regulation balances the 
Department's commitment to maximize the amount of information made 
available to the public with the need to protect national security and 
prevent nuclear proliferation.
    Section 5.6(c) of E.O. 12958, ``Classified National Security 
Information,'' requires agencies that originate or handle classified 
information to promulgate implementing regulations which shall be 
published in the Federal Register to the extent that they affect 
members of the public. Subpart D of today's rule implements those 
requirements of the Executive order and was approved by the Information 
Security Oversight Office (ISOO) on July 5, 1996, in accordance with 
section 5.3(b)(3) of E.O. 12958.

II. Background

    This regulation is written in four Subparts. Subpart A provides 
general information on the management of the RD classification system, 
including the responsibilities of DOE and all agencies with access to 
RD and FRD. Subpart B describes procedures for the classification and 
declassification of RD and FRD information (as contrasted with 
classification and declassification of documents containing such 
information). Requirements and procedures for the review, 
classification, and declassification of RD and FRD documents to be 
implemented by all agencies are described in Subpart C. Lastly, Subpart 
D provides DOE requirements and procedures concerning NSI to the extent 
that they affect the public, as required by Executive Order 12958.
    This regulation incorporates recommendations of the Classification 
Policy Study of July 1992, the Atomic Energy Act Study of January 1994, 
and the National Academy of Sciences Review of 1995, as well as some of 
the overarching issues in the Fundamental Classification Policy Review 
of January 1997. Copies of these studies are available from the contact 
person in the FOR FURTHER INFORMATION CONTACT section of this notice.

III. Discussion of Comments

a. Introduction

    In response to the Notice of Proposed Rulemaking, DOE received 
thirty-nine (39) written comments. Twenty-three (23) were indications 
of no comment or concurrences. In addition, there were two commenters 
at a public hearing held on February 26, 1997. This section describes 
comments, discusses changes to the proposed rule which are incorporated 
in the final regulation, and provides an explanation of the comments 
which were evaluated, but not adopted by the Department. This section 
discusses both revisions to the proposed rule made in response to 
public comments and also those made by the DOE Office of 
Declassification of its own initiative.

b. General Comments

    The following describes general comments received. One commenter 
recommended that the regulation ``address more specifically how to 
handle RD/FRD documents which are interspersed among documents of 
agencies other than DOE.'' DOE concurs that additional guidance in this 
area is needed. However, the Department does not believe that this 
regulation is the appropriate vehicle for providing such

[[Page 68503]]

detail. The External Referral Working Group of the Intelligence 
Community Declassification Program Manager's Council is focusing on 
implementing E.O. 12958 and is developing standards which will address 
this issue.
    One commenter had a number of comments relating to definitions used 
in sections 1045.3, 1045.4, and 1045.13. The commenter stated that the 
terms ``reasonably,'' ``could be expected,'' ``exceptionally grave 
damage,'' ``serious damage,'' and ``damage'' as contained in the 
definitions for Top Secret, Secret and Confidential, were highly 
subjective and vague and recommended that these terms be deleted or 
replaced. All of these definitions and terms are taken directly from 
E.O. 12958, with the exception of ``undue risk'' which is taken 
directly from the Atomic Energy Act of 1954, as amended. While the 
terms in E.O. 12958 strictly apply only to NSI, the Department believes 
it is clearly in the national interest that the RD system, to the 
extent possible, preserve commonality of terms with the more widely 
applied NSI system. The use of subjective modifiers such as 
``reasonably,'' ``exceptionally grave damage'' or ``undue risk'' is a 
reflection of the fact that classification is not an exact science. 
These terms, together with the phrase ``could be expected,'' indicate 
that decisions by well-informed, trained officials should be based on 
their educated analysis of the probable future impact on the national 
security.
    This commenter also indicated that declassification means a 
determination and does not necessarily result in DOE releasing the 
information into the public domain and can often require a specific 
waiting period which can last for months before the information is 
actually released. It can indeed take time to move information or 
documents from the classified domain and make them accessible to the 
public. The Department is pursuing a number of initiatives to reduce 
the amount of time it takes to declassify and release information to 
the public. The Department does not believe that this matter should be 
addressed by today's regulation.
    One commenter noted that the definitions for ``information'' and 
``Government information'' are too broad. The definition for 
``information'' is appropriate and is included because it is important 
to distinguish, within the RD system, information from the medium of 
conveyance, e.g., documents or pictures. The definition of ``Government 
information'' is taken directly from E.O. 12958.
    The commenter also suggested that classification guides are needed 
to limit what information can be classified and that it was unfortunate 
that these guides are themselves classified and unavailable to the 
public. DOE agrees that classification guides are needed and relies 
upon them as the primary source for derivative classification 
decisions. Classification guides provide the approved, detailed 
instructions describing what specific information is or is not 
classified, and the rationale for the instructions. By their very 
nature, classification guides must contain detailed descriptions of the 
information they are designed to protect. This level of detail in the 
guides greatly enhances their sensitivity, and requires that they, for 
the most part, be classified. Consequently, the public disclosure of 
classification guides would provide information that is harmful to 
United States nonproliferation and national security objectives.
    The commenter indicated that the term ``national security'' was 
vague. The definition for this term is derived directly from E.O. 
12958. Commenting on the definition of ``Restricted Data,'' the 
commenter stated that the word ``concerning'' is too vague and broad. 
The definition for ``Restricted Data'' is derived directly from the 
Atomic Energy Act. One commenter expressed concern with the definition 
of ``Special Nuclear Material'' indicating that it would allow 
innocuous materials to be classified. The definition for ``Special 
Nuclear Material'' is derived directly from the Atomic Energy Act. 
Section 51 of the Act stipulates that to determine whether other 
material is special nuclear material in addition to that specified in 
the Act's definition of special nuclear material, the Department must 
find the material to be capable of releasing substantial amounts of 
atomic energy, that such a determination is in the interest of the 
common defense and security, and that the President must have expressly 
assented in writing to the determination. Finally, such designation 
would be reviewed by the Congress. Based on these requirements, it is 
unlikely that an innocuous material could be designated as a special 
nuclear material.
    The commenter expressed concern that the word ``relating'' as used 
in section 1045.4 (c) is overly vague. The Department will apply the 
plain English definition of the term ``relating'' in this context.
    As used in section 1045.13 (d) and (e), one commenter considered 
the terms ``concerns'' and ``unduly'' as subjective. The DOE intends to 
apply the plain English definitions for these terms. Plain English 
definitions of the word ``concern'' include: ``to relate to; be 
connected with; be of interest or importance to; or have an important 
relation or bearing.'' This is what is meant here. The word ``unduly'' 
is used to indicate that different classification levels have different 
dissemination restrictions, and the classification level assigned 
should be appropriate to the adjudged sensitivity.
    One commenter suggests that in sections 1045.4 and 1045.8, DOE is 
using this rule to impose its classification system throughout the 
Government, to avoid such steps as the automatic 25 year 
declassification of NSI documents required by E.O. 12958, and to exert 
rights to oversee the operations of other Government agencies. In 
particular, the commenter emphasizes his belief that the oversight 
function should come from outside the agency. DOE is indeed using this 
rule to implement its responsibility to manage the Restricted Data 
system Government-wide, as authorized by section 161(p) of the Atomic 
Energy Act. DOE welcomes public scrutiny of its operations, but cannot 
delegate its statutory responsibility for oversight of the RD system to 
the general public or another agency. Additionally, DOE is in 
compliance with all provisions of E.O. 12958; it is noted that RD and 
FRD are exempt from automatic declassification under section 6.1 of the 
E.O.

c. Section-by-Section Analysis

    The following describes the public comments which were received, in 
the order of the sections to which they pertain.
    One commenter recommended that the Director of Declassification, 
the Director of Security Affairs, and the NRC have added to their list 
of responsibilities a requirement that they must interact with 
stakeholders to better understand the public's information needs. In 
response to this comment, DOE has added paragraph 1045.4(a)(8) to the 
responsibilities of the Director of Declassification which reads, 
``Periodically meet with interested members of the public to solicit 
input for the classification and declassification program.''
    Commenting on section 1045.5, one commenter asked for more detail 
concerning what is meant by the phrase ``this part.'' The phrase ``this 
part'' refers to the entire regulation; Part 1045 of title 10 of the 
Code of Federal Regulations (i.e., 10 CFR Part 1045). This commenter 
also requested that section 1045.5 be modified to provide further 
detail concerning the possible sanctions and the administrative 
authorities. It is not

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appropriate to specify in the regulation all details concerning 
administrative sanctions or other penalties since they are dependent on 
the offense committed and the circumstances. One commenter suggested 
that the Openness Advisory Panel include a representative of the 
stakeholder community. While the composition of the panel is not 
indicated in section 1045.6, all of its current members are public 
stakeholders and the charter of the panel indicates that members will 
be selected from the public stakeholder community. One commenter 
suggested that it is important that the deliberations of the Panel be 
open. All Openness Advisory Panel meetings held to date have been open 
to the public. Minutes of the meetings are available in the 
Department's FOIA reading room and on the Internet at the DOE OpenNet 
web site.
    One commenter suggested that the Openness Advisory Panel be 
provided with more access to the inner workings of the DOE 
classification system, and the panel's recommendations should be made 
public at an early stage. The Office of Declassification has ensured 
that the panel has access to any information it needs on DOE 
classification policies or procedures, including access to classified 
information since many of the panel members have security clearances. 
Further, DOE is working to ensure that the panel's recommendations are 
made available to the public as soon as they are finalized.
    One commenter suggested that the Openness Advisory Panel should be 
involved in overseeing the individual performance of DOE personnel in 
classification activities. The role of the Openness Advisory Panel is 
advisory, not oversight.
    One commenter suggested that section 1045.7 be modified to ensure 
that persons making suggestions or complaints do not face any adverse 
action. DOE accepted this suggestion and 1045.7 (d) was added, ``Under 
no circumstances shall persons be subject to retribution for making a 
suggestion or complaint regarding classification and declassification 
policies or programs.''
    One commenter recommended that the Openness Coordinator, specified 
in section 1045.7, make available to the general public a summary of 
all suggestions and complaints received, and of DOE actions taken in 
response. DOE plans to include this information in its publicly 
available annual report on the implementation of this regulation.
    In response to a comment that performance requirements, 
specifically related to timeliness of performing classification related 
activities in response to public requests, be included throughout the 
rule, the Department has added a new section, section 1045.9., to 
Subpart A to ensure a system is in place which measures the individual 
performance of those personnel who classify or declassify RD documents 
on a regular basis. This provision provides the framework for 
individual accountability and is the basis for a more credible 
classification system. A similar requirement exists for NSI 
classification under E.O. 12958.
    In a comment on section 1045.12, one commenter suggested that a 
publicly available log of declassification actions should be 
maintained. DOE has been publishing such a log under the title, 
``Restricted Data Declassification Decisions 1946 to the Present.''
    Commenting on section 1045.13, one commenter objected to the 
inclusion of the word ``solely'' regarding the prohibition on 
classifying information bearing solely on the physical environment or 
public or worker health and safety. It is DOE's intent to be as open as 
possible with information concerning the physical environment or public 
or worker health and safety. However, when information of this nature 
cannot be revealed without also revealing other information harmful to 
the national security, its classification is not prohibited under 
section 1045.13. The regulation allows for such circumstances while the 
use of the word ``solely'' prohibits the classification of information 
that only concerns the physical environment or public or worker health 
and safety.
    One commenter noted that section 1045.15 presents presumptions 
concerning nuclear waste created from the production of nuclear 
weapons, but does not deal with the waste produced when weapons are 
detonated underground at the Nevada Test Site (NTS). The commenter's 
particular interest is in the spatial distribution of waste. Section 
1045.15 (b) and (c) point out that not all areas are covered by the 
presumptions, and that inclusion of information in a presumption does 
not mean that new information in this category is or is not classified. 
In 1994, the Department declassified the total waste burden, by 
isotope, left at NTS as of January 1, 1994, by all nuclear tests 
detonated below or within 100 meters of the water table. To provide 
some spatial resolution, tests conducted on Pahute Mesa were aggregated 
separately from the total for all other testing areas. No additional 
presumptions were added in response to this comment.
    Concerning section 1045.16, one commenter stated that, ``guidelines 
will have to be more specific to ensure that old conservative habits do 
not prevail resulting in many documents either remaining classified 
unnecessarily, or classified needlessly. The guidelines also need to be 
clear regarding imprecise concepts such as `significant doubt', 
`whether the information is so widely known,' etc., for the same 
reasons.'' These terms and concepts are not applied to the numerous 
document classification and declassification decisions which are made, 
only to initial information classification and declassification 
decisions. Document classification and declassification decisions are 
based primarily on classification guides which indicate whether or not 
certain items of information are classified. DOE has not developed 
guidelines for these concepts and definitions, primarily because DOE 
uses the plain English meaning of these terms and applies them to 
information on a case by case basis.
    Regarding section 1045.17, one commenter requested that DOE explain 
why it included only a limited list of examples of information which is 
classified at the various classification levels. The list provided in 
the regulation is intended to be merely illustrative, not exhaustive.
    One commenter objected to section 1045.18, permitting DOE to 
classify newly generated information in a previously declassified 
subject area and suggested that it will create a massive abuse of 
Government classification powers and should be deleted. This authority 
will only allow DOE to judiciously and responsibly classify new 
information which truly warrants protection in the interests of 
national security. Information already in the public domain will not be 
reclassified.
    One commenter recommended that, ``a requirement be included that 
all proposals for declassification and changes in controlled status be 
periodically reported to the public through the Federal Register, and 
that progress in pursuing such proposals also be reported.'' Controlled 
is a term applied to information that is unclassified but not publicly 
releasable. This regulation does not address controlled status, but 
section 1045.19, requires that the DOE Director of Declassification 
prepare a publicly available report on an annual basis on the 
implementation of this regulation. This report will include information 
on declassification proposals and progress with such proposals.
    With respect to section 1045.19, one commenter suggested that the

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classifier's duty station or agency, address, and telephone number be 
marked on a document classified as RD or FRD. Section 1045.40 (b) (4) 
requires that the classifier's name and position or title be marked on 
the document, if not the same as the document originator or signator. 
DOE does not believe the additional information requested needs to be 
included in the marking, since DOE can determine this information if 
the classifier's name and position or title is provided.
    DOE received three comments concerning the Department's authority 
to classify RD which is generated outside of the Government, as 
specified in section 1045.21. One commenter indicated that this 
provision does not adequately define what type of RD will be covered 
and is a violation of first amendment rights. Another commenter 
suggested that exercising this authority may place sensitive 
information at risk and recommended that elimination of the ``born 
classified'' provisions of the Atomic Energy Act be sought through 
Congressional action. DOE evaluated these comments and determined that 
under the Atomic Energy Act, the Department has the authority and the 
obligation to apply this section to any information properly classified 
as RD. It should be noted that this authority would be exercised only 
in the case of a very serious national security matter where no other 
course of action is possible. In the past 50 years, this authority has 
been exercised only a few times.
    DOE received three comments concerning the No Comment Policy as 
described in section 1045.22. One commenter indicated that this section 
was too broad. Another commenter suggested that the policy should not 
apply to all persons with access to RD and FRD because they are not 
sufficiently knowledgeable of all classified information in the public 
domain and recommended that this policy be restricted to Government 
officials and weapon designers. DOE will apply this policy to all 
individuals with access to RD and FRD. DOE cannot limit this policy to 
apply only to Government officials and weapons designers because RD 
information exists in subject areas other than weapons and is in the 
possession of numerous cleared contractors. One commenter suggested 
that this section is an attempt to intimidate and quiet DOE scientists. 
It should be noted that the policy is not intended to restrict 
scientists or others from commenting on an aspect of a public statement 
that is clearly unclassified, such as the basic physics of a process. 
The purpose of this policy is to ensure that classified information 
that may already be in the public domain is not officially confirmed, 
resulting in damage to the national security or harm to U.S. 
nonproliferation objectives. As a result of these comments paragraph 
(a) of this section has been modified to read, ``Authorized holders of 
RD and FRD shall not confirm or expand upon the classification status 
or technical accuracy of classified information in the public domain.''
    One commenter suggested that section 1045.35 be restructured to 
reflect differing training requirements depending on the type of 
authority an individual has. In response to this comment, the 
Department has revised section 1045.35(a) to read, ``RD management 
officials shall ensure that persons with access to RD and FRD 
information are trained on the authorities required to classify and 
declassify RD and FRD information and documents and on handling 
procedures. RD management officials shall ensure that RD classifiers 
are trained on the procedures for classifying, declassifying, marking 
and handling RD and FRD information and documents.'' The commenter also 
recommended that RD classifiers be certified. The regulation requires 
that all RD classifiers be trained and (except within the DoD) 
designated. By including these requirements, DOE does not believe that 
an additional certification is necessary.
    One commenter recommended that the rule strongly encourage, if not 
require, portion marking of documents by all agencies. This commenter 
also recommended that the bias towards using classification guides 
which is expressed in section 1045.32(a)(1) be modified. DOE recognizes 
that portion marking of documents containing NSI is required by E.O. 
12958 and that portion marking is common practice in most agencies. 
However, DOE has made the conscious decision not to portion mark RD and 
FRD documents because the DOE classification system relies heavily on 
the use of classification guides. DOE prefers the use of classification 
guides over the use of source documents for derivative classification 
decisions, because use of guides results in more accurate and 
consistent classification decisions. The many individual decisions 
involved with using a portion marked document as a source document 
increase the probability for error. Further, a portion marked document 
is not revised to reflect changes in classification guidance and it may 
represent out-of-date classification policy, resulting in 
overclassification. A non-portion marked document should also not be 
used as a source document. While it is possible that RD classifiers may 
attempt to use non-portion marked documents as source documents, it is 
less likely precisely because they are not portion marked. Therefore, 
DOE believes it is preferable not to portion mark in order to encourage 
the use of classification guides over source documents.
    One commenter suggested that, ``Documents containing both RD and 
NSI should be marked on the front page with an `NSI Content 
Declassified on' date, which is the date that the document would be 
automatically declassified if it contained no RD.'' DOE considered this 
proposal but determined that it could not be accepted because under the 
Atomic Energy Act, documents containing RD information, regardless of 
whether they also contain NSI, must undergo a review prior to their 
declassification and release. At such time, the NSI content would also 
be reviewed and declassified if appropriate. In addition, this comment 
was not adopted because DOE is concerned that such a marking may be 
misread and result in the inadvertent disclosure of RD or FRD.
    One commenter recommended that the rule contain a requirement that 
safety, health and environmental impact analysis/evaluations for 
classified facilities and activities contain both classified and 
unclassified versions, unless the existence of the facilities or the 
activities are considered RD, FRD or NSI. The commenter also suggested 
that the rule contain a requirement that the unclassified version 
contain documentation for conclusions that provisions for public and 
worker protection are at least comparable to that provided at 
unclassified facilities and that this requirement should include 
provisions for identifying the parts or phrases which are removed and 
the bases for the classification. This commenter also recommended that 
section 1045.41 specifically require that unclassified versions of 
documents be prepared for safety, health and environmental impact 
evaluations. In addition, another commenter made a similar suggestion 
indicating that when information must be classified which relates to 
the environment, the Department should include an analysis of the 
classification in the environmental documents. This commenter also 
recommended that the rules require in each case that the Department 
certify that the classified information cannot be declassified and why. 
This regulation cannot impose requirements on the actual content of a 
document, only its classification. In

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response to these comments, the Department has enhanced the language in 
section 1045.41. A new paragraph, 1045.41(c), has been added which 
encourages document originators to provide a publicly releasable 
rationale for the classification of documents containing environmental, 
safety or health information, when unclassified versions cannot be 
prepared. In addition, one commenter recommended that DOE acknowledge 
the existence of a classified addendum. DOE accepted this suggestion 
and 1045.41(a) has been revised accordingly.
    One commenter indicated that ``Section 1045.52(a) proposes that any 
information subject to pending litigation is a basis for denial of 
declassification reviews'', and recommended this proposal be deleted. 
This section indicates that if the Department has reviewed the 
information within the past 2 years, or the information is the subject 
of pending litigation, the Department shall inform the requester of 
this fact and of his or her appeal rights. The language in this section 
is derived directly from section 3.6 of E.O. 12958. DOE requested 
clarification from ISOO on this section and was advised that if 
information is subject to pending litigation, the Department should not 
process the request. This does not mean that the request is denied, 
rather that the request is not processed until the litigation is 
complete. Section 1045.53(a) was revised to reflect this clarification. 
This commenter also recommended that this section be revised to 
prohibit extension of appeals beyond 60 working days. While DOE makes 
every effort to complete appeal actions within the specified time 
frame, some actions may require additional time to complete because of 
extensive interagency coordination. Therefore, it is not practical to 
establish such a prohibition.

d. DOE Revisions

    The following describes changes to the regulation made by DOE on 
its own initiative, not in response to any public comment. The title of 
the rule was changed from ``Information Classification'' to ``Nuclear 
Classification and Declassification'' in order to be more descriptive. 
In the preamble to the proposed rule, the Department indicated that the 
Openness Advisory Panel ``will also serve as an independent authority 
to confirm for the public the validity of classification decisions in 
instances when the full rationale cannot be disclosed for reasons of 
national security.'' A panel of the Secretary of Energy Advisory Board 
(SEAB) provides advice and recommendations to the SEAB and therefore 
cannot function as an ``independent authority.'' Consequently, the 
Openness Advisory Panel will not function as an ``independent 
authority'' concerning the validity of classification decisions.
    In section 1045.3, the definition of ``contractor'' was revised for 
accuracy to read, ``means any industrial, educational, commercial or 
other entity, grantee or licensee at all tiers, including an 
individual, that has executed an agreement with the Federal Government 
for the purpose of performing under a contract, license or other 
agreement.'' The definition of ``declassification'' was modified to 
reflect that some information may be declassified but still require 
protection for national security reasons (e.g., Unclassified Controlled 
Nuclear Information). The definition of ``information'' was expanded 
for clarity. The definition of ``National Security Information'' was 
modified to add the words, ``NSI is referred to as `defense 
information' in the Atomic Energy Act.'' This change was made for 
clarity. Also, the definition of ``Restricted Data classifier'' was 
modified by adding the following words, ``RD classifiers within the DoD 
may also declassify FRD documents.'' This change was made for accuracy 
and to be consistent with other sections of the regulation.
    DOE has added language to section 1045.7(c) which reads, ``DOE will 
make every effort to respond within 60 days.'' This change was made to 
ensure the Department is responsive to suggestions and complaints.
    The Department has added language to section 1045.14(a) which 
requires that an RD classifier follow the process for submitting 
potential RD for evaluation whenever he or she is unable to locate 
classification guidance that can be applied to the information. Under 
previous procedures, RD classifiers could classify documents even 
though they were unable to locate classification guidance that applied 
to the information. This practice evolved from the ``born classified'' 
concept. This concept is now being de-emphasized since it is DOE 
practice that classification is not automatically prescribed. 
Consequently, this revision is necessary to ensure classification is 
not automatically applied when there is uncertainty as to the need for 
it. For completeness, the Department has also added paragraph 
(a)(1)(iv) to section 1045.14 which requires that the Director of 
Declassification notify classifiers of the information classification 
decisions made under this section.
    For accuracy, DOE inserted the word, ``category'' after ``RD 
classification'' and changed ``Director of Declassification'' to 
``Director of Security Affairs'' in section 1045.14(c).
    Section 1045.15(c) was modified to clearly state that the 
presumptions reflect the classification status of existing information 
and that new information in one of the presumption categories may or 
may not be classified. The Department has deleted section 
1045.15(d)(2), the unclassified presumption which was worded 
``instruments and equipment''. DOE was able to find numerous examples 
of classified instruments and equipment. Section 1045.15(d)(8) (now 
(7)), was revised by inserting the words ``most of'' before ``their 
alloys.'' This change was made in response to DOE concerns that not all 
alloys and compounds are unclassified.
    DOE revised proposed section 1045.15(d)(10) (now (9)), by deleting 
the word ``all''. This change was made because there is still one 
nuclear test yield range that remains classified. Proposed section 
1045.15(d)(12) (now (11)) has been revised to add the words ``not 
revealing size or details concerning the nuclear weapons stockpile.'' 
This revision is necessary because the presumption was too broad.
    DOE revised proposed section 1045.15(d)(13) by changing the word 
``Operations'' to ``Any information.'' This change was made to broaden 
the scope of this ``presumed unclassified'' subject area. The original 
wording would have limited the scope to only those operations dealing 
exclusively with health, safety, and environmental matters, such as a 
site environmental cleanup project. The new wording includes any 
health, safety, and environmental information in any program regardless 
of its purpose.
    As a result of a recent declassification action, the Department 
added paragraph 1045.15(d)(14), an unclassified presumption concerning 
the association of materials at specified DOE sites.
    DOE has also added paragraph (c) to section 1045.16 for 
completeness, ``The DOE Directors of Declassification and Security 
Affairs shall consider the presumptions in section 1045.15 (d) and (e) 
before applying the criteria in paragraph (d) of this section.''
    In section 1045.17(a)(1), examples are provided of RD information 
which warrants classification at the Top Secret level. For clarity, a 
more complete explanation of what type of nuclear weapons design 
information warrants classification at the Top Secret level is 
provided. Also, paragraph (a)(3) of section 1045.17 has been expanded 
to provide more examples of information

[[Page 68507]]

that warrant classification at the Confidential level.
    For clarity, the sentence, ``The DOE Director of Declassification 
shall not classify the information in such cases if it is widely 
disseminated in the public domain'' has been added to section 1045.18.
    Proposed section 1045.19(b) has been revised to include an address 
where persons may request the annual report on the status of the RD 
classification program. This report will be made available to any 
interested persons, including the Congress.
    To ensure that the requirement to publish a Federal Register notice 
does not result in the disclosure of classified or sensitive 
information, section 1045.21(c) has been revised to read, ``DOE shall 
publish a Federal Register notice when privately generated information 
is classified as RD, and shall ensure that the content of the notice is 
consistent with protecting the national security and the interests of 
the private party.'' Depending upon the circumstances, the Federal 
Register notice could be a simple acknowledgment that DOE has exercised 
the authority under this section if the identification of the 
circumstance would be classified.
    Section 1045.32(a)(1) has been revised by deleting the word 
``properly'' from the second sentence. DOE recognizes that some source 
documents are improperly classified. Nonetheless, RD classifiers may 
presume that the classification of a document marked RD or FRD is 
proper where there is no conflicting guidance. Therefore, this word has 
been removed. Where there is doubt about the classification of a source 
document and there is no classification guide topic to address the 
information, the RD classifier should follow the process described in 
section 1045.14. Paragraphs (a) (1) and (4) and (b)(2) were modified to 
reflect that joint Agency-DOE classification guides or Agency guides 
coordinated with the DOE should be used in these instances. Paragraph 
(a)(3) has been added to section 1045.32 which states ``RD classifiers 
shall classify only documents in subject areas in which they have 
programmatic expertise.'' The purpose of this revision is to ensure 
that information is derivatively classified only by those individuals 
who have specific program knowledge of the information being 
classified. This is generally an accepted practice throughout the 
Government. This provision merely formalizes the procedure. Paragraph 
(a)(4) has been added to section 1045.32 to allow RD classifiers to 
upgrade or downgrade the classification level of documents.
    In section 1045.34, paragraph (b) has been added to read, ``All 
contractor organizations with access to RD and FRD, including DoD 
contractors, shall designate RD classifiers.'' This change was made to 
clarify that the exemption from the designation requirement in 
paragraph (a) applies only to DoD federal employees. This provision is 
consistent with the National Industrial Security Program Operating 
Manual.
    DOE changed the words, ``persons working with RD and FRD 
information'' to ``all RD classifiers'' in section 1045.37(f). This 
change is made since only RD classifiers, not all persons with access 
to RD and FRD, need classification guides.
    Section 1045.38(c) has been modified by adding the words ``and 
FRD'' after ``RD.'' This change is made for accuracy since both RD and 
FRD are exempt from the provisions of E.O. 12958.
    Concerning the marking requirements in Section 1045.40, it is noted 
that these provisions fall under the purview of the DOE Office of 
Safeguards and Security, not the DOE Office of Declassification. 
Section 1045.40(b)(3) has been modified to require that the date of the 
guide or source document used to classify the document being marked, be 
identified. This change is made to ensure consistency in requirements 
throughout the Government. In section 1045.40(b)(4) ``Name or position/
title'' was changed to ``Name and position or title.''
    Proposed section 1045.40(d) was deleted since it did not provide a 
regulatory requirement.
    For accuracy, in section 1045.40(e), (now (d)), ``RD classifier'' 
is changed to ``individual authorizing the declassification.''
    Section 1045.42 has been revised to reflect that the Interagency 
Security Classification Appeals Panel (ISCAP) has no jurisdiction over 
Freedom of Information Act appeals.
    The following language has been added to section 1045.42(b)(5) in 
order to ensure that information that is requested by the public in the 
form of a mandatory or Freedom of Information Act request is formally 
considered for declassification, ``(i) Appeal reviews of RD or FRD 
documents shall be based on existing classification guidance. However, 
the DOE Director of Declassification shall review the RD and FRD 
information in the appealed document to determine if it may be a 
candidate for possible declassification. (ii) If declassification of 
the information appears appropriate, the DOE Director of 
Declassification shall initiate a formal declassification action and so 
advise the requester.''
    The person responsible for ensuring that RD documents are 
periodically and systematically reviewed for declassification has been 
changed from the ``DOE Director of Declassification'' to ``The 
Secretary'' in section 1045.43(a). This change was made to elevate the 
level of the responsible agency official and to ensure this task is 
completed.
    The Department revised section 1045.44 to read, ``Any person with 
authorized access to RD or FRD who generates a document intended for 
public release in an RD or FRD subject area shall ensure that it is 
reviewed for classification by the appropriate DOE organization (for 
RD) or the appropriate DOE or DoD organization (for FRD) prior to its 
release.'' The purpose of this change is to ensure that documents 
intended for public release are reviewed by appropriate officials, 
rather than by any individual who derivatively classifies RD documents. 
Documents originated within the DOE are forwarded to the local 
classification officer for prepublication review. Documents originated 
outside of the DOE are processed in accordance with agency procedures 
and forwarded to the Director of Declassification for prepublication 
review.
    A new section, section 1045.46, has been added to cover a situation 
where two or more pieces of unclassified information when associated or 
compiled together could reveal classified information. In the case of 
classification by association, two unclassified pieces of information 
may, when considered together, reveal classified information. For 
example, a shipment of an unclassified commercially available item of 
hardware to a contractor whose only activity is a classified project 
may cause the fact of the shipment to be classified. In the case of 
classification by compilation, a number of pieces of unclassified 
information that, when considered together, may contain some added 
value such as completeness or comprehensiveness of the information, may 
warrant classification. For example, individual DOE bibliographic 
citations of weapons data reports may be unclassified, however a 
complete compilation of these citations would represent all DOE weapons 
research conducted. Such a compilation would provide significant 
assistance to a potential proliferant and may therefore warrant 
classification. DOE determined that this section is needed to explain 
classification of RD or FRD by association or compilation. A similar

[[Page 68508]]

provision exists for classification by association and compilation for 
NSI under E.O. 12958.
    For accuracy, the words, ``Access to Information'' were removed 
from the title of Subpart D. A new section 1045.51 entitled 
Applicability has been added, ``This subpart applies to any person with 
authorized access to DOE NSI or who desires access to DOE documents 
containing NSI.'' The Purpose and Scope paragraph was modified to 
include the authorities for the classification of NSI. Sections 1045.51 
and 52 were renumbered 1045.52 and 1045.53, respectively.

e. Comments Outside the Scope of the Rule.

    The following provides a summary of comments outside the scope of 
this regulation. One commenter recommended that the Department examine 
the differing requirements within the DOE and the DoD for access to RD. 
This comment has been provided to the DOE Office of Safeguards and 
Security for consideration, since access requirements are under their 
purview.
    Several commenters expressed concern with classification issues 
under the purview of the Office of Naval Reactors, Naval Nuclear 
Propulsion Program. Although the Office of Naval Reactors is subject to 
this regulation, they are responsible for implementation of their own 
classification program under the provisions of Executive Order 12344. 
Consequently, these comments were forwarded to the Office of Naval 
Reactors for appropriate disposition.
    One commenter also provided a suggestion concerning the DOE 
policies for marking and use of ``For Official Use Only (FOUO)'' and 
``Unclassified Controlled Nuclear Information (UCNI).'' Since the scope 
of this regulation does not include UCNI or FOUO, these comments will 
be considered for inclusion in other Departmental policies.

IV. Rulemaking Requirements

A. Review Under Executive Order 12866

    One commenter suggested that the rule as proposed constitutes a 
``significant regulatory action'' as that term is defined by Executive 
Order 12866. That order defines ``significant regulatory action'' as an 
action that is likely to result in a rule that may: (1) have an annual 
effect on the economy of $100 million or more or adversely affect in a 
material way the economy, a sector of the economy, productivity, 
competition, jobs, the environment, public health or safety, or State, 
local or tribal governments or communities; (2) create a serious 
inconsistency or otherwise interfere with an action taken or planned by 
another agency; (3) materially alter the budgetary impact of 
entitlements, grants, user fees, or loan programs or the rights and 
obligations of recipients thereof; or (4) raise novel legal or policy 
issues arising out of legal mandates, the President's priorities or the 
principles set forth in this Executive Order. Today's rule imposes 
requirements on Government agencies, contractors and their employees 
that are authorized to have access to RD and FRD information and 
documents. Costs incurred by compliance with the rule are paid directly 
by the Government or are reimbursed by the Government. Although the 
rule's effect on the economy is difficult to gauge precisely, DOE has 
determined that the annual effect on the economy will fall far short of 
the $100 million threshold and will not adversely affect in a material 
way the economy, a sector of the economy, productivity, competition, 
jobs, the environment, public health or safety, or State, local, or 
tribal governments or communities. DOE has coordinated the development 
of the rule with numerous agencies with access to RD and FRD. DOE has 
sought and received input and concurrences from DoD, Department of 
State and other federal agencies affected by today's rule and does not 
expect that the rule will create a serious inconsistency or otherwise 
interfere with an action taken or planned by another agency. The rule 
has no effect on the budgetary impact of entitlements, grants, user 
fees, or loan programs or the rights and obligations of recipients 
thereof. Finally, the rule raises no novel legal or policy issues 
arising out of legal mandates, the President's priorities, or the 
principles set forth in E.O. 12866. Based on the foregoing, DOE has 
determined that today's rule does not constitute a ``significant 
regulatory action'' as defined in section 3(f) of E.O. 12866.

B. Review Under Paperwork Reduction Act

    No new information collection requirements subject to the Paperwork 
Reduction Act, 44 U.S.C. 3501 et seq., are imposed by today's 
regulatory action.

C. Review Under the National Environmental Policy Act

    This regulation amends DOE's policies and procedures for the 
classification and declassification of information. Implementation of 
this rule will not affect whether such information might cause or 
otherwise be associated with any environmental impacts. The Department 
has therefore determined that this rule is covered under the 
Categorical Exclusion found at paragraph A.5 of Appendix A to Subpart 
D, 10 CFR Part 1021, which applies to the establishment of a rulemaking 
interpreting or amending an existing rule or regulation that does not 
change the environmental effect of the rule or regulation being 
amended. Accordingly, neither an environmental assessment nor an 
environmental impact statement is required.

D. Review Under Executive Order 12612

    Executive Order 12612, 52 FR 41685 (October 30, 1987), requires 
that rules be reviewed for any substantial direct effect on States, on 
the relationship between the National Government and the States, or in 
the distribution of power and responsibilities among various levels of 
Government. If there are sufficient substantial direct effects, then 
the Executive order requires preparation of a federal assessment to be 
used in all decisions involved in promulgating and implementing a 
policy action. Today's regulatory action amends DOE's policies and 
procedures on information classification and declassification. 
Therefore, the Department has determined that this rule will not have a 
substantial direct effect on the institutional interests or traditional 
functions of States.

E. Review Under Executive Order 12988

    Section 3 of Executive Order 12988, 61 FR 4729 (February 7, 1996), 
instructs each agency to adhere to certain requirements in promulgating 
new regulations. These requirements, set forth in Section 3 (a) and 
(b), include eliminating drafting errors and needless ambiguity, 
drafting the regulations to minimize litigation, providing clear and 
certain legal standards for affected legal conduct, and promoting 
simplification and burden reduction. Agencies are also instructed to 
make every reasonable effort to ensure that the regulation describes 
any administrative proceeding to be available prior to judicial review 
and any provisions for the exhaustion of administrative remedies. The 
Department has determined that today's regulatory action meets the 
requirements of Section 3 (a) and (b) of Executive Order 12988.

F. Review Under the Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 requires each 
Agency to assess the effects of Federal regulatory action on State, 
local, and tribal governments and the private sector. Today's 
regulatory action

[[Page 68509]]

amends DOE's policies and procedures on information classification and 
declassification. The Department has determined that today's regulatory 
action does not impose a Federal mandate on State, local, or tribal 
governments, or on the private sector.

G. Review Under the Regulatory Flexibility Act

    The Regulatory Flexibility Act, 5 U.S.C. 601 et seq., directs 
agencies to prepare a regulatory flexibility analysis for each proposed 
rule or to certify that the rule will not have a ``significant economic 
impact on a substantial number of small entities.'' Today's rule amends 
DOE's policies and procedures on information classification and 
declassification. The rule applies to all agencies, persons and 
entities that generate and maintain RD or FRD information or documents. 
The Department has identified over 50 Federal Government entities that 
have access to RD or FRD information or documents. Each of these 
Government entities may, in turn, have contractors or consultants that 
have access to RD or FRD information or documents.
    Section 1045.35 imposes on the Government, in the person of the RD 
management official, the responsibility to ensure that RD classifiers 
are properly trained. That section further imposes on the DOE Director 
of Declassification the obligation to develop and review training 
materials related to the implementation of this regulation. The 
regulation imposes on non-Government entities the requirement that 
persons with access to RD or FRD be properly trained. The economic 
impact of the training requirement on non-Government entities is 
limited to the labor hours required to familiarize those persons with 
access to RD and FRD with the training materials provided by DOE and 
the RD management official.
    Section 1045.40 requires that Government and non-Government RD 
classifiers clearly mark each new document generated to convey that it 
contains RD or FRD information. The burden of the marking requirement 
varies depending on the number of documents the entity generates. DOE 
considers the proper marking of a classified document to be an act 
integrated in the act of creating the document. As such, the marking of 
individual documents containing RD and FRD imposes minimal costs on the 
entity generating new RD documents.
    Finally, DOE recognizes that non-Government entities that generate 
documents containing RD or FRD will do so pursuant to a Government 
contract. In those instances, any costs incurred in compliance with the 
regulation will be charged back to the Government.
    Based on the foregoing, DOE has determined that the rule will not 
have a ``significant economic impact.'' As permitted by section 605 of 
the Regulatory Flexibility Act, DOE certifies that this rule will not 
have a significant economic impact on a substantial number of small 
entities.

H. Review Under Small Business Regulatory Enforcement Fairness Act of 
1996

    As required by 5 U.S.C. 801, DOE will report to Congress on the 
promulgation of the rule prior to its effective date. The report will 
state that it has been determined that the rule is not a ``major rule'' 
as defined by 5 U.S.C. 804(3).

V. Freedom of Information Act (FOIA) Considerations

    RD and FRD classified under the Atomic Energy Act fall within the 
scope of exemption 3 of the FOIA (5 U.S.C. 552(b)(3)). Thus RD and FRD 
are not subject to disclosure under the FOIA. Similarly, information 
that is properly classified as NSI under E.O. 12958 may be withheld 
from disclosure under exemption 1 of the FOIA.
    DOE shall process requests for documents made under the FOIA in 
accordance with applicable DOE regulations and orders which implement 
the FOIA within the Department. DOE shall process these requests 
promptly and shall respond to the requester in a timely manner. DOE 
shall coordinate requests involving FRD information and RD information 
which relates primarily to the military utilization of nuclear weapons 
with the DoD. The Director of Security Affairs shall decide all appeals 
of denials of requests for classified information covered by sections 
141 and 142 of the Atomic Energy Act and E.O. 12958.

List of Subjects in 10 CFR Part 1045

    Classified information, Declassification, National security 
information.

    Issued in Washington, DC, on December 22, 1997.
Federico Pena,
Secretary of Energy.

    For the reasons set forth in the preamble, 10 CFR Part 1045 is 
revised to read as follows:

PART 1045--NUCLEAR CLASSIFICATION AND DECLASSIFICATION

Subpart A--Program Management of the Restricted Data and Formerly 
Restricted Data Classification System
Sec.
1045.1  Purpose and scope.
1045.2  Applicability.
1045.3  Definitions.
1045.4  Responsibilities.
1045.5  Sanctions.
1045.6  Openness Advisory Panel.
1045.7  Suggestions or complaints.
1045.8  Procedural exemptions.
1045.9  RD classification performance evaluation.
Subpart B--Identification of Restricted Data and Formerly Restricted 
Data Information
1045.10  Purpose and scope.
1045.11  Applicability.
1045.12  Authorities.
1045.13  Classification prohibitions.
1045.14  Process for classification and declassification of 
restricted data and formerly restricted data information.
1045.15  Classification and declassification presumptions.
1045.16  Criteria for evaluation of restricted data and formerly 
restricted data information.
1045.17  Classification levels.
1045.18  Newly generated information in a previously declassified 
subject area.
1045.19  Accountability for classification and declassification 
determinations.
1045.20  Ongoing call for declassification proposals.
1045.21  Privately generated restricted data.
1045.22  No comment policy.
Subpart C--Generation and Review of Documents Containing Restricted 
Data and Formerly Restricted Data
1045.30  Purpose and scope.
1045.31  Applicability.
1045.32  Authorities.
1045.33  Appointment of restricted data management official.
1045.34  Designation of restricted data classifiers.
1045.35  Training requirements.
1045.36  Reviews of agencies with access to restricted data and 
formerly restricted data.
1045.37  Classification guides.
1045.38  Automatic declassification prohibition.
1045.39  Challenging classification and declassification 
determinations.
1045.40  Marking requirements.
1045.41  Use of classified addendums.
1045.42  Mandatory and Freedom of Information Act reviews for 
declassification of restricted data and formerly restricted data 
documents.
1045.43  Systematic review for declassification.
1045.44  Classification review prior to public release.

[[Page 68510]]

1045.45  Review of unmarked documents with potential restricted data 
or formerly restricted data.
1045.46  Classification by association or compilation.
Subpart D--Executive Order 12958, ``Classified National Security 
Information'' Requirements Affecting the Public
1045.50  Purpose and scope.
1045.51  Applicability.
1045.52  Mandatory declassification review requests.
1045.53  Appeal of denial of mandatory declassification review 
requests.

    Authority: 42 U.S.C. 2011; E.O. 12958, 60 FR 19825, 3 CFR, 1995 
Comp., p. 333.

Subpart A--Program Management of the Restricted Data and Formerly 
Restricted Data Classification System


Sec. 1045.1  Purpose and scope.

    This subpart establishes responsibilities associated with this 
part, describes the Openness Advisory Panel, defines key terms, 
describes sanctions related to violation of the policies and procedures 
in this part, and describes how to submit suggestions or complaints 
concerning the Restricted Data classification and declassification 
program, and how to request procedural exceptions.


Sec. 1045.2  Applicability.

    This subpart applies to--
    (a) Any person with authorized access to RD or FRD;
    (b) Any agency with access to RD or FRD; and
    (c) Any person who might generate information determined to be RD 
or FRD.


Sec. 1045.3  Definitions.

    As used in this part:
    Agency means any ``Executive Agency'' as defined in 5 U.S.C. 105; 
any ``Military Department'' as defined in 5 U.S.C. 102; and any other 
entity within the executive branch that comes into possession of RD or 
FRD information or documents.
    Atomic Energy Act means the Atomic Energy Act of 1954, as amended 
(42 U.S.C. 2011 et seq.).
    Authorized Holder means a person with the appropriate security 
clearance required to have access to classified information and the 
need to know the information in the performance of Government-approved 
activities.
    Automatic Declassification means the declassification of 
information or documents based solely upon:
    (1) The occurrence of a specific date or event as determined by the 
classifier; or
    (2) The expiration of a maximum time frame for duration of 
classification established under Executive Order 12958.
    Classification means the act or process by which information is 
determined to be classified information.
    Classification Guide means a written record of detailed 
instructions as to whether specific information is classified, usually 
concerning a system, plan, project, or program. It identifies 
information to be classified and specifies the level (and duration for 
NSI only) of classification assigned to such information. 
Classification guides are the primary basis for reviewing documents to 
determine whether they contain classified information.
    Classification Level means one of three designators:
    (1) Top Secret is applied to information (RD, FRD, or NSI), the 
unauthorized disclosure of which reasonably could be expected to cause 
exceptionally grave damage to the national security that the 
appropriate official is able to identify or describe.
    (2) Secret is applied to information (RD, FRD, or NSI), the 
unauthorized disclosure of which reasonably could be expected to cause 
serious damage to the national security that the appropriate official 
is able to identify or describe.
    (3) Confidential. (i) For NSI, Confidential is applied to 
information, the unauthorized disclosure of which reasonably could be 
expected to cause damage to the national security that the appropriate 
official is able to identify or describe.
    (ii) For RD and FRD, Confidential is applied to information, the 
unauthorized disclosure of which could reasonably be expected to cause 
undue risk to the common defense and security that the appropriate 
official is able to identify or describe.
    Classified Information means:
    (1) Information classified as RD or FRD under the Atomic Energy 
Act; or
    (2) Information determined to require protection against 
unauthorized disclosure under Executive Order (E.O.) 12958 or prior 
Executive Orders (also identified as National Security Information or 
NSI).
    Contractor means any industrial, educational, commercial or other 
entity, grantee or licensee at all tiers, including an individual, that 
has executed an agreement with the Federal Government for the purpose 
of performing under a contract, license or other agreement.
    Declassification means a determination by appropriate authority 
that information or documents no longer require protection, as 
classified information, against unauthorized disclosure in the 
interests of national security.
    Department or DOE means Department of Energy.
    Director of Declassification means the Department of Energy 
Director, Office of Declassification, or any person to whom the 
Director's duties are delegated. The Director of Declassification is 
subordinate to the Director of Security Affairs.
    Director of Security Affairs means the Department of Energy 
Director, Office of Security Affairs, or any person to whom the 
Director's duties are delegated.
    Document means the physical medium on or in which information is 
recorded, or a product or substance which contains or reveals 
information, regardless of its physical form or characteristics.
    Formerly Restricted Data (FRD) means classified information jointly 
determined by DOE and the DoD to be related primarily to the military 
utilization of nuclear weapons and removed (by transclassification) 
from the RD category pursuant to section 142(d) of the Atomic Energy 
Act.
    Government means the executive branch of the Federal Government of 
the United States.
    Government Information means information that is owned by, produced 
by or for, or is under the control of the U.S. Government.
    Information means facts, data, or knowledge itself, as opposed to 
the medium in which it is contained.
    Interagency Security Classification Appeals Panel (ISCAP) means a 
panel created pursuant to Executive Order 12958 to perform functions 
specified in that order with respect to National Security Information.
    National Security means the national defense or foreign relations 
of the United States.
    National Security Information (NSI) means information that has been 
determined pursuant to Executive Order 12958 or prior Executive Orders 
to require protection against unauthorized disclosure and is marked to 
indicate its classification status when in document form. NSI is 
referred to as ``defense information'' in the Atomic Energy Act.
    Nuclear weapon means atomic weapon.
    Person means:
    (1) Any individual, contractor, corporation, partnership, firm, 
association, trust, estate, public or private institution, group, 
Government agency, any State, or any political subdivision thereof, or 
any political entity within a State; and
    (2) Any legal successor, representative, agent, or agency of the 
foregoing.
    Portion Marking means the application of certain classification

[[Page 68511]]

markings to individual words, phrases, sentences, paragraphs, or 
sections of a document to indicate their specific classification level 
and category.
    Restricted Data (RD) means a kind of classified information that 
consists of all data concerning the following, but not including data 
declassified or removed from the RD category pursuant to section 142 of 
the Atomic Energy Act:
    (1) Design, manufacture, or utilization of atomic weapons;
    (2) Production of special nuclear material; or
    (3) Use of special nuclear material in the production of energy.
    Restricted Data Classifier means an individual who derivatively 
classifies RD or FRD documents. Within the DoD, RD classifiers may also 
declassify FRD documents.
    Restricted Data Management Official means an individual appointed 
by any agency with access to RD and FRD who is responsible for managing 
the implementation of this part within that agency or any person to 
whom these duties are delegated. This person may be the senior agency 
official required by E.O. 12958.
    Secretary means the Secretary of Energy.
    Source Document means a classified document, other than a 
classification guide, from which information is extracted for inclusion 
in another document. The classification of the information extracted is 
determined by the classification markings shown in the source document.
    Special Nuclear Material means plutonium, uranium enriched in the 
isotope 233 or in the isotope 235, and any other material which the 
Secretary determines to be special nuclear material pursuant to the 
Atomic Energy Act.


Sec. 1045.4  Responsibilities.

    (a) The DOE Director of Declassification shall:
    (1) Manage the Government-wide system for the classification and 
declassification of RD and FRD in accordance with the Atomic Energy 
Act;
    (2) In coordination with the DoD, develop regulations to implement 
the RD and FRD classification system;
    (3) Determine whether nuclear-related information is RD;
    (4) Oversee agency implementation of the RD and FRD classification 
system to ensure compliance with this part;
    (5) Review agency implementing policies and conduct on-site reviews 
of each agency's program established under this part;
    (6) Prepare and distribute classification guides concerning RD and 
FRD and review such guides developed by any agency;
    (7) Consider and take action on complaints and suggestions from any 
person with respect to administration of this program; and
    (8) Periodically meet with interested members of the public to 
solicit input for the classification and declassification program.
    (b) The DOE Director of Security Affairs shall:
    (1) Declassify RD which may be published without undue risk to the 
common defense and security;
    (2) Jointly with the DoD, determine which information in the RD 
category relating primarily to the miliary utilization of nuclear 
weapons may be declassified or placed into the FRD category; and
    (3) Jointly with the DoD, declassify FRD which may be published 
without undue risk to the common defense and security.
    (c) The DoD jointly with the DOE shall:
    (1) Determine which information in the RD category relating 
primarily to the military utilization of nuclear weapons may be 
declassified or placed into the FRD category;
    (2) Ensure that classification guides for FRD and RD relating 
primarily to the military utilization of nuclear weapons are prepared; 
and
    (3) Declassify FRD and RD relating primarily to the military 
utilization of nuclear weapons which may be published without undue 
risk to the common defense and security.
    (d) The Nuclear Regulatory Commission (NRC) shall:
    (1) Jointly with the DOE, develop classification guides for 
programs over which both agencies have cognizance; and
    (2) Ensure the review and proper classification of RD by RD 
classifiers under this part, which is generated by the NRC or by its 
licensed or regulated facilities and activities.
    (e) Heads of Agencies with access to RD and FRD shall:
    (1) Ensure that RD and FRD are classified in such a manner as to 
assure the common defense and security in accordance with the policies 
established in this part;
    (2) Designate an RD management official to direct and administer 
the RD classification program within the agency; and
    (3) Promulgate implementing directives.
    (f) Agency RD management officials shall:
    (1) Jointly with the DOE, develop classification guides for 
programs over which both agencies have cognizance;
    (2) Ensure that agency and contractor personnel who generate RD and 
FRD documents have access to any classification guides needed;
    (3) Ensure that persons with access to RD and FRD are trained on 
the authorities required to classify and declassify RD and FRD 
information and documents and on handling procedures and that RD 
classifiers are trained on the procedures for classifying, 
declassifying, marking and handling RD and FRD information and 
documents; and
    (4) Cooperate and provide information as necessary to the DOE 
Director of Declassification to fulfill responsibilities under this 
part.


Sec. 1045.5  Sanctions.

    (a) Knowing, willful, or negligent action contrary to the 
requirements of this part which results in the misclassification of 
information may result in appropriate sanctions. Such sanctions may 
range from administrative sanctions to civil or criminal penalties, 
depending on the nature and severity of the action as determined by 
appropriate authority, in accordance with applicable laws.
    (b) Other violations of the policies and procedures contained in 
this part may be grounds for administrative sanctions as determined by 
appropriate authority.


Sec. 1045.6  Openness Advisory Panel.

    The DOE shall maintain an Openness Advisory Panel, in accordance 
with the Federal Advisory Committee Act, to provide the Secretary with 
independent advice and recommendations on Departmental openness 
initiatives, including classification and declassification issues that 
affect the public.


Sec. 1045.7  Suggestions or complaints.

    (a) Any person who has suggestions or complaints regarding the 
Department's classification and declassification policies and 
procedures may direct them in writing to the Openness Coordinator, 
Department of Energy, Office of Declassification, 19901 Germantown 
Road, Germantown, Maryland 20874-1290.
    (b) Such letters should include a description of the issue or 
problem, the suggestion or complaint, all applicable background 
information, and an address for the response.
    (c) DOE will make every effort to respond within 60 days.
    (d) Under no circumstances shall persons be subject to retribution 
for making a suggestion or complaint regarding the Department's 
classification and declassification policies or programs.

[[Page 68512]]

Sec. 1045.8  Procedural exemptions.

    (a) Exemptions to the procedural provisions of this part may be 
granted by the DOE Director of Declassification.
    (b) A request for an exemption shall be made in writing to the DOE 
Director of Declassification and shall provide all relevant facts, 
justification, and a proposed alternate procedure.


Sec. 1045.9  RD classification performance evaluation.

    (a) Heads of agencies shall ensure that RD management officials and 
those RD classifiers whose duties involve the classification or 
declassification of significant numbers of RD or FRD documents shall 
have their personnel performance evaluated with respect to 
classification activities.
    (b) Procedures for the evaluation under paragraph (a) of this 
section may be the same as those in place for NSI related 
classification activities as required by Executive Order 12958.

Subpart B--Identification of Restricted Data and Formerly 
Restricted Data Information


Sec. 1045.10  Purpose and scope.

    (a) This subpart implements sections 141 and 142 (42 U.S.C. 2161 
and 2162) of the Atomic Energy Act, which provide for Government-wide 
policies and procedures concerning the classification and 
declassification of RD and FRD information.
    (b) This subpart establishes procedures for classification 
prohibitions for RD and FRD, describes authorities and procedures for 
identifying RD and FRD information, and specifies the policies and 
criteria DOE shall use in determining if nuclear-related information is 
RD or FRD.


Sec. 1045.11  Applicability.

    This subpart applies to--
    (a) Any person with authorized access to RD or FRD;
    (b) Any agency with access to RD or FRD; and
    (c) Any person who might generate information determined to be RD 
or FRD.


Sec. 1045.12  Authorities.

    (a) The DOE Director of Declassification may determine whether 
nuclear-related information is RD.
    (b) Except as provided in paragraph (c) of this section, the DOE 
Director of Security Affairs may declassify RD information.
    (c) The DOE Director of Security Affairs, jointly with the DoD, may 
determine which information in the RD category relating primarily to 
the military utilization of nuclear weapons may be declassified or 
placed into the FRD category.
    (d) The DOE Director of Security Affairs jointly with the DoD may 
declassify FRD information.


Sec. 1045.13  Classification prohibitions.

    In no case shall information be classified RD or FRD in order to:
    (a) Conceal violations of law, inefficiency, or administrative 
error;
    (b) Prevent embarrassment to a person, organization, or Agency;
    (c) Restrain competition;
    (d) Prevent or delay the release of information that does not 
require protection for national security or nonproliferation reasons;
    (e) Unduly restrict dissemination by assigning an improper 
classification level; or
    (f) Prevent or delay the release of information bearing solely on 
the physical environment or public or worker health and safety.


1045.14  Process for classification and declassification of restricted 
data and formerly restricted data information.

    (a) Classification of Restricted Data. (1) Submission of Potential 
RD for Evaluation. Any authorized holder who believes he or she has 
information which may be RD shall submit it to an RD classifier for 
evaluation. The RD classifier shall follow the process described in 
this paragraph whenever he or she is unable to locate guidance in a 
classification guide that can be applied to the information. The RD 
classifier shall forward the information to the DOE Director of 
Declassification via their local classification or security office. The 
DOE Director of Declassification shall determine whether the 
information is RD within 90 days of receipt by doing the following:
    (i) Determine whether the information is already classified RD 
under current classification guidance; or
    (ii) If it is not already classified, determine if the information 
concerns the design, manufacture, or utilization of nuclear weapons; 
the production of special nuclear material; or the use of special 
nuclear material in the production of energy; and
    (A) Apply the criteria in Sec. 1045.16 and Sec. 1045.17 as the 
basis for determining the appropriate classification; and
    (B) Provide notification of the decision by revising applicable 
classification guides, if appropriate.
    (2) Protection of Potential RD during Evaluation. Pending a 
determination by the DOE Director of Declassification, potential RD 
submitted for evaluation by authorized holders shall be protected at a 
minimum as Confidential Restricted Data.
    (b) Declassification of Restricted Data. The DOE Director of 
Security Affairs shall apply the criteria in Sec. 1045.16 when 
determining whether RD may be declassified.
    (c) Classification of Formerly Restricted Data. The DOE Director of 
Security Affairs, jointly with the DoD, shall remove information which 
relates primarily to the military utilization of nuclear weapons from 
the RD classification category and classify it as FRD.
    (d) Declassification of Formerly Restricted Data. The DOE Director 
of Security Affairs, jointly with the DoD, shall apply the criteria in 
Sec. 1045.16 when determining whether FRD may be declassified.


Sec. 1045.15  Classification and declassification presumptions.

    (a) The DOE Directors of Declassification and Security Affairs 
shall consider the presumptions listed in paragraphs (d) and (e) of 
this section before applying the criteria in Sec. 1045.16.
    (b) Not all areas of nuclear-related information are covered by the 
presumptions.
    (c) In general, existing information listed in paragraphs (d) and 
(e) of this section has the classification status indicated. Inclusion 
of specific existing information in one of the presumption categories 
does not mean that new information in a category is or is not 
classified, but only that arguments to differ from the presumed 
classification status of the information should use the appropriate 
presumption as a starting point.
    (d) The DOE Directors of Declassification and Security Affairs 
shall presume that information in the following areas is unclassified 
unless application of the criteria in Sec. 1045.16 indicates otherwise:
    (1) Basic science: mathematics, chemistry, theoretical and 
experimental physics, engineering, materials science, biology and 
medicine;
    (2) Magnetic confinement fusion technology;
    (3) Civilian power reactors, including nuclear fuel cycle 
information but excluding technologies for uranium enrichment;
    (4) Source materials (defined as uranium and thorium and ores 
containing them);
    (5) Fact of use of safety features (e.g., insensitive high 
explosives, fire resistant pits) to lower the risks and reduce the 
consequences of nuclear weapon accidents;
    (6) Generic weapons effects;

[[Page 68513]]

    (7) Physical and chemical properties of uranium and plutonium, most 
of their alloys and compounds, under standard temperature and pressure 
conditions;
    (8) Nuclear fuel reprocessing technology and reactor products not 
revealing classified production rates or inventories;
    (9) The fact, time, location, and yield range (e.g., less than 20 
kilotons or 20-150 kilotons) of U.S. nuclear tests;
    (10) General descriptions of nuclear material production processes 
and theory of operation;
    (11) DOE special nuclear material aggregate inventories and 
production rates not revealing size or details concerning the nuclear 
weapons stockpile;
    (12) Types of waste products resulting from all DOE weapon and 
material production operations;
    (13) Any information solely relating to the public and worker 
health and safety or to environmental quality; and
    (14) The simple association or simple presence of any material 
(i.e., element, compound, isotope, alloy, etc.) at a specified DOE 
site.
    (e) The DOE Directors of Declassification and Security Affairs 
shall presume that information in the following areas is classified 
unless the application of the criteria in Sec. 1045.16 indicates 
otherwise:
    (1) Detailed designs, specifications, and functional descriptions 
of nuclear explosives, whether in the active stockpile or retired;
    (2) Material properties under conditions achieved in nuclear 
explosions that are principally useful only for design and analysis of 
nuclear weapons;
    (3) Vulnerabilities of U.S. nuclear weapons to sabotage, 
countermeasures, or unauthorized use;
    (4) Nuclear weapons logistics and operational performance 
information (e.g., specific weapon deployments, yields, capabilities), 
related to military utilization of those weapons required by the DoD;
    (5) Details of the critical steps or components in nuclear material 
production processes; and
    (6) Features of military nuclear reactors, especially naval nuclear 
propulsion reactors, that are not common to or required for civilian 
power reactors.


Sec. 1045.16  Criteria for evaluation of restricted data and formerly 
restricted data information.

    (a) The DOE Director of Declassification shall classify information 
as RD and the DOE Director of Security Affairs shall maintain the 
classification of RD (and FRD in coordination with the DoD) only if 
undue risk of damage to the common defense and security from its 
unauthorized disclosure can be identified and described.
    (b) The DOE Director of Declassification shall not classify 
information and the DOE Director of Security Affairs shall declassify 
information if there is significant doubt about the need to classify 
the information.
    (c) The DOE Directors of Declassification and Security Affairs 
shall consider the presumptions in Sec. 1045.15 (d) and (e) before 
applying the criteria in paragraph (d) of this section.
    (d) In determining whether information should be classified or 
declassified, the DOE Directors of Declassification and Security 
Affairs shall consider the following:
    (1) Whether the information is so widely known or readily apparent 
to knowledgeable observers that its classification would cast doubt on 
the credibility of the classification system;
    (2) Whether publication of the information would assist in the 
development of countermeasures or otherwise jeopardize any U.S. weapon 
or weapon system;
    (3) Whether the information would hinder U.S. nonproliferation 
efforts by significantly assisting potential adversaries to develop or 
improve a nuclear weapon capability, produce nuclear weapons materials, 
or make other military use of nuclear energy;
    (4) Whether publication of the information would have a detrimental 
effect on U.S. foreign relations;
    (5) Whether publication of the information would benefit the public 
welfare, taking into account the importance of the information to 
public discussion and education and potential contribution to economic 
growth; and, 6) Whether publication of the information would benefit 
the operation of any Government program by reducing operating costs or 
improving public acceptance.


1045.17  Classification levels.

    (a) Restricted Data. The DOE Director of Declassification shall 
assign one of the following classification levels to RD information to 
reflect the sensitivity of the information to the national security. 
The greater the damage expected from unauthorized disclosure, the 
higher the classification level assigned to the information.
    (1) Top Secret. The DOE Director of Declassification shall classify 
RD information Top Secret if it is vital to the national security and 
if its unauthorized disclosure could reasonably be expected to cause 
exceptionally grave damage to the national security. Examples of RD 
information that warrant Top Secret classification include detailed 
technical descriptions of critical features of a nuclear explosive 
design that would enable a proliferant or nuclear power to build or 
substantially improve a nuclear weapon, information that would make 
possible the unauthorized use of a U.S. nuclear weapon, or information 
revealing catastrophic failure or operational vulnerability in a U.S. 
nuclear weapon.
    (2) Secret. The DOE Director of Declassification shall classify RD 
information as Secret if its unauthorized disclosure could reasonably 
be expected to cause serious damage to the national security, but the 
RD information is not sufficiently comprehensive to warrant designation 
as Top Secret. Examples of RD information that warrant Secret 
classification include designs for specific weapon components (not 
revealing critical features), key features of uranium enrichment 
technologies, or specifications of weapon materials.
    (3) Confidential. The DOE Director of Declassification shall 
classify RD information as Confidential if it is deemed to be of 
significant use to a potential adversary or nuclear proliferant and its 
unauthorized disclosure could reasonably be expected to cause undue 
risk to the common defense and security. Examples of RD information 
that warrant Confidential classification are the amount of high 
explosives used in nuclear weapons, gaseous diffusion design 
information, and design information for Naval reactors.
    (b) Formerly Restricted Data. The DOE Director of Declassification, 
jointly with the DoD, shall assign one of the classification levels in 
paragraph (a) of this section to FRD information to reflect its 
sensitivity to the national security.


Sec. 1045.18  Newly generated information in a previously declassified 
subject area.

    (a) The DOE Director of Declassification may evaluate newly 
generated specific information in a previously declassified subject 
area using the criteria in section 1045.16 and classify it as RD, if 
warranted.
    (b) The DOE Director of Declassification shall not classify the 
information in such cases if it is widely disseminated in the public 
domain.

[[Page 68514]]

Sec. 1045.19  Accountability for classification and declassification 
determinations.

    (a) Whenever a classification or declassification determination 
concerning RD or FRD information is made, the DOE Directors of 
Declassification and Security Affairs shall be able to justify the 
determination. For FRD and RD primarily related to military 
utilization, the DOE Directors of Declassification and Security Affairs 
shall coordinate the determination and justification with the DoD. If 
the determination involves a departure from the presumptions in 
Sec. 1045.15, the justification shall include a rationale for the 
departure. Often the justification itself will contain RD or FRD 
information. In such a case, the DOE Directors of Declassification and 
Security Affairs shall ensure that a separate justification can be 
prepared which is publicly releasable. The publicly releasable 
justification shall be made available to any interested person upon 
request to the DOE Director of Declassification.
    (b) The DOE Director of Declassification shall prepare a report on 
an annual basis on the implementation of this part. This report shall 
be available to any interested person upon request to the DOE Director 
of Declassification. Requests may be submitted to the Department of 
Energy, Director of Declassification, 19901 Germantown Road, 
Germantown, Maryland 20874-1290.


Sec. 1045.20  Ongoing call for declassification proposals.

    The DOE Director of Security Affairs shall consider proposals from 
the public or agencies or contractors for declassification of RD and 
FRD information on an ongoing basis. Declassification proposals for RD 
and FRD information shall be forwarded to the Department of Energy, 
Director of Security Affairs, 1000 Independence Avenue SW, Washington, 
DC 20585. Any proposed action shall include a description of the 
information concerned and may include a reason for the request. DOE and 
DoD shall coordinate with one another concerning declassification 
proposals for FRD information.


Sec. 1045.21  Privately generated restricted data.

    (a) DOE may classify RD which is privately generated by persons not 
pursuant to Government contracts, in accordance with the Atomic Energy 
Act.
    (b) In order for information privately generated by persons to be 
classified as RD, the Secretary or Deputy Secretary shall make the 
determination personally and in writing. This authority shall not be 
delegated.
    (c) DOE shall publish a Federal Register notice when privately 
generated information is classified as RD, and shall ensure that the 
content of the notice is consistent with protecting the national 
security and the interests of the private party.


Sec. 1045.22  No comment policy.

    (a) Authorized holders of RD and FRD shall not confirm or expand 
upon the classification status or technical accuracy of classified 
information in the public domain.
    (b) Unauthorized disclosure of classified information does not 
automatically result in the declassification of that information.
    (c) If the disclosure of classified information is sufficiently 
authoritative or credible, the DOE Director of Security Affairs shall 
examine the possibility of declassification.

Subpart C--Generation and Review of Documents Containing Restricted 
Data and Formerly Restricted Data


Sec. 1045.30  Purpose and scope.

    This subpart specifies Government-wide classification program 
implementation requirements for agencies with access to RD and FRD, 
describes authorities and procedures for RD and FRD document 
classification and declassification, provides for periodic or 
systematic review of RD and FRD documents, and describes procedures for 
the mandatory review of RD and FRD documents. This subpart applies to 
all RD and FRD documents, regardless of whether they also contain 
National Security Information (NSI), or other controlled information 
such as ``For Official Use Only'' information or ``Unclassified 
Controlled Nuclear Information.''


Sec. 1045.31  Applicability.

    This subpart applies to--
    (a) Any person with authorized access to RD or FRD;
    (b) Any agency with access to RD or FRD; and
    (c) Any person generating a document containing RD or FRD.


Sec. 1045.32  Authorities.

    (a) Classification of RD and FRD documents. (1) To the maximum 
extent practical, all RD and FRD documents shall be classified based on 
joint DOE-Agency classification guides or Agency guides coordinated 
with the DOE. When it is not practical to use classification guides, 
source documents may be used as an alternative.
    (2) Only individuals designated as RD classifiers may classify RD 
and FRD documents, except within the DoD. Within the DoD, any 
individual with access to RD and FRD who has been trained may classify 
RD and FRD documents.
    (3) RD classifiers shall classify only documents in subject areas 
in which they have programmatic expertise.
    (4) RD classifiers may upgrade or downgrade the classification 
level of RD or FRD documents in accordance with joint DOE-Agency 
classification guides or Agency guides coordinated with the DOE. When 
it is not practical to use classification guides, source documents may 
be used as an alternative.
    (b) Declassification of RD and FRD documents. (1) Only designated 
individuals in the DOE may declassify documents containing RD.
    (2) Except as provided in paragraph (b)(3) of this section, only 
designated individuals in the DOE or appropriate individuals in DoD may 
declassify documents marked as FRD in accordance with joint DoD-DOE 
classification guides or DoD guides coordinated with the DOE.
    (3) The DOE and DoD may delegate these authorities to other 
agencies and to contractors. Contractors without the delegated 
authority shall send any document marked as RD or FRD that needs to be 
considered for declassification to the appropriate agency office.


Sec. 1045.33  Appointment of restricted data management official.

    (a) Each agency with access to RD or FRD shall appoint an official 
to be responsible for the implementation of this part and shall advise 
the DOE Director of Declassification of such appointment.
    (b) This official shall ensure the proper implementation of this 
part within his or her agency and shall serve as the primary point of 
contact for coordination with the DOE Director of Declassification on 
RD and FRD classification and declassification issues.
    (c) Within the DoD, an RD management official shall be appointed in 
each DoD agency.


Sec. 1045.34  Designation of restricted data classifiers.

    (a) Except within the DoD, RD management officials shall ensure 
that persons who derivatively classify RD or FRD documents are 
designated by position or by name as RD classifiers.
    (b) All contractor organizations with access to RD and FRD, 
including DoD contractors, shall designate RD classifiers.

[[Page 68515]]

Sec. 1045.35  Training requirements.

    (a) RD management officials shall ensure that persons with access 
to RD and FRD information are trained on the authorities required to 
classify and declassify RD and FRD information and documents and on 
handling procedures. RD management officials shall ensure that RD 
classifiers are trained on the procedures for classifying, 
declassifying, marking and handling RD and FRD information and 
documents.
    (b) The DOE Director of Declassification shall develop training 
materials related to implementation of this part and shall provide 
these materials to RD management officials and any other appropriate 
persons.
    (c) The DOE Director of Declassification shall review any RD-
related training material submitted by agency and contractor 
representatives to ensure consistency with current policy.


Sec. 1045.36  Reviews of agencies with access to restricted data and 
formerly restricted data.

    (a) The DOE and each agency with access to RD and FRD shall consult 
periodically to assure appropriate implementation of this part. Such 
consultations may result in DOE conducting an on-site review within the 
agency if DOE and the RD management official determine that such a 
review would be mutually beneficial or that it is necessary to remedy a 
problem.
    (b) To address issues concerning implementation of this part, the 
DOE Director of Declassification shall establish a standing group of 
all RD management officials to meet periodically.


Sec. 1045.37  Classification guides.

    (a) The classification and declassification determinations made by 
the DOE Directors of Declassification and Security Affairs under the 
classification criteria in Sec. 1045.16 shall be promulgated in 
classification guides.
    (b) DOE shall jointly develop classification guides with the DoD, 
NRC, NASA, and other agencies as required for programs for which DOE 
and these agencies share responsibility.
    (c) Agencies shall coordinate with the DOE Director of 
Declassification whenever they develop or revise classification guides 
with RD or FRD information topics.
    (d) Originators of classification guides with RD or FRD topics 
shall review such guides at least every five years and make revisions 
as necessary.
    (e) RD classifiers shall use classification guides as the primary 
basis for classifying and declassifying documents containing RD and 
FRD.
    (f) Each RD management official shall ensure that all RD 
classifiers have access to all pertinent nuclear classification guides.


Sec. 1045.38  Automatic declassification prohibition.

    (a) Documents containing RD and FRD remain classified until a 
positive action by an authorized person is taken to declassify them.
    (b) In accordance with the Atomic Energy Act, no date or event for 
automatic declassification ever applies to RD and FRD documents, even 
if such documents also contain NSI.
    (c) E.O. 12958 acknowledges that RD and FRD are exempt from all 
provisions of the E.O., including automatic declassification.


Sec. 1045.39  Challenging classification and declassification 
determinations.

    (a) Any authorized holder of an RD or FRD document who, in good 
faith, believes that the RD or FRD document has an improper 
classification status is encouraged and expected to challenge the 
classification with the RD Classifier who classified the document.
    (b) Agencies shall establish procedures under which authorized 
holders of RD and FRD documents are encouraged and expected to 
challenge any classification status they believe is improper. These 
procedures shall assure that:
    (1) Under no circumstances are persons subject to retribution for 
bringing forth a classification challenge.
    (2) The individual who initially receives the challenge provides a 
response within 90 days to the person bringing forth the challenge.
    (3) A decision concerning a challenge involving RD or FRD may be 
appealed to the DOE Director of Declassification. In the case of FRD 
and RD related primarily to the military utilization of nuclear 
weapons, the DOE Director of Declassification shall coordinate with the 
DoD. If the justification for classification does not satisfy the 
person making the challenge, a further appeal may be made to the DOE 
Director of Security Affairs.
    (c) Classification challenges concerning documents containing RD 
and FRD information are not subject to review by the Interagency 
Security Classification Appeals Panel, unless those documents also 
contain NSI which is the basis for the challenge. In such cases, the RD 
and FRD portions of the document shall be deleted and then the NSI and 
unclassified portions shall be provided to the Interagency Security 
Classification Appeals Panel for review.


Sec. 1045.40  Marking requirements.

    (a) RD classifiers shall ensure that each RD and FRD document is 
clearly marked to convey to the holder that it contains RD or FRD 
information, the level of classification assigned, and the additional 
markings in paragraphs (b)(3) and (4) of this section.
    (b) Front Marking. In addition to the overall classification level 
of the document, the following notices shall appear on the front of the 
document, as appropriate:
    (1) If the document contains RD:

RESTRICTED DATA

    This document contains RESTRICTED DATA as defined in the Atomic 
Energy Act of 1954. Unauthorized disclosure subject to administrative 
and criminal sanctions.
    (2) If the document contains FRD but does not contain RD:

FORMERLY RESTRICTED DATA

    Unauthorized disclosure subject to administrative and criminal 
sanctions. Handle as RESTRICTED DATA in foreign dissemination. Section 
144b, Atomic Energy Act of 1954.
    (3) An RD or FRD document shall be marked to identify the 
classification guide or source document, by title and date, used to 
classify the document:
    Derived from:

----------------------------------------------------------------------
(Classification Guide or source document--title and date)

    (4) An RD or FRD document shall be marked with the identity of the 
RD classifier, unless the classifier is the same as the document 
originator or signer.
    RD Classifier:

----------------------------------------------------------------------
(Name and position or title)

    (c) Interior Page. RD classifiers shall ensure that RD and FRD 
documents are clearly marked at the top and bottom of each interior 
page with the overall classification level and category of the document 
or the classification level and category of the page, whichever is 
preferred. The abbreviations ``RD'' and ``FRD'' may be used in 
conjunction with the document classification (e.g., SECRET RD or SECRET 
FRD).
    (d) Declassification Marking. Declassified RD and FRD documents 
shall be marked with the identity of the individual authorizing the 
declassification, the declassification date and the classification 
guide which served as the basis for the declassification. Individuals 
authorizing the declassification shall ensure that the following 
marking is affixed on RD and FRD documents which they declassify:
    Declassified on:


[[Page 68516]]


----------------------------------------------------------------------
(Date)

    Authorizing Individual:

----------------------------------------------------------------------
(Name and position or title)

    Authority:

----------------------------------------------------------------------
(Classification Guide--title and date)


Sec. 1045.41  Use of classified addendums.

    (a) In order to maximize the amount of information available to the 
public and to simplify document handling procedures, document 
originators should segregate RD or FRD into an addendum whenever 
practical. When RD or FRD is segregated into an addendum, the 
originator shall acknowledge the existence of the classified addendum 
unless such an acknowledgment would reveal classified information.
    (b) When segregation of RD or FRD into an addendum is not 
practical, document originators are encouraged to prepare separate 
unclassified versions of documents with significant public interest.
    (c) When documents contain environmental, safety or health 
information and a separate unclassified version cannot be prepared, 
document originators are encouraged to provide a publicly releasable 
rationale for the classification of the documents.


Sec. 1045.42  Mandatory and Freedom of Information Act reviews for 
declassification of restricted data and formerly restricted data 
documents.

    (a) General. (1) Agencies with documents containing RD and FRD 
shall respond to mandatory review and Freedom of Information Act (FOIA) 
requests for these documents from the public.
    (2) In response to a mandatory review or Freedom of Information Act 
request, DOE or DoD may refuse to confirm or deny the existence or 
nonexistence of the requested information whenever the fact of its 
existence or nonexistence is itself classified as RD or FRD.
    (b) Processing Requests. (1) Agencies shall forward documents 
containing RD to DOE for review.
    (2) Agencies shall forward documents containing FRD to the DOE or 
to the DoD for review, depending on which is the originating agency.
    (3) The DOE and DoD shall coordinate the review of RD and FRD 
documents as appropriate.
    (4) The review and appeal process is that described in subpart D of 
this part except for the appeal authority. DOE and DoD shall not 
forward RD and FRD documents to the the Interagency Security 
Classification Appeals Panel (ISCAP) for appeal review unless those 
documents also contain NSI. In such cases, the DOE or DoD shall delete 
the RD and FRD portions prior to forwarding the NSI and unclassified 
portions to the ISCAP for review.
    (5) Information Declassification Actions resulting from appeal 
reviews. (i) Appeal reviews of RD or FRD documents shall be based on 
existing classification guidance. However, the DOE Director of 
Declassification shall review the RD and FRD information in the 
appealed document to determine if it may be a candidate for possible 
declassification.
    (ii) If declassification of the information appears appropriate, 
the DOE Director of Declassification shall initiate a formal 
declassification action and so advise the requester.
    (c) Denying Official. (1) The denying official for documents 
containing RD is the DOE Director of Declassification.
    (2) The denying official for documents containing FRD is either the 
DOE Director of Declassification or an appropriate DoD official.
    (d) Appeal Authority. (1) The appeal authority for RD documents is 
the DOE Director of Security Affairs.
    (2) The appeal authority for FRD documents is either the DOE 
Director of Security Affairs, or an appropriate DoD official.
    (e) The denying official and appeal authority for Naval Nuclear 
Propulsion Information is the Director, Office of Naval Reactors.
    (f) RD and FRD information contained in documents shall be withheld 
from public disclosure under exemption 3 of the FOIA (5 U.S.C. 522 
(b)(3)) because such information is exempt under the statutory 
jurisdiction of the Atomic Energy Act.


Sec. 1045.43  Systematic review for declassification.

    (a) The Secretary shall ensure that RD documents, and the DoD shall 
ensure that FRD documents, are periodically and systematically reviewed 
for declassification. The focus of the review shall be based on the 
degree of public and researcher interest and likelihood of 
declassification upon review.
    (b) Agencies with RD or FRD document holdings shall cooperate with 
the DOE Director of Declassification (and with the DoD for FRD) to 
ensure the systematic review of RD and FRD documents.
    (c) Review of documents in particular areas of public interest 
shall be considered if sufficient interest is demonstrated. Proposals 
for systematic document reviews of given collections or subject areas 
should be addressed to the Director of Declassification, Department of 
Energy, 19901 Germantown Road, Germantown, MD 20874-1290.


Sec. 1045.44  Classification review prior to public release.

    Any person with authorized access to RD or FRD who generates a 
document intended for public release in an RD or FRD subject area shall 
ensure that it is reviewed for classification by the appropriate DOE 
organization (for RD) or the appropriate DOE or DoD organization (for 
FRD) prior to its release.


Sec. 1045.45  Review of unmarked documents with potential restricted 
data or formerly restricted data.

    (a) Individuals reviewing NSI records of permanent historical value 
under the automatic or systematic review provisions of E.O. 12958 may 
come upon documents that they suspect may contain RD or FRD, but which 
are not so marked. Such documents are not subject to automatic 
declassification.
    (b) Such documents shall be reviewed by an RD Classifier as soon as 
possible to determine their classification status. Assistance may be 
requested from the DOE Director of Declassification.


Sec. 1045.46  Classification by association or compilation.

    (a) If two pieces of unclassified information reveal classified 
information when associated, then RD classifiers may classify the 
document.
    (b) RD classifiers may classify a document because a number of 
pieces of unclassified information considered together contain some 
added value such as completeness or comprehensiveness of the 
information which warrants classification.

Subpart D--Executive Order 12958 ``Classified National Security 
Information'' Requirements Affecting the Public


Sec. 1045.50  Purpose and scope.

    This subpart describes the procedures to be used by the public in 
questioning or appealing DOE decisions regarding the classification of 
NSI under E.O. 12958 and 32 CFR part 2001.


Sec. 1045.51  Applicability.

    This subpart applies to any person with authorized access to DOE 
NSI or who desires access to DOE documents containing NSI.


Sec. 1045.52  Mandatory declassification review requests.

    All DOE information classified as NSI is subject to review for 
declassification by the DOE if:

[[Page 68517]]

    (a) The request for a review describes the document containing the 
information with sufficient specificity to enable the agency to locate 
it with a reasonable amount of effort;
    (b) The information is not exempted from search and review under 
the Central Intelligence Agency Information Act;
    (c) The information has not been reviewed for declassification 
within the past 2 years; and
    (d) The request is sent to the Department of Energy, Director of 
Declassification, 19901 Germantown Road, Germantown, Maryland 20874-
1290.


Sec. 1045.53  Appeal of denial of mandatory declassification review 
requests.

    (a) If the Department has reviewed the information within the past 
2 years, the request may not be processed. If the information is the 
subject of pending litigation, the processing of the request may be 
delayed pending completion of the litigation. The Department shall 
inform the requester of this fact and of the requester's appeal rights.
    (b) When the Director of Declassification has denied a request for 
review of NSI, the requester may, within 30 calendar days of its 
receipt, appeal the determination to the Director of Security Affairs.
    (c) Elements of appeal. The appeal shall be in writing and 
addressed to the Director of Security Affairs, Department of Energy, 
1000 Independence Avenue SW, Washington, DC 20585. The appeal shall 
contain a concise statement of grounds upon which it is brought and a 
description of the relief sought. It should also include a discussion 
of all relevant authorities which include, but are not limited to DOE 
(and predecessor agencies) rulings, regulations, interpretations, and 
decisions on appeals, and any judicial determinations being relied upon 
to support the appeal. A copy of the letter containing the 
determination being appealed shall be submitted with the appeal.
    (d) Receipt of appeal. An appeal shall be considered to be received 
upon receipt by the DOE Director of Security Affairs.
    (e) Action within 60 working days. The appeal authority shall act 
upon the appeal within 60 working days of its receipt. If no 
determination on the appeal has been issued at the end of the 60-day 
period, the requester may consider his or her administrative remedies 
to be exhausted and may seek a review by the Interagency Security 
Classification Appeals Panel (ISCAP). When no determination can be 
issued within the applicable time limit, the appeal shall nevertheless 
continue to be processed. On expiration of the time limit, DOE shall 
inform the requester of the reason for the delay, of the date on which 
a determination may be expected to be issued, and of his or her right 
to seek further review by the ISCAP. Nothing in this subpart shall 
preclude the appeal authority and the requester from agreeing to an 
extension of time for the decision on an appeal. The DOE Director of 
Security Affairs shall confirm any such agreement in writing and shall 
clearly specify the total time agreed upon for the appeal decision.
    (f) Form of action on appeal. The DOE Director of Security Affairs' 
action on an appeal shall be in writing and shall set forth the reason 
for the decision. The Department may refuse to confirm or deny the 
existence or nonexistence of requested information whenever the fact of 
its existence or nonexistence is itself classified under E.O. 12958.
    (g) Right of final appeal. The requester has the right to appeal a 
final Department decision or a failure to provide a determination on an 
appeal within the allotted time to the ISCAP for those appeals dealing 
with NSI. In cases where NSI documents also contain RD and FRD, the RD 
and FRD portions of the document shall be deleted prior to forwarding 
the NSI and unclassified portions to the ISCAP for review.

[FR Doc. 97-33949 Filed 12-30-97; 8:45 am]
BILLING CODE 6450-01-P