[Federal Register Volume 83, Number 245 (Friday, December 21, 2018)]
[Rules and Regulations]
[Pages 66000-66022]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-27344]
[[Page 65999]]
Vol. 83
Friday,
No. 245
December 21, 2018
Part VI
Department of Energy
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10 CFR Part 1045
Nuclear Classification and Declassification; Final Rule
Federal Register / Vol. 83 , No. 245 / Friday, December 21, 2018 /
Rules and Regulations
[[Page 66000]]
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DEPARTMENT OF ENERGY
10 CFR Part 1045
[AU60-2016-1045]
RIN 1992-AA49
Nuclear Classification and Declassification
AGENCY: Department of Energy.
ACTION: Final rule.
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SUMMARY: In this final rule, the Department of Energy (DOE) revises its
regulations concerning the requirements for classification and
declassification of Restricted Data (RD) and Formerly Restricted Data
(FRD). Since 1997, when DOE issued the regulation, changes in
legislation and DOE and national policies have rendered portions of the
existing regulations outdated. In this final rule, DOE addresses these
changes. Additional changes clarify requirements, as well as allow
agencies more flexibility in implementing RD/FRD programs. DOE has also
made revisions for clarity and reorganized for ease of use.
DATES: This final rule is effective January 22, 2019.
FOR FURTHER INFORMATION CONTACT: Lesley Nelson-Burns, Office of Quality
Management, Department of Energy, AU-61/Germantown Building, 1000
Independence Avenue SW, Washington, DC 20585, (301) 903-4861 or
[email protected].
SUPPLEMENTARY INFORMATION:
I. Background
A. Authority and Reasons for Regulation
B. Reasons for Revisions
C. Summary of Revisions
II. DOE's Response to Comments
III. Regulatory Review and Procedural Requirements
A. Review Under Executive Orders 12866 and 13563
B. Review Under Executive Orders 13771 and 13777
C. Review Under the Regulatory Flexibility Act
D. Review Under the Paperwork Reduction Act
E. Review Under the National Environmental Policy Act
F. Review Under E.O. 13132, ``Federalism''
G. Review Under E.O. 12988, ``Civil Justice Reform''
H. Review Under the Unfunded Mandates Reform Act of 1995
I. Review Under E.O. 13211, ``Regulations that Significantly
Affect Energy Supply, Distribution or Use''
J. Review Under the Treasury and General Government
Appropriations Act, 2001
K. Review Under the Treasury and General Government
Appropriations Act of 1999
L. Congressional Notification
IV. Approval by the Office of the Secretary
I. Background
A. Authority and Reasons for Regulation
The Atomic Energy Act of 1954, as amended, 42 U.S.C. 2011 et seq.
(AEA), is the basis for the classification of nuclear-weapons related
information as Restricted Data (RD), and information transclassified
from the RD category. The AEA grants the Department of Energy (DOE)
Government-wide authority for RD and the control of information as RD.
Title 10 of the Code of Federal Regulations (CFR) part 1045 (this part)
implements DOE authority under the AEA to manage the Government-wide
system of classifying and declassifying RD. This part prescribes
procedures for the identification of RD, FRD, and TFNI, describes how
members of the public may request the release of RD, FRD, TFNI, and DOE
National Security Information (NSI), and sets forth the process to
appeal decisions regarding such requests.
In 1997, DOE issued a final rule in 10 CFR part 1045 that
established the Government-wide responsibilities and requirements for
RD and FRD. 62 FR 68502 (Dec. 31, 1997). The DOE affirmed in the
preamble to the final rule that this DOE rule would establish the
policies and procedures implementing the requirements of the AEA for
the classification and declassification of RD and FRD. The rule also
implemented the provisions of the E.O. 12958 pertaining to NSI that
directly affect the public. The final rule included several
requirements intended to provide increased transparency and
accountability to the process of classifying and declassifying RD and
FRD. These included options for the public to submit suggestions and
complaints about classification policy, and for persons to submit
challenges to classification determinations and declassification
proposals. The rule also identified the specific criteria to be used to
determine if information is RD, to declassify RD, and prohibitions on
the application of classification.
B. Reasons for Revisions
On April 23, 2018, DOE issued a proposed rule to amend part 1045
(2018-07990). For background on the proposed rule and a discussion of
the changes DOE proposed and the reasons for those changes, please see
proposed rule. DOE received comments on the rule and has addressed
those comments in section II. DOE made changes to the proposal in
response to the comments, as described in section I.C.
In this final rule, DOE revises this part to: update DOE
organizational responsibilities; incorporate changes in the Atomic
Energy Act; Executive Order 13526, Classified National Security
Information; and 32 CFR part 2001, Classified National Security
Information; Final Rule, as well as to improve policies and procedures
due to lessons learned and feedback from other Federal agencies
(agencies).
Section 142(e) of the AEA authorizes the transclassification of
information concerning the atomic programs of other nations. Under
section 142(e), RD concerning the atomic energy programs of other
nations is transclassified by joint agreement with the Director of
Central Intelligence (DCI) or the DNI to facilitate sharing in the
Intelligence Community (IC). Information transclassified under section
142 of the AEA, did not have a unique name or marking prior to being
named TFNI in 2010 under 32 CFR part 2001. Prior to 2010, documents
containing this information had no special identifier, were handled in
a manner similar to NSI, and were not marked as exempt from automatic
declassification. Although the information concerns foreign nuclear
programs, the information may be the same or similar to U.S. RD, which
is never automatically declassified due to its sensitivity. To ensure
this information is not automatically declassified and inadvertently
released, E.O. 13526 recognized the Secretary of Energy's authority to
determine its declassification. The Information Security Oversight
Office (ISOO) of the National Archives and Records Administration, in
coordination with DOE, developed language to incorporate TFNI marking
requirements into 32 CFR 2001.24(i).
Revisions to this part mirror the marking policies jointly
developed by DOE and ISOO contained in 32 CFR part 2001 and ISOO Notice
2011-02. These policies ensure matter containing RD, FRD, and TFNI are
not automatically declassified. These policies are publicly available
from the ISOO website at https://www.archives.gov/isoo.
In addition, revisions to this part define specific
responsibilities and authorities for TFNI, authorities for the return
of FRD and TFNI to the RD category as permitted by changes to Section
142 of the AEA, and the marking of matter that commingles RD/FRD/TFNI
with NSI or Controlled Unclassified Information (CUI). Many changes are
based on DOE's experience assisting other agencies in implementing this
part.
E.O. 12866 states regulations must be ``simple and easy to
understand, with the goal of minimizing uncertainty and
[[Page 66001]]
litigation. . .'' (Sec. 1, Par. (b)(12)) and E.O. 12988 states that
each regulation must specify its effect ``in clear language'' (Sec. 3
Par. (b)(2)). In accordance with these E.O.s, this regulation is
rewritten for clarity and reorganized for ease of use.
DOE consulted with other agencies and incorporated many of their
recommendations in the revision to this part. For example, the rule
permits RD Derivative Classifiers to remove RD, FRD, and TFNI from
matter under certain circumstances when the resulting matter remains
classified. The changes to this part do not significantly impact
current practices and many of the changes provide greater flexibility
for agencies in implementing their RD programs.
C. Summary of Revisions
For ease of use, this section serves as a crosswalk from the
previous rule to this final rule. Each subpart notes the location of
content in the previous rule and its new location. Changes to the
content are discussed where the new location is noted.
1. Subpart A
Subpart A, previously titled, ``Program Management of the
Restricted Data and Formerly Restricted Data Classification System,''
was renamed ``Introduction.'' Subpart A previously contained Sec.
1045.1 to Sec. 1045.9. It now contains Sec. 1045.5 to Sec. 1045.35.
Sections are now numbered by fives to allow for future additions. The
new sections contain introductory information on this part including:
the purpose and application of this part; how to submit comments and
requests for equivalencies and exemptions; sanctions that may be
implemented against violators of this regulation; and definitions and
acronyms used in this part. Information concerning program management
and individual responsibilities was moved to Subpart B.
The sections of Subpart A were changed as follows:
--Sec. 1045.1: This content was moved to Sec. 1045.5.
--Sec. 1045.2: This content was moved to Sec. 1045.10(a).
--Sec. 1045.3: This content was moved to Sec. 1045.30.
--Sec. 1045.4: This content was moved to Sec. 1045.45.
--Sec. 1045.5: This content was moved to Sec. 1045.25.
--Sec. 1045.6: This content was deleted. The Openness Advisory Panel
(OAP) was a subcommittee of the Secretary of Energy Advisory Board
(SEAB). In May 2006, the Secretary abolished the SEAB and the OAP was
not reconstituted when the SEAB was re-established in 2010. To
encourage persons with access to RD, FRD, or TFNI and the public to
inform DOE of records of interest, DOE has revised the sections in this
part on classification challenges and declassification proposals to
provide more information on these processes.
--Sec. 1045.7: This content was moved to Sec. 1045.15.
--Sec. 1045.8: This content was moved to Sec. 1045.20.
--Sec. 1045.9: This content was moved to Sec. 1045.45(g).
The sections of Subpart A are now as follows:
--Sec. 1045.5: This content was previously in sections Sec. 1045.1,
Sec. 1045.10, and Sec. 1045.30. It now addresses the purpose of 10
CFR part 1045 and its subparts. The descriptions of the purpose of each
subpart have been changed to reflect the new content and organization
of each subpart.
--Sec. 1045.10: To lessen duplication, this content now consolidates
the applicability sections of each subpart, (formerly Sec. 1045.2,
Sec. 1045.11, Sec. 1045.31, and Sec. 1045.51). The requirements for
generating information and matter are in separate sections in the rule
to clarify the distinct authorities and processes for each.
--Sec. 1045.15: This content was previously in Sec. 1045.7. The
address for the DOE Office of Classification was updated.
--Sec. 1045.20: This content was previously in Sec. 1045.8. The term
``procedural exemption'' has been changed to ``equivalencies and
exemptions'' for greater clarity and to increase flexibility. Rather
than requesting a complete exemption to a requirement, DOE permits
agencies request an equivalency, by providing an alternate but
sufficient method of meeting a requirement. Due to the addition of
equivalencies, the information required in a submission for an
exemption or equivalency has been expanded. The addresses were also
updated.
--Sec. 1045.25: This content was previously in Sec. 1045.5. There
have been no substantive changes to this content.
--Sec. 1045.30: This content was previously in Sec. 1045.3. Several
definitions were added, removed, or revised as follows:
--Associate RD Management Official (ARDMO)--added to formalize existing
practice of Restricted Data Management Officials (RDMOs) acting through
deputies.
--Associate Under Secretary for Environment, Health, Safety and
Security replaced ``Chief Health, Safety and Security officer'' to
reflect DOE reorganizations.
--Classification Category--new definition to clarify the specific
authority for RD, FRD, and TFNI.
--Classification Guidance--new definition to clarify that guidance is
approved by an appropriate authority and to provide examples of types
of guidance.
--Classified Matter--replaced ``documents and material'' to be
consistent with current policies.
--Downgrading--defined to describe downgrading of information and
matter.
--Initial Determination--defined to identify the process by which new
information is determined to be RD.
--Originating Activity--defined to clarify the circumstances in which
matter may be distributed as a working paper.
--Restricted Data Derivative Classifier--replaced Restricted Data
Classifier to clarify all decisions of an RD Classifier are derivative.
--TFNI--added to define information removed from the RD category under
section 142(e) of the AEA.
--TFNI Guidelines--added to define TFNI-specific policies issued by
agencies.
--Upgrading--added for persons to better understand the difference
between upgrading information (DOE-only) and matter (any RD Derivative
Classifier) to ensure in both cases the appropriate authority is
exercised.
--The following existing definitions were revised for clarity:
--Agency--added TFNI.
--Automatic Declassification--revised to reflect E.O. 13526.
--Classification--includes information classified by statute (the AEA).
--Classification Guide--edited for clarity.
--Classification Level
--Added TFNI.
--Removed definition of Confidential for NSI because this is defined in
E.O. 13526 and should not be duplicated here because it does not apply
to RD, FRD, or TFNI.
--Classified Information--added TFNI; clarified that classified NSI
includes information classified under E.O. 13526.
--Declassification--edited for clarity.
--Director, Office of Classification--removed reference to
organizational placement of Director, Office of Classification as it is
not necessary
--Interagency Security Classification Appeals Panel (ISCAP)--updated to
reflect E.O. 13526.
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--National Security--definition changed to refer to definition used by
E.O. 13526.
--National Security Information--defined as pursuant to E.O. 13526.
Removed clause describing ``defense information'' as used in the AEA
because it is obsolete and not pertinent to this rule.
--Portion Marking--edited for clarity.
--RD Management Official--edited to streamline definition.
--Source Document--edited to emphasize the requirement for RD
Derivative Classifiers to use only portion marked source documents.
The following definitions were deleted as they are not used in this
part:
--Authorized Holder--this term was replaced by ``person with access.''
--Document--removed. All references are now to ``matter.''
--Sec. 1045.35: This new content contains the acronyms used in the
regulation.
2. Subpart B
Subpart B, previously titled, ``Identification of Restricted Data
and Formerly Restricted Data Information,'' was renamed ``Program
Management of Restricted Data (RD), Formerly Restricted Data (FRD), and
Transclassified Foreign Nuclear Information (TFNI) Classification
Programs.'' Subpart B previously contained Sec. 1045.10 to Sec.
1045.22. It now contains Sections from Sec. 1045.40 to Sec. 1045.65.
Sections from Subparts A, B, and C were moved to this Subpart to locate
agency and individual responsibilities and authorities in a single
subpart. The section of Subpart B describing processes for
classification and declassification of RD and FRD (formerly Sec.
1045.14) has been broken up and distributed throughout the regulation,
with each component relocated to its appropriate section. The Subpart
also includes new sections on responsibility for TFNI and reflects the
comprehensive development of TFNI policy by generally including TFNI
wherever it should be included with RD and FRD.
The existing sections of Subpart B were changed as follows:
--Sec. 1045.10: This content was moved to Sec. 1045.5.
--Sec. 1045.11: This content was moved to Sec. 1045.10.
--Sec. 1045.12: This content was moved to Sec. 1045.45.
--Sec. 1045.13: This content was moved to Sec. 1045.75.
--Sec. 1045.14: This was moved and subdivided in the following manner:
--Content regarding the initial classification of RD was moved to Sec.
1045.45(c), Sec. 1045.70, and Sec. 1045.135.
--Content regarding the declassification of RD was moved to Sec.
1045.45(b), Sec. 1045.100, and Sec. 1045.105(a) and (b).
--Content regarding the classification of FRD was moved to Sec.
1045.45(b) and Sec. 1045.85(a).
--Content regarding the declassification of FRD was moved to Sec.
1045.45(b), Sec. 1045.100, and Sec. 1045.105.
--Sec. 1045.15: This content was moved to Sec. 1045.80.
--Sec. 1045.16: This content was moved to Sec. 1045.70.
--Sec. 1045.17: This content was moved to Sec. 1045.45(c) and Sec.
1045.95.
--Sec. 1045.18: This content was moved to Sec. 1045.45(c).
--Sec. 1045.19: This content was deleted. Classification
determinations concerning RD or FRD, as specified in paragraph (a),
follow the criteria in Sec. 1045.80, which provides the rationale for
classification and declassification of RD or FRD. Justifications for
the exemptions are removed because the presumptions are a starting
point to classify or declassify information as the Director, Office of
Classification evaluates the criteria, he or she would also justify any
exception to the presumptions. No separate justification is necessary.
The annual report required by paragraph (b) has not been of interest to
the public. DOE has had only one request for the annual report since
1997. Any specific information of interest to the public may be
requested under the FOIA.
--Sec. 1045.20: The content of this paragraph was moved to Sec.
1045.105.
--Sec. 1045.21: This content was moved to Sec. 1045.90.
--Sec. 1045.22: This content was moved to Sec. 1045.60 and Sec.
1045.65.
The sections of Subpart B are now as follows:
--Sec. 1045.40: This content was previously in Sec. 1045.33. A
timeframe for agencies to notify the Director, Office of
Classification, of new RDMO appointments was added. This change ensures
that points of contact are accurate and that a senior point of contact
is available to address questions or concerns.
--Sec. 1045.45: This content was previously in Sec. 1045.4, Sec.
1045.14, Sec. 1045.17, Sec. 1045.18, and Sec. 1045.32. The section
on responsibilities incorporates changes that describe current
obligations in more detail. Responsibilities concerning the return of
FRD or TFNI to the RD category were added. This addition was due to an
amendment to sections 142(d) and (e) of the AEA which permits this
action. Other changes were due to the implementation of TFNI and the
consolidation of responsibilities which were previously distributed
throughout the regulation. Additional changes were made to clarify or
codify existing practices. The description of the authority of the
Associate Under Secretary for Environment, Health, Safety and Security
now appears in Sec. 1045.45(b). The substantive changes are as
follows:
--Sec. 1045.45(b): Changed title of position to reflect DOE
reorganizations. Implied responsibilities are now explicitly stated.
The content was edited to include additional information on cooperation
with DoD in the classification and declassification of FRD and to
codify existing practices.
--Sec. 1045.45(c): This content was previously in Sec. 1045.4(a),
Director, Office of Classification:
--Added TFNI guidelines in the development of joint classification
guides (to include clarification of who must perform assigned duties).
--Content was expanded to address agency and Director, Office of
Classification roles in implementing this part.
--Sec. 1045.45(g): This content was previously in Sec. 1045.4(e),
Head of Agencies with Access to RD, FRD, and TFNI, with the following
changes:
--Added requirement to develop and promulgate procedures for
classification challenges and declassification proposals for RD, FRD,
and TFNI.
--Deleted redundant information about parallel procedures for NSI. This
information is governed by E.O. 13526 and should not be duplicated
here.
--Added responsibilities of DOE, DNI, and the IC for TFNI;
--Added responsibility for review of NSI records of permanent
historical value under the ``Special Historical Records Review Plan
(Supplement)'' (established under Public L. (Pub. Laws 105-261 and 106-
65); and
--Added requirement for contacting officer to be notified of contracts
that have access to or generate matter containing RD, FRD, or TFNI, to
ensure agencies are aware of such contracts and that contracts
incorporate the requirements of 10 CFR part 1045.
--Sec. 1045.45(h): This content was previously in Sec. 1045.4(f),
RDMOs, with the following changes:
--Established procedures for the designation of Associate RDMOs
(ARDMOs). This codifies current
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practices and allows agencies flexibility in delegating the
responsibilities of RDMOs;
--Incorporates RDMO responsibilities for TFNI;
--Adds responsibility for periodic reviews of agency classification
decisions of matter containing RD, FRD, or TFNI. Agencies currently
conduct annual reviews of classification decisions under 32 CFR part
2001 to ensure the appropriate identification and marking of National
Security Information. The periodic review of matter containing RD, FRD,
or TFNI may be done during these reviews to ensure agencies are aware
of any systematic issues regarding compliance with this part; and
--Added the Director of National Intelligence (DNI) responsibility for
IC elements.
--Sec. 1045.45(i), (j), and (k): This content was previously in Sec.
1045.32
--Added descriptions of the limits of the authority regarding
declassification, downgrading, and using portion-marked source
documents. This description was added to clarify requirements and allow
agencies greater flexibility in the classification of documents
containing RD, FRD, or TFNI, while ensuring documents are coordinated
with DOE or DoD, when necessary. For clarity, the list of
responsibilities for RD DCs now explicitly requires that source
documents be portion-marked, and gives examples of classification
upgrading and downgrading.
--Added training required for access to and to derivatively classify
TFNI.
--Sec. 1045.55: This content was moved from Sec. 1045.37 and Sec.
1045.43. The language was edited for clarity, and the mailing address
for the Director of Classification was added for accuracy. The
requirement for declassification proposals from persons with access to
RD, FRD, or TFNI to be transmitted through secure means was added to
ensure the proper protection of classified information.
--Sec. 1045.60: This content was moved from Sec. 1045.22. The content
did not change.
--Sec. 1045.65: This content was moved from Sec. 1045.22. To be
consistent with DOE policies and for accuracy, the term ``public
domain'' was replaced by ``open literature.'' The content also now
explains:
--The possible damage to national security resulting from commenting on
information in the open literature that is or may be RD, FRD or TFNI;
and
--Required reviews of new documents which incorporate information from
the open literature which may be classified.
3. Subpart C
Subpart C, previously titled, ``Generation and Review of Documents
Containing Restricted Data and Formerly Restricted Data,'' was renamed
``Determining if Information is RD, FRD, or TFNI.'' Subpart C
previously contained Sec. 1045.30 to Sec. 1045.46. It now contains
Sec. 1045.70 to Sec. 1045.110. Subpart C consolidates content from
other subparts on the following subjects: The processes for
classification and declassification; the presumptions that guide those
processes; the status of privately generated information in the RD
realm; classification levels; and classification challenges. Subpart C
also contains a new section on the transclassification of information
from the RD category into the TFNI category which is part of the
addition of TFNI policy.
The existing sections of Subpart C were changed as follows:
--Sec. 1045.30: This content was moved to Sec. 1045.5.
--Sec. 1045.31: This content was moved to Sec. 1045.10(a).
--Sec. 1045.32: This content was moved to Sec. 1045.45(i) and Sec.
1045.155.
--Sec. 1045.33: This content was moved to Sec. 1045.40.
--Sec. 1045.34: This content was moved to Sec. 1045.115(b) and (c).
--Sec. 1045.35: This paragraph was moved to Sec. 1045.45(c) and Sec.
1045.120.
--Sec. 1045.36: This content was moved to Sec. 1045.45(c).
--Sec. 1045.37: The content regarding classification guides was moved
to Sec. 1045.45. The requirement regarding the 5-year review of guides
was moved to Sec. 1045.45(g)(9).
--Sec. 1045.38: This content was moved to Sec. 1045.155.
--Sec. 1045.39: This content was moved to Sec. 1045.110.
--Sec. 1045.40: This content was moved to Sec. 1045.140 and Sec.
1045.165.
--Sec. 1045.41: This content was moved to Sec. 1045.130(d).
--Sec. 1045.42: This content was moved to Sec. 1045.170, Sec.
1045.175, and Sec. 1045.180.
--Sec. 1045.43: This content was moved to Sec. 1045.55.
--Sec. 1045.44: This content was moved to Sec. 1045.125(b).
--Sec. 1045.45: This content was moved to Sec. 1045.125.
--Sec. 1045.46: This content was moved to 1045.130(c) and (d).
The sections of Subpart C are now as follows:
--Sec. 1045.70: This content was previously in Sec. 1045.14 and Sec.
1045.16. To address current concerns, the consideration as to whether
declassification would assist terrorism was added.
--Sec. 1045.75: This content was previously in Sec. 1045.13. There
are no changes to the content.
--Sec. 1045.80: This content was previously in Sec. 1045.15. The
introduction was revised for clarity.
--Sec. 1045.85: This content was previously in Sec. 1045.14. The
content was edited to include information on coordination with DoD in
the classification of FRD, to codify existing practices. It also adds
content concerning the transclassification of TFNI, which is added due
to the comprehensive implementation of TFNI. Lastly, it adds content
regarding the return of FRD or TFNI information to the RD category,
codifying a revision to sections 142(d) and (e) of the AEA that allows
this action.
--Sec. 1045.90: This content was previously in Sec. 1045.21. The
content was reworded for clarity.
--Sec. 1045.95: This content was previously in Sec. 1045.17. Examples
of RD in each classification level were removed as unnecessary and the
language was revised and reorganized for clarity.
--Sec. 1045.100: This content was previously in Sec. 1045.14. There
have been no substantive changes to this content.
--Sec. 1045.105: This content was previously in Sec. 1045.14 and
Sec. 1045.20. To give more detail on an existing process, the
paragraph now specifies that declassification proposals must be in
writing, and include a reason for the proposal. The paragraph also
provides greater detail on the process used to adjudicate
declassification proposals to codify existing practices. Information on
coordination with DoD in FRD declassification was added to codify
existing practices.
--Sec. 1045.110: This content was previously in Sec. 1045.39. The
changes are: Additional content on agency responsibilities regarding
classification challenges for RD, FRD, and TFNI information; an
emphasis on the right of challengers to submit challenges directly to
the Director, Office of Classification, at any time; more information
on the actions required of the Director, Office of Classification; and
the challenger's appeal rights. This section also clarifies that agency
responses to challenges (except for DoD for FRD) are limited to
interpreting the
[[Page 66004]]
application of guidance to derivatively classify matter. This is to
ensure RD, FRD, and TFNI challenges are referred to the appropriate
agency for consideration and any changes to guidance based on a
challenge will be promulgated.
4. Subpart D
Subpart D, previously titled, ``Executive Order 12958: `Classified
National Security Information'' Requirements Affecting the Public,''
was renamed ``Classifying and Declassifying Matter Containing RD, FRD,
or TFNI.'' Subpart D previously contained Sec. 1045.50 to Sec.
1045.53. It now contains Sec. 1045.115 to Sec. 1045.165. The sections
of Subpart D that deal with DOE's NSI classification program were moved
to Subpart F. Sections from Subparts B and C were moved into Subpart D.
Subpart D contains a number of new sections. The new sections
addressing TFNI cover: The requirement for a person trained to classify
TFNI to review any matter that could potentially contain TFNI; the
requirement for classification of TFNI by a person with appropriate
authority; and the appropriate procedure for when TFNI guidance cannot
be located.
A description of authorities and procedures for redacting RD, FRD,
or TFNI from a document was also added to this Subpart. Authorities and
procedures for redacting RD, FRD, or TFNI were added to clarify when
other agencies may remove RD, FRD, or TFNI from matter.
To assist agencies in developing proper training materials, detail
was added to descriptions of training requirements for RD Derivative
Classifiers and for persons with access to RD, FRD, or TFNI. The
section describing classification by compilation or association
provides more detail about these training requirements.
The existing sections of Subpart D were changed as follows:
--Sec. 1045.50: This content was moved to Sec. 1045.5.
--Sec. 1045.51: This content was moved to Sec. 1045.10(a).
--Sec. 1045.52: This content was moved to Sec. 1045.185 and Sec.
1045.190.
--Sec. 1045.53: This content was moved to Sec. 1045.205 and Sec.
1045.210.
The sections of Subpart D are now as follows:
--Sec. 1045.115: This content was previously in Sec. 1045.34. It
contains two amendments. The authority for agencies to recognize RD DC
authorities granted by other agencies was added to allow agencies
flexibility and save agencies the time and resources spent repeating
training already provided when the previous authority is the same and
to allow agencies greater flexibility in authorities for Strategic
Partnership Projects when persons may require classification authority
for other agency work. Content was added to address authority and
training to classify matter containing TFNI.
--Sec. 1045.120: This content was previously in Sec. 1045.35. Content
was added to provide more detail regarding training for persons with
access to RD, FRD, or TFNI, and for RD DC training. Periodic refresher
training was added for persons with access to RD, FRD, or TFNI and
refresher training every 2 years is required for RD DCs. This
requirement is consistent with requirements for other classified
information. Content was also added concerning officials and training
for TFNI classification which was added to implement TFNI.
--Sec. 1045.125: This content was previously in Sec. 1045.44. To
codify existing practices, the section provides greater detail on the
process for reviewing matter that potentially contains RD, FRD or TFNI.
The requirement for review of such matter by an RD DC was changed from
``any authorized holder who believes he or she has information which
may be RD shall submit it to an RD Classifier for evaluation'' to
``Matter that potentially contains RD or FRD must be reviewed by an RD
Derivative Classifier.'' This change reflects the current DOE
requirement for classification reviews, and adds FRD because FRD and RD
often have similar content. The requirement for review no longer relies
on the authorized holder's subjective belief that information may be
RD, since it may be unreliable. New content was added to address TFNI.
--Sec. 1045.130: This content was previously Sec. 1045.41 and Sec.
1045.46. Content, was added to address classification of TFNI. Content
was also added to address when source documents may be used as a basis
for classifying matter containing RD or FRD. The section provides more
detail for existing practices dealing with the process of
classification by association or compilation.
--Sec. 1045.135: This content was previously in Sec. 1045.14. For the
RDMO to be aware of guidance available to RD DCs and to resolve issues
at the agency level, when possible, the RDMO and ARDMO were added as
contacts for when RD DCs have potentially classified information for
which they cannot find guidance. Also, the Director, Office of
Classification, is now explicitly required to notify the RDMO of the
agency originating information of the results of any initial
determination requests transmitted to the Director. Potentially
classified documents pending determination are now protected at a
minimum of SRD or SFRD, instead of CRD required by the current
regulation. This is due to the fact that since the majority of RD is
Secret, this is the most appropriate level of protection until the
specific level is identified. Additional information was added
regarding the proper procedure when TFNI guidance cannot be located.
--Sec. 1045.140: This content was previously in Sec. 1045.40. New
sub-paragraphs were added to cover markings for: The IC; working papers
containing RD, FRD, or TFNI; commingled RD/FRD/TFNI with NSI or CUI;
special format matter; and TFNI markings. All revisions to the marking
sections were based on national policy, with content added to fully
address and clarify requirements.
--Sec. 1045.145: This section was added to address matter printed from
an IT system.
--Sec. 1045.150: This new section addresses authorities and procedures
for redacting RD, FRD, or TFNI from matter. This content was added to
clarify procedures for removing RD, FRD, or TFNI from matter and ensure
the resulting document does not potentially contain RD, FRD, or TFNI.
--Sec. 1045.155: This content was previously in Sec. 1045.32 and
Sec. 1045.38. TFNI was added and new content addresses who may redact
RD, FRD, or TFNI from a document being prepared for public release.
This was added to ensure matter containing RD, FRD, or TFNI is reviewed
by a person with subject matter expertise and authority so that RD,
FRD, or TFNI is not inadvertently released.
--Sec. 1045.160: This content is a new addition. It was added at the
request of other agencies to ensure documents from which RD, FRD, or
TFNI is removed that still contain NSI are reviewed and marked
appropriately.
--Sec. 1045.165: This content was previously in Sec. 1045.40. TFNI
was added.
5. Subpart E
Subpart E, ``Government-wide Procedures for Handling Freedom of
Information Act (FOIA) and Mandatory Declassification Review (MDR)
Requests
[[Page 66005]]
for Matter Marked as or Potentially Containing RD, FRD, or TFNI,'' is a
new addition containing content currently contained in Subpart C and
new content. This section describes requirements for other Government
agencies when they receive a FOIA or MDR request that potentially
contains RD, FRD, or TFNI. Subpart E contains Sec. 1045.170 to Sec.
1045.180. Sections from Subpart C that deal with RD and FRD under a
FOIA or an MDR request were moved to this subpart. These sections were
also expanded to provide greater detail regarding the processes for
appeals and requests.
The sections of Subpart E are as follows:
--Sec. 1045.170--This section was added to clarify that this section
applies to other Government agencies who receive FOIA and MDR requests
for matter that is marked as or potentially contains RD, FRD, or TFNI.
RD, FRD, and TFNI, is classified under the Atomic Energy Act and
therefore does not fall under the MDR provisions of E.O. 13526, which
only applies to NSI. This section ensures that RD, FRD, and TFNI are
also considered for declassification and the appropriate authority
reviews matter that is marked as or potentially contains this
information.
--Sec. 1045.175: This content was previously in Sec. 1045.42. This
section now clarifies that it applies to matter that potentially
contains RD, FRD, or TFNI as well as matter marked as containing RD,
FRD, or TFNI. The Denying Official for Naval Nuclear Propulsion was
changed to the Deputy Director, Deputy Administrator for Naval
Reactors, so that the Denying Official and the appeal authority are no
longer the same. Language for the DoD Initial Denying Authority was
incorporated from DoD Manual 5400.07, DoD Freedom of Information Act
(FOIA) Program.
--Sec. 1045.180: This content was previously in Sec. 1045.42. The
content was expanded to clarify the process and provide greater detail
regarding FOIA and MDR appeals for matter containing RD, FRD, or TFNI
and to ensure RD, FRD, or TFNI portions are not included in NSI appeals
to ISCAP. Since DOE may receive appeals from individuals or from
agencies, both circumstances are now addressed to ensure all appeals
for RD and TFNI are sent to DOE and all appeals for FRD are sent to DOE
or DoD. Paragraph (a) was revised to clarify that FOIA appeals
involving RD, FRD or TFNI are required to be submitted within 90 days
of receipt of the denial, consistent with the procedures in DOE's FOIA
regulations in 10 CFR part 1004. In 2016, DOE revised its regulations
in part 1004 to implement the requirement in the FOIA Improvement Act
of 2016 that FOIA appeals are required to be submitted within 90 days.
Paragraph (b) was revised to clarify that appeal timeframes for MDR
Appeals are 60 days. For consistency with the MDR appeal procedures
involving NSI, which are contained in 32 CFR 2001.33(a)(2), and require
submission of an appeal within 60 days of the receipt of the denial,
MDR appeals involving RD, FRD, or TFNI are also required to be
submitted within 60 days of the receipt of the denial. This section was
also revised to clarify the different timeframes and process for FOIA
and MDR requests and to identify appropriate appellate authorities.
6. Subpart F
Subpart F, ``DOE-specific procedures for MDR Requests,'' is a new
addition containing content currently contained in Subpart C and new
content. This section describes how a person submits an MDR request to
DOE for matter that is marked as or potentially contains NSI, RD, FRD,
or TFNI. This section also describes how MDR requests are processed
within DOE. As recognized in section 6.2 of E.O. 13526, RD, FRD, and
TFNI, which are classified under the Atomic Energy Act. Therefore, MDR
procedures in E.O. 13526, which only applies to NSI, do not apply to
RD, FRD, or TFNI. This subpart implements DOE procedures for processing
MDR requests for NSI, under E.O. 13526, and also ensures the public may
request declassification reviews of documents containing RD, FRD, or
TFNI. Subpart F contains Sec. 1045.185 to Sec. 1045.225. Sections
from Subpart D that deal with MDR requests and appeals by the public
were moved to this Subpart. Subpart F contains new sections that
describe exemptions to MDR requests, the cost associated with an MDR,
the DOE process for MDR reviews and appeals, and DOE's OpenNet online
resource.
The sections of Subpart F are as follows:
--Sec. 1045.185--This section was added to clarify that this subpart
concerns DOE-specific processes for MDRs under E.O. 13526, which
includes NSI, and review of declassification requests for matter marked
as or potentially containing RD, FRD, or TFNI, which are not governed
by E.O. 13526, to ensure these are considered and appropriately
reviewed.
Sec. 1045.190: This content was previously in Sec. 1045.52. The
mailing address for the Director, Office of Classification was updated.
Sec. 1045.195: This content was previously in Sec. 1045.52. An
exemption from MDR requests was added for RD matter (technical
engineering, blueprints and design documents regarding nuclear
weapons). Portion by portion review of these documents is complex and
time consuming and results in release of minimal non-exempt
information. Processing and review of these documents requires
significant resources. Due to the significant sensitivity of the vast
majority of information contained in these documents, DOE determined
that they should not be subject to an MDR. The exemption from mandatory
declassification review under the Central Intelligence Agency
Information Act was removed because it does not apply to DOE records.
--Sec. 1045.200: This new section contains content addressing costs
for MDR reviews. When 10 CFR part 1045 was initially issued, DOE
received very few MDR requests. Due to a significant increase in MDR
requests, DOE determined it was necessary to recover some of the cost.
The fees established mirror DOE fees for FOIA requests.
Sec. 1045.205: Content addressing MDR requests and appeals for matter
containing RD, FRD, or TFNI was added. The changes codify existing
practices.
Sec. 1045.210: This content was previously in Sec. 1045.53. It
addresses the denial of naval nuclear propulsion information in the
requirement since this information is not initially denied by the
Director, Office of Classification.
Sec. 1045.215: This content was previously in Sec. 1045.53.
Sec. 1045.220: This new section was added to address final MDR appeals
for matter containing RD, FRD, or TFNI and ensure RD, FRD, and TFNI
portions are removed from any matter containing NSI submitted to ISCAP
for review. The requirement to coordinate Naval Nuclear Propulsion with
the NNSA Deputy Administrator for Naval Nuclear Propulsion was added
because that is the appeal authority for this information.
Sec. 1045.225: This new section advises the public that matter
previously requested under the FOIA/MDR is available on the DOE OpenNet
database and provided link to OpenNet.
[[Page 66006]]
II. DOE's Response to Comments
In response to the Notice of Proposed Rulemaking, DOE received one
comment relevant to the proposed rule. The comment advised that the
timeframe for appeals under the Freedom of Information Act (FOIA) was
extended from 60 to 90 days under the FOIA Improvement Act of 2016.
Sections of subpart E were rewritten to clarify the differences between
FOIA and MDR timeframes and processes. The section was also revised to
clarify appellate denying officials for RD, FRD, and TFNI, for both the
FOIA and MDR requests.
III. Regulatory Review and Procedural Requirements
A. Review Under Executive Orders 12866 and 13563
OMB has determined that this action does not constitute a
``significant regulatory action'' as defined in section 3(f) of E.O.
12866, ``Regulatory Planning and Review'' (58 FR 51735, October 4,
1993).
B. Review Under Executive Orders 13771 and 13777
On January 30, 2017, the President issued Executive Order 13771,
``Reducing Regulation and Controlling Regulatory Costs.'' That Order
stated the policy of the executive branch is to be prudent and
financially responsible in the expenditure of funds, from both public
and private sources. The Order stated it is essential to manage the
costs associated with the governmental imposition of private
expenditures required to comply with Federal regulations. This rule is
an E.O. 13771 deregulatory action.
Additionally, on February 24, 2017, the President issued Executive
Order 13777, ``Enforcing the Regulatory Reform Agenda.'' The Order
required the head of each agency designate an agency official as its
Regulatory Reform Officer (RRO). Each RRO oversees the implementation
of regulatory reform initiatives and policies to ensure that agencies
effectively carry out regulatory reforms, consistent with applicable
law. Further, E.O. 13777 requires the establishment of a regulatory
task force at each agency. The regulatory task force is required to
make recommendations to the agency head regarding the repeal,
replacement, or modification of existing regulations, consistent with
applicable law. At a minimum, each regulatory reform task force must
attempt to identify regulations that:
(i) Eliminate jobs, or inhibit job creation;
(ii) Are outdated, unnecessary, or ineffective;
(iii) Impose costs that exceed benefits;
(iv) Create a serious inconsistency or otherwise interfere with
regulatory reform initiatives and policies;
(v) Are inconsistent with the requirements of Information Quality
Act, or the guidance issued pursuant to that Act, in particular those
regulations that rely in whole or in part on data, information, or
methods that are not publicly available or that are insufficiently
transparent to meet the standard for reproducibility; or
(vi) Derive from or implement Executive Orders or other
Presidential directives that have been subsequently rescinded or
substantially modified.
This rule reflects changes in the Atomic Energy Act, E.O. 13526, 32
CFR part 2001, DOE policies and DOE reorganizations that rendered
portions of the previous regulation outdated, as well clarifies
requirements and allows agencies more flexibility in implementing RD/
FRD programs, meets the goals and objectives of the task force.
C. Review Under the Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires
preparation of a regulatory flexibility analysis for any rule that by
law must be proposed for public comment, unless the agency certifies
that the rule, if promulgated, will not have a significant economic
impact on a substantial number of small entities. As required by E.O.
13272, Proper Consideration of Small Entities in Agency Rulemaking (67
FR 53461, August 16, 2002), DOE published procedures and policies on
February 19, 2003, to ensure that the potential impacts of its rules on
small entities are properly considered during the rulemaking process.
DOE has made its procedures and policies available on the Office of the
General Counsel's website: (http://energy.gov/gc/office-general-counsel).
DOE reviewed this rule under the Regulatory Flexibility Act and
certifies that the rule would not have a significant impact on a
substantial number of small entities. This rule applies to Federal
agencies and private entities who have access to RD. The number of
private entities with access to RD is very small. These include access
permittees (covered by 10 CFR part 1016) and private entities whose
operations involve isotope separation technologies. The rule does not
require significant new requirements for Federal agencies or private
entities with access to RD. The changes are administrative changes
(e.g., renumbering, and updating office names to reflect
reorganizations), and updates to incorporate responsibilities and
procedures due to changes in laws, regulations and E.O.s and clarify
requirements.
The rule initiates fees for MDRs. When 10 CFR part 1045 was
initially issued, DOE received very few MDR requests. Due to a
significant increase in MDR requests, DOE determined it was necessary
to recover some of the cost. Because matter requested under an MDR
could be requested, alternatively, under the FOIA, DOE determined that
it was appropriate to treat MDR requests similarly to FOIA requests.
DOE therefore proposed that the fees established for MDRs should mirror
DOE fees for FOIA requests rather than creating a different fee
structure.
For the above reasons, DOE certifies that the rule does not have a
significant economic impact on a substantial number of small entities.
D. Review Under the Paperwork Reduction Act
This rule does not contain a collection of information subject to
the Office of Management and Budget (OMB) approval under the Paperwork
Reduction Act.
E. Review Under the National Environmental Policy Act
DOE has determined that this action meets the requirements for a
Categorical Exclusion A-5 of Appendix A to Subpart D, 10 CFR part 1021,
which applies to a rulemaking that addresses or amends an existing rule
or regulation that does not change the environmental effect of the rule
or regulation being amended.
This rule is necessary because changes in DOE and national policies
have rendered portions of the existing rule outdated. In addition,
changes were needed to clarify requirements and allow agencies more
flexibility in implementing programs for RD and FRD.
The changes are administrative in nature reflecting changes to
responsibilities and procedures, and the rule does not change the
environmental effect of the rule. Accordingly, neither an environmental
assessment nor an environmental impact analysis is required.
F. Review Under E.O. 13132, ``Federalism''
E.O. 13132 (64 FR 43255, August 4, 1999), imposes certain
requirements on agencies formulating and implementing policies or
regulations that preempt
[[Page 66007]]
State law or that have federalism implications. Agencies are required
to develop a process to ensure meaningful and timely input by State and
local officials in the development of regulatory policies that have
``federalism implications.'' Policies that have federalism implications
are defined in the E.O. to include regulations that have ``substantial
direct effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.'' On March 7,
2011, DOE published a statement of policy describing the
intergovernmental consultation process it will follow in the
development of such regulations (65 FR 13735, March 14, 2000).
DOE has examined this rule and has determined that it does not have
a substantial direct effect on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government. No further
action is required by E.O. 13132.
G. Review Under E.O. 12988, ``Civil Justice Reform''
Section 3 of E.O. 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. DOE
has determined that this regulatory action meets the requirements of
section 3(a) and (b) of E.O. 12988.
H. Review Under the Unfunded Mandates Reform Act of 1995
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub.
L. 104-4), requires each Federal agency to assess the effects of
Federal regulatory action on state, local and tribal governments and
the private sector. For proposed regulatory actions likely to result in
a rule that may cause expenditures by State, local, and Tribal
governments, in the aggregate, or by the private sector of $100 million
or more in any one year (adjusted annually for inflation), section 202
of UMRA requires a Federal agency to publish estimates of the resulting
costs, benefits, and other effects on the national economy. UMRA also
requires Federal agencies to develop an effective process to permit
timely input by elected officers of State, local, and Tribal
governments on a proposed ``significant intergovernmental mandate.'' In
addition, UMRA requires an agency plan for giving notice and
opportunity for timely input to small governments that may be affected
before establishing a requirement that might significantly or uniquely
affect them. On March 18, 1997, DOE published a statement of policy on
its process for intergovernmental consultation under the UMRA (62 FR
12820, March 18, 1997). This policy is available at DOE General
Counsel's website (http://energy.gov/gc/office-general-counsel). This
part contains neither an intergovernmental mandate, nor a mandate that
may result in the expenditure of $100 million or more in any year, so
these requirements do not apply.
I. Review Under E.O. 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use''
E.O. 13211 (66 FR 28355, May 22, 2001) requires Federal agencies to
prepare and submit to the Office of Information and Regulatory Affairs
(OIRA), OMB, a Statement of Energy Effects for any proposed significant
energy action. A ``significant energy action'' is defined as any action
by an agency that promulgates or is expected to lead to the
promulgation of a final rule, and that: (1) Is a significant regulatory
action under E.O. 12866, or any successor order; and (2) is likely to
have a significant adverse effect on the supply, distribution, or use
of energy; or (3) is designated by the Administrator of OIRA as a
significant energy action. For any proposed significant energy action,
the agency must give a detailed statement of any adverse effects on
energy supply, distribution, or use should the proposal be implemented,
and of reasonable alternates to the action and their expected benefits
on energy supply, distribution, and use. This rule is not a significant
energy action, nor has it been designated as such by the Administrator
of OIRA. Accordingly, DOE has not prepared a Statement of Energy
Effects.
J. Review Under the Treasury and General Government Appropriations Act,
2001
The Treasury and General Government Appropriations Act, 2001 (44
U.S.C. 3516, note) provides for agencies to review most disseminations
of information to the public under guidelines established by each
agency pursuant to general guidelines issued by OMB. OMB's guidelines
were published at 67 FR 8452 (February 22, 2002), and DOE's guidelines
were published at 67 FR 62446 (October 7, 2002). DOE has reviewed this
rule under the OMB and DOE guidelines and has concluded that it is
consistent with applicable policies in those guidelines.
K. Review Under the Treasury and General Government Appropriations Act
of 1999
Section 654 of the Treasury and General Government Appropriations
Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family
Policymaking Assessment for any proposed rule or policy that may affect
family well-being. This rule would not have any impact on the autonomy
or integrity of the family as an institution. Accordingly, DOE has
concluded that it is not necessary to prepare a Family Policymaking
Assessment.
L. Congressional Notification
As required by 5 U.S.C. 801, DOE will report to Congress on the
promulgation of this rule prior to its effective date. The report will
state that it has been determined that the rule is a ``major rule'' as
defined by 5 U.S.C. 804(2).
IV. Approval by the Office of the Secretary
The Office of the Secretary of Energy has approved the publication
of this final rule.
List of Subjects in 10 CFR Part 1045
Classified information, Declassification, Formerly restricted data,
Restricted data, Transclassified foreign nuclear information.
Issued in Washington, DC, on November 28, 2018.
Matthew B. Moury,
Associate Under Secretary for Environment, Health, Safety and Security.
0
For the reasons stated in the preamble, DOE revises part 1045 of Title
10 of the Code of Federal Regulations to read as follows:
PART 1045--NUCLEAR CLASSIFICATION AND DECLASSIFICATION
Subpart A--Introduction
Sec.
1045.5 What is the purpose of this part?
1045.10 To whom does this part apply?
1045.15 What is the process for submitting a question or a comment
on any of the
[[Page 66008]]
policies and procedures contained in this part?
1045.20 How does an agency request an exemption or equivalency to
meet a provision in this part?
1045.25 What actions can be taken against a person who violates the
requirements in this part?
1045.30 What definitions apply to this part?
1045.35 What acronyms are commonly used in this part?
Subpart B--Management of Restricted Data (RD), Formerly Restricted Data
(FRD), and Transclassified Foreign Nuclear Information (TFNI)
Classification Programs
1045.40 Is there an official in each agency with access to RD, FRD,
or TFNI who manages the agency's RD, FRD, or TFNI program to ensure
the requirements in this part are met?
1045.45 What are the responsibilities of DOE officials and
personnel, and the officials and personnel of other agencies, under
this part?
1045.50 [Reserved].
1045.55 When are RD, FRD, and TFNI considered for declassification?
1045.60 Does an unauthorized public release of RD, FRD, or TFNI
result in its declassification?
1045.65 What are the responsibilities of a person who has access to
RD, FRD, or TFNI if they see information in the open literature that
they think is RD, FRD, or TFNI?
Subpart C--Determining if Information is RD, FRD, or TFNI
1045.70 How is information initially determined to be RD?
1045.75 Are there prohibitions against information being classified,
remaining classified, or prevented from being declassified as RD,
FRD, or TFNI?
1045.80 What are the classification and declassification
presumptions?
1045.85 How is information determined to be FRD or TFNI and can FRD
or TFNI be returned to the RD category?
1045.90 Can information generated by private entities that is not
owned by, produced by, or controlled by the U.S. Government be
classified as RD?
1045.95 What are the criteria used to assign levels to RD, FRD, or
TFNI?
1045.100 How are RD, FRD, and TFNI declassified?
1045.105 What is the method to request the declassification of RD,
FRD or TFNI?
1045.110 How are challenges to the classification and
declassification of RD, FRD, or TFNI submitted and processed?
Subpart D--Classifying and Declassifying Matter Containing RD, FRD, or
TFNI
1045.115 Who is authorized to derivatively classify matter that
contains RD, FRD, or TFNI?
1045.120 What training is required for persons who have access to or
who derivatively classify matter containing RD, FRD, or TFNI?
1045.125 What is the process for reviewing and derivatively
classifying matter that potentially contains RD, FRD, or TFNI?
1045.130 How does an authorized person derivatively classify matter
containing RD, FRD, or TFNI?
1045.135 Can a person make an RD, FRD, or TFNI classification
determination if applicable classification guidance is not
available?
1045.140 How is matter containing RD, FRD, or TFNI, marked?
1045.145 Who must review output from a classified IT system that is
marked as RD, FRD, or TFNI?
1045.150 Can anyone remove the RD, FRD, or TFNI portions and
markings to produce an NSI or unclassified version of the matter?
1045.155 How is matter marked as containing RD, FRD, or TFNI
declassified?
1045.160 When the RD, FRD, or TFNI is removed from matter, what
action must be taken if the matter still contains NSI?
1045.165 Once matter marked as RD, FRD, or TFNI is declassified, how
is it marked?
Subpart E--Government-Wide Procedures for Handling Freedom of
Information Act (FOIA) and Mandatory Declassification Review (MDR)
Requests for Matter Marked as or Potentially Containing RD, FRD, or
TFNI
1045.170 What is the purpose of this subpart?
1045.175 How must agencies process FOIA and MDR requests for matter
that is marked as or potentially contains RD, FRD, or TFNI?
1045.180 What is the procedure if an agency receives an appeal to a
FOIA or MDR concerning the denial of RD, FRD, or TFNI?
Subpart F--DOE-Specific Procedures for MDR Requests
1045.185 What is the purpose of this subpart?
1045.190 How does the public submit an MDR for DOE classified
matter?
1045.195 Is any matter exempt from MDR requests?
1045.200 Is there a cost for an MDR review?
1045.205 How does DOE conduct an MDR review?
1045.210 How does a person submit an appeal if DOE withholds
classified information in an MDR response?
1045.215 How does DOE process an MDR appeal for DOE matter
containing NSI?
1045.220 How does DOE process an MDR appeal for matter containing
RD, FRD, or TFNI?
1045.225 Are DOE responses to MDR requests available to the public?
Authority: 42 U.S.C. 2011; E.O. 13526, 75 FR 705, 3 CFR 2010
Comp., pp. 298-327.
Subpart A--Introduction
Sec. 1045.5 What is the purpose of this part?
(a) This part implements sections 141, 142, and 146 of the Atomic
Energy Act, as amended (42 U.S.C. 2011 et seq.) (AEA) and describes the
procedures to be used by the public in questioning or appealing DOE
decisions regarding the classification of NSI under E.O. 13526, and 32
CFR part 2001, Classified National Security Information. This part is
divided into six subparts:
(1) Subpart A--``Introduction'' specifies to whom these rules
apply, describes how to submit comments or suggestions concerning the
policies and procedures in this part, describes how to request an
exemption from or an equivalency to a provision in this part; outlines
sanctions imposed for violating the policies and procedures in this
part; defines key terms; and lists acronyms used in this part.
(2) Subpart B--``Program Management of Restricted Data (RD),
Formerly Restricted Data (RD), and Transclassified Foreign Nuclear
Information (TFNI) Classification Programs'' specifies responsibilities
of officials in DOE and other agencies in the role of identifying RD,
transclassifying RD to FRD or to TFNI, and returning FRD or TFNI to RD;
discusses the systematic declassification review of information/matter
containing RD, FRD, or TFNI; and describes the ``no comment'' policy.
(3) Subpart C--``Determining if Information is RD, FRD, or TFNI''
describes how information is initially classified as RD,
transclassified as FRD or TFNI, or declassified; lists criteria for
evaluating whether RD, FRD, or TFNI should be classified or
declassified; describes the prohibitions against classifying
information as RD, FRD, or TFNI; lists areas of information that are
presumed to be RD or unclassified; specifies how privately generated
information may be classified as RD; defines the classification levels;
describes how to submit proposals for RD, FRD, and TFNI; describes how
to challenge the classification or declassification of RD, FRD, or
TFNI; and describes the issuance of classification guides to promulgate
classification and declassification determinations.
(4) Subpart D--``Classifying and Declassifying Matter Containing
RD, FRD, or TFNI'' describes who has the authority to classify and
declassify matter containing RD, FRD, or TFNI; the appointment and
training of these individuals; discusses the use of classified
addendums; describes classification by association or compilation;
specifies who must review matter that potentially contains RD, FRD, or
TFNI intended for public release; describes what to do if an RD
Derivative Classifier or a person trained to classify matter containing
TFNI cannot locate classification guidance to make a determination;
describes the
[[Page 66009]]
classification and declassification marking requirements; and states
the prohibition against the automatic declassification of matter
containing RD, FRD, or TFNI.
(5) Subpart E--``Government-wide Procedures for Handling Freedom of
Information Act (FOIA) and Mandatory Declassification Review (MDR)
Requests for Matter Marked as or Potentially Containing RD, FRD, or
TFNI'' describes how agencies process FOIA or MDR requests and appeals
for matter marked as or potentially containing RD, FRD, or TFNI.
(6) Subpart F--``DOE Procedures for MDR Requests'' describes how
DOE FOIA and MDR requests and appeals for matter marked as or
potentially containing NSI, RD, FRD, or TFNI are submitted and
processed.
(b) [Reserved].
Sec. 1045.10 To whom does this part apply?
(a) Subparts A, B, C, and D apply to--
(1) Any person or agency with access to RD, FRD, or TFNI;
(2) Any person or agency who generates information that has the
potential to be RD, FRD, or TFNI; and
(3) Any person or agency who generates matter that potentially
contains RD, FRD, or TFNI.
(b) Subpart E applies to government agencies who receive Freedom of
Information Act (FOIA) or Mandatory Declassification Review (MDR)
requests for matter that is marked as or potentially contains RD, FRD,
or TFNI.
(c) Subpart F applies to DOE and to any person submitting a
Mandatory Declassification Review request for DOE matter.
Sec. 1045.15 What is the process for submitting a question or a
comment on any of the policies and procedures contained in this part?
Any person who has a question or a comment on DOE's classification
and declassification policies and procedures under this part may submit
the question or comment in writing to the Director, Office of
Classification, AU-60/Germantown Building, U.S. Department of Energy,
1000 Independence Avenue SW, Washington, DC 20585. The correspondence
should contain the question or comment, include applicable background
information and/or citations, as appropriate, and must provide an
address for the response. The Director will make every effort to
respond within 60 days. Under no circumstance will anyone be subject to
retribution for asking a question or making a comment regarding DOE's
classification and declassification policies and procedures.
Sec. 1045.20 How does an agency request an exemption or equivalency
to meet a provision in this part?
The agency must submit a request for an exemption or an equivalency
to the procedural provisions under this part in writing to the
Director, Office of Classification, AU-60/Germantown Building, U.S.
Department of Energy, 1000 Independence Avenue SW, Washington, DC
20585. The request must provide all relevant facts, to include any
applicable citations, describing the procedure and why the exemption or
equivalency is required. If the request is for an equivalency, it must
include a proposed alternate procedure to meet the intent of the
procedure for which the equivalency is being requested.
Sec. 1045.25 What actions can be taken against a person who violates
the requirements in this part?
Any knowing, willful, or negligent action contrary to the
requirements of this part that results in the misclassification of
information is subject to appropriate sanctions. Such sanctions may
range from administrative sanctions (e.g., reprimand, suspension,
termination) to civil or criminal penalties, depending on the nature
and severity of the action as determined by the appropriate authority
in accordance with applicable laws. Other violations of the policies
and procedures in this part may be grounds for administrative sanctions
as determined by an appropriate authority.
Sec. 1045.30 What definitions apply to this part?
The following definitions apply to 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 has access to RD, FRD, or TFNI
information or matter.
Associate RD Management Official (ARDMO) means a person appointed
in accordance with agency policy to assist the RD Management Official
(RDMO) with managing the implementation of this part within that
agency.
Associate Under Secretary for Environment, Health, Safety and
Security means DOE's Associate Under Secretary for Environment, Health,
Safety and Security or any person to whom the Associate Under
Secretary's duties are delegated.
Atomic Energy Act (AEA) means the Atomic Energy Act of 1954, as
amended (42 U.S.C. 2011 et seq.).
Automatic Declassification means the declassification of NSI based
on a specific date, event, or timeframe, in accordance with E.O. 13526,
or prior or successor orders.
Classification means the act or process by which information or
matter is determined to require protection as RD, FRD, or TFNI, under
the AEA or as NSI under E.O. 13526 or prior or successor orders.
Classification category identifies whether information is
classified by statute or E.O. The classification categories are: RD,
FRD, TFNI (classified by the AEA), and NSI (classified by E.O.).
Classification guidance means any instruction or source approved by
an appropriate authority that prescribes the classification of specific
information (e.g., classification guide, classification bulletins,
portion-marked source documents).
Classification guide means a written record of detailed
instructions, approved by an appropriate authority, that explicitly
identifies whether specific information is classified, usually
concerning a system, plan, project, or program. If classified, the
level and category of classification assigned to such information is
specified. For NSI, the classification duration is also specified.
Classified information means:
(1) Information determined to be RD, FRD, or TFNI under the AEA and
this part, or
(2) Information that has been determined pursuant to E.O. 13526 or
any predecessor order to require protection against unauthorized
disclosure and is marked to indicate its classification status when in
documentary form.
Classification level means one of the three following designators
for RD, FRD, and TFNI:
(1) Top Secret (TS) is applied to RD, FRD, or TFNI that is vital to
the national security and the unauthorized disclosure of which could
reasonably be expected to cause exceptionally grave damage to the
national security that the appropriate official is able to identify or
describe.
(2) Secret (S) is applied to RD, FRD, or TFNI, the unauthorized
disclosure of which could reasonably be expected to cause serious
damage to the national security that the appropriate official is able
to identify or describe.
(3) Confidential (C) is applied to RD, FRD, or TFNI 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.
[[Page 66010]]
Classified matter means anything in physical or electronic form
that contains or reveals classified information.
Contractor means any industrial, educational, commercial, or other
entity, grantee, or licensee at all tiers, including a person 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 an appropriate authority
that:
(1) Information no longer warrants protection against unauthorized
disclosure in the interest of the national security; or
(2) Matter no longer contains or reveals classified information.
DOE means the Department of Energy.
Director, Office of Classification, means DOE's Director, Office of
Classification.
Downgrading means:
(1) A decision by DOE that information classified as RD or TFNI is
classified at a lower level than currently identified in a DOE or joint
classification guide;
(2) A joint decision by DOE and the Department of Defense (DoD)
that FRD is classified at a lower level than currently identified in a
DOE or joint classification guide; or
(3) A decision by an RD Derivative Classifier (or in the case of
TFNI, a person trained to derivatively classify TFNI) based on
classification guides and bulletins that matter containing RD, FRD, or
TFNI is classified at a lower level than currently marked.
(4) A decision, based on a DOE or joint classification guide, by an
authorized person that matter containing RD, FRD, or TFNI is classified
at a less sensitive category (e.g., RD to FRD, RD to NSI) than
currently marked.
Formerly Restricted Data (FRD) means classified information removed
from the RD category under the AEA (section 142(d)), after DOE and DoD
jointly determine it is related primarily to the military utilization
of nuclear weapons and that the information can be adequately protected
in a manner similar to NSI.
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, as opposed to the
medium in which it is contained.
Initial determination means the process used by the Director,
Office of Classification, to determine if new information is RD. New
information that falls under the definition of RD is presumed
classified as RD until the Director, Office of Classification makes the
initial determination as to its classification status.
Interagency Security Classification Appeals Panel (ISCAP) means a
Panel established and administered pursuant to E.O. 13526 and prior or
successor E.O.s to perform functions specified in the order with
respect to NSI.
Matter means any combination of physical documents, electronic
instances of information or data (including email) at rest or in
transit, or information or data presentation or representation
regardless of physical form or characteristics.
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 E.O. 13526 or prior or successor E.O.s to
require protection against unauthorized disclosure and is marked to
indicate its classification status.
Nuclear weapon means atomic weapon.
Originating activity, for the purpose of RD, FRD, or TFNI, means
any development of specific matter (e.g., report, guide) within an
organization, working group, or between persons, including coordination
of a product for classification review.
Person means:
(1) Any individual, corporation, partnership, firm, association,
trust, estate, public or private institution, group, Government agency
other than the Commission, any State or any political subdivision of,
or any political entity within a State, any foreign government or
nation or any political subdivision of any such government or nation,
or other entity; and
(2) Any legal successor, representative, agent, or agency of the
foregoing.
Portion marking means the application of certain classification
markings to reasonably segregable sections of matter (e.g., paragraphs,
phrases, sentences). This also includes any markings required by
national policy to control portions of unclassified information.
Restricted Data (RD) means all data concerning the design,
manufacture, or utilization of atomic weapons; the production of
special nuclear material; or the use of special nuclear material in the
production of energy, except for data declassified or removed from the
RD category pursuant to section 142 of the AEA.
RD Derivative Classifier means a person specifically trained and,
when required, designated to derivatively classify matter containing RD
or FRD in areas in which they have programmatic expertise.
RD Management Official (RDMO) means a person appointed by an agency
to be responsible for managing the implementation of this part within
the agency.
Secretary means the Secretary of Energy.
Source document means existing classified, portion-marked matter
that contains classified information that is incorporated, paraphrased,
restated, or generated in new form into new matter.
Special nuclear materials means special nuclear material as defined
in the AEA.
Transclassified Foreign Nuclear Information (TFNI) means:
(1) Information concerning the nuclear energy programs of other
nations (including subnational groups) that is removed from the RD
category under the AEA (section 142(e)) after DOE and the Director of
National Intelligence (DNI) jointly determine that the information is
necessary to carry out intelligence-related activities under the
National Security Act of 1947, as amended, and that the information can
be adequately protected in a manner similar to NSI. TFNI includes
information removed from the RD category by past agreements between DOE
and the Director of Central Intelligence or past and future agreements
with the DNI.
(2) TFNI does not include:
(i) RD or FRD concerning United Kingdom (U.K.) or Canadian
programs;
(ii) Any U.S. RD or FRD, including that which the U.S. has
transmitted to other nations;
(iii) Any evaluation of foreign information based on the use of
U.S. RD or FRD unless also specifically transclassified to TFNI or any
evaluation that could reveal such data concerning the U.S., U.K., or
Canadian programs;
(iv) Classified atomic energy information received from a foreign
government pursuant to an agreement imposing security measures
equivalent for those in effect for RD; or
(v) Classified information on the Tripartite Gas Centrifuge and its
successor programs, including data on the gas centrifuge work of each
of the participants.
TFNI guideline means a policy document that describes information
[[Page 66011]]
which meets the TFNI criteria for various collection assets.
Upgrading means:
(1) A decision by DOE that information classified as RD or TFNI is
classified at a higher level than currently identified in a DOE or
joint classification guide;
(2) A joint decision by DOE and DoD that FRD is classified at a
higher level than currently identified in a DOE or joint classification
guide; or
(3) A decision by an RD Derivative Classifier, (or in the case of
TFNI, a person trained to classify TFNI) based on classification
guidance, that matter containing RD, FRD, or TFNI is classified at a
higher level or category than currently marked. This includes
correcting the classification level or category of matter that was
never marked as well as matter erroneously marked as unclassified.
Sec. 1045.35 What acronyms are commonly used in this part?
The following acronyms are commonly used throughout this part:
AEA--The Atomic Energy Act of 1954, as amended (42 U.S.C. 2011 et seq.)
ARDMO--Associate RD Management Official
C--Confidential
CD--Compact Disk
CFR--Code of Federal Regulations
CUI--Controlled Unclassified Information
DCI--Director of Central Intelligence
DNI--Director of National Intelligence
DoD--Department of Defense
DOE--Department of Energy
E.O.--Executive order
FOIA--Freedom of Information Act
FRD--Formerly Restricted Data
IC--Intelligence Community
ICD--Intelligence Community Directive
ICPG--Intelligence Community Policy Guidance
ISCAP--Interagency Security Classification Appeals Panel
MDR--Mandatory Declassification Review
NNSA--National Nuclear Security Administration
NRC--Nuclear Regulatory Commission
NSI--National Security Information
Pub. L.--Public Law
RD--Restricted Data
RDMO--RD Management Official
S--Secret
TFNI--Transclassified Foreign Nuclear Information
U.K.--United Kingdom
Subpart B--Management of Restricted Data (RD), Formerly Restricted
Data (FRD), and Transclassified Foreign Nuclear Information (TFNI)
Classification Programs
Sec. 1045.40 Is there an official in each agency with access to RD,
FRD, or TFNI who manages the agency's RD, FRD, or TFNI program to
ensure the requirements in this part are met?
Yes. The head of each agency with access to RD, FRD, or TFNI:
(a) Must appoint at least one Federal official to serve as an RDMO
who ensures the proper implementation of this part within his or her
agency and serves as the primary point of contact for coordination with
the Director, Office of Classification, for classification and
declassification issues involving RD, FRD, and TFNI. Within DoD, a
minimum of at least one RDMO must be appointed in each military
department.
(b) May appoint or authorize the RDMO to appoint one or more
Associate RDMOs if there is more than one organization that has access
to RD, FRD, or TFNI. In such cases, the RDMO is the lead official and
the primary point of contact with the Director, Office of
Classification.
(c) Must ensure contact information for each RDMO and ARDMO is sent
to the Director, Office of Classification, within 30 days of the
appointment.
Sec. 1045.45 What are the responsibilities of DOE officials and
personnel, and the officials and personnel of other agencies, under
this part?
(a) The Secretary or Deputy Secretary of Energy must determine in
writing whether information privately generated by persons in the
United States but not under a Government contract is classified as RD.
This responsibility cannot be delegated.
(b) The Associate Under Secretary for Environment, Health, Safety
and Security:
(1) Determines if RD and TFNI may be published without undue risk
to the common defense and security and declassified;
(2) Jointly with DoD, determines which information in the RD
category relating primarily to the military utilization of nuclear
weapons may be transclassified to the FRD category;
(3) Jointly with DoD, determines which information in the FRD
category may be removed from that category and returned to the RD
category and notifies all appropriate agencies as necessary of the
change;
(4) Jointly with DoD, declassifies FRD and RD relating primarily to
the military utilization of nuclear weapons that may be published
without undue risk to the common defense and security;
(5) Jointly with the DNI, determines which information in the RD
category concerning nuclear energy programs of foreign governments may
be transclassified to the TFNI category to carry out the provisions of
the National Security Act of 1947, as amended;
(6) Jointly with the DNI, determines which information in the TFNI
category may be removed from that category and returned to the RD
category and notifies all appropriate agencies as necessary of the
change;
(7) Considers declassification proposals received from the public
or other agencies or their contractors concerning RD, FRD, and TFNI,
and coordinates responses with the appropriate agencies;
(8) Makes the final appeal determination concerning the denial of
any RD, FRD, or TFNI contained in matter requested under statute or
Executive Order; and
(9) Makes the final appeal determination for any formal
classification challenges for RD, DOE FRD, and TFNI.
(c) The Director, Office of Classification:
(1) Issues the Government-wide requirements for the classification
and declassification of RD, FRD, and TFNI in accordance with the AEA
and this part;
(2) Grants exemptions and equivalencies to provisions of this part;
(3) Develops and interprets policies to implement RD, FRD, and TFNI
classification programs in coordination with DoD for FRD, as
appropriate;
(4) Determines whether nuclear-related information is RD;
(5) Determines if new information in a previously declassified
subject area warrants classification as RD based on the criteria in
Sec. 1045.70, except where the information has been widely
disseminated in the open literature;
(6) Assigns a classification level to RD and TFNI, and, jointly
with DoD, to FRD, that reflects the sensitivity of the information to
the national security;
(7) Serves as the Denying Official for RD, DOE FRD, and TFNI
portions of records requested under statute or Executive Order;
(8) Establishes a system for processing, tracking, and recording
formal classification challenges and declassification proposals made by
persons with access to RD, FRD, and TFNI;
(9) Considers challenges to RD, FRD, and TFNI, coordinates
challenges with other agencies, as appropriate, and makes the initial
determination
[[Page 66012]]
pertaining to the challenge of a classification determination
concerning RD, DOE FRD, or TFNI;
(10) Delegates the authority to declassify matter containing RD,
FRD, or TFNI to qualified individuals in other Government agencies;
(11) Develops and distributes classification guides to promulgate
classification and declassification determinations for RD, FRD, and
TFNI, and jointly develops classification guides and TFNI guidelines
with DoD, the Nuclear Regulatory Commission (NRC), the National
Aeronautics and Space Administration, and other agencies in the RD,
FRD, or TFNI categories or subject areas for which DOE and the agencies
share responsibility;
(12) Reviews classification guides that contain RD and jointly
reviews classification guides that contain FRD topics with the
appropriate DoD authority (as specified in DoD Instruction 5210.02 or
successor instructions) that are developed by other agencies;
(13) Reviews TFNI guidelines and classification guides containing
TFNI topics developed by other agencies;
(14) Assists agencies with the implementation of RD, FRD, and TFNI
classification programs to comply with this part;
(15) In consultation with the agency RDMO, determines when to
conduct on-site reviews of agency programs established under this part
to evaluate the agency's implementation of the requirements;
(16) Coordinates on-site reviews of the Intelligence Community (IC)
with the DNI;
(17) Reviews agency implementing policies;
(18) Develops training materials related to implementing this part
and provides these materials to RDMOs and other appropriate persons;
(19) Reviews any RD-, FRD-, or TFNI-related training material
submitted by other agencies to ensure consistency with current
policies;
(20) Periodically hosts a meeting of RDMOs to disseminate
information or address issues; and
(21) Responds to questions and considers comments received from any
person, including the public, concerning RD, FRD, and TFNI
classification and declassification policies and procedures.
(d) DoD jointly with DOE:
(1) Determines which information in the RD category relating
primarily to the military utilization of nuclear weapons may be
transclassified to the FRD category;
(2) Determines which information in the FRD category may be removed
from that category and returned to the RD category;
(3) Assigns a classification level to FRD that reflects the
sensitivity of the information to the national security;
(4) Prepares classification guides for FRD; and
(5) Declassifies FRD and RD relating primarily to the military
utilization of nuclear weapons that may be published without undue risk
to the common defense and security.
(6) Considers challenges to FRD, and coordinates challenges with
other agencies, as appropriate.
(e) The DNI jointly with DOE:
(1) Determines which information in the RD category concerning
nuclear energy programs of foreign governments may be transclassified
to the TFNI category to carry out the provisions of the National
Security Act of 1947, as amended;
(2) Determines which information in the TFNI category may be
removed from that category and returned to the RD category; and
(3) Coordinates IC Directives (ICD) and IC Policy Guidance (ICPG)
concerning RD, FRD, and TFNI to ensure policies are consistent;
(f) NRC:
(1) Jointly with DOE, develops classification guides for programs
over which both agencies have cognizance; and
(2) Ensures the review and proper classification of matter
containing RD by RD Derivative Classifiers that is generated by NRC or
by its licensed or regulated facilities and activities.
(g) Heads of Agencies with access to RD, FRD, or TFNI:
(1) Ensure that matter containing RD, FRD, and TFNI is reviewed by
a person with appropriate authority and properly classified.
(2) Must appoint at least one RDMO to manage the implementation of
this part within the agency;
(3) Ensure implementing directives for this part are developed,
submitted to DOE for review prior to issuance, to ensure consistency
with this part, and promulgated;
(4) Should periodically review holdings containing RD, FRD, or TFNI
that are likely to have a high degree of public interest and a
likelihood of declassification. If any matter containing RD, FRD, or
TFNI is identified for declassification, ensure coordination for the
declassification of matter marked as RD, FRD, or TFNI with DOE or DoD,
as appropriate;
(5) Develop and promulgate procedures for persons with access to RD
or FRD to submit classification challenges and declassification
proposals for guide topics that are RD or FRD or for matter containing
RD or FRD. If the agency possesses TFNI, develops and promulgates
procedures for persons with access to TFNI to submit classification
challenges and declassification proposals for guide topics that are
TFNI or matter containing TFNI;
(6) Ensure joint classification guides for programs over which DOE
and the agency have cognizance are developed;
(7) Ensure that any classification guides the agency develops or
revises that contain RD or FRD, topics are coordinated with the
Director, Office of Classification prior to issuance, to ensure
consistency with DOE and DoD guidance;
(8) Ensure that any TFNI guidelines or classification guides
containing TFNI topics the agency develops or revises are reviewed by
the Director, Office of Classification, prior to issuance for
consistency with policies developed by DOE and current
transclassification agreements;
(9) Ensure that agency classification guides containing RD, FRD, or
TFNI topics are reviewed for consistency with current DOE
classification guides at least once every 5 years and that appropriate
revisions are made, if necessary;
(10) Ensure that NSI records of permanent historical value are
reviewed as required under the ``Special Historical Records Review Plan
(Supplement)'' established under Public Law 105-261 and 106-65 or
subsequent statutes;
(11) Ensure that each RDMO and Federal RD Derivative Classifier
whose duties involve the classification of a significant amount of
matter containing RD or FRD have his or her personnel performance
evaluated with respect to such classification activities; and
(12) Ensure that contracting officers are notified of any contracts
that have access to or generate matter containing RD, FRD, or TFNI, and
that the requirements of this part are incorporated into those
contracts.
(13) Ensure DOE classification guides, classification bulletins and
matter containing DOE classification guide topics that is not itself
classified is safeguarded and its dissemination is limited to persons
with a need to know.
(h) Agency RDMOs:
(1) Ensure that procedures for training and designating ARDMOs and
RD Derivative Classifiers within the agency are established;
[[Page 66013]]
(2) Ensure that persons with access to RD, FRD, and TFNI are
trained in accordance with Sec. 1045.120;
(3) Ensure that RD Derivative Classifiers are designated and
trained in accordance with Sec. Sec. 1045.115 and 1045.120,
respectively;
(4) Ensure that persons who derivatively classify matter containing
TFNI are trained in accordance with Sec. 1045.120;
(5) Ensure that RD Derivative Classifiers and persons who
derivatively classify TFNI have access to any classification guides
needed;
(6) Ensure that a periodic review of a sample of the agency's RD,
FRD, and TFNI derivative classification determinations is conducted
that evaluates that each determination was made by appropriately
trained and (when required) designated employees acting within his or
her authority, that the determination is accurate, and that the
markings are applied correctly;
(7) In consultation with the Director, Office of Classification
determine when to conduct on-site reviews of their agency program
established under this part to evaluate the agency's implementation of
the requirements; and
(8) Cooperate with and provide information as necessary to the
Director, Office of Classification, to fulfill their responsibilities
under this part.
(i) RD Derivative Classifiers:
(1) Must receive training prescribed by Sec. 1045.120;
(2) Must use approved DOE or joint classification guides, in the
subject areas in which they have programmatic expertise, or an
applicable portion-marked source document as the basis for derivative
decisions to classify or upgrade matter containing RD or FRD; and
(3) Must use DOE classification guides and bulletins, joint DOE-
agency classification guides, or agency classification guides
containing RD or FRD topics that have been coordinated with DOE as the
basis to downgrade the level of matter containing RD or FRD. Source
documents must not be used as a basis to downgrade matter containing RD
or FRD;
(4) Must not downgrade the category of matter containing RD, FRD,
or TFNI (e.g., RD to NSI, FRD to NSI), unless granted this authority by
DOE for RD or TFNI or by DOE or DoD for FRD;
(5) Must not declassify matter containing RD, FRD, or TFNI unless
delegated this authority by DOE for RD or TFNI, or by DOE or DoD for
FRD; and
(6) Can remove the RD, FRD, and TFNI portions from a portion-marked
source document in accordance with Sec. 1045.150.
(j) Persons who derivatively classify matter containing TFNI:
(1) Must receive training prescribed by Sec. 1045.120;
(2) Must use approved TFNI guidelines, DOE or joint classification
guides in the subject areas in which they have programmatic expertise,
or an applicable portion-marked source document as the basis for
derivative decisions to classify or upgrade matter containing TFNI; and
(3) Must not declassify or downgrade the category of matter
containing TFNI unless delegated this authority by DOE.
(k) Persons with access to RD, FRD, or TFNI:
(1) Must be trained in accordance with Sec. 1045.120;
(2) Must submit matter that potentially contains RD, FRD, or TFNI
to a person with the appropriate authority for review in accordance
with Sec. 1045.125;
(3) Must submit matter that potentially contains RD, FRD, or TFNI
to a person with the appropriate authority for declassification or
public release.
Sec. 1045.50 [Reserved].
Sec. 1045.55 When are RD, FRD, and TFNI considered for
declassification?
RD, FRD, and TFNI information and matter are considered for
declassification during several processes.
(a) DOE reviews all classification guides containing RD, FRD, or
TFNI topics at least once every 5 years to determine if information
identified as RD, FRD, or TFNI still meets the criteria for
classification under Sec. 1045.70. If RD, FRD, and TFNI information
contained in a classification guide does not meet the standards for
classification, the information is declassified.
(b) TFNI is no longer TFNI when comparable U.S. RD is declassified.
(c) Agencies with holdings containing RD, FRD, or TFNI should
periodically review holdings that are likely to have a high degree of
public interest and a likelihood of declassification. If any matter
containing RD, FRD, or TFNI is identified for declassification,
agencies must coordinate the declassification of matter marked as RD,
FRD, or TFNI with DOE or DoD, as appropriate.
(d) RD, FRD, or TFNI information or matter containing RD, FRD, or
TFNI in particular areas of public interest may be considered for
declassification if sufficient interest is demonstrated. Proposals for
the systematic review of given collections or subject areas must be
addressed to the Director, Office of Classification, AU-60/Germantown
Building, U.S. Department of Energy, 1000 Independence Avenue SW,
Washington, DC 20585.
(e) During the FOIA and MDR request process, agencies must refer
any responsive matter that is marked as or potentially contains RD,
FRD, or TFNI to DOE or DoD, as provided under Subpart F. During this
process, the information may be reviewed to determine it still meets
the standards for classification.
(f) The public and persons with access to RD, FRD, or TFNI may
submit a declassification proposal for RD, FRD, or TFNI under Sec.
1045.105.
Sec. 1045.60 Does an unauthorized public release of RD, FRD, or TFNI
result in its declassification?
The unauthorized disclosure of RD, FRD, or TFNI does not
automatically result in its declassification. However, if a disclosure
is sufficiently authoritative or credible, the Associate Under
Secretary for Environment, Health, Safety and Security will examine the
possibility of declassifying the information.
Sec. 1045.65 What are the responsibilities of a person with access to
RD, FRD, or TFNI, if they see information in the open literature that
they think is RD, FRD, or TFNI?
(a) A person with access to RD, FRD, or TFNI, must not confirm or
expand upon the classification status or technical accuracy of
information in the open literature that is RD, FRD, or TFNI or
suspected to be RD, FRD, or TFNI. Commenting on such information can
cause greater damage to national security by confirming its location,
classified nature, or technical accuracy.
(b) Because the open literature may contain information that is
still classified as RD, FRD, or TFNI, a person who has access to RD,
FRD, or TFNI who incorporates information from the open literature that
is potentially classified as RD, FRD, or TFNI into matter must ensure
the matter is reviewed as required under Sec. 1045.125 to ensure the
information incorporated is not classified.
Subpart C--Determining if Information is RD, FRD, or TFNI
Sec. 1045.70 How is information initially determined to be RD?
(a) For new information to be classified as RD it must fall under
the definition of RD that states such information concerns: The design,
manufacture, or utilization of nuclear weapons; the production of
special nuclear material; or the use of special
[[Page 66014]]
nuclear material in the production of energy, and the unauthorized
release of the information must reasonably be expected to cause undue
risk to the common defense and security.
(b) This initial determination is made by the Director, Office of
Classification after:
(1) Ensuring the information is not prohibited from being
classified under Sec. 1045.75;
(2) Considering whether the information falls within the
classification or declassification presumptions in Sec. 1045.80; and
(3) Evaluating the criteria in this paragraph.
(i) Whether the information is so widely known or readily apparent
to knowledgeable observers that its classification would cast doubt on
the credibility of classification programs;
(ii) Whether publication of the information would assist in the
development of countermeasures or otherwise jeopardize any U.S. weapon
or weapon system;
(iii) 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;
(iv) Whether information would assist terrorists to develop a
nuclear weapon, produce nuclear materials, or use special nuclear
material in a terrorist attack;
(v) Whether publication of the information would have a detrimental
effect on U.S. foreign relations;
(vi) 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
(vii) Whether publication of the information would benefit the
operation of any Government program by reducing operating costs or
improving public acceptance.
(c) In consideration of the analysis of the criteria of this
section, if there is significant doubt about the need to classify the
information, then the Director cannot make an initial determination to
classify the information.
Sec. 1045.75 Are there prohibitions against information being
classified, remaining classified, or prevented from being declassified
as RD, FRD, or TFNI?
(a) Yes. Information must not be classified or remain classified as
RD, FRD, or TFNI to accomplish the purposes described in paragraphs (b)
through (g) of this section. Persons must also not prevent information
from being declassified as RD, FRD, or TFNI for the purposes described
in paragraphs (b) through (g) of this section.
(b) Conceal violations of law, inefficiency, or administrative
error;
(c) Prevent embarrassment to a person, organization, or agency;
(d) Restrain competition;
(e) Prevent or delay the release of information that does not
require protection for the national security or nonproliferation
reasons;
(f) Unduly restrict dissemination by assigning an improper
classification level; or
(g) Prevent or delay the release of information bearing solely on
the physical environment or public or worker health and safety.
Sec. 1045.80 What are the classification and declassification
presumptions?
(a) The Director, Office of Classification and the Associate Under
Secretary of Environment, Health, Safety and Security consider the
presumptions in paragraph (b)(1) of this section before applying the
criteria in Sec. 1045.70. These presumptions concern information in
certain but not all nuclear-related areas that may generally be
presumed to be RD or are generally unclassified. The term ``generally''
here means that as a rule, but not necessarily in every case, the
information in the identified area is presumed classified or not
classified as 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.
(b) Information in the following areas is presumed to be RD:
(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 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.
(c) Information in the following areas is presumed to be
unclassified:
(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 nuclear weapons effects;
(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 the size of 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.
Sec. 1045.85 How is information determined to be FRD or TFNI and can
FRD or TFNI be returned to the RD category?
(a) To be eligible to become FRD or TFNI, information must first be
classified as RD in accordance with the AEA and this part. FRD and TFNI
are removed from and may be returned to the RD category under section
142 of the AEA. The process by which information is removed from the RD
category and placed into the FRD or TFNI category or returned to the RD
category is called
[[Page 66015]]
transclassification and involves the following decisions:
(1) For information to be transclassified from RD to the FRD
category, the Associate Under Secretary for Environment, Health, Safety
and Security and the appropriate official within DoD (as specified in
DoD Instruction 5210.02 or subsequent instructions) must jointly
determine that the information relates primarily to the military
utilization of nuclear weapons and can be adequately protected in a
manner similar to NSI.
(2) For information to be transclassified from RD to the TFNI
category, the Associate Under Secretary for Environment, Health, Safety
and Security and the DNI must jointly determine that information
concerning a foreign nuclear energy program that falls under the RD
definition must be removed from the RD category in order to carry out
the provisions of the National Security Act of 1947, as amended, and
can be adequately protected in a manner similar to NSI.
(b) The process to return FRD and TFNI to the RD category is as
follows:
(1) FRD may be returned to the RD category if the DOE and DoD
jointly determine that the programmatic requirements that caused the
information to be removed from the RD category no longer apply, the
information would be more appropriately protected as RD and returning
the information to the RD category is in the interest of national
security. DOE jointly with DoD must notify all appropriate agencies of
the change.
(2) TFNI may be returned to the RD category if the DOE and the DNI
jointly determine that the programmatic requirements that caused the
information to be removed from the RD category no longer apply, the
information would be more appropriately protected as RD and returning
the information to the RD category is in the interest of national
security. DOE jointly with the DNI must notify all appropriate agencies
of the change.
Sec. 1045.90 Can information generated by private entities that is
not owned by, produced by, or controlled by the U.S. Government be
classified as RD?
Yes. Under the AEA, DOE may classify information that is privately
generated (e.g., not under a Government contract) as RD. This may only
be done in writing by the Secretary or Deputy Secretary. This
responsibility cannot be delegated. Once such a determination is made,
DOE must notify the public through the Federal Register. This notice is
not required to reveal any details about the determination and must
protect the national security as well as the interests of the private
party.
Sec. 1045.95 What are the criteria used to assign levels to RD, FRD,
or TFNI?
(a) When the Director, Office of Classification, makes the initial
determination that information is RD, he or she determines the
appropriate level of the information based on the damage that would
occur if there was an unauthorized disclosure of the information. The
Director, Office of Classification, also determines the level for TFNI,
and, jointly with the appropriate DoD official (as specified in DoD
Instruction 5210.02 or successor instructions) determines the level for
FRD information.
(b) The three classification levels of RD, FRD, and TFNI are:
(1) Top Secret. Top Secret is applied to information that is vital
to the national security the unauthorized disclosure of which could
reasonably be expected to cause exceptionally grave damage to the
national security that the appropriate official is able to identify or
describe.
(2) Secret. Secret is applied to information, the unauthorized
disclosure of which could reasonably be expected to cause serious
damage to the national security that the appropriate official is able
to identify or describe.
(3) Confidential. 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.
Sec. 1045.100 How are RD, FRD, and TFNI declassified?
(a) This section addresses the declassification of information, not
derivatively classified matter. See Subpart D for requirements for the
declassification of matter containing RD, FRD, or TFNI.
(b) RD and TFNI are declassified by the Associate Under Secretary
for Environment, Health, Safety and Security by evaluating the criteria
in Sec. 1045.70. FRD requires the evaluation of the same criteria and
a joint decision by the Associate Under Secretary for Environment,
Health, Safety and Security and the appropriate DoD official (as
specified in DoD Instruction 5210.02 or subsequent instructions).
Sec. 1045.105 What is the method to request the declassification of
RD, FRD or TFNI?
(a) If a person believes RD, FRD, or TFNI should not be classified,
he or she may submit a declassification proposal. Proposals must be
submitted in writing and must include a description of the information
concerned and may include a reason for the request. If submitted by a
person with access to RD, FRD, or TFNI, the request must be submitted
through secure means. The proposal is processed as follows:
(b) The Associate Under Secretary for Environment, Health, Safety
and Security considers declassification proposals from the public and
Government agencies and their contractors for the declassification of
RD, FRD, and TFNI on an ongoing basis. For FRD, the Director, Office of
Classification, will coordinate the declassification proposal with the
appropriate DoD official (as specified in DoD Instruction 5210.02 or
subsequent instructions).
(c) Declassification proposals may be sent to the Associate Under
Secretary for Environment, Health, Safety and Security, AU-1/Forrestal
Building, U.S. Department of Energy, 1000 Independence Avenue SW,
Washington, DC 20585. For FRD, the proposal may be sent to the
Director, Office of Classification, or the appropriate DoD official (as
specified in DoD Instruction 5210.02 or subsequent instructions). DOE
and DoD must coordinate with one another concerning declassification
proposals for FRD.
Sec. 1045.110 How are challenges to the classification and
declassification of RD, FRD, or TFNI submitted and processed?
(a) Any person with access to RD, FRD, or TFNI who believes that
RD, FRD, or TFNI is improperly classified is encouraged and expected to
challenge the classification. The challenge may be to information RD,
FRD, or TFNI (e.g., a guide topic) or the classification status of
matter containing RD, FRD, or TFNI.
(b) Challenges are submitted in accordance with agency procedures.
(c) Each agency must establish procedures for a person to challenge
the classification status of RD, FRD, or TFNI if they believe that the
classification status is improper. These procedures must:
(1) Advise the person of their right to submit a challenge directly
to the Director, Office of Classification, AU-60/Germantown Building,
U.S. Department of Energy, 1000 Independence Avenue SW, Washington, DC
20585, at any time.
(2) Ensure that under no circumstances is an employee subject to
retribution for challenging the classification status of RD, FRD, or
TFNI;
(3) Require the agency that initially receives the challenge to
provide an
[[Page 66016]]
initial response within 60 days to the person submitting the challenge.
(4) Require the agency to advise the person of their appeal rights.
If the employee is not satisfied with the agency response or the agency
has not responded to the challenge within 180 days, the challenge
involving RD, FRD, or TFNI may be appealed to the Director, Office of
Classification.
(i) In the case of FRD and RD related primarily to the military
utilization of nuclear weapons, the Director, Office of Classification,
coordinates with the appropriate DoD official (as specified in DoD
Instruction 5210.02 or subsequent instructions).
(ii) In the case of TFNI, the Director, Office of Classification,
coordinates with DNI.
(5) If the response to the initial appeal and its justification for
classification does not satisfy the person making the challenge, a
further appeal may be made to the Associate Under Secretary for
Environment, Health, Safety and Security, AU-1/Forrestal Building, U.S.
Department of Energy, 1000 Independence Avenue SW, Washington, DC
20585.
(d) Agency responses to RD or TFNI challenges are limited to
interpreting the application of guidance to derivatively classify
matter. Except for DoD, agency responses to FRD are limited to
interpreting the application of guidance to derivatively classify
matter. An agency may coordinate challenges regarding interpreting
guidance for RD or TFNI with DOE, and may coordinate challenges
regarding interpreting guidance for FRD with DOE or DoD.
(e) Agencies must forward challenges that require decisions other
than interpreting the application of guidance (e.g., challenges to
guide topics) to the Director, Office of Classification.
Subpart D--Classifying and Declassifying Matter Containing RD, FRD,
or TFNI
Sec. 1045.115 Who is authorized to derivatively classify matter that
contains RD, FRD, or TFNI?
(a) Specific authority and/or training is required to derivatively
classify matter containing RD, FRD, or TFNI. These derivative
classification decisions must be based on a classification guide, a
classification bulletin, or a portion-marked source document and must
only be made in the RD Derivative Classifier's subject areas of
expertise. In cases where guidance does not exist, for RD the Director,
Office of Classification must make an initial determination that
information is RD or that the matter contains RD, and for FRD DOE and
DoD must jointly determine that the information is FRD or the matter
contains FRD. No other agency or agency personnel has the authority to
make an initial determination regarding RD or FRD. See Sec. 1045.135
for the process for requesting a determination in cases where guidance
does not exist.
(b) Each person who derivatively classifies matter containing RD or
FRD must be an RD Derivative Classifier.
(c) Except for DoD military and DoD Federal civilian employees,
each RD Derivative Classifier must be designated by name or position in
writing in accordance with agency procedures.
(d) An agency contractor employee may be an RD Derivative
Classifier. All contractor employees, including DoD contractors, must
be designated by name or position as such in writing in accordance with
agency procedures.
(e) Once a person is an RD Derivative Classifier for an agency, he
or she may classify matter containing RD or FRD in those subject areas
in which they have programmatic expertise for any agency, provided the
other agency or agencies accept the existing authority.
(f) No specific designation as an RD Derivative Classifier is
required to classify matter containing TFNI. Any person who has
received training required by Sec. 1045.120 may classify matter
containing TFNI.
Sec. 1045.120 What training is required for persons who have access
to or who derivatively classify matter containing RD, FRD, or TFNI?
(a) Prior to being authorized access to RD and FRD, a person must
receive training that explains:
(1) What information is potentially RD and FRD;
(2) Matter that potentially contains RD or FRD must be reviewed by
an RD Derivative Classifier to determine whether it contains RD or FRD;
(3) DOE must review matter that potentially contains RD or TFNI for
public release and DOE or DoD must review matter that potentially
contains FRD for public release;
(4) RD Derivative Classification authority is required to classify
or upgrade matter containing RD or FRD, or to downgrade the level of
matter containing RD or FRD;
(5) Only a person trained in accordance with this section, may
classify matter containing TFNI;
(6) Matter containing RD, FRD, and TFNI is not automatically
declassified and only DOE authorized persons may downgrade the category
or declassify matter marked as containing RD; only DOE or DoD
authorized persons may downgrade the category or declassify matter
marked as containing FRD;
(7) How to submit a challenge if they believe RD, FRD, or TFNI
information (e.g., a guide topic) or matter containing RD, FRD, or TFNI
is not properly classified; and
(8) Access requirements for matter marked as containing RD or FRD.
(b) Each person with access to RD and FRD must also receive
periodic refresher briefings covering these same topics.
(c) In addition to the training in paragraph (a) of this section,
prior to derivatively classifying matter containing RD, or FRD and
every 2 years thereafter, each RD Derivative Classifier must also
receive training that explains:
(1) The use of classification guides, classification bulletins, and
portion-marked source documents to classify matter containing RD and
FRD;
(2) What to do if applicable classification guidance is not
available;
(3) Limitations on an RD Derivative Classifier's authority to
remove RD or FRD portions from matter; and
(4) Marking requirements for matter containing RD and FRD.
(d) Prior to having access to TFNI, and periodically thereafter,
each person must receive the following training (which may be combined
with the training required for access to RD or FRD):
(1) What information is potentially TFNI;
(2) Only a person with appropriate training may determine if matter
contains TFNI;
(3) Marking requirements for matter containing TFNI;
(4) Matter containing TFNI is not automatically declassified and
only DOE authorized persons may downgrade the category or declassify
matter marked as containing TFNI; and
(5) How to submit a challenge if they believe TFNI information
(e.g., a guide topic) or matter containing TFNI is not properly
classified.
(e) In addition to the training in Sec. 1045.120(d), prior to
derivatively classifying matter containing TFNI and every 2 years
thereafter, each person who derivatively classifies matter containing
TFNI must also receive training that explains:
(1) The markings applied to matter containing TFNI;
(2) Limitations on their authority to remove TFNI portions from
matter;
(3) Only DOE authorized persons may determine that classified
matter no longer contains TFNI;
(4) Only DOE authorized persons may declassify matter marked as
containing TFNI; and
(5) DOE must review matter that potentially contains TFNI for
public release.
[[Page 66017]]
Sec. 1045.125 What is the process for reviewing and derivatively
classifying matter that potentially contains RD, FRD, or TFNI?
(a) Protecting and marking matter that potentially contains RD,
FRD, or TFNI prior to review. Prior to the review of matter to
determine if it contains RD, FRD, or TFNI, the matter must be protected
at the overall potential highest level and category and marked as a
working paper in accordance with Sec. 1045.140.
(b) Matter that potentially contains RD, FRD, or TFNI that is
intended for public release. Any person who generates or possesses
matter that potentially contains RD, FRD, or TFNI that is intended for
public release must ensure that it is reviewed by the Director, Office
of Classification, or a DOE official granted the authority by
delegation, regulation, or DOE directive, prior to release. FRD may
also be reviewed by the appropriate DoD official as specified in DoD
Instruction 5210.02 or subsequent instructions.
(c) Matter that potentially contains RD or FRD information that is
not intended for public release. Matter that potentially contains RD or
FRD that is not intended for public release must be reviewed by an RD
Derivative Classifier.
(d) Matter that potentially contains TFNI that is not intended for
public release. Matter that potentially contains TFNI that is not
intended for public release must be reviewed by a person who has been
trained in accordance with Sec. 1045.120(e).
(e) Matter that incorporates information from the open literature
that potentially contains RD, FRD, or TFNI. Because the open literature
may contain information that is still classified as RD, FRD, or TFNI,
matter that incorporates information from the open literature that is
potentially RD, FRD, or TFNI must be reviewed as required under this
section.
(f) Matter being reviewed under E.O. 13526 or successor orders. If,
when reviewing matter under the automatic or systematic review
provisions of E.O. 13526 or successor orders, the person finds matter
potentially contains RD, FRD, or TFNI that it is not correctly marked:
(1) An RD Classifier may review the matter to determine if it
contains RD or FRD. If the matter is determined to contain RD or FRD,
the matter must be appropriately marked and is exempt from automatic
declassification.
(2) A person trained to classify TFNI may review the matter to
determine if it contains TFNI. If the matter is determined to contain
TFNI, the matter must be appropriately marked and is exempt from
automatic declassification.
(3) If an authorized person is unable to make a determination for
RD, FRD, or TFNI, the matter must be referred to DOE. Matter containing
FRD may also be referred to DoD. The matter may not be automatically
declassified until DOE or DoD makes a determination as to its
classification status.
Sec. 1045.130 How does an authorized person derivatively classify
matter containing RD, FRD, or TFNI?
(a) Derivative classification of RD or FRD. For RD or FRD, an RD
Derivative Classifier makes the derivative classification determination
using:
(1) A DOE classification guide or bulletin, a joint DOE-agency
classification guide, an agency guide with RD/FRD topics that is within
his or her programmatic area of expertise; or
(2) An applicable portion-marked source document.
(b) Derivative classification of TFNI. For TFNI, a person who is
trained to derivatively classify matter containing TFNI makes the
determination using:
(1) Approved TFNI guidelines;
(2) A DOE classification guide or bulletin, a joint DOE-agency
classification guide, an agency guide with RD, FRD, or TFNI topics
within his or her programmatic area of expertise; or
(3) An applicable portion-marked source document.
(c) Association and compilation. (1) RD, FRD, or TFNI
classification based on association. If two or more different,
unclassified facts when combined in a specific way result in a
classified statement, or if two or more different classified facts or
unclassified and classified facts when combined in a specific way
result in a higher classification level or more restrictive category,
then an RD Derivative Classifier may classify or upgrade the matter
based on the association. If the matter is to be portion marked, then
each portion of the associated information must be marked at the level
and category of the association.
(2) RD, FRD, or TFNI classification based on compilation. A large
number of often similar unclassified pieces of information or a large
number of often similar RD, FRD, or TFNI pieces of information by
selection, arrangement, or completeness in matter may add sufficient
value to merit classification or to merit classification at a higher
level. If there is a classification guide topic that applies to the
compilation, an RD Derivative Classifier may classify the information
by compilation. In the absence of a classification guide topic that
applies, for RD or TFNI, the Director, Office of Classification, may
make the determination to classify or upgrade the matter based on
compilation. For FRD, the Director, Office of Classification, or any
appropriate DoD official (as specified in DoD Instruction 5210.02 or
subsequent instructions) may classify or upgrade the matter based on
compilation. Matter that is classified as RD, FRD, or TFNI based on
compilation is never portion marked.
(d) Use of a classified addendum. When it is important to maximize
the amount of information available to the public or to simplify matter
handling procedures, the RD, FRD, or TFNI should be segregated into a
classified addendum.
Sec. 1045.135 Can a person make an RD, FRD, or TFNI classification
determination if applicable classification guidance is not available?
(a) No. If an RD Derivative Classifier or a person trained to
classify matter containing TFNI is unable to locate a classification
guide or classification bulletin that applies to the nuclear-related
information within his or her programmatic expertise and does not have
an applicable portion-marked source document to use for derivative
classification, then he or she must contact the RDMO or an ARDMO for
assistance. The RDMO/ARDMO may be aware of other classification
guidance that could apply to the information.
(b) If no guidance is identified, the RDMO must forward the matter
to the Director, Office of Classification, for a determination. Within
30 days, the Director, Office of Classification must:
(1) Determine whether the information is already classified as RD,
FRD, or TFNI under current classification guidance and, if so, provide
such guidance to the RDMO who forwarded the matter.
(2) If the information is not already classified as RD, FRD, or
TFNI, the procedures for initially classifying information as RD, FRD,
or TFNI under Sec. 1045.70 must be followed. The Director, Office of
Classification, must notify the RDMO of the results of the initial
classification determination within 90 days of receiving the matter.
Initial determinations must be incorporated into classified guides, as
appropriate.
(c) Pending a determination, the matter under review must be
protected at a minimum as Secret RD, Secret FRD, or Secret TFNI, as
appropriate.
Sec. 1045.140 How is matter containing RD, FRD, or TFNI marked?
(a) Matter determined to contain RD, FRD, or TFNI. Matter
determined to
[[Page 66018]]
contain RD, FRD, or TFNI must be clearly marked to convey to the holder
of that matter that it contains such information.
(b) Marking matter containing RD, FRD, or TFNI in the IC. Matter
generated by/for the IC containing RD, FRD, or TFNI must be marked in
accordance with the requirements in this part as described in ICD 710
or successor directives, and the corresponding implementation
directives and policy guidance issued or approved by the DNI concerning
marking matter containing RD, FRD, and TFNI.
(c) Working papers containing RD, FRD, or TFNI. Prior to the
determination that matter contains RD, FRD, or TFNI, it must be marked
and protected as a working paper. Matter that has not been reviewed
that potentially contains RD, FRD, or TFNI, or is expected to be
revised prior to the preparation of a finished product that contains
RD, FRD, or TFNI, must be dated when created or last changed, marked
with the highest potential level and category of information (and
caveats, when applicable) on the bottom and top of each page, and must
be protected at the highest potential level and category of the
information contained in the matter. The matter must also be marked
``Draft'' or ``Working Paper'' on the front cover. The RD/FRD
admonishment is not required. RD Derivative Classifier authority is not
required to mark working papers containing RD or FRD. However, working
papers containing RD or FRD must be reviewed by an RD Derivative
Classifier, and working papers containing TFNI must be reviewed by a
person trained to mark matter containing TFNI, and the matter must be
marked as a final document when it is:
(1) Released outside the originating activity;
(2) Retained more than 180 days from the date of origin or the date
of the last change; or
(3) Filed permanently.
(d) RD and FRD markings. An RD Derivative Classifier applies or
authorizes the application of the following markings on matter
determined to contain RD or FRD:
(1) Front page. The front page of matter containing RD or FRD must
have the page/banner markings at the top and bottom, the RD or FRD
admonishment, subject/title marking, and the classification authority
block.
(i) Front page/banner markings. The top and bottom of the front
page must clearly indicate the overall classification level of the
matter. The classification category may also be included. No other
markings are required in the page/banner marking.
(ii) Admonishments. (A) If the matter contains RD or RD and FRD,
use the following admonishment:
RESTRICTED DATA
This document contains RESTRICTED DATA as defined in the Atomic
Energy Act of 1954, as amended. Unauthorized disclosure subject to
administrative and criminal sanctions.
(B) If the document contains FRD and no RD, use the following
admonishment:
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, as amended.
(iii) Subject/title marking. The classification level and category
of the text of the subject or title (e.g., U, SRD, CFRD, S//RD, C//FRD)
must be marked immediately preceding the text of the subject or title.
(iv) Classification authority block. The classification authority
block for matter containing RD or FRD must identify the RD Derivative
Classifier who classified the matter and the classification guidance
used to classify the matter.
(A) Identity of the RD Derivative Classifier. The RD Derivative
Classifier must be identified by name and position or title, and, if
not otherwise evident, the agency and office of origin must be
identified. An RD Derivative Classifier may also be identified by a
unique identifier. For example:
Classified By: Jane Doe, Nuclear Analyst, DOE, CTI-61
(B) Identity of classification guidance. (1) If a classification
guide is used to classify the matter, the ``Derived From'' line must
include the short title of the guide, the issue date of the guide, the
issuing agency and, when available, office of origin. For example:
Derived From: CG-ABC-1, 10/16/2014, DOE OC
(2) If a source document is used to classify the matter, it must be
identified, including the office of origin and the date of the source
document. If more than one classification guide or source document is
used, the words ``Multiple Sources'' may be included. In the case of
multiple sources, a source list identifying each guide or source
document must be included with all copies of the matter.
(C) Declassification instructions. Matter containing RD or FRD are
never automatically declassified and must either omit the ``Declassify
On'' line, or indicate that the matter is exempt from automatic
declassification (Not Applicable or N/A for RD/FRD, as appropriate).
(2) Interior page/banner marking. Each interior page of matter
containing RD or FRD must be clearly marked at the top and bottom with
the overall classification level and category of the matter or the
overall classification level and category of the page, whichever is
preferred. The abbreviations ``RD'' and ``FRD'' may be used in
conjunction with the matter classification (e.g., SECRET//RD,
CONFIDENTIAL//FRD).
(3) Back cover or back page marking. The outside of the back cover
or back page must be marked with the overall level of information in
the matter.
(4) Portion marking. Other than the required subject/title marking,
portion marking is permitted, but not required, for matter containing
RD or FRD. Each agency that generates matter containing RD or FRD
determines the policy for portion marking matter generated within the
agency. If matter containing RD or FRD is portion marked, each portion
containing RD or FRD must be marked with the level and category of the
information in the portion (e.g., SRD, CFRD, S//RD, C//FRD).
(e) TFNI markings. If matter contains RD or FRD commingled with
TFNI, the RD or FRD markings take precedence. If matter contains TFNI
and no RD or FRD, a person who is trained to classify matter containing
TFNI applies or authorizes the application markings on matter
determined to contain TFNI in accordance with 32 CFR part 2001.22, or
successor regulations, and with this part.
(1) Front page. If the matter contains TFNI and no RD or FRD, no
admonishment is required on the front page, but the top and bottom of
the front page must be clearly marked with the overall classification
level and the TFNI label (e.g., SECRET//TFNI).
(2) Subject/title marking. The classification level and category of
the subject or title must be marked immediately preceding the text of
the subject or title.
(3) Portion marking. Matter containing TFNI and no RD or FRD must
be portion marked. Each portion containing TFNI must be marked
immediately preceding the portion to which it applies with the level
and category of the information in the portion (e.g., S//TFNI).
(4) Classification authority block. The classifier and guidance
used to classify matter containing TFNI must be identified as described
in Sec. 1045.40(d)(1)(iv)(A) and (B). In addition, the ``Declassify
On'' line must be annotated with the statement: ``Not Applicable [or N/
A] to TFNI portions.''
[[Page 66019]]
(5) Interior pages. If the matter contains TFNI and no RD or FRD,
the top and bottom of each interior page must be clearly marked with
the overall classification level and the TFNI label (e.g., SECRET//
TFNI) or the overall classification level for each page with the TFNI
label included on only those pages that contain TFNI, whichever is
preferred.
(6) Back cover or back page marking. If the matter contains TFNI
and no RD or FRD, the top and bottom of the outside of the back cover
or back page must be clearly marked with the overall classification
level of information in the matter.
(f) Commingled matter--NSI. Matter that contains a mixture of RD,
FRD, or TFNI and NSI, and is portion marked, must also comply with the
following:
(1) Declassification instructions. If the matter is not portion
marked, then no declassification instructions are included. If the
matter is portion marked, declassification instructions for each
portion must be included in a source list. See this paragraph (f)(2)
and E.O. 13526 or successor orders for instructions on annotating the
source list.
(2) Source list. The source list must include declassification
instructions for all NSI sources used to classify the NSI portions. The
declassification instructions for sources that are used to classify the
RD, FRD, or TFNI portions must state ``Not applicable [or N/A] to RD/
FRD/TFNI (as appropriate).'' The source list must not appear on the
front page of the matter, unless the matter is a single page. If the
matter is a single page, the source list may appear at the bottom of
the page, and must be clearly separate from the classification
authority block.
(g) Commingled matter--CUI. (1) If matter containing RD and/or FRD
and CUI is not portion marked, CUI markings are not required.
(2) Applicable CUI Decontrol instructions. (i) If the matter
contains RD or FRD and is not portion marked, then CUI decontrol
instructions must not be included.
(ii) If the matter is portion marked and decontrol instructions are
applied, the decontrol instructions for the CUI portions must not be on
the front page. Where they appear, they must be clearly labeled as
decontrol instructions for CUI.
(iii) If the matter contains TFNI, and decontrol instructions are
applied, the decontrol instructions for the CUI portions must not be on
the front page. Where they appear they must be clearly labeled as
decontrol instructions for CUI.
(h) Marking special format matter. Standard RD, FRD, or TFNI
markings must be applied to matter in special formats (e.g.,
photographs, flash memory drives, compact discs, audio or video tapes)
to the extent practicable. Regardless of the precise markings in such
cases, any special format matter that contains RD, FRD, or TFNI must be
marked so that both a person in physical possession of the matter and a
person with access to the information in or on the matter are aware
that it contains RD, FRD, or TFNI.
Sec. 1045.145 Who must review output from a classified IT system that
is marked as RD, FRD, or TFNI?
If the output is a final product that has been reviewed by a person
with appropriate authority, and is properly marked, or is a working
paper that is properly marked, no additional review is required.
Otherwise, the output must be reviewed in accordance with Sec.
1045.30.
Sec. 1045.150 Can anyone remove the RD, FRD, or TFNI portions and
markings to produce an NSI or unclassified version of the matter?
(a) Removal of RD, FRD, or TFNI portions from matter containing RD,
FRD, or TFNI. Specific authority is required to remove RD, FRD, or TFNI
portions from matter. The authority required depends on whether the
matter is intended for public release, the category of information in
the matter, and whether the matter is portion marked.
(b) If the resulting or new matter is intended for public release.
An RD Derivative Classifier or a person trained to classify matter
containing TFNI does not have the authority to remove the RD, FRD, or
TFNI portions or markings for matter intended for public release. The
matter must be submitted in accordance with Sec. 1045.125 to the
appropriate agency who will review the matter and remove the RD, FRD,
or TFNI portions and markings.
(c) If the resulting matter is not intended for public release. (1)
An RD Derivative Classifier may remove the portions marked as
containing RD or FRD and remove the RD or FRD markings.
(2) A person trained in accordance with Sec. 1045.120(e) may
remove the portions containing TFNI and the TFNI markings.
(3) In all cases under Sec. 1045.150(b) this may be done only if
the matter is originated by the authorized person's agency and the
matter is portion marked, and the resulting matter is reviewed to
ensure it does not contain RD, FRD, or TFNI by a person authorized to
review the matter.
Sec. 1045.155 How is matter marked as containing RD, FRD, or TFNI
declassified?
(a) Declassification of matter containing RD, FRD, or TFNI. RD,
FRD, and TFNI are never automatically declassified. No date or event
for automatic declassification ever applies to RD, FRD, or TFNI, even
when commingled with NSI. It takes positive action by an authorized
person to declassify matter potentially containing or marked as
containing RD, FRD, or TFNI.
(b) Authority to declassify matter containing RD, FRD, or TFNI.
Only authorized persons within DOE may declassify matter marked as RD
or TFNI and only authorized persons within DOE or DoD may declassify
matter marked as FRD. Only these same persons may identify the portions
of classified matter that contain RD, FRD, or TFNI that must be
redacted prior to public release.
(c) Declassification of matter containing RD or TFNI. Except as
allowed under paragraph (b) of this section, only designated persons in
DOE may declassify matter marked as containing RD or TFNI or identify
the RD or TFNI portions of matter that must be removed from the matter
prior to public release. Such determinations must be based on
classification guides.
(d) Declassification of matter containing FRD. Except as allowed
under paragraph (b) of this section, only designated persons in DOE or
appropriate persons in DoD (as specified in DoD Instruction 5210.02 or
subsequent instructions) may declassify matter marked as containing FRD
or determine the FRD portions of matter that must be removed prior to
public release. Such determinations must be based on classification
guides.
(e) Delegation of declassification authority. The Director, Office
of Classification, may delegate declassification authority for matter
containing RD and TFNI to other agencies Federal and contractor
personnel. The Director, Office of Classification, or an appropriate
person in DoD (as specified in DoD Instruction 5210.02 or subsequent
instructions) may delegate declassification authority for matter
containing FRD to qualified Federal or contractor personnel in other
agencies.
Sec. 1045.160 When the RD, FRD, or TFNI is removed from matter, what
action must be taken if the matter still contains NSI?
When an appropriate authority removes the RD, FRD, or TFNI from
[[Page 66020]]
matter and it still contains NSI, the matter must be marked following
E.O. 13526 and 32 CFR part 2001 or successor orders and regulations,
including portion marking if the matter was not previously portion
marked, and the classification authority block of the matter must be
changed to contain declassification instructions for the NSI. This does
not apply to matter produced as part of the coordination process for
declassification or public release reviews.
Sec. 1045.165 Once matter marked as RD, FRD, or TFNI is declassified,
how is it marked?
(a) Matter that is determined to no longer contain RD, FRD, or TFNI
and also does not or no longer contains NSI must be clearly marked to
convey to the holder of that matter that the matter is declassified;
(b) The front page must identify the person authorizing the
declassification by name and position or title, if not otherwise
evident, agency, and office of origin; or with a unique identifier; the
classification guide that served as the basis for the declassification
by short title, date, agency and, when available, the office of origin;
and the declassification date. For example:
(1) Declassified by: Jane Doe, Nuclear Analyst, DOE, CTI-61
(2) Derived from: CG-ABC-1, 10/16/2014, DOE OC
(3) Declassified on: 20201009
(c) The person authorizing the declassification must line through
but not obliterate the classification markings and apply or authorize
the application of the appropriate markings.
Subpart E--Government-Wide Procedures for Handling Freedom of
Information Act (FOIA) and Mandatory Declassification Review (MDR)
Requests for Matter Marked as or Potentially Containing RD, FRD, or
TFNI
Sec. 1045.170 What is the purpose of this subpart?
This subpart contains requirements that apply when Federal agencies
other than DOE receive FOIA or MDR requests for matter that is marked
as or potentially contains RD, FRD, or TFNI. RD, FRD, and TFNI are
classified under the Atomic Energy Act and are not subject to the
provisions governing MDR requests under E.O. 13526 or successor orders.
To ensure RD, FRD, and TFNI are considered and appropriately reviewed
when requested under a FOIA or MDR request, this section describes the
process Federal agencies must follow for FOIA and MDR requests for
matter that is marked as or potentially contains RD, FRD, or TFNI.
Sec. 1045.175 How must agencies process FOIA and MDR requests for
matter that is marked as or potentially contains RD, FRD, or TFNI?
(a) When an agency receives a FOIA or MDR request for which any
responsive matter is marked as or potentially contains RD, FRD, or
TFNI, the agency must forward the matter to the appropriate agency as
follows:
(1) Forward any matter marked as or potentially containing RD or
TFNI to the Director, Office of Classification or a DOE official
granted authority by delegation, regulation, or DOE directive.
(2) Forward any matter originated by DOE and marked as or
potentially containing FRD to either the Director, Office of
Classification or a DOE official granted authority by delegation,
regulation, or DOE directive. Forward any matter originated by DoD and
marked as or potentially containing FRD to the appropriate DoD program
(as specified in DoD Manual 5400.07, DoD Freedom of Information Act
(FOIA) Program, subsequent manuals, or other applicable manuals).
Matter not originated by DOE or DoD may be submitted to either agency
as provided in this paragraph.
(b) DOE and DoD must coordinate the review of matter marked as or
potentially containing RD and FRD, when appropriate. DOE and the DNI
must coordinate the review of matter marked as or potentially
containing TFNI, when appropriate.
(c) DOE, DoD, or the DNI may refuse to confirm or deny the
existence or nonexistence of the requested matter whenever the fact of
its existence or nonexistence is itself classified as RD, FRD, or TFNI.
(d) If the information contained in the requested matter has been
reviewed for declassification within the past 2 years, another review
need not be conducted, but instead the agency may inform the requester
of this fact and of the results of the prior review decision.
(e) When paragraph (c) or (d) of this section do not apply, and the
information requested under an MDR is not exempt under Sec. 1045.195,
the appropriate DOE or DoD authority must conduct a line-by-line review
of matter forwarded under paragraph (a) of this section; identify the
information that is classified under current classification guidance as
RD, FRD, or TFNI; and respond to the agency that forwarded the matter.
The response to the agency who forwarded the request must identify the
RD, FRD, or TFNI that is exempt from public release; provide the FOIA
exemption or appropriate MDR notation for the RD, FRD, or TFNI
withheld; identify the Denying Official for the RD, FRD, or TFNI
withheld; and explain the applicable appeal procedures for a FOIA
request identified in 10 CFR 1004.8 or for an MDR request identified in
Sec. 1045.180.
(1) The Denying Officials are as follows:
(i) The Denying Official for matter containing RD or TFNI is the
Director, Office of Classification.
(ii) The Denying Official for matter containing FRD is the
Director, Office of Classification, or the appropriate DoD Component's
Initial Denying Authority (as specified in applicable DoD manuals).
(iii) The Denying Official for Naval Nuclear Propulsion Information
is the National Nuclear Security Administration (NNSA) Deputy Director,
Deputy Administrator for Naval Reactors.
(f) Upon receipt of the response from DOE or DOD, the agency
processing the initial request must inform the requester of the results
of the review; provide the name of the Denying Official identified for
any RD, FRD, or TFNI withheld; and advise the requester of his or her
appeal rights concerning the RD, FRD, or TFNI.
Sec. 1045.180 What is the procedure if an agency receives an appeal
to a FOIA or MDR concerning the denial of RD, FRD, or TFNI?
(a) If an agency receives a FOIA appeal for RD, FRD, or TFNI denied
by DOE within 90 days of receipt of the denial and as required under 10
CFR 1004.8, the appeal must be submitted to the DOE Director, Office of
Hearings and Appeals. If an agency receives a FOIA appeal for FRD
denied by DoD, it must be submitted to DoD in accordance with
applicable DoD FOIA regulations or instructions.
(b) Appeals of an MDR response when DOE denied RD, FRD, or TFNI may
be submitted to the agency that replied to the initial MDR request or
directly to DOE.
(1) When an MDR appeal concerning DOE-withheld RD, FRD, or TFNI is
sent to the agency that replied to the initial MDR request, the appeal
must be received by the agency who replied to the initial request
within 60 days of receipt of the denial and contain the information
required under Sec. 1045.210(b). The agency must forward the appeal to
the Associate Under Secretary of Environment, Health, Safety and
Security at the following address: Associate Under Secretary for
Environment, Health, Safety and Security, AU-1/Forrestal Building, U.S.
[[Page 66021]]
Department of Energy, 1000 Independence Avenue SW, Washington, DC
20585.
(2) When sent directly to DOE, an MDR appeal must be received by
the Associate Under Secretary for Environment, Health, Safety and
Security within 60 days of the denial and contain the information
required under Sec. 1045.210(b).
(3) MDR appeals received by DOE are processed consistent with Sec.
1045.220.
(c) If an agency receives an MDR appeal for FRD withheld by DoD,
the agency must submit the appeal to the appropriate DoD Component as
identified in applicable DoD manuals.
(d) MDR Final Appeal: The classification and declassification of
RD, FRD, and TFNI is governed by the AEA and this part and is not
subject to E.O. 13526 or successor orders. Therefore, MDR appeal
decisions by the Associate Under Secretary for Environment, Health,
Safety and Security, for RD, FRD, and TFNI and MDR appeal decisions by
the appropriate DoD Component appellate authority for FRD are final
agency decisions and are not subject to review by ISCAP. However, if
matter containing RD, FRD, or TFNI also contains NSI, the NSI portions
may be appealed to the ISCAP. Prior to submission to ISCAP, the RD,
FRD, or TFNI portions must be deleted.
(e) The FOIA and MDR appeal authorities for RD, FRD, or TFNI are as
follows:
(1) The appeal authority for RD and TFNI is the Associate Under
Secretary for Environment, Health, Safety and Security.
(2) The appeal authority for FRD is the Associate Under Secretary
for Environment, Health, Safety and Security or the appropriate DoD
Component appellate authority.
(3) The appeal authority for Naval Nuclear Propulsion Information
is the NNSA Deputy Administrator for Naval Reactors.
(f) Declassification proposals resulting from appeal reviews: The
appeal review of RD, FRD, and TFNI withheld from a requester is based
on current classification guidance. However, as part of the appeal
review, the withheld information must be reviewed to determine if it
may be a candidate for possible declassification. If declassification
of the information appears to be appropriate, then a declassification
proposal must be initiated, and the requester must be advised that
additional information will be available if the declassification
proposal is approved.
Subpart F--DOE-Specific Procedures for MDR Requests
Sec. 1045.185 What is the purpose of this subpart?
This subpart describes the process for MDR requests submitted for
DOE matter classified under E.O. 13526 or successor orders, and the
Atomic Energy Act.
Sec. 1045.190 How does the public submit an MDR for DOE classified
matter?
(a) DOE matter marked as containing NSI, RD, FRD, or TFNI is
subject to review for declassification by DOE if the request for a
declassification review describes the matter containing the information
with sufficient specificity to enable DOE to locate it with a
reasonable amount of effort.
(b) The request must be sent to the Director, Office of
Classification, AU-60/Germantown Building, U.S. Department of Energy,
1000 Independence Avenue SW, Washington, DC 20585.
Sec. 1045.195 Is any matter exempt from MDR requests?
(a) MDR requests are not accepted for:
(1) Matter containing RD technical engineering, blueprints, and
design regarding nuclear weapons, if they contain no NSI.
(2) Matter required to be submitted for prepublication review or
other administrative process pursuant to an approved nondisclosure
agreement;
(3) Matter that is the subject of pending litigation; or
(4) Any matter contained within an operational file exempted from
search and review, publication, and disclosure under the FOIA in
accordance with law.
(b) Current Presidential records as described in section 3.5(b) of
E.O. 13526 or successor orders that are in the custody of DOE are
exempt from release in response to an MDR request.
Sec. 1045.200 Is there a cost for an MDR review?
Yes. The fees, including waivers, reductions, and categorizations,
are the same for an MDR as for providing records under the FOIA as
defined in 10 CFR 1004.9.
Sec. 1045.205 How does DOE conduct an MDR review?
(a) If DOE has reviewed the information contained in the requested
matter for declassification within the past 2 years, DOE need not
conduct another review. DOE may instead inform the requester of this
fact and of the prior review decision, as well as advise the requester
of his or her appeal rights as provided in Sec. 1045.210.
(b) DOE performs an MDR as follows:
(1) Conducts a line-by-line review of the matter;
(2) Coordinates the review with appropriate programs and agencies,
as necessary;
(3) Identifies and withholds any information that meets the
standards for classification;
(4) Declassifies any NSI that no longer meets the standards for
classification under E.O. 13526 or successor orders and any RD, FRD, or
TFNI that no longer meets the standards for classification under this
part;
(5) If the matter also contains unclassified information that is
potentially exempt from release under the FOIA, the matter is further
processed to ensure unclassified information that is exempt from public
release is identified and that the appropriate officials responsible
for denying any unclassified portion of the matter are provided and
listed with the notice of denial.
(6) Upon completion of the review, releases the matter to the
requester unless withholding is authorized by law. If NSI, RD, FRD, or
TFNI, is withheld, the response must advise the requester of his or her
appeal rights under Sec. 1045.210.
Sec. 1045.210 How does a person submit an appeal if DOE withholds
classified information in an MDR response?
(a) When the Director, Office of Classification, denies NSI, RD,
FRD, or TFNI, or the NNSA Deputy Director, Deputy Administrator for
Naval Reactors, denies Naval Nuclear Propulsion information, in matter
requested under an MDR, the requester may appeal the determination to
the Associate Under Secretary for Environment, Health, Safety and
Security. The appeal must be received within 60 days of the receipt of
the denial.
(b) The appeal must be in writing and submitted to the Associate
Under Secretary for Environment, Health, Safety and Security, AU-1/
Forrestal Building, U.S. Department of Energy, 1000 Independence Avenue
SW, Washington, DC 20585. The appeal:
(1) Must contain a concise statement of grounds upon which it is
brought, and a description of the relief sought.
(2) Must include a copy of the letter containing the determination
being appealed.
(3) Should include a discussion of all relevant authorities that
include but are not limited to DOE (and predecessor agencies) rulings,
regulations, interpretations, and decisions on appeals, as well as any
judicial
[[Page 66022]]
determinations being relied upon to support the appeal.
Sec. 1045.215 How does DOE process an MDR appeal for DOE matter
containing NSI?
An appeal for NSI requested under the provisions of E.O. 13526 or
successor orders is processed as follows:
(a) The Associate Under Secretary for Environment, Health, Safety
and Security must act upon the appeal within 60 working days of its
receipt. If no determination on the appeal has been issued at the end
of this 60-day period, the requester may consider his or her
administrative remedies to be exhausted and may seek a review by the
ISCAP. When no determination can be issued within the applicable time
limit, the appeal must nevertheless continue to be processed. On
expiration of the time limit, DOE must inform the requester of the
reason for the delay, of the date on which a determination may be
expected to be issued, and of the requester's right to seek further
review by the ISCAP. Nothing in this subpart precludes the appeal
authority and the requester from agreeing to an extension of time for
the decision on an appeal. The Associate Under Secretary for
Environment, Health, Safety and Security must confirm any such
agreement in writing and clearly specify the total time agreed upon for
the appeal decision.
(b) The Associate Under Secretary for Environment, Health, Safety
and Security's action on an appeal must be in writing and set forth the
reason for the decision. DOE 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. 13526 or
successor orders.
(c) The requester has the right to appeal a final DOE 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, FRD, or TFNI, the portions of the
document containing RD, FRD, or TFNI must be deleted prior to
forwarding the NSI and unclassified portions to the ISCAP for review.
Sec. 1045.220 How does DOE process an MDR appeal for matter
containing RD, FRD, or TFNI?
(a) Final appeals for DOE matter containing RD, FRD, or TFNI are
submitted to the Associate Under Secretary for Environment, Health,
Safety and Security. The Associate Under Secretary for Environment,
Health, Safety and Security will coordinate appeals concerning Naval
Nuclear Propulsion Information with the NNSA Deputy Administrator for
Naval Reactors.
(b) The classification and declassification of RD, FRD, and TFNI is
governed by the AEA and this part and is not subject to E.O. 13526 or
successor orders. Therefore, appeal decisions concerning RD, FRD, or
TFNI by the Associate Under Secretary for Environment, Health, Safety
and Security, or the NNSA Deputy Administrator for Naval Reactors are
not subject to review by ISCAP.
Sec. 1045.225 Are DOE responses to MDR requests available to the
public?
Yes. Once the classified and unclassified information exempt from
public release is redacted, DOE responses to MDR requests, as well as
FOIA requests for matter containing classified information, are posted
on DOE's OpenNet System at: https://www.osti.gov/opennet/.
[FR Doc. 2018-27344 Filed 12-20-18; 8:45 am]
BILLING CODE 6450-01-P