[Federal Register Volume 62, Number 250 (Wednesday, December 31, 1997)]
[Rules and Regulations]
[Pages 68502-68517]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-33949]
[[Page 68501]]
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Part X
Department of Energy
_______________________________________________________________________
Office of the Secretary
_______________________________________________________________________
10 CFR Part 1045
Nuclear Classification and Declassification; Final Rule
Federal Register / Vol. 62, No. 250 / Wednesday, December 31, 1997 /
Rules and Regulations
[[Page 68502]]
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DEPARTMENT OF ENERGY
Office of the Secretary
10 CFR Part 1045
RIN 1901-AA21
Nuclear Classification and Declassification
AGENCY: Department of Energy.
ACTION: Final rule.
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SUMMARY: The Department of Energy (DOE or Department) is publishing a
final rule revising its regulations concerning the policies and
procedures on the identification of classified information. These
regulations establish the policies and procedures implementing the
requirements of the Atomic Energy Act of 1954 for the classification
and declassification of information as Restricted Data and Formerly
Restricted Data and also implement those requirements of Executive
Order 12958 concerning National Security Information that directly
affect the public. These regulations prescribe procedures to be used by
all agencies of the Federal Government in the identification of
Restricted Data and Formerly Restricted Data, and describe how members
of the public may request DOE National Security Information and appeal
DOE classification decisions regarding such requests.
EFFECTIVE DATE: This rule becomes effective June 29, 1998.
FOR FURTHER INFORMATION CONTACT: Janet O'Connell, Department of Energy,
Office of Declassification, 19901 Germantown Road, Germantown, Maryland
20874-1290, (301) 903-1113, or John Gurney, Department of Energy,
Office of the Assistant General Counsel for National Security,
Washington, DC 20585, (202) 586-8269.
SUPPLEMENTARY INFORMATION:
I. Introduction
II. Background
III. Discussion of Comments
IV. Rulemaking Requirements
A. Review Under Executive Order 12866
B. Review Under Paperwork Reduction Act
C. Review Under the National Environmental Policy Act
D. Review Under Executive Order 12612
E. Review Under Executive Order 12988
F. Review Under the Unfunded Mandates Reform Act of 1995
G. Review Under the Regulatory Flexibility Act
H. Review Under Small Business Regulatory Enforcement Fairness
Act of 1996
V. Freedom of Information Act Considerations
I. Introduction
On January 15, 1997, DOE published a Notice of Proposed Rulemaking
(62 FR 2251) establishing Government-wide requirements for the
classification and declassification of Restricted Data (RD) and
Formerly Restricted Data (FRD) and implementing those provisions of
Executive Order (E.O.) 12958 that directly affect the public. Under the
Atomic Energy Act of 1954, 42 U.S.C. 2011, the Department of Energy is
responsible for the classification and declassification of nuclear-
related information. Such information is classified as RD. The DOE has
joint responsibility with the Department of Defense (DoD) for the
classification and declassification of information which relates
primarily to the military utilization of nuclear weapons. Nuclear
weapons related military utilization information which can be protected
as National Security Information (NSI) in the United States is
classified as FRD. FRD is protected in the same manner as RD when
transferred to another country or regional defense organization such as
NATO. These regulations specify the policies and procedures that
organizations and individuals shall follow in classifying and
declassifying RD and FRD.
In formulating these policies and procedures, DOE has solicited and
made use of a significant number of recommendations from the public and
other agencies of the Federal Government (hereafter referred to as
``agencies''); and the Department has embraced the goal of ``open
policies openly arrived at.'' The resulting regulation balances the
Department's commitment to maximize the amount of information made
available to the public with the need to protect national security and
prevent nuclear proliferation.
Section 5.6(c) of E.O. 12958, ``Classified National Security
Information,'' requires agencies that originate or handle classified
information to promulgate implementing regulations which shall be
published in the Federal Register to the extent that they affect
members of the public. Subpart D of today's rule implements those
requirements of the Executive order and was approved by the Information
Security Oversight Office (ISOO) on July 5, 1996, in accordance with
section 5.3(b)(3) of E.O. 12958.
II. Background
This regulation is written in four Subparts. Subpart A provides
general information on the management of the RD classification system,
including the responsibilities of DOE and all agencies with access to
RD and FRD. Subpart B describes procedures for the classification and
declassification of RD and FRD information (as contrasted with
classification and declassification of documents containing such
information). Requirements and procedures for the review,
classification, and declassification of RD and FRD documents to be
implemented by all agencies are described in Subpart C. Lastly, Subpart
D provides DOE requirements and procedures concerning NSI to the extent
that they affect the public, as required by Executive Order 12958.
This regulation incorporates recommendations of the Classification
Policy Study of July 1992, the Atomic Energy Act Study of January 1994,
and the National Academy of Sciences Review of 1995, as well as some of
the overarching issues in the Fundamental Classification Policy Review
of January 1997. Copies of these studies are available from the contact
person in the FOR FURTHER INFORMATION CONTACT section of this notice.
III. Discussion of Comments
a. Introduction
In response to the Notice of Proposed Rulemaking, DOE received
thirty-nine (39) written comments. Twenty-three (23) were indications
of no comment or concurrences. In addition, there were two commenters
at a public hearing held on February 26, 1997. This section describes
comments, discusses changes to the proposed rule which are incorporated
in the final regulation, and provides an explanation of the comments
which were evaluated, but not adopted by the Department. This section
discusses both revisions to the proposed rule made in response to
public comments and also those made by the DOE Office of
Declassification of its own initiative.
b. General Comments
The following describes general comments received. One commenter
recommended that the regulation ``address more specifically how to
handle RD/FRD documents which are interspersed among documents of
agencies other than DOE.'' DOE concurs that additional guidance in this
area is needed. However, the Department does not believe that this
regulation is the appropriate vehicle for providing such
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detail. The External Referral Working Group of the Intelligence
Community Declassification Program Manager's Council is focusing on
implementing E.O. 12958 and is developing standards which will address
this issue.
One commenter had a number of comments relating to definitions used
in sections 1045.3, 1045.4, and 1045.13. The commenter stated that the
terms ``reasonably,'' ``could be expected,'' ``exceptionally grave
damage,'' ``serious damage,'' and ``damage'' as contained in the
definitions for Top Secret, Secret and Confidential, were highly
subjective and vague and recommended that these terms be deleted or
replaced. All of these definitions and terms are taken directly from
E.O. 12958, with the exception of ``undue risk'' which is taken
directly from the Atomic Energy Act of 1954, as amended. While the
terms in E.O. 12958 strictly apply only to NSI, the Department believes
it is clearly in the national interest that the RD system, to the
extent possible, preserve commonality of terms with the more widely
applied NSI system. The use of subjective modifiers such as
``reasonably,'' ``exceptionally grave damage'' or ``undue risk'' is a
reflection of the fact that classification is not an exact science.
These terms, together with the phrase ``could be expected,'' indicate
that decisions by well-informed, trained officials should be based on
their educated analysis of the probable future impact on the national
security.
This commenter also indicated that declassification means a
determination and does not necessarily result in DOE releasing the
information into the public domain and can often require a specific
waiting period which can last for months before the information is
actually released. It can indeed take time to move information or
documents from the classified domain and make them accessible to the
public. The Department is pursuing a number of initiatives to reduce
the amount of time it takes to declassify and release information to
the public. The Department does not believe that this matter should be
addressed by today's regulation.
One commenter noted that the definitions for ``information'' and
``Government information'' are too broad. The definition for
``information'' is appropriate and is included because it is important
to distinguish, within the RD system, information from the medium of
conveyance, e.g., documents or pictures. The definition of ``Government
information'' is taken directly from E.O. 12958.
The commenter also suggested that classification guides are needed
to limit what information can be classified and that it was unfortunate
that these guides are themselves classified and unavailable to the
public. DOE agrees that classification guides are needed and relies
upon them as the primary source for derivative classification
decisions. Classification guides provide the approved, detailed
instructions describing what specific information is or is not
classified, and the rationale for the instructions. By their very
nature, classification guides must contain detailed descriptions of the
information they are designed to protect. This level of detail in the
guides greatly enhances their sensitivity, and requires that they, for
the most part, be classified. Consequently, the public disclosure of
classification guides would provide information that is harmful to
United States nonproliferation and national security objectives.
The commenter indicated that the term ``national security'' was
vague. The definition for this term is derived directly from E.O.
12958. Commenting on the definition of ``Restricted Data,'' the
commenter stated that the word ``concerning'' is too vague and broad.
The definition for ``Restricted Data'' is derived directly from the
Atomic Energy Act. One commenter expressed concern with the definition
of ``Special Nuclear Material'' indicating that it would allow
innocuous materials to be classified. The definition for ``Special
Nuclear Material'' is derived directly from the Atomic Energy Act.
Section 51 of the Act stipulates that to determine whether other
material is special nuclear material in addition to that specified in
the Act's definition of special nuclear material, the Department must
find the material to be capable of releasing substantial amounts of
atomic energy, that such a determination is in the interest of the
common defense and security, and that the President must have expressly
assented in writing to the determination. Finally, such designation
would be reviewed by the Congress. Based on these requirements, it is
unlikely that an innocuous material could be designated as a special
nuclear material.
The commenter expressed concern that the word ``relating'' as used
in section 1045.4 (c) is overly vague. The Department will apply the
plain English definition of the term ``relating'' in this context.
As used in section 1045.13 (d) and (e), one commenter considered
the terms ``concerns'' and ``unduly'' as subjective. The DOE intends to
apply the plain English definitions for these terms. Plain English
definitions of the word ``concern'' include: ``to relate to; be
connected with; be of interest or importance to; or have an important
relation or bearing.'' This is what is meant here. The word ``unduly''
is used to indicate that different classification levels have different
dissemination restrictions, and the classification level assigned
should be appropriate to the adjudged sensitivity.
One commenter suggests that in sections 1045.4 and 1045.8, DOE is
using this rule to impose its classification system throughout the
Government, to avoid such steps as the automatic 25 year
declassification of NSI documents required by E.O. 12958, and to exert
rights to oversee the operations of other Government agencies. In
particular, the commenter emphasizes his belief that the oversight
function should come from outside the agency. DOE is indeed using this
rule to implement its responsibility to manage the Restricted Data
system Government-wide, as authorized by section 161(p) of the Atomic
Energy Act. DOE welcomes public scrutiny of its operations, but cannot
delegate its statutory responsibility for oversight of the RD system to
the general public or another agency. Additionally, DOE is in
compliance with all provisions of E.O. 12958; it is noted that RD and
FRD are exempt from automatic declassification under section 6.1 of the
E.O.
c. Section-by-Section Analysis
The following describes the public comments which were received, in
the order of the sections to which they pertain.
One commenter recommended that the Director of Declassification,
the Director of Security Affairs, and the NRC have added to their list
of responsibilities a requirement that they must interact with
stakeholders to better understand the public's information needs. In
response to this comment, DOE has added paragraph 1045.4(a)(8) to the
responsibilities of the Director of Declassification which reads,
``Periodically meet with interested members of the public to solicit
input for the classification and declassification program.''
Commenting on section 1045.5, one commenter asked for more detail
concerning what is meant by the phrase ``this part.'' The phrase ``this
part'' refers to the entire regulation; Part 1045 of title 10 of the
Code of Federal Regulations (i.e., 10 CFR Part 1045). This commenter
also requested that section 1045.5 be modified to provide further
detail concerning the possible sanctions and the administrative
authorities. It is not
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appropriate to specify in the regulation all details concerning
administrative sanctions or other penalties since they are dependent on
the offense committed and the circumstances. One commenter suggested
that the Openness Advisory Panel include a representative of the
stakeholder community. While the composition of the panel is not
indicated in section 1045.6, all of its current members are public
stakeholders and the charter of the panel indicates that members will
be selected from the public stakeholder community. One commenter
suggested that it is important that the deliberations of the Panel be
open. All Openness Advisory Panel meetings held to date have been open
to the public. Minutes of the meetings are available in the
Department's FOIA reading room and on the Internet at the DOE OpenNet
web site.
One commenter suggested that the Openness Advisory Panel be
provided with more access to the inner workings of the DOE
classification system, and the panel's recommendations should be made
public at an early stage. The Office of Declassification has ensured
that the panel has access to any information it needs on DOE
classification policies or procedures, including access to classified
information since many of the panel members have security clearances.
Further, DOE is working to ensure that the panel's recommendations are
made available to the public as soon as they are finalized.
One commenter suggested that the Openness Advisory Panel should be
involved in overseeing the individual performance of DOE personnel in
classification activities. The role of the Openness Advisory Panel is
advisory, not oversight.
One commenter suggested that section 1045.7 be modified to ensure
that persons making suggestions or complaints do not face any adverse
action. DOE accepted this suggestion and 1045.7 (d) was added, ``Under
no circumstances shall persons be subject to retribution for making a
suggestion or complaint regarding classification and declassification
policies or programs.''
One commenter recommended that the Openness Coordinator, specified
in section 1045.7, make available to the general public a summary of
all suggestions and complaints received, and of DOE actions taken in
response. DOE plans to include this information in its publicly
available annual report on the implementation of this regulation.
In response to a comment that performance requirements,
specifically related to timeliness of performing classification related
activities in response to public requests, be included throughout the
rule, the Department has added a new section, section 1045.9., to
Subpart A to ensure a system is in place which measures the individual
performance of those personnel who classify or declassify RD documents
on a regular basis. This provision provides the framework for
individual accountability and is the basis for a more credible
classification system. A similar requirement exists for NSI
classification under E.O. 12958.
In a comment on section 1045.12, one commenter suggested that a
publicly available log of declassification actions should be
maintained. DOE has been publishing such a log under the title,
``Restricted Data Declassification Decisions 1946 to the Present.''
Commenting on section 1045.13, one commenter objected to the
inclusion of the word ``solely'' regarding the prohibition on
classifying information bearing solely on the physical environment or
public or worker health and safety. It is DOE's intent to be as open as
possible with information concerning the physical environment or public
or worker health and safety. However, when information of this nature
cannot be revealed without also revealing other information harmful to
the national security, its classification is not prohibited under
section 1045.13. The regulation allows for such circumstances while the
use of the word ``solely'' prohibits the classification of information
that only concerns the physical environment or public or worker health
and safety.
One commenter noted that section 1045.15 presents presumptions
concerning nuclear waste created from the production of nuclear
weapons, but does not deal with the waste produced when weapons are
detonated underground at the Nevada Test Site (NTS). The commenter's
particular interest is in the spatial distribution of waste. Section
1045.15 (b) and (c) point out that not all areas are covered by the
presumptions, and that inclusion of information in a presumption does
not mean that new information in this category is or is not classified.
In 1994, the Department declassified the total waste burden, by
isotope, left at NTS as of January 1, 1994, by all nuclear tests
detonated below or within 100 meters of the water table. To provide
some spatial resolution, tests conducted on Pahute Mesa were aggregated
separately from the total for all other testing areas. No additional
presumptions were added in response to this comment.
Concerning section 1045.16, one commenter stated that, ``guidelines
will have to be more specific to ensure that old conservative habits do
not prevail resulting in many documents either remaining classified
unnecessarily, or classified needlessly. The guidelines also need to be
clear regarding imprecise concepts such as `significant doubt',
`whether the information is so widely known,' etc., for the same
reasons.'' These terms and concepts are not applied to the numerous
document classification and declassification decisions which are made,
only to initial information classification and declassification
decisions. Document classification and declassification decisions are
based primarily on classification guides which indicate whether or not
certain items of information are classified. DOE has not developed
guidelines for these concepts and definitions, primarily because DOE
uses the plain English meaning of these terms and applies them to
information on a case by case basis.
Regarding section 1045.17, one commenter requested that DOE explain
why it included only a limited list of examples of information which is
classified at the various classification levels. The list provided in
the regulation is intended to be merely illustrative, not exhaustive.
One commenter objected to section 1045.18, permitting DOE to
classify newly generated information in a previously declassified
subject area and suggested that it will create a massive abuse of
Government classification powers and should be deleted. This authority
will only allow DOE to judiciously and responsibly classify new
information which truly warrants protection in the interests of
national security. Information already in the public domain will not be
reclassified.
One commenter recommended that, ``a requirement be included that
all proposals for declassification and changes in controlled status be
periodically reported to the public through the Federal Register, and
that progress in pursuing such proposals also be reported.'' Controlled
is a term applied to information that is unclassified but not publicly
releasable. This regulation does not address controlled status, but
section 1045.19, requires that the DOE Director of Declassification
prepare a publicly available report on an annual basis on the
implementation of this regulation. This report will include information
on declassification proposals and progress with such proposals.
With respect to section 1045.19, one commenter suggested that the
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classifier's duty station or agency, address, and telephone number be
marked on a document classified as RD or FRD. Section 1045.40 (b) (4)
requires that the classifier's name and position or title be marked on
the document, if not the same as the document originator or signator.
DOE does not believe the additional information requested needs to be
included in the marking, since DOE can determine this information if
the classifier's name and position or title is provided.
DOE received three comments concerning the Department's authority
to classify RD which is generated outside of the Government, as
specified in section 1045.21. One commenter indicated that this
provision does not adequately define what type of RD will be covered
and is a violation of first amendment rights. Another commenter
suggested that exercising this authority may place sensitive
information at risk and recommended that elimination of the ``born
classified'' provisions of the Atomic Energy Act be sought through
Congressional action. DOE evaluated these comments and determined that
under the Atomic Energy Act, the Department has the authority and the
obligation to apply this section to any information properly classified
as RD. It should be noted that this authority would be exercised only
in the case of a very serious national security matter where no other
course of action is possible. In the past 50 years, this authority has
been exercised only a few times.
DOE received three comments concerning the No Comment Policy as
described in section 1045.22. One commenter indicated that this section
was too broad. Another commenter suggested that the policy should not
apply to all persons with access to RD and FRD because they are not
sufficiently knowledgeable of all classified information in the public
domain and recommended that this policy be restricted to Government
officials and weapon designers. DOE will apply this policy to all
individuals with access to RD and FRD. DOE cannot limit this policy to
apply only to Government officials and weapons designers because RD
information exists in subject areas other than weapons and is in the
possession of numerous cleared contractors. One commenter suggested
that this section is an attempt to intimidate and quiet DOE scientists.
It should be noted that the policy is not intended to restrict
scientists or others from commenting on an aspect of a public statement
that is clearly unclassified, such as the basic physics of a process.
The purpose of this policy is to ensure that classified information
that may already be in the public domain is not officially confirmed,
resulting in damage to the national security or harm to U.S.
nonproliferation objectives. As a result of these comments paragraph
(a) of this section has been modified to read, ``Authorized holders of
RD and FRD shall not confirm or expand upon the classification status
or technical accuracy of classified information in the public domain.''
One commenter suggested that section 1045.35 be restructured to
reflect differing training requirements depending on the type of
authority an individual has. In response to this comment, the
Department has revised section 1045.35(a) to read, ``RD management
officials shall ensure that persons with access to RD and FRD
information are trained on the authorities required to classify and
declassify RD and FRD information and documents and on handling
procedures. RD management officials shall ensure that RD classifiers
are trained on the procedures for classifying, declassifying, marking
and handling RD and FRD information and documents.'' The commenter also
recommended that RD classifiers be certified. The regulation requires
that all RD classifiers be trained and (except within the DoD)
designated. By including these requirements, DOE does not believe that
an additional certification is necessary.
One commenter recommended that the rule strongly encourage, if not
require, portion marking of documents by all agencies. This commenter
also recommended that the bias towards using classification guides
which is expressed in section 1045.32(a)(1) be modified. DOE recognizes
that portion marking of documents containing NSI is required by E.O.
12958 and that portion marking is common practice in most agencies.
However, DOE has made the conscious decision not to portion mark RD and
FRD documents because the DOE classification system relies heavily on
the use of classification guides. DOE prefers the use of classification
guides over the use of source documents for derivative classification
decisions, because use of guides results in more accurate and
consistent classification decisions. The many individual decisions
involved with using a portion marked document as a source document
increase the probability for error. Further, a portion marked document
is not revised to reflect changes in classification guidance and it may
represent out-of-date classification policy, resulting in
overclassification. A non-portion marked document should also not be
used as a source document. While it is possible that RD classifiers may
attempt to use non-portion marked documents as source documents, it is
less likely precisely because they are not portion marked. Therefore,
DOE believes it is preferable not to portion mark in order to encourage
the use of classification guides over source documents.
One commenter suggested that, ``Documents containing both RD and
NSI should be marked on the front page with an `NSI Content
Declassified on' date, which is the date that the document would be
automatically declassified if it contained no RD.'' DOE considered this
proposal but determined that it could not be accepted because under the
Atomic Energy Act, documents containing RD information, regardless of
whether they also contain NSI, must undergo a review prior to their
declassification and release. At such time, the NSI content would also
be reviewed and declassified if appropriate. In addition, this comment
was not adopted because DOE is concerned that such a marking may be
misread and result in the inadvertent disclosure of RD or FRD.
One commenter recommended that the rule contain a requirement that
safety, health and environmental impact analysis/evaluations for
classified facilities and activities contain both classified and
unclassified versions, unless the existence of the facilities or the
activities are considered RD, FRD or NSI. The commenter also suggested
that the rule contain a requirement that the unclassified version
contain documentation for conclusions that provisions for public and
worker protection are at least comparable to that provided at
unclassified facilities and that this requirement should include
provisions for identifying the parts or phrases which are removed and
the bases for the classification. This commenter also recommended that
section 1045.41 specifically require that unclassified versions of
documents be prepared for safety, health and environmental impact
evaluations. In addition, another commenter made a similar suggestion
indicating that when information must be classified which relates to
the environment, the Department should include an analysis of the
classification in the environmental documents. This commenter also
recommended that the rules require in each case that the Department
certify that the classified information cannot be declassified and why.
This regulation cannot impose requirements on the actual content of a
document, only its classification. In
[[Page 68506]]
response to these comments, the Department has enhanced the language in
section 1045.41. A new paragraph, 1045.41(c), has been added which
encourages document originators to provide a publicly releasable
rationale for the classification of documents containing environmental,
safety or health information, when unclassified versions cannot be
prepared. In addition, one commenter recommended that DOE acknowledge
the existence of a classified addendum. DOE accepted this suggestion
and 1045.41(a) has been revised accordingly.
One commenter indicated that ``Section 1045.52(a) proposes that any
information subject to pending litigation is a basis for denial of
declassification reviews'', and recommended this proposal be deleted.
This section indicates that if the Department has reviewed the
information within the past 2 years, or the information is the subject
of pending litigation, the Department shall inform the requester of
this fact and of his or her appeal rights. The language in this section
is derived directly from section 3.6 of E.O. 12958. DOE requested
clarification from ISOO on this section and was advised that if
information is subject to pending litigation, the Department should not
process the request. This does not mean that the request is denied,
rather that the request is not processed until the litigation is
complete. Section 1045.53(a) was revised to reflect this clarification.
This commenter also recommended that this section be revised to
prohibit extension of appeals beyond 60 working days. While DOE makes
every effort to complete appeal actions within the specified time
frame, some actions may require additional time to complete because of
extensive interagency coordination. Therefore, it is not practical to
establish such a prohibition.
d. DOE Revisions
The following describes changes to the regulation made by DOE on
its own initiative, not in response to any public comment. The title of
the rule was changed from ``Information Classification'' to ``Nuclear
Classification and Declassification'' in order to be more descriptive.
In the preamble to the proposed rule, the Department indicated that the
Openness Advisory Panel ``will also serve as an independent authority
to confirm for the public the validity of classification decisions in
instances when the full rationale cannot be disclosed for reasons of
national security.'' A panel of the Secretary of Energy Advisory Board
(SEAB) provides advice and recommendations to the SEAB and therefore
cannot function as an ``independent authority.'' Consequently, the
Openness Advisory Panel will not function as an ``independent
authority'' concerning the validity of classification decisions.
In section 1045.3, the definition of ``contractor'' was revised for
accuracy to read, ``means any industrial, educational, commercial or
other entity, grantee or licensee at all tiers, including an
individual, that has executed an agreement with the Federal Government
for the purpose of performing under a contract, license or other
agreement.'' The definition of ``declassification'' was modified to
reflect that some information may be declassified but still require
protection for national security reasons (e.g., Unclassified Controlled
Nuclear Information). The definition of ``information'' was expanded
for clarity. The definition of ``National Security Information'' was
modified to add the words, ``NSI is referred to as `defense
information' in the Atomic Energy Act.'' This change was made for
clarity. Also, the definition of ``Restricted Data classifier'' was
modified by adding the following words, ``RD classifiers within the DoD
may also declassify FRD documents.'' This change was made for accuracy
and to be consistent with other sections of the regulation.
DOE has added language to section 1045.7(c) which reads, ``DOE will
make every effort to respond within 60 days.'' This change was made to
ensure the Department is responsive to suggestions and complaints.
The Department has added language to section 1045.14(a) which
requires that an RD classifier follow the process for submitting
potential RD for evaluation whenever he or she is unable to locate
classification guidance that can be applied to the information. Under
previous procedures, RD classifiers could classify documents even
though they were unable to locate classification guidance that applied
to the information. This practice evolved from the ``born classified''
concept. This concept is now being de-emphasized since it is DOE
practice that classification is not automatically prescribed.
Consequently, this revision is necessary to ensure classification is
not automatically applied when there is uncertainty as to the need for
it. For completeness, the Department has also added paragraph
(a)(1)(iv) to section 1045.14 which requires that the Director of
Declassification notify classifiers of the information classification
decisions made under this section.
For accuracy, DOE inserted the word, ``category'' after ``RD
classification'' and changed ``Director of Declassification'' to
``Director of Security Affairs'' in section 1045.14(c).
Section 1045.15(c) was modified to clearly state that the
presumptions reflect the classification status of existing information
and that new information in one of the presumption categories may or
may not be classified. The Department has deleted section
1045.15(d)(2), the unclassified presumption which was worded
``instruments and equipment''. DOE was able to find numerous examples
of classified instruments and equipment. Section 1045.15(d)(8) (now
(7)), was revised by inserting the words ``most of'' before ``their
alloys.'' This change was made in response to DOE concerns that not all
alloys and compounds are unclassified.
DOE revised proposed section 1045.15(d)(10) (now (9)), by deleting
the word ``all''. This change was made because there is still one
nuclear test yield range that remains classified. Proposed section
1045.15(d)(12) (now (11)) has been revised to add the words ``not
revealing size or details concerning the nuclear weapons stockpile.''
This revision is necessary because the presumption was too broad.
DOE revised proposed section 1045.15(d)(13) by changing the word
``Operations'' to ``Any information.'' This change was made to broaden
the scope of this ``presumed unclassified'' subject area. The original
wording would have limited the scope to only those operations dealing
exclusively with health, safety, and environmental matters, such as a
site environmental cleanup project. The new wording includes any
health, safety, and environmental information in any program regardless
of its purpose.
As a result of a recent declassification action, the Department
added paragraph 1045.15(d)(14), an unclassified presumption concerning
the association of materials at specified DOE sites.
DOE has also added paragraph (c) to section 1045.16 for
completeness, ``The DOE Directors of Declassification and Security
Affairs shall consider the presumptions in section 1045.15 (d) and (e)
before applying the criteria in paragraph (d) of this section.''
In section 1045.17(a)(1), examples are provided of RD information
which warrants classification at the Top Secret level. For clarity, a
more complete explanation of what type of nuclear weapons design
information warrants classification at the Top Secret level is
provided. Also, paragraph (a)(3) of section 1045.17 has been expanded
to provide more examples of information
[[Page 68507]]
that warrant classification at the Confidential level.
For clarity, the sentence, ``The DOE Director of Declassification
shall not classify the information in such cases if it is widely
disseminated in the public domain'' has been added to section 1045.18.
Proposed section 1045.19(b) has been revised to include an address
where persons may request the annual report on the status of the RD
classification program. This report will be made available to any
interested persons, including the Congress.
To ensure that the requirement to publish a Federal Register notice
does not result in the disclosure of classified or sensitive
information, section 1045.21(c) has been revised to read, ``DOE shall
publish a Federal Register notice when privately generated information
is classified as RD, and shall ensure that the content of the notice is
consistent with protecting the national security and the interests of
the private party.'' Depending upon the circumstances, the Federal
Register notice could be a simple acknowledgment that DOE has exercised
the authority under this section if the identification of the
circumstance would be classified.
Section 1045.32(a)(1) has been revised by deleting the word
``properly'' from the second sentence. DOE recognizes that some source
documents are improperly classified. Nonetheless, RD classifiers may
presume that the classification of a document marked RD or FRD is
proper where there is no conflicting guidance. Therefore, this word has
been removed. Where there is doubt about the classification of a source
document and there is no classification guide topic to address the
information, the RD classifier should follow the process described in
section 1045.14. Paragraphs (a) (1) and (4) and (b)(2) were modified to
reflect that joint Agency-DOE classification guides or Agency guides
coordinated with the DOE should be used in these instances. Paragraph
(a)(3) has been added to section 1045.32 which states ``RD classifiers
shall classify only documents in subject areas in which they have
programmatic expertise.'' The purpose of this revision is to ensure
that information is derivatively classified only by those individuals
who have specific program knowledge of the information being
classified. This is generally an accepted practice throughout the
Government. This provision merely formalizes the procedure. Paragraph
(a)(4) has been added to section 1045.32 to allow RD classifiers to
upgrade or downgrade the classification level of documents.
In section 1045.34, paragraph (b) has been added to read, ``All
contractor organizations with access to RD and FRD, including DoD
contractors, shall designate RD classifiers.'' This change was made to
clarify that the exemption from the designation requirement in
paragraph (a) applies only to DoD federal employees. This provision is
consistent with the National Industrial Security Program Operating
Manual.
DOE changed the words, ``persons working with RD and FRD
information'' to ``all RD classifiers'' in section 1045.37(f). This
change is made since only RD classifiers, not all persons with access
to RD and FRD, need classification guides.
Section 1045.38(c) has been modified by adding the words ``and
FRD'' after ``RD.'' This change is made for accuracy since both RD and
FRD are exempt from the provisions of E.O. 12958.
Concerning the marking requirements in Section 1045.40, it is noted
that these provisions fall under the purview of the DOE Office of
Safeguards and Security, not the DOE Office of Declassification.
Section 1045.40(b)(3) has been modified to require that the date of the
guide or source document used to classify the document being marked, be
identified. This change is made to ensure consistency in requirements
throughout the Government. In section 1045.40(b)(4) ``Name or position/
title'' was changed to ``Name and position or title.''
Proposed section 1045.40(d) was deleted since it did not provide a
regulatory requirement.
For accuracy, in section 1045.40(e), (now (d)), ``RD classifier''
is changed to ``individual authorizing the declassification.''
Section 1045.42 has been revised to reflect that the Interagency
Security Classification Appeals Panel (ISCAP) has no jurisdiction over
Freedom of Information Act appeals.
The following language has been added to section 1045.42(b)(5) in
order to ensure that information that is requested by the public in the
form of a mandatory or Freedom of Information Act request is formally
considered for declassification, ``(i) Appeal reviews of RD or FRD
documents shall be based on existing classification guidance. However,
the DOE Director of Declassification shall review the RD and FRD
information in the appealed document to determine if it may be a
candidate for possible declassification. (ii) If declassification of
the information appears appropriate, the DOE Director of
Declassification shall initiate a formal declassification action and so
advise the requester.''
The person responsible for ensuring that RD documents are
periodically and systematically reviewed for declassification has been
changed from the ``DOE Director of Declassification'' to ``The
Secretary'' in section 1045.43(a). This change was made to elevate the
level of the responsible agency official and to ensure this task is
completed.
The Department revised section 1045.44 to read, ``Any person with
authorized access to RD or FRD who generates a document intended for
public release in an RD or FRD subject area shall ensure that it is
reviewed for classification by the appropriate DOE organization (for
RD) or the appropriate DOE or DoD organization (for FRD) prior to its
release.'' The purpose of this change is to ensure that documents
intended for public release are reviewed by appropriate officials,
rather than by any individual who derivatively classifies RD documents.
Documents originated within the DOE are forwarded to the local
classification officer for prepublication review. Documents originated
outside of the DOE are processed in accordance with agency procedures
and forwarded to the Director of Declassification for prepublication
review.
A new section, section 1045.46, has been added to cover a situation
where two or more pieces of unclassified information when associated or
compiled together could reveal classified information. In the case of
classification by association, two unclassified pieces of information
may, when considered together, reveal classified information. For
example, a shipment of an unclassified commercially available item of
hardware to a contractor whose only activity is a classified project
may cause the fact of the shipment to be classified. In the case of
classification by compilation, a number of pieces of unclassified
information that, when considered together, may contain some added
value such as completeness or comprehensiveness of the information, may
warrant classification. For example, individual DOE bibliographic
citations of weapons data reports may be unclassified, however a
complete compilation of these citations would represent all DOE weapons
research conducted. Such a compilation would provide significant
assistance to a potential proliferant and may therefore warrant
classification. DOE determined that this section is needed to explain
classification of RD or FRD by association or compilation. A similar
[[Page 68508]]
provision exists for classification by association and compilation for
NSI under E.O. 12958.
For accuracy, the words, ``Access to Information'' were removed
from the title of Subpart D. A new section 1045.51 entitled
Applicability has been added, ``This subpart applies to any person with
authorized access to DOE NSI or who desires access to DOE documents
containing NSI.'' The Purpose and Scope paragraph was modified to
include the authorities for the classification of NSI. Sections 1045.51
and 52 were renumbered 1045.52 and 1045.53, respectively.
e. Comments Outside the Scope of the Rule.
The following provides a summary of comments outside the scope of
this regulation. One commenter recommended that the Department examine
the differing requirements within the DOE and the DoD for access to RD.
This comment has been provided to the DOE Office of Safeguards and
Security for consideration, since access requirements are under their
purview.
Several commenters expressed concern with classification issues
under the purview of the Office of Naval Reactors, Naval Nuclear
Propulsion Program. Although the Office of Naval Reactors is subject to
this regulation, they are responsible for implementation of their own
classification program under the provisions of Executive Order 12344.
Consequently, these comments were forwarded to the Office of Naval
Reactors for appropriate disposition.
One commenter also provided a suggestion concerning the DOE
policies for marking and use of ``For Official Use Only (FOUO)'' and
``Unclassified Controlled Nuclear Information (UCNI).'' Since the scope
of this regulation does not include UCNI or FOUO, these comments will
be considered for inclusion in other Departmental policies.
IV. Rulemaking Requirements
A. Review Under Executive Order 12866
One commenter suggested that the rule as proposed constitutes a
``significant regulatory action'' as that term is defined by Executive
Order 12866. That order defines ``significant regulatory action'' as an
action that is likely to result in a rule that may: (1) have an annual
effect on the economy of $100 million or more or adversely affect in a
material way the economy, a sector of the economy, productivity,
competition, jobs, the environment, public health or safety, or State,
local or tribal governments or communities; (2) create a serious
inconsistency or otherwise interfere with an action taken or planned by
another agency; (3) materially alter the budgetary impact of
entitlements, grants, user fees, or loan programs or the rights and
obligations of recipients thereof; or (4) raise novel legal or policy
issues arising out of legal mandates, the President's priorities or the
principles set forth in this Executive Order. Today's rule imposes
requirements on Government agencies, contractors and their employees
that are authorized to have access to RD and FRD information and
documents. Costs incurred by compliance with the rule are paid directly
by the Government or are reimbursed by the Government. Although the
rule's effect on the economy is difficult to gauge precisely, DOE has
determined that the annual effect on the economy will fall far short of
the $100 million threshold and will not adversely affect in a material
way the economy, a sector of the economy, productivity, competition,
jobs, the environment, public health or safety, or State, local, or
tribal governments or communities. DOE has coordinated the development
of the rule with numerous agencies with access to RD and FRD. DOE has
sought and received input and concurrences from DoD, Department of
State and other federal agencies affected by today's rule and does not
expect that the rule will create a serious inconsistency or otherwise
interfere with an action taken or planned by another agency. The rule
has no effect on the budgetary impact of entitlements, grants, user
fees, or loan programs or the rights and obligations of recipients
thereof. Finally, the rule raises no novel legal or policy issues
arising out of legal mandates, the President's priorities, or the
principles set forth in E.O. 12866. Based on the foregoing, DOE has
determined that today's rule does not constitute a ``significant
regulatory action'' as defined in section 3(f) of E.O. 12866.
B. Review Under Paperwork Reduction Act
No new information collection requirements subject to the Paperwork
Reduction Act, 44 U.S.C. 3501 et seq., are imposed by today's
regulatory action.
C. Review Under the National Environmental Policy Act
This regulation amends DOE's policies and procedures for the
classification and declassification of information. Implementation of
this rule will not affect whether such information might cause or
otherwise be associated with any environmental impacts. The Department
has therefore determined that this rule is covered under the
Categorical Exclusion found at paragraph A.5 of Appendix A to Subpart
D, 10 CFR Part 1021, which applies to the establishment of a rulemaking
interpreting or amending an existing rule or regulation that does not
change the environmental effect of the rule or regulation being
amended. Accordingly, neither an environmental assessment nor an
environmental impact statement is required.
D. Review Under Executive Order 12612
Executive Order 12612, 52 FR 41685 (October 30, 1987), requires
that rules be reviewed for any substantial direct effect on States, on
the relationship between the National Government and the States, or in
the distribution of power and responsibilities among various levels of
Government. If there are sufficient substantial direct effects, then
the Executive order requires preparation of a federal assessment to be
used in all decisions involved in promulgating and implementing a
policy action. Today's regulatory action amends DOE's policies and
procedures on information classification and declassification.
Therefore, the Department has determined that this rule will not have a
substantial direct effect on the institutional interests or traditional
functions of States.
E. Review Under Executive Order 12988
Section 3 of Executive Order 12988, 61 FR 4729 (February 7, 1996),
instructs each agency to adhere to certain requirements in promulgating
new regulations. These requirements, set forth in Section 3 (a) and
(b), include eliminating drafting errors and needless ambiguity,
drafting the regulations to minimize litigation, providing clear and
certain legal standards for affected legal conduct, and promoting
simplification and burden reduction. Agencies are also instructed to
make every reasonable effort to ensure that the regulation describes
any administrative proceeding to be available prior to judicial review
and any provisions for the exhaustion of administrative remedies. The
Department has determined that today's regulatory action meets the
requirements of Section 3 (a) and (b) of Executive Order 12988.
F. Review Under the Unfunded Mandates Reform Act of 1995
Title II of the Unfunded Mandates Reform Act of 1995 requires each
Agency to assess the effects of Federal regulatory action on State,
local, and tribal governments and the private sector. Today's
regulatory action
[[Page 68509]]
amends DOE's policies and procedures on information classification and
declassification. The Department has determined that today's regulatory
action does not impose a Federal mandate on State, local, or tribal
governments, or on the private sector.
G. Review Under the Regulatory Flexibility Act
The Regulatory Flexibility Act, 5 U.S.C. 601 et seq., directs
agencies to prepare a regulatory flexibility analysis for each proposed
rule or to certify that the rule will not have a ``significant economic
impact on a substantial number of small entities.'' Today's rule amends
DOE's policies and procedures on information classification and
declassification. The rule applies to all agencies, persons and
entities that generate and maintain RD or FRD information or documents.
The Department has identified over 50 Federal Government entities that
have access to RD or FRD information or documents. Each of these
Government entities may, in turn, have contractors or consultants that
have access to RD or FRD information or documents.
Section 1045.35 imposes on the Government, in the person of the RD
management official, the responsibility to ensure that RD classifiers
are properly trained. That section further imposes on the DOE Director
of Declassification the obligation to develop and review training
materials related to the implementation of this regulation. The
regulation imposes on non-Government entities the requirement that
persons with access to RD or FRD be properly trained. The economic
impact of the training requirement on non-Government entities is
limited to the labor hours required to familiarize those persons with
access to RD and FRD with the training materials provided by DOE and
the RD management official.
Section 1045.40 requires that Government and non-Government RD
classifiers clearly mark each new document generated to convey that it
contains RD or FRD information. The burden of the marking requirement
varies depending on the number of documents the entity generates. DOE
considers the proper marking of a classified document to be an act
integrated in the act of creating the document. As such, the marking of
individual documents containing RD and FRD imposes minimal costs on the
entity generating new RD documents.
Finally, DOE recognizes that non-Government entities that generate
documents containing RD or FRD will do so pursuant to a Government
contract. In those instances, any costs incurred in compliance with the
regulation will be charged back to the Government.
Based on the foregoing, DOE has determined that the rule will not
have a ``significant economic impact.'' As permitted by section 605 of
the Regulatory Flexibility Act, DOE certifies that this rule will not
have a significant economic impact on a substantial number of small
entities.
H. Review Under Small Business Regulatory Enforcement Fairness Act of
1996
As required by 5 U.S.C. 801, DOE will report to Congress on the
promulgation of the rule prior to its effective date. The report will
state that it has been determined that the rule is not a ``major rule''
as defined by 5 U.S.C. 804(3).
V. Freedom of Information Act (FOIA) Considerations
RD and FRD classified under the Atomic Energy Act fall within the
scope of exemption 3 of the FOIA (5 U.S.C. 552(b)(3)). Thus RD and FRD
are not subject to disclosure under the FOIA. Similarly, information
that is properly classified as NSI under E.O. 12958 may be withheld
from disclosure under exemption 1 of the FOIA.
DOE shall process requests for documents made under the FOIA in
accordance with applicable DOE regulations and orders which implement
the FOIA within the Department. DOE shall process these requests
promptly and shall respond to the requester in a timely manner. DOE
shall coordinate requests involving FRD information and RD information
which relates primarily to the military utilization of nuclear weapons
with the DoD. The Director of Security Affairs shall decide all appeals
of denials of requests for classified information covered by sections
141 and 142 of the Atomic Energy Act and E.O. 12958.
List of Subjects in 10 CFR Part 1045
Classified information, Declassification, National security
information.
Issued in Washington, DC, on December 22, 1997.
Federico Pena,
Secretary of Energy.
For the reasons set forth in the preamble, 10 CFR Part 1045 is
revised to read as follows:
PART 1045--NUCLEAR CLASSIFICATION AND DECLASSIFICATION
Subpart A--Program Management of the Restricted Data and Formerly
Restricted Data Classification System
Sec.
1045.1 Purpose and scope.
1045.2 Applicability.
1045.3 Definitions.
1045.4 Responsibilities.
1045.5 Sanctions.
1045.6 Openness Advisory Panel.
1045.7 Suggestions or complaints.
1045.8 Procedural exemptions.
1045.9 RD classification performance evaluation.
Subpart B--Identification of Restricted Data and Formerly Restricted
Data Information
1045.10 Purpose and scope.
1045.11 Applicability.
1045.12 Authorities.
1045.13 Classification prohibitions.
1045.14 Process for classification and declassification of
restricted data and formerly restricted data information.
1045.15 Classification and declassification presumptions.
1045.16 Criteria for evaluation of restricted data and formerly
restricted data information.
1045.17 Classification levels.
1045.18 Newly generated information in a previously declassified
subject area.
1045.19 Accountability for classification and declassification
determinations.
1045.20 Ongoing call for declassification proposals.
1045.21 Privately generated restricted data.
1045.22 No comment policy.
Subpart C--Generation and Review of Documents Containing Restricted
Data and Formerly Restricted Data
1045.30 Purpose and scope.
1045.31 Applicability.
1045.32 Authorities.
1045.33 Appointment of restricted data management official.
1045.34 Designation of restricted data classifiers.
1045.35 Training requirements.
1045.36 Reviews of agencies with access to restricted data and
formerly restricted data.
1045.37 Classification guides.
1045.38 Automatic declassification prohibition.
1045.39 Challenging classification and declassification
determinations.
1045.40 Marking requirements.
1045.41 Use of classified addendums.
1045.42 Mandatory and Freedom of Information Act reviews for
declassification of restricted data and formerly restricted data
documents.
1045.43 Systematic review for declassification.
1045.44 Classification review prior to public release.
[[Page 68510]]
1045.45 Review of unmarked documents with potential restricted data
or formerly restricted data.
1045.46 Classification by association or compilation.
Subpart D--Executive Order 12958, ``Classified National Security
Information'' Requirements Affecting the Public
1045.50 Purpose and scope.
1045.51 Applicability.
1045.52 Mandatory declassification review requests.
1045.53 Appeal of denial of mandatory declassification review
requests.
Authority: 42 U.S.C. 2011; E.O. 12958, 60 FR 19825, 3 CFR, 1995
Comp., p. 333.
Subpart A--Program Management of the Restricted Data and Formerly
Restricted Data Classification System
Sec. 1045.1 Purpose and scope.
This subpart establishes responsibilities associated with this
part, describes the Openness Advisory Panel, defines key terms,
describes sanctions related to violation of the policies and procedures
in this part, and describes how to submit suggestions or complaints
concerning the Restricted Data classification and declassification
program, and how to request procedural exceptions.
Sec. 1045.2 Applicability.
This subpart applies to--
(a) Any person with authorized access to RD or FRD;
(b) Any agency with access to RD or FRD; and
(c) Any person who might generate information determined to be RD
or FRD.
Sec. 1045.3 Definitions.
As used in this part:
Agency means any ``Executive Agency'' as defined in 5 U.S.C. 105;
any ``Military Department'' as defined in 5 U.S.C. 102; and any other
entity within the executive branch that comes into possession of RD or
FRD information or documents.
Atomic Energy Act means the Atomic Energy Act of 1954, as amended
(42 U.S.C. 2011 et seq.).
Authorized Holder means a person with the appropriate security
clearance required to have access to classified information and the
need to know the information in the performance of Government-approved
activities.
Automatic Declassification means the declassification of
information or documents based solely upon:
(1) The occurrence of a specific date or event as determined by the
classifier; or
(2) The expiration of a maximum time frame for duration of
classification established under Executive Order 12958.
Classification means the act or process by which information is
determined to be classified information.
Classification Guide means a written record of detailed
instructions as to whether specific information is classified, usually
concerning a system, plan, project, or program. It identifies
information to be classified and specifies the level (and duration for
NSI only) of classification assigned to such information.
Classification guides are the primary basis for reviewing documents to
determine whether they contain classified information.
Classification Level means one of three designators:
(1) Top Secret is applied to information (RD, FRD, or NSI), the
unauthorized disclosure of which reasonably could be expected to cause
exceptionally grave damage to the national security that the
appropriate official is able to identify or describe.
(2) Secret is applied to information (RD, FRD, or NSI), the
unauthorized disclosure of which reasonably could be expected to cause
serious damage to the national security that the appropriate official
is able to identify or describe.
(3) Confidential. (i) For NSI, Confidential is applied to
information, the unauthorized disclosure of which reasonably could be
expected to cause damage to the national security that the appropriate
official is able to identify or describe.
(ii) For RD and FRD, Confidential is applied to information, the
unauthorized disclosure of which could reasonably be expected to cause
undue risk to the common defense and security that the appropriate
official is able to identify or describe.
Classified Information means:
(1) Information classified as RD or FRD under the Atomic Energy
Act; or
(2) Information determined to require protection against
unauthorized disclosure under Executive Order (E.O.) 12958 or prior
Executive Orders (also identified as National Security Information or
NSI).
Contractor means any industrial, educational, commercial or other
entity, grantee or licensee at all tiers, including an individual, that
has executed an agreement with the Federal Government for the purpose
of performing under a contract, license or other agreement.
Declassification means a determination by appropriate authority
that information or documents no longer require protection, as
classified information, against unauthorized disclosure in the
interests of national security.
Department or DOE means Department of Energy.
Director of Declassification means the Department of Energy
Director, Office of Declassification, or any person to whom the
Director's duties are delegated. The Director of Declassification is
subordinate to the Director of Security Affairs.
Director of Security Affairs means the Department of Energy
Director, Office of Security Affairs, or any person to whom the
Director's duties are delegated.
Document means the physical medium on or in which information is
recorded, or a product or substance which contains or reveals
information, regardless of its physical form or characteristics.
Formerly Restricted Data (FRD) means classified information jointly
determined by DOE and the DoD to be related primarily to the military
utilization of nuclear weapons and removed (by transclassification)
from the RD category pursuant to section 142(d) of the Atomic Energy
Act.
Government means the executive branch of the Federal Government of
the United States.
Government Information means information that is owned by, produced
by or for, or is under the control of the U.S. Government.
Information means facts, data, or knowledge itself, as opposed to
the medium in which it is contained.
Interagency Security Classification Appeals Panel (ISCAP) means a
panel created pursuant to Executive Order 12958 to perform functions
specified in that order with respect to National Security Information.
National Security means the national defense or foreign relations
of the United States.
National Security Information (NSI) means information that has been
determined pursuant to Executive Order 12958 or prior Executive Orders
to require protection against unauthorized disclosure and is marked to
indicate its classification status when in document form. NSI is
referred to as ``defense information'' in the Atomic Energy Act.
Nuclear weapon means atomic weapon.
Person means:
(1) Any individual, contractor, corporation, partnership, firm,
association, trust, estate, public or private institution, group,
Government agency, any State, or any political subdivision thereof, or
any political entity within a State; and
(2) Any legal successor, representative, agent, or agency of the
foregoing.
Portion Marking means the application of certain classification
[[Page 68511]]
markings to individual words, phrases, sentences, paragraphs, or
sections of a document to indicate their specific classification level
and category.
Restricted Data (RD) means a kind of classified information that
consists of all data concerning the following, but not including data
declassified or removed from the RD category pursuant to section 142 of
the Atomic Energy Act:
(1) Design, manufacture, or utilization of atomic weapons;
(2) Production of special nuclear material; or
(3) Use of special nuclear material in the production of energy.
Restricted Data Classifier means an individual who derivatively
classifies RD or FRD documents. Within the DoD, RD classifiers may also
declassify FRD documents.
Restricted Data Management Official means an individual appointed
by any agency with access to RD and FRD who is responsible for managing
the implementation of this part within that agency or any person to
whom these duties are delegated. This person may be the senior agency
official required by E.O. 12958.
Secretary means the Secretary of Energy.
Source Document means a classified document, other than a
classification guide, from which information is extracted for inclusion
in another document. The classification of the information extracted is
determined by the classification markings shown in the source document.
Special Nuclear Material means plutonium, uranium enriched in the
isotope 233 or in the isotope 235, and any other material which the
Secretary determines to be special nuclear material pursuant to the
Atomic Energy Act.
Sec. 1045.4 Responsibilities.
(a) The DOE Director of Declassification shall:
(1) Manage the Government-wide system for the classification and
declassification of RD and FRD in accordance with the Atomic Energy
Act;
(2) In coordination with the DoD, develop regulations to implement
the RD and FRD classification system;
(3) Determine whether nuclear-related information is RD;
(4) Oversee agency implementation of the RD and FRD classification
system to ensure compliance with this part;
(5) Review agency implementing policies and conduct on-site reviews
of each agency's program established under this part;
(6) Prepare and distribute classification guides concerning RD and
FRD and review such guides developed by any agency;
(7) Consider and take action on complaints and suggestions from any
person with respect to administration of this program; and
(8) Periodically meet with interested members of the public to
solicit input for the classification and declassification program.
(b) The DOE Director of Security Affairs shall:
(1) Declassify RD which may be published without undue risk to the
common defense and security;
(2) Jointly with the DoD, determine which information in the RD
category relating primarily to the miliary utilization of nuclear
weapons may be declassified or placed into the FRD category; and
(3) Jointly with the DoD, declassify FRD which may be published
without undue risk to the common defense and security.
(c) The DoD jointly with the DOE shall:
(1) Determine which information in the RD category relating
primarily to the military utilization of nuclear weapons may be
declassified or placed into the FRD category;
(2) Ensure that classification guides for FRD and RD relating
primarily to the military utilization of nuclear weapons are prepared;
and
(3) Declassify FRD and RD relating primarily to the military
utilization of nuclear weapons which may be published without undue
risk to the common defense and security.
(d) The Nuclear Regulatory Commission (NRC) shall:
(1) Jointly with the DOE, develop classification guides for
programs over which both agencies have cognizance; and
(2) Ensure the review and proper classification of RD by RD
classifiers under this part, which is generated by the NRC or by its
licensed or regulated facilities and activities.
(e) Heads of Agencies with access to RD and FRD shall:
(1) Ensure that RD and FRD are classified in such a manner as to
assure the common defense and security in accordance with the policies
established in this part;
(2) Designate an RD management official to direct and administer
the RD classification program within the agency; and
(3) Promulgate implementing directives.
(f) Agency RD management officials shall:
(1) Jointly with the DOE, develop classification guides for
programs over which both agencies have cognizance;
(2) Ensure that agency and contractor personnel who generate RD and
FRD documents have access to any classification guides needed;
(3) Ensure that persons with access to RD and FRD are trained on
the authorities required to classify and declassify RD and FRD
information and documents and on handling procedures and that RD
classifiers are trained on the procedures for classifying,
declassifying, marking and handling RD and FRD information and
documents; and
(4) Cooperate and provide information as necessary to the DOE
Director of Declassification to fulfill responsibilities under this
part.
Sec. 1045.5 Sanctions.
(a) Knowing, willful, or negligent action contrary to the
requirements of this part which results in the misclassification of
information may result in appropriate sanctions. Such sanctions may
range from administrative sanctions to civil or criminal penalties,
depending on the nature and severity of the action as determined by
appropriate authority, in accordance with applicable laws.
(b) Other violations of the policies and procedures contained in
this part may be grounds for administrative sanctions as determined by
appropriate authority.
Sec. 1045.6 Openness Advisory Panel.
The DOE shall maintain an Openness Advisory Panel, in accordance
with the Federal Advisory Committee Act, to provide the Secretary with
independent advice and recommendations on Departmental openness
initiatives, including classification and declassification issues that
affect the public.
Sec. 1045.7 Suggestions or complaints.
(a) Any person who has suggestions or complaints regarding the
Department's classification and declassification policies and
procedures may direct them in writing to the Openness Coordinator,
Department of Energy, Office of Declassification, 19901 Germantown
Road, Germantown, Maryland 20874-1290.
(b) Such letters should include a description of the issue or
problem, the suggestion or complaint, all applicable background
information, and an address for the response.
(c) DOE will make every effort to respond within 60 days.
(d) Under no circumstances shall persons be subject to retribution
for making a suggestion or complaint regarding the Department's
classification and declassification policies or programs.
[[Page 68512]]
Sec. 1045.8 Procedural exemptions.
(a) Exemptions to the procedural provisions of this part may be
granted by the DOE Director of Declassification.
(b) A request for an exemption shall be made in writing to the DOE
Director of Declassification and shall provide all relevant facts,
justification, and a proposed alternate procedure.
Sec. 1045.9 RD classification performance evaluation.
(a) Heads of agencies shall ensure that RD management officials and
those RD classifiers whose duties involve the classification or
declassification of significant numbers of RD or FRD documents shall
have their personnel performance evaluated with respect to
classification activities.
(b) Procedures for the evaluation under paragraph (a) of this
section may be the same as those in place for NSI related
classification activities as required by Executive Order 12958.
Subpart B--Identification of Restricted Data and Formerly
Restricted Data Information
Sec. 1045.10 Purpose and scope.
(a) This subpart implements sections 141 and 142 (42 U.S.C. 2161
and 2162) of the Atomic Energy Act, which provide for Government-wide
policies and procedures concerning the classification and
declassification of RD and FRD information.
(b) This subpart establishes procedures for classification
prohibitions for RD and FRD, describes authorities and procedures for
identifying RD and FRD information, and specifies the policies and
criteria DOE shall use in determining if nuclear-related information is
RD or FRD.
Sec. 1045.11 Applicability.
This subpart applies to--
(a) Any person with authorized access to RD or FRD;
(b) Any agency with access to RD or FRD; and
(c) Any person who might generate information determined to be RD
or FRD.
Sec. 1045.12 Authorities.
(a) The DOE Director of Declassification may determine whether
nuclear-related information is RD.
(b) Except as provided in paragraph (c) of this section, the DOE
Director of Security Affairs may declassify RD information.
(c) The DOE Director of Security Affairs, jointly with the DoD, may
determine which information in the RD category relating primarily to
the military utilization of nuclear weapons may be declassified or
placed into the FRD category.
(d) The DOE Director of Security Affairs jointly with the DoD may
declassify FRD information.
Sec. 1045.13 Classification prohibitions.
In no case shall information be classified RD or FRD in order to:
(a) Conceal violations of law, inefficiency, or administrative
error;
(b) Prevent embarrassment to a person, organization, or Agency;
(c) Restrain competition;
(d) Prevent or delay the release of information that does not
require protection for national security or nonproliferation reasons;
(e) Unduly restrict dissemination by assigning an improper
classification level; or
(f) Prevent or delay the release of information bearing solely on
the physical environment or public or worker health and safety.
1045.14 Process for classification and declassification of restricted
data and formerly restricted data information.
(a) Classification of Restricted Data. (1) Submission of Potential
RD for Evaluation. Any authorized holder who believes he or she has
information which may be RD shall submit it to an RD classifier for
evaluation. The RD classifier shall follow the process described in
this paragraph whenever he or she is unable to locate guidance in a
classification guide that can be applied to the information. The RD
classifier shall forward the information to the DOE Director of
Declassification via their local classification or security office. The
DOE Director of Declassification shall determine whether the
information is RD within 90 days of receipt by doing the following:
(i) Determine whether the information is already classified RD
under current classification guidance; or
(ii) If it is not already classified, determine if the information
concerns the design, manufacture, or utilization of nuclear weapons;
the production of special nuclear material; or the use of special
nuclear material in the production of energy; and
(A) Apply the criteria in Sec. 1045.16 and Sec. 1045.17 as the
basis for determining the appropriate classification; and
(B) Provide notification of the decision by revising applicable
classification guides, if appropriate.
(2) Protection of Potential RD during Evaluation. Pending a
determination by the DOE Director of Declassification, potential RD
submitted for evaluation by authorized holders shall be protected at a
minimum as Confidential Restricted Data.
(b) Declassification of Restricted Data. The DOE Director of
Security Affairs shall apply the criteria in Sec. 1045.16 when
determining whether RD may be declassified.
(c) Classification of Formerly Restricted Data. The DOE Director of
Security Affairs, jointly with the DoD, shall remove information which
relates primarily to the military utilization of nuclear weapons from
the RD classification category and classify it as FRD.
(d) Declassification of Formerly Restricted Data. The DOE Director
of Security Affairs, jointly with the DoD, shall apply the criteria in
Sec. 1045.16 when determining whether FRD may be declassified.
Sec. 1045.15 Classification and declassification presumptions.
(a) The DOE Directors of Declassification and Security Affairs
shall consider the presumptions listed in paragraphs (d) and (e) of
this section before applying the criteria in Sec. 1045.16.
(b) Not all areas of nuclear-related information are covered by the
presumptions.
(c) In general, existing information listed in paragraphs (d) and
(e) of this section has the classification status indicated. Inclusion
of specific existing information in one of the presumption categories
does not mean that new information in a category is or is not
classified, but only that arguments to differ from the presumed
classification status of the information should use the appropriate
presumption as a starting point.
(d) The DOE Directors of Declassification and Security Affairs
shall presume that information in the following areas is unclassified
unless application of the criteria in Sec. 1045.16 indicates otherwise:
(1) Basic science: mathematics, chemistry, theoretical and
experimental physics, engineering, materials science, biology and
medicine;
(2) Magnetic confinement fusion technology;
(3) Civilian power reactors, including nuclear fuel cycle
information but excluding technologies for uranium enrichment;
(4) Source materials (defined as uranium and thorium and ores
containing them);
(5) Fact of use of safety features (e.g., insensitive high
explosives, fire resistant pits) to lower the risks and reduce the
consequences of nuclear weapon accidents;
(6) Generic weapons effects;
[[Page 68513]]
(7) Physical and chemical properties of uranium and plutonium, most
of their alloys and compounds, under standard temperature and pressure
conditions;
(8) Nuclear fuel reprocessing technology and reactor products not
revealing classified production rates or inventories;
(9) The fact, time, location, and yield range (e.g., less than 20
kilotons or 20-150 kilotons) of U.S. nuclear tests;
(10) General descriptions of nuclear material production processes
and theory of operation;
(11) DOE special nuclear material aggregate inventories and
production rates not revealing size or details concerning the nuclear
weapons stockpile;
(12) Types of waste products resulting from all DOE weapon and
material production operations;
(13) Any information solely relating to the public and worker
health and safety or to environmental quality; and
(14) The simple association or simple presence of any material
(i.e., element, compound, isotope, alloy, etc.) at a specified DOE
site.
(e) The DOE Directors of Declassification and Security Affairs
shall presume that information in the following areas is classified
unless the application of the criteria in Sec. 1045.16 indicates
otherwise:
(1) Detailed designs, specifications, and functional descriptions
of nuclear explosives, whether in the active stockpile or retired;
(2) Material properties under conditions achieved in nuclear
explosions that are principally useful only for design and analysis of
nuclear weapons;
(3) Vulnerabilities of U.S. nuclear weapons to sabotage,
countermeasures, or unauthorized use;
(4) Nuclear weapons logistics and operational performance
information (e.g., specific weapon deployments, yields, capabilities),
related to military utilization of those weapons required by the DoD;
(5) Details of the critical steps or components in nuclear material
production processes; and
(6) Features of military nuclear reactors, especially naval nuclear
propulsion reactors, that are not common to or required for civilian
power reactors.
Sec. 1045.16 Criteria for evaluation of restricted data and formerly
restricted data information.
(a) The DOE Director of Declassification shall classify information
as RD and the DOE Director of Security Affairs shall maintain the
classification of RD (and FRD in coordination with the DoD) only if
undue risk of damage to the common defense and security from its
unauthorized disclosure can be identified and described.
(b) The DOE Director of Declassification shall not classify
information and the DOE Director of Security Affairs shall declassify
information if there is significant doubt about the need to classify
the information.
(c) The DOE Directors of Declassification and Security Affairs
shall consider the presumptions in Sec. 1045.15 (d) and (e) before
applying the criteria in paragraph (d) of this section.
(d) In determining whether information should be classified or
declassified, the DOE Directors of Declassification and Security
Affairs shall consider the following:
(1) Whether the information is so widely known or readily apparent
to knowledgeable observers that its classification would cast doubt on
the credibility of the classification system;
(2) Whether publication of the information would assist in the
development of countermeasures or otherwise jeopardize any U.S. weapon
or weapon system;
(3) Whether the information would hinder U.S. nonproliferation
efforts by significantly assisting potential adversaries to develop or
improve a nuclear weapon capability, produce nuclear weapons materials,
or make other military use of nuclear energy;
(4) Whether publication of the information would have a detrimental
effect on U.S. foreign relations;
(5) Whether publication of the information would benefit the public
welfare, taking into account the importance of the information to
public discussion and education and potential contribution to economic
growth; and, 6) Whether publication of the information would benefit
the operation of any Government program by reducing operating costs or
improving public acceptance.
1045.17 Classification levels.
(a) Restricted Data. The DOE Director of Declassification shall
assign one of the following classification levels to RD information to
reflect the sensitivity of the information to the national security.
The greater the damage expected from unauthorized disclosure, the
higher the classification level assigned to the information.
(1) Top Secret. The DOE Director of Declassification shall classify
RD information Top Secret if it is vital to the national security and
if its unauthorized disclosure could reasonably be expected to cause
exceptionally grave damage to the national security. Examples of RD
information that warrant Top Secret classification include detailed
technical descriptions of critical features of a nuclear explosive
design that would enable a proliferant or nuclear power to build or
substantially improve a nuclear weapon, information that would make
possible the unauthorized use of a U.S. nuclear weapon, or information
revealing catastrophic failure or operational vulnerability in a U.S.
nuclear weapon.
(2) Secret. The DOE Director of Declassification shall classify RD
information as Secret if its unauthorized disclosure could reasonably
be expected to cause serious damage to the national security, but the
RD information is not sufficiently comprehensive to warrant designation
as Top Secret. Examples of RD information that warrant Secret
classification include designs for specific weapon components (not
revealing critical features), key features of uranium enrichment
technologies, or specifications of weapon materials.
(3) Confidential. The DOE Director of Declassification shall
classify RD information as Confidential if it is deemed to be of
significant use to a potential adversary or nuclear proliferant and its
unauthorized disclosure could reasonably be expected to cause undue
risk to the common defense and security. Examples of RD information
that warrant Confidential classification are the amount of high
explosives used in nuclear weapons, gaseous diffusion design
information, and design information for Naval reactors.
(b) Formerly Restricted Data. The DOE Director of Declassification,
jointly with the DoD, shall assign one of the classification levels in
paragraph (a) of this section to FRD information to reflect its
sensitivity to the national security.
Sec. 1045.18 Newly generated information in a previously declassified
subject area.
(a) The DOE Director of Declassification may evaluate newly
generated specific information in a previously declassified subject
area using the criteria in section 1045.16 and classify it as RD, if
warranted.
(b) The DOE Director of Declassification shall not classify the
information in such cases if it is widely disseminated in the public
domain.
[[Page 68514]]
Sec. 1045.19 Accountability for classification and declassification
determinations.
(a) Whenever a classification or declassification determination
concerning RD or FRD information is made, the DOE Directors of
Declassification and Security Affairs shall be able to justify the
determination. For FRD and RD primarily related to military
utilization, the DOE Directors of Declassification and Security Affairs
shall coordinate the determination and justification with the DoD. If
the determination involves a departure from the presumptions in
Sec. 1045.15, the justification shall include a rationale for the
departure. Often the justification itself will contain RD or FRD
information. In such a case, the DOE Directors of Declassification and
Security Affairs shall ensure that a separate justification can be
prepared which is publicly releasable. The publicly releasable
justification shall be made available to any interested person upon
request to the DOE Director of Declassification.
(b) The DOE Director of Declassification shall prepare a report on
an annual basis on the implementation of this part. This report shall
be available to any interested person upon request to the DOE Director
of Declassification. Requests may be submitted to the Department of
Energy, Director of Declassification, 19901 Germantown Road,
Germantown, Maryland 20874-1290.
Sec. 1045.20 Ongoing call for declassification proposals.
The DOE Director of Security Affairs shall consider proposals from
the public or agencies or contractors for declassification of RD and
FRD information on an ongoing basis. Declassification proposals for RD
and FRD information shall be forwarded to the Department of Energy,
Director of Security Affairs, 1000 Independence Avenue SW, Washington,
DC 20585. Any proposed action shall include a description of the
information concerned and may include a reason for the request. DOE and
DoD shall coordinate with one another concerning declassification
proposals for FRD information.
Sec. 1045.21 Privately generated restricted data.
(a) DOE may classify RD which is privately generated by persons not
pursuant to Government contracts, in accordance with the Atomic Energy
Act.
(b) In order for information privately generated by persons to be
classified as RD, the Secretary or Deputy Secretary shall make the
determination personally and in writing. This authority shall not be
delegated.
(c) DOE shall publish a Federal Register notice when privately
generated information is classified as RD, and shall ensure that the
content of the notice is consistent with protecting the national
security and the interests of the private party.
Sec. 1045.22 No comment policy.
(a) Authorized holders of RD and FRD shall not confirm or expand
upon the classification status or technical accuracy of classified
information in the public domain.
(b) Unauthorized disclosure of classified information does not
automatically result in the declassification of that information.
(c) If the disclosure of classified information is sufficiently
authoritative or credible, the DOE Director of Security Affairs shall
examine the possibility of declassification.
Subpart C--Generation and Review of Documents Containing Restricted
Data and Formerly Restricted Data
Sec. 1045.30 Purpose and scope.
This subpart specifies Government-wide classification program
implementation requirements for agencies with access to RD and FRD,
describes authorities and procedures for RD and FRD document
classification and declassification, provides for periodic or
systematic review of RD and FRD documents, and describes procedures for
the mandatory review of RD and FRD documents. This subpart applies to
all RD and FRD documents, regardless of whether they also contain
National Security Information (NSI), or other controlled information
such as ``For Official Use Only'' information or ``Unclassified
Controlled Nuclear Information.''
Sec. 1045.31 Applicability.
This subpart applies to--
(a) Any person with authorized access to RD or FRD;
(b) Any agency with access to RD or FRD; and
(c) Any person generating a document containing RD or FRD.
Sec. 1045.32 Authorities.
(a) Classification of RD and FRD documents. (1) To the maximum
extent practical, all RD and FRD documents shall be classified based on
joint DOE-Agency classification guides or Agency guides coordinated
with the DOE. When it is not practical to use classification guides,
source documents may be used as an alternative.
(2) Only individuals designated as RD classifiers may classify RD
and FRD documents, except within the DoD. Within the DoD, any
individual with access to RD and FRD who has been trained may classify
RD and FRD documents.
(3) RD classifiers shall classify only documents in subject areas
in which they have programmatic expertise.
(4) RD classifiers may upgrade or downgrade the classification
level of RD or FRD documents in accordance with joint DOE-Agency
classification guides or Agency guides coordinated with the DOE. When
it is not practical to use classification guides, source documents may
be used as an alternative.
(b) Declassification of RD and FRD documents. (1) Only designated
individuals in the DOE may declassify documents containing RD.
(2) Except as provided in paragraph (b)(3) of this section, only
designated individuals in the DOE or appropriate individuals in DoD may
declassify documents marked as FRD in accordance with joint DoD-DOE
classification guides or DoD guides coordinated with the DOE.
(3) The DOE and DoD may delegate these authorities to other
agencies and to contractors. Contractors without the delegated
authority shall send any document marked as RD or FRD that needs to be
considered for declassification to the appropriate agency office.
Sec. 1045.33 Appointment of restricted data management official.
(a) Each agency with access to RD or FRD shall appoint an official
to be responsible for the implementation of this part and shall advise
the DOE Director of Declassification of such appointment.
(b) This official shall ensure the proper implementation of this
part within his or her agency and shall serve as the primary point of
contact for coordination with the DOE Director of Declassification on
RD and FRD classification and declassification issues.
(c) Within the DoD, an RD management official shall be appointed in
each DoD agency.
Sec. 1045.34 Designation of restricted data classifiers.
(a) Except within the DoD, RD management officials shall ensure
that persons who derivatively classify RD or FRD documents are
designated by position or by name as RD classifiers.
(b) All contractor organizations with access to RD and FRD,
including DoD contractors, shall designate RD classifiers.
[[Page 68515]]
Sec. 1045.35 Training requirements.
(a) RD management officials shall ensure that persons with access
to RD and FRD information are trained on the authorities required to
classify and declassify RD and FRD information and documents and on
handling procedures. RD management officials shall ensure that RD
classifiers are trained on the procedures for classifying,
declassifying, marking and handling RD and FRD information and
documents.
(b) The DOE Director of Declassification shall develop training
materials related to implementation of this part and shall provide
these materials to RD management officials and any other appropriate
persons.
(c) The DOE Director of Declassification shall review any RD-
related training material submitted by agency and contractor
representatives to ensure consistency with current policy.
Sec. 1045.36 Reviews of agencies with access to restricted data and
formerly restricted data.
(a) The DOE and each agency with access to RD and FRD shall consult
periodically to assure appropriate implementation of this part. Such
consultations may result in DOE conducting an on-site review within the
agency if DOE and the RD management official determine that such a
review would be mutually beneficial or that it is necessary to remedy a
problem.
(b) To address issues concerning implementation of this part, the
DOE Director of Declassification shall establish a standing group of
all RD management officials to meet periodically.
Sec. 1045.37 Classification guides.
(a) The classification and declassification determinations made by
the DOE Directors of Declassification and Security Affairs under the
classification criteria in Sec. 1045.16 shall be promulgated in
classification guides.
(b) DOE shall jointly develop classification guides with the DoD,
NRC, NASA, and other agencies as required for programs for which DOE
and these agencies share responsibility.
(c) Agencies shall coordinate with the DOE Director of
Declassification whenever they develop or revise classification guides
with RD or FRD information topics.
(d) Originators of classification guides with RD or FRD topics
shall review such guides at least every five years and make revisions
as necessary.
(e) RD classifiers shall use classification guides as the primary
basis for classifying and declassifying documents containing RD and
FRD.
(f) Each RD management official shall ensure that all RD
classifiers have access to all pertinent nuclear classification guides.
Sec. 1045.38 Automatic declassification prohibition.
(a) Documents containing RD and FRD remain classified until a
positive action by an authorized person is taken to declassify them.
(b) In accordance with the Atomic Energy Act, no date or event for
automatic declassification ever applies to RD and FRD documents, even
if such documents also contain NSI.
(c) E.O. 12958 acknowledges that RD and FRD are exempt from all
provisions of the E.O., including automatic declassification.
Sec. 1045.39 Challenging classification and declassification
determinations.
(a) Any authorized holder of an RD or FRD document who, in good
faith, believes that the RD or FRD document has an improper
classification status is encouraged and expected to challenge the
classification with the RD Classifier who classified the document.
(b) Agencies shall establish procedures under which authorized
holders of RD and FRD documents are encouraged and expected to
challenge any classification status they believe is improper. These
procedures shall assure that:
(1) Under no circumstances are persons subject to retribution for
bringing forth a classification challenge.
(2) The individual who initially receives the challenge provides a
response within 90 days to the person bringing forth the challenge.
(3) A decision concerning a challenge involving RD or FRD may be
appealed to the DOE Director of Declassification. In the case of FRD
and RD related primarily to the military utilization of nuclear
weapons, the DOE Director of Declassification shall coordinate with the
DoD. If the justification for classification does not satisfy the
person making the challenge, a further appeal may be made to the DOE
Director of Security Affairs.
(c) Classification challenges concerning documents containing RD
and FRD information are not subject to review by the Interagency
Security Classification Appeals Panel, unless those documents also
contain NSI which is the basis for the challenge. In such cases, the RD
and FRD portions of the document shall be deleted and then the NSI and
unclassified portions shall be provided to the Interagency Security
Classification Appeals Panel for review.
Sec. 1045.40 Marking requirements.
(a) RD classifiers shall ensure that each RD and FRD document is
clearly marked to convey to the holder that it contains RD or FRD
information, the level of classification assigned, and the additional
markings in paragraphs (b)(3) and (4) of this section.
(b) Front Marking. In addition to the overall classification level
of the document, the following notices shall appear on the front of the
document, as appropriate:
(1) If the document contains RD:
RESTRICTED DATA
This document contains RESTRICTED DATA as defined in the Atomic
Energy Act of 1954. Unauthorized disclosure subject to administrative
and criminal sanctions.
(2) If the document contains FRD but does not contain RD:
FORMERLY RESTRICTED DATA
Unauthorized disclosure subject to administrative and criminal
sanctions. Handle as RESTRICTED DATA in foreign dissemination. Section
144b, Atomic Energy Act of 1954.
(3) An RD or FRD document shall be marked to identify the
classification guide or source document, by title and date, used to
classify the document:
Derived from:
----------------------------------------------------------------------
(Classification Guide or source document--title and date)
(4) An RD or FRD document shall be marked with the identity of the
RD classifier, unless the classifier is the same as the document
originator or signer.
RD Classifier:
----------------------------------------------------------------------
(Name and position or title)
(c) Interior Page. RD classifiers shall ensure that RD and FRD
documents are clearly marked at the top and bottom of each interior
page with the overall classification level and category of the document
or the classification level and category of the page, whichever is
preferred. The abbreviations ``RD'' and ``FRD'' may be used in
conjunction with the document classification (e.g., SECRET RD or SECRET
FRD).
(d) Declassification Marking. Declassified RD and FRD documents
shall be marked with the identity of the individual authorizing the
declassification, the declassification date and the classification
guide which served as the basis for the declassification. Individuals
authorizing the declassification shall ensure that the following
marking is affixed on RD and FRD documents which they declassify:
Declassified on:
[[Page 68516]]
----------------------------------------------------------------------
(Date)
Authorizing Individual:
----------------------------------------------------------------------
(Name and position or title)
Authority:
----------------------------------------------------------------------
(Classification Guide--title and date)
Sec. 1045.41 Use of classified addendums.
(a) In order to maximize the amount of information available to the
public and to simplify document handling procedures, document
originators should segregate RD or FRD into an addendum whenever
practical. When RD or FRD is segregated into an addendum, the
originator shall acknowledge the existence of the classified addendum
unless such an acknowledgment would reveal classified information.
(b) When segregation of RD or FRD into an addendum is not
practical, document originators are encouraged to prepare separate
unclassified versions of documents with significant public interest.
(c) When documents contain environmental, safety or health
information and a separate unclassified version cannot be prepared,
document originators are encouraged to provide a publicly releasable
rationale for the classification of the documents.
Sec. 1045.42 Mandatory and Freedom of Information Act reviews for
declassification of restricted data and formerly restricted data
documents.
(a) General. (1) Agencies with documents containing RD and FRD
shall respond to mandatory review and Freedom of Information Act (FOIA)
requests for these documents from the public.
(2) In response to a mandatory review or Freedom of Information Act
request, DOE or DoD may refuse to confirm or deny the existence or
nonexistence of the requested information whenever the fact of its
existence or nonexistence is itself classified as RD or FRD.
(b) Processing Requests. (1) Agencies shall forward documents
containing RD to DOE for review.
(2) Agencies shall forward documents containing FRD to the DOE or
to the DoD for review, depending on which is the originating agency.
(3) The DOE and DoD shall coordinate the review of RD and FRD
documents as appropriate.
(4) The review and appeal process is that described in subpart D of
this part except for the appeal authority. DOE and DoD shall not
forward RD and FRD documents to the the Interagency Security
Classification Appeals Panel (ISCAP) for appeal review unless those
documents also contain NSI. In such cases, the DOE or DoD shall delete
the RD and FRD portions prior to forwarding the NSI and unclassified
portions to the ISCAP for review.
(5) Information Declassification Actions resulting from appeal
reviews. (i) Appeal reviews of RD or FRD documents shall be based on
existing classification guidance. However, the DOE Director of
Declassification shall review the RD and FRD information in the
appealed document to determine if it may be a candidate for possible
declassification.
(ii) If declassification of the information appears appropriate,
the DOE Director of Declassification shall initiate a formal
declassification action and so advise the requester.
(c) Denying Official. (1) The denying official for documents
containing RD is the DOE Director of Declassification.
(2) The denying official for documents containing FRD is either the
DOE Director of Declassification or an appropriate DoD official.
(d) Appeal Authority. (1) The appeal authority for RD documents is
the DOE Director of Security Affairs.
(2) The appeal authority for FRD documents is either the DOE
Director of Security Affairs, or an appropriate DoD official.
(e) The denying official and appeal authority for Naval Nuclear
Propulsion Information is the Director, Office of Naval Reactors.
(f) RD and FRD information contained in documents shall be withheld
from public disclosure under exemption 3 of the FOIA (5 U.S.C. 522
(b)(3)) because such information is exempt under the statutory
jurisdiction of the Atomic Energy Act.
Sec. 1045.43 Systematic review for declassification.
(a) The Secretary shall ensure that RD documents, and the DoD shall
ensure that FRD documents, are periodically and systematically reviewed
for declassification. The focus of the review shall be based on the
degree of public and researcher interest and likelihood of
declassification upon review.
(b) Agencies with RD or FRD document holdings shall cooperate with
the DOE Director of Declassification (and with the DoD for FRD) to
ensure the systematic review of RD and FRD documents.
(c) Review of documents in particular areas of public interest
shall be considered if sufficient interest is demonstrated. Proposals
for systematic document reviews of given collections or subject areas
should be addressed to the Director of Declassification, Department of
Energy, 19901 Germantown Road, Germantown, MD 20874-1290.
Sec. 1045.44 Classification review prior to public release.
Any person with authorized access to RD or FRD who generates a
document intended for public release in an RD or FRD subject area shall
ensure that it is reviewed for classification by the appropriate DOE
organization (for RD) or the appropriate DOE or DoD organization (for
FRD) prior to its release.
Sec. 1045.45 Review of unmarked documents with potential restricted
data or formerly restricted data.
(a) Individuals reviewing NSI records of permanent historical value
under the automatic or systematic review provisions of E.O. 12958 may
come upon documents that they suspect may contain RD or FRD, but which
are not so marked. Such documents are not subject to automatic
declassification.
(b) Such documents shall be reviewed by an RD Classifier as soon as
possible to determine their classification status. Assistance may be
requested from the DOE Director of Declassification.
Sec. 1045.46 Classification by association or compilation.
(a) If two pieces of unclassified information reveal classified
information when associated, then RD classifiers may classify the
document.
(b) RD classifiers may classify a document because a number of
pieces of unclassified information considered together contain some
added value such as completeness or comprehensiveness of the
information which warrants classification.
Subpart D--Executive Order 12958 ``Classified National Security
Information'' Requirements Affecting the Public
Sec. 1045.50 Purpose and scope.
This subpart describes the procedures to be used by the public in
questioning or appealing DOE decisions regarding the classification of
NSI under E.O. 12958 and 32 CFR part 2001.
Sec. 1045.51 Applicability.
This subpart applies to any person with authorized access to DOE
NSI or who desires access to DOE documents containing NSI.
Sec. 1045.52 Mandatory declassification review requests.
All DOE information classified as NSI is subject to review for
declassification by the DOE if:
[[Page 68517]]
(a) The request for a review describes the document containing the
information with sufficient specificity to enable the agency to locate
it with a reasonable amount of effort;
(b) The information is not exempted from search and review under
the Central Intelligence Agency Information Act;
(c) The information has not been reviewed for declassification
within the past 2 years; and
(d) The request is sent to the Department of Energy, Director of
Declassification, 19901 Germantown Road, Germantown, Maryland 20874-
1290.
Sec. 1045.53 Appeal of denial of mandatory declassification review
requests.
(a) If the Department has reviewed the information within the past
2 years, the request may not be processed. If the information is the
subject of pending litigation, the processing of the request may be
delayed pending completion of the litigation. The Department shall
inform the requester of this fact and of the requester's appeal rights.
(b) When the Director of Declassification has denied a request for
review of NSI, the requester may, within 30 calendar days of its
receipt, appeal the determination to the Director of Security Affairs.
(c) Elements of appeal. The appeal shall be in writing and
addressed to the Director of Security Affairs, Department of Energy,
1000 Independence Avenue SW, Washington, DC 20585. The appeal shall
contain a concise statement of grounds upon which it is brought and a
description of the relief sought. It should also include a discussion
of all relevant authorities which include, but are not limited to DOE
(and predecessor agencies) rulings, regulations, interpretations, and
decisions on appeals, and any judicial determinations being relied upon
to support the appeal. A copy of the letter containing the
determination being appealed shall be submitted with the appeal.
(d) Receipt of appeal. An appeal shall be considered to be received
upon receipt by the DOE Director of Security Affairs.
(e) Action within 60 working days. The appeal authority shall act
upon the appeal within 60 working days of its receipt. If no
determination on the appeal has been issued at the end of the 60-day
period, the requester may consider his or her administrative remedies
to be exhausted and may seek a review by the Interagency Security
Classification Appeals Panel (ISCAP). When no determination can be
issued within the applicable time limit, the appeal shall nevertheless
continue to be processed. On expiration of the time limit, DOE shall
inform the requester of the reason for the delay, of the date on which
a determination may be expected to be issued, and of his or her right
to seek further review by the ISCAP. Nothing in this subpart shall
preclude the appeal authority and the requester from agreeing to an
extension of time for the decision on an appeal. The DOE Director of
Security Affairs shall confirm any such agreement in writing and shall
clearly specify the total time agreed upon for the appeal decision.
(f) Form of action on appeal. The DOE Director of Security Affairs'
action on an appeal shall be in writing and shall set forth the reason
for the decision. The Department may refuse to confirm or deny the
existence or nonexistence of requested information whenever the fact of
its existence or nonexistence is itself classified under E.O. 12958.
(g) Right of final appeal. The requester has the right to appeal a
final Department decision or a failure to provide a determination on an
appeal within the allotted time to the ISCAP for those appeals dealing
with NSI. In cases where NSI documents also contain RD and FRD, the RD
and FRD portions of the document shall be deleted prior to forwarding
the NSI and unclassified portions to the ISCAP for review.
[FR Doc. 97-33949 Filed 12-30-97; 8:45 am]
BILLING CODE 6450-01-P
