[Federal Register Volume 83, Number 245 (Friday, December 21, 2018)]
[Rules and Regulations]
[Pages 66000-66022]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-27344]



[[Page 65999]]

Vol. 83

Friday,

No. 245

December 21, 2018

Part VI





Department of Energy





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10 CFR Part 1045





 Nuclear Classification and Declassification; Final Rule

Federal Register / Vol. 83 , No. 245 / Friday, December 21, 2018 / 
Rules and Regulations

[[Page 66000]]


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DEPARTMENT OF ENERGY

10 CFR Part 1045

[AU60-2016-1045]
RIN 1992-AA49


Nuclear Classification and Declassification

AGENCY: Department of Energy.

ACTION: Final rule.

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SUMMARY: In this final rule, the Department of Energy (DOE) revises its 
regulations concerning the requirements for classification and 
declassification of Restricted Data (RD) and Formerly Restricted Data 
(FRD). Since 1997, when DOE issued the regulation, changes in 
legislation and DOE and national policies have rendered portions of the 
existing regulations outdated. In this final rule, DOE addresses these 
changes. Additional changes clarify requirements, as well as allow 
agencies more flexibility in implementing RD/FRD programs. DOE has also 
made revisions for clarity and reorganized for ease of use.

DATES: This final rule is effective January 22, 2019.

FOR FURTHER INFORMATION CONTACT: Lesley Nelson-Burns, Office of Quality 
Management, Department of Energy, AU-61/Germantown Building, 1000 
Independence Avenue SW, Washington, DC 20585, (301) 903-4861 or 
<a href="/cdn-cgi/l/email-protection#4529203629203c6b2b2029362a2b682730372b36052d346b212a206b222a33"><span class="__cf_email__" data-cfemail="94f8f1e7f8f1edbafaf1f8e7fbfab9f6e1e6fae7d4fce5baf0fbf1baf3fbe2">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:
I. Background
    A. Authority and Reasons for Regulation
    B. Reasons for Revisions
    C. Summary of Revisions
II. DOE's Response to Comments
III. Regulatory Review and Procedural Requirements
    A. Review Under Executive Orders 12866 and 13563
    B. Review Under Executive Orders 13771 and 13777
    C. Review Under the Regulatory Flexibility Act
    D. Review Under the Paperwork Reduction Act
    E. Review Under the National Environmental Policy Act
    F. Review Under E.O. 13132, ``Federalism''
    G. Review Under E.O. 12988, ``Civil Justice Reform''
    H. Review Under the Unfunded Mandates Reform Act of 1995
    I. Review Under E.O. 13211, ``Regulations that Significantly 
Affect Energy Supply, Distribution or Use''
    J. Review Under the Treasury and General Government 
Appropriations Act, 2001
    K. Review Under the Treasury and General Government 
Appropriations Act of 1999
    L. Congressional Notification
IV. Approval by the Office of the Secretary

I. Background

A. Authority and Reasons for Regulation

    The Atomic Energy Act of 1954, as amended, 42 U.S.C. 2011 et seq. 
(AEA), is the basis for the classification of nuclear-weapons related 
information as Restricted Data (RD), and information transclassified 
from the RD category. The AEA grants the Department of Energy (DOE) 
Government-wide authority for RD and the control of information as RD. 
Title 10 of the Code of Federal Regulations (CFR) part 1045 (this part) 
implements DOE authority under the AEA to manage the Government-wide 
system of classifying and declassifying RD. This part prescribes 
procedures for the identification of RD, FRD, and TFNI, describes how 
members of the public may request the release of RD, FRD, TFNI, and DOE 
National Security Information (NSI), and sets forth the process to 
appeal decisions regarding such requests.
    In 1997, DOE issued a final rule in 10 CFR part 1045 that 
established the Government-wide responsibilities and requirements for 
RD and FRD. 62 FR 68502 (Dec. 31, 1997). The DOE affirmed in the 
preamble to the final rule that this DOE rule would establish the 
policies and procedures implementing the requirements of the AEA for 
the classification and declassification of RD and FRD. The rule also 
implemented the provisions of the E.O. 12958 pertaining to NSI that 
directly affect the public. The final rule included several 
requirements intended to provide increased transparency and 
accountability to the process of classifying and declassifying RD and 
FRD. These included options for the public to submit suggestions and 
complaints about classification policy, and for persons to submit 
challenges to classification determinations and declassification 
proposals. The rule also identified the specific criteria to be used to 
determine if information is RD, to declassify RD, and prohibitions on 
the application of classification.

B. Reasons for Revisions

    On April 23, 2018, DOE issued a proposed rule to amend part 1045 
(2018-07990). For background on the proposed rule and a discussion of 
the changes DOE proposed and the reasons for those changes, please see 
proposed rule. DOE received comments on the rule and has addressed 
those comments in section II. DOE made changes to the proposal in 
response to the comments, as described in section I.C.
    In this final rule, DOE revises this part to: update DOE 
organizational responsibilities; incorporate changes in the Atomic 
Energy Act; Executive Order 13526, Classified National Security 
Information; and 32 CFR part 2001, Classified National Security 
Information; Final Rule, as well as to improve policies and procedures 
due to lessons learned and feedback from other Federal agencies 
(agencies).
    Section 142(e) of the AEA authorizes the transclassification of 
information concerning the atomic programs of other nations. Under 
section 142(e), RD concerning the atomic energy programs of other 
nations is transclassified by joint agreement with the Director of 
Central Intelligence (DCI) or the DNI to facilitate sharing in the 
Intelligence Community (IC). Information transclassified under section 
142 of the AEA, did not have a unique name or marking prior to being 
named TFNI in 2010 under 32 CFR part 2001. Prior to 2010, documents 
containing this information had no special identifier, were handled in 
a manner similar to NSI, and were not marked as exempt from automatic 
declassification. Although the information concerns foreign nuclear 
programs, the information may be the same or similar to U.S. RD, which 
is never automatically declassified due to its sensitivity. To ensure 
this information is not automatically declassified and inadvertently 
released, E.O. 13526 recognized the Secretary of Energy's authority to 
determine its declassification. The Information Security Oversight 
Office (ISOO) of the National Archives and Records Administration, in 
coordination with DOE, developed language to incorporate TFNI marking 
requirements into 32 CFR 2001.24(i).
    Revisions to this part mirror the marking policies jointly 
developed by DOE and ISOO contained in 32 CFR part 2001 and ISOO Notice 
2011-02. These policies ensure matter containing RD, FRD, and TFNI are 
not automatically declassified. These policies are publicly available 
from the ISOO website at https://www.archives.gov/isoo.
    In addition, revisions to this part define specific 
responsibilities and authorities for TFNI, authorities for the return 
of FRD and TFNI to the RD category as permitted by changes to Section 
142 of the AEA, and the marking of matter that commingles RD/FRD/TFNI 
with NSI or Controlled Unclassified Information (CUI). Many changes are 
based on DOE's experience assisting other agencies in implementing this 
part.
    E.O. 12866 states regulations must be ``simple and easy to 
understand, with the goal of minimizing uncertainty and

[[Page 66001]]

litigation. . .'' (Sec. 1, Par. (b)(12)) and E.O. 12988 states that 
each regulation must specify its effect ``in clear language'' (Sec. 3 
Par. (b)(2)). In accordance with these E.O.s, this regulation is 
rewritten for clarity and reorganized for ease of use.
    DOE consulted with other agencies and incorporated many of their 
recommendations in the revision to this part. For example, the rule 
permits RD Derivative Classifiers to remove RD, FRD, and TFNI from 
matter under certain circumstances when the resulting matter remains 
classified. The changes to this part do not significantly impact 
current practices and many of the changes provide greater flexibility 
for agencies in implementing their RD programs.

C. Summary of Revisions

    For ease of use, this section serves as a crosswalk from the 
previous rule to this final rule. Each subpart notes the location of 
content in the previous rule and its new location. Changes to the 
content are discussed where the new location is noted.
1. Subpart A
    Subpart A, previously titled, ``Program Management of the 
Restricted Data and Formerly Restricted Data Classification System,'' 
was renamed ``Introduction.'' Subpart A previously contained Sec.  
1045.1 to Sec.  1045.9. It now contains Sec.  1045.5 to Sec.  1045.35. 
Sections are now numbered by fives to allow for future additions. The 
new sections contain introductory information on this part including: 
the purpose and application of this part; how to submit comments and 
requests for equivalencies and exemptions; sanctions that may be 
implemented against violators of this regulation; and definitions and 
acronyms used in this part. Information concerning program management 
and individual responsibilities was moved to Subpart B.
    The sections of Subpart A were changed as follows:

--Sec.  1045.1: This content was moved to Sec.  1045.5.
--Sec.  1045.2: This content was moved to Sec.  1045.10(a).
--Sec.  1045.3: This content was moved to Sec.  1045.30.
--Sec.  1045.4: This content was moved to Sec.  1045.45.
--Sec.  1045.5: This content was moved to Sec.  1045.25.
--Sec.  1045.6: This content was deleted. The Openness Advisory Panel 
(OAP) was a subcommittee of the Secretary of Energy Advisory Board 
(SEAB). In May 2006, the Secretary abolished the SEAB and the OAP was 
not reconstituted when the SEAB was re-established in 2010. To 
encourage persons with access to RD, FRD, or TFNI and the public to 
inform DOE of records of interest, DOE has revised the sections in this 
part on classification challenges and declassification proposals to 
provide more information on these processes.
--Sec.  1045.7: This content was moved to Sec.  1045.15.
--Sec.  1045.8: This content was moved to Sec.  1045.20.
--Sec.  1045.9: This content was moved to Sec.  1045.45(g).

    The sections of Subpart A are now as follows:

--Sec.  1045.5: This content was previously in sections Sec.  1045.1, 
Sec.  1045.10, and Sec.  1045.30. It now addresses the purpose of 10 
CFR part 1045 and its subparts. The descriptions of the purpose of each 
subpart have been changed to reflect the new content and organization 
of each subpart.
--Sec.  1045.10: To lessen duplication, this content now consolidates 
the applicability sections of each subpart, (formerly Sec.  1045.2, 
Sec.  1045.11, Sec.  1045.31, and Sec.  1045.51). The requirements for 
generating information and matter are in separate sections in the rule 
to clarify the distinct authorities and processes for each.
--Sec.  1045.15: This content was previously in Sec.  1045.7. The 
address for the DOE Office of Classification was updated.
--Sec.  1045.20: This content was previously in Sec.  1045.8. The term 
``procedural exemption'' has been changed to ``equivalencies and 
exemptions'' for greater clarity and to increase flexibility. Rather 
than requesting a complete exemption to a requirement, DOE permits 
agencies request an equivalency, by providing an alternate but 
sufficient method of meeting a requirement. Due to the addition of 
equivalencies, the information required in a submission for an 
exemption or equivalency has been expanded. The addresses were also 
updated.
--Sec.  1045.25: This content was previously in Sec.  1045.5. There 
have been no substantive changes to this content.
--Sec.  1045.30: This content was previously in Sec.  1045.3. Several 
definitions were added, removed, or revised as follows:
--Associate RD Management Official (ARDMO)--added to formalize existing 
practice of Restricted Data Management Officials (RDMOs) acting through 
deputies.
--Associate Under Secretary for Environment, Health, Safety and 
Security replaced ``Chief Health, Safety and Security officer'' to 
reflect DOE reorganizations.
--Classification Category--new definition to clarify the specific 
authority for RD, FRD, and TFNI.
--Classification Guidance--new definition to clarify that guidance is 
approved by an appropriate authority and to provide examples of types 
of guidance.
--Classified Matter--replaced ``documents and material'' to be 
consistent with current policies.
--Downgrading--defined to describe downgrading of information and 
matter.
--Initial Determination--defined to identify the process by which new 
information is determined to be RD.
--Originating Activity--defined to clarify the circumstances in which 
matter may be distributed as a working paper.
--Restricted Data Derivative Classifier--replaced Restricted Data 
Classifier to clarify all decisions of an RD Classifier are derivative.
--TFNI--added to define information removed from the RD category under 
section 142(e) of the AEA.
--TFNI Guidelines--added to define TFNI-specific policies issued by 
agencies.
--Upgrading--added for persons to better understand the difference 
between upgrading information (DOE-only) and matter (any RD Derivative 
Classifier) to ensure in both cases the appropriate authority is 
exercised.
--The following existing definitions were revised for clarity:
--Agency--added TFNI.
--Automatic Declassification--revised to reflect E.O. 13526.
--Classification--includes information classified by statute (the AEA).
--Classification Guide--edited for clarity.
--Classification Level
--Added TFNI.
--Removed definition of Confidential for NSI because this is defined in 
E.O. 13526 and should not be duplicated here because it does not apply 
to RD, FRD, or TFNI.
--Classified Information--added TFNI; clarified that classified NSI 
includes information classified under E.O. 13526.
--Declassification--edited for clarity.
--Director, Office of Classification--removed reference to 
organizational placement of Director, Office of Classification as it is 
not necessary
--Interagency Security Classification Appeals Panel (ISCAP)--updated to 
reflect E.O. 13526.

[[Page 66002]]

--National Security--definition changed to refer to definition used by 
E.O. 13526.
--National Security Information--defined as pursuant to E.O. 13526. 
Removed clause describing ``defense information'' as used in the AEA 
because it is obsolete and not pertinent to this rule.
--Portion Marking--edited for clarity.
--RD Management Official--edited to streamline definition.
--Source Document--edited to emphasize the requirement for RD 
Derivative Classifiers to use only portion marked source documents.

    The following definitions were deleted as they are not used in this 
part:

--Authorized Holder--this term was replaced by ``person with access.''
--Document--removed. All references are now to ``matter.''
--Sec.  1045.35: This new content contains the acronyms used in the 
regulation.
2. Subpart B
    Subpart B, previously titled, ``Identification of Restricted Data 
and Formerly Restricted Data Information,'' was renamed ``Program 
Management of Restricted Data (RD), Formerly Restricted Data (FRD), and 
Transclassified Foreign Nuclear Information (TFNI) Classification 
Programs.'' Subpart B previously contained Sec.  1045.10 to Sec.  
1045.22. It now contains Sections from Sec.  1045.40 to Sec.  1045.65. 
Sections from Subparts A, B, and C were moved to this Subpart to locate 
agency and individual responsibilities and authorities in a single 
subpart. The section of Subpart B describing processes for 
classification and declassification of RD and FRD (formerly Sec.  
1045.14) has been broken up and distributed throughout the regulation, 
with each component relocated to its appropriate section. The Subpart 
also includes new sections on responsibility for TFNI and reflects the 
comprehensive development of TFNI policy by generally including TFNI 
wherever it should be included with RD and FRD.
    The existing sections of Subpart B were changed as follows:

--Sec.  1045.10: This content was moved to Sec.  1045.5.
--Sec.  1045.11: This content was moved to Sec.  1045.10.
--Sec.  1045.12: This content was moved to Sec.  1045.45.
--Sec.  1045.13: This content was moved to Sec.  1045.75.
--Sec.  1045.14: This was moved and subdivided in the following manner:
--Content regarding the initial classification of RD was moved to Sec.  
1045.45(c), Sec.  1045.70, and Sec.  1045.135.
--Content regarding the declassification of RD was moved to Sec.  
1045.45(b), Sec.  1045.100, and Sec.  1045.105(a) and (b).
--Content regarding the classification of FRD was moved to Sec.  
1045.45(b) and Sec.  1045.85(a).
--Content regarding the declassification of FRD was moved to Sec.  
1045.45(b), Sec.  1045.100, and Sec.  1045.105.
--Sec.  1045.15: This content was moved to Sec.  1045.80.
--Sec.  1045.16: This content was moved to Sec.  1045.70.
--Sec.  1045.17: This content was moved to Sec.  1045.45(c) and Sec.  
1045.95.
--Sec.  1045.18: This content was moved to Sec.  1045.45(c).
--Sec.  1045.19: This content was deleted. Classification 
determinations concerning RD or FRD, as specified in paragraph (a), 
follow the criteria in Sec.  1045.80, which provides the rationale for 
classification and declassification of RD or FRD. Justifications for 
the exemptions are removed because the presumptions are a starting 
point to classify or declassify information as the Director, Office of 
Classification evaluates the criteria, he or she would also justify any 
exception to the presumptions. No separate justification is necessary. 
The annual report required by paragraph (b) has not been of interest to 
the public. DOE has had only one request for the annual report since 
1997. Any specific information of interest to the public may be 
requested under the FOIA.
--Sec.  1045.20: The content of this paragraph was moved to Sec.  
1045.105.
--Sec.  1045.21: This content was moved to Sec.  1045.90.
--Sec.  1045.22: This content was moved to Sec.  1045.60 and Sec.  
1045.65.

    The sections of Subpart B are now as follows:

--Sec.  1045.40: This content was previously in Sec.  1045.33. A 
timeframe for agencies to notify the Director, Office of 
Classification, of new RDMO appointments was added. This change ensures 
that points of contact are accurate and that a senior point of contact 
is available to address questions or concerns.
--Sec.  1045.45: This content was previously in Sec.  1045.4, Sec.  
1045.14, Sec.  1045.17, Sec.  1045.18, and Sec.  1045.32. The section 
on responsibilities incorporates changes that describe current 
obligations in more detail. Responsibilities concerning the return of 
FRD or TFNI to the RD category were added. This addition was due to an 
amendment to sections 142(d) and (e) of the AEA which permits this 
action. Other changes were due to the implementation of TFNI and the 
consolidation of responsibilities which were previously distributed 
throughout the regulation. Additional changes were made to clarify or 
codify existing practices. The description of the authority of the 
Associate Under Secretary for Environment, Health, Safety and Security 
now appears in Sec.  1045.45(b). The substantive changes are as 
follows:
--Sec.  1045.45(b): Changed title of position to reflect DOE 
reorganizations. Implied responsibilities are now explicitly stated. 
The content was edited to include additional information on cooperation 
with DoD in the classification and declassification of FRD and to 
codify existing practices.
--Sec.  1045.45(c): This content was previously in Sec.  1045.4(a), 
Director, Office of Classification:
--Added TFNI guidelines in the development of joint classification 
guides (to include clarification of who must perform assigned duties).
--Content was expanded to address agency and Director, Office of 
Classification roles in implementing this part.
--Sec.  1045.45(g): This content was previously in Sec.  1045.4(e), 
Head of Agencies with Access to RD, FRD, and TFNI, with the following 
changes:
--Added requirement to develop and promulgate procedures for 
classification challenges and declassification proposals for RD, FRD, 
and TFNI.
--Deleted redundant information about parallel procedures for NSI. This 
information is governed by E.O. 13526 and should not be duplicated 
here.
--Added responsibilities of DOE, DNI, and the IC for TFNI;
--Added responsibility for review of NSI records of permanent 
historical value under the ``Special Historical Records Review Plan 
(Supplement)'' (established under Public L. (Pub. Laws 105-261 and 106-
65); and
--Added requirement for contacting officer to be notified of contracts 
that have access to or generate matter containing RD, FRD, or TFNI, to 
ensure agencies are aware of such contracts and that contracts 
incorporate the requirements of 10 CFR part 1045.
--Sec.  1045.45(h): This content was previously in Sec.  1045.4(f), 
RDMOs, with the following changes:
--Established procedures for the designation of Associate RDMOs 
(ARDMOs). This codifies current

[[Page 66003]]

practices and allows agencies flexibility in delegating the 
responsibilities of RDMOs;
--Incorporates RDMO responsibilities for TFNI;
--Adds responsibility for periodic reviews of agency classification 
decisions of matter containing RD, FRD, or TFNI. Agencies currently 
conduct annual reviews of classification decisions under 32 CFR part 
2001 to ensure the appropriate identification and marking of National 
Security Information. The periodic review of matter containing RD, FRD, 
or TFNI may be done during these reviews to ensure agencies are aware 
of any systematic issues regarding compliance with this part; and
--Added the Director of National Intelligence (DNI) responsibility for 
IC elements.
--Sec.  1045.45(i), (j), and (k): This content was previously in Sec.  
1045.32
--Added descriptions of the limits of the authority regarding 
declassification, downgrading, and using portion-marked source 
documents. This description was added to clarify requirements and allow 
agencies greater flexibility in the classification of documents 
containing RD, FRD, or TFNI, while ensuring documents are coordinated 
with DOE or DoD, when necessary. For clarity, the list of 
responsibilities for RD DCs now explicitly requires that source 
documents be portion-marked, and gives examples of classification 
upgrading and downgrading.
--Added training required for access to and to derivatively classify 
TFNI.
--Sec.  1045.55: This content was moved from Sec.  1045.37 and Sec.  
1045.43. The language was edited for clarity, and the mailing address 
for the Director of Classification was added for accuracy. The 
requirement for declassification proposals from persons with access to 
RD, FRD, or TFNI to be transmitted through secure means was added to 
ensure the proper protection of classified information.
--Sec.  1045.60: This content was moved from Sec.  1045.22. The content 
did not change.
--Sec.  1045.65: This content was moved from Sec.  1045.22. To be 
consistent with DOE policies and for accuracy, the term ``public 
domain'' was replaced by ``open literature.'' The content also now 
explains:
--The possible damage to national security resulting from commenting on 
information in the open literature that is or may be RD, FRD or TFNI; 
and
--Required reviews of new documents which incorporate information from 
the open literature which may be classified.
3. Subpart C
    Subpart C, previously titled, ``Generation and Review of Documents 
Containing Restricted Data and Formerly Restricted Data,'' was renamed 
``Determining if Information is RD, FRD, or TFNI.'' Subpart C 
previously contained Sec.  1045.30 to Sec.  1045.46. It now contains 
Sec.  1045.70 to Sec.  1045.110. Subpart C consolidates content from 
other subparts on the following subjects: The processes for 
classification and declassification; the presumptions that guide those 
processes; the status of privately generated information in the RD 
realm; classification levels; and classification challenges. Subpart C 
also contains a new section on the transclassification of information 
from the RD category into the TFNI category which is part of the 
addition of TFNI policy.
    The existing sections of Subpart C were changed as follows:

--Sec.  1045.30: This content was moved to Sec.  1045.5.
--Sec.  1045.31: This content was moved to Sec.  1045.10(a).
--Sec.  1045.32: This content was moved to Sec.  1045.45(i) and Sec.  
1045.155.
--Sec.  1045.33: This content was moved to Sec.  1045.40.
--Sec.  1045.34: This content was moved to Sec.  1045.115(b) and (c).
--Sec.  1045.35: This paragraph was moved to Sec.  1045.45(c) and Sec.  
1045.120.
--Sec.  1045.36: This content was moved to Sec.  1045.45(c).
--Sec.  1045.37: The content regarding classification guides was moved 
to Sec.  1045.45. The requirement regarding the 5-year review of guides 
was moved to Sec.  1045.45(g)(9).
--Sec.  1045.38: This content was moved to Sec.  1045.155.
--Sec.  1045.39: This content was moved to Sec.  1045.110.
--Sec.  1045.40: This content was moved to Sec.  1045.140 and Sec.  
1045.165.
--Sec.  1045.41: This content was moved to Sec.  1045.130(d).
--Sec.  1045.42: This content was moved to Sec.  1045.170, Sec.  
1045.175, and Sec.  1045.180.
--Sec.  1045.43: This content was moved to Sec.  1045.55.
--Sec.  1045.44: This content was moved to Sec.  1045.125(b).
--Sec.  1045.45: This content was moved to Sec.  1045.125.
--Sec.  1045.46: This content was moved to 1045.130(c) and (d).

    The sections of Subpart C are now as follows:

--Sec.  1045.70: This content was previously in Sec.  1045.14 and Sec.  
1045.16. To address current concerns, the consideration as to whether 
declassification would assist terrorism was added.
--Sec.  1045.75: This content was previously in Sec.  1045.13. There 
are no changes to the content.
--Sec.  1045.80: This content was previously in Sec.  1045.15. The 
introduction was revised for clarity.
--Sec.  1045.85: This content was previously in Sec.  1045.14. The 
content was edited to include information on coordination with DoD in 
the classification of FRD, to codify existing practices. It also adds 
content concerning the transclassification of TFNI, which is added due 
to the comprehensive implementation of TFNI. Lastly, it adds content 
regarding the return of FRD or TFNI information to the RD category, 
codifying a revision to sections 142(d) and (e) of the AEA that allows 
this action.
--Sec.  1045.90: This content was previously in Sec.  1045.21. The 
content was reworded for clarity.
--Sec.  1045.95: This content was previously in Sec.  1045.17. Examples 
of RD in each classification level were removed as unnecessary and the 
language was revised and reorganized for clarity.
--Sec.  1045.100: This content was previously in Sec.  1045.14. There 
have been no substantive changes to this content.
--Sec.  1045.105: This content was previously in Sec.  1045.14 and 
Sec.  1045.20. To give more detail on an existing process, the 
paragraph now specifies that declassification proposals must be in 
writing, and include a reason for the proposal. The paragraph also 
provides greater detail on the process used to adjudicate 
declassification proposals to codify existing practices. Information on 
coordination with DoD in FRD declassification was added to codify 
existing practices.
--Sec.  1045.110: This content was previously in Sec.  1045.39. The 
changes are: Additional content on agency responsibilities regarding 
classification challenges for RD, FRD, and TFNI information; an 
emphasis on the right of challengers to submit challenges directly to 
the Director, Office of Classification, at any time; more information 
on the actions required of the Director, Office of Classification; and 
the challenger's appeal rights. This section also clarifies that agency 
responses to challenges (except for DoD for FRD) are limited to 
interpreting the

[[Page 66004]]

application of guidance to derivatively classify matter. This is to 
ensure RD, FRD, and TFNI challenges are referred to the appropriate 
agency for consideration and any changes to guidance based on a 
challenge will be promulgated.
4. Subpart D
    Subpart D, previously titled, ``Executive Order 12958: `Classified 
National Security Information'' Requirements Affecting the Public,'' 
was renamed ``Classifying and Declassifying Matter Containing RD, FRD, 
or TFNI.'' Subpart D previously contained Sec.  1045.50 to Sec.  
1045.53. It now contains Sec.  1045.115 to Sec.  1045.165. The sections 
of Subpart D that deal with DOE's NSI classification program were moved 
to Subpart F. Sections from Subparts B and C were moved into Subpart D.
    Subpart D contains a number of new sections. The new sections 
addressing TFNI cover: The requirement for a person trained to classify 
TFNI to review any matter that could potentially contain TFNI; the 
requirement for classification of TFNI by a person with appropriate 
authority; and the appropriate procedure for when TFNI guidance cannot 
be located.
    A description of authorities and procedures for redacting RD, FRD, 
or TFNI from a document was also added to this Subpart. Authorities and 
procedures for redacting RD, FRD, or TFNI were added to clarify when 
other agencies may remove RD, FRD, or TFNI from matter.
    To assist agencies in developing proper training materials, detail 
was added to descriptions of training requirements for RD Derivative 
Classifiers and for persons with access to RD, FRD, or TFNI. The 
section describing classification by compilation or association 
provides more detail about these training requirements.
    The existing sections of Subpart D were changed as follows:

--Sec.  1045.50: This content was moved to Sec.  1045.5.
--Sec.  1045.51: This content was moved to Sec.  1045.10(a).
--Sec.  1045.52: This content was moved to Sec.  1045.185 and Sec.  
1045.190.
--Sec.  1045.53: This content was moved to Sec.  1045.205 and Sec.  
1045.210.

    The sections of Subpart D are now as follows:

--Sec.  1045.115: This content was previously in Sec.  1045.34. It 
contains two amendments. The authority for agencies to recognize RD DC 
authorities granted by other agencies was added to allow agencies 
flexibility and save agencies the time and resources spent repeating 
training already provided when the previous authority is the same and 
to allow agencies greater flexibility in authorities for Strategic 
Partnership Projects when persons may require classification authority 
for other agency work. Content was added to address authority and 
training to classify matter containing TFNI.
--Sec.  1045.120: This content was previously in Sec.  1045.35. Content 
was added to provide more detail regarding training for persons with 
access to RD, FRD, or TFNI, and for RD DC training. Periodic refresher 
training was added for persons with access to RD, FRD, or TFNI and 
refresher training every 2 years is required for RD DCs. This 
requirement is consistent with requirements for other classified 
information. Content was also added concerning officials and training 
for TFNI classification which was added to implement TFNI.
--Sec.  1045.125: This content was previously in Sec.  1045.44. To 
codify existing practices, the section provides greater detail on the 
process for reviewing matter that potentially contains RD, FRD or TFNI. 
The requirement for review of such matter by an RD DC was changed from 
``any authorized holder who believes he or she has information which 
may be RD shall submit it to an RD Classifier for evaluation'' to 
``Matter that potentially contains RD or FRD must be reviewed by an RD 
Derivative Classifier.'' This change reflects the current DOE 
requirement for classification reviews, and adds FRD because FRD and RD 
often have similar content. The requirement for review no longer relies 
on the authorized holder's subjective belief that information may be 
RD, since it may be unreliable. New content was added to address TFNI.
--Sec.  1045.130: This content was previously Sec.  1045.41 and Sec.  
1045.46. Content, was added to address classification of TFNI. Content 
was also added to address when source documents may be used as a basis 
for classifying matter containing RD or FRD. The section provides more 
detail for existing practices dealing with the process of 
classification by association or compilation.
--Sec.  1045.135: This content was previously in Sec.  1045.14. For the 
RDMO to be aware of guidance available to RD DCs and to resolve issues 
at the agency level, when possible, the RDMO and ARDMO were added as 
contacts for when RD DCs have potentially classified information for 
which they cannot find guidance. Also, the Director, Office of 
Classification, is now explicitly required to notify the RDMO of the 
agency originating information of the results of any initial 
determination requests transmitted to the Director. Potentially 
classified documents pending determination are now protected at a 
minimum of SRD or SFRD, instead of CRD required by the current 
regulation. This is due to the fact that since the majority of RD is 
Secret, this is the most appropriate level of protection until the 
specific level is identified. Additional information was added 
regarding the proper procedure when TFNI guidance cannot be located.
--Sec.  1045.140: This content was previously in Sec.  1045.40. New 
sub-paragraphs were added to cover markings for: The IC; working papers 
containing RD, FRD, or TFNI; commingled RD/FRD/TFNI with NSI or CUI; 
special format matter; and TFNI markings. All revisions to the marking 
sections were based on national policy, with content added to fully 
address and clarify requirements.
--Sec.  1045.145: This section was added to address matter printed from 
an IT system.
--Sec.  1045.150: This new section addresses authorities and procedures 
for redacting RD, FRD, or TFNI from matter. This content was added to 
clarify procedures for removing RD, FRD, or TFNI from matter and ensure 
the resulting document does not potentially contain RD, FRD, or TFNI.
--Sec.  1045.155: This content was previously in Sec.  1045.32 and 
Sec.  1045.38. TFNI was added and new content addresses who may redact 
RD, FRD, or TFNI from a document being prepared for public release. 
This was added to ensure matter containing RD, FRD, or TFNI is reviewed 
by a person with subject matter expertise and authority so that RD, 
FRD, or TFNI is not inadvertently released.
--Sec.  1045.160: This content is a new addition. It was added at the 
request of other agencies to ensure documents from which RD, FRD, or 
TFNI is removed that still contain NSI are reviewed and marked 
appropriately.
--Sec.  1045.165: This content was previously in Sec.  1045.40. TFNI 
was added.
5. Subpart E
    Subpart E, ``Government-wide Procedures for Handling Freedom of 
Information Act (FOIA) and Mandatory Declassification Review (MDR) 
Requests

[[Page 66005]]

for Matter Marked as or Potentially Containing RD, FRD, or TFNI,'' is a 
new addition containing content currently contained in Subpart C and 
new content. This section describes requirements for other Government 
agencies when they receive a FOIA or MDR request that potentially 
contains RD, FRD, or TFNI. Subpart E contains Sec.  1045.170 to Sec.  
1045.180. Sections from Subpart C that deal with RD and FRD under a 
FOIA or an MDR request were moved to this subpart. These sections were 
also expanded to provide greater detail regarding the processes for 
appeals and requests.
    The sections of Subpart E are as follows:

--Sec.  1045.170--This section was added to clarify that this section 
applies to other Government agencies who receive FOIA and MDR requests 
for matter that is marked as or potentially contains RD, FRD, or TFNI. 
RD, FRD, and TFNI, is classified under the Atomic Energy Act and 
therefore does not fall under the MDR provisions of E.O. 13526, which 
only applies to NSI. This section ensures that RD, FRD, and TFNI are 
also considered for declassification and the appropriate authority 
reviews matter that is marked as or potentially contains this 
information.
--Sec.  1045.175: This content was previously in Sec.  1045.42. This 
section now clarifies that it applies to matter that potentially 
contains RD, FRD, or TFNI as well as matter marked as containing RD, 
FRD, or TFNI. The Denying Official for Naval Nuclear Propulsion was 
changed to the Deputy Director, Deputy Administrator for Naval 
Reactors, so that the Denying Official and the appeal authority are no 
longer the same. Language for the DoD Initial Denying Authority was 
incorporated from DoD Manual 5400.07, DoD Freedom of Information Act 
(FOIA) Program.
--Sec.  1045.180: This content was previously in Sec.  1045.42. The 
content was expanded to clarify the process and provide greater detail 
regarding FOIA and MDR appeals for matter containing RD, FRD, or TFNI 
and to ensure RD, FRD, or TFNI portions are not included in NSI appeals 
to ISCAP. Since DOE may receive appeals from individuals or from 
agencies, both circumstances are now addressed to ensure all appeals 
for RD and TFNI are sent to DOE and all appeals for FRD are sent to DOE 
or DoD. Paragraph (a) was revised to clarify that FOIA appeals 
involving RD, FRD or TFNI are required to be submitted within 90 days 
of receipt of the denial, consistent with the procedures in DOE's FOIA 
regulations in 10 CFR part 1004. In 2016, DOE revised its regulations 
in part 1004 to implement the requirement in the FOIA Improvement Act 
of 2016 that FOIA appeals are required to be submitted within 90 days. 
Paragraph (b) was revised to clarify that appeal timeframes for MDR 
Appeals are 60 days. For consistency with the MDR appeal procedures 
involving NSI, which are contained in 32 CFR 2001.33(a)(2), and require 
submission of an appeal within 60 days of the receipt of the denial, 
MDR appeals involving RD, FRD, or TFNI are also required to be 
submitted within 60 days of the receipt of the denial. This section was 
also revised to clarify the different timeframes and process for FOIA 
and MDR requests and to identify appropriate appellate authorities.
6. Subpart F
    Subpart F, ``DOE-specific procedures for MDR Requests,'' is a new 
addition containing content currently contained in Subpart C and new 
content. This section describes how a person submits an MDR request to 
DOE for matter that is marked as or potentially contains NSI, RD, FRD, 
or TFNI. This section also describes how MDR requests are processed 
within DOE. As recognized in section 6.2 of E.O. 13526, RD, FRD, and 
TFNI, which are classified under the Atomic Energy Act. Therefore, MDR 
procedures in E.O. 13526, which only applies to NSI, do not apply to 
RD, FRD, or TFNI. This subpart implements DOE procedures for processing 
MDR requests for NSI, under E.O. 13526, and also ensures the public may 
request declassification reviews of documents containing RD, FRD, or 
TFNI. Subpart F contains Sec.  1045.185 to Sec.  1045.225. Sections 
from Subpart D that deal with MDR requests and appeals by the public 
were moved to this Subpart. Subpart F contains new sections that 
describe exemptions to MDR requests, the cost associated with an MDR, 
the DOE process for MDR reviews and appeals, and DOE's OpenNet online 
resource.
    The sections of Subpart F are as follows:

--Sec.  1045.185--This section was added to clarify that this subpart 
concerns DOE-specific processes for MDRs under E.O. 13526, which 
includes NSI, and review of declassification requests for matter marked 
as or potentially containing RD, FRD, or TFNI, which are not governed 
by E.O. 13526, to ensure these are considered and appropriately 
reviewed.
Sec.  1045.190: This content was previously in Sec.  1045.52. The 
mailing address for the Director, Office of Classification was updated.
Sec.  1045.195: This content was previously in Sec.  1045.52. An 
exemption from MDR requests was added for RD matter (technical 
engineering, blueprints and design documents regarding nuclear 
weapons). Portion by portion review of these documents is complex and 
time consuming and results in release of minimal non-exempt 
information. Processing and review of these documents requires 
significant resources. Due to the significant sensitivity of the vast 
majority of information contained in these documents, DOE determined 
that they should not be subject to an MDR. The exemption from mandatory 
declassification review under the Central Intelligence Agency 
Information Act was removed because it does not apply to DOE records.
--Sec.  1045.200: This new section contains content addressing costs 
for MDR reviews. When 10 CFR part 1045 was initially issued, DOE 
received very few MDR requests. Due to a significant increase in MDR 
requests, DOE determined it was necessary to recover some of the cost. 
The fees established mirror DOE fees for FOIA requests.
Sec.  1045.205: Content addressing MDR requests and appeals for matter 
containing RD, FRD, or TFNI was added. The changes codify existing 
practices.
Sec.  1045.210: This content was previously in Sec.  1045.53. It 
addresses the denial of naval nuclear propulsion information in the 
requirement since this information is not initially denied by the 
Director, Office of Classification.
Sec.  1045.215: This content was previously in Sec.  1045.53.
Sec.  1045.220: This new section was added to address final MDR appeals 
for matter containing RD, FRD, or TFNI and ensure RD, FRD, and TFNI 
portions are removed from any matter containing NSI submitted to ISCAP 
for review. The requirement to coordinate Naval Nuclear Propulsion with 
the NNSA Deputy Administrator for Naval Nuclear Propulsion was added 
because that is the appeal authority for this information.
Sec.  1045.225: This new section advises the public that matter 
previously requested under the FOIA/MDR is available on the DOE OpenNet 
database and provided link to OpenNet.

[[Page 66006]]

II. DOE's Response to Comments

    In response to the Notice of Proposed Rulemaking, DOE received one 
comment relevant to the proposed rule. The comment advised that the 
timeframe for appeals under the Freedom of Information Act (FOIA) was 
extended from 60 to 90 days under the FOIA Improvement Act of 2016. 
Sections of subpart E were rewritten to clarify the differences between 
FOIA and MDR timeframes and processes. The section was also revised to 
clarify appellate denying officials for RD, FRD, and TFNI, for both the 
FOIA and MDR requests.

III. Regulatory Review and Procedural Requirements

A. Review Under Executive Orders 12866 and 13563

    OMB has determined that this action does not constitute a 
``significant regulatory action'' as defined in section 3(f) of E.O. 
12866, ``Regulatory Planning and Review'' (58 FR 51735, October 4, 
1993).

B. Review Under Executive Orders 13771 and 13777

    On January 30, 2017, the President issued Executive Order 13771, 
``Reducing Regulation and Controlling Regulatory Costs.'' That Order 
stated the policy of the executive branch is to be prudent and 
financially responsible in the expenditure of funds, from both public 
and private sources. The Order stated it is essential to manage the 
costs associated with the governmental imposition of private 
expenditures required to comply with Federal regulations. This rule is 
an E.O. 13771 deregulatory action.
    Additionally, on February 24, 2017, the President issued Executive 
Order 13777, ``Enforcing the Regulatory Reform Agenda.'' The Order 
required the head of each agency designate an agency official as its 
Regulatory Reform Officer (RRO). Each RRO oversees the implementation 
of regulatory reform initiatives and policies to ensure that agencies 
effectively carry out regulatory reforms, consistent with applicable 
law. Further, E.O. 13777 requires the establishment of a regulatory 
task force at each agency. The regulatory task force is required to 
make recommendations to the agency head regarding the repeal, 
replacement, or modification of existing regulations, consistent with 
applicable law. At a minimum, each regulatory reform task force must 
attempt to identify regulations that:
    (i) Eliminate jobs, or inhibit job creation;
    (ii) Are outdated, unnecessary, or ineffective;
    (iii) Impose costs that exceed benefits;
    (iv) Create a serious inconsistency or otherwise interfere with 
regulatory reform initiatives and policies;
    (v) Are inconsistent with the requirements of Information Quality 
Act, or the guidance issued pursuant to that Act, in particular those 
regulations that rely in whole or in part on data, information, or 
methods that are not publicly available or that are insufficiently 
transparent to meet the standard for reproducibility; or
    (vi) Derive from or implement Executive Orders or other 
Presidential directives that have been subsequently rescinded or 
substantially modified.
    This rule reflects changes in the Atomic Energy Act, E.O. 13526, 32 
CFR part 2001, DOE policies and DOE reorganizations that rendered 
portions of the previous regulation outdated, as well clarifies 
requirements and allows agencies more flexibility in implementing RD/
FRD programs, meets the goals and objectives of the task force.

C. Review Under the Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires 
preparation of a regulatory flexibility analysis for any rule that by 
law must be proposed for public comment, unless the agency certifies 
that the rule, if promulgated, will not have a significant economic 
impact on a substantial number of small entities. As required by E.O. 
13272, Proper Consideration of Small Entities in Agency Rulemaking (67 
FR 53461, August 16, 2002), DOE published procedures and policies on 
February 19, 2003, to ensure that the potential impacts of its rules on 
small entities are properly considered during the rulemaking process. 
DOE has made its procedures and policies available on the Office of the 
General Counsel's website: (http://energy.gov/gc/office-general-counsel).
    DOE reviewed this rule under the Regulatory Flexibility Act and 
certifies that the rule would not have a significant impact on a 
substantial number of small entities. This rule applies to Federal 
agencies and private entities who have access to RD. The number of 
private entities with access to RD is very small. These include access 
permittees (covered by 10 CFR part 1016) and private entities whose 
operations involve isotope separation technologies. The rule does not 
require significant new requirements for Federal agencies or private 
entities with access to RD. The changes are administrative changes 
(e.g., renumbering, and updating office names to reflect 
reorganizations), and updates to incorporate responsibilities and 
procedures due to changes in laws, regulations and E.O.s and clarify 
requirements.
    The rule initiates fees for MDRs. When 10 CFR part 1045 was 
initially issued, DOE received very few MDR requests. Due to a 
significant increase in MDR requests, DOE determined it was necessary 
to recover some of the cost. Because matter requested under an MDR 
could be requested, alternatively, under the FOIA, DOE determined that 
it was appropriate to treat MDR requests similarly to FOIA requests. 
DOE therefore proposed that the fees established for MDRs should mirror 
DOE fees for FOIA requests rather than creating a different fee 
structure.
    For the above reasons, DOE certifies that the rule does not have a 
significant economic impact on a substantial number of small entities.

D. Review Under the Paperwork Reduction Act

    This rule does not contain a collection of information subject to 
the Office of Management and Budget (OMB) approval under the Paperwork 
Reduction Act.

E. Review Under the National Environmental Policy Act

    DOE has determined that this action meets the requirements for a 
Categorical Exclusion A-5 of Appendix A to Subpart D, 10 CFR part 1021, 
which applies to a rulemaking that addresses or amends an existing rule 
or regulation that does not change the environmental effect of the rule 
or regulation being amended.
    This rule is necessary because changes in DOE and national policies 
have rendered portions of the existing rule outdated. In addition, 
changes were needed to clarify requirements and allow agencies more 
flexibility in implementing programs for RD and FRD.
    The changes are administrative in nature reflecting changes to 
responsibilities and procedures, and the rule does not change the 
environmental effect of the rule. Accordingly, neither an environmental 
assessment nor an environmental impact analysis is required.

F. Review Under E.O. 13132, ``Federalism''

    E.O. 13132 (64 FR 43255, August 4, 1999), imposes certain 
requirements on agencies formulating and implementing policies or 
regulations that preempt

[[Page 66007]]

State law or that have federalism implications. Agencies are required 
to develop a process to ensure meaningful and timely input by State and 
local officials in the development of regulatory policies that have 
``federalism implications.'' Policies that have federalism implications 
are defined in the E.O. to include regulations that have ``substantial 
direct effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.'' On March 7, 
2011, DOE published a statement of policy describing the 
intergovernmental consultation process it will follow in the 
development of such regulations (65 FR 13735, March 14, 2000).
    DOE has examined this rule and has determined that it does not have 
a substantial direct effect on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government. No further 
action is required by E.O. 13132.

G. Review Under E.O. 12988, ``Civil Justice Reform''

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

H. Review Under the Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. 
L. 104-4), requires each Federal agency to assess the effects of 
Federal regulatory action on state, local and tribal governments and 
the private sector. For proposed regulatory actions likely to result in 
a rule that may cause expenditures by State, local, and Tribal 
governments, in the aggregate, or by the private sector of $100 million 
or more in any one year (adjusted annually for inflation), section 202 
of UMRA requires a Federal agency to publish estimates of the resulting 
costs, benefits, and other effects on the national economy. UMRA also 
requires Federal agencies to develop an effective process to permit 
timely input by elected officers of State, local, and Tribal 
governments on a proposed ``significant intergovernmental mandate.'' In 
addition, UMRA requires an agency plan for giving notice and 
opportunity for timely input to small governments that may be affected 
before establishing a requirement that might significantly or uniquely 
affect them. On March 18, 1997, DOE published a statement of policy on 
its process for intergovernmental consultation under the UMRA (62 FR 
12820, March 18, 1997). This policy is available at DOE General 
Counsel's website (http://energy.gov/gc/office-general-counsel). This 
part contains neither an intergovernmental mandate, nor a mandate that 
may result in the expenditure of $100 million or more in any year, so 
these requirements do not apply.

I. Review Under E.O. 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use''

    E.O. 13211 (66 FR 28355, May 22, 2001) requires Federal agencies to 
prepare and submit to the Office of Information and Regulatory Affairs 
(OIRA), OMB, a Statement of Energy Effects for any proposed significant 
energy action. A ``significant energy action'' is defined as any action 
by an agency that promulgates or is expected to lead to the 
promulgation of a final rule, and that: (1) Is a significant regulatory 
action under E.O. 12866, or any successor order; and (2) is likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy; or (3) is designated by the Administrator of OIRA as a 
significant energy action. For any proposed significant energy action, 
the agency must give a detailed statement of any adverse effects on 
energy supply, distribution, or use should the proposal be implemented, 
and of reasonable alternates to the action and their expected benefits 
on energy supply, distribution, and use. This rule is not a significant 
energy action, nor has it been designated as such by the Administrator 
of OIRA. Accordingly, DOE has not prepared a Statement of Energy 
Effects.

J. Review Under the Treasury and General Government Appropriations Act, 
2001

    The Treasury and General Government Appropriations Act, 2001 (44 
U.S.C. 3516, note) provides for agencies to review most disseminations 
of information to the public under guidelines established by each 
agency pursuant to general guidelines issued by OMB. OMB's guidelines 
were published at 67 FR 8452 (February 22, 2002), and DOE's guidelines 
were published at 67 FR 62446 (October 7, 2002). DOE has reviewed this 
rule under the OMB and DOE guidelines and has concluded that it is 
consistent with applicable policies in those guidelines.

K. Review Under the Treasury and General Government Appropriations Act 
of 1999

    Section 654 of the Treasury and General Government Appropriations 
Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family 
Policymaking Assessment for any proposed rule or policy that may affect 
family well-being. This rule would not have any impact on the autonomy 
or integrity of the family as an institution. Accordingly, DOE has 
concluded that it is not necessary to prepare a Family Policymaking 
Assessment.

L. Congressional Notification

    As required by 5 U.S.C. 801, DOE will report to Congress on the 
promulgation of this rule prior to its effective date. The report will 
state that it has been determined that the rule is a ``major rule'' as 
defined by 5 U.S.C. 804(2).

IV. Approval by the Office of the Secretary

    The Office of the Secretary of Energy has approved the publication 
of this final rule.

List of Subjects in 10 CFR Part 1045

    Classified information, Declassification, Formerly restricted data, 
Restricted data, Transclassified foreign nuclear information.

    Issued in Washington, DC, on November 28, 2018.
Matthew B. Moury,
Associate Under Secretary for Environment, Health, Safety and Security.


0
For the reasons stated in the preamble, DOE revises part 1045 of Title 
10 of the Code of Federal Regulations to read as follows:

PART 1045--NUCLEAR CLASSIFICATION AND DECLASSIFICATION

Subpart A--Introduction
Sec.
1045.5 What is the purpose of this part?
1045.10 To whom does this part apply?
1045.15 What is the process for submitting a question or a comment 
on any of the

[[Page 66008]]

policies and procedures contained in this part?
1045.20 How does an agency request an exemption or equivalency to 
meet a provision in this part?
1045.25 What actions can be taken against a person who violates the 
requirements in this part?
1045.30 What definitions apply to this part?
1045.35 What acronyms are commonly used in this part?
Subpart B--Management of Restricted Data (RD), Formerly Restricted Data 
(FRD), and Transclassified Foreign Nuclear Information (TFNI) 
Classification Programs
1045.40 Is there an official in each agency with access to RD, FRD, 
or TFNI who manages the agency's RD, FRD, or TFNI program to ensure 
the requirements in this part are met?
1045.45 What are the responsibilities of DOE officials and 
personnel, and the officials and personnel of other agencies, under 
this part?
1045.50 [Reserved].
1045.55 When are RD, FRD, and TFNI considered for declassification?
1045.60 Does an unauthorized public release of RD, FRD, or TFNI 
result in its declassification?
1045.65 What are the responsibilities of a person who has access to 
RD, FRD, or TFNI if they see information in the open literature that 
they think is RD, FRD, or TFNI?
Subpart C--Determining if Information is RD, FRD, or TFNI
1045.70 How is information initially determined to be RD?
1045.75 Are there prohibitions against information being classified, 
remaining classified, or prevented from being declassified as RD, 
FRD, or TFNI?
1045.80 What are the classification and declassification 
presumptions?
1045.85 How is information determined to be FRD or TFNI and can FRD 
or TFNI be returned to the RD category?
1045.90 Can information generated by private entities that is not 
owned by, produced by, or controlled by the U.S. Government be 
classified as RD?
1045.95 What are the criteria used to assign levels to RD, FRD, or 
TFNI?
1045.100 How are RD, FRD, and TFNI declassified?
1045.105 What is the method to request the declassification of RD, 
FRD or TFNI?
1045.110 How are challenges to the classification and 
declassification of RD, FRD, or TFNI submitted and processed?
Subpart D--Classifying and Declassifying Matter Containing RD, FRD, or 
TFNI
1045.115 Who is authorized to derivatively classify matter that 
contains RD, FRD, or TFNI?
1045.120 What training is required for persons who have access to or 
who derivatively classify matter containing RD, FRD, or TFNI?
1045.125 What is the process for reviewing and derivatively 
classifying matter that potentially contains RD, FRD, or TFNI?
1045.130 How does an authorized person derivatively classify matter 
containing RD, FRD, or TFNI?
1045.135 Can a person make an RD, FRD, or TFNI classification 
determination if applicable classification guidance is not 
available?
1045.140 How is matter containing RD, FRD, or TFNI, marked?
1045.145 Who must review output from a classified IT system that is 
marked as RD, FRD, or TFNI?
1045.150 Can anyone remove the RD, FRD, or TFNI portions and 
markings to produce an NSI or unclassified version of the matter?
1045.155 How is matter marked as containing RD, FRD, or TFNI 
declassified?
1045.160 When the RD, FRD, or TFNI is removed from matter, what 
action must be taken if the matter still contains NSI?
1045.165 Once matter marked as RD, FRD, or TFNI is declassified, how 
is it marked?
Subpart E--Government-Wide Procedures for Handling Freedom of 
Information Act (FOIA) and Mandatory Declassification Review (MDR) 
Requests for Matter Marked as or Potentially Containing RD, FRD, or 
TFNI
1045.170 What is the purpose of this subpart?
1045.175 How must agencies process FOIA and MDR requests for matter 
that is marked as or potentially contains RD, FRD, or TFNI?
1045.180 What is the procedure if an agency receives an appeal to a 
FOIA or MDR concerning the denial of RD, FRD, or TFNI?
Subpart F--DOE-Specific Procedures for MDR Requests
1045.185 What is the purpose of this subpart?
1045.190 How does the public submit an MDR for DOE classified 
matter?
1045.195 Is any matter exempt from MDR requests?
1045.200 Is there a cost for an MDR review?
1045.205 How does DOE conduct an MDR review?
1045.210 How does a person submit an appeal if DOE withholds 
classified information in an MDR response?
1045.215 How does DOE process an MDR appeal for DOE matter 
containing NSI?
1045.220 How does DOE process an MDR appeal for matter containing 
RD, FRD, or TFNI?
1045.225 Are DOE responses to MDR requests available to the public?

    Authority:  42 U.S.C. 2011; E.O. 13526, 75 FR 705, 3 CFR 2010 
Comp., pp. 298-327.

Subpart A--Introduction


 Sec.  1045.5  What is the purpose of this part?

    (a) This part implements sections 141, 142, and 146 of the Atomic 
Energy Act, as amended (42 U.S.C. 2011 et seq.) (AEA) and describes the 
procedures to be used by the public in questioning or appealing DOE 
decisions regarding the classification of NSI under E.O. 13526, and 32 
CFR part 2001, Classified National Security Information. This part is 
divided into six subparts:
    (1) Subpart A--``Introduction'' specifies to whom these rules 
apply, describes how to submit comments or suggestions concerning the 
policies and procedures in this part, describes how to request an 
exemption from or an equivalency to a provision in this part; outlines 
sanctions imposed for violating the policies and procedures in this 
part; defines key terms; and lists acronyms used in this part.
    (2) Subpart B--``Program Management of Restricted Data (RD), 
Formerly Restricted Data (RD), and Transclassified Foreign Nuclear 
Information (TFNI) Classification Programs'' specifies responsibilities 
of officials in DOE and other agencies in the role of identifying RD, 
transclassifying RD to FRD or to TFNI, and returning FRD or TFNI to RD; 
discusses the systematic declassification review of information/matter 
containing RD, FRD, or TFNI; and describes the ``no comment'' policy.
    (3) Subpart C--``Determining if Information is RD, FRD, or TFNI'' 
describes how information is initially classified as RD, 
transclassified as FRD or TFNI, or declassified; lists criteria for 
evaluating whether RD, FRD, or TFNI should be classified or 
declassified; describes the prohibitions against classifying 
information as RD, FRD, or TFNI; lists areas of information that are 
presumed to be RD or unclassified; specifies how privately generated 
information may be classified as RD; defines the classification levels; 
describes how to submit proposals for RD, FRD, and TFNI; describes how 
to challenge the classification or declassification of RD, FRD, or 
TFNI; and describes the issuance of classification guides to promulgate 
classification and declassification determinations.
    (4) Subpart D--``Classifying and Declassifying Matter Containing 
RD, FRD, or TFNI'' describes who has the authority to classify and 
declassify matter containing RD, FRD, or TFNI; the appointment and 
training of these individuals; discusses the use of classified 
addendums; describes classification by association or compilation; 
specifies who must review matter that potentially contains RD, FRD, or 
TFNI intended for public release; describes what to do if an RD 
Derivative Classifier or a person trained to classify matter containing 
TFNI cannot locate classification guidance to make a determination; 
describes the

[[Page 66009]]

classification and declassification marking requirements; and states 
the prohibition against the automatic declassification of matter 
containing RD, FRD, or TFNI.
    (5) Subpart E--``Government-wide Procedures for Handling Freedom of 
Information Act (FOIA) and Mandatory Declassification Review (MDR) 
Requests for Matter Marked as or Potentially Containing RD, FRD, or 
TFNI'' describes how agencies process FOIA or MDR requests and appeals 
for matter marked as or potentially containing RD, FRD, or TFNI.
    (6) Subpart F--``DOE Procedures for MDR Requests'' describes how 
DOE FOIA and MDR requests and appeals for matter marked as or 
potentially containing NSI, RD, FRD, or TFNI are submitted and 
processed.
    (b) [Reserved].


Sec.  1045.10  To whom does this part apply?

    (a) Subparts A, B, C, and D apply to--
    (1) Any person or agency with access to RD, FRD, or TFNI;
    (2) Any person or agency who generates information that has the 
potential to be RD, FRD, or TFNI; and
    (3) Any person or agency who generates matter that potentially 
contains RD, FRD, or TFNI.
    (b) Subpart E applies to government agencies who receive Freedom of 
Information Act (FOIA) or Mandatory Declassification Review (MDR) 
requests for matter that is marked as or potentially contains RD, FRD, 
or TFNI.
    (c) Subpart F applies to DOE and to any person submitting a 
Mandatory Declassification Review request for DOE matter.


Sec.  1045.15  What is the process for submitting a question or a 
comment on any of the policies and procedures contained in this part?

    Any person who has a question or a comment on DOE's classification 
and declassification policies and procedures under this part may submit 
the question or comment in writing to the Director, Office of 
Classification, AU-60/Germantown Building, U.S. Department of Energy, 
1000 Independence Avenue SW, Washington, DC 20585. The correspondence 
should contain the question or comment, include applicable background 
information and/or citations, as appropriate, and must provide an 
address for the response. The Director will make every effort to 
respond within 60 days. Under no circumstance will anyone be subject to 
retribution for asking a question or making a comment regarding DOE's 
classification and declassification policies and procedures.


Sec.  1045.20  How does an agency request an exemption or equivalency 
to meet a provision in this part?

    The agency must submit a request for an exemption or an equivalency 
to the procedural provisions under this part in writing to the 
Director, Office of Classification, AU-60/Germantown Building, U.S. 
Department of Energy, 1000 Independence Avenue SW, Washington, DC 
20585. The request must provide all relevant facts, to include any 
applicable citations, describing the procedure and why the exemption or 
equivalency is required. If the request is for an equivalency, it must 
include a proposed alternate procedure to meet the intent of the 
procedure for which the equivalency is being requested.


Sec.  1045.25  What actions can be taken against a person who violates 
the requirements in this part?

    Any knowing, willful, or negligent action contrary to the 
requirements of this part that results in the misclassification of 
information is subject to appropriate sanctions. Such sanctions may 
range from administrative sanctions (e.g., reprimand, suspension, 
termination) to civil or criminal penalties, depending on the nature 
and severity of the action as determined by the appropriate authority 
in accordance with applicable laws. Other violations of the policies 
and procedures in this part may be grounds for administrative sanctions 
as determined by an appropriate authority.


Sec.  1045.30  What definitions apply to this part?

    The following definitions apply to this part:
    Agency means any ``executive agency'' as defined in 5 U.S.C. 105; 
any ``Military Department'' as defined in 5 U.S.C. 102; and any other 
entity within the executive branch that has access to RD, FRD, or TFNI 
information or matter.
    Associate RD Management Official (ARDMO) means a person appointed 
in accordance with agency policy to assist the RD Management Official 
(RDMO) with managing the implementation of this part within that 
agency.
    Associate Under Secretary for Environment, Health, Safety and 
Security means DOE's Associate Under Secretary for Environment, Health, 
Safety and Security or any person to whom the Associate Under 
Secretary's duties are delegated.
    Atomic Energy Act (AEA) means the Atomic Energy Act of 1954, as 
amended (42 U.S.C. 2011 et seq.).
    Automatic Declassification means the declassification of NSI based 
on a specific date, event, or timeframe, in accordance with E.O. 13526, 
or prior or successor orders.
    Classification means the act or process by which information or 
matter is determined to require protection as RD, FRD, or TFNI, under 
the AEA or as NSI under E.O. 13526 or prior or successor orders.
    Classification category identifies whether information is 
classified by statute or E.O. The classification categories are: RD, 
FRD, TFNI (classified by the AEA), and NSI (classified by E.O.).
    Classification guidance means any instruction or source approved by 
an appropriate authority that prescribes the classification of specific 
information (e.g., classification guide, classification bulletins, 
portion-marked source documents).
    Classification guide means a written record of detailed 
instructions, approved by an appropriate authority, that explicitly 
identifies whether specific information is classified, usually 
concerning a system, plan, project, or program. If classified, the 
level and category of classification assigned to such information is 
specified. For NSI, the classification duration is also specified.
    Classified information means:
    (1) Information determined to be RD, FRD, or TFNI under the AEA and 
this part, or
    (2) Information that has been determined pursuant to E.O. 13526 or 
any predecessor order to require protection against unauthorized 
disclosure and is marked to indicate its classification status when in 
documentary form.
    Classification level means one of the three following designators 
for RD, FRD, and TFNI:
    (1) Top Secret (TS) is applied to RD, FRD, or TFNI that is vital to 
the national security and the unauthorized disclosure of which could 
reasonably be expected to cause exceptionally grave damage to the 
national security that the appropriate official is able to identify or 
describe.
    (2) Secret (S) is applied to RD, FRD, or TFNI, the unauthorized 
disclosure of which could reasonably be expected to cause serious 
damage to the national security that the appropriate official is able 
to identify or describe.
    (3) Confidential (C) is applied to RD, FRD, or TFNI the 
unauthorized disclosure of which could reasonably be expected to cause 
undue risk to the common defense and security that the appropriate 
official is able to identify or describe.

[[Page 66010]]

    Classified matter means anything in physical or electronic form 
that contains or reveals classified information.
    Contractor means any industrial, educational, commercial, or other 
entity, grantee, or licensee at all tiers, including a person that has 
executed an agreement with the Federal Government for the purpose of 
performing under a contract, license, or other agreement.
    Declassification means a determination by an appropriate authority 
that:
    (1) Information no longer warrants protection against unauthorized 
disclosure in the interest of the national security; or
    (2) Matter no longer contains or reveals classified information.
    DOE means the Department of Energy.
    Director, Office of Classification, means DOE's Director, Office of 
Classification.
    Downgrading means:
    (1) A decision by DOE that information classified as RD or TFNI is 
classified at a lower level than currently identified in a DOE or joint 
classification guide;
    (2) A joint decision by DOE and the Department of Defense (DoD) 
that FRD is classified at a lower level than currently identified in a 
DOE or joint classification guide; or
    (3) A decision by an RD Derivative Classifier (or in the case of 
TFNI, a person trained to derivatively classify TFNI) based on 
classification guides and bulletins that matter containing RD, FRD, or 
TFNI is classified at a lower level than currently marked.
    (4) A decision, based on a DOE or joint classification guide, by an 
authorized person that matter containing RD, FRD, or TFNI is classified 
at a less sensitive category (e.g., RD to FRD, RD to NSI) than 
currently marked.
    Formerly Restricted Data (FRD) means classified information removed 
from the RD category under the AEA (section 142(d)), after DOE and DoD 
jointly determine it is related primarily to the military utilization 
of nuclear weapons and that the information can be adequately protected 
in a manner similar to NSI.
    Government means the executive branch of the Federal Government of 
the United States.
    Government information means information that is owned by, produced 
by or for, or is under the control of the U.S. Government.
    Information means facts, data, or knowledge, as opposed to the 
medium in which it is contained.
    Initial determination means the process used by the Director, 
Office of Classification, to determine if new information is RD. New 
information that falls under the definition of RD is presumed 
classified as RD until the Director, Office of Classification makes the 
initial determination as to its classification status.
    Interagency Security Classification Appeals Panel (ISCAP) means a 
Panel established and administered pursuant to E.O. 13526 and prior or 
successor E.O.s to perform functions specified in the order with 
respect to NSI.
    Matter means any combination of physical documents, electronic 
instances of information or data (including email) at rest or in 
transit, or information or data presentation or representation 
regardless of physical form or characteristics.
    National security means the national defense or foreign relations 
of the United States.
    National Security Information (NSI) means information that has been 
determined pursuant to E.O. 13526 or prior or successor E.O.s to 
require protection against unauthorized disclosure and is marked to 
indicate its classification status.
    Nuclear weapon means atomic weapon.
    Originating activity, for the purpose of RD, FRD, or TFNI, means 
any development of specific matter (e.g., report, guide) within an 
organization, working group, or between persons, including coordination 
of a product for classification review.
    Person means:
    (1) Any individual, corporation, partnership, firm, association, 
trust, estate, public or private institution, group, Government agency 
other than the Commission, any State or any political subdivision of, 
or any political entity within a State, any foreign government or 
nation or any political subdivision of any such government or nation, 
or other entity; and
    (2) Any legal successor, representative, agent, or agency of the 
foregoing.
    Portion marking means the application of certain classification 
markings to reasonably segregable sections of matter (e.g., paragraphs, 
phrases, sentences). This also includes any markings required by 
national policy to control portions of unclassified information.
    Restricted Data (RD) means all data concerning the design, 
manufacture, or utilization of atomic weapons; the production of 
special nuclear material; or the use of special nuclear material in the 
production of energy, except for data declassified or removed from the 
RD category pursuant to section 142 of the AEA.
    RD Derivative Classifier means a person specifically trained and, 
when required, designated to derivatively classify matter containing RD 
or FRD in areas in which they have programmatic expertise.
    RD Management Official (RDMO) means a person appointed by an agency 
to be responsible for managing the implementation of this part within 
the agency.
    Secretary means the Secretary of Energy.
    Source document means existing classified, portion-marked matter 
that contains classified information that is incorporated, paraphrased, 
restated, or generated in new form into new matter.
    Special nuclear materials means special nuclear material as defined 
in the AEA.
    Transclassified Foreign Nuclear Information (TFNI) means:
    (1) Information concerning the nuclear energy programs of other 
nations (including subnational groups) that is removed from the RD 
category under the AEA (section 142(e)) after DOE and the Director of 
National Intelligence (DNI) jointly determine that the information is 
necessary to carry out intelligence-related activities under the 
National Security Act of 1947, as amended, and that the information can 
be adequately protected in a manner similar to NSI. TFNI includes 
information removed from the RD category by past agreements between DOE 
and the Director of Central Intelligence or past and future agreements 
with the DNI.
    (2) TFNI does not include:
    (i) RD or FRD concerning United Kingdom (U.K.) or Canadian 
programs;
    (ii) Any U.S. RD or FRD, including that which the U.S. has 
transmitted to other nations;
    (iii) Any evaluation of foreign information based on the use of 
U.S. RD or FRD unless also specifically transclassified to TFNI or any 
evaluation that could reveal such data concerning the U.S., U.K., or 
Canadian programs;
    (iv) Classified atomic energy information received from a foreign 
government pursuant to an agreement imposing security measures 
equivalent for those in effect for RD; or
    (v) Classified information on the Tripartite Gas Centrifuge and its 
successor programs, including data on the gas centrifuge work of each 
of the participants.
    TFNI guideline means a policy document that describes information

[[Page 66011]]

which meets the TFNI criteria for various collection assets.
    Upgrading means:
    (1) A decision by DOE that information classified as RD or TFNI is 
classified at a higher level than currently identified in a DOE or 
joint classification guide;
    (2) A joint decision by DOE and DoD that FRD is classified at a 
higher level than currently identified in a DOE or joint classification 
guide; or
    (3) A decision by an RD Derivative Classifier, (or in the case of 
TFNI, a person trained to classify TFNI) based on classification 
guidance, that matter containing RD, FRD, or TFNI is classified at a 
higher level or category than currently marked. This includes 
correcting the classification level or category of matter that was 
never marked as well as matter erroneously marked as unclassified.


Sec.  1045.35  What acronyms are commonly used in this part?

    The following acronyms are commonly used throughout this part:

AEA--The Atomic Energy Act of 1954, as amended (42 U.S.C. 2011 et seq.)
ARDMO--Associate RD Management Official
C--Confidential
CD--Compact Disk
CFR--Code of Federal Regulations
CUI--Controlled Unclassified Information
DCI--Director of Central Intelligence
DNI--Director of National Intelligence
DoD--Department of Defense
DOE--Department of Energy
E.O.--Executive order
FOIA--Freedom of Information Act
FRD--Formerly Restricted Data
IC--Intelligence Community
ICD--Intelligence Community Directive
ICPG--Intelligence Community Policy Guidance
ISCAP--Interagency Security Classification Appeals Panel
MDR--Mandatory Declassification Review
NNSA--National Nuclear Security Administration
NRC--Nuclear Regulatory Commission
NSI--National Security Information
Pub. L.--Public Law
RD--Restricted Data
RDMO--RD Management Official
S--Secret
TFNI--Transclassified Foreign Nuclear Information
U.K.--United Kingdom

Subpart B--Management of Restricted Data (RD), Formerly Restricted 
Data (FRD), and Transclassified Foreign Nuclear Information (TFNI) 
Classification Programs


Sec.  1045.40  Is there an official in each agency with access to RD, 
FRD, or TFNI who manages the agency's RD, FRD, or TFNI program to 
ensure the requirements in this part are met?

    Yes. The head of each agency with access to RD, FRD, or TFNI:
    (a) Must appoint at least one Federal official to serve as an RDMO 
who ensures the proper implementation of this part within his or her 
agency and serves as the primary point of contact for coordination with 
the Director, Office of Classification, for classification and 
declassification issues involving RD, FRD, and TFNI. Within DoD, a 
minimum of at least one RDMO must be appointed in each military 
department.
    (b) May appoint or authorize the RDMO to appoint one or more 
Associate RDMOs if there is more than one organization that has access 
to RD, FRD, or TFNI. In such cases, the RDMO is the lead official and 
the primary point of contact with the Director, Office of 
Classification.
    (c) Must ensure contact information for each RDMO and ARDMO is sent 
to the Director, Office of Classification, within 30 days of the 
appointment.


Sec.  1045.45  What are the responsibilities of DOE officials and 
personnel, and the officials and personnel of other agencies, under 
this part?

    (a) The Secretary or Deputy Secretary of Energy must determine in 
writing whether information privately generated by persons in the 
United States but not under a Government contract is classified as RD. 
This responsibility cannot be delegated.
    (b) The Associate Under Secretary for Environment, Health, Safety 
and Security:
    (1) Determines if RD and TFNI may be published without undue risk 
to the common defense and security and declassified;
    (2) Jointly with DoD, determines which information in the RD 
category relating primarily to the military utilization of nuclear 
weapons may be transclassified to the FRD category;
    (3) Jointly with DoD, determines which information in the FRD 
category may be removed from that category and returned to the RD 
category and notifies all appropriate agencies as necessary of the 
change;
    (4) Jointly with DoD, declassifies FRD and RD relating primarily to 
the military utilization of nuclear weapons that may be published 
without undue risk to the common defense and security;
    (5) Jointly with the DNI, determines which information in the RD 
category concerning nuclear energy programs of foreign governments may 
be transclassified to the TFNI category to carry out the provisions of 
the National Security Act of 1947, as amended;
    (6) Jointly with the DNI, determines which information in the TFNI 
category may be removed from that category and returned to the RD 
category and notifies all appropriate agencies as necessary of the 
change;
    (7) Considers declassification proposals received from the public 
or other agencies or their contractors concerning RD, FRD, and TFNI, 
and coordinates responses with the appropriate agencies;
    (8) Makes the final appeal determination concerning the denial of 
any RD, FRD, or TFNI contained in matter requested under statute or 
Executive Order; and
    (9) Makes the final appeal determination for any formal 
classification challenges for RD, DOE FRD, and TFNI.
    (c) The Director, Office of Classification:
    (1) Issues the Government-wide requirements for the classification 
and declassification of RD, FRD, and TFNI in accordance with the AEA 
and this part;
    (2) Grants exemptions and equivalencies to provisions of this part;
    (3) Develops and interprets policies to implement RD, FRD, and TFNI 
classification programs in coordination with DoD for FRD, as 
appropriate;
    (4) Determines whether nuclear-related information is RD;
    (5) Determines if new information in a previously declassified 
subject area warrants classification as RD based on the criteria in 
Sec.  1045.70, except where the information has been widely 
disseminated in the open literature;
    (6) Assigns a classification level to RD and TFNI, and, jointly 
with DoD, to FRD, that reflects the sensitivity of the information to 
the national security;
    (7) Serves as the Denying Official for RD, DOE FRD, and TFNI 
portions of records requested under statute or Executive Order;
    (8) Establishes a system for processing, tracking, and recording 
formal classification challenges and declassification proposals made by 
persons with access to RD, FRD, and TFNI;
    (9) Considers challenges to RD, FRD, and TFNI, coordinates 
challenges with other agencies, as appropriate, and makes the initial 
determination

[[Page 66012]]

pertaining to the challenge of a classification determination 
concerning RD, DOE FRD, or TFNI;
    (10) Delegates the authority to declassify matter containing RD, 
FRD, or TFNI to qualified individuals in other Government agencies;
    (11) Develops and distributes classification guides to promulgate 
classification and declassification determinations for RD, FRD, and 
TFNI, and jointly develops classification guides and TFNI guidelines 
with DoD, the Nuclear Regulatory Commission (NRC), the National 
Aeronautics and Space Administration, and other agencies in the RD, 
FRD, or TFNI categories or subject areas for which DOE and the agencies 
share responsibility;
    (12) Reviews classification guides that contain RD and jointly 
reviews classification guides that contain FRD topics with the 
appropriate DoD authority (as specified in DoD Instruction 5210.02 or 
successor instructions) that are developed by other agencies;
    (13) Reviews TFNI guidelines and classification guides containing 
TFNI topics developed by other agencies;
    (14) Assists agencies with the implementation of RD, FRD, and TFNI 
classification programs to comply with this part;
    (15) In consultation with the agency RDMO, determines when to 
conduct on-site reviews of agency programs established under this part 
to evaluate the agency's implementation of the requirements;
    (16) Coordinates on-site reviews of the Intelligence Community (IC) 
with the DNI;
    (17) Reviews agency implementing policies;
    (18) Develops training materials related to implementing this part 
and provides these materials to RDMOs and other appropriate persons;
    (19) Reviews any RD-, FRD-, or TFNI-related training material 
submitted by other agencies to ensure consistency with current 
policies;
    (20) Periodically hosts a meeting of RDMOs to disseminate 
information or address issues; and
    (21) Responds to questions and considers comments received from any 
person, including the public, concerning RD, FRD, and TFNI 
classification and declassification policies and procedures.
    (d) DoD jointly with DOE:
    (1) Determines which information in the RD category relating 
primarily to the military utilization of nuclear weapons may be 
transclassified to the FRD category;
    (2) Determines which information in the FRD category may be removed 
from that category and returned to the RD category;
    (3) Assigns a classification level to FRD that reflects the 
sensitivity of the information to the national security;
    (4) Prepares classification guides for FRD; and
    (5) Declassifies FRD and RD relating primarily to the military 
utilization of nuclear weapons that may be published without undue risk 
to the common defense and security.
    (6) Considers challenges to FRD, and coordinates challenges with 
other agencies, as appropriate.
    (e) The DNI jointly with DOE:
    (1) Determines which information in the RD category concerning 
nuclear energy programs of foreign governments may be transclassified 
to the TFNI category to carry out the provisions of the National 
Security Act of 1947, as amended;
    (2) Determines which information in the TFNI category may be 
removed from that category and returned to the RD category; and
    (3) Coordinates IC Directives (ICD) and IC Policy Guidance (ICPG) 
concerning RD, FRD, and TFNI to ensure policies are consistent;
    (f) NRC:
    (1) Jointly with DOE, develops classification guides for programs 
over which both agencies have cognizance; and
    (2) Ensures the review and proper classification of matter 
containing RD by RD Derivative Classifiers that is generated by NRC or 
by its licensed or regulated facilities and activities.
    (g) Heads of Agencies with access to RD, FRD, or TFNI:
    (1) Ensure that matter containing RD, FRD, and TFNI is reviewed by 
a person with appropriate authority and properly classified.
    (2) Must appoint at least one RDMO to manage the implementation of 
this part within the agency;
    (3) Ensure implementing directives for this part are developed, 
submitted to DOE for review prior to issuance, to ensure consistency 
with this part, and promulgated;
    (4) Should periodically review holdings containing RD, FRD, or TFNI 
that are likely to have a high degree of public interest and a 
likelihood of declassification. If any matter containing RD, FRD, or 
TFNI is identified for declassification, ensure coordination for the 
declassification of matter marked as RD, FRD, or TFNI with DOE or DoD, 
as appropriate;
    (5) Develop and promulgate procedures for persons with access to RD 
or FRD to submit classification challenges and declassification 
proposals for guide topics that are RD or FRD or for matter containing 
RD or FRD. If the agency possesses TFNI, develops and promulgates 
procedures for persons with access to TFNI to submit classification 
challenges and declassification proposals for guide topics that are 
TFNI or matter containing TFNI;
    (6) Ensure joint classification guides for programs over which DOE 
and the agency have cognizance are developed;
    (7) Ensure that any classification guides the agency develops or 
revises that contain RD or FRD, topics are coordinated with the 
Director, Office of Classification prior to issuance, to ensure 
consistency with DOE and DoD guidance;
    (8) Ensure that any TFNI guidelines or classification guides 
containing TFNI topics the agency develops or revises are reviewed by 
the Director, Office of Classification, prior to issuance for 
consistency with policies developed by DOE and current 
transclassification agreements;
    (9) Ensure that agency classification guides containing RD, FRD, or 
TFNI topics are reviewed for consistency with current DOE 
classification guides at least once every 5 years and that appropriate 
revisions are made, if necessary;
    (10) Ensure that NSI records of permanent historical value are 
reviewed as required under the ``Special Historical Records Review Plan 
(Supplement)'' established under Public Law 105-261 and 106-65 or 
subsequent statutes;
    (11) Ensure that each RDMO and Federal RD Derivative Classifier 
whose duties involve the classification of a significant amount of 
matter containing RD or FRD have his or her personnel performance 
evaluated with respect to such classification activities; and
    (12) Ensure that contracting officers are notified of any contracts 
that have access to or generate matter containing RD, FRD, or TFNI, and 
that the requirements of this part are incorporated into those 
contracts.
    (13) Ensure DOE classification guides, classification bulletins and 
matter containing DOE classification guide topics that is not itself 
classified is safeguarded and its dissemination is limited to persons 
with a need to know.
    (h) Agency RDMOs:
    (1) Ensure that procedures for training and designating ARDMOs and 
RD Derivative Classifiers within the agency are established;

[[Page 66013]]

    (2) Ensure that persons with access to RD, FRD, and TFNI are 
trained in accordance with Sec.  1045.120;
    (3) Ensure that RD Derivative Classifiers are designated and 
trained in accordance with Sec. Sec.  1045.115 and 1045.120, 
respectively;
    (4) Ensure that persons who derivatively classify matter containing 
TFNI are trained in accordance with Sec.  1045.120;
    (5) Ensure that RD Derivative Classifiers and persons who 
derivatively classify TFNI have access to any classification guides 
needed;
    (6) Ensure that a periodic review of a sample of the agency's RD, 
FRD, and TFNI derivative classification determinations is conducted 
that evaluates that each determination was made by appropriately 
trained and (when required) designated employees acting within his or 
her authority, that the determination is accurate, and that the 
markings are applied correctly;
    (7) In consultation with the Director, Office of Classification 
determine when to conduct on-site reviews of their agency program 
established under this part to evaluate the agency's implementation of 
the requirements; and
    (8) Cooperate with and provide information as necessary to the 
Director, Office of Classification, to fulfill their responsibilities 
under this part.
    (i) RD Derivative Classifiers:
    (1) Must receive training prescribed by Sec.  1045.120;
    (2) Must use approved DOE or joint classification guides, in the 
subject areas in which they have programmatic expertise, or an 
applicable portion-marked source document as the basis for derivative 
decisions to classify or upgrade matter containing RD or FRD; and
    (3) Must use DOE classification guides and bulletins, joint DOE-
agency classification guides, or agency classification guides 
containing RD or FRD topics that have been coordinated with DOE as the 
basis to downgrade the level of matter containing RD or FRD. Source 
documents must not be used as a basis to downgrade matter containing RD 
or FRD;
    (4) Must not downgrade the category of matter containing RD, FRD, 
or TFNI (e.g., RD to NSI, FRD to NSI), unless granted this authority by 
DOE for RD or TFNI or by DOE or DoD for FRD;
    (5) Must not declassify matter containing RD, FRD, or TFNI unless 
delegated this authority by DOE for RD or TFNI, or by DOE or DoD for 
FRD; and
    (6) Can remove the RD, FRD, and TFNI portions from a portion-marked 
source document in accordance with Sec.  1045.150.
    (j) Persons who derivatively classify matter containing TFNI:
    (1) Must receive training prescribed by Sec.  1045.120;
    (2) Must use approved TFNI guidelines, DOE or joint classification 
guides in the subject areas in which they have programmatic expertise, 
or an applicable portion-marked source document as the basis for 
derivative decisions to classify or upgrade matter containing TFNI; and
    (3) Must not declassify or downgrade the category of matter 
containing TFNI unless delegated this authority by DOE.
    (k) Persons with access to RD, FRD, or TFNI:
    (1) Must be trained in accordance with Sec.  1045.120;
    (2) Must submit matter that potentially contains RD, FRD, or TFNI 
to a person with the appropriate authority for review in accordance 
with Sec.  1045.125;
    (3) Must submit matter that potentially contains RD, FRD, or TFNI 
to a person with the appropriate authority for declassification or 
public release.


Sec.  1045.50  [Reserved].


Sec.  1045.55   When are RD, FRD, and TFNI considered for 
declassification?

    RD, FRD, and TFNI information and matter are considered for 
declassification during several processes.
    (a) DOE reviews all classification guides containing RD, FRD, or 
TFNI topics at least once every 5 years to determine if information 
identified as RD, FRD, or TFNI still meets the criteria for 
classification under Sec.  1045.70. If RD, FRD, and TFNI information 
contained in a classification guide does not meet the standards for 
classification, the information is declassified.
    (b) TFNI is no longer TFNI when comparable U.S. RD is declassified.
    (c) Agencies with holdings containing RD, FRD, or TFNI should 
periodically review holdings that are likely to have a high degree of 
public interest and a likelihood of declassification. If any matter 
containing RD, FRD, or TFNI is identified for declassification, 
agencies must coordinate the declassification of matter marked as RD, 
FRD, or TFNI with DOE or DoD, as appropriate.
    (d) RD, FRD, or TFNI information or matter containing RD, FRD, or 
TFNI in particular areas of public interest may be considered for 
declassification if sufficient interest is demonstrated. Proposals for 
the systematic review of given collections or subject areas must be 
addressed to the Director, Office of Classification, AU-60/Germantown 
Building, U.S. Department of Energy, 1000 Independence Avenue SW, 
Washington, DC 20585.
    (e) During the FOIA and MDR request process, agencies must refer 
any responsive matter that is marked as or potentially contains RD, 
FRD, or TFNI to DOE or DoD, as provided under Subpart F. During this 
process, the information may be reviewed to determine it still meets 
the standards for classification.
    (f) The public and persons with access to RD, FRD, or TFNI may 
submit a declassification proposal for RD, FRD, or TFNI under Sec.  
1045.105.


Sec.  1045.60  Does an unauthorized public release of RD, FRD, or TFNI 
result in its declassification?

    The unauthorized disclosure of RD, FRD, or TFNI does not 
automatically result in its declassification. However, if a disclosure 
is sufficiently authoritative or credible, the Associate Under 
Secretary for Environment, Health, Safety and Security will examine the 
possibility of declassifying the information.


Sec.  1045.65  What are the responsibilities of a person with access to 
RD, FRD, or TFNI, if they see information in the open literature that 
they think is RD, FRD, or TFNI?

    (a) A person with access to RD, FRD, or TFNI, must not confirm or 
expand upon the classification status or technical accuracy of 
information in the open literature that is RD, FRD, or TFNI or 
suspected to be RD, FRD, or TFNI. Commenting on such information can 
cause greater damage to national security by confirming its location, 
classified nature, or technical accuracy.
    (b) Because the open literature may contain information that is 
still classified as RD, FRD, or TFNI, a person who has access to RD, 
FRD, or TFNI who incorporates information from the open literature that 
is potentially classified as RD, FRD, or TFNI into matter must ensure 
the matter is reviewed as required under Sec.  1045.125 to ensure the 
information incorporated is not classified.

Subpart C--Determining if Information is RD, FRD, or TFNI


Sec.  1045.70  How is information initially determined to be RD?

    (a) For new information to be classified as RD it must fall under 
the definition of RD that states such information concerns: The design, 
manufacture, or utilization of nuclear weapons; the production of 
special nuclear material; or the use of special

[[Page 66014]]

nuclear material in the production of energy, and the unauthorized 
release of the information must reasonably be expected to cause undue 
risk to the common defense and security.
    (b) This initial determination is made by the Director, Office of 
Classification after:
    (1) Ensuring the information is not prohibited from being 
classified under Sec.  1045.75;
    (2) Considering whether the information falls within the 
classification or declassification presumptions in Sec.  1045.80; and
    (3) Evaluating the criteria in this paragraph.
    (i) Whether the information is so widely known or readily apparent 
to knowledgeable observers that its classification would cast doubt on 
the credibility of classification programs;
    (ii) Whether publication of the information would assist in the 
development of countermeasures or otherwise jeopardize any U.S. weapon 
or weapon system;
    (iii) Whether the information would hinder U.S. nonproliferation 
efforts by significantly assisting potential adversaries to develop or 
improve a nuclear weapon capability, produce nuclear weapons materials, 
or make other military use of nuclear energy;
    (iv) Whether information would assist terrorists to develop a 
nuclear weapon, produce nuclear materials, or use special nuclear 
material in a terrorist attack;
    (v) Whether publication of the information would have a detrimental 
effect on U.S. foreign relations;
    (vi) Whether publication of the information would benefit the 
public welfare, taking into account the importance of the information 
to public discussion and education and potential contribution to 
economic growth; and
    (vii) Whether publication of the information would benefit the 
operation of any Government program by reducing operating costs or 
improving public acceptance.
    (c) In consideration of the analysis of the criteria of this 
section, if there is significant doubt about the need to classify the 
information, then the Director cannot make an initial determination to 
classify the information.


Sec.  1045.75   Are there prohibitions against information being 
classified, remaining classified, or prevented from being declassified 
as RD, FRD, or TFNI?

    (a) Yes. Information must not be classified or remain classified as 
RD, FRD, or TFNI to accomplish the purposes described in paragraphs (b) 
through (g) of this section. Persons must also not prevent information 
from being declassified as RD, FRD, or TFNI for the purposes described 
in paragraphs (b) through (g) of this section.
    (b) Conceal violations of law, inefficiency, or administrative 
error;
    (c) Prevent embarrassment to a person, organization, or agency;
    (d) Restrain competition;
    (e) Prevent or delay the release of information that does not 
require protection for the national security or nonproliferation 
reasons;
    (f) Unduly restrict dissemination by assigning an improper 
classification level; or
    (g) Prevent or delay the release of information bearing solely on 
the physical environment or public or worker health and safety.


Sec.  1045.80  What are the classification and declassification 
presumptions?

    (a) The Director, Office of Classification and the Associate Under 
Secretary of Environment, Health, Safety and Security consider the 
presumptions in paragraph (b)(1) of this section before applying the 
criteria in Sec.  1045.70. These presumptions concern information in 
certain but not all nuclear-related areas that may generally be 
presumed to be RD or are generally unclassified. The term ``generally'' 
here means that as a rule, but not necessarily in every case, the 
information in the identified area is presumed classified or not 
classified as indicated. Inclusion of specific existing information in 
one of the presumption categories does not mean that new information in 
a category is or is not classified, but only that arguments to differ 
from the presumed classification status of the information should use 
the appropriate presumption as a starting point.
    (b) Information in the following areas is presumed to be RD:
    (1) Detailed designs, specifications, and functional descriptions 
of nuclear explosives, whether in the active stockpile or retired;
    (2) Material properties under conditions achieved in nuclear 
explosions that are principally useful only for design and analysis of 
nuclear weapons;
    (3) Vulnerabilities of U.S. nuclear weapons to sabotage, 
countermeasures, or unauthorized use;
    (4) Nuclear weapons logistics and operational performance 
information (e.g., specific weapon deployments, yields, capabilities) 
related to military utilization of those weapons required by DoD;
    (5) Details of the critical steps or components in nuclear material 
production processes; and
    (6) Features of military nuclear reactors, especially naval nuclear 
propulsion reactors, that are not common to or required for civilian 
power reactors.
    (c) Information in the following areas is presumed to be 
unclassified:
    (1) Basic science: Mathematics, chemistry, theoretical and 
experimental physics, engineering, materials science, biology, and 
medicine;
    (2) Magnetic confinement fusion technology;
    (3) Civilian power reactors, including nuclear fuel cycle 
information but excluding technologies for uranium enrichment;
    (4) Source materials (defined as uranium and thorium and ores 
containing them);
    (5) Fact of use of safety features (e.g., insensitive high 
explosives, fire resistant pits) to lower the risks and reduce the 
consequences of nuclear weapon accidents;
    (6) Generic nuclear weapons effects;
    (7) Physical and chemical properties of uranium and plutonium, most 
of their alloys and compounds, under standard temperature and pressure 
conditions;
    (8) Nuclear fuel reprocessing technology and reactor products not 
revealing classified production rates or inventories;
    (9) The fact, time, location, and yield range (e.g., ``less than 20 
kilotons'' or ``20-150 kilotons'') of U.S. nuclear tests;
    (10) General descriptions of nuclear material production processes 
and theory of operation;
    (11) DOE special nuclear material aggregate inventories and 
production rates not revealing the size of or details concerning the 
nuclear weapons stockpile;
    (12) Types of waste products resulting from all DOE weapon and 
material production operations;
    (13) Any information solely relating to the public and worker 
health and safety or to environmental quality; and
    (14) The simple association or simple presence of any material 
(i.e., element, compound, isotope, alloy, etc.) at a specified DOE 
site.


Sec.  1045.85   How is information determined to be FRD or TFNI and can 
FRD or TFNI be returned to the RD category?

    (a) To be eligible to become FRD or TFNI, information must first be 
classified as RD in accordance with the AEA and this part. FRD and TFNI 
are removed from and may be returned to the RD category under section 
142 of the AEA. The process by which information is removed from the RD 
category and placed into the FRD or TFNI category or returned to the RD 
category is called

[[Page 66015]]

transclassification and involves the following decisions:
    (1) For information to be transclassified from RD to the FRD 
category, the Associate Under Secretary for Environment, Health, Safety 
and Security and the appropriate official within DoD (as specified in 
DoD Instruction 5210.02 or subsequent instructions) must jointly 
determine that the information relates primarily to the military 
utilization of nuclear weapons and can be adequately protected in a 
manner similar to NSI.
    (2) For information to be transclassified from RD to the TFNI 
category, the Associate Under Secretary for Environment, Health, Safety 
and Security and the DNI must jointly determine that information 
concerning a foreign nuclear energy program that falls under the RD 
definition must be removed from the RD category in order to carry out 
the provisions of the National Security Act of 1947, as amended, and 
can be adequately protected in a manner similar to NSI.
    (b) The process to return FRD and TFNI to the RD category is as 
follows:
    (1) FRD may be returned to the RD category if the DOE and DoD 
jointly determine that the programmatic requirements that caused the 
information to be removed from the RD category no longer apply, the 
information would be more appropriately protected as RD and returning 
the information to the RD category is in the interest of national 
security. DOE jointly with DoD must notify all appropriate agencies of 
the change.
    (2) TFNI may be returned to the RD category if the DOE and the DNI 
jointly determine that the programmatic requirements that caused the 
information to be removed from the RD category no longer apply, the 
information would be more appropriately protected as RD and returning 
the information to the RD category is in the interest of national 
security. DOE jointly with the DNI must notify all appropriate agencies 
of the change.


Sec.  1045.90   Can information generated by private entities that is 
not owned by, produced by, or controlled by the U.S. Government be 
classified as RD?

    Yes. Under the AEA, DOE may classify information that is privately 
generated (e.g., not under a Government contract) as RD. This may only 
be done in writing by the Secretary or Deputy Secretary. This 
responsibility cannot be delegated. Once such a determination is made, 
DOE must notify the public through the Federal Register. This notice is 
not required to reveal any details about the determination and must 
protect the national security as well as the interests of the private 
party.


Sec.  1045.95   What are the criteria used to assign levels to RD, FRD, 
or TFNI?

    (a) When the Director, Office of Classification, makes the initial 
determination that information is RD, he or she determines the 
appropriate level of the information based on the damage that would 
occur if there was an unauthorized disclosure of the information. The 
Director, Office of Classification, also determines the level for TFNI, 
and, jointly with the appropriate DoD official (as specified in DoD 
Instruction 5210.02 or successor instructions) determines the level for 
FRD information.
    (b) The three classification levels of RD, FRD, and TFNI are:
    (1) Top Secret. Top Secret is applied to information that is vital 
to the national security the unauthorized disclosure of which could 
reasonably be expected to cause exceptionally grave damage to the 
national security that the appropriate official is able to identify or 
describe.
    (2) Secret. Secret is applied to information, the unauthorized 
disclosure of which could reasonably be expected to cause serious 
damage to the national security that the appropriate official is able 
to identify or describe.
    (3) Confidential. Confidential is applied to information, the 
unauthorized disclosure of which could reasonably be expected to cause 
undue risk to the common defense and security that the appropriate 
official is able to identify or describe.


Sec.  1045.100  How are RD, FRD, and TFNI declassified?

    (a) This section addresses the declassification of information, not 
derivatively classified matter. See Subpart D for requirements for the 
declassification of matter containing RD, FRD, or TFNI.
    (b) RD and TFNI are declassified by the Associate Under Secretary 
for Environment, Health, Safety and Security by evaluating the criteria 
in Sec.  1045.70. FRD requires the evaluation of the same criteria and 
a joint decision by the Associate Under Secretary for Environment, 
Health, Safety and Security and the appropriate DoD official (as 
specified in DoD Instruction 5210.02 or subsequent instructions).


Sec.  1045.105   What is the method to request the declassification of 
RD, FRD or TFNI?

    (a) If a person believes RD, FRD, or TFNI should not be classified, 
he or she may submit a declassification proposal. Proposals must be 
submitted in writing and must include a description of the information 
concerned and may include a reason for the request. If submitted by a 
person with access to RD, FRD, or TFNI, the request must be submitted 
through secure means. The proposal is processed as follows:
    (b) The Associate Under Secretary for Environment, Health, Safety 
and Security considers declassification proposals from the public and 
Government agencies and their contractors for the declassification of 
RD, FRD, and TFNI on an ongoing basis. For FRD, the Director, Office of 
Classification, will coordinate the declassification proposal with the 
appropriate DoD official (as specified in DoD Instruction 5210.02 or 
subsequent instructions).
    (c) Declassification proposals may be sent to the Associate Under 
Secretary for Environment, Health, Safety and Security, AU-1/Forrestal 
Building, U.S. Department of Energy, 1000 Independence Avenue SW, 
Washington, DC 20585. For FRD, the proposal may be sent to the 
Director, Office of Classification, or the appropriate DoD official (as 
specified in DoD Instruction 5210.02 or subsequent instructions). DOE 
and DoD must coordinate with one another concerning declassification 
proposals for FRD.


Sec.  1045.110  How are challenges to the classification and 
declassification of RD, FRD, or TFNI submitted and processed?

    (a) Any person with access to RD, FRD, or TFNI who believes that 
RD, FRD, or TFNI is improperly classified is encouraged and expected to 
challenge the classification. The challenge may be to information RD, 
FRD, or TFNI (e.g., a guide topic) or the classification status of 
matter containing RD, FRD, or TFNI.
    (b) Challenges are submitted in accordance with agency procedures.
    (c) Each agency must establish procedures for a person to challenge 
the classification status of RD, FRD, or TFNI if they believe that the 
classification status is improper. These procedures must:
    (1) Advise the person of their right to submit a challenge directly 
to the Director, Office of Classification, AU-60/Germantown Building, 
U.S. Department of Energy, 1000 Independence Avenue SW, Washington, DC 
20585, at any time.
    (2) Ensure that under no circumstances is an employee subject to 
retribution for challenging the classification status of RD, FRD, or 
TFNI;
    (3) Require the agency that initially receives the challenge to 
provide an

[[Page 66016]]

initial response within 60 days to the person submitting the challenge.
    (4) Require the agency to advise the person of their appeal rights. 
If the employee is not satisfied with the agency response or the agency 
has not responded to the challenge within 180 days, the challenge 
involving RD, FRD, or TFNI may be appealed to the Director, Office of 
Classification.
    (i) In the case of FRD and RD related primarily to the military 
utilization of nuclear weapons, the Director, Office of Classification, 
coordinates with the appropriate DoD official (as specified in DoD 
Instruction 5210.02 or subsequent instructions).
    (ii) In the case of TFNI, the Director, Office of Classification, 
coordinates with DNI.
    (5) If the response to the initial appeal and its justification for 
classification does not satisfy the person making the challenge, a 
further appeal may be made to the Associate Under Secretary for 
Environment, Health, Safety and Security, AU-1/Forrestal Building, U.S. 
Department of Energy, 1000 Independence Avenue SW, Washington, DC 
20585.
    (d) Agency responses to RD or TFNI challenges are limited to 
interpreting the application of guidance to derivatively classify 
matter. Except for DoD, agency responses to FRD are limited to 
interpreting the application of guidance to derivatively classify 
matter. An agency may coordinate challenges regarding interpreting 
guidance for RD or TFNI with DOE, and may coordinate challenges 
regarding interpreting guidance for FRD with DOE or DoD.
    (e) Agencies must forward challenges that require decisions other 
than interpreting the application of guidance (e.g., challenges to 
guide topics) to the Director, Office of Classification.

Subpart D--Classifying and Declassifying Matter Containing RD, FRD, 
or TFNI


Sec.  1045.115   Who is authorized to derivatively classify matter that 
contains RD, FRD, or TFNI?

    (a) Specific authority and/or training is required to derivatively 
classify matter containing RD, FRD, or TFNI. These derivative 
classification decisions must be based on a classification guide, a 
classification bulletin, or a portion-marked source document and must 
only be made in the RD Derivative Classifier's subject areas of 
expertise. In cases where guidance does not exist, for RD the Director, 
Office of Classification must make an initial determination that 
information is RD or that the matter contains RD, and for FRD DOE and 
DoD must jointly determine that the information is FRD or the matter 
contains FRD. No other agency or agency personnel has the authority to 
make an initial determination regarding RD or FRD. See Sec.  1045.135 
for the process for requesting a determination in cases where guidance 
does not exist.
    (b) Each person who derivatively classifies matter containing RD or 
FRD must be an RD Derivative Classifier.
    (c) Except for DoD military and DoD Federal civilian employees, 
each RD Derivative Classifier must be designated by name or position in 
writing in accordance with agency procedures.
    (d) An agency contractor employee may be an RD Derivative 
Classifier. All contractor employees, including DoD contractors, must 
be designated by name or position as such in writing in accordance with 
agency procedures.
    (e) Once a person is an RD Derivative Classifier for an agency, he 
or she may classify matter containing RD or FRD in those subject areas 
in which they have programmatic expertise for any agency, provided the 
other agency or agencies accept the existing authority.
    (f) No specific designation as an RD Derivative Classifier is 
required to classify matter containing TFNI. Any person who has 
received training required by Sec.  1045.120 may classify matter 
containing TFNI.


Sec.  1045.120  What training is required for persons who have access 
to or who derivatively classify matter containing RD, FRD, or TFNI?

    (a) Prior to being authorized access to RD and FRD, a person must 
receive training that explains:
    (1) What information is potentially RD and FRD;
    (2) Matter that potentially contains RD or FRD must be reviewed by 
an RD Derivative Classifier to determine whether it contains RD or FRD;
    (3) DOE must review matter that potentially contains RD or TFNI for 
public release and DOE or DoD must review matter that potentially 
contains FRD for public release;
    (4) RD Derivative Classification authority is required to classify 
or upgrade matter containing RD or FRD, or to downgrade the level of 
matter containing RD or FRD;
    (5) Only a person trained in accordance with this section, may 
classify matter containing TFNI;
    (6) Matter containing RD, FRD, and TFNI is not automatically 
declassified and only DOE authorized persons may downgrade the category 
or declassify matter marked as containing RD; only DOE or DoD 
authorized persons may downgrade the category or declassify matter 
marked as containing FRD;
    (7) How to submit a challenge if they believe RD, FRD, or TFNI 
information (e.g., a guide topic) or matter containing RD, FRD, or TFNI 
is not properly classified; and
    (8) Access requirements for matter marked as containing RD or FRD.
    (b) Each person with access to RD and FRD must also receive 
periodic refresher briefings covering these same topics.
    (c) In addition to the training in paragraph (a) of this section, 
prior to derivatively classifying matter containing RD, or FRD and 
every 2 years thereafter, each RD Derivative Classifier must also 
receive training that explains:
    (1) The use of classification guides, classification bulletins, and 
portion-marked source documents to classify matter containing RD and 
FRD;
    (2) What to do if applicable classification guidance is not 
available;
    (3) Limitations on an RD Derivative Classifier's authority to 
remove RD or FRD portions from matter; and
    (4) Marking requirements for matter containing RD and FRD.
    (d) Prior to having access to TFNI, and periodically thereafter, 
each person must receive the following training (which may be combined 
with the training required for access to RD or FRD):
    (1) What information is potentially TFNI;
    (2) Only a person with appropriate training may determine if matter 
contains TFNI;
    (3) Marking requirements for matter containing TFNI;
    (4) Matter containing TFNI is not automatically declassified and 
only DOE authorized persons may downgrade the category or declassify 
matter marked as containing TFNI; and
    (5) How to submit a challenge if they believe TFNI information 
(e.g., a guide topic) or matter containing TFNI is not properly 
classified.
    (e) In addition to the training in Sec.  1045.120(d), prior to 
derivatively classifying matter containing TFNI and every 2 years 
thereafter, each person who derivatively classifies matter containing 
TFNI must also receive training that explains:
    (1) The markings applied to matter containing TFNI;
    (2) Limitations on their authority to remove TFNI portions from 
matter;
    (3) Only DOE authorized persons may determine that classified 
matter no longer contains TFNI;
    (4) Only DOE authorized persons may declassify matter marked as 
containing TFNI; and
    (5) DOE must review matter that potentially contains TFNI for 
public release.

[[Page 66017]]

Sec.  1045.125  What is the process for reviewing and derivatively 
classifying matter that potentially contains RD, FRD, or TFNI?

    (a) Protecting and marking matter that potentially contains RD, 
FRD, or TFNI prior to review. Prior to the review of matter to 
determine if it contains RD, FRD, or TFNI, the matter must be protected 
at the overall potential highest level and category and marked as a 
working paper in accordance with Sec.  1045.140.
    (b) Matter that potentially contains RD, FRD, or TFNI that is 
intended for public release. Any person who generates or possesses 
matter that potentially contains RD, FRD, or TFNI that is intended for 
public release must ensure that it is reviewed by the Director, Office 
of Classification, or a DOE official granted the authority by 
delegation, regulation, or DOE directive, prior to release. FRD may 
also be reviewed by the appropriate DoD official as specified in DoD 
Instruction 5210.02 or subsequent instructions.
    (c) Matter that potentially contains RD or FRD information that is 
not intended for public release. Matter that potentially contains RD or 
FRD that is not intended for public release must be reviewed by an RD 
Derivative Classifier.
    (d) Matter that potentially contains TFNI that is not intended for 
public release. Matter that potentially contains TFNI that is not 
intended for public release must be reviewed by a person who has been 
trained in accordance with Sec.  1045.120(e).
    (e) Matter that incorporates information from the open literature 
that potentially contains RD, FRD, or TFNI. Because the open literature 
may contain information that is still classified as RD, FRD, or TFNI, 
matter that incorporates information from the open literature that is 
potentially RD, FRD, or TFNI must be reviewed as required under this 
section.
    (f) Matter being reviewed under E.O. 13526 or successor orders. If, 
when reviewing matter under the automatic or systematic review 
provisions of E.O. 13526 or successor orders, the person finds matter 
potentially contains RD, FRD, or TFNI that it is not correctly marked:
    (1) An RD Classifier may review the matter to determine if it 
contains RD or FRD. If the matter is determined to contain RD or FRD, 
the matter must be appropriately marked and is exempt from automatic 
declassification.
    (2) A person trained to classify TFNI may review the matter to 
determine if it contains TFNI. If the matter is determined to contain 
TFNI, the matter must be appropriately marked and is exempt from 
automatic declassification.
    (3) If an authorized person is unable to make a determination for 
RD, FRD, or TFNI, the matter must be referred to DOE. Matter containing 
FRD may also be referred to DoD. The matter may not be automatically 
declassified until DOE or DoD makes a determination as to its 
classification status.


Sec.  1045.130  How does an authorized person derivatively classify 
matter containing RD, FRD, or TFNI?

    (a) Derivative classification of RD or FRD. For RD or FRD, an RD 
Derivative Classifier makes the derivative classification determination 
using:
    (1) A DOE classification guide or bulletin, a joint DOE-agency 
classification guide, an agency guide with RD/FRD topics that is within 
his or her programmatic area of expertise; or
    (2) An applicable portion-marked source document.
    (b) Derivative classification of TFNI. For TFNI, a person who is 
trained to derivatively classify matter containing TFNI makes the 
determination using:
    (1) Approved TFNI guidelines;
    (2) A DOE classification guide or bulletin, a joint DOE-agency 
classification guide, an agency guide with RD, FRD, or TFNI topics 
within his or her programmatic area of expertise; or
    (3) An applicable portion-marked source document.
    (c) Association and compilation. (1) RD, FRD, or TFNI 
classification based on association. If two or more different, 
unclassified facts when combined in a specific way result in a 
classified statement, or if two or more different classified facts or 
unclassified and classified facts when combined in a specific way 
result in a higher classification level or more restrictive category, 
then an RD Derivative Classifier may classify or upgrade the matter 
based on the association. If the matter is to be portion marked, then 
each portion of the associated information must be marked at the level 
and category of the association.
    (2) RD, FRD, or TFNI classification based on compilation. A large 
number of often similar unclassified pieces of information or a large 
number of often similar RD, FRD, or TFNI pieces of information by 
selection, arrangement, or completeness in matter may add sufficient 
value to merit classification or to merit classification at a higher 
level. If there is a classification guide topic that applies to the 
compilation, an RD Derivative Classifier may classify the information 
by compilation. In the absence of a classification guide topic that 
applies, for RD or TFNI, the Director, Office of Classification, may 
make the determination to classify or upgrade the matter based on 
compilation. For FRD, the Director, Office of Classification, or any 
appropriate DoD official (as specified in DoD Instruction 5210.02 or 
subsequent instructions) may classify or upgrade the matter based on 
compilation. Matter that is classified as RD, FRD, or TFNI based on 
compilation is never portion marked.
    (d) Use of a classified addendum. When it is important to maximize 
the amount of information available to the public or to simplify matter 
handling procedures, the RD, FRD, or TFNI should be segregated into a 
classified addendum.


Sec.  1045.135  Can a person make an RD, FRD, or TFNI classification 
determination if applicable classification guidance is not available?

    (a) No. If an RD Derivative Classifier or a person trained to 
classify matter containing TFNI is unable to locate a classification 
guide or classification bulletin that applies to the nuclear-related 
information within his or her programmatic expertise and does not have 
an applicable portion-marked source document to use for derivative 
classification, then he or she must contact the RDMO or an ARDMO for 
assistance. The RDMO/ARDMO may be aware of other classification 
guidance that could apply to the information.
    (b) If no guidance is identified, the RDMO must forward the matter 
to the Director, Office of Classification, for a determination. Within 
30 days, the Director, Office of Classification must:
    (1) Determine whether the information is already classified as RD, 
FRD, or TFNI under current classification guidance and, if so, provide 
such guidance to the RDMO who forwarded the matter.
    (2) If the information is not already classified as RD, FRD, or 
TFNI, the procedures for initially classifying information as RD, FRD, 
or TFNI under Sec.  1045.70 must be followed. The Director, Office of 
Classification, must notify the RDMO of the results of the initial 
classification determination within 90 days of receiving the matter. 
Initial determinations must be incorporated into classified guides, as 
appropriate.
    (c) Pending a determination, the matter under review must be 
protected at a minimum as Secret RD, Secret FRD, or Secret TFNI, as 
appropriate.


Sec.  1045.140  How is matter containing RD, FRD, or TFNI marked?

    (a) Matter determined to contain RD, FRD, or TFNI. Matter 
determined to

[[Page 66018]]

contain RD, FRD, or TFNI must be clearly marked to convey to the holder 
of that matter that it contains such information.
    (b) Marking matter containing RD, FRD, or TFNI in the IC. Matter 
generated by/for the IC containing RD, FRD, or TFNI must be marked in 
accordance with the requirements in this part as described in ICD 710 
or successor directives, and the corresponding implementation 
directives and policy guidance issued or approved by the DNI concerning 
marking matter containing RD, FRD, and TFNI.
    (c) Working papers containing RD, FRD, or TFNI. Prior to the 
determination that matter contains RD, FRD, or TFNI, it must be marked 
and protected as a working paper. Matter that has not been reviewed 
that potentially contains RD, FRD, or TFNI, or is expected to be 
revised prior to the preparation of a finished product that contains 
RD, FRD, or TFNI, must be dated when created or last changed, marked 
with the highest potential level and category of information (and 
caveats, when applicable) on the bottom and top of each page, and must 
be protected at the highest potential level and category of the 
information contained in the matter. The matter must also be marked 
``Draft'' or ``Working Paper'' on the front cover. The RD/FRD 
admonishment is not required. RD Derivative Classifier authority is not 
required to mark working papers containing RD or FRD. However, working 
papers containing RD or FRD must be reviewed by an RD Derivative 
Classifier, and working papers containing TFNI must be reviewed by a 
person trained to mark matter containing TFNI, and the matter must be 
marked as a final document when it is:
    (1) Released outside the originating activity;
    (2) Retained more than 180 days from the date of origin or the date 
of the last change; or
    (3) Filed permanently.
    (d) RD and FRD markings. An RD Derivative Classifier applies or 
authorizes the application of the following markings on matter 
determined to contain RD or FRD:
    (1) Front page. The front page of matter containing RD or FRD must 
have the page/banner markings at the top and bottom, the RD or FRD 
admonishment, subject/title marking, and the classification authority 
block.
    (i) Front page/banner markings. The top and bottom of the front 
page must clearly indicate the overall classification level of the 
matter. The classification category may also be included. No other 
markings are required in the page/banner marking.
    (ii) Admonishments. (A) If the matter contains RD or RD and FRD, 
use the following admonishment:
RESTRICTED DATA
    This document contains RESTRICTED DATA as defined in the Atomic 
Energy Act of 1954, as amended. Unauthorized disclosure subject to 
administrative and criminal sanctions.
    (B) If the document contains FRD and no RD, use the following 
admonishment:
FORMERLY RESTRICTED DATA
    Unauthorized disclosure subject to administrative and criminal 
sanctions. Handle as RESTRICTED DATA in foreign dissemination. Section 
144b, Atomic Energy Act of 1954, as amended.
    (iii) Subject/title marking. The classification level and category 
of the text of the subject or title (e.g., U, SRD, CFRD, S//RD, C//FRD) 
must be marked immediately preceding the text of the subject or title.
    (iv) Classification authority block. The classification authority 
block for matter containing RD or FRD must identify the RD Derivative 
Classifier who classified the matter and the classification guidance 
used to classify the matter.
    (A) Identity of the RD Derivative Classifier. The RD Derivative 
Classifier must be identified by name and position or title, and, if 
not otherwise evident, the agency and office of origin must be 
identified. An RD Derivative Classifier may also be identified by a 
unique identifier. For example:
    Classified By: Jane Doe, Nuclear Analyst, DOE, CTI-61
    (B) Identity of classification guidance. (1) If a classification 
guide is used to classify the matter, the ``Derived From'' line must 
include the short title of the guide, the issue date of the guide, the 
issuing agency and, when available, office of origin. For example:
    Derived From: CG-ABC-1, 10/16/2014, DOE OC
    (2) If a source document is used to classify the matter, it must be 
identified, including the office of origin and the date of the source 
document. If more than one classification guide or source document is 
used, the words ``Multiple Sources'' may be included. In the case of 
multiple sources, a source list identifying each guide or source 
document must be included with all copies of the matter.
    (C) Declassification instructions. Matter containing RD or FRD are 
never automatically declassified and must either omit the ``Declassify 
On'' line, or indicate that the matter is exempt from automatic 
declassification (Not Applicable or N/A for RD/FRD, as appropriate).
    (2) Interior page/banner marking. Each interior page of matter 
containing RD or FRD must be clearly marked at the top and bottom with 
the overall classification level and category of the matter or the 
overall classification level and category of the page, whichever is 
preferred. The abbreviations ``RD'' and ``FRD'' may be used in 
conjunction with the matter classification (e.g., SECRET//RD, 
CONFIDENTIAL//FRD).
    (3) Back cover or back page marking. The outside of the back cover 
or back page must be marked with the overall level of information in 
the matter.
    (4) Portion marking. Other than the required subject/title marking, 
portion marking is permitted, but not required, for matter containing 
RD or FRD. Each agency that generates matter containing RD or FRD 
determines the policy for portion marking matter generated within the 
agency. If matter containing RD or FRD is portion marked, each portion 
containing RD or FRD must be marked with the level and category of the 
information in the portion (e.g., SRD, CFRD, S//RD, C//FRD).
    (e) TFNI markings. If matter contains RD or FRD commingled with 
TFNI, the RD or FRD markings take precedence. If matter contains TFNI 
and no RD or FRD, a person who is trained to classify matter containing 
TFNI applies or authorizes the application markings on matter 
determined to contain TFNI in accordance with 32 CFR part 2001.22, or 
successor regulations, and with this part.
    (1) Front page. If the matter contains TFNI and no RD or FRD, no 
admonishment is required on the front page, but the top and bottom of 
the front page must be clearly marked with the overall classification 
level and the TFNI label (e.g., SECRET//TFNI).
    (2) Subject/title marking. The classification level and category of 
the subject or title must be marked immediately preceding the text of 
the subject or title.
    (3) Portion marking. Matter containing TFNI and no RD or FRD must 
be portion marked. Each portion containing TFNI must be marked 
immediately preceding the portion to which it applies with the level 
and category of the information in the portion (e.g., S//TFNI).
    (4) Classification authority block. The classifier and guidance 
used to classify matter containing TFNI must be identified as described 
in Sec.  1045.40(d)(1)(iv)(A) and (B). In addition, the ``Declassify 
On'' line must be annotated with the statement: ``Not Applicable [or N/
A] to TFNI portions.''

[[Page 66019]]

    (5) Interior pages. If the matter contains TFNI and no RD or FRD, 
the top and bottom of each interior page must be clearly marked with 
the overall classification level and the TFNI label (e.g., SECRET//
TFNI) or the overall classification level for each page with the TFNI 
label included on only those pages that contain TFNI, whichever is 
preferred.
    (6) Back cover or back page marking. If the matter contains TFNI 
and no RD or FRD, the top and bottom of the outside of the back cover 
or back page must be clearly marked with the overall classification 
level of information in the matter.
    (f) Commingled matter--NSI. Matter that contains a mixture of RD, 
FRD, or TFNI and NSI, and is portion marked, must also comply with the 
following:
    (1) Declassification instructions. If the matter is not portion 
marked, then no declassification instructions are included. If the 
matter is portion marked, declassification instructions for each 
portion must be included in a source list. See this paragraph (f)(2) 
and E.O. 13526 or successor orders for instructions on annotating the 
source list.
    (2) Source list. The source list must include declassification 
instructions for all NSI sources used to classify the NSI portions. The 
declassification instructions for sources that are used to classify the 
RD, FRD, or TFNI portions must state ``Not applicable [or N/A] to RD/
FRD/TFNI (as appropriate).'' The source list must not appear on the 
front page of the matter, unless the matter is a single page. If the 
matter is a single page, the source list may appear at the bottom of 
the page, and must be clearly separate from the classification 
authority block.
    (g) Commingled matter--CUI. (1) If matter containing RD and/or FRD 
and CUI is not portion marked, CUI markings are not required.
    (2) Applicable CUI Decontrol instructions. (i) If the matter 
contains RD or FRD and is not portion marked, then CUI decontrol 
instructions must not be included.
    (ii) If the matter is portion marked and decontrol instructions are 
applied, the decontrol instructions for the CUI portions must not be on 
the front page. Where they appear, they must be clearly labeled as 
decontrol instructions for CUI.
    (iii) If the matter contains TFNI, and decontrol instructions are 
applied, the decontrol instructions for the CUI portions must not be on 
the front page. Where they appear they must be clearly labeled as 
decontrol instructions for CUI.
    (h) Marking special format matter. Standard RD, FRD, or TFNI 
markings must be applied to matter in special formats (e.g., 
photographs, flash memory drives, compact discs, audio or video tapes) 
to the extent practicable. Regardless of the precise markings in such 
cases, any special format matter that contains RD, FRD, or TFNI must be 
marked so that both a person in physical possession of the matter and a 
person with access to the information in or on the matter are aware 
that it contains RD, FRD, or TFNI.


Sec.  1045.145  Who must review output from a classified IT system that 
is marked as RD, FRD, or TFNI?

    If the output is a final product that has been reviewed by a person 
with appropriate authority, and is properly marked, or is a working 
paper that is properly marked, no additional review is required. 
Otherwise, the output must be reviewed in accordance with Sec.  
1045.30.


Sec.  1045.150  Can anyone remove the RD, FRD, or TFNI portions and 
markings to produce an NSI or unclassified version of the matter?

    (a) Removal of RD, FRD, or TFNI portions from matter containing RD, 
FRD, or TFNI. Specific authority is required to remove RD, FRD, or TFNI 
portions from matter. The authority required depends on whether the 
matter is intended for public release, the category of information in 
the matter, and whether the matter is portion marked.
    (b) If the resulting or new matter is intended for public release. 
An RD Derivative Classifier or a person trained to classify matter 
containing TFNI does not have the authority to remove the RD, FRD, or 
TFNI portions or markings for matter intended for public release. The 
matter must be submitted in accordance with Sec.  1045.125 to the 
appropriate agency who will review the matter and remove the RD, FRD, 
or TFNI portions and markings.
    (c) If the resulting matter is not intended for public release. (1) 
An RD Derivative Classifier may remove the portions marked as 
containing RD or FRD and remove the RD or FRD markings.
    (2) A person trained in accordance with Sec.  1045.120(e) may 
remove the portions containing TFNI and the TFNI markings.
    (3) In all cases under Sec.  1045.150(b) this may be done only if 
the matter is originated by the authorized person's agency and the 
matter is portion marked, and the resulting matter is reviewed to 
ensure it does not contain RD, FRD, or TFNI by a person authorized to 
review the matter.


Sec.  1045.155  How is matter marked as containing RD, FRD, or TFNI 
declassified?

    (a) Declassification of matter containing RD, FRD, or TFNI. RD, 
FRD, and TFNI are never automatically declassified. No date or event 
for automatic declassification ever applies to RD, FRD, or TFNI, even 
when commingled with NSI. It takes positive action by an authorized 
person to declassify matter potentially containing or marked as 
containing RD, FRD, or TFNI.
    (b) Authority to declassify matter containing RD, FRD, or TFNI. 
Only authorized persons within DOE may declassify matter marked as RD 
or TFNI and only authorized persons within DOE or DoD may declassify 
matter marked as FRD. Only these same persons may identify the portions 
of classified matter that contain RD, FRD, or TFNI that must be 
redacted prior to public release.
    (c) Declassification of matter containing RD or TFNI. Except as 
allowed under paragraph (b) of this section, only designated persons in 
DOE may declassify matter marked as containing RD or TFNI or identify 
the RD or TFNI portions of matter that must be removed from the matter 
prior to public release. Such determinations must be based on 
classification guides.
    (d) Declassification of matter containing FRD. Except as allowed 
under paragraph (b) of this section, only designated persons in DOE or 
appropriate persons in DoD (as specified in DoD Instruction 5210.02 or 
subsequent instructions) may declassify matter marked as containing FRD 
or determine the FRD portions of matter that must be removed prior to 
public release. Such determinations must be based on classification 
guides.
    (e) Delegation of declassification authority. The Director, Office 
of Classification, may delegate declassification authority for matter 
containing RD and TFNI to other agencies Federal and contractor 
personnel. The Director, Office of Classification, or an appropriate 
person in DoD (as specified in DoD Instruction 5210.02 or subsequent 
instructions) may delegate declassification authority for matter 
containing FRD to qualified Federal or contractor personnel in other 
agencies.


Sec.  1045.160  When the RD, FRD, or TFNI is removed from matter, what 
action must be taken if the matter still contains NSI?

    When an appropriate authority removes the RD, FRD, or TFNI from

[[Page 66020]]

matter and it still contains NSI, the matter must be marked following 
E.O. 13526 and 32 CFR part 2001 or successor orders and regulations, 
including portion marking if the matter was not previously portion 
marked, and the classification authority block of the matter must be 
changed to contain declassification instructions for the NSI. This does 
not apply to matter produced as part of the coordination process for 
declassification or public release reviews.


Sec.  1045.165  Once matter marked as RD, FRD, or TFNI is declassified, 
how is it marked?

    (a) Matter that is determined to no longer contain RD, FRD, or TFNI 
and also does not or no longer contains NSI must be clearly marked to 
convey to the holder of that matter that the matter is declassified;
    (b) The front page must identify the person authorizing the 
declassification by name and position or title, if not otherwise 
evident, agency, and office of origin; or with a unique identifier; the 
classification guide that served as the basis for the declassification 
by short title, date, agency and, when available, the office of origin; 
and the declassification date. For example:
    (1) Declassified by: Jane Doe, Nuclear Analyst, DOE, CTI-61
    (2) Derived from: CG-ABC-1, 10/16/2014, DOE OC
    (3) Declassified on: 20201009
    (c) The person authorizing the declassification must line through 
but not obliterate the classification markings and apply or authorize 
the application of the appropriate markings.

Subpart E--Government-Wide Procedures for Handling Freedom of 
Information Act (FOIA) and Mandatory Declassification Review (MDR) 
Requests for Matter Marked as or Potentially Containing RD, FRD, or 
TFNI


Sec.  1045.170  What is the purpose of this subpart?

    This subpart contains requirements that apply when Federal agencies 
other than DOE receive FOIA or MDR requests for matter that is marked 
as or potentially contains RD, FRD, or TFNI. RD, FRD, and TFNI are 
classified under the Atomic Energy Act and are not subject to the 
provisions governing MDR requests under E.O. 13526 or successor orders. 
To ensure RD, FRD, and TFNI are considered and appropriately reviewed 
when requested under a FOIA or MDR request, this section describes the 
process Federal agencies must follow for FOIA and MDR requests for 
matter that is marked as or potentially contains RD, FRD, or TFNI.


Sec.  1045.175  How must agencies process FOIA and MDR requests for 
matter that is marked as or potentially contains RD, FRD, or TFNI?

    (a) When an agency receives a FOIA or MDR request for which any 
responsive matter is marked as or potentially contains RD, FRD, or 
TFNI, the agency must forward the matter to the appropriate agency as 
follows:
    (1) Forward any matter marked as or potentially containing RD or 
TFNI to the Director, Office of Classification or a DOE official 
granted authority by delegation, regulation, or DOE directive.
    (2) Forward any matter originated by DOE and marked as or 
potentially containing FRD to either the Director, Office of 
Classification or a DOE official granted authority by delegation, 
regulation, or DOE directive. Forward any matter originated by DoD and 
marked as or potentially containing FRD to the appropriate DoD program 
(as specified in DoD Manual 5400.07, DoD Freedom of Information Act 
(FOIA) Program, subsequent manuals, or other applicable manuals). 
Matter not originated by DOE or DoD may be submitted to either agency 
as provided in this paragraph.
    (b) DOE and DoD must coordinate the review of matter marked as or 
potentially containing RD and FRD, when appropriate. DOE and the DNI 
must coordinate the review of matter marked as or potentially 
containing TFNI, when appropriate.
    (c) DOE, DoD, or the DNI may refuse to confirm or deny the 
existence or nonexistence of the requested matter whenever the fact of 
its existence or nonexistence is itself classified as RD, FRD, or TFNI.
    (d) If the information contained in the requested matter has been 
reviewed for declassification within the past 2 years, another review 
need not be conducted, but instead the agency may inform the requester 
of this fact and of the results of the prior review decision.
    (e) When paragraph (c) or (d) of this section do not apply, and the 
information requested under an MDR is not exempt under Sec.  1045.195, 
the appropriate DOE or DoD authority must conduct a line-by-line review 
of matter forwarded under paragraph (a) of this section; identify the 
information that is classified under current classification guidance as 
RD, FRD, or TFNI; and respond to the agency that forwarded the matter. 
The response to the agency who forwarded the request must identify the 
RD, FRD, or TFNI that is exempt from public release; provide the FOIA 
exemption or appropriate MDR notation for the RD, FRD, or TFNI 
withheld; identify the Denying Official for the RD, FRD, or TFNI 
withheld; and explain the applicable appeal procedures for a FOIA 
request identified in 10 CFR 1004.8 or for an MDR request identified in 
Sec.  1045.180.
    (1) The Denying Officials are as follows:
    (i) The Denying Official for matter containing RD or TFNI is the 
Director, Office of Classification.
    (ii) The Denying Official for matter containing FRD is the 
Director, Office of Classification, or the appropriate DoD Component's 
Initial Denying Authority (as specified in applicable DoD manuals).
    (iii) The Denying Official for Naval Nuclear Propulsion Information 
is the National Nuclear Security Administration (NNSA) Deputy Director, 
Deputy Administrator for Naval Reactors.
    (f) Upon receipt of the response from DOE or DOD, the agency 
processing the initial request must inform the requester of the results 
of the review; provide the name of the Denying Official identified for 
any RD, FRD, or TFNI withheld; and advise the requester of his or her 
appeal rights concerning the RD, FRD, or TFNI.


Sec.  1045.180   What is the procedure if an agency receives an appeal 
to a FOIA or MDR concerning the denial of RD, FRD, or TFNI?

    (a) If an agency receives a FOIA appeal for RD, FRD, or TFNI denied 
by DOE within 90 days of receipt of the denial and as required under 10 
CFR 1004.8, the appeal must be submitted to the DOE Director, Office of 
Hearings and Appeals. If an agency receives a FOIA appeal for FRD 
denied by DoD, it must be submitted to DoD in accordance with 
applicable DoD FOIA regulations or instructions.
    (b) Appeals of an MDR response when DOE denied RD, FRD, or TFNI may 
be submitted to the agency that replied to the initial MDR request or 
directly to DOE.
    (1) When an MDR appeal concerning DOE-withheld RD, FRD, or TFNI is 
sent to the agency that replied to the initial MDR request, the appeal 
must be received by the agency who replied to the initial request 
within 60 days of receipt of the denial and contain the information 
required under Sec.  1045.210(b). The agency must forward the appeal to 
the Associate Under Secretary of Environment, Health, Safety and 
Security at the following address: Associate Under Secretary for 
Environment, Health, Safety and Security, AU-1/Forrestal Building, U.S.

[[Page 66021]]

Department of Energy, 1000 Independence Avenue SW, Washington, DC 
20585.
    (2) When sent directly to DOE, an MDR appeal must be received by 
the Associate Under Secretary for Environment, Health, Safety and 
Security within 60 days of the denial and contain the information 
required under Sec.  1045.210(b).
    (3) MDR appeals received by DOE are processed consistent with Sec.  
1045.220.
    (c) If an agency receives an MDR appeal for FRD withheld by DoD, 
the agency must submit the appeal to the appropriate DoD Component as 
identified in applicable DoD manuals.
    (d) MDR Final Appeal: The classification and declassification of 
RD, FRD, and TFNI is governed by the AEA and this part and is not 
subject to E.O. 13526 or successor orders. Therefore, MDR appeal 
decisions by the Associate Under Secretary for Environment, Health, 
Safety and Security, for RD, FRD, and TFNI and MDR appeal decisions by 
the appropriate DoD Component appellate authority for FRD are final 
agency decisions and are not subject to review by ISCAP. However, if 
matter containing RD, FRD, or TFNI also contains NSI, the NSI portions 
may be appealed to the ISCAP. Prior to submission to ISCAP, the RD, 
FRD, or TFNI portions must be deleted.
    (e) The FOIA and MDR appeal authorities for RD, FRD, or TFNI are as 
follows:
    (1) The appeal authority for RD and TFNI is the Associate Under 
Secretary for Environment, Health, Safety and Security.
    (2) The appeal authority for FRD is the Associate Under Secretary 
for Environment, Health, Safety and Security or the appropriate DoD 
Component appellate authority.
    (3) The appeal authority for Naval Nuclear Propulsion Information 
is the NNSA Deputy Administrator for Naval Reactors.
    (f) Declassification proposals resulting from appeal reviews: The 
appeal review of RD, FRD, and TFNI withheld from a requester is based 
on current classification guidance. However, as part of the appeal 
review, the withheld information must be reviewed to determine if it 
may be a candidate for possible declassification. If declassification 
of the information appears to be appropriate, then a declassification 
proposal must be initiated, and the requester must be advised that 
additional information will be available if the declassification 
proposal is approved.

Subpart F--DOE-Specific Procedures for MDR Requests


Sec.  1045.185  What is the purpose of this subpart?

    This subpart describes the process for MDR requests submitted for 
DOE matter classified under E.O. 13526 or successor orders, and the 
Atomic Energy Act.


Sec.  1045.190  How does the public submit an MDR for DOE classified 
matter?

    (a) DOE matter marked as containing NSI, RD, FRD, or TFNI is 
subject to review for declassification by DOE if the request for a 
declassification review describes the matter containing the information 
with sufficient specificity to enable DOE to locate it with a 
reasonable amount of effort.
    (b) The request must be sent to the Director, Office of 
Classification, AU-60/Germantown Building, U.S. Department of Energy, 
1000 Independence Avenue SW, Washington, DC 20585.


Sec.  1045.195   Is any matter exempt from MDR requests?

    (a) MDR requests are not accepted for:
    (1) Matter containing RD technical engineering, blueprints, and 
design regarding nuclear weapons, if they contain no NSI.
    (2) Matter required to be submitted for prepublication review or 
other administrative process pursuant to an approved nondisclosure 
agreement;
    (3) Matter that is the subject of pending litigation; or
    (4) Any matter contained within an operational file exempted from 
search and review, publication, and disclosure under the FOIA in 
accordance with law.
    (b) Current Presidential records as described in section 3.5(b) of 
E.O. 13526 or successor orders that are in the custody of DOE are 
exempt from release in response to an MDR request.


Sec.  1045.200   Is there a cost for an MDR review?

    Yes. The fees, including waivers, reductions, and categorizations, 
are the same for an MDR as for providing records under the FOIA as 
defined in 10 CFR 1004.9.


Sec.  1045.205   How does DOE conduct an MDR review?

    (a) If DOE has reviewed the information contained in the requested 
matter for declassification within the past 2 years, DOE need not 
conduct another review. DOE may instead inform the requester of this 
fact and of the prior review decision, as well as advise the requester 
of his or her appeal rights as provided in Sec.  1045.210.
    (b) DOE performs an MDR as follows:
    (1) Conducts a line-by-line review of the matter;
    (2) Coordinates the review with appropriate programs and agencies, 
as necessary;
    (3) Identifies and withholds any information that meets the 
standards for classification;
    (4) Declassifies any NSI that no longer meets the standards for 
classification under E.O. 13526 or successor orders and any RD, FRD, or 
TFNI that no longer meets the standards for classification under this 
part;
    (5) If the matter also contains unclassified information that is 
potentially exempt from release under the FOIA, the matter is further 
processed to ensure unclassified information that is exempt from public 
release is identified and that the appropriate officials responsible 
for denying any unclassified portion of the matter are provided and 
listed with the notice of denial.
    (6) Upon completion of the review, releases the matter to the 
requester unless withholding is authorized by law. If NSI, RD, FRD, or 
TFNI, is withheld, the response must advise the requester of his or her 
appeal rights under Sec.  1045.210.


Sec.  1045.210   How does a person submit an appeal if DOE withholds 
classified information in an MDR response?

    (a) When the Director, Office of Classification, denies NSI, RD, 
FRD, or TFNI, or the NNSA Deputy Director, Deputy Administrator for 
Naval Reactors, denies Naval Nuclear Propulsion information, in matter 
requested under an MDR, the requester may appeal the determination to 
the Associate Under Secretary for Environment, Health, Safety and 
Security. The appeal must be received within 60 days of the receipt of 
the denial.
    (b) The appeal must be in writing and submitted to the Associate 
Under Secretary for Environment, Health, Safety and Security, AU-1/
Forrestal Building, U.S. Department of Energy, 1000 Independence Avenue 
SW, Washington, DC 20585. The appeal:
    (1) Must contain a concise statement of grounds upon which it is 
brought, and a description of the relief sought.
    (2) Must include a copy of the letter containing the determination 
being appealed.
    (3) Should include a discussion of all relevant authorities that 
include but are not limited to DOE (and predecessor agencies) rulings, 
regulations, interpretations, and decisions on appeals, as well as any 
judicial

[[Page 66022]]

determinations being relied upon to support the appeal.


Sec.  1045.215  How does DOE process an MDR appeal for DOE matter 
containing NSI?

    An appeal for NSI requested under the provisions of E.O. 13526 or 
successor orders is processed as follows:
    (a) The Associate Under Secretary for Environment, Health, Safety 
and Security must act upon the appeal within 60 working days of its 
receipt. If no determination on the appeal has been issued at the end 
of this 60-day period, the requester may consider his or her 
administrative remedies to be exhausted and may seek a review by the 
ISCAP. When no determination can be issued within the applicable time 
limit, the appeal must nevertheless continue to be processed. On 
expiration of the time limit, DOE must inform the requester of the 
reason for the delay, of the date on which a determination may be 
expected to be issued, and of the requester's right to seek further 
review by the ISCAP. Nothing in this subpart precludes the appeal 
authority and the requester from agreeing to an extension of time for 
the decision on an appeal. The Associate Under Secretary for 
Environment, Health, Safety and Security must confirm any such 
agreement in writing and clearly specify the total time agreed upon for 
the appeal decision.
    (b) The Associate Under Secretary for Environment, Health, Safety 
and Security's action on an appeal must be in writing and set forth the 
reason for the decision. DOE may refuse to confirm or deny the 
existence or nonexistence of requested information whenever the fact of 
its existence or nonexistence is itself classified under E.O. 13526 or 
successor orders.
    (c) The requester has the right to appeal a final DOE decision, or 
a failure to provide a determination on an appeal within the allotted 
time, to the ISCAP for those appeals dealing with NSI. In cases where 
NSI documents also contain RD, FRD, or TFNI, the portions of the 
document containing RD, FRD, or TFNI must be deleted prior to 
forwarding the NSI and unclassified portions to the ISCAP for review.


Sec.  1045.220   How does DOE process an MDR appeal for matter 
containing RD, FRD, or TFNI?

    (a) Final appeals for DOE matter containing RD, FRD, or TFNI are 
submitted to the Associate Under Secretary for Environment, Health, 
Safety and Security. The Associate Under Secretary for Environment, 
Health, Safety and Security will coordinate appeals concerning Naval 
Nuclear Propulsion Information with the NNSA Deputy Administrator for 
Naval Reactors.
    (b) The classification and declassification of RD, FRD, and TFNI is 
governed by the AEA and this part and is not subject to E.O. 13526 or 
successor orders. Therefore, appeal decisions concerning RD, FRD, or 
TFNI by the Associate Under Secretary for Environment, Health, Safety 
and Security, or the NNSA Deputy Administrator for Naval Reactors are 
not subject to review by ISCAP.


Sec.  1045.225  Are DOE responses to MDR requests available to the 
public?

    Yes. Once the classified and unclassified information exempt from 
public release is redacted, DOE responses to MDR requests, as well as 
FOIA requests for matter containing classified information, are posted 
on DOE's OpenNet System at: https://www.osti.gov/opennet/.

[FR Doc. 2018-27344 Filed 12-20-18; 8:45 am]
 BILLING CODE 6450-01-P


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