66000 Federal Register / Vol. 83, No. 245 / Friday, December 21, 2018 / Rules and Regulations 

DEPARTMENT OF ENERGY 

10 CFR Part 1045 

[AU60–2016–1045] 

RIN 1992–AA49 

Nuclear Classification and 

Declassification 

AGENCY: Department of Energy. 

ACTION: Final rule. 

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existing regulations outdated.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 

lesley.nelson-burns@hq.doe.gov. 

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 


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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 § 1045.1 to § 1045.9. It now 

contains § 1045.5 to § 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: 

—§ 1045.1: This content was moved to 

§ 1045.5. 

—§ 1045.2: This content was moved to 

§ 1045.10(a). 

—§ 1045.3: This content was moved to 

§ 1045.30. 

—§ 1045.4: This content was moved to 

§ 1045.45. 

—§ 1045.5: This content was moved to 

§ 1045.25. 

—§ 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 reestablished 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. 

—§ 1045.7: This content was moved to 

§ 1045.15. 

—§ 1045.8: This content was moved to 

§ 1045.20. 

—§ 1045.9: This content was moved to 

§ 1045.45(g). 

The sections of Subpart A are now as 

follows: 

—§ 1045.5: This content was previously 

in sections § 1045.1, § 1045.10, and 

§ 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. 

—§ 1045.10: To lessen duplication, this 

content now consolidates the 

applicability sections of each subpart, 

(formerly § 1045.2, § 1045.11, 

§ 1045.31, and § 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. 

—§ 1045.15: This content was 

previously in § 1045.7. The address 

for the DOE Office of Classification 

was updated. 

—§ 1045.20: This content was 

previously in § 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. 

—§ 1045.25: This content was 

previously in § 1045.5. There have 

been no substantive changes to this 

content. 

—§ 1045.30: This content was 

previously in § 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 (DOEonly) and matter (any RD Derivative 

Classifier) to ensure in both cases the 

appropriate authority is exercised. 

—The following existing definitions 

were revised for clarity: 

—Agency—added TFNI. 

—Automatic Declassification—revised 

to reflect E.O. 13526. 

—Classification—includes information 

classified by statute (the AEA). 

—Classification Guide—edited for 

clarity. 

—Classification Level 

—Added TFNI. 

—Removed definition of Confidential 

for NSI because this is defined in E.O. 

13526 and should not be duplicated 

here because it does not apply to RD, 

FRD, or TFNI. 

—Classified Information—added TFNI; 

clarified that classified NSI includes 

information classified under E.O. 

13526. 

—Declassification—edited for clarity. 

—Director, Office of Classification— 

removed reference to organizational 

placement of Director, Office of 

Classification as it is not necessary 

—Interagency Security Classification 

Appeals Panel (ISCAP)—updated to 

reflect E.O. 13526. 


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—National Security—definition 

changed to refer to definition used by 

E.O. 13526. 

—National Security Information— 

defined as pursuant to E.O. 13526. 

Removed clause describing ‘‘defense 

information’’ as used in the AEA 

because it is obsolete and not 

pertinent to this rule. 

—Portion Marking—edited for clarity. 

—RD Management Official—edited to 

streamline definition. 

—Source Document—edited to 

emphasize the requirement for RD 

Derivative Classifiers to use only 

portion marked source documents. 

The following definitions were 

deleted as they are not used in this part: 

—Authorized Holder—this term was 

replaced by ‘‘person with access.’’ 

—Document—removed. All references 

are now to ‘‘matter.’’ 

—§ 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 § 1045.10 to § 1045.22. It now 

contains Sections from § 1045.40 to 

§ 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 § 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: 

—§ 1045.10: This content was moved to 

§ 1045.5. 

—§ 1045.11: This content was moved to 

§ 1045.10. 

—§ 1045.12: This content was moved to 

§ 1045.45. 

—§ 1045.13: This content was moved to 

§ 1045.75. 

—§ 1045.14: This was moved and 

subdivided in the following manner: 

—Content regarding the initial 

classification of RD was moved to 

§ 1045.45(c), § 1045.70, and 

§ 1045.135. 

—Content regarding the declassification 

of RD was moved to § 1045.45(b), 

§ 1045.100, and § 1045.105(a) and (b). 

—Content regarding the classification of 

FRD was moved to § 1045.45(b) and 

§ 1045.85(a). 

—Content regarding the declassification 

of FRD was moved to § 1045.45(b), 

§ 1045.100, and § 1045.105. 

—§ 1045.15: This content was moved to 

§ 1045.80. 

—§ 1045.16: This content was moved to 

§ 1045.70. 

—§ 1045.17: This content was moved to 

§ 1045.45(c) and § 1045.95. 

—§ 1045.18: This content was moved to 

§ 1045.45(c). 

—§ 1045.19: This content was deleted. 

Classification determinations 

concerning RD or FRD, as specified in 

paragraph (a), follow the criteria in 

§ 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. 

—§ 1045.20: The content of this 

paragraph was moved to § 1045.105. 

—§ 1045.21: This content was moved to 

§ 1045.90. 

—§ 1045.22: This content was moved to 

§ 1045.60 and § 1045.65. 

The sections of Subpart B are now as 

follows: 

—§ 1045.40: This content was 

previously in § 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. 

—§ 1045.45: This content was 

previously in § 1045.4, § 1045.14, 

§ 1045.17, § 1045.18, and § 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 § 1045.45(b). 

The substantive changes are as 

follows: 

—§ 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. 

—§ 1045.45(c): This content was 

previously in § 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. 

—§ 1045.45(g): This content was 

previously in § 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. 

—§ 1045.45(h): This content was 

previously in § 1045.4(f), RDMOs, 

with the following changes: 

—Established procedures for the 

designation of Associate RDMOs 

(ARDMOs). This codifies current 


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practices and allows agencies 

flexibility in delegating the 

responsibilities of RDMOs; 

—Incorporates RDMO responsibilities 

for TFNI; 

—Adds responsibility for periodic 

reviews of agency classification 

decisions of matter containing RD, 

FRD, or TFNI. Agencies currently 

conduct annual reviews of 

classification decisions under 32 CFR 

part 2001 to ensure the appropriate 

identification and marking of National 

Security Information. The periodic 

review of matter containing RD, FRD, 

or TFNI may be done during these 

reviews to ensure agencies are aware 

of any systematic issues regarding 

compliance with this part; and 

—Added the Director of National 

Intelligence (DNI) responsibility for IC 

elements. 

—§ 1045.45(i), (j), and (k): This content 

was previously in § 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 portionmarked, and gives examples of 

classification upgrading and 

downgrading. 

—Added training required for access to 

and to derivatively classify TFNI. 

—§ 1045.55: This content was moved 

from § 1045.37 and § 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. 

—§ 1045.60: This content was moved 

from § 1045.22. The content did not 

change. 

—§ 1045.65: This content was moved 

from § 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 § 1045.30 to § 1045.46. It now 

contains § 1045.70 to § 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: 

—§ 1045.30: This content was moved to 

§ 1045.5. 

—§ 1045.31: This content was moved to 

§ 1045.10(a). 

—§ 1045.32: This content was moved to 

§ 1045.45(i) and § 1045.155. 

—§ 1045.33: This content was moved to 

§ 1045.40. 

—§ 1045.34: This content was moved to 

§ 1045.115(b) and (c). 

—§ 1045.35: This paragraph was moved 

to § 1045.45(c) and § 1045.120. 

—§ 1045.36: This content was moved to 

§ 1045.45(c). 

—§ 1045.37: The content regarding 

classification guides was moved to 

§ 1045.45. The requirement regarding 

the 5-year review of guides was 

moved to § 1045.45(g)(9). 

—§ 1045.38: This content was moved to 

§ 1045.155. 

—§ 1045.39: This content was moved to 

§ 1045.110. 

—§ 1045.40: This content was moved to 

§ 1045.140 and § 1045.165. 

—§ 1045.41: This content was moved to 

§ 1045.130(d). 

—§ 1045.42: This content was moved to 

§ 1045.170, § 1045.175, and 

§ 1045.180. 

—§ 1045.43: This content was moved to 

§ 1045.55. 

—§ 1045.44: This content was moved to 

§ 1045.125(b). 

—§ 1045.45: This content was moved to 

§ 1045.125. 

—§ 1045.46: This content was moved to 

1045.130(c) and (d). 

The sections of Subpart C are now as 

follows: 

—§ 1045.70: This content was 

previously in § 1045.14 and § 1045.16. 

To address current concerns, the 

consideration as to whether 

declassification would assist terrorism 

was added. 

—§ 1045.75: This content was 

previously in § 1045.13. There are no 

changes to the content. 

—§ 1045.80: This content was 

previously in § 1045.15. The 

introduction was revised for clarity. 

—§ 1045.85: This content was 

previously in § 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. 

—§ 1045.90: This content was 

previously in § 1045.21. The content 

was reworded for clarity. 

—§ 1045.95: This content was 

previously in § 1045.17. Examples of 

RD in each classification level were 

removed as unnecessary and the 

language was revised and reorganized 

for clarity. 

—§ 1045.100: This content was 

previously in § 1045.14. There have 

been no substantive changes to this 

content. 

—§ 1045.105: This content was 

previously in § 1045.14 and § 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. 

—§ 1045.110: This content was 

previously in § 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 


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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 

§ 1045.50 to § 1045.53. It now contains 

§ 1045.115 to § 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: 

—§ 1045.50: This content was moved to 

§ 1045.5. 

—§ 1045.51: This content was moved to 

§ 1045.10(a). 

—§ 1045.52: This content was moved to 

§ 1045.185 and § 1045.190. 

—§ 1045.53: This content was moved to 

§ 1045.205 and § 1045.210. 

The sections of Subpart D are now as 

follows: 

—§ 1045.115: This content was 

previously in § 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. 

—§ 1045.120: This content was 

previously in § 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. 

—§ 1045.125: This content was 

previously in § 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. 

—§ 1045.130: This content was 

previously § 1045.41 and § 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. 

—§ 1045.135: This content was 

previously in § 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. 

—§ 1045.140: This content was 

previously in § 1045.40. New subparagraphs 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. 

—§ 1045.145: This section was added to 

address matter printed from an IT 

system. 

—§ 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. 

—§ 1045.155: This content was 

previously in § 1045.32 and § 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. 

—§ 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. 

—§ 1045.165: This content was 

previously in § 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 


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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 

§ 1045.170 to § 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: 

—§ 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. 

—§ 1045.175: This content was 

previously in § 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. 

—§ 1045.180: This content was 

previously in § 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 § 1045.185 to § 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: 

—§ 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. 

§ 1045.190: This content was previously 

in § 1045.52. The mailing address for 

the Director, Office of Classification 

was updated. 

§ 1045.195: This content was previously 

in § 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 nonexempt 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. 

—§ 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. 

§ 1045.205: Content addressing MDR 

requests and appeals for matter 

containing RD, FRD, or TFNI was 

added. The changes codify existing 

practices. 

§ 1045.210: This content was previously 

in § 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. 

§ 1045.215: This content was previously 

in § 1045.53. 

§ 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. 

§ 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. 


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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-generalcounsel). 

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 


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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. 

■ 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 


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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 

§ 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 


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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]. 

§ 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. 

§ 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. 

§ 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. 

§ 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. 

§ 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. 


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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 


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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. 

§ 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 

§ 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. 

§ 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 nuclearrelated information is RD; 

(5) Determines if new information in 

a previously declassified subject area 

warrants classification as RD based on 

the criteria in § 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 


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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 onsite 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 TFNIrelated 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; 


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(2) Ensure that persons with access to 

RD, FRD, and TFNI are trained in 

accordance with § 1045.120; 

(3) Ensure that RD Derivative 

Classifiers are designated and trained in 

accordance with §§ 1045.115 and 

1045.120, respectively; 

(4) Ensure that persons who 

derivatively classify matter containing 

TFNI are trained in accordance with 

§ 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 § 1045.120; 

(2) Must use approved DOE or joint 

classification guides, in the subject areas 

in which they have programmatic 

expertise, or an applicable portionmarked 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 

§ 1045.150. 

(j) Persons who derivatively classify 

matter containing TFNI: 

(1) Must receive training prescribed 

by § 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 § 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 

§ 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. 

§ 1045.50 [Reserved]. 

§ 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 § 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 § 1045.105. 

§ 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. 

§ 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 § 1045.125 

to ensure the information incorporated 

is not classified. 

Subpart C—Determining if Information 

is RD, FRD, or TFNI 

§ 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 


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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 

§ 1045.75; 

(2) Considering whether the 

information falls within the 

classification or declassification 

presumptions in § 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. 

§ 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. 

§ 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 

§ 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. 

§ 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 


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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. 

§ 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. 

§ 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. 

§ 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 

§ 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). 

§ 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. 

§ 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 


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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 

§ 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 portionmarked 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 § 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 § 1045.120 may classify 

matter containing TFNI. 

§ 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 portionmarked 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 

§ 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. 


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§ 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 

§ 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 § 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. 

§ 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. 

§ 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 nuclearrelated 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 

§ 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. 

§ 1045.140 How is matter containing RD, 

FRD, or TFNI marked? 

(a) Matter determined to contain RD, 

FRD, or TFNI. Matter determined to 


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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 

§ 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.’’ 


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(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. 

§ 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 

§ 1045.30. 

§ 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 § 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 § 1045.120(e) may remove the 

portions containing TFNI and the TFNI 

markings. 

(3) In all cases under § 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. 

§ 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. 

§ 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 


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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. 

§ 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 

§ 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. 

§ 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 § 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 § 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. 

§ 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 

§ 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. 


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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 § 1045.210(b). 

(3) MDR appeals received by DOE are 

processed consistent with § 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 

§ 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. 

§ 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. 

§ 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. 

§ 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. 

§ 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 § 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 § 1045.210. 

§ 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 


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determinations being relied upon to 

support the appeal. 

§ 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. 

§ 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. 

§ 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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