68502 Federal Register / Vol. 62, No. 250 /Wednesday, December 31, 1997 /Rules and Regulations

DEPARTMENT OF ENERGY

Office of the Secretary

10 CFR Part 1045

RIN 1901–AA21

Nuclear Classification and

Declassification

AGENCY: Department of Energy.

ACTION: Final rule.

SUMMARY: The Department of Energy

(DOE or Department) is publishing a

final rule revising its regulations

concerning the policies and procedures

on the identification of classified

information. These regulations establish

the policies and procedures

implementing the requirements of the

Atomic Energy Act of 1954 for the

classification and declassification of

information as Restricted Data and

Formerly Restricted Data and also

implement those requirements of

Executive Order 12958 concerning

National Security Information that

directly affect the public. These

regulations prescribe procedures to be

used by all agencies of the Federal

Government in the identification of

Restricted Data and Formerly Restricted

Data, and describe how members of the

public may request DOE National

Security Information and appeal DOE

classification decisions regarding such

requests.

EFFECTIVE DATE: This rule becomes

effective June 29, 1998.

FOR FURTHER INFORMATION CONTACT:

Janet O’Connell, Department of Energy,

Office of Declassification, 19901

Germantown Road, Germantown,

Maryland 20874–1290, (301) 903–1113,

or John Gurney, Department of Energy,

Office of the Assistant General Counsel

for National Security, Washington, DC

20585, (202) 586–8269.

SUPPLEMENTARY INFORMATION:

I. Introduction

II. Background

III. Discussion of Comments

IV. Rulemaking Requirements

A. Review Under Executive Order 12866

B. Review Under Paperwork Reduction Act

C. Review Under the National

Environmental Policy Act

D. Review Under Executive Order 12612

E. Review Under Executive Order 12988

F. Review Under the Unfunded Mandates

Reform Act of 1995

G. Review Under the Regulatory Flexibility

Act

H. Review Under Small Business

Regulatory Enforcement Fairness Act of

1996

V. Freedom of Information Act

Considerations

I. Introduction

On January 15, 1997, DOE published

a Notice of Proposed Rulemaking (62 FR

2251) establishing Government-wide

requirements for the classification and

declassification of Restricted Data (RD)

and Formerly Restricted Data (FRD) and

implementing those provisions of

Executive Order (E.O.) 12958 that

directly affect the public. Under the

Atomic Energy Act of 1954, 42 U.S.C.

2011, the Department of Energy is

responsible for the classification and

declassification of nuclear-related

information. Such information is

classified as RD. The DOE has joint

responsibility with the Department of

Defense (DoD) for the classification and

declassification of information which

relates primarily to the military

utilization of nuclear weapons. Nuclear

weapons related military utilization

information which can be protected as

National Security Information (NSI) in

the United States is classified as FRD.

FRD is protected in the same manner as

RD when transferred to another country

or regional defense organization such as

NATO. These regulations specify the

policies and procedures that

organizations and individuals shall

follow in classifying and declassifying

RD and FRD.

In formulating these policies and

procedures, DOE has solicited and made

use of a significant number of

recommendations from the public and

other agencies of the Federal

Government (hereafter referred to as

‘‘agencies’’); and the Department has

embraced the goal of ‘‘open policies

openly arrived at.’’ The resulting

regulation balances the Department’s

commitment to maximize the amount of

information made available to the

public with the need to protect national

security and prevent nuclear

proliferation.

Section 5.6(c) of E.O. 12958,

‘‘Classified National Security

Information,’’ requires agencies that

originate or handle classified

information to promulgate

implementing regulations which shall

be published in the Federal Register to

the extent that they affect members of

the public. Subpart D of today’s rule

implements those requirements of the

Executive order and was approved by

the Information Security Oversight

Office (ISOO) on July 5, 1996, in

accordance with section 5.3(b)(3) of E.O.

12958.

II. Background

This regulation is written in four

Subparts. Subpart A provides general

information on the management of the

RD classification system, including the

responsibilities of DOE and all agencies

with access to RD and FRD. Subpart B

describes procedures for the

classification and declassification of RD

and FRD information (as contrasted

with classification and declassification

of documents containing such

information). Requirements and

procedures for the review, classification,

and declassification of RD and FRD

documents to be implemented by all

agencies are described in Subpart C.

Lastly, Subpart D provides DOE

requirements and procedures

concerning NSI to the extent that they

affect the public, as required by

Executive Order 12958.

This regulation incorporates

recommendations of the Classification

Policy Study of July 1992, the Atomic

Energy Act Study of January 1994, and

the National Academy of Sciences

Review of 1995, as well as some of the

overarching issues in the Fundamental

Classification Policy Review of January

1997. Copies of these studies are

available from the contact person in the

FOR FURTHER INFORMATION CONTACT

section of this notice.

III. Discussion of Comments

a. Introduction

In response to the Notice of Proposed

Rulemaking, DOE received thirty-nine

(39) written comments. Twenty-three

(23) were indications of no comment or

concurrences. In addition, there were

two commenters at a public hearing

held on February 26, 1997. This section

describes comments, discusses changes

to the proposed rule which are

incorporated in the final regulation, and

provides an explanation of the

comments which were evaluated, but

not adopted by the Department. This

section discusses both revisions to the

proposed rule made in response to

public comments and also those made

by the DOE Office of Declassification of

its own initiative.

b. General Comments

The following describes general

comments received. One commenter

recommended that the regulation

‘‘address more specifically how to

handle RD/FRD documents which are

interspersed among documents of

agencies other than DOE.’’ DOE concurs

that additional guidance in this area is

needed. However, the Department does

not believe that this regulation is the

appropriate vehicle for providing such
Federal Register / Vol. 62, No. 250 /Wednesday, December 31, 1997 /Rules and Regulations 68503

detail. The External Referral Working

Group of the Intelligence Community

Declassification Program Manager’s

Council is focusing on implementing

E.O. 12958 and is developing standards

which will address this issue.

One commenter had a number of

comments relating to definitions used in

sections 1045.3, 1045.4, and 1045.13.

The commenter stated that the terms

‘‘reasonably,’’ ‘‘could be expected,’’

‘‘exceptionally grave damage,’’ ‘‘serious

damage,’’ and ‘‘damage’’ as contained in

the definitions for Top Secret, Secret

and Confidential, were highly subjective

and vague and recommended that these

terms be deleted or replaced. All of

these definitions and terms are taken

directly from E.O. 12958, with the

exception of ‘‘undue risk’’ which is

taken directly from the Atomic Energy

Act of 1954, as amended. While the

terms in E.O. 12958 strictly apply only

to NSI, the Department believes it is

clearly in the national interest that the

RD system, to the extent possible,

preserve commonality of terms with the

more widely applied NSI system. The

use of subjective modifiers such as

‘‘reasonably,’’ ‘‘exceptionally grave

damage’’ or ‘‘undue risk’’ is a reflection

of the fact that classification is not an

exact science. These terms, together

with the phrase ‘‘could be expected,’’

indicate that decisions by wellinformed, trained officials should be

based on their educated analysis of the

probable future impact on the national

security.

This commenter also indicated that

declassification means a determination

and does not necessarily result in DOE

releasing the information into the public

domain and can often require a specific

waiting period which can last for

months before the information is

actually released. It can indeed take

time to move information or documents

from the classified domain and make

them accessible to the public. The

Department is pursuing a number of

initiatives to reduce the amount of time

it takes to declassify and release

information to the public. The

Department does not believe that this

matter should be addressed by today’s

regulation.

One commenter noted that the

definitions for ‘‘information’’ and

‘‘Government information’’ are too

broad. The definition for ‘‘information’’

is appropriate and is included because

it is important to distinguish, within the

RD system, information from the

medium of conveyance, e.g., documents

or pictures. The definition of

‘‘Government information’’ is taken

directly from E.O. 12958.

The commenter also suggested that

classification guides are needed to limit

what information can be classified and

that it was unfortunate that these guides

are themselves classified and

unavailable to the public. DOE agrees

that classification guides are needed and

relies upon them as the primary source

for derivative classification decisions.

Classification guides provide the

approved, detailed instructions

describing what specific information is

or is not classified, and the rationale for

the instructions. By their very nature,

classification guides must contain

detailed descriptions of the information

they are designed to protect. This level

of detail in the guides greatly enhances

their sensitivity, and requires that they,

for the most part, be classified.

Consequently, the public disclosure of

classification guides would provide

information that is harmful to United

States nonproliferation and national

security objectives.

The commenter indicated that the

term ‘‘national security’’ was vague. The

definition for this term is derived

directly from E.O. 12958. Commenting

on the definition of ‘‘Restricted Data,’’

the commenter stated that the word

‘‘concerning’’ is too vague and broad.

The definition for ‘‘Restricted Data’’ is

derived directly from the Atomic Energy

Act. One commenter expressed concern

with the definition of ‘‘Special Nuclear

Material’’ indicating that it would allow

innocuous materials to be classified.

The definition for ‘‘Special Nuclear

Material’’ is derived directly from the

Atomic Energy Act. Section 51 of the

Act stipulates that to determine whether

other material is special nuclear

material in addition to that specified in

the Act’s definition of special nuclear

material, the Department must find the

material to be capable of releasing

substantial amounts of atomic energy,

that such a determination is in the

interest of the common defense and

security, and that the President must

have expressly assented in writing to

the determination. Finally, such

designation would be reviewed by the

Congress. Based on these requirements,

it is unlikely that an innocuous material

could be designated as a special nuclear

material.

The commenter expressed concern

that the word ‘‘relating’’ as used in

section 1045.4 (c) is overly vague. The

Department will apply the plain English

definition of the term ‘‘relating’’ in this

context.

As used in section 1045.13 (d) and (e),

one commenter considered the terms

‘‘concerns’’ and ‘‘unduly’’ as subjective.

The DOE intends to apply the plain

English definitions for these terms.

Plain English definitions of the word

‘‘concern’’ include: ‘‘to relate to; be

connected with; be of interest or

importance to; or have an important

relation or bearing.’’ This is what is

meant here. The word ‘‘unduly’’ is used

to indicate that different classification

levels have different dissemination

restrictions, and the classification level

assigned should be appropriate to the

adjudged sensitivity.

One commenter suggests that in

sections 1045.4 and 1045.8, DOE is

using this rule to impose its

classification system throughout the

Government, to avoid such steps as the

automatic 25 year declassification of

NSI documents required by E.O. 12958,

and to exert rights to oversee the

operations of other Government

agencies. In particular, the commenter

emphasizes his belief that the oversight

function should come from outside the

agency. DOE is indeed using this rule to

implement its responsibility to manage

the Restricted Data system Governmentwide, as authorized by section 161(p) of

the Atomic Energy Act. DOE welcomes

public scrutiny of its operations, but

cannot delegate its statutory

responsibility for oversight of the RD

system to the general public or another

agency. Additionally, DOE is in

compliance with all provisions of E.O.

12958; it is noted that RD and FRD are

exempt from automatic declassification

under section 6.1 of the E.O.

c. Section-by-Section Analysis

The following describes the public

comments which were received, in the

order of the sections to which they

pertain.

One commenter recommended that

the Director of Declassification, the

Director of Security Affairs, and the

NRC have added to their list of

responsibilities a requirement that they

must interact with stakeholders to better

understand the public’s information

needs. In response to this comment,

DOE has added paragraph 1045.4(a)(8)

to the responsibilities of the Director of

Declassification which reads,

‘‘Periodically meet with interested

members of the public to solicit input

for the classification and

declassification program.’’

Commenting on section 1045.5, one

commenter asked for more detail

concerning what is meant by the phrase

‘‘this part.’’ The phrase ‘‘this part’’ refers

to the entire regulation; Part 1045 of title

10 of the Code of Federal Regulations

(i.e., 10 CFR Part 1045). This commenter

also requested that section 1045.5 be

modified to provide further detail

concerning the possible sanctions and

the administrative authorities. It is not
68504 Federal Register / Vol. 62, No. 250 /Wednesday, December 31, 1997 /Rules and Regulations

appropriate to specify in the regulation

all details concerning administrative

sanctions or other penalties since they

are dependent on the offense committed

and the circumstances. One commenter

suggested that the Openness Advisory

Panel include a representative of the

stakeholder community. While the

composition of the panel is not

indicated in section 1045.6, all of its

current members are public

stakeholders and the charter of the

panel indicates that members will be

selected from the public stakeholder

community. One commenter suggested

that it is important that the deliberations

of the Panel be open. All Openness

Advisory Panel meetings held to date

have been open to the public. Minutes

of the meetings are available in the

Department’s FOIA reading room and

on the Internet at the DOE OpenNet web

site.

One commenter suggested that the

Openness Advisory Panel be provided

with more access to the inner workings

of the DOE classification system, and

the panel’s recommendations should be

made public at an early stage. The

Office of Declassification has ensured

that the panel has access to any

information it needs on DOE

classification policies or procedures,

including access to classified

information since many of the panel

members have security clearances.

Further, DOE is working to ensure that

the panel’s recommendations are made

available to the public as soon as they

are finalized.

One commenter suggested that the

Openness Advisory Panel should be

involved in overseeing the individual

performance of DOE personnel in

classification activities. The role of the

Openness Advisory Panel is advisory,

not oversight.

One commenter suggested that section

1045.7 be modified to ensure that

persons making suggestions or

complaints do not face any adverse

action. DOE accepted this suggestion

and 1045.7 (d) was added, ‘‘Under no

circumstances shall persons be subject

to retribution for making a suggestion or

complaint regarding classification and

declassification policies or programs.’’

One commenter recommended that

the Openness Coordinator, specified in

section 1045.7, make available to the

general public a summary of all

suggestions and complaints received,

and of DOE actions taken in response.

DOE plans to include this information

in its publicly available annual report

on the implementation of this

regulation.

In response to a comment that

performance requirements, specifically

related to timeliness of performing

classification related activities in

response to public requests, be included

throughout the rule, the Department has

added a new section, section 1045.9., to

Subpart A to ensure a system is in place

which measures the individual

performance of those personnel who

classify or declassify RD documents on

a regular basis. This provision provides

the framework for individual

accountability and is the basis for a

more credible classification system. A

similar requirement exists for NSI

classification under E.O. 12958.

In a comment on section 1045.12, one

commenter suggested that a publicly

available log of declassification actions

should be maintained. DOE has been

publishing such a log under the title,

‘‘Restricted Data Declassification

Decisions 1946 to the Present.’’

Commenting on section 1045.13, one

commenter objected to the inclusion of

the word ‘‘solely’’ regarding the

prohibition on classifying information

bearing solely on the physical

environment or public or worker health

and safety. It is DOE’s intent to be as

open as possible with information

concerning the physical environment or

public or worker health and safety.

However, when information of this

nature cannot be revealed without also

revealing other information harmful to

the national security, its classification is

not prohibited under section 1045.13.

The regulation allows for such

circumstances while the use of the word

‘‘solely’’ prohibits the classification of

information that only concerns the

physical environment or public or

worker health and safety.

One commenter noted that section

1045.15 presents presumptions

concerning nuclear waste created from

the production of nuclear weapons, but

does not deal with the waste produced

when weapons are detonated

underground at the Nevada Test Site

(NTS). The commenter’s particular

interest is in the spatial distribution of

waste. Section 1045.15 (b) and (c) point

out that not all areas are covered by the

presumptions, and that inclusion of

information in a presumption does not

mean that new information in this

category is or is not classified. In 1994,

the Department declassified the total

waste burden, by isotope, left at NTS as

of January 1, 1994, by all nuclear tests

detonated below or within 100 meters of

the water table. To provide some spatial

resolution, tests conducted on Pahute

Mesa were aggregated separately from

the total for all other testing areas. No

additional presumptions were added in

response to this comment.

Concerning section 1045.16, one

commenter stated that, ‘‘guidelines will

have to be more specific to ensure that

old conservative habits do not prevail

resulting in many documents either

remaining classified unnecessarily, or

classified needlessly. The guidelines

also need to be clear regarding

imprecise concepts such as ‘significant

doubt’, ‘whether the information is so

widely known,’ etc., for the same

reasons.’’ These terms and concepts are

not applied to the numerous document

classification and declassification

decisions which are made, only to

initial information classification and

declassification decisions. Document

classification and declassification

decisions are based primarily on

classification guides which indicate

whether or not certain items of

information are classified. DOE has not

developed guidelines for these concepts

and definitions, primarily because DOE

uses the plain English meaning of these

terms and applies them to information

on a case by case basis.

Regarding section 1045.17, one

commenter requested that DOE explain

why it included only a limited list of

examples of information which is

classified at the various classification

levels. The list provided in the

regulation is intended to be merely

illustrative, not exhaustive.

One commenter objected to section

1045.18, permitting DOE to classify

newly generated information in a

previously declassified subject area and

suggested that it will create a massive

abuse of Government classification

powers and should be deleted. This

authority will only allow DOE to

judiciously and responsibly classify

new information which truly warrants

protection in the interests of national

security. Information already in the

public domain will not be reclassified.

One commenter recommended that,

‘‘a requirement be included that all

proposals for declassification and

changes in controlled status be

periodically reported to the public

through the Federal Register, and that

progress in pursuing such proposals

also be reported.’’ Controlled is a term

applied to information that is

unclassified but not publicly releasable.

This regulation does not address

controlled status, but section 1045.19,

requires that the DOE Director of

Declassification prepare a publicly

available report on an annual basis on

the implementation of this regulation.

This report will include information on

declassification proposals and progress

with such proposals.

With respect to section 1045.19, one

commenter suggested that the
Federal Register / Vol. 62, No. 250 /Wednesday, December 31, 1997 /Rules and Regulations 68505

classifier’s duty station or agency,

address, and telephone number be

marked on a document classified as RD

or FRD. Section 1045.40 (b) (4) requires

that the classifier’s name and position or

title be marked on the document, if not

the same as the document originator or

signator. DOE does not believe the

additional information requested needs

to be included in the marking, since

DOE can determine this information if

the classifier’s name and position or

title is provided.

DOE received three comments

concerning the Department’s authority

to classify RD which is generated

outside of the Government, as specified

in section 1045.21. One commenter

indicated that this provision does not

adequately define what type of RD will

be covered and is a violation of first

amendment rights. Another commenter

suggested that exercising this authority

may place sensitive information at risk

and recommended that elimination of

the ‘‘born classified’’ provisions of the

Atomic Energy Act be sought through

Congressional action. DOE evaluated

these comments and determined that

under the Atomic Energy Act, the

Department has the authority and the

obligation to apply this section to any

information properly classified as RD. It

should be noted that this authority

would be exercised only in the case of

a very serious national security matter

where no other course of action is

possible. In the past 50 years, this

authority has been exercised only a few

times.

DOE received three comments

concerning the No Comment Policy as

described in section 1045.22. One

commenter indicated that this section

was too broad. Another commenter

suggested that the policy should not

apply to all persons with access to RD

and FRD because they are not

sufficiently knowledgeable of all

classified information in the public

domain and recommended that this

policy be restricted to Government

officials and weapon designers. DOE

will apply this policy to all individuals

with access to RD and FRD. DOE cannot

limit this policy to apply only to

Government officials and weapons

designers because RD information exists

in subject areas other than weapons and

is in the possession of numerous cleared

contractors. One commenter suggested

that this section is an attempt to

intimidate and quiet DOE scientists. It

should be noted that the policy is not

intended to restrict scientists or others

from commenting on an aspect of a

public statement that is clearly

unclassified, such as the basic physics

of a process. The purpose of this policy

is to ensure that classified information

that may already be in the public

domain is not officially confirmed,

resulting in damage to the national

security or harm to U.S.

nonproliferation objectives. As a result

of these comments paragraph (a) of this

section has been modified to read,

‘‘Authorized holders of RD and FRD

shall not confirm or expand upon the

classification status or technical

accuracy of classified information in the

public domain.’’

One commenter suggested that section

1045.35 be restructured to reflect

differing training requirements

depending on the type of authority an

individual has. In response to this

comment, the Department has revised

section 1045.35(a) to read, ‘‘RD

management officials shall ensure that

persons with access to RD and FRD

information are trained on the

authorities required to classify and

declassify RD and FRD information and

documents and on handling procedures.

RD management officials shall ensure

that RD classifiers are trained on the

procedures for classifying, declassifying,

marking and handling RD and FRD

information and documents.’’ The

commenter also recommended that RD

classifiers be certified. The regulation

requires that all RD classifiers be trained

and (except within the DoD) designated.

By including these requirements, DOE

does not believe that an additional

certification is necessary.

One commenter recommended that

the rule strongly encourage, if not

require, portion marking of documents

by all agencies. This commenter also

recommended that the bias towards

using classification guides which is

expressed in section 1045.32(a)(1) be

modified. DOE recognizes that portion

marking of documents containing NSI is

required by E.O. 12958 and that portion

marking is common practice in most

agencies. However, DOE has made the

conscious decision not to portion mark

RD and FRD documents because the

DOE classification system relies heavily

on the use of classification guides. DOE

prefers the use of classification guides

over the use of source documents for

derivative classification decisions,

because use of guides results in more

accurate and consistent classification

decisions. The many individual

decisions involved with using a portion

marked document as a source document

increase the probability for error.

Further, a portion marked document is

not revised to reflect changes in

classification guidance and it may

represent out-of-date classification

policy, resulting in overclassification. A

non-portion marked document should

also not be used as a source document.

While it is possible that RD classifiers

may attempt to use non-portion marked

documents as source documents, it is

less likely precisely because they are not

portion marked. Therefore, DOE

believes it is preferable not to portion

mark in order to encourage the use of

classification guides over source

documents.

One commenter suggested that,

‘‘Documents containing both RD and

NSI should be marked on the front page

with an ‘NSI Content Declassified on’

date, which is the date that the

document would be automatically

declassified if it contained no RD.’’ DOE

considered this proposal but determined

that it could not be accepted because

under the Atomic Energy Act,

documents containing RD information,

regardless of whether they also contain

NSI, must undergo a review prior to

their declassification and release. At

such time, the NSI content would also

be reviewed and declassified if

appropriate. In addition, this comment

was not adopted because DOE is

concerned that such a marking may be

misread and result in the inadvertent

disclosure of RD or FRD.

One commenter recommended that

the rule contain a requirement that

safety, health and environmental impact

analysis/evaluations for classified

facilities and activities contain both

classified and unclassified versions,

unless the existence of the facilities or

the activities are considered RD, FRD or

NSI. The commenter also suggested that

the rule contain a requirement that the

unclassified version contain

documentation for conclusions that

provisions for public and worker

protection are at least comparable to

that provided at unclassified facilities

and that this requirement should

include provisions for identifying the

parts or phrases which are removed and

the bases for the classification. This

commenter also recommended that

section 1045.41 specifically require that

unclassified versions of documents be

prepared for safety, health and

environmental impact evaluations. In

addition, another commenter made a

similar suggestion indicating that when

information must be classified which

relates to the environment, the

Department should include an analysis

of the classification in the

environmental documents. This

commenter also recommended that the

rules require in each case that the

Department certify that the classified

information cannot be declassified and

why. This regulation cannot impose

requirements on the actual content of a

document, only its classification. In
68506 Federal Register / Vol. 62, No. 250 /Wednesday, December 31, 1997 /Rules and Regulations

response to these comments, the

Department has enhanced the language

in section 1045.41. A new paragraph,

1045.41(c), has been added which

encourages document originators to

provide a publicly releasable rationale

for the classification of documents

containing environmental, safety or

health information, when unclassified

versions cannot be prepared. In

addition, one commenter recommended

that DOE acknowledge the existence of

a classified addendum. DOE accepted

this suggestion and 1045.41(a) has been

revised accordingly.

One commenter indicated that

‘‘Section 1045.52(a) proposes that any

information subject to pending litigation

is a basis for denial of declassification

reviews’’, and recommended this

proposal be deleted. This section

indicates that if the Department has

reviewed the information within the

past 2 years, or the information is the

subject of pending litigation, the

Department shall inform the requester of

this fact and of his or her appeal rights.

The language in this section is derived

directly from section 3.6 of E.O. 12958.

DOE requested clarification from ISOO

on this section and was advised that if

information is subject to pending

litigation, the Department should not

process the request. This does not mean

that the request is denied, rather that the

request is not processed until the

litigation is complete. Section

1045.53(a) was revised to reflect this

clarification. This commenter also

recommended that this section be

revised to prohibit extension of appeals

beyond 60 working days. While DOE

makes every effort to complete appeal

actions within the specified time frame,

some actions may require additional

time to complete because of extensive

interagency coordination. Therefore, it

is not practical to establish such a

prohibition.

d. DOE Revisions

The following describes changes to

the regulation made by DOE on its own

initiative, not in response to any public

comment. The title of the rule was

changed from ‘‘Information

Classification’’ to ‘‘Nuclear

Classification and Declassification’’ in

order to be more descriptive. In the

preamble to the proposed rule, the

Department indicated that the Openness

Advisory Panel ‘‘will also serve as an

independent authority to confirm for the

public the validity of classification

decisions in instances when the full

rationale cannot be disclosed for reasons

of national security.’’ A panel of the

Secretary of Energy Advisory Board

(SEAB) provides advice and

recommendations to the SEAB and

therefore cannot function as an

‘‘independent authority.’’ Consequently,

the Openness Advisory Panel will not

function as an ‘‘independent authority’’

concerning the validity of classification

decisions.

In section 1045.3, the definition of

‘‘contractor’’ was revised for accuracy to

read, ‘‘means any industrial,

educational, commercial or other entity,

grantee or licensee at all tiers, including

an individual, that has executed an

agreement with the Federal Government

for the purpose of performing under a

contract, license or other agreement.’’

The definition of ‘‘declassification’’ was

modified to reflect that some

information may be declassified but still

require protection for national security

reasons (e.g., Unclassified Controlled

Nuclear Information). The definition of

‘‘information’’ was expanded for clarity.

The definition of ‘‘National Security

Information’’ was modified to add the

words, ‘‘NSI is referred to as ‘defense

information’ in the Atomic Energy Act.’’

This change was made for clarity. Also,

the definition of ‘‘Restricted Data

classifier’’ was modified by adding the

following words, ‘‘RD classifiers within

the DoD may also declassify FRD

documents.’’ This change was made for

accuracy and to be consistent with other

sections of the regulation.

DOE has added language to section

1045.7(c) which reads, ‘‘DOE will make

every effort to respond within 60 days.’’

This change was made to ensure the

Department is responsive to suggestions

and complaints.

The Department has added language

to section 1045.14(a) which requires

that an RD classifier follow the process

for submitting potential RD for

evaluation whenever he or she is unable

to locate classification guidance that can

be applied to the information. Under

previous procedures, RD classifiers

could classify documents even though

they were unable to locate classification

guidance that applied to the

information. This practice evolved from

the ‘‘born classified’’ concept. This

concept is now being de-emphasized

since it is DOE practice that

classification is not automatically

prescribed. Consequently, this revision

is necessary to ensure classification is

not automatically applied when there is

uncertainty as to the need for it. For

completeness, the Department has also

added paragraph (a)(1)(iv) to section

1045.14 which requires that the Director

of Declassification notify classifiers of

the information classification decisions

made under this section.

For accuracy, DOE inserted the word,

‘‘category’’ after ‘‘RD classification’’ and

changed ‘‘Director of Declassification’’

to ‘‘Director of Security Affairs’’ in

section 1045.14(c).

Section 1045.15(c) was modified to

clearly state that the presumptions

reflect the classification status of

existing information and that new

information in one of the presumption

categories may or may not be classified.

The Department has deleted section

1045.15(d)(2), the unclassified

presumption which was worded

‘‘instruments and equipment’’. DOE was

able to find numerous examples of

classified instruments and equipment.

Section 1045.15(d)(8) (now (7)), was

revised by inserting the words ‘‘most of’’

before ‘‘their alloys.’’ This change was

made in response to DOE concerns that

not all alloys and compounds are

unclassified.

DOE revised proposed section

1045.15(d)(10) (now (9)), by deleting the

word ‘‘all’’. This change was made

because there is still one nuclear test

yield range that remains classified.

Proposed section 1045.15(d)(12) (now

(11)) has been revised to add the words

‘‘not revealing size or details concerning

the nuclear weapons stockpile.’’ This

revision is necessary because the

presumption was too broad.

DOE revised proposed section

1045.15(d)(13) by changing the word

‘‘Operations’’ to ‘‘Any information.’’

This change was made to broaden the

scope of this ‘‘presumed unclassified’’

subject area. The original wording

would have limited the scope to only

those operations dealing exclusively

with health, safety, and environmental

matters, such as a site environmental

cleanup project. The new wording

includes any health, safety, and

environmental information in any

program regardless of its purpose.

As a result of a recent declassification

action, the Department added paragraph

1045.15(d)(14), an unclassified

presumption concerning the association

of materials at specified DOE sites.

DOE has also added paragraph (c) to

section 1045.16 for completeness, ‘‘The

DOE Directors of Declassification and

Security Affairs shall consider the

presumptions in section 1045.15 (d) and

(e) before applying the criteria in

paragraph (d) of this section.’’

In section 1045.17(a)(1), examples are

provided of RD information which

warrants classification at the Top Secret

level. For clarity, a more complete

explanation of what type of nuclear

weapons design information warrants

classification at the Top Secret level is

provided. Also, paragraph (a)(3) of

section 1045.17 has been expanded to

provide more examples of information
Federal Register / Vol. 62, No. 250 /Wednesday, December 31, 1997 /Rules and Regulations 68507

that warrant classification at the

Confidential level.

For clarity, the sentence, ‘‘The DOE

Director of Declassification shall not

classify the information in such cases if

it is widely disseminated in the public

domain’’ has been added to section

1045.18.

Proposed section 1045.19(b) has been

revised to include an address where

persons may request the annual report

on the status of the RD classification

program. This report will be made

available to any interested persons,

including the Congress.

To ensure that the requirement to

publish a Federal Register notice does

not result in the disclosure of classified

or sensitive information, section

1045.21(c) has been revised to read,

‘‘DOE shall publish a Federal Register

notice when privately generated

information is classified as RD, and

shall ensure that the content of the

notice is consistent with protecting the

national security and the interests of the

private party.’’ Depending upon the

circumstances, the Federal Register

notice could be a simple

acknowledgment that DOE has

exercised the authority under this

section if the identification of the

circumstance would be classified.

Section 1045.32(a)(1) has been revised

by deleting the word ‘‘properly’’ from

the second sentence. DOE recognizes

that some source documents are

improperly classified. Nonetheless, RD

classifiers may presume that the

classification of a document marked RD

or FRD is proper where there is no

conflicting guidance. Therefore, this

word has been removed. Where there is

doubt about the classification of a

source document and there is no

classification guide topic to address the

information, the RD classifier should

follow the process described in section

1045.14. Paragraphs (a) (1) and (4) and

(b)(2) were modified to reflect that joint

Agency-DOE classification guides or

Agency guides coordinated with the

DOE should be used in these instances.

Paragraph (a)(3) has been added to

section 1045.32 which states ‘‘RD

classifiers shall classify only documents

in subject areas in which they have

programmatic expertise.’’ The purpose

of this revision is to ensure that

information is derivatively classified

only by those individuals who have

specific program knowledge of the

information being classified. This is

generally an accepted practice

throughout the Government. This

provision merely formalizes the

procedure. Paragraph (a)(4) has been

added to section 1045.32 to allow RD

classifiers to upgrade or downgrade the

classification level of documents.

In section 1045.34, paragraph (b) has

been added to read, ‘‘All contractor

organizations with access to RD and

FRD, including DoD contractors, shall

designate RD classifiers.’’ This change

was made to clarify that the exemption

from the designation requirement in

paragraph (a) applies only to DoD

federal employees. This provision is

consistent with the National Industrial

Security Program Operating Manual.

DOE changed the words, ‘‘persons

working with RD and FRD information’’

to ‘‘all RD classifiers’’ in section

1045.37(f). This change is made since

only RD classifiers, not all persons with

access to RD and FRD, need

classification guides.

Section 1045.38(c) has been modified

by adding the words ‘‘and FRD’’ after

‘‘RD.’’ This change is made for accuracy

since both RD and FRD are exempt from

the provisions of E.O. 12958.

Concerning the marking requirements

in Section 1045.40, it is noted that these

provisions fall under the purview of the

DOE Office of Safeguards and Security,

not the DOE Office of Declassification.

Section 1045.40(b)(3) has been modified

to require that the date of the guide or

source document used to classify the

document being marked, be identified.

This change is made to ensure

consistency in requirements throughout

the Government. In section

1045.40(b)(4) ‘‘Name or position/title’’

was changed to ‘‘Name and position or

title.’’

Proposed section 1045.40(d) was

deleted since it did not provide a

regulatory requirement.

For accuracy, in section 1045.40(e),

(now (d)), ‘‘RD classifier’’ is changed to

‘‘individual authorizing the

declassification.’’

Section 1045.42 has been revised to

reflect that the Interagency Security

Classification Appeals Panel (ISCAP)

has no jurisdiction over Freedom of

Information Act appeals.

The following language has been

added to section 1045.42(b)(5) in order

to ensure that information that is

requested by the public in the form of

a mandatory or Freedom of Information

Act request is formally considered for

declassification, ‘‘(i) Appeal reviews of

RD or FRD documents shall be based on

existing classification guidance.

However, the DOE Director of

Declassification shall review the RD and

FRD information in the appealed

document to determine if it may be a

candidate for possible declassification.

(ii) If declassification of the information

appears appropriate, the DOE Director

of Declassification shall initiate a formal

declassification action and so advise the

requester.’’

The person responsible for ensuring

that RD documents are periodically and

systematically reviewed for

declassification has been changed from

the ‘‘DOE Director of Declassification’’

to ‘‘The Secretary’’ in section

1045.43(a). This change was made to

elevate the level of the responsible

agency official and to ensure this task is

completed.

The Department revised section

1045.44 to read, ‘‘Any person with

authorized access to RD or FRD who

generates a document intended for

public release in an RD or FRD subject

area shall ensure that it is reviewed for

classification by the appropriate DOE

organization (for RD) or the appropriate

DOE or DoD organization (for FRD) prior

to its release.’’ The purpose of this

change is to ensure that documents

intended for public release are reviewed

by appropriate officials, rather than by

any individual who derivatively

classifies RD documents. Documents

originated within the DOE are

forwarded to the local classification

officer for prepublication review.

Documents originated outside of the

DOE are processed in accordance with

agency procedures and forwarded to the

Director of Declassification for

prepublication review.

A new section, section 1045.46, has

been added to cover a situation where

two or more pieces of unclassified

information when associated or

compiled together could reveal

classified information. In the case of

classification by association, two

unclassified pieces of information may,

when considered together, reveal

classified information. For example, a

shipment of an unclassified

commercially available item of

hardware to a contractor whose only

activity is a classified project may cause

the fact of the shipment to be classified.

In the case of classification by

compilation, a number of pieces of

unclassified information that, when

considered together, may contain some

added value such as completeness or

comprehensiveness of the information,

may warrant classification. For example,

individual DOE bibliographic citations

of weapons data reports may be

unclassified, however a complete

compilation of these citations would

represent all DOE weapons research

conducted. Such a compilation would

provide significant assistance to a

potential proliferant and may therefore

warrant classification. DOE determined

that this section is needed to explain

classification of RD or FRD by

association or compilation. A similar
68508 Federal Register / Vol. 62, No. 250 /Wednesday, December 31, 1997 /Rules and Regulations

provision exists for classification by

association and compilation for NSI

under E.O. 12958.

For accuracy, the words, ‘‘Access to

Information’’ were removed from the

title of Subpart D. A new section

1045.51 entitled Applicability has been

added, ‘‘This subpart applies to any

person with authorized access to DOE

NSI or who desires access to DOE

documents containing NSI.’’ The

Purpose and Scope paragraph was

modified to include the authorities for

the classification of NSI. Sections

1045.51 and 52 were renumbered

1045.52 and 1045.53, respectively.

e. Comments Outside the Scope of the

Rule.

The following provides a summary of

comments outside the scope of this

regulation. One commenter

recommended that the Department

examine the differing requirements

within the DOE and the DoD for access

to RD. This comment has been provided

to the DOE Office of Safeguards and

Security for consideration, since access

requirements are under their purview.

Several commenters expressed

concern with classification issues under

the purview of the Office of Naval

Reactors, Naval Nuclear Propulsion

Program. Although the Office of Naval

Reactors is subject to this regulation,

they are responsible for implementation

of their own classification program

under the provisions of Executive Order

12344. Consequently, these comments

were forwarded to the Office of Naval

Reactors for appropriate disposition.

One commenter also provided a

suggestion concerning the DOE policies

for marking and use of ‘‘For Official Use

Only (FOUO)’’ and ‘‘Unclassified

Controlled Nuclear Information

(UCNI).’’ Since the scope of this

regulation does not include UCNI or

FOUO, these comments will be

considered for inclusion in other

Departmental policies.

IV. Rulemaking Requirements

A. Review Under Executive Order 12866

One commenter suggested that the

rule as proposed constitutes a

‘‘significant regulatory action’’ as that

term is defined by Executive Order

12866. That order defines ‘‘significant

regulatory action’’ as an action that is

likely to result in a rule that may: (1)

have an annual effect on the economy

of $100 million or more or adversely

affect in a material way the economy, a

sector of the economy, productivity,

competition, jobs, the environment,

public health or safety, or State, local or

tribal governments or communities; (2)

create a serious inconsistency or

otherwise interfere with an action taken

or planned by another agency; (3)

materially alter the budgetary impact of

entitlements, grants, user fees, or loan

programs or the rights and obligations of

recipients thereof; or (4) raise novel

legal or policy issues arising out of legal

mandates, the President’s priorities or

the principles set forth in this Executive

Order. Today’s rule imposes

requirements on Government agencies,

contractors and their employees that are

authorized to have access to RD and

FRD information and documents. Costs

incurred by compliance with the rule

are paid directly by the Government or

are reimbursed by the Government.

Although the rule’s effect on the

economy is difficult to gauge precisely,

DOE has determined that the annual

effect on the economy will fall far short

of the $100 million threshold and will

not adversely affect in a material way

the economy, a sector of the economy,

productivity, competition, jobs, the

environment, public health or safety, or

State, local, or tribal governments or

communities. DOE has coordinated the

development of the rule with numerous

agencies with access to RD and FRD.

DOE has sought and received input and

concurrences from DoD, Department of

State and other federal agencies affected

by today’s rule and does not expect that

the rule will create a serious

inconsistency or otherwise interfere

with an action taken or planned by

another agency. The rule has no effect

on the budgetary impact of entitlements,

grants, user fees, or loan programs or the

rights and obligations of recipients

thereof. Finally, the rule raises no novel

legal or policy issues arising out of legal

mandates, the President’s priorities, or

the principles set forth in E.O. 12866.

Based on the foregoing, DOE has

determined that today’s rule does not

constitute a ‘‘significant regulatory

action’’ as defined in section 3(f) of E.O.

12866.

B. Review Under Paperwork Reduction

Act

No new information collection

requirements subject to the Paperwork

Reduction Act, 44 U.S.C. 3501 et seq.,

are imposed by today’s regulatory

action.

C. Review Under the National

Environmental Policy Act

This regulation amends DOE’s

policies and procedures for the

classification and declassification of

information. Implementation of this rule

will not affect whether such information

might cause or otherwise be associated

with any environmental impacts. The

Department has therefore determined

that this rule is covered under the

Categorical Exclusion found at

paragraph A.5 of Appendix A to Subpart

D, 10 CFR Part 1021, which applies to

the establishment of a rulemaking

interpreting or amending an existing

rule or regulation that does not change

the environmental effect of the rule or

regulation being amended. Accordingly,

neither an environmental assessment

nor an environmental impact statement

is required.

D. Review Under Executive Order 12612

Executive Order 12612, 52 FR 41685

(October 30, 1987), requires that rules be

reviewed for any substantial direct

effect on States, on the relationship

between the National Government and

the States, or in the distribution of

power and responsibilities among

various levels of Government. If there

are sufficient substantial direct effects,

then the Executive order requires

preparation of a federal assessment to be

used in all decisions involved in

promulgating and implementing a

policy action. Today’s regulatory action

amends DOE’s policies and procedures

on information classification and

declassification. Therefore, the

Department has determined that this

rule will not have a substantial direct

effect on the institutional interests or

traditional functions of States.

E. Review Under Executive Order 12988

Section 3 of Executive Order 12988,

61 FR 4729 (February 7, 1996), instructs

each agency to adhere to certain

requirements in promulgating new

regulations. These requirements, set

forth in Section 3 (a) and (b), include

eliminating drafting errors and needless

ambiguity, drafting the regulations to

minimize litigation, providing clear and

certain legal standards for affected legal

conduct, and promoting simplification

and burden reduction. Agencies are also

instructed to make every reasonable

effort to ensure that the regulation

describes any administrative proceeding

to be available prior to judicial review

and any provisions for the exhaustion of

administrative remedies. The

Department has determined that today’s

regulatory action meets the

requirements of Section 3 (a) and (b) of

Executive Order 12988.

F. Review Under the Unfunded

Mandates Reform Act of 1995

Title II of the Unfunded Mandates

Reform Act of 1995 requires each

Agency to assess the effects of Federal

regulatory action on State, local, and

tribal governments and the private

sector. Today’s regulatory action
Federal Register / Vol. 62, No. 250 /Wednesday, December 31, 1997 /Rules and Regulations 68509

amends DOE’s policies and procedures

on information classification and

declassification. The Department has

determined that today’s regulatory

action does not impose a Federal

mandate on State, local, or tribal

governments, or on the private sector.

G. Review Under the Regulatory

Flexibility Act

The Regulatory Flexibility Act, 5

U.S.C. 601 et seq., directs agencies to

prepare a regulatory flexibility analysis

for each proposed rule or to certify that

the rule will not have a ‘‘significant

economic impact on a substantial

number of small entities.’’ Today’s rule

amends DOE’s policies and procedures

on information classification and

declassification. The rule applies to all

agencies, persons and entities that

generate and maintain RD or FRD

information or documents. The

Department has identified over 50

Federal Government entities that have

access to RD or FRD information or

documents. Each of these Government

entities may, in turn, have contractors or

consultants that have access to RD or

FRD information or documents.

Section 1045.35 imposes on the

Government, in the person of the RD

management official, the responsibility

to ensure that RD classifiers are properly

trained. That section further imposes on

the DOE Director of Declassification the

obligation to develop and review

training materials related to the

implementation of this regulation. The

regulation imposes on non-Government

entities the requirement that persons

with access to RD or FRD be properly

trained. The economic impact of the

training requirement on nonGovernment entities is limited to the

labor hours required to familiarize those

persons with access to RD and FRD with

the training materials provided by DOE

and the RD management official.

Section 1045.40 requires that

Government and non-Government RD

classifiers clearly mark each new

document generated to convey that it

contains RD or FRD information. The

burden of the marking requirement

varies depending on the number of

documents the entity generates. DOE

considers the proper marking of a

classified document to be an act

integrated in the act of creating the

document. As such, the marking of

individual documents containing RD

and FRD imposes minimal costs on the

entity generating new RD documents.

Finally, DOE recognizes that nonGovernment entities that generate

documents containing RD or FRD will

do so pursuant to a Government

contract. In those instances, any costs

incurred in compliance with the

regulation will be charged back to the

Government.

Based on the foregoing, DOE has

determined that the rule will not have

a ‘‘significant economic impact.’’ As

permitted by section 605 of the

Regulatory Flexibility Act, DOE certifies

that this rule will not have a significant

economic impact on a substantial

number of small entities.

H. Review Under Small Business

Regulatory Enforcement Fairness Act of

1996

As required by 5 U.S.C. 801, DOE will

report to Congress on the promulgation

of the rule prior to its effective date. The

report will state that it has been

determined that the rule is not a ‘‘major

rule’’ as defined by 5 U.S.C. 804(3).

V. Freedom of Information Act (FOIA)

Considerations

RD and FRD classified under the

Atomic Energy Act fall within the scope

of exemption 3 of the FOIA (5 U.S.C.

552(b)(3)). Thus RD and FRD are not

subject to disclosure under the FOIA.

Similarly, information that is properly

classified as NSI under E.O. 12958 may

be withheld from disclosure under

exemption 1 of the FOIA.

DOE shall process requests for

documents made under the FOIA in

accordance with applicable DOE

regulations and orders which

implement the FOIA within the

Department. DOE shall process these

requests promptly and shall respond to

the requester in a timely manner. DOE

shall coordinate requests involving FRD

information and RD information which

relates primarily to the military

utilization of nuclear weapons with the

DoD. The Director of Security Affairs

shall decide all appeals of denials of

requests for classified information

covered by sections 141 and 142 of the

Atomic Energy Act and E.O. 12958.

List of Subjects in 10 CFR Part 1045

Classified information,

Declassification, National security

information.

Issued in Washington, DC, on December

22, 1997.

Federico Pen ̃ a,

Secretary of Energy.

For the reasons set forth in the

preamble, 10 CFR Part 1045 is revised

to read as follows:

PART 1045—NUCLEAR

CLASSIFICATION AND

DECLASSIFICATION

Subpart A—Program Management of the

Restricted Data and Formerly Restricted

Data Classification System

Sec.

1045.1 Purpose and scope.

1045.2 Applicability.

1045.3 Definitions.

1045.4 Responsibilities.

1045.5 Sanctions.

1045.6 Openness Advisory Panel.

1045.7 Suggestions or complaints.

1045.8 Procedural exemptions.

1045.9 RD classification performance

evaluation.

Subpart B—Identification of Restricted Data

and Formerly Restricted Data Information

1045.10 Purpose and scope.

1045.11 Applicability.

1045.12 Authorities.

1045.13 Classification prohibitions.

1045.14 Process for classification and

declassification of restricted data and

formerly restricted data information.

1045.15 Classification and declassification

presumptions.

1045.16 Criteria for evaluation of restricted

data and formerly restricted data

information.

1045.17 Classification levels.

1045.18 Newly generated information in a

previously declassified subject area.

1045.19 Accountability for classification

and declassification determinations.

1045.20 Ongoing call for declassification

proposals.

1045.21 Privately generated restricted data.

1045.22 No comment policy.

Subpart C—Generation and Review of

Documents Containing Restricted Data and

Formerly Restricted Data

1045.30 Purpose and scope.

1045.31 Applicability.

1045.32 Authorities.

1045.33 Appointment of restricted data

management official.

1045.34 Designation of restricted data

classifiers.

1045.35 Training requirements.

1045.36 Reviews of agencies with access to

restricted data and formerly restricted

data.

1045.37 Classification guides.

1045.38 Automatic declassification

prohibition.

1045.39 Challenging classification and

declassification determinations.

1045.40 Marking requirements.

1045.41 Use of classified addendums.

1045.42 Mandatory and Freedom of

Information Act reviews for

declassification of restricted data and

formerly restricted data documents.

1045.43 Systematic review for

declassification.

1045.44 Classification review prior to

public release.
68510 Federal Register / Vol. 62, No. 250 /Wednesday, December 31, 1997 /Rules and Regulations

1045.45 Review of unmarked documents

with potential restricted data or formerly

restricted data.

1045.46 Classification by association or

compilation.

Subpart D—Executive Order 12958,

‘‘Classified National Security Information’’

Requirements Affecting the Public

1045.50 Purpose and scope.

1045.51 Applicability.

1045.52 Mandatory declassification review

requests.

1045.53 Appeal of denial of mandatory

declassification review requests.

Authority: 42 U.S.C. 2011; E.O. 12958, 60

FR 19825, 3 CFR, 1995 Comp., p. 333.

Subpart A—Program Management of

the Restricted Data and Formerly

Restricted Data Classification System

§ 1045.1 Purpose and scope.

This subpart establishes

responsibilities associated with this

part, describes the Openness Advisory

Panel, defines key terms, describes

sanctions related to violation of the

policies and procedures in this part, and

describes how to submit suggestions or

complaints concerning the Restricted

Data classification and declassification

program, and how to request procedural

exceptions.

§ 1045.2 Applicability.

This subpart applies to—

(a) Any person with authorized access

to RD or FRD;

(b) Any agency with access to RD or

FRD; and

(c) Any person who might generate

information determined to be RD or

FRD.

§ 1045.3 Definitions.

As used in this part:

Agency means any ‘‘Executive

Agency’’ as defined in 5 U.S.C. 105; any

‘‘Military Department’’ as defined in 5

U.S.C. 102; and any other entity within

the executive branch that comes into

possession of RD or FRD information or

documents.

Atomic Energy Act means the Atomic

Energy Act of 1954, as amended (42

U.S.C. 2011 et seq.). Authorized Holder means a person

with the appropriate security clearance

required to have access to classified

information and the need to know the

information in the performance of

Government-approved activities. Automatic Declassification means the

declassification of information or

documents based solely upon: (1) The occurrence of a specific date

or event as determined by the classifier;

or

(2) The expiration of a maximum time

frame for duration of classification

established under Executive Order

12958.

Classification means the act or

process by which information is

determined to be classified information.

Classification Guide means a written

record of detailed instructions as to

whether specific information is

classified, usually concerning a system,

plan, project, or program. It identifies

information to be classified and

specifies the level (and duration for NSI

only) of classification assigned to such

information. Classification guides are

the primary basis for reviewing

documents to determine whether they

contain classified information.

Classification Level means one of

three designators: (1) Top Secret is applied to

information (RD, FRD, or NSI), the

unauthorized disclosure of which

reasonably could be expected to cause

exceptionally grave damage to the

national security that the appropriate

official is able to identify or describe. (2) Secret is applied to information

(RD, FRD, or NSI), the unauthorized

disclosure of which reasonably could be

expected to cause serious damage to the

national security that the appropriate

official is able to identify or describe. (3) Confidential. (i) For NSI,

Confidential is applied to information,

the unauthorized disclosure of which

reasonably could be expected to cause

damage to the national security that the

appropriate official is able to identify or

describe.

(ii) For RD and FRD, Confidential is

applied to information, the

unauthorized disclosure of which could

reasonably be expected to cause undue

risk to the common defense and security

that the appropriate official is able to

identify or describe. Classified Information means:

(1) Information classified as RD or

FRD under the Atomic Energy Act; or (2) Information determined to require

protection against unauthorized

disclosure under Executive Order (E.O.)

12958 or prior Executive Orders (also

identified as National Security

Information or NSI).

Contractor means any industrial,

educational, commercial or other entity,

grantee or licensee at all tiers, including

an individual, that has executed an

agreement with the Federal Government

for the purpose of performing under a

contract, license or other agreement. Declassification means a

determination by appropriate authority

that information or documents no longer

require protection, as classified

information, against unauthorized

disclosure in the interests of national

security. Department or DOE means

Department of Energy. Director of Declassification means the

Department of Energy Director, Office of

Declassification, or any person to whom

the Director’s duties are delegated. The

Director of Declassification is

subordinate to the Director of Security

Affairs.

Director of Security Affairs means the

Department of Energy Director, Office of

Security Affairs, or any person to whom

the Director’s duties are delegated.

Document means the physical

medium on or in which information is

recorded, or a product or substance

which contains or reveals information,

regardless of its physical form or

characteristics.

Formerly Restricted Data (FRD) means

classified information jointly

determined by DOE and the DoD to be

related primarily to the military

utilization of nuclear weapons and

removed (by transclassification) from

the RD category pursuant to section

142(d) of the Atomic Energy Act.

Government means the executive

branch of the Federal Government of the

United States.

Government Information means

information that is owned by, produced

by or for, or is under the control of the

U.S. Government.

Information means facts, data, or

knowledge itself, as opposed to the

medium in which it is contained.

Interagency Security Classification

Appeals Panel (ISCAP) means a panel

created pursuant to Executive Order

12958 to perform functions specified in

that order with respect to National

Security Information.

National Security means the national

defense or foreign relations of the

United States.

National Security Information (NSI)

means information that has been

determined pursuant to Executive Order

12958 or prior Executive Orders to

require protection against unauthorized

disclosure and is marked to indicate its

classification status when in document

form. NSI is referred to as ‘‘defense

information’’ in the Atomic Energy Act.

Nuclear weapon means atomic

weapon.

Person means:

(1) Any individual, contractor,

corporation, partnership, firm,

association, trust, estate, public or

private institution, group, Government

agency, any State, or any political

subdivision thereof, or any political

entity within a State; and

(2) Any legal successor,

representative, agent, or agency of the

foregoing.

Portion Marking means the

application of certain classification
Federal Register / Vol. 62, No. 250 /Wednesday, December 31, 1997 /Rules and Regulations 68511

markings to individual words, phrases,

sentences, paragraphs, or sections of a

document to indicate their specific

classification level and category.

Restricted Data (RD) means a kind of

classified information that consists of all

data concerning the following, but not

including data declassified or removed

from the RD category pursuant to

section 142 of the Atomic Energy Act:

(1) Design, manufacture, or utilization

of atomic weapons;

(2) Production of special nuclear

material; or

(3) Use of special nuclear material in

the production of energy.

Restricted Data Classifier means an

individual who derivatively classifies

RD or FRD documents. Within the DoD,

RD classifiers may also declassify FRD

documents.

Restricted Data Management Official

means an individual appointed by any

agency with access to RD and FRD who

is responsible for managing the

implementation of this part within that

agency or any person to whom these

duties are delegated. This person may

be the senior agency official required by

E.O. 12958.

Secretary means the Secretary of

Energy.

Source Document means a classified

document, other than a classification

guide, from which information is

extracted for inclusion in another

document. The classification of the

information extracted is determined by

the classification markings shown in the

source document.

Special Nuclear Material means

plutonium, uranium enriched in the

isotope 233 or in the isotope 235, and

any other material which the Secretary

determines to be special nuclear

material pursuant to the Atomic Energy

Act.

§ 1045.4 Responsibilities.

(a) The DOE Director of

Declassification shall:

(1) Manage the Government-wide

system for the classification and

declassification of RD and FRD in

accordance with the Atomic Energy Act;

(2) In coordination with the DoD,

develop regulations to implement the

RD and FRD classification system;

(3) Determine whether nuclear-related

information is RD;

(4) Oversee agency implementation of

the RD and FRD classification system to

ensure compliance with this part;

(5) Review agency implementing

policies and conduct on-site reviews of

each agency’s program established

under this part;

(6) Prepare and distribute

classification guides concerning RD and

FRD and review such guides developed

by any agency;

(7) Consider and take action on

complaints and suggestions from any

person with respect to administration of

this program; and

(8) Periodically meet with interested

members of the public to solicit input

for the classification and

declassification program.

(b) The DOE Director of Security

Affairs shall:

(1) Declassify RD which may be

published without undue risk to the

common defense and security;

(2) Jointly with the DoD, determine

which information in the RD category

relating primarily to the miliary

utilization of nuclear weapons may be

declassified or placed into the FRD

category; and

(3) Jointly with the DoD, declassify

FRD which may be published without

undue risk to the common defense and

security.

(c) The DoD jointly with the DOE

shall:

(1) Determine which information in

the RD category relating primarily to the

military utilization of nuclear weapons

may be declassified or placed into the

FRD category;

(2) Ensure that classification guides

for FRD and RD relating primarily to the

military utilization of nuclear weapons

are prepared; and

(3) Declassify FRD and RD relating

primarily to the military utilization of

nuclear weapons which may be

published without undue risk to the

common defense and security.

(d) The Nuclear Regulatory

Commission (NRC) shall:

(1) Jointly with the DOE, develop

classification guides for programs over

which both agencies have cognizance;

and

(2) Ensure the review and proper

classification of RD by RD classifiers

under this part, which is generated by

the NRC or by its licensed or regulated

facilities and activities.

(e) Heads of Agencies with access to

RD and FRD shall:

(1) Ensure that RD and FRD are

classified in such a manner as to assure

the common defense and security in

accordance with the policies established

in this part;

(2) Designate an RD management

official to direct and administer the RD

classification program within the

agency; and

(3) Promulgate implementing

directives.

(f) Agency RD management officials

shall:

(1) Jointly with the DOE, develop

classification guides for programs over

which both agencies have cognizance;

(2) Ensure that agency and contractor

personnel who generate RD and FRD

documents have access to any

classification guides needed;

(3) Ensure that persons with access to

RD and FRD are trained on the

authorities required to classify and

declassify RD and FRD information and

documents and on handling procedures

and that RD classifiers are trained on the

procedures for classifying, declassifying,

marking and handling RD and FRD

information and documents; and

(4) Cooperate and provide information

as necessary to the DOE Director of

Declassification to fulfill responsibilities

under this part.

§ 1045.5 Sanctions.

(a) Knowing, willful, or negligent

action contrary to the requirements of

this part which results in the

misclassification of information may

result in appropriate sanctions. Such

sanctions may range from

administrative sanctions to civil or

criminal penalties, depending on the

nature and severity of the action as

determined by appropriate authority, in

accordance with applicable laws.

(b) Other violations of the policies

and procedures contained in this part

may be grounds for administrative

sanctions as determined by appropriate

authority.

§ 1045.6 Openness Advisory Panel.

The DOE shall maintain an Openness

Advisory Panel, in accordance with the

Federal Advisory Committee Act, to

provide the Secretary with independent

advice and recommendations on

Departmental openness initiatives,

including classification and

declassification issues that affect the

public.

§ 1045.7 Suggestions or complaints.

(a) Any person who has suggestions or

complaints regarding the Department’s

classification and declassification

policies and procedures may direct

them in writing to the Openness

Coordinator, Department of Energy,

Office of Declassification, 19901

Germantown Road, Germantown,

Maryland 20874–1290.

(b) Such letters should include a

description of the issue or problem, the

suggestion or complaint, all applicable

background information, and an address

for the response.

(c) DOE will make every effort to

respond within 60 days.

(d) Under no circumstances shall

persons be subject to retribution for

making a suggestion or complaint

regarding the Department’s

classification and declassification

policies or programs.
68512 Federal Register / Vol. 62, No. 250 /Wednesday, December 31, 1997 /Rules and Regulations

§ 1045.8 Procedural exemptions.

(a) Exemptions to the procedural

provisions of this part may be granted

by the DOE Director of Declassification.

(b) A request for an exemption shall

be made in writing to the DOE Director

of Declassification and shall provide all

relevant facts, justification, and a

proposed alternate procedure.

§ 1045.9 RD classification performance

evaluation.

(a) Heads of agencies shall ensure that

RD management officials and those RD

classifiers whose duties involve the

classification or declassification of

significant numbers of RD or FRD

documents shall have their personnel

performance evaluated with respect to

classification activities.

(b) Procedures for the evaluation

under paragraph (a) of this section may

be the same as those in place for NSI

related classification activities as

required by Executive Order 12958.

Subpart B—Identification of Restricted

Data and Formerly Restricted Data

Information

§ 1045.10 Purpose and scope.

(a) This subpart implements sections

141 and 142 (42 U.S.C. 2161 and 2162)

of the Atomic Energy Act, which

provide for Government-wide policies

and procedures concerning the

classification and declassification of RD

and FRD information.

(b) This subpart establishes

procedures for classification

prohibitions for RD and FRD, describes

authorities and procedures for

identifying RD and FRD information,

and specifies the policies and criteria

DOE shall use in determining if nuclearrelated information is RD or FRD.

§ 1045.11 Applicability.

This subpart applies to—

(a) Any person with authorized access

to RD or FRD;

(b) Any agency with access to RD or

FRD; and

(c) Any person who might generate

information determined to be RD or

FRD.

§ 1045.12 Authorities.

(a) The DOE Director of

Declassification may determine whether

nuclear-related information is RD.

(b) Except as provided in paragraph

(c) of this section, the DOE Director of

Security Affairs may declassify RD

information.

(c) The DOE Director of Security

Affairs, jointly with the DoD, may

determine which information in the RD

category relating primarily to the

military utilization of nuclear weapons

may be declassified or placed into the

FRD category.

(d) The DOE Director of Security

Affairs jointly with the DoD may

declassify FRD information.

§ 1045.13 Classification prohibitions.

In no case shall information be

classified RD or FRD in order to:

(a) Conceal violations of law,

inefficiency, or administrative error;

(b) Prevent embarrassment to a

person, organization, or Agency;

(c) Restrain competition;

(d) Prevent or delay the release of

information that does not require

protection for national security or

nonproliferation reasons;

(e) Unduly restrict dissemination by

assigning an improper classification

level; or

(f) Prevent or delay the release of

information bearing solely on the

physical environment or public or

worker health and safety.

1045.14 Process for classification and

declassification of restricted data and

formerly restricted data information.

(a) Classification of Restricted Data.

(1) Submission of Potential RD for

Evaluation. Any authorized holder who

believes he or she has information

which may be RD shall submit it to an

RD classifier for evaluation. The RD

classifier shall follow the process

described in this paragraph whenever

he or she is unable to locate guidance

in a classification guide that can be

applied to the information. The RD

classifier shall forward the information

to the DOE Director of Declassification

via their local classification or security

office. The DOE Director of

Declassification shall determine

whether the information is RD within 90

days of receipt by doing the following:

(i) Determine whether the information

is already classified RD under current

classification guidance; or

(ii) If it is not already classified,

determine if the information concerns

the design, manufacture, or utilization

of nuclear weapons; the production of

special nuclear material; or the use of

special nuclear material in the

production of energy; and

(A) Apply the criteria in § 1045.16

and § 1045.17 as the basis for

determining the appropriate

classification; and

(B) Provide notification of the

decision by revising applicable

classification guides, if appropriate.

(2) Protection of Potential RD during

Evaluation. Pending a determination by

the DOE Director of Declassification,

potential RD submitted for evaluation

by authorized holders shall be protected

at a minimum as Confidential Restricted

Data.

(b) Declassification of Restricted Data.

The DOE Director of Security Affairs

shall apply the criteria in § 1045.16

when determining whether RD may be

declassified.

(c) Classification of Formerly

Restricted Data. The DOE Director of

Security Affairs, jointly with the DoD,

shall remove information which relates

primarily to the military utilization of

nuclear weapons from the RD

classification category and classify it as

FRD.

(d) Declassification of Formerly

Restricted Data. The DOE Director of

Security Affairs, jointly with the DoD,

shall apply the criteria in § 1045.16

when determining whether FRD may be

declassified.

§ 1045.15 Classification and

declassification presumptions.

(a) The DOE Directors of

Declassification and Security Affairs

shall consider the presumptions listed

in paragraphs (d) and (e) of this section

before applying the criteria in § 1045.16.

(b) Not all areas of nuclear-related

information are covered by the

presumptions.

(c) In general, existing information

listed in paragraphs (d) and (e) of this

section has the classification status

indicated. Inclusion of specific existing

information in one of the presumption

categories does not mean that new

information in a category is or is not

classified, but only that arguments to

differ from the presumed classification

status of the information should use the

appropriate presumption as a starting

point.

(d) The DOE Directors of

Declassification and Security Affairs

shall presume that information in the

following areas is unclassified unless

application of the criteria in § 1045.16

indicates otherwise:

(1) Basic science: mathematics,

chemistry, theoretical and experimental

physics, engineering, materials science,

biology and medicine;

(2) Magnetic confinement fusion

technology;

(3) Civilian power reactors, including

nuclear fuel cycle information but

excluding technologies for uranium

enrichment;

(4) Source materials (defined as

uranium and thorium and ores

containing them);

(5) Fact of use of safety features (e.g.,

insensitive high explosives, fire

resistant pits) to lower the risks and

reduce the consequences of nuclear

weapon accidents;

(6) Generic weapons effects;
Federal Register / Vol. 62, No. 250 /Wednesday, December 31, 1997 /Rules and Regulations 68513

(7) Physical and chemical properties

of uranium and plutonium, most of their

alloys and compounds, under standard

temperature and pressure conditions;

(8) Nuclear fuel reprocessing

technology and reactor products not

revealing classified production rates or

inventories;

(9) The fact, time, location, and yield

range (e.g., less than 20 kilotons or 20–

150 kilotons) of U.S. nuclear tests;

(10) General descriptions of nuclear

material production processes and

theory of operation;

(11) DOE special nuclear material

aggregate inventories and production

rates not revealing size or details

concerning the nuclear weapons

stockpile;

(12) Types of waste products resulting

from all DOE weapon and material

production operations;

(13) Any information solely relating to

the public and worker health and safety

or to environmental quality; and

(14) The simple association or simple

presence of any material (i.e., element,

compound, isotope, alloy, etc.) at a

specified DOE site.

(e) The DOE Directors of

Declassification and Security Affairs

shall presume that information in the

following areas is classified unless the

application of the criteria in § 1045.16

indicates otherwise:

(1) Detailed designs, specifications,

and functional descriptions of nuclear

explosives, whether in the active

stockpile or retired;

(2) Material properties under

conditions achieved in nuclear

explosions that are principally useful

only for design and analysis of nuclear

weapons;

(3) Vulnerabilities of U.S. nuclear

weapons to sabotage, countermeasures,

or unauthorized use;

(4) Nuclear weapons logistics and

operational performance information

(e.g., specific weapon deployments,

yields, capabilities), related to military

utilization of those weapons required by

the DoD;

(5) Details of the critical steps or

components in nuclear material

production processes; and

(6) Features of military nuclear

reactors, especially naval nuclear

propulsion reactors, that are not

common to or required for civilian

power reactors.

§ 1045.16 Criteria for evaluation of

restricted data and formerly restricted data

information.

(a) The DOE Director of

Declassification shall classify

information as RD and the DOE Director

of Security Affairs shall maintain the

classification of RD (and FRD in

coordination with the DoD) only if

undue risk of damage to the common

defense and security from its

unauthorized disclosure can be

identified and described.

(b) The DOE Director of

Declassification shall not classify

information and the DOE Director of

Security Affairs shall declassify

information if there is significant doubt

about the need to classify the

information.

(c) The DOE Directors of

Declassification and Security Affairs

shall consider the presumptions in

§ 1045.15 (d) and (e) before applying the

criteria in paragraph (d) of this section.

(d) In determining whether

information should be classified or

declassified, the DOE Directors of

Declassification and Security Affairs

shall consider the following:

(1) Whether the information is so

widely known or readily apparent to

knowledgeable observers that its

classification would cast doubt on the

credibility of the classification system;

(2) Whether publication of the

information would assist in the

development of countermeasures or

otherwise jeopardize any U.S. weapon

or weapon system;

(3) Whether the information would

hinder U.S. nonproliferation efforts by

significantly assisting potential

adversaries to develop or improve a

nuclear weapon capability, produce

nuclear weapons materials, or make

other military use of nuclear energy;

(4) Whether publication of the

information would have a detrimental

effect on U.S. foreign relations;

(5) Whether publication of the

information would benefit the public

welfare, taking into account the

importance of the information to public

discussion and education and potential

contribution to economic growth; and,

6) Whether publication of the

information would benefit the operation

of any Government program by reducing

operating costs or improving public

acceptance.

1045.17 Classification levels.

(a) Restricted Data. The DOE Director

of Declassification shall assign one of

the following classification levels to RD

information to reflect the sensitivity of

the information to the national security.

The greater the damage expected from

unauthorized disclosure, the higher the

classification level assigned to the

information.

(1) Top Secret. The DOE Director of

Declassification shall classify RD

information Top Secret if it is vital to

the national security and if its

unauthorized disclosure could

reasonably be expected to cause

exceptionally grave damage to the

national security. Examples of RD

information that warrant Top Secret

classification include detailed technical

descriptions of critical features of a

nuclear explosive design that would

enable a proliferant or nuclear power to

build or substantially improve a nuclear

weapon, information that would make

possible the unauthorized use of a U.S.

nuclear weapon, or information

revealing catastrophic failure or

operational vulnerability in a U.S.

nuclear weapon.

(2) Secret. The DOE Director of

Declassification shall classify RD

information as Secret if its unauthorized

disclosure could reasonably be expected

to cause serious damage to the national

security, but the RD information is not

sufficiently comprehensive to warrant

designation as Top Secret. Examples of

RD information that warrant Secret

classification include designs for

specific weapon components (not

revealing critical features), key features

of uranium enrichment technologies, or

specifications of weapon materials.

(3) Confidential. The DOE Director of

Declassification shall classify RD

information as Confidential if it is

deemed to be of significant use to a

potential adversary or nuclear

proliferant and its unauthorized

disclosure could reasonably be expected

to cause undue risk to the common

defense and security. Examples of RD

information that warrant Confidential

classification are the amount of high

explosives used in nuclear weapons,

gaseous diffusion design information,

and design information for Naval

reactors.

(b) Formerly Restricted Data. The DOE

Director of Declassification, jointly with

the DoD, shall assign one of the

classification levels in paragraph (a) of

this section to FRD information to

reflect its sensitivity to the national

security.

§ 1045.18 Newly generated information in

a previously declassified subject area.

(a) The DOE Director of

Declassification may evaluate newly

generated specific information in a

previously declassified subject area

using the criteria in section 1045.16 and

classify it as RD, if warranted.

(b) The DOE Director of

Declassification shall not classify the

information in such cases if it is widely

disseminated in the public domain.
68514 Federal Register / Vol. 62, No. 250 /Wednesday, December 31, 1997 /Rules and Regulations

§ 1045.19 Accountability for classification

and declassification determinations.

(a) Whenever a classification or

declassification determination

concerning RD or FRD information is

made, the DOE Directors of

Declassification and Security Affairs

shall be able to justify the

determination. For FRD and RD

primarily related to military utilization,

the DOE Directors of Declassification

and Security Affairs shall coordinate the

determination and justification with the

DoD. If the determination involves a

departure from the presumptions in

§ 1045.15, the justification shall include

a rationale for the departure. Often the

justification itself will contain RD or

FRD information. In such a case, the

DOE Directors of Declassification and

Security Affairs shall ensure that a

separate justification can be prepared

which is publicly releasable. The

publicly releasable justification shall be

made available to any interested person

upon request to the DOE Director of

Declassification.

(b) The DOE Director of

Declassification shall prepare a report

on an annual basis on the

implementation of this part. This report

shall be available to any interested

person upon request to the DOE Director

of Declassification. Requests may be

submitted to the Department of Energy,

Director of Declassification, 19901

Germantown Road, Germantown,

Maryland 20874–1290.

§ 1045.20 Ongoing call for declassification

proposals.

The DOE Director of Security Affairs

shall consider proposals from the public

or agencies or contractors for

declassification of RD and FRD

information on an ongoing basis.

Declassification proposals for RD and

FRD information shall be forwarded to

the Department of Energy, Director of

Security Affairs, 1000 Independence

Avenue SW, Washington, DC 20585.

Any proposed action shall include a

description of the information

concerned and may include a reason for

the request. DOE and DoD shall

coordinate with one another concerning

declassification proposals for FRD

information.

§ 1045.21 Privately generated restricted

data.

(a) DOE may classify RD which is

privately generated by persons not

pursuant to Government contracts, in

accordance with the Atomic Energy Act.

(b) In order for information privately

generated by persons to be classified as

RD, the Secretary or Deputy Secretary

shall make the determination personally

and in writing. This authority shall not

be delegated.

(c) DOE shall publish a Federal

Register notice when privately

generated information is classified as

RD, and shall ensure that the content of

the notice is consistent with protecting

the national security and the interests of

the private party.

§ 1045.22 No comment policy.

(a) Authorized holders of RD and FRD

shall not confirm or expand upon the

classification status or technical

accuracy of classified information in the

public domain.

(b) Unauthorized disclosure of

classified information does not

automatically result in the

declassification of that information.

(c) If the disclosure of classified

information is sufficiently authoritative

or credible, the DOE Director of Security

Affairs shall examine the possibility of

declassification.

Subpart C—Generation and Review of

Documents Containing Restricted Data

and Formerly Restricted Data

§ 1045.30 Purpose and scope.

This subpart specifies Governmentwide classification program

implementation requirements for

agencies with access to RD and FRD,

describes authorities and procedures for

RD and FRD document classification

and declassification, provides for

periodic or systematic review of RD and

FRD documents, and describes

procedures for the mandatory review of

RD and FRD documents. This subpart

applies to all RD and FRD documents,

regardless of whether they also contain

National Security Information (NSI), or

other controlled information such as

‘‘For Official Use Only’’ information or

‘‘Unclassified Controlled Nuclear

Information.’’

§ 1045.31 Applicability.

This subpart applies to—

(a) Any person with authorized access

to RD or FRD;

(b) Any agency with access to RD or

FRD; and

(c) Any person generating a document

containing RD or FRD.

§ 1045.32 Authorities.

(a) Classification of RD and FRD

documents. (1) To the maximum extent

practical, all RD and FRD documents

shall be classified based on joint DOEAgency classification guides or Agency

guides coordinated with the DOE. When

it is not practical to use classification

guides, source documents may be used

as an alternative.

(2) Only individuals designated as RD

classifiers may classify RD and FRD

documents, except within the DoD.

Within the DoD, any individual with

access to RD and FRD who has been

trained may classify RD and FRD

documents.

(3) RD classifiers shall classify only

documents in subject areas in which

they have programmatic expertise.

(4) RD classifiers may upgrade or

downgrade the classification level of RD

or FRD documents in accordance with

joint DOE-Agency classification guides

or Agency guides coordinated with the

DOE. When it is not practical to use

classification guides, source documents

may be used as an alternative.

(b) Declassification of RD and FRD

documents. (1) Only designated

individuals in the DOE may declassify

documents containing RD.

(2) Except as provided in paragraph

(b)(3) of this section, only designated

individuals in the DOE or appropriate

individuals in DoD may declassify

documents marked as FRD in

accordance with joint DoD-DOE

classification guides or DoD guides

coordinated with the DOE.

(3) The DOE and DoD may delegate

these authorities to other agencies and

to contractors. Contractors without the

delegated authority shall send any

document marked as RD or FRD that

needs to be considered for

declassification to the appropriate

agency office.

§ 1045.33 Appointment of restricted data

management official.

(a) Each agency with access to RD or

FRD shall appoint an official to be

responsible for the implementation of

this part and shall advise the DOE

Director of Declassification of such

appointment.

(b) This official shall ensure the

proper implementation of this part

within his or her agency and shall serve

as the primary point of contact for

coordination with the DOE Director of

Declassification on RD and FRD

classification and declassification

issues.

(c) Within the DoD, an RD

management official shall be appointed

in each DoD agency.

§ 1045.34 Designation of restricted data

classifiers.

(a) Except within the DoD, RD

management officials shall ensure that

persons who derivatively classify RD or

FRD documents are designated by

position or by name as RD classifiers.

(b) All contractor organizations with

access to RD and FRD, including DoD

contractors, shall designate RD

classifiers.
Federal Register / Vol. 62, No. 250 /Wednesday, December 31, 1997 /Rules and Regulations 68515

§ 1045.35 Training requirements.

(a) RD management officials shall

ensure that persons with access to RD

and FRD information are trained on the

authorities required to classify and

declassify RD and FRD information and

documents and on handling procedures.

RD management officials shall ensure

that RD classifiers are trained on the

procedures for classifying, declassifying,

marking and handling RD and FRD

information and documents.

(b) The DOE Director of

Declassification shall develop training

materials related to implementation of

this part and shall provide these

materials to RD management officials

and any other appropriate persons.

(c) The DOE Director of

Declassification shall review any RDrelated training material submitted by

agency and contractor representatives to

ensure consistency with current policy.

§ 1045.36 Reviews of agencies with access

to restricted data and formerly restricted

data.

(a) The DOE and each agency with

access to RD and FRD shall consult

periodically to assure appropriate

implementation of this part. Such

consultations may result in DOE

conducting an on-site review within the

agency if DOE and the RD management

official determine that such a review

would be mutually beneficial or that it

is necessary to remedy a problem.

(b) To address issues concerning

implementation of this part, the DOE

Director of Declassification shall

establish a standing group of all RD

management officials to meet

periodically.

§ 1045.37 Classification guides.

(a) The classification and

declassification determinations made by

the DOE Directors of Declassification

and Security Affairs under the

classification criteria in § 1045.16 shall

be promulgated in classification guides.

(b) DOE shall jointly develop

classification guides with the DoD, NRC,

NASA, and other agencies as required

for programs for which DOE and these

agencies share responsibility.

(c) Agencies shall coordinate with the

DOE Director of Declassification

whenever they develop or revise

classification guides with RD or FRD

information topics.

(d) Originators of classification guides

with RD or FRD topics shall review such

guides at least every five years and make

revisions as necessary.

(e) RD classifiers shall use

classification guides as the primary

basis for classifying and declassifying

documents containing RD and FRD.

(f) Each RD management official shall

ensure that all RD classifiers have access

to all pertinent nuclear classification

guides.

§ 1045.38 Automatic declassification

prohibition.

(a) Documents containing RD and

FRD remain classified until a positive

action by an authorized person is taken

to declassify them.

(b) In accordance with the Atomic

Energy Act, no date or event for

automatic declassification ever applies

to RD and FRD documents, even if such

documents also contain NSI.

(c) E.O. 12958 acknowledges that RD

and FRD are exempt from all provisions

of the E.O., including automatic

declassification.

§ 1045.39 Challenging classification and

declassification determinations.

(a) Any authorized holder of an RD or

FRD document who, in good faith,

believes that the RD or FRD document

has an improper classification status is

encouraged and expected to challenge

the classification with the RD Classifier

who classified the document.

(b) Agencies shall establish

procedures under which authorized

holders of RD and FRD documents are

encouraged and expected to challenge

any classification status they believe is

improper. These procedures shall assure

that:

(1) Under no circumstances are

persons subject to retribution for

bringing forth a classification challenge.

(2) The individual who initially

receives the challenge provides a

response within 90 days to the person

bringing forth the challenge.

(3) A decision concerning a challenge

involving RD or FRD may be appealed

to the DOE Director of Declassification.

In the case of FRD and RD related

primarily to the military utilization of

nuclear weapons, the DOE Director of

Declassification shall coordinate with

the DoD. If the justification for

classification does not satisfy the person

making the challenge, a further appeal

may be made to the DOE Director of

Security Affairs.

(c) Classification challenges

concerning documents containing RD

and FRD information are not subject to

review by the Interagency Security

Classification Appeals Panel, unless

those documents also contain NSI

which is the basis for the challenge. In

such cases, the RD and FRD portions of

the document shall be deleted and then

the NSI and unclassified portions shall

be provided to the Interagency Security

Classification Appeals Panel for review.

§ 1045.40 Marking requirements.

(a) RD classifiers shall ensure that

each RD and FRD document is clearly

marked to convey to the holder that it

contains RD or FRD information, the

level of classification assigned, and the

additional markings in paragraphs (b)(3)

and (4) of this section.

(b) Front Marking. In addition to the

overall classification level of the

document, the following notices shall

appear on the front of the document, as

appropriate:

(1) If the document contains RD:

RESTRICTED DATA

This document contains RESTRICTED

DATA as defined in the Atomic Energy

Act of 1954. Unauthorized disclosure

subject to administrative and criminal

sanctions.

(2) If the document contains FRD but

does not contain RD:

FORMERLY RESTRICTED DATA

Unauthorized disclosure subject to

administrative and criminal sanctions.

Handle as RESTRICTED DATA in

foreign dissemination. Section 144b,

Atomic Energy Act of 1954.

(3) An RD or FRD document shall be

marked to identify the classification

guide or source document, by title and

date, used to classify the document:

Derived from:

lllllllllllllllllllll

(Classification Guide or source document—

title and date)

(4) An RD or FRD document shall be

marked with the identity of the RD

classifier, unless the classifier is the

same as the document originator or

signer.

RD Classifier:

lllllllllllllllllllll

(Name and position or title)

(c) Interior Page. RD classifiers shall

ensure that RD and FRD documents are

clearly marked at the top and bottom of

each interior page with the overall

classification level and category of the

document or the classification level and

category of the page, whichever is

preferred. The abbreviations ‘‘RD’’ and

‘‘FRD’’ may be used in conjunction with

the document classification (e.g.,

SECRET RD or SECRET FRD).

(d) Declassification Marking.

Declassified RD and FRD documents

shall be marked with the identity of the

individual authorizing the

declassification, the declassification

date and the classification guide which

served as the basis for the

declassification. Individuals authorizing

the declassification shall ensure that the

following marking is affixed on RD and

FRD documents which they declassify:

Declassified on:
68516 Federal Register / Vol. 62, No. 250 /Wednesday, December 31, 1997 /Rules and Regulations

lllllllllllllllllllll

(Date)

Authorizing Individual:

lllllllllllllllllllll

(Name and position or title)

Authority:

lllllllllllllllllllll

(Classification Guide—title and date)

§ 1045.41 Use of classified addendums.

(a) In order to maximize the amount

of information available to the public

and to simplify document handling

procedures, document originators

should segregate RD or FRD into an

addendum whenever practical. When

RD or FRD is segregated into an

addendum, the originator shall

acknowledge the existence of the

classified addendum unless such an

acknowledgment would reveal

classified information.

(b) When segregation of RD or FRD

into an addendum is not practical,

document originators are encouraged to

prepare separate unclassified versions of

documents with significant public

interest.

(c) When documents contain

environmental, safety or health

information and a separate unclassified

version cannot be prepared, document

originators are encouraged to provide a

publicly releasable rationale for the

classification of the documents.

§ 1045.42 Mandatory and Freedom of

Information Act reviews for declassification

of restricted data and formerly restricted

data documents.

(a) General. (1) Agencies with

documents containing RD and FRD shall

respond to mandatory review and

Freedom of Information Act (FOIA)

requests for these documents from the

public.

(2) In response to a mandatory review

or Freedom of Information Act request,

DOE or DoD may refuse to confirm or

deny the existence or nonexistence of

the requested information whenever the

fact of its existence or nonexistence is

itself classified as RD or FRD.

(b) Processing Requests. (1) Agencies

shall forward documents containing RD

to DOE for review.

(2) Agencies shall forward documents

containing FRD to the DOE or to the

DoD for review, depending on which is

the originating agency.

(3) The DOE and DoD shall coordinate

the review of RD and FRD documents as

appropriate.

(4) The review and appeal process is

that described in subpart D of this part

except for the appeal authority. DOE

and DoD shall not forward RD and FRD

documents to the the Interagency

Security Classification Appeals Panel

(ISCAP) for appeal review unless those

documents also contain NSI. In such

cases, the DOE or DoD shall delete the

RD and FRD portions prior to

forwarding the NSI and unclassified

portions to the ISCAP for review.

(5) Information Declassification

Actions resulting from appeal reviews.

(i) Appeal reviews of RD or FRD

documents shall be based on existing

classification guidance. However, the

DOE Director of Declassification shall

review the RD and FRD information in

the appealed document to determine if

it may be a candidate for possible

declassification.

(ii) If declassification of the

information appears appropriate, the

DOE Director of Declassification shall

initiate a formal declassification action

and so advise the requester.

(c) Denying Official. (1) The denying

official for documents containing RD is

the DOE Director of Declassification.

(2) The denying official for documents

containing FRD is either the DOE

Director of Declassification or an

appropriate DoD official.

(d) Appeal Authority. (1) The appeal

authority for RD documents is the DOE

Director of Security Affairs.

(2) The appeal authority for FRD

documents is either the DOE Director of

Security Affairs, or an appropriate DoD

official.

(e) The denying official and appeal

authority for Naval Nuclear Propulsion

Information is the Director, Office of

Naval Reactors.

(f) RD and FRD information contained

in documents shall be withheld from

public disclosure under exemption 3 of

the FOIA (5 U.S.C. 522 (b)(3)) because

such information is exempt under the

statutory jurisdiction of the Atomic

Energy Act.

§ 1045.43 Systematic review for

declassification.

(a) The Secretary shall ensure that RD

documents, and the DoD shall ensure

that FRD documents, are periodically

and systematically reviewed for

declassification. The focus of the review

shall be based on the degree of public

and researcher interest and likelihood of

declassification upon review.

(b) Agencies with RD or FRD

document holdings shall cooperate with

the DOE Director of Declassification

(and with the DoD for FRD) to ensure

the systematic review of RD and FRD

documents.

(c) Review of documents in particular

areas of public interest shall be

considered if sufficient interest is

demonstrated. Proposals for systematic

document reviews of given collections

or subject areas should be addressed to

the Director of Declassification,

Department of Energy, 19901

Germantown Road, Germantown, MD

20874–1290.

§ 1045.44 Classification review prior to

public release.

Any person with authorized access to

RD or FRD who generates a document

intended for public release in an RD or

FRD subject area shall ensure that it is

reviewed for classification by the

appropriate DOE organization (for RD)

or the appropriate DOE or DoD

organization (for FRD) prior to its

release.

§ 1045.45 Review of unmarked documents

with potential restricted data or formerly

restricted data.

(a) Individuals reviewing NSI records

of permanent historical value under the

automatic or systematic review

provisions of E.O. 12958 may come

upon documents that they suspect may

contain RD or FRD, but which are not

so marked. Such documents are not

subject to automatic declassification.

(b) Such documents shall be reviewed

by an RD Classifier as soon as possible

to determine their classification status.

Assistance may be requested from the

DOE Director of Declassification.

§ 1045.46 Classification by association or

compilation.

(a) If two pieces of unclassified

information reveal classified

information when associated, then RD

classifiers may classify the document.

(b) RD classifiers may classify a

document because a number of pieces of

unclassified information considered

together contain some added value such

as completeness or comprehensiveness

of the information which warrants

classification.

Subpart D—Executive Order 12958

‘‘Classified National Security

Information’’ Requirements Affecting

the Public

§ 1045.50 Purpose and scope.

This subpart describes the procedures

to be used by the public in questioning

or appealing DOE decisions regarding

the classification of NSI under E.O.

12958 and 32 CFR part 2001.

§ 1045.51 Applicability.

This subpart applies to any person

with authorized access to DOE NSI or

who desires access to DOE documents

containing NSI.

§ 1045.52 Mandatory declassification

review requests.

All DOE information classified as NSI

is subject to review for declassification

by the DOE if:
Federal Register / Vol. 62, No. 250 /Wednesday, December 31, 1997 /Rules and Regulations 68517

(a) The request for a review describes

the document containing the

information with sufficient specificity to

enable the agency to locate it with a

reasonable amount of effort;

(b) The information is not exempted

from search and review under the

Central Intelligence Agency Information

Act;

(c) The information has not been

reviewed for declassification within the

past 2 years; and

(d) The request is sent to the

Department of Energy, Director of

Declassification, 19901 Germantown

Road, Germantown, Maryland 20874–

1290.

§ 1045.53 Appeal of denial of mandatory

declassification review requests.

(a) If the Department has reviewed the

information within the past 2 years, the

request may not be processed. If the

information is the subject of pending

litigation, the processing of the request

may be delayed pending completion of

the litigation. The Department shall

inform the requester of this fact and of

the requester’s appeal rights.

(b) When the Director of

Declassification has denied a request for

review of NSI, the requester may, within

30 calendar days of its receipt, appeal

the determination to the Director of

Security Affairs.

(c) Elements of appeal. The appeal

shall be in writing and addressed to the

Director of Security Affairs, Department

of Energy, 1000 Independence Avenue

SW, Washington, DC 20585. The appeal

shall contain a concise statement of

grounds upon which it is brought and

a description of the relief sought. It

should also include a discussion of all

relevant authorities which include, but

are not limited to DOE (and predecessor

agencies) rulings, regulations,

interpretations, and decisions on

appeals, and any judicial

determinations being relied upon to

support the appeal. A copy of the letter

containing the determination being

appealed shall be submitted with the

appeal.

(d) Receipt of appeal. An appeal shall

be considered to be received upon

receipt by the DOE Director of Security

Affairs.

(e) Action within 60 working days.

The appeal authority shall act upon the

appeal within 60 working days of its

receipt. If no determination on the

appeal has been issued at the end of the

60-day period, the requester may

consider his or her administrative

remedies to be exhausted and may seek

a review by the Interagency Security

Classification Appeals Panel (ISCAP).

When no determination can be issued

within the applicable time limit, the

appeal shall nevertheless continue to be

processed. On expiration of the time

limit, DOE shall inform the requester of

the reason for the delay, of the date on

which a determination may be expected

to be issued, and of his or her right to

seek further review by the ISCAP.

Nothing in this subpart shall preclude

the appeal authority and the requester

from agreeing to an extension of time for

the decision on an appeal. The DOE

Director of Security Affairs shall

confirm any such agreement in writing

and shall clearly specify the total time

agreed upon for the appeal decision.

(f) Form of action on appeal. The DOE

Director of Security Affairs’ action on an

appeal shall be in writing and shall set

forth the reason for the decision. The

Department may refuse to confirm or

deny the existence or nonexistence of

requested information whenever the fact

of its existence or nonexistence is itself

classified under E.O. 12958.

(g) Right of final appeal. The

requester has the right to appeal a final

Department decision or a failure to

provide a determination on an appeal

within the allotted time to the ISCAP for

those appeals dealing with NSI. In cases

where NSI documents also contain RD

and FRD, the RD and FRD portions of

the document shall be deleted prior to

forwarding the NSI and unclassified

portions to the ISCAP for review.

[FR Doc. 97–33949 Filed 12–30–97; 8:45 am]

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