2252 Federal Register / Vol. 62, No. 10 / Wednesday, January 15, 1997 / Proposed Rules

DEPARTMENT OF ENERGY

Office of the Secretary

10 CFR Part 1045

RIN 1901–AA21

Information Classification

AGENCY: Department of Energy.

ACTION: Notice of proposed rulemaking.

SUMMARY: The Department of Energy

(DOE or Department) proposes to revise

its regulations concerning its 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 (NSI) 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 NSI and appeal DOE classification

decisions regarding such requests.

DATES: Comments on the proposed rule

(3 copies) must be submitted on or

before March 17, 1997. A public hearing

will be held on February 26, 1997.

Written requests to speak at the hearing

must be received at the address below

by February 12, 1997.

ADDRESSES: Send written comments and

requests to speak at the hearing to Janet

O’Connell, Department of Energy, Office

of Declassification, 19901 Germantown

Road, Germantown, Maryland 20874–

1290. (Docket No. RM–96–1045). The

hearing will be held at 9:00 a.m. at the

Department of Energy, Forrestal

Building, Main Auditorium, 1000

Independence Ave, S.W., Washington,

D.C.

FOR FURTHER INFORMATION CONTACT:

Janet O’Connell, Department of Energy,

Office of Declassification, 19901

Germantown Road, Germantown,

Maryland 20874–1290, (301) 903–1113,

or Joseph S. Mahaley, Department of

Energy, Office of the Assistant General

Counsel for National Security,

Washington, DC 20585, (202) 586–0806.

SUPPLEMENTARY INFORMATION:

I. Background

II. Section by Section Analysis

III. 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

IV. Freedom of Information Act

Considerations

V. Invitation for Public Comment

VI. Interagency Coordination

I. Background

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 Restricted

Data (RD). The DOE has joint

responsibility with the Department of

Defense (DOD) for the classification and

declassification of certain nuclearrelated information which relates

primarily to the military utilization of

nuclear weapons. Military utilization

information which can be protected as

National Security Information (NSI) is

classified as Formerly Restricted Data

(FRD). 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 significant

recommendations from the public and

other agencies of the Federal

Government (hereafter referred to as

‘‘agencies’’); the Department has

embraced the goal of ‘‘open policies

openly arrived at.’’ The resulting

proposed 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 Executive Order

(E.O.) 12958, ‘‘Classified National

Security Information,’’ requires that

agencies that originate or handle

classified information promulgate

implementing regulations to be

published in the Federal Register to the

extent that they affect members of the

public. Subpart D of these proposed

regulations 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.

This proposed regulation establishes

overall classification and

declassification policies and procedures

and serves as the bridge between the

Atomic Energy Act and E.O. 12958, the

procedures contained in DOE and

agency orders and directives, and the

technical guidance in classification

guides.

II. Section by Section Analysis

This proposed 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. Copies of these studies

are available from the contact person in

the ADDRESSES section of this notice.

DOE has completed a Fundamental

Classification Policy Review Study

which is currently undergoing

interagency coordination. Its major

purpose is to determine what

information must still be protected in

light of the end of the Cold War and to

recommend declassification of all other

information. The Department will

consider appropriate recommendations

from this latest study and seek

additional comments if necessary prior

to issuance of the regulation in final

form.

Subpart A deals with management of

the RD classification program.

Responsibilities are specified for the

DOE Director of Declassification for the

management of the Government-wide

system for the classification and

declassification of RD and FRD; for DOD

concerning FRD; for agency heads with

access to RD and FRD; and for agency

RD management officials to oversee the

implementation of the program within

their agency. The Nuclear Regulatory

Commission (NRC) has responsibility

for assuring the review and proper

classification of RD under this

regulation, generated in NRC and in its

licensed or regulated facilities and

activities. NRC and the DOE jointly

develop classification guides for

programs over which both agencies have

cognizance.
Federal Register / Vol. 62, No. 10 / Wednesday, January 15, 1997 / Proposed Rules 2253

Definitions of all terms used in any

Subpart are provided in proposed

§ 1045.3. Where appropriate, these

definitions follow precisely legal or

statutory language, as in the definition

of Restricted Data taken from the

Atomic Energy Act (AEA). The AEA and

E.O. 12958 differ in the wording used

for assessing the consequences of

unauthorized disclosure of information

at the lowest classification level.

Therefore, ‘‘Confidential’’ is applied to

NSI if disclosure is expected to cause

‘‘damage to the national security’’; to RD

and FRD if the expectation is ‘‘undue

risk to the common defense and

security.’’

In the proposed regulation,

‘‘information’’ is defined as ‘‘facts, data,

or knowledge itself.’’ ‘‘Document’’ is

defined as ‘‘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.’’ The

distinction between ‘‘information’’ and

‘‘documents’’ is important in

understanding DOE classification and

declassification policies and

procedures. Only a few senior

Government officials have the authority

to make decisions concerning the

classification and declassification of

information and set policy. Conversely,

hundreds or even thousands of

Government and contractor employees

have the authority to make decisions

concerning the classification and

declassification of documents and

follow such policy

The Director, Office of

Declassification (hereafter DOE Director

of Declassification), is subordinate to

the Director, Office of Security Affairs

(hereafter DOE Director of Security

Affairs). The DOE Director of

Declassification reviews new

information, potentially falling within

the definition of RD to determine if the

information should be classified as RD.

However, due to the especially sensitive

nature of RD information, the authority

to declassify RD information is vested in

the DOE Director of Security Affairs.

The decisions concerning the

classification and declassification of RD

made by these Directors are explained

in classification guides, which contain

detailed instructions as to whether

information is classified. These guides

are the primary basis for the review of

documents to determine whether they

contain RD information.

A large number of individuals within

the DOE, other agencies, and their

contractors may determine whether a

document contains RD and, therefore,

should be classified or unclassified.

This centralized policy-setting,

decentralized policy-following approach

ensures consistency and efficiency.

However, it means that the full benefit

of the Department’s Openness Initiative

can only be realized if the policy

decisions concerning the classification

and declassification of RD information

made by the DOE Directors of

Declassification and Security Affairs are

applied by one of the many document

reviewers to previously classified

documents so that they are declassified

and made available to the public.

FRD information and documents are

generally handled in the same manner

as RD except that DOD and DOE have

joint authority over the classification

and declassification of FRD information

and some RD information which has not

been transclassified to FRD but which

relates primarily to the military

utilization of nuclear weapons. The

DOD and the DOE jointly develop

classification guides for programs over

which both agencies have cognizance.

Proposed § 1045.5 provides for

sanctions and alerts employees to the

administrative penalties that can result

from violation of policies and

procedures prescribed in this regulation.

Proposed § 1045.6 states that DOE

will maintain an Openness Advisory

Panel to advise the Secretary regarding

the current status and strategic direction

for the Department’s classification and

declassification policies and programs

as well as other aspects of the

Department’s ongoing Openness

Initiative. Several studies of DOE

classification policy and

recommendations from public

stakeholders led DOE to creation of this

panel. It is anticipated that this panel

will not only provide evaluation and

advice on DOE classification policies,

but will also serve as an independent

authority to confirm for the public the

validity of classification decisions in

which the full rationale cannot be

disclosed for reasons of national

security. This panel is currently

constituted under the Secretary of

Energy’s Advisory Board (SEAB), in

accordance with the Federal Advisory

Committee Act, and composed of

thirteen recognized experts in a broad

spectrum of disciplines.

Subpart B applies to the small number

of DOE and DOD officials who hold the

authority to make decisions on the

classification of information as RD or

FRD. This authority is somewhat

analogous to original classification

authority for NSI. DOE has decided to

publish these procedures and the

criteria used in making classification

determinations in order to formally

implement the Department’s openness

policies and to assure the public that the

RD/FRD classification process serves the

public interest as well as national

security interests, and will continue to

do so in the future.

Section 1045.13 proposes several

classification prohibitions and specifies

that the classification of RD and FRD

shall not be used to prevent or delay the

release of information bearing solely on

the physical environment or public or

worker health and safety. This

prohibition is included to fulfill DOE’s

commitment to the public release of

environmental, safety and health

information, including information on

human radiation experiments.

The definition of RD contained in the

AEA has been interpreted to mean that

all information falling within the RD

definition is automatically classified or

‘‘born classified.’’ When the AEA was

written, this was effectively true and

most of this type of information was

classified. Now, this all-encompassing

definition for RD has been reduced by

nearly fifty years of declassification

actions to a core of information.

Information which remains classified as

RD relates primarily to nuclear weapons

design, or the use or acquisition of

nuclear weapons or nuclear material,

with nuclear science and much nuclear

technology excluded because it is no

longer classified. Only five areas of

nuclear technology still contain

information classified as RD or FRD.

Each of these broad areas contains

specific information that is still

classified and other information that has

been declassified. Identifying whether

specific information is classified in

these areas requires technical expertise

and reference to a classification guide.

These five areas are: (1) Nuclear

weapon design and utilization (includes

selected information revealing theory,

design principles and details, yields,

inventories, mode of operation, methods

for command and control, destruction,

and vulnerabilities to sabotage or

countermeasures); (2) nuclear material

and nuclear weapon production

(includes selected information revealing

special techniques for manufacture); (3)

inertial confinement fusion (includes

selected target design and operational

information judged to be particularly

revealing of nuclear weapons

technology); (4) military nuclear

reactors (includes selected design,

development, test, and operational

information concerning reactor power

systems for military purposes,

especially for naval nuclear propulsion,

and selected information concerning

capabilities and vulnerabilities); and (5)

isotope separation (includes key process

and design information for practical
2254 Federal Register / Vol. 62, No. 10 / Wednesday, January 15, 1997 / Proposed Rules

techniques for enrichment of uranium

and certain other elements of military

significance).

The nuclear field is now quite mature;

any new information is likely to be

either further detail in an area for which

classification guidance is already well

established, or characteristics of a new

weapon design operating outside the

envelope of its predecessors. In the

latter case, the classification of such

information is not automatically

prescribed, but is determined by

authorized officials by application of

specific criteria. This procedure deemphasizes, but does not abolish, the

‘‘born classified’’ concept. In order to

abolish the concept, an amendment to

the AEA would be required.

It is DOE policy to make information

publicly available to the maximum

extent possible while considering

nonproliferation and national security

implications. Section 1045.16 specifies

the Department’s criteria for evaluation

of RD and FRD information. These

criteria have been applied internally for

several years. DOE shall classify

information only if a risk of damage to

the national security from unauthorized

disclosure can be identified and

described (for NSI), or if there is undue

risk to the common defense and security

which can be identified and described

(for RD and FRD). If information does

not warrant classification under the

criteria, it should be declassified and

released to the public unless otherwise

restricted by law, treaty or international

agreement. These criteria collectively

form the harm-based system for the

classification and declassification of RD

and FRD. The proper application of

these criteria results in a qualitative

analysis of the relative benefits of

classification and declassification.

As an aid to application of these

criteria, § 1045.15 proposes certain areas

in which information may generally be

presumed to be classified RD or FRD,

and others in which information is

generally unclassified. The term

‘‘generally’’ means that, as a rule but not

necessarily in every case, information in

the identified areas has the

classification indicated. These

presumptions do not address every

possible RD or FRD subject area. They

reflect classification decisions that have

already been made and, therefore,

provide the initial input for the

classification decision making process

for new information. This proposed

regulation requires that DOE be able to

provide a publicly releasable

justification whenever decisions are

made which are contrary to these

presumptions.

DOE has traditionally avoided use of

the Top Secret classification level for

RD, but has required DOE personnel and

contractors to follow security

procedures for Secret RD that were

essentially equivalent to those used

throughout the Government for Top

Secret NSI. These included the

requirement for background

investigations to obtain a ‘‘Q’’ clearance

authorizing access to Secret RD. Within

the DOD, no distinction is made for

access to RD. Access to all Secret

information is based on a national

agency check and credit checks, which

is not as in-depth an investigation as a

background investigation. Now, as a

result of the National Industrial Security

Program, security procedures are

standardized. To ensure adequate

protection for its most sensitive

information, DOE is proposing to

reinstate use of the Top Secret RD

classification for only that nuclearrelated information the release of which

would cause exceptionally grave

damage to the national security.

Section 1045.17 provides a

description and examples of

information which warrant

classification at the Top Secret RD level.

This section specifies that information

which provides a comprehensive

description of a nuclear weapons design

warrants classification as Top Secret

RD. By upgrading this information to

Top Secret RD, a background

investigation will be required for all

agency and contractor personnel having

access to it. This action is consistent

with recommendations of the recent

National Academy of Sciences study of

the DOE classification program calling

for ‘‘high fences around narrow areas

* * * and maintaining stringent

security around sharply defined areas.’’

Before the Top Secret RD classification

is reinstated by this regulation, the

recommendations of the Fundamental

Classification Policy Review regarding

this issue will be considered.

Section 1045.18 permits the

classification of newly generated

information in a previously declassified

area. For example, established technical

information concerning the reprocessing

of nuclear reactor fuel is unclassified,

but a major breakthrough in

reprocessing could be classified if it

meets the requirements for classification

as RD. This provision could not be used

to reclassify information that has been

widely disseminated in the public

domain. While this provision is

expected to be used in rare instances, it

provides the opportunity to classify

information if the circumstance

warrants.

Section 1045.19 institutionalizes

accountability by requiring that DOE be

able to provide a written justification for

classification and declassification

decisions. This requirement does not

apply to derivative classification

decisions made routinely at the

document level (which are the subject of

Subpart C), but applies only to initial

information classification decisions. By

including this requirement, the public

will be assured access to the rationale

for classification decisions. Greater

understanding of the decision making

process should result in increased

public trust. DOE envisions that this

requirement may be fulfilled by a report

which summarizes all such decisions,

updated periodically.

Section 1045.20 would invite

proposals for declassification of RD and

FRD information from the public,

agencies, or contractors. This section is

included to seek input so that DOE can

focus its declassification efforts on

subject areas in which there is public

interest. Procedures are included for the

submission of such proposals.

DOE authority to classify RD which is

privately generated by persons in the

U.S., not pursuant to Government

contracts, originates in the definition of

RD in the AEA and is reconfirmed in

§1045.21. This section would limit this

unique authority to classify privately

generated RD to the Secretary and

Deputy Secretary.

Subpart C prescribes requirements for

classifying and declassifying documents

which are applicable to all Government

agencies and industry components with

access to RD and FRD. The AEA is the

basis for DOE to specify the detailed

policies and procedures for the

Government-wide RD program and to

provide oversight. This Subpart sets the

foundation for more effective

classification management of nuclearrelated information throughout

Government and in industry.

Section 1045.32 specifies the

authorities for the classification and

declassification of documents

containing RD and FRD. Classification

guides are to be used by RD classifiers

as the primary basis for classification

decisions. DOE prefers use of

classification guides over the use of

source documents for derivative

classification decisions because use of

guides results in greater consistency in

classification decisions and fewer

classification errors. DOE originally

considered mandating the use of guides

and prohibiting the use of source

documents for derivative classification.

After coordinating with other agencies,

DOE proposes to allow the use of

properly classified source documents
Federal Register / Vol. 62, No. 10 / Wednesday, January 15, 1997 / Proposed Rules 2255

for derivative classification of RD and

FRD documents.

Authority for the declassification of

RD documents, whatever their origin, is

limited to authorized DOE personnel.

DOE considered authorizing other

agencies with joint DOE/agency guides

to declassify RD documents in

accordance with those guides. However,

because most personnel in other

agencies do not have specialized

technical knowledge and may lack

access to all of the applicable

classification guides required to

adequately determine if an RD

document can be declassified, DOE

opted to limit this authority. Future

events and circumstances may prompt

DOE to reconsider this decision. The

development of more advanced

technology to support electronic

exchange of classified documents

between agencies, better distribution of

classification guides, improved training

of personnel in other agencies, and

adequate resources are among the

factors which may lead DOE to

reevaluate authorities for

declassification of RD documents.

Section 1045.33 requires each agency

with access to RD and FRD to appoint

an RD management official to

implement this regulation. This

management official is similar to the

senior agency official required by E.O.

12958 and can be the same person. An

RD management official should be at the

appropriate level to effectively

communicate with classification and

security officials as well as RD

classifiers in the agency. This official

will also serve as the primary point of

contact with DOE for RD classification

issues. Within the DOD, an RD

management official shall be appointed

at each DOD agency.

Section 1045.34 requires that persons

who classify RD and FRD documents be

designated as RD classifiers, except

within the DOD. Because of the size,

mission, organizational diversity and

personnel turnover rate within DOD,

designation of persons who classify RD

or FRD is recommended, but not

required. In any case, RD management

officials within DOD, and within all

agencies with access to RD and FRD,

will ensure that persons who handle RD

and FRD documents have access to

classification guides needed and are

trained.

Within DOE, all original and

derivative classifiers and declassifiers

are formally designated, trained, and

certified. Training and ongoing

performance-based testing of these

personnel is standard practice within

the DOE. DOE does not require other

agencies which generate RD and FRD

documents to institute a training

program comparable to the DOE

program. Section 1045.35 specifies that

DOE will take the lead in Governmentwide RD related training by developing

training materials for RD classifiers in

all agencies. DOE and RD management

officials will consult periodically

concerning the adequacy of training.

DOE shall review any RD-related

training materials submitted by

agencies.

Section 1045.36 specifies that DOE

will consult periodically with RD

management officials and may conduct

on-site reviews of agencies when

consultations indicate a need for a

review or that such a review would be

mutually beneficial. These provisions

are proposed in order for DOE to

effectively manage the Governmentwide RD classification program.

Section 1045.37 prescribes the

procedures for the development and use

of classification guides. This section

would require that all agencies which

develop classification guides with RD or

FRD topics coordinate a review of those

guides with DOE prior to their issuance.

Section 1045.38 emphasizes that

documents containing RD and FRD are

never automatically declassified; a

positive action by an authorized person

is required to declassify them. As the

automatic declassification provisions of

E.O. 12958 are being implemented, DOE

is working to ensure that RD and FRD

are not inadvertently declassified. This

section of the regulation furthers DOE’s

efforts in this regard.

Section 1045.40 prescribes

requirements for marking RD and FRD

documents. DOE has never required that

individual portions of RD or FRD

documents be marked to indicate their

classification level or category. In fact,

it is DOE policy not to portion mark RD

and FRD documents. DOE considered

extending this policy to all agencies.

However, DOE has determined that

most agencies require the portion

marking of NSI documents as well as RD

and FRD documents. Consequently, this

section states that portion marking is an

agency option.

To facilitate public release of as much

information as possible, §1045.41

emphasizes that originators of RD or

FRD documents should prepare a

classified addenda whenever classified

information constitutes a small portion

of an otherwise publicly releasable

document.

Section 1045.42 describes the

procedure for processing mandatory and

Freedom of Information Act reviews of

RD and FRD documents. With the

exception of the appeal authority, this

process is the same as that described for

NSI in Subpart D. The DOE appeal

authority for RD (as well as NSI)

documents is the DOE Director of

Security Affairs. However, while NSI

denials may be challenged by further

appeal to the Interagency Security

Classification Appeals Panel, this Panel

has no jurisdiction over RD and FRD.

Section 1045.43 formally establishes a

Government-wide systematic

declassification review program, based

on public priorities and likelihood of

declassification, for RD and FRD. It is

not intended that every classified

document should be reexamined at

regular intervals because many

documents (e.g., nuclear weapons

design drawings) will be unlikely

candidates for declassification. Instead,

resources will be applied to welldefined areas of interest, with

systematic review of new areas

undertaken as earlier reviews are

completed or resources become

available. Public interest priorities will

be determined by solicitation of

stakeholder input. Also, the Openness

Advisory Panel will play a major role in

determining these priorities. Within

DOE, a large-scale declassification

review effort has been ongoing to

declassify RD and FRD documents. This

requirement will codify the current

practice within DOE and extend it to

other agencies.

E.O. 12958 requires that every agency

classifying information as National

Security Information (NSI) publish

implementing regulations in the Federal

Register to the extent these regulations

affect the public. Subpart D complies

with this requirement of the E.O. 12958.

Subpart D does not parallel earlier

Subparts in that it does not describe

DOE authorities and procedures for the

classification and declassification of

NSI. These authorities and procedures

are uniform throughout the Government

as specified in E.O. 12958 and in

implementing directives issued by the

Information Security Oversight Office

(ISOO). Aspects of NSI unique to DOE

are the particular procedures DOE has

established for the public to use in

requesting mandatory review of DOE

originated NSI, and for appealing

decisions regarding NSI to DOE

authorities. This Subpart describes these

procedures and identifies the

appropriate appeal channels. All other

aspects of E.O. 12958 which are being

implemented by DOE are specified in

internal DOE directives.

III. Rulemaking Requirements

A. Review Under Executive Order 12866

Today’s regulatory action does not

constitute a ‘‘significant regulatory
2256 Federal Register / Vol. 62, No. 10 / Wednesday, January 15, 1997 / Proposed Rules

action’’ as defined in section 3(f) of

Executive Order 12866, ‘‘Regulatory

Planning and Review’’ (58 FR 51735),

and has not been reviewed by the Office

of Information and Regulatory Affairs of

the Office of Management and Budget.

B. Review Under Paperwork Reduction

Act

No new information collection

requirements subject to the Paperwork

Reduction Act, 44 U.S.C. 501 et seq., are

imposed by today’s regulatory action.

C. Review Under the National

Environmental Policy Act

This rule would amend DOE’s

policies and procedures for the

classification and declassification of

information. Implementation of this rule

would 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 these

amendments 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

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

proposed rule would amend DOE’s

policies and procedures on information

classification and declassification. The

rule, if promulgated, will apply 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 would impose 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

proposed regulation imposes on nongovernment entities the requirement

that persons with access to RD or FRD

be properly trained. The economic

impact of the training requirement on

non-government entities would be

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 would require 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

would vary 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 proposed rule, if

promulgated, will not have a

‘‘significant economic impact.’’ As

permitted by section 605 of the

Regulatory Flexibility Act, DOE certifies

that this proposed rule will not have a

significant economic impact on a

substantial number of small entities.

IV. 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.
Federal Register / Vol. 62, No. 10 / Wednesday, January 15, 1997 / Proposed Rules 2257

V. Opportunity for Public Comment

A. Written Comments

Interested persons are invited to

participate in this proceeding by

submitting data, views, or comments

with respect to today’s notice.

Three copies of written comments

should be submitted to the address

indicated in the ADDRESSES section of

this notice. Comments should be

identified on the outside of the envelope

and on the documents themselves with

the designation ‘‘Information

Classification, Docket No. RM 96–

1045.’’ In the event any person wishing

to provide written comments cannot

provide three copies, alternative

arrangements can be made in advance

with the Department.

All comments received will be

available for public inspection as part of

the administrative record on file for this

rulemaking in the Department of Energy

Freedom of Information Office Reading

Room, Room 1E–090, Forrestal

Building, 1000 Independence Avenue,

SW, Washington, DC 20585, (202) 586–

6020, between 9 a.m. and 4 p.m.,

Monday through Friday, except Federal

holidays.

Any person submitting information

which that person believes to be exempt

by law from public disclosure, should

submit one complete copy, as well as

two copies from which the information

claimed to be exempt by law from

public disclosure has been deleted. The

Department is responsible for the final

determination with regard to disclosure

or nondisclosure of the information and

for treating it accordingly under 10 CFR

1004.11.

B. Public Hearing

A public hearing will be held

pursuant to this notice at the time, date,

and place indicated in the DATES and

ADDRESSES sections of this notice. Any

person who has an interest in making an

oral presentation should make a written

request to speak. Such requests should

be sent to the address given in the

ADDRESSES section of this notice and

must be received by 4:30 p.m. on the

date specified in the DATES section. The

person should also provide a daytime

phone number where the person may be

reached. Those persons requesting an

opportunity to make an oral

presentation should bring nine copies of

their statement to the hearing.

DOE will establish the procedures

governing the conduct of the hearing.

The length of each presentation will be

limited to 10 minutes. A DOE official

will preside at the hearing, and may ask

questions. Any further procedural rules

needed for the proper conduct of the

hearing will be announced by the

presiding officer.

If DOE must cancel the hearing, DOE

will make every effort to give advance

notice of the cancellation. The hearing

may be canceled in the event no

requests to speak are received by the

deadline for submission of such a

request.

VI. Interagency Coordination

The Department of Energy has

coordinated this proposed regulation

with classification representatives from

the Department of Defense (DOD),

Central Intelligence Agency, Nuclear

Regulatory Commission (NRC), and

Department of State. Concurrence from

the NRC was obtained on February 21,

1996. Concurrence from the DOD was

obtained on June 28, 1996.

List of Subjects in 10 CFR Part 1045

Classified information.

Issued in Washington, D.C. on January 8,

1997.

Hazel R. O’Leary,

Secretary of Energy.

For the reasons set forth in the

preamble, 10 CFR Part 1045 is proposed

to be revised to read as follows:

PART 1045—INFORMATION

CLASSIFICATION

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.

Subpart B—Identification of Restricted Data

and Formerly Restricted Data Information

Sec.

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

Sec.

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.

1045.45 Review of unmarked documents

with potential restricted data or formerly

restricted data.

Subpart D—Access to Information:

Executive Order 12958, ‘‘Classified National

Security Information’’ Requirements

Affecting the Public

Sec.

1045.50 Purpose and scope.

1045.51 Mandatory declassification review

requests.

1045.52 Appeal of denial of mandatory

declassification review requests.

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

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.
2258 Federal Register / Vol. 62, No. 10 / Wednesday, January 15, 1997 / Proposed Rules

§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 a

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 and

this part; 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 nonGovernment entity that has access to RD

or FRD.

Declassification means a

determination by appropriate authority

that information or documents no longer

require protection 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

142d 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.

Interagency Security Classification

Appeals Panel 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.

Nuclear weapon means atomic

weapon.

Person means;

(1) Any individual, corporation,

partnership, firm, association, trust,

estate, public or private institution,

group, Government agency, any State, or

any political subdivision of, 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

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 or RD classifier means

an individual who derivatively

classifies RD or FRD documents.

Restricted data or RD 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:
Federal Register / Vol. 62, No. 10 / Wednesday, January 15, 1997 / Proposed Rules 2259

(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; and

(7) Consider and take action on

complaints and suggestions from any

person with respect to administration of

this 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 military

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, generated by the NRC or

by its licensed or regulated facilities and

activities.

(e) Agency heads 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) 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

procedures for classifying, marking,

declassifying, and handling the

information; 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.

§ 1045.8 Procedural Exemptions.

(a) Exceptions to the procedural

provisions of this part may be granted

by the DOE Director of Declassification.

(b) A request for an exception shall be

made in writing to the DOE Director of

Declassification and shall provide all

relevant facts, justification, and a

proposed alternate procedure.

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;
2260 Federal Register / Vol. 62, No. 10 / Wednesday, January 15, 1997 / Proposed Rules

(c) Restrain competition;

(d) Prevent or delay the release of

information that does not require

protection because of national security

or nonproliferation concerns;

(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 the

DOE Director of Declassification for

evaluation. 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;

(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,

(iii) Apply the criteria in § 1045.16 as

the basis for determining the

appropriate classification.

(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

Declassification, jointly with the DOD,

shall remove information which relates

primarily to the military utilization of

nuclear weapons from the RD

classification 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) As a general rule, the information

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

section has the classification indicated.

Inclusion of specific information in one

of the presumption categories does not

mean that the information is or is not

classified, but only that arguments to

change the 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) Instruments and equipment;

(3) Magnetic confinement fusion

technology;

(4) Civilian power reactors, including

nuclear fuel cycle information but

excluding technologies for uranium

enrichment;

(5) Source materials (defined as

uranium and thorium and ores

containing them);

(6) 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;

(7) Generic weapons effects;

(8) Physical and chemical properties

of uranium and plutonium, their alloys

and compounds, under standard

temperature and pressure conditions;

(9) Nuclear fuel reprocessing

technology and reactor products not

revealing classified production rates or

inventories;

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

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

150 kiloton) of all U.S. nuclear tests;

(11) General descriptions of nuclear

material production processes and

theory of operation;

(12) DOE special nuclear material

aggregate inventories and production

rates;

(13) Types of waste products resulting

from all DOE weapon and material

production operations; and

(14) Operations solely relating to the

public and worker health and safety or

to environmental quality.

(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 is 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 the

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) 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;
Federal Register / Vol. 62, No. 10 / Wednesday, January 15, 1997 / Proposed Rules 2261

(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 comprehensive

descriptions of a nuclear explosive

design (i.e., a major proliferation threat),

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, 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. An example of RD

information that warrants Confidential

classification is the amount of high

explosives used in nuclear weapons.

(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.

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.

§ 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.

§ 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, Washington, D.C.

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.

§ 1045.22 No Comment Policy.

(a) Authorized holders of RD and FRD

shall not confirm, deny, or expand upon

the classification status or technical

accuracy of public statements in an RD

or FRD subject area.

(b) If the public statements are

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’’ 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 extent practical,

all RD and FRD documents shall be

classified based on classification guides.

When not practical, properly classified

source documents may be used as an

alternative.
2262 Federal Register / Vol. 62, No. 10 / Wednesday, January 15, 1997 / Proposed Rules

(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.

(b) Declassification of RD and FRD

documents. (1) Only DOE may

declassify documents containing RD.

(2) Except as provided in paragraph

(b)(3) of this section, only DOE or

appropriate individuals in DOD may

declassify documents marked as FRD in

accordance with joint classification

guides.

(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/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.

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.

§ 1045.35 Training requirements.

(a) RD management officials shall

ensure that persons with access to RD

and FRD information are trained on the

procedures for classifying, declassifying,

marking and handling the information.

(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 are

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 persons working with RD

and FRD information 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

is 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.

(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) A response is provided 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 is still unsatisfactory, 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 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
Federal Register / Vol. 62, No. 10 / Wednesday, January 15, 1997 / Proposed Rules 2263

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 used to

classify the document:

Derived from: llllllllllllll

(Guide or source document)

(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: llllllllllllll

(Name or position/title)

(c) Interior page. RD Classifiers shall

ensure that 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, SRD or SECRET FRD,

SFRD).

(d) Portion marking of RD and FRD

documents is an agency option.

(e) Declassification marking.

Declassified RD and FRD documents

shall be marked with the identity of the

RD classifier authorizing its

declassification, the declassification

date and the classification guide which

served as the basis for the

declassification. RD classifiers shall

ensure that the following marking is

affixed on RD and FRD documents

which they declassify:

Declassified on: lllllllllllll

(Date)

RD Classifier: llllllllllllll

(Name and position/title)

Authority: lllllllllllllll

(Classification Guide)

§ 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.

(b) When segregation of RD or FRD

into an addendum is not practical, DOE

document originators are encouraged to

prepare separate unclassified versions of

documents with significant public

interest.

§ 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 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.

(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) The review and appeal process is

the same as that described in subpart D

of this part with the exception of the

appeal authority. The Interagency

Security Classification Appeals Panel

(ISCAP) is an appeal authority for

mandatory or Freedom of Information

Act reviews of documents containing

NSI. RD and FRD are not under the

jurisdiction of the ISCAP. DOE and DOD

shall not forward RD and FRD

documents to the ISCAP for appeal

review unless those documents also

contain NSI. In such cases, the DOE or

DOD shall delete the RD and FRD

portions and shall forward the NSI and

unclassified portions to the ISCAP for

review.

(g) 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 under the statutory

jurisdiction of the Atomic Energy Act.

§ 1045.43 Systematic review for

declassification.

(a) The DOE Director of

Declassification (and the DOD for FRD)

shall ensure that RD 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 (or

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 RD or FRD by an RD

Classifier 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 information they think may be RD

or FRD, but which is 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.

Subpart D—Access to Information:

Executive Order 12958 ‘‘Classified

National Security Information’’

Requirements Affecting the Public

§ 1045.50 Purpose and scope.

(a) This subpart describes the

procedures to be used by the public in

questioning or appealing DOE decisions

regarding the classification of NSI.

(b) This subpart applies to any person

with authorized access to DOE NSI or

who desires access to DOE documents

containing NSI.

§ 1045.51 Mandatory declassification

review requests.

All DOE information classified as NSI

is subject to review for declassification

by the DOE if:

(a) The request for a review describes

the document containing the

information with sufficient specificity to
2264 Federal Register / Vol. 62, No. 10 / Wednesday, January 15, 1997 / Proposed Rules

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.

§ 1045.52 Appeal of denial of mandatory

declassification review requests.

(a) 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 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 appeal authority, who is

the 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. 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 Interagency

Security Classification Appeals Panel.

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 appeal

authority 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

appeal authority’s 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

Interagency Security Classification

Appeals Panel 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 and the NSI

and unclassified portions shall be

provided to the Interagency Security

Classification Appeals Panel for review.

[FR Doc. 97–935 Filed 1–14–97; 8:45 am]

BILLING CODE 6450–01–P