FAS Intro: The following draft-for-comment of a new regulation on Energy Department classification and declassification policy represents the first time that the public has been invited to comment on and participate in the formulation of DOE classification policy. As noted below, public comments are due by 17 March 1997.
[Federal Register: January 15, 1997 (Volume 62, Number 10)]
[Proposed Rules]
[Page 2251-2264]
Department of Energy
_______________________________________________________________________
Office of the Secretary
_______________________________________________________________________
10 CFR Part 1045
Information Classification; Proposed Rule
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.
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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 nuclear-related 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.
[[Page 2253]]
Definitions of all terms used in any Subpart are provided in
proposed Sec. 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 Sec. 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 Sec. 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
[[Page 2254]]
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 de-emphasizes, 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, Sec. 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 nuclear-related 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 Sec. 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 nuclear-related 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
[[Page 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 Government-wide 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 Government-wide 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,
Sec. 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 well-defined 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
[[Page 2256]]
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 non-government entities the
requirement that persons with access to RD or FRD be properly trained.
The economic impact of the training requirement on non-government
entities 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 non-government entities that generate
documents containing RD or FRD will do so pursuant to a government
contract. In those instances, any costs incurred in compliance with the
regulation will be charged back to the government.
Based on the foregoing, DOE has determined that the 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.
[[Page 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.
3For 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
Sec. 1045.1 Purpose and scope.
This subpart establishes responsibilities associated with this
part, describes the Openness Advisory Panel, defines key terms,
describes sanctions related to violation of the policies and procedures
in this part, and describes how to submit suggestions or complaints
concerning the Restricted Data classification and declassification
program, and how to request procedural exceptions.
Sec. 1045.2 Applicability.
This subpart applies to--
(a) Any person with authorized access to RD or FRD;
(b) Any agency with access to RD or FRD; and
(c) Any person who might generate information determined to be RD
or FRD.
[[Page 2258]]
Sec. 1045.3 Definitions.
As used in this part:
Agency means any ``Executive Agency'' as defined in 5 U.S.C. 105;
any ``Military Department'' as defined in 5 U.S.C. 102; and any other
entity within the executive branch that comes into possession of RD or
FRD information or documents.
Atomic Energy Act means the Atomic Energy Act of 1954, as amended
(42 U.S.C. 2011 et seq.).
Authorized holder means a person with the appropriate security
clearance required to have access to classified information and the
need to know the information in the performance of Government-approved
activities.
Automatic declassification means the declassification of
information or documents based solely upon;
(1) The occurrence of a specific date or event as determined by the
classifier; or
(2) The expiration of a maximum time frame for duration of
classification established under Executive Order 12958.
Classification means the act or process by which information is
determined to be classified information.
Classification Guide means a written record of detailed
instructions as to whether specific information is classified, usually
concerning a system, plan, project, or program. It identifies
information to be classified and specifies the level (and duration for
NSI only) of classification assigned to such information.
Classification guides are 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
non-Government 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.
Sec. 1045.4 Responsibilities.
(a) The DOE Director of Declassification shall:
[[Page 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.
Sec. 1045.5 Sanctions.
(a) Knowing, willful, or negligent action contrary to the
requirements of this part which results in the misclassification of
information may result in appropriate sanctions. Such sanctions may
range from administrative sanctions to civil or criminal penalties,
depending on the nature and severity of the action as determined by
appropriate authority, in accordance with applicable laws.
(b) Other violations of the policies and procedures contained in
this part may be grounds for administrative sanctions as determined by
appropriate authority.
Sec. 1045.6 Openness Advisory Panel.
The DOE shall maintain an Openness Advisory Panel, in accordance
with the Federal Advisory Committee Act, to provide the Secretary with
independent advice and recommendations on Departmental openness
initiatives, including classification and declassification issues that
affect the public.
Sec. 1045.7 Suggestions or Complaints.
(a) Any person who has suggestions or complaints regarding the
Department's classification and declassification policies and
procedures may direct them in writing to the Openness Coordinator,
Department of Energy, Office of Declassification, 19901 Germantown
Road, Germantown, Maryland 20874-1290.
(b) Such letters should include a description of the issue or
problem, the suggestion or complaint, all applicable background
information, and an address for the response.
Sec. 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
Sec. 1045.10 Purpose and Scope.
(a) This subpart implements sections 141 and 142 (42 U.S.C. 2161
and 2162) of the Atomic Energy Act, which provide for Government-wide
policies and procedures concerning the classification and
declassification of RD and FRD information.
(b) This subpart establishes procedures for classification
prohibitions for RD and FRD, describes authorities and procedures for
identifying RD and FRD information, and specifies the policies and
criteria DOE shall use in determining if nuclear-related information is
RD or FRD.
Sec. 1045.11 Applicability.
This Subpart applies to--
(a) Any person with authorized access to RD or FRD;
(b) Any agency with access to RD or FRD; and
(c) Any person who might generate information determined to be RD
or FRD.
Sec. 1045.12 Authorities.
(a) The DOE Director of Declassification may determine whether
nuclear-related information is RD.
(b) Except as provided in paragraph (c) of this section, the DOE
Director of Security Affairs may declassify RD information.
(c) The DOE Director of Security Affairs jointly with the DOD may
determine which information in the RD category relating primarily to
the military utilization of nuclear weapons may be declassified or
placed into the FRD category.
(d) The DOE Director of Security Affairs jointly with the DOD may
declassify FRD information.
Sec. 1045.13 Classification prohibitions.
In no case shall information be classified RD or FRD in order to:
(a) Conceal violations of law, inefficiency, or administrative
error;
(b) Prevent embarrassment to a person, organization, or Agency;
[[Page 2260]]
(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.
Sec. 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 Sec. 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 Sec. 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
Sec. 1045.16 when determining whether FRD may be declassified.
Sec. 1045.15 Classification and declassification presumptions.
(a) The DOE Directors of Declassification and Security Affairs
shall consider the presumptions listed in paragraphs (d) and (e) of
this section before applying the criteria in Sec. 1045.16.
(b) Not all areas of nuclear-related information are covered by the
presumptions.
(c) 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 Sec. 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 Sec. 1045.16 indicates
otherwise:
(1) Detailed designs, specifications, and functional descriptions
of nuclear explosives, whether in the active stockpile or retired;
(2) Material properties under conditions achieved in nuclear
explosions that 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.
Sec. 1045.16 Criteria for evaluation of restricted data and formerly
restricted data information.
(a) The DOE Director of Declassification shall classify information
as RD and the DOE Director of Security Affairs shall maintain the
classification of RD (and FRD in coordination with the DOD) only if 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;
[[Page 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.
Sec. 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.
Sec. 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.
Sec. 1045.19 Accountability for classification and declassification
determinations.
(a) Whenever a classification or declassification determination
concerning RD or FRD information is made, the DOE Directors of
Declassification and Security Affairs shall be able to justify the
determination. For FRD and RD primarily related to military
utilization, the DOE Directors of Declassification and Security Affairs
shall coordinate the determination and justification with the DOD. If
the determination involves a departure from the presumptions in
Sec. 1045.15, the justification shall include a rationale for the
departure. Often the justification itself will contain RD or FRD
information. In such a case, the DOE Directors of Declassification and
Security Affairs shall ensure that a separate justification can be
prepared which is publicly releasable. The publicly releasable
justification shall be made available to any interested person upon
request to the DOE Director of Declassification.
(b) The DOE Director of Declassification shall prepare a report on
an annual basis on the implementation of this part. This report shall
be available to any interested person upon request to the DOE Director
of Declassification.
Sec. 1045.20 Ongoing call for declassification proposals.
The DOE Director of Security Affairs shall consider proposals from
the public or agencies or contractors for declassification of RD and
FRD information on an ongoing basis. Declassification proposals for RD
and FRD information shall be forwarded to the Department of Energy,
Director of Security Affairs, 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.
Sec. 1045.21 Privately generated restricted data.
(a) DOE may classify RD which is privately generated by persons not
pursuant to government contracts, in accordance with the Atomic Energy
Act.
(b) In order for information privately generated by persons to be
classified as RD, the Secretary or Deputy Secretary shall make the
determination personally and in writing. This authority shall not be
delegated.
(c) DOE shall publish a Federal Register notice when privately
generated information is classified as RD.
Sec. 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
Sec. 1045.30 Purpose and scope.
This subpart specifies Government-wide classification program
implementation requirements for agencies with access to RD and FRD,
describes authorities and procedures for RD and FRD document
classification and declassification, provides for periodic or
systematic review of RD and FRD documents, and describes procedures for
the mandatory review of RD and FRD documents. This subpart applies to
all RD and FRD documents, regardless of whether they also contain
National Security Information (NSI), or other controlled information
such as ``For Official Use Only'' or ``Unclassified Controlled Nuclear
Information.''
Sec. 1045.31 Applicability.
This subpart applies to--
(a) Any person with authorized access to RD or FRD;
(b) Any agency with access to RD or FRD; and
(c) Any person generating a document containing RD or FRD.
Sec. 1045.32 Authorities.
(a) Classification of RD and FRD documents. (1) To the 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.
[[Page 2262]]
(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.
Sec. 1045.33 Appointment of restricted data management official.
(a) Each agency with access to RD or FRD shall appoint an official
to be responsible for the implementation of this part and shall advise
the DOE Director of Declassification of such appointment.
(b) This official shall ensure the proper implementation of this
part within his/her agency and shall serve as the primary point of
contact for coordination with the DOE Director of Declassification on
RD and FRD classification and declassification issues.
(c) Within the DOD, an RD management official shall be appointed in
each DOD agency.
Sec. 1045.34 Designation of restricted data classifiers.
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.
Sec. 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 RD-
related training material submitted by agency and contractor
representatives to ensure consistency with current policy.
Sec. 1045.36 Reviews of agencies with access to restricted data and
formerly restricted data.
(a) The DOE and each agency with access to RD and FRD shall consult
periodically to assure appropriate implementation of this part. Such
consultations may result in DOE conducting an on-site review within the
agency if DOE and the RD management official determine that such a
review would be mutually beneficial or that it is necessary to remedy a
problem.
(b) To address issues concerning implementation of this part, the
DOE Director of Declassification shall establish a standing group of
all RD management officials to meet periodically.
Sec. 1045.37 Classification guides.
(a) The classification and declassification determinations made by
the DOE Directors of Declassification and Security Affairs under the
classification criteria in Sec. 1045.16 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.
Sec. 1045.38 Automatic declassification prohibition.
(a) Documents containing RD and FRD remain classified until a
positive action by an authorized person is taken to declassify them.
(b) In accordance with the Atomic Energy Act, no date or event for
automatic declassification ever applies to RD and FRD documents, even
if such documents also contain NSI.
(c) E.O. 12958 acknowledges that RD is exempt from all provisions
of the E.O., including automatic declassification.
Sec. 1045.39 Challenging classification and declassification
determinations.
(a) Any authorized holder of an RD or FRD document who, in good
faith, believes that the RD or FRD document has an improper
classification status is encouraged and expected to challenge the
classification with the RD Classifier.
(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.
Sec. 1045.40 Marking requirements.
(a) RD classifiers shall ensure that each RD and FRD document is
clearly marked to convey to the holder that it contains RD or FRD
information, the level of classification assigned, and the additional
markings in paragraphs (b)(3) and (4) of this section.
(b) Front marking. In addition to the overall classification level
of the document, the following notices shall appear on the front of the
document, as appropriate:
(1) If the document contains RD:
RESTRICTED DATA
This document contains RESTRICTED DATA as defined in the Atomic
Energy Act of 1954. Unauthorized disclosure subject to administrative
and criminal sanctions.
(2) If the document contains FRD but does not contain RD:
FORMERLY RESTRICTED DATA
Unauthorized disclosure subject to administrative and criminal
sanctions. Handle as RESTRICTED DATA in
[[Page 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:----------------------------------------------------------
(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:---------------------------------------------------------
(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:-------------------------------------------------------
(Date)
RD Classifier:---------------------------------------------------------
(Name and position/title)
Authority:-------------------------------------------------------------
(Classification Guide)
Sec. 1045.41 Use of classified addendums.
(a) In order to maximize the amount of information available to the
public and to simplify document handling procedures, document
originators should segregate RD or FRD into an addendum whenever
practical.
(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.
Sec. 1045.42 Mandatory and Freedom of Information Act reviews for
declassification of restricted data and formerly restricted data
documents.
(a) General. (1) Agencies with documents containing RD and FRD
shall respond to mandatory review and Freedom of Information Act
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.
Sec. 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.
Sec. 1045.44 Classification review prior to public release.
Any person with authorized access to RD or FRD who generates a
document intended for public release in an RD or FRD subject area shall
ensure that it is reviewed for RD or FRD by an RD Classifier prior to
its release.
Sec. 1045.45 Review of unmarked documents with potential restricted
data or formerly restricted data.
(a) Individuals reviewing NSI records of permanent historical value
under the automatic or systematic review provisions of E.O. 12958 may
come upon 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
Sec. 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.
Sec. 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
[[Page 2264]]
enable the agency to locate it with a reasonable amount of effort;
(b) The information is not exempted from search and review under
the Central Intelligence Agency Information Act;
(c) The information has not been reviewed for declassification
within the past 2 years; and
(d) The request is sent to the Department of Energy, Director of
Declassification, 19901 Germantown Road, Germantown, Maryland 20874-
1290.
Sec. 1045.52 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]
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