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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.

-----------------------------------------------------------------------

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]
BILLING CODE 6450-01-P




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