83_FR_17788 83 FR 17710 - Nuclear Classification and Declassification

83 FR 17710 - Nuclear Classification and Declassification

DEPARTMENT OF ENERGY

Federal Register Volume 83, Issue 78 (April 23, 2018)

Page Range17710-17732
FR Document2018-07990

The Department of Energy (DOE) proposes to revise its regulations concerning the requirements for classification and declassification of Restricted Data (RD) and Formerly Restricted Data (FRD). Since 1997, when DOE amended the regulations, changes in legislation and DOE and national policies have rendered portions of the existing regulations outdated. The proposed revisions update the regulations to address these changes. Additional changes made are to clarify requirements, as well as allow agencies more flexibility in implementing RD/FRD programs. This proposed rule is rewritten for clarity and reorganized for ease of use.

Federal Register, Volume 83 Issue 78 (Monday, April 23, 2018)
[Federal Register Volume 83, Number 78 (Monday, April 23, 2018)]
[Proposed Rules]
[Pages 17710-17732]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-07990]



[[Page 17709]]

Vol. 83

Monday,

No. 78

April 23, 2018

Part II





Department of Energy





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10 CFR Part 1045





Nuclear Classification and Declassification; Proposed Rule

Federal Register / Vol. 83 , No. 78 / Monday, April 23, 2018 / 
Proposed Rules

[[Page 17710]]


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DEPARTMENT OF ENERGY

10 CFR Part 1045

[AU60-2016-1045]
RIN 1992-AA49


Nuclear Classification and Declassification

AGENCY: Department of Energy.

ACTION: Notice of proposed rulemaking and public hearings.

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SUMMARY: The Department of Energy (DOE) proposes to revise its 
regulations concerning the requirements for classification and 
declassification of Restricted Data (RD) and Formerly Restricted Data 
(FRD). Since 1997, when DOE amended the regulations, changes in 
legislation and DOE and national policies have rendered portions of the 
existing regulations outdated. The proposed revisions update the 
regulations to address these changes. Additional changes made are to 
clarify requirements, as well as allow agencies more flexibility in 
implementing RD/FRD programs. This proposed rule is rewritten for 
clarity and reorganized for ease of use.

DATES: Written comments must be received by DOE on or before May 23, 
2018.
    A public meeting will be held if one is requested by May 8, 2018.

ADDRESSES: Comments submitted should be identified by Docket Number 
AU60-2016-1045 and/or Regulatory Information Number (RIN) 1992-AA49 and 
may be submitted through the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Email: [email protected]. Include Docket 
Number AU60-2016-1045 and/or RIN 1992-AA49 in the subject line of the 
message.
     Mail or Hand Delivery/Courier: Mailing address for paper 
or compact disk (CD) submissions: Department of Energy, Office of 
Quality Management (AU-61/Germantown Building, Attn: Lesley Nelson-
Burns), 1000 Independence Ave. SW, Washington, DC 20585. If possible, 
submit all items on a CD. It is not necessary to include printed 
copies.
    As a result of potential delays in the receipt and processing of 
mail sent through the U.S. Postal Service, DOE encourages respondents 
to submit comments electronically to ensure timely receipt.
    Questions concerning submitting written comments and requests to 
hold public meetings should be addressed to Lesley Nelson-Burns, Office 
of Quality Management, Department of Energy, AU-61/Germantown Building, 
1000 Independence Avenue SW, Washington, DC 20585, or [email protected], or phoned to 301-903-4861.
    Instructions: All submissions must include the agency name and 
Docket Number or RIN for this rulemaking. All comments received, 
including any personal information provided, will be posted without 
change to http://www.regulations.gov.
    Docket: The docket is available for review at regulations.gov, 
including Federal Register notices, comments, and other supporting 
documents/materials. All documents in the docket are listed in the 
regulations.gov index. Not all documents listed in the index may be 
publicly available, such as information that is exempt from public 
disclosure.
    A link to the docket web page to read background documents or 
comments received can be found at: http://www.regulations.gov/#!docketDetail;D=AU60-2016-104, or contact Lesley Nelson-Burns at 301-
903-4861 or [email protected].

FOR FURTHER INFORMATION CONTACT: Lesley Nelson-Burns (Office of Quality 
Management) at 301-903-4861 or [email protected].

SUPPLEMENTARY INFORMATION: 
I. Background
    A. Authority and Reasons for Regulation
    B. Reasons for Revisions
    C. Summary of Revisions
II. Regulatory Review and Procedural Requirements
    A. Review Under Executive Orders 12866 and 13563
    B. Review Under Executive Orders 13771 and 13777
    C. Review Under the Regulatory Flexibility Act
    D. Review Under the Paperwork Reduction Act
    E. Review Under the National Environmental Policy Act
    F. Review Under E.O. 13132, ``Federalism''
    G. Review Under E.O. 12988, ``Civil Justice Reform''
    H. Review Under the Unfunded Mandates Reform Act of 1995
    I. Review Under E.O. 13211, ``Regulations that Significantly 
Affect Energy Supply, Distribution or Use''
    J. Review Under the Treasury and General Government 
Appropriations Act, 2001
    K. Review Under the Treasury and General Government 
Appropriations Act of 1999
III. Opportunities for Public Comment
    A. Participation in This Proposed Rulemaking
    B. Written Comment Procedures
IV. Approval of the Office of the Secretary

I. Background

A. Authority and Reasons for Regulation

    The Atomic Energy Act of 1954, as amended, 42 U.S.C. 2011 et seq. 
(AEA), is the basis for the classification of nuclear-weapons related 
information as Restricted Data (RD), and information transclassified 
from the RD category. The AEA grants the Department of Energy (DOE) 
Government-wide authority for RD and the control of information as RD. 
Title 10 of the Code of Federal Regulations (CFR) part 1045 (this part) 
implements DOE authority under the AEA to manage the Government-wide 
system of classifying and declassifying RD. This part prescribes 
procedures for the identification of RD, FRD, and TFNI, describes how 
members of the public may request the release of RD, FRD, TFNI, and DOE 
National Security Information (NSI), and sets forth the process to 
appeal decisions regarding such requests.
    In 1997, DOE issued a final rule in 10 CFR part 1045 that 
established the Government-wide responsibilities and requirements for 
RD and FRD. 62 FR 68502 (Dec. 31, 1997). The DOE affirmed in the 
preamble to the final rule that this DOE rule would establish the 
policies and procedures implementing the requirements of the AEA for 
the classification and declassification of RD and FRD. The rule also 
implemented the provisions of the E.O. 12958 pertaining to National 
Security Information that directly affect the public. The final rule 
included several requirements intended to provide increased 
transparency and accountability to the process of classifying and 
declassifying RD and FRD. These included options for the public to 
submit suggestions and complaints about classification policy, and for 
persons to submit challenges to classification determinations and 
declassification proposals. The rule also identified the specific 
criteria to be used to determine if information is RD, to declassify 
RD, and prohibitions on the application of classification.

B. Reasons for Revisions

    DOE is revising this part to: Update DOE organizational 
responsibilities; incorporate changes in the Atomic Energy Act; 
Executive Order 13526, Classified National Security Information; and 32 
CFR part 2001, Classified National Security Information, as well as to 
improve policies and procedures due to lessons learned and feedback 
from other Federal agencies (agencies).

[[Page 17711]]

    Section 142(e) of the AEA authorizes the transclassification of 
information concerning the atomic programs of other nations. Under 
section 142(e), RD concerning the atomic energy programs of other 
nations is transclassified by joint agreement with the Director of 
Central Intelligence (DCI) or the DNI to facilitate sharing in the 
Intelligence Community (IC). Information transclassified under section 
142 of the AEA, did not have a unique name or marking prior to being 
named TFNI in 2010 under 32 CFR part 2001. Prior to 2010, documents 
containing this information had no special identifier, were handled in 
a manner similar to NSI, and were not marked as exempt from automatic 
declassification. Although the information concerns foreign nuclear 
programs, the information may be the same or similar to U.S. RD, which 
is never automatically declassified due to its sensitivity. To ensure 
this information is not automatically declassified and inadvertently 
released, E.O. 13526 recognized the Secretary of Energy's authority to 
determine its declassification. The Information Security Oversight 
Office (ISOO) of the National Archives and Records Administration, in 
coordination with DOE, developed language to incorporate TFNI marking 
requirements into 32 CFR 2001.24(i).
    Revisions to this part mirror the marking policies jointly 
developed by DOE and ISOO contained in 32 CFR part 2001 and ISOO Notice 
2011-02. These policies ensure matter containing RD, FRD, and TFNI are 
not automatically declassified. These policies are publicly available 
from the ISOO website at https://www.archives.gov/isoo.
    In addition, revisions to this part define specific 
responsibilities and authorities for TFNI, authorities for the return 
of FRD and TFNI to the RD category as permitted by changes to Section 
142 of the AEA, and the marking of matter that commingles RD/FRD/TFNI 
with NSI or Controlled Unclassified Information (CUI). Many changes are 
based on DOE's experience assisting other agencies in implementing this 
part.
    E.O. 12866 states regulations must be ``simple and easy to 
understand, with the goal of minimizing uncertainty and litigation . . 
. '' (Sec. 1, Par. (b)(12)) and E.O. 12988 states that each regulation 
must specify its effect ``in clear language'' (Sec. 3 Par. (b)(2)). In 
accordance with these E.O.'s, this proposed regulation is rewritten for 
clarity and reorganized for ease of use.
    DOE consulted with other agencies and incorporated many of their 
recommendations in the revision to this part. For example, the revised 
proposed rule permits RD Derivative Classifiers to remove RD, FRD, and 
TFNI from matter under certain circumstances when the resulting matter 
remains classified. The changes to this part do not significantly 
impact current practices and many of the changes provide greater 
flexibility for agencies in implementing their RD programs.

C. Summary of Revisions

1. Subpart A
    Subpart A, previously titled, ``Program Management of the 
Restricted Data and Formerly Restricted Data Classification System,'' 
was renamed ``Introduction.'' Subpart A previously contained Sec.  
1045.1 to Sec.  1045.9. It now contains Sec.  1045.5 to Sec.  1045.35. 
Sections are now numbered by fives to allow for future additions. The 
new sections contain introductory information on this part including: 
The purpose and application of this part; how to submit comments and 
requests for equivalencies and exemptions; sanctions that may be 
implemented against violators of this regulation; and definitions and 
acronyms used in this part. Information concerning program management 
and individual responsibilities was moved to Subpart B.
    The existing sections of Subpart A were changed as follows: Changes 
to the content are discussed in the new location noted.

--Sec.  1045.1: This content was moved to Sec.  1045.5.
--Sec.  1045.2: This content was moved to Sec.  1045.10(a).
--Sec.  1045.3: This content was moved to Sec.  1045.30.
--Sec.  1045.4: This content was moved to Sec.  1045.45.
--Sec.  1045.5: This content was moved to Sec.  1045.25.
--Sec.  1045.6: This content was deleted. The Openness Advisory Panel 
(OAP) was a subcommittee of the Secretary of Energy Advisory Board 
(SEAB). In May 2006, the Secretary abolished the SEAB and the OAP was 
not reconstituted when the SEAB was re-established in 2010. To 
encourage persons with access to RD, FRD, or TFNI and the public to 
inform DOE of records of interest, DOE has proposed to revise the 
sections in this part on classification challenges and declassification 
proposals to provide more information on these processes.

--Sec.  1045.7: This content was moved to Sec.  1045.15.
--Sec.  1045.8: This content was moved to Sec.  1045.20.
--Sec.  1045.9: This content was moved to Sec.  1045.45(g).

    The sections of Subpart A are now as follows:

--Sec.  1045.5: This content was previously in sections Sec.  1045.1, 
Sec.  1045.10, and Sec.  1045.30. It now addresses the purpose of 10 
CFR part 1045 and its subparts. The descriptions of the purpose of each 
subpart have been changed to reflect the new content and organization 
of each subpart.
--Sec.  1045.10: To lessen duplication, this content now consolidates 
the applicability sections of each subpart, (formerly Sec.  1045.2, 
Sec.  1045.11, Sec.  1045.31, and Sec.  1045.51). The requirements for 
generating information and matter are in separate sections in the 
proposed rule to clarify the distinct authorities and processes for 
each.
--Sec.  1045.15: This content was previously in Sec.  1045.7. The 
address for the DOE Office of Classification was updated.
--Sec.  1045.20: This content was previously in Sec.  1045.8. The term 
``procedural exemption'' has been changed to ``equivalencies and 
exemptions'' for greater clarity and to increase flexibility. Rather 
than requesting a complete exemption to a requirement, DOE proposes to 
permit agencies request an equivalency, by providing an alternate but 
sufficient method of meeting a requirement. Due to the addition of 
equivalencies, the information required in a submission for an 
exemption or equivalency has been expanded. The addresses were also 
updated.
--Sec.  1045.25: This content was previously in Sec.  1045.5. There 
have been no substantive changes to this content.
--Sec.  1045.30: This content was previously in Sec.  1045.3. Several 
definitions were added, removed, or revised as follows:
    --Associate RD Management Official (ARDMO)--added to formalize 
existing practice of Restricted Data Management Officials (RDMOs) 
acting through deputies.
    --Associate Under Secretary for Environment, Health, Safety and 
Security replaced ``Chief Health, Safety and Security officer'' to 
reflect DOE reorganizations.
    --Classification Category--new definition to clarify the specific 
authority for RD, FRD, and TFNI.
    --Classification Guidance--new definition to clarify that guidance 
is approved by an appropriate authority and to provide examples of 
types of guidance.

[[Page 17712]]

    --Classified Matter--replaced ``documents and material'' to be 
consistent with current policies.
    --Downgrading--defined to describe downgrading of information and 
matter.
    --Initial Determination--defined to identify the process by which 
new information is determined to be RD.
    --Originating Activity--defined to clarify the circumstances in 
which matter may be distributed as a working paper.
    --Restricted Data Derivative Classifier--replaced Restricted Data 
Classifier to clarify all decisions of an RD Classifier are derivative.
    --TFNI--added to define information removed from the RD category 
under section 142(e) of the AEA.
    --TFNI Guidelines--added to define TFNI-specific policies issued by 
agencies.
    --Upgrading--added for persons to better understand the difference 
between upgrading information (DOE-only) and matter (any RD Derivative 
Classifier) to ensure in both cases the appropriate authority is 
exercised.
--The following existing definitions were revised for clarity:
--Agency--added TFNI.
--Automatic Declassification--revised to reflect E.O. 13526.
--Classification--includes information classified by statute (the AEA).
--Classification Guide--edited for clarity.
--Classification Level.
--Added TFNI.
--Removed definition of Confidential for NSI because this is defined in 
E.O. 13526 and should not be duplicated here because it does not apply 
to RD, FRD, or TFNI.
    --Classified Information--added TFNI; clarified that classified NSI 
includes information classified under E.O. 13526.
    --Declassification--edited for clarity.
    --Director, Office of Classification--removed reference to 
organizational placement of Director, Office of Classification as it is 
not necessary.
    --Interagency Security Classification Appeals Panel (ISCAP)--
updated to reflect E.O. 13526.
    --National Security--definition changed to refer to definition used 
by E.O. 13526.
    --National Security Information--defined as pursuant to E.O. 13526. 
Removed clause describing ``defense information'' as used in the AEA 
because it is obsolete and not pertinent to this proposed rule.
    --Portion Marking--edited for clarity.
    --RD Management Official--edited to streamline definition.
    --Source Document--edited to emphasize the requirement for RD 
Derivative Classifiers to use only portion marked source documents.

    The following definitions were deleted as they are not used in this 
part:

    --Authorized Holder--this term was replaced by ``person with 
access.''
    --Document--removed. All references are now to ``matter.''
--Sec.  1045.35: This new content contains the acronyms used in the 
regulation.
2. Subpart B
    Subpart B, previously titled, ``Identification of Restricted Data 
and Formerly Restricted Data Information,'' was renamed ``Program 
Management of Restricted Data (RD), Formerly Restricted Data (FRD), and 
Transclassified Foreign Nuclear Information (TFNI) Classification 
Programs'' Subpart B previously contained Sec.  1045.10 to Sec.  
1045.22. It now contains Sections from Sec.  1045.40 to Sec.  1045.65. 
Sections from Subparts A, B, and C were moved to this Subpart to locate 
agency and individual responsibilities and authorities in a single 
subpart. The section of Subpart B describing processes for 
classification and declassification of RD and FRD (formerly Sec.  
1045.14) has been broken up and distributed throughout the regulation, 
with each component relocated to its appropriate section. The Subpart 
also includes new sections on responsibility for TFNI and reflects the 
comprehensive development of TFNI policy by generally including TFNI 
wherever it should be included with RD and FRD.
    The existing sections of Subpart B were changed as follows: Changes 
to the content are discussed in the new location noted.

--Sec.  1045.10: This content was moved to Sec.  1045.5.
--Sec.  1045.11: This content was moved to Sec.  1045.10.
--Sec.  1045.12: This content was moved to Sec.  1045.45.
--Sec.  1045.13: This content was moved to Sec.  1045.75.
--Sec.  1045.14: This was moved and subdivided in the following manner:
    --Content regarding the initial classification of RD was moved to 
Sec.  1045.45(c), Sec.  1045.70, and Sec.  1045.135.
    --Content regarding the declassification of RD was moved to Sec.  
1045.45(b), Sec.  1045.100 and Sec.  1045.105(a) and (b).
    --Content regarding the classification of FRD was moved to Sec.  
1045.45(b) and Sec.  1045.85(a).
    --Content regarding the declassification of FRD was moved to Sec.  
1045.45(b), Sec.  1045.100 and Sec.  1045.105.
--Sec.  1045.15: This content was moved to Sec.  1045.80.
--Sec.  1045.16: This content was moved to Sec.  1045.70.
--Sec.  1045.17: This content was moved to Sec.  1045.45(c) and Sec.  
1045.95.
--Sec.  1045.18: This content was moved to Sec.  1045.45(c).
--Sec.  1045.19: This content was deleted. Classification 
determinations concerning RD or FRD, as specified in paragraph (a), 
follow the criteria in Sec.  1045.80, which provides the rationale for 
classification and declassification of RD or FRD. Justifications for 
the exemptions are removed because the presumptions are a starting 
point to classify or declassify information as the Director, Office of 
Classification evaluates the criteria, he or she would also justify any 
exception to the presumptions. No separate justification is necessary. 
The annual report required by paragraph (b) has not been of interest to 
the public. DOE has had only one request for the annual report since 
1997. Any specific information of interest to the public may be 
requested under the FOIA.
--Sec.  1045.20: The content of this paragraph was moved to Sec.  
1045.105.
--Sec.  1045.21: This content was moved to Sec.  1045.90.
--Sec.  1045.22: This content was moved to Sec.  1045.60 and Sec.  
1045.65.

    The sections of Subpart B are now as follows:

--Sec.  1045.40: This content was previously in Sec.  1045.33. A 
timeframe for agencies to notify the Director, Office of 
Classification, of new RDMO appointments was added. This change will 
ensure that points of contact are accurate and that a senior point of 
contact is available to address questions or concerns.
--Sec.  1045.45: This content was previously in Sec.  1045.4, Sec.  
1045.14, Sec.  1045.17, Sec.  1045.18, and Sec.  1045.32. The section 
on responsibilities incorporates changes that describe current 
obligations in more detail. Responsibilities concerning the return of 
FRD or TFNI to the RD category were added. This addition was due to an 
amendment to sections 142(d) and (e) of the AEA which permits this 
action. Other changes were due to the implementation of TFNI and the 
consolidation of responsibilities which were previously distributed 
throughout the regulation. Additional changes were made to clarify or

[[Page 17713]]

codify existing practices. The description of the authority of the 
Associate Under Secretary for Environment, Health, Safety, and Security 
now appears in Sec.  1045.45(b). The substantive changes are as 
follows:
--Sec.  1045.45(b): Changed title of position to reflect DOE 
reorganizations. Implied responsibilities are now explicitly stated. 
The content was edited to include additional information on cooperation 
with DoD in the classification and declassification of FRD and to 
codify existing practices.
--Sec.  1045.45(c): This content was previously in Sec.  1045.4(a), 
Director, Office of Classification.
    --Added TFNI guidelines in the development of joint classification 
guides (to include clarification of who must perform assigned duties).
    --Content was expanded to address agency and Director, Office of 
Classification roles in implementing this part.
--Sec.  1045.45(g): This content was previously in Sec.  1045.4(e), 
Head of Agencies with Access to RD, FRD, and TFNI, with the following 
changes:
    --Added requirement to develop and promulgate procedures for 
classification challenges and declassification proposals for RD, FRD, 
and TFNI.
    --Deleted redundant information about parallel procedures for NSI. 
This information is governed by E.O. 13526 and should not be duplicated 
here.
    --Added responsibilities of DOE, DNI and the IC for TFNI;
    --Added responsibility for review of NSI records of permanent 
historical value under the ``Special Historical Records Review Plan 
(Supplement)'' (established under Public Laws (Pub. L. 105-261 and 106-
65); and
    --Added requirement for contacting officer to be notified of 
contracts that have access to or generate matter containing RD, FRD, or 
TFNI, to ensure agencies are aware of such contracts and that contracts 
incorporate the requirements of 10 CFR part 1045.
--Sec.  1045.45(h): This content was previously in Sec.  1045.4(f), 
RDMOs, with the following changes:
    --Established procedures for the designation of Associate RDMOs 
(ARDMOs). This codifies current practices and allows agencies 
flexibility in delegating the responsibilities of RDMOs;
    --Incorporates RDMO responsibilities for TFNI;
    --Adds responsibility for periodic reviews of agency classification 
decisions of matter containing RD, FRD, or TFNI. Agencies currently 
conduct annual reviews of classification decisions under 32 CFR part 
2001 to ensure the appropriate identification and marking of National 
Security Information. The periodic review of matter containing RD, FRD, 
or TFNI may be done during these reviews to ensure agencies are aware 
of any systematic issues regarding compliance with this part; and
    --Added the Director of National Intelligence (DNI) responsibility 
for IC elements.
--Sec.  1045.45(i), (j), and (k): This content was previously in Sec.  
1045.32
    --Added descriptions of the limits of the authority regarding 
declassification, downgrading, and using portion-marked source 
documents. This description was added to clarify requirements and allow 
agencies greater flexibility in the classification of documents 
containing RD, FRD, or TFNI, while ensuring documents are coordinated 
with DOE or DoD, when necessary. For clarity, the list of 
responsibilities for RD DCs now explicitly requires that source 
documents be portion-marked, and gives examples of classification 
upgrading and downgrading.
    --Added training required for access to and to derivatively 
classify TFNI
--Sec.  1045.55: This content was moved from Sec.  1045.37 and Sec.  
1045.43. The language was edited for clarity, and the mailing address 
for the Director of Classification was added for accuracy. The 
requirement for declassification proposals from persons with access to 
RD, FRD, or TFNI to be transmitted through secure means was added to 
ensure the proper protection of classified information.
--Sec.  1045.60: This content was moved from Sec.  1045.22. The content 
did not change.
--Sec.  1045.65: This content was moved from Sec.  1045.22. To be 
consistent with DOE policies and for accuracy, the term ``public 
domain'' was replaced by ``open literature.'' The content also now 
explains:
    --The possible damage to national security resulting from 
commenting on information in the open literature that is or may be RD, 
FRD or TFNI; and
    --Required reviews of new documents which incorporate information 
from the open literature which may be classified.
3. Subpart C
    Subpart C, previously titled, ``Generation and Review of Documents 
Containing Restricted Data and Formerly Restricted Data,'' was renamed 
``Determining if Information is RD, FRD, or TFNI.'' Subpart C 
previously contained Sec.  1045.30 to Sec.  1045.46. It now contains 
Sec.  1045.70 to Sec.  1045.110. Subpart C consolidates content from 
other subparts on the following subjects: The processes for 
classification and declassification; the presumptions that guide those 
processes; the status of privately-generated information in the RD 
realm; classification levels; and classification challenges. Subpart C 
also contains a new section on the transclassification of information 
from the RD category into the TFNI category which is part of the 
addition of TFNI policy.
    The existing sections of Subpart C were changed as follows: Changes 
to the content are discussed in the new location noted.

--Sec.  1045.30: This content was moved to Sec.  1045.5.
--Sec.  1045.31: This content was moved to Sec.  1045.10(a).
--Sec.  1045.32: This content was moved to Sec.  1045.45(i) and Sec.  
1045.155.
--Sec.  1045.33: This content was moved to Sec.  1045.40.
--Sec.  1045.34: This content was moved to Sec.  1045.115(b) and (c).
--Sec.  1045.35: This paragraph was moved to Sec.  1045.45(c) and Sec.  
1045.120.
--Sec.  1045.36: This content was moved to Sec.  1045.45(c).
--Sec.  1045.37: The content regarding classification guides was moved 
to Sec.  1045.45. The requirement regarding the 5-year review of guides 
was moved to Sec.  1045.45(g)(9).
--Sec.  1045.38: This content was moved to Sec.  1045.155.
--Sec.  1045.39: This content was moved to Sec.  1045.110.
--Sec.  1045.40: This content was moved to Sec.  1045.140 and Sec.  
1045.165.
--Sec.  1045.41: This content was moved to Sec.  1045.130(d).
--Sec.  1045.42: This content was moved to Sec.  1045.170, Sec.  
1045.175, and Sec.  1045.180.
--Sec.  1045.43: This content was moved to Sec.  1045.55.
--Sec.  1045.44: This content was moved to Sec.  1045.125(b).
--Sec.  1045.45: This content was moved to Sec.  1045.125.
--Sec.  1045.46: This content was moved to 1045.130(c) and (d).

    The sections of Subpart C are now as follows:

--Sec.  1045.70: This content was previously in Sec.  1045.14 and Sec.  
1045.16.

[[Page 17714]]

To address current concerns, the consideration as to whether 
declassification would assist terrorism was added.
--Sec.  1045.75: This content was previously in Sec.  1045.13. There 
are no changes to the content.
--Sec.  1045.80: This content was previously in Sec.  1045.15. The 
introduction was revised for clarity.
--Sec.  1045.85: This content was previously in Sec.  1045.14. The 
content was edited to include information on coordination with DoD in 
the classification of FRD, to codify existing practices. It also adds 
content concerning the transclassification of TFNI, which is added due 
to the comprehensive implementation of TFNI. Lastly, it adds content 
regarding the return of FRD or TFNI information to the RD category, 
codifying a revision to sections 142(d) and (e) of the AEA that allows 
this action.
--Sec.  1045.90: This content was previously in Sec.  1045.21. The 
content was reworded for clarity.
--Sec.  1045.95: This content was previously in Sec.  1045.17. Examples 
of RD in each classification level were removed as unnecessary and the 
language was revised and reorganized for clarity.
--Sec.  1045.100: This content was previously in Sec.  1045.14. There 
have been no substantive changes to this content.
--Sec.  1045.105: This content was previously in Sec.  1045.14 and 
Sec.  1045.20. To give more detail on an existing process, the 
paragraph now specifies that declassification proposals must be in 
writing, and include a reason for the proposal. The paragraph also 
provides greater detail on the process used to adjudicate 
declassification proposals to codify existing practices. Information on 
coordination with DoD in FRD declassification was added to codify 
existing practices.
--Sec.  1045.110: This content was previously in Sec.  1045.39. The 
changes are: Additional content on agency responsibilities regarding 
classification challenges for RD, FRD, and TFNI information; an 
emphasis on the right of challengers to submit challenges directly to 
the Director, Office of Classification, at any time; more information 
on the actions required of the Director, Office of Classification, and 
the challenger's appeal rights. This section also clarifies that agency 
responses to challenges (except for DoD for FRD) are limited to 
interpreting the application of guidance to derivatively classify 
matter. This is to ensure RD, FRD, and TFNI challenges are referred to 
the appropriate agency for consideration and any changes to guidance 
based on a challenge will be promulgated.
4. Subpart D
    Subpart D, previously titled, ``Executive Order 12958: `Classified 
National Security Information'' Requirements Affecting the Public,'' 
was renamed ``Classifying and Declassifying Matter Containing RD, FRD, 
or TFNI.'' Subpart D previously contained Sec.  1045.50 to Sec.  
1045.53. It now contains Sec.  1045.115 to Sec.  1045.165. The sections 
of Subpart D that deal with DOE's NSI classification program were moved 
to Subpart F. Sections from Subparts B and C were moved into Subpart D.
    Subpart D contains a number of new sections. The new sections 
addressing TFNI cover: The requirement for a person trained to classify 
TFNI to review any matter that could potentially contain TFNI; the 
requirement for classification of TFNI by a person with appropriate 
authority; and the appropriate procedure for when TFNI guidance cannot 
be located.
    A description of authorities and procedures for redacting RD, FRD, 
or TFNI from a document was also added to this Subpart. Authorities and 
procedures for redacting RD, FRD, or TFNI were added to clarify when 
other agencies may remove RD, FRD, or TFNI from matter.
    To assist agencies in developing proper training materials, detail 
was added to descriptions of training requirements for RD Derivative 
Classifiers and for persons with access to RD, FRD, or TFNI. The 
section describing classification by compilation or association 
provides more detail about these training requirements.
    The existing sections of Subpart D were changed as follows: Changes 
to the content are discussed in the new location noted.

--Sec.  1045.50: This content was moved to Sec.  1045.5.
--Sec.  1045.51: This content was moved to Sec.  1045.10(a).
--Sec.  1045.52: This content was moved to Sec.  1045.185 and Sec.  
1045.190.
--Sec.  1045.53: This content was moved to Sec.  1045.205 and Sec.  
1045.210

    The sections of Subpart D are now as follows:

--Sec.  1045.115: This content was previously in Sec.  1045.34. It 
contains two proposed amendments. The authority for agencies to 
recognize RD DC authorities granted by other agencies was added to 
allow agencies flexibility and save agencies the time and resources 
spent repeating training already provided when the previous authority 
is the same and to allow agencies greater flexibility in authorities 
for Strategic Partnership Projects when persons may require 
classification authority for other agency work. Content was added to 
address authority and training to classify matter containing TFNI.
--Sec.  1045.120: This content was previously in Sec.  1045.35. Content 
was added to provide more detail regarding training for persons with 
access to RD, FRD, or TFNI, and for RD DC training. Periodic refresher 
training was added for persons with access to RD, FRD, or TFNI and 
refresher training every two years is required for RD DCs. This 
requirement is consistent with requirements for other classified 
information. Content was also added concerning officials and training 
for TFNI classification which was added to implement TFNI.
--Sec.  1045.125: This content was previously in Sec.  1045.44. To 
codify existing practices, the section provides greater detail on the 
process for reviewing matter that potentially contains RD, FRD or TFNI. 
The requirement for review of such matter by an RD DC was changed from 
``any authorized holder who believes he or she has information which 
may be RD shall submit it to an RD Classifier for evaluation'' to 
``Matter that potentially contains RD or FRD must be reviewed by an RD 
Derivative Classifier.'' This change reflects the current DOE 
requirement for classification reviews, and adds FRD because FRD and RD 
often have similar content. The requirement for review no longer relies 
on the authorized holder's subjective belief that information may be 
RD, since it may be unreliable. New content was added to address TFNI.
--Sec.  1045.130: This content was previously Sec.  1045.41, and Sec.  
1045.46. Content, was added to address classification of TFNI. Content 
was also added to address when source documents may be used as a basis 
for classifying matter containing RD or FRD. The section provides more 
detail for existing practices dealing with the process of 
classification by association or compilation.
--Sec.  1045.135: This content was previously in Sec.  1045.14. For the 
RDMO to be aware of guidance available to RD DCs and to resolve issues 
at the agency level, when possible, the RDMO and ARDMO were added as 
contacts for when RD DCs have potentially classified

[[Page 17715]]

information for which they cannot find guidance. Also, the Director, 
Office of Classification, is now explicitly required to notify the RDMO 
of the agency originating information of the results of any initial 
determination requests transmitted to the Director. Potentially 
classified documents pending determination are now protected at a 
minimum of SRD or SFRD, instead of CRD required by the current 
regulation. This is due to the fact that since the majority of RD is 
Secret, this is the most appropriate level of protection until the 
specific level is identified. Additional information was added 
regarding the proper procedure when TFNI guidance cannot be located.
--Sec.  1045.140: This content was previously in Sec.  1045.40. New 
sub-paragraphs were added to cover markings for: the IC; working papers 
containing RD, FRD, or TFNI; commingled RD/FRD/TFNI with NSI or CUI; 
special format matter; and TFNI markings. All revisions to the marking 
sections were based on national policy, with content added to fully 
address and clarify requirements.
--Sec.  1045.145: This section was added to address matter printed from 
an IT system.
--Sec.  1045.150: This new section addresses authorities and procedures 
for redacting RD, FRD, or TFNI from matter. This content was added to 
clarify procedures for removing RD, FRD, or TFNI from matter and ensure 
the resulting document does not potentially contain RD, FRD, or TFNI.
--Sec.  1045.155: This content was previously in Sec.  1045.32 and 
Sec.  1045.38. TFNI was added and new content addresses who may redact 
RD, FRD, or TFNI from a document being prepared for public release. 
This was added to ensure matter containing RD, FRD, or TFNI is reviewed 
by a person with subject matter expertise and authority so that RD, 
FRD, or TFNI is not inadvertently released.
--Sec.  1045.160: This content is a new addition. It was added at the 
request of other agencies to ensure documents from which RD, FRD, or 
TFNI is removed that still contain NSI are reviewed and marked 
appropriately.
--Sec.  1045.165: This content was previously in Sec.  1045.40. TFNI 
was added.
5. Subpart E
    Subpart E, Government-wide Procedures for Handling Freedom of 
Information Act (FOIA) and Mandatory Declassification Review (MDR) 
Requests for Matter Marked as or Potentially Containing RD, FRD, or 
TFNI,'' is a new addition containing content currently contained in 
Subpart C and new content. This section describes requirements for 
other Government agencies when they receive a FOIA or MDR request that 
potentially contains RD, FRD, or TFNI. Subpart E contains Sec.  
1045.170 to Sec.  1045.180. Sections from Subpart C that deal with RD 
and FRD under a FOIA or an MDR request were moved to this subpart. 
These sections were also expanded to provide greater detail regarding 
the processes for appeals and requests.
    The sections of Subpart E are as follows:

--Sec.  1045.170--This section was added to clarify that this section 
applies to other Government agencies who receive FOIA and MDR requests 
for matter that is marked as or potentially contains RD, FRD, or TFNI. 
RD, FRD, and TFNI, is classified under the Atomic Energy Act and 
therefore does not fall under the MDR provisions of E.O. 13526, which 
only applies to NSI. This section ensures that RD, FRD, and TFNI are 
also considered for declassification and the appropriate authority 
reviews matter that is marked as or potentially contains this 
information.
--Sec.  1045.175: This content was previously in Sec.  1045.42. This 
section now clarifies that it applies to matter that potentially 
contains RD, FRD, or TFNI as well as matter marked as containing RD, 
FRD, or TFNI. The Denying Official for Naval Nuclear Propulsion was 
changed to the Deputy Director, Deputy Administrator for Naval 
Reactors, so that the Denying Official and the appeal authority are no 
longer the same. Language for the DoD Initial Denying Authority was 
incorporated from DoD Manual 5400.07, DoD Freedom of Information Act 
(FOIA) Program.
--Sec.  1045.180: This content was previously in Sec.  1045.42. The 
content was expanded to clarify the process and provide greater detail 
regarding FOIA and MDR appeals for matter containing RD, FRD, or TFNI 
and to ensure RD, FRD, or TFNI portions are not included in NSI appeals 
to ISCAP. Since DOE may receive appeals from individuals or from 
agencies, both circumstances are now addressed to ensure all appeals 
for RD and TFNI are sent to DOE and all appeals for FRD are sent to DOE 
or DoD. Appeals are now required to be submitted within 60 days of the 
receipt of the denial, which is consistent with the requirement for NSI 
contained in 32 CFR part 2001 section 33.
6. Subpart F
    Subpart F, ``DOE-specific procedures for MDR Requests,'' is a new 
addition containing content currently contained in Subpart C and new 
content. This section describes how a person submits an MDR request to 
DOE for matter that is marked as or potentially contains NSI, RD, FRD, 
or TFNI. This section also describes how MDR requests are processed 
within DOE. As recognized in section 6.2 of E.O. 13526, RD, FRD, and 
TFNI, which are classified under the Atomic Energy Act. Therefore, MDR 
procedures in E.O. 13526, which only applies to NSI, do not apply to 
RD, FRD, or TFNI. This subpart implements DOE procedures for processing 
MDR requests for NSI, under E.O. 13526, and also ensures the public may 
request declassification reviews of documents containing RD, FRD, or 
TFNI. Subpart F contains Sec.  1045.185 to Sec.  1045.225. Sections 
from Subpart D that deal with MDR requests and appeals by the public 
were moved to this Subpart. Subpart F contains new sections that 
describe exemptions to MDR requests, the cost associated with an MDR, 
the DOE process for MDR reviews and appeals, and DOE's OpenNet online 
resource.
    The sections of Subpart F are as follows:

--Sec.  1045.185--This section was added to clarify that this subpart 
concerns DOE-specific processes for MDRs under E.O. 13526, which 
includes NSI, and review of declassification requests for matter marked 
as or potentially containing RD, FRD, or TFNI, which are not governed 
by E.O. 13526, to ensure these are considered and appropriately 
reviewed.
--Sec.  1045.190: This content was previously in Sec.  1045.52. The 
mailing address for the Director of Classification was updated.
--Sec.  1045.195: This content was previously in Sec.  1045.52. An 
exemption from MDR requests was added for RD matter (technical 
engineering, blueprints and design documents regarding nuclear 
weapons). Portion by portion review of these documents is complex and 
time consuming and results in release of minimal non-exempt 
information. Processing and review of these documents requires 
significant resources. Due to the significant sensitivity of the vast 
majority of information contained in these documents, DOE determined 
that they should not be subject to an MDR. The exemption from mandatory 
declassification review under the

[[Page 17716]]

Central Intelligence Agency Information Act was removed because it does 
not apply to DOE records.
--Sec.  1045.200: This new section contains content addressing costs 
for MDR reviews. When 10 CFR part 1045 was initially issued, DOE 
received very few MDR requests. Due to a significant increase in MDR 
requests, DOE determined it was necessary to recover some of the cost. 
The fees established mirror DOE fees for FOIA requests.
--Sec.  1045.205: Content addressing MDR requests and appeals for 
matter containing RD, FRD, or TFNI was added. The changes codify 
existing practices.
--Sec.  1045.210: This content was previously in Sec.  1045.53. 
Addressed the denial of naval nuclear propulsion information in the 
requirement since this information is not initially denied by the 
Director, Office of Classification.
--Sec.  1045.215: This content was previously in Sec.  1045.53.
--Sec.  1045.220: This new section was added to address final MDR 
appeals for matter containing RD, FRD, or TFNI and ensure RD, FRD, and 
TFNI portions are removed from any matter containing NSI submitted to 
ISCAP for review. The requirement to coordinate Naval Nuclear 
Propulsion with the NNSA Deputy Administrator for Naval Nuclear 
Propulsion was added because that is the appeal authority for this 
information.
--Sec.  1045.225: This new section advises the public that matter 
previously requested under the FOIA/MDR is available on the DOE OpenNet 
database and provided link to OpenNet.

II. Regulatory Review and Procedural Requirements

A. Review Under Executive Orders 12866 and 13563

    OMB has determined that this action does not constitute a 
``significant regulatory action'' as defined in section 3(f) of E.O. 
12866, ``Regulatory Planning and Review'' (58 FR 51735, October 4, 
1993).

B. Review Under Executive Orders 13771 and 13777

    On January 30, 2017, the President issued Executive Order 13771, 
``Reducing Regulation and Controlling Regulatory Costs.'' That Order 
stated the policy of the executive branch is to be prudent and 
financially responsible in the expenditure of funds, from both public 
and private sources. The Order stated it is essential to manage the 
costs associated with the governmental imposition of private 
expenditures required to comply with Federal regulations. This proposed 
rule is expected to be an E.O. 13771 deregulatory action.
    Additionally, on February 24, 2017, the President issued Executive 
Order 13777, ``Enforcing the Regulatory Reform Agenda.'' The Order 
required the head of each agency designate an agency official as its 
Regulatory Reform Officer (RRO). Each RRO oversees the implementation 
of regulatory reform initiatives and policies to ensure that agencies 
effectively carry out regulatory reforms, consistent with applicable 
law. Further, E.O. 13777 requires the establishment of a regulatory 
task force at each agency. The regulatory task force is required to 
make recommendations to the agency head regarding the repeal, 
replacement, or modification of existing regulations, consistent with 
applicable law. At a minimum, each regulatory reform task force must 
attempt to identify regulations that:
    (i) Eliminate jobs, or inhibit job creation;
    (ii) Are outdated, unnecessary, or ineffective;
    (iii) Impose costs that exceed benefits;
    (iv) Create a serious inconsistency or otherwise interfere with 
regulatory reform initiatives and policies;
    (v) Are inconsistent with the requirements of Information Quality 
Act, or the guidance issued pursuant to that Act, in particular those 
regulations that rely in whole or in part on data, information, or 
methods that are not publicly available or that are insufficiently 
transparent to meet the standard for reproducibility; or
    (vi) Derive from or implement Executive Orders or other 
Presidential directives that have been subsequently rescinded or 
substantially modified.
    This proposed rule, which would update the existing rule to reflect 
changes in the Atomic Energy Act, E.O. 13526, 32 CFR part 2001, DOE 
policies and DOE reorganizations that have rendered portions of the 
existing regulations outdated, as well clarify requirements and allow 
agencies more flexibility in implementing RD/FRD programs, meets the 
goals and objectives of the task force.

C. Review Under the Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires 
preparation of a regulatory flexibility analysis for any rule that by 
law must be proposed for public comment, unless the agency certifies 
that the rule, if promulgated, will not have a significant economic 
impact on a substantial number of small entities. As required by E.O. 
13272, ``Proper Consideration of Small Entities in Agency Rulemaking'' 
(67 FR 53461, August 16, 2002), DOE published procedures and policies 
on February 19, 2003, to ensure that the potential impacts of its rules 
on small entities are properly considered during the rulemaking 
process. DOE has made its procedures and policies available on the 
Office of the General Counsel's website: (http://energy.gov/gc/office-general-counsel).
    DOE has reviewed this proposed rule under the Regulatory 
Flexibility Act and certifies that, if adopted, the rule would not have 
a significant impact on a substantial number of small entities. This 
proposed rule applies to Federal agencies and private entities who have 
access to RD. The number of private entities with access to RD is very 
small. These include access permittees (covered by 10 CFR part 1016) 
and private entities whose operations involve isotope separation 
technologies. The proposed rule does not require significant new 
requirements for Federal agencies or private entities with access to 
RD. The proposed changes are administrative changes (e.g., renumbering, 
and updating office names to reflect reorganizations), and updates to 
incorporate responsibilities and procedures due to changes in laws, 
regulations and E.O.s and clarify requirements.
    The proposed rule initiates fees for Mandatory Declassification 
Reviews (MDRs). When 10 CFR part 1045 was initially issued, DOE 
received very few MDR requests. Due to a significant increase in MDR 
requests, DOE determined it was necessary to recover some of the cost. 
Matter requested under an MDR could be requested under the FOIA (but 
cannot be requested under both), so the fees established mirror DOE 
fees for FOIA requests rather than creating a different fee structure.
    For the above reasons, DOE certifies that the proposed rule, if 
adopted, will not have a significant economic impact on a substantial 
number of small entities.

D. Review Under the Paperwork Reduction Act

    This proposed rule does not contain a collection of information 
subject to the Office of Management and Budget (OMB) approval under the 
Paperwork Reduction Act.

E. Review Under the National Environmental Policy Act

    DOE has determined that this action meets the requirements for a 
Categorical

[[Page 17717]]

Exclusion A-5 of Appendix A to Subpart D, 10 CFR part 1021, which 
applies to a rulemaking that addresses or amends an existing rule or 
regulation that does not change the environmental effect of the rule or 
regulation being amended.
    This proposed rulemaking is necessary because changes in DOE and 
national policies have rendered portions of the existing rule outdated. 
In addition, changes are needed to clarify requirements and allow 
agencies more flexibility in implementing programs for RD and FRD.
    These changes are administrative in nature reflecting changes to 
responsibilities and procedures, and amending the rule will not change 
the environmental effect of the rule. Accordingly, neither an 
environmental assessment nor an environmental impact analysis is 
required.

F. Review Under E.O. 13132, ``Federalism''

    E.O. 13132 (64 FR 43255, August 4, 1999), imposes certain 
requirements on agencies formulating and implementing policies or 
regulations that preempt State law or that have federalism 
implications. Agencies are required to develop a process to ensure 
meaningful and timely input by State and local officials in the 
development of regulatory policies that have ``federalism 
implications.'' Policies that have federalism implications are defined 
in the E.O. to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.'' On March 7, 
2011, DOE published a statement of policy describing the 
intergovernmental consultation process it will follow in the 
development of such regulations (65 FR 13735, March 14, 2000).
    DOE has examined this proposed rule and has determined that it does 
not have a substantial direct effect on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government. 
No further action is required by E.O. 13132.

G. Review Under E.O. 12988, ``Civil Justice Reform''

    Section 3 of E.O. 12988 (61 FR 4729, February 7, 1996), instructs 
each agency to adhere to certain requirements in promulgating new 
regulations. These requirements, set forth in section 3(a) and (b), 
include eliminating drafting errors and needless ambiguity, drafting 
the regulations to minimize litigation, providing clear and certain 
legal standards for affected legal conduct, and promoting 
simplification and burden reduction. Agencies are also instructed to 
make every reasonable effort to ensure that the regulation describes 
any administrative proceeding to be available prior to judicial review 
and any provisions for the exhaustion of administrative remedies. DOE 
has determined that this regulatory action meets the requirements of 
section 3(a) and (b) of E.O. 12988.

H. Review Under the Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. 
L. 104-4), requires each Federal agency to assess the effects of 
Federal regulatory action on state, local and tribal governments and 
the private sector. For proposed regulatory actions likely to result in 
a rule that may cause expenditures by State, local, and Tribal 
governments, in the aggregate, or by the private sector of $100 million 
or more in any one year (adjusted annually for inflation), section 202 
of UMRA requires a Federal agency to publish estimates of the resulting 
costs, benefits, and other effects on the national economy. UMRA also 
requires Federal agencies to develop an effective process to permit 
timely input by elected officers of State, local, and Tribal 
governments on a proposed ``significant intergovernmental mandate.'' In 
addition, UMRA requires an agency plan for giving notice and 
opportunity for timely input to small governments that may be affected 
before establishing a requirement that might significantly or uniquely 
affect them. On March 18, 1997, DOE published a statement of policy on 
its process for intergovernmental consultation under the UMRA (62 FR 
12820, March 18, 1997). This policy is available at DOE General 
Counsel's website (http://energy.gov/gc/office-general-counsel). This 
part contains neither an intergovernmental mandate, nor a mandate that 
may result in the expenditure of $100 million or more in any year, so 
these requirements do not apply.

I. Review Under E.O. 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use''

    E.O. 13211 (66 FR 28355, May 22, 2001) requires Federal agencies to 
prepare and submit to the Office of Information and Regulatory Affairs 
(OIRA), Office of Management and Budget, a Statement of Energy Effects 
for any proposed significant energy action. A ``significant energy 
action'' is defined as any action by an agency that promulgates or is 
expected to lead to the promulgation of a final rule, and that: (1) Is 
a significant regulatory action under E.O. 12866, or any successor 
order; and (2) is likely to have a significant adverse effect on the 
supply, distribution, or use of energy; or (3) is designated by the 
Administrator of OIRA as a significant energy action. For any proposed 
significant energy action, the agency must give a detailed statement of 
any adverse effects on energy supply, distribution, or use should the 
proposal be implemented, and of reasonable alternates to the action and 
their expected benefits on energy supply, distribution, and use.
    This proposed rule is not a significant energy action, nor has it 
been designated as such by the Administrator of OIRA. Accordingly, DOE 
has not prepared a Statement of Energy Effects.

J. Review Under the Treasury and General Government Appropriations Act, 
2001

    The Treasury and General Government Appropriations Act, 2001 (44 
U.S.C. 3516, note) provides for agencies to review most disseminations 
of information to the public under guidelines established by each 
agency pursuant to general guidelines issued by OMB. OMB's guidelines 
were published at 67 FR 8452 (February 22, 2002), and DOE's guidelines 
were published at 67 FR 62446 (October 7, 2002). DOE has reviewed this 
proposed rule under the OMB and DOE guidelines and has concluded that 
it is consistent with applicable policies in those guidelines.

K. Review Under the Treasury and General Government Appropriations Act 
of 1999

    Section 654 of the Treasury and General Government Appropriations 
Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family 
Policymaking Assessment for any proposed rule or policy that may affect 
family well-being. This proposed rule would not have any impact on the 
autonomy or integrity of the family as an institution. Accordingly, DOE 
has concluded that it is not necessary to prepare a Family Policymaking 
Assessment.

III. Opportunities for Public Comment

A. Participation in This Proposed Rulemaking

    DOE encourages the maximum level of public participation in this 
proposed

[[Page 17718]]

rulemaking. Interested persons are encouraged to provide comments.
    DOE has established a period of 30 days following publication of 
this proposed rulemaking for persons and organizations to comment. All 
public comments and other docket material will be available for review 
at regulations.gov. The docket material will be found under Docket 
Number AU60-2016-1045.

B. Written Comment Procedures

    Interested persons are invited to participate in this proceeding by 
submitting written data, views or arguments with respect to the 
subjects set forth in this proposed rulemaking. Instructions for 
submitting written comments are set forth at the beginning of this 
proposed rulemaking and in this section. Where possible, comments 
should identify the specific section they address.
    Comments should be labeled both on the envelope and on the 
documents as Docket Number AU60-2016-1045 and must be received by the 
date specified at the beginning of this proposed rule. All comments and 
other relevant information received by the date specified at the 
beginning of this proposed rulemaking will be considered by DOE in the 
subsequent stages of the rulemaking process.
    Pursuant to the provisions of 10 CFR part 1004, ``Freedom of 
Information,'' any person submitting information or data that is 
believed to be exempt by law from public disclosure should submit one 
complete copy of the document and three copies, if possible, from which 
the information believed to be exempt has been deleted. DOE will make 
its own determination with regard to the confidential status of the 
information or data and treat it according to its determination.

IV. Approval of the Office of the Secretary

    The Secretary of Energy has approved publication of this proposed 
rule.

List of Subjects in 10 CFR Part 1045

    Classified information, Declassification, Formerly restricted data, 
Restricted data, Transclassified foreign nuclear information.

    Issued in Washington, DC, on April 11, 2018.
Matthew B. Moury,
Associate Under Secretary for Environment, Health, Safety and Security.
    For the reasons discussed in the preamble, DOE proposes to amend 
part 1045 of Title 10 of the Code of Federal Regulations, as follows:

PART 1045--NUCLEAR CLASSIFICATION AND DECLASSIFICATION

Subpart A--Introduction
Sec.
1045.5 What is the purpose of this part?
1045.10 To whom does this part apply?
1045.15 What is the process for submitting a question or a comment 
on any of the policies and procedures contained in this part?
1045.20 How does an agency request an exemption or equivalency to 
meet a provision in this part?
1045.25 What actions can be taken against a person who violates the 
requirements in this part?
1045.30 What definitions apply to this part?
1045.35 What acronyms are commonly used in this part?
Subpart B--Management of Restricted Data (RD), Formerly Restricted Data 
(FRD), and Transclassified Foreign Nuclear Information (TFNI) 
Classification Programs
1045.40 Is there an official in each agency with access to RD, FRD, 
or TFNI who manages the agency's RD, FRD, or TFNI program to ensure 
the requirements in this part are met?
1045.45 What are the responsibilities of DOE officials and 
personnel, and the officials and personnel of other agencies, under 
this part?
1045.50 Reserved.
1045.55 When are RD, FRD, and TFNI considered for declassification?
1045.60 Does an unauthorized public release of RD, FRD, or TFNI 
result in its declassification?
1045.65 What are the responsibilities of a person who has access to 
RD, FRD, or TFNI if they see information in the open literature that 
they think is RD, FRD, or TFNI?
Subpart C--Determining if Information is RD, FRD, or TFNI
1045.70 How is information initially determined to be RD?
1045.75 Are there prohibitions against information being classified, 
remaining classified, or prevented from being declassified as RD, 
FRD, or TFNI?
1045.80 What are the classification and declassification 
presumptions?
1045.85 How is information determined to be FRD or TFNI and can FRD 
or TFNI be returned to the RD category?
1045.90 Can information generated by private entities that is not 
owned by, produced by, or controlled by the U.S. Government be 
classified as RD?
1045.95 What are the criteria used to assign levels to RD, FRD, or 
TFNI?
1045.100 How are RD, FRD, and TFNI declassified?
1045.105 What is the method to request the declassification of RD, 
FRD or TFNI?
1045.110 How are challenges to the classification and 
declassification of RD, FRD, or TFNI submitted and processed?
Subpart D--Classifying and Declassifying Matter Containing RD, FRD, or 
TFNI
1045.115 Who is authorized to derivatively classify matter that 
contains RD, FRD, or TFNI?
1045.120 What training is required for persons who have access to or 
who derivatively classify matter containing RD, FRD, or TFNI?
1045.125 What is the process for reviewing and derivatively 
classifying matter that potentially contains RD, FRD, or TFNI?
1045.130 How does an authorized person derivatively classify matter 
containing RD, FRD, or TFNI?
1045.135 Can a person make an RD, FRD, or TFNI classification 
determination if applicable classification guidance is not 
available?
1045.140 How is matter containing RD, FRD, or TFNI, marked?
1045.145 Who must review output from a classified IT system that is 
marked as RD, FRD, or TFNI?
1045.150 Can anyone remove the RD, FRD, or TFNI portions and 
markings to produce an NSI or unclassified version of the matter?
1045.155 How is matter marked as containing RD, FRD, or TFNI 
declassified?
1045.160 When the RD, FRD, or TFNI is removed from matter, what 
action must be taken if the matter still contains NSI?
1045.165 Once matter marked as RD, FRD, or TFNI is declassified, how 
is it marked?
Subpart E--Government-wide Procedures for Handling Freedom of 
Information Act (FOIA) and Mandatory Declassification Review (MDR) 
Requests for Matter Marked as or Potentially Containing RD, FRD, or 
TFNI
1045.170 What is the purpose of this subpart?
1045.175 How must agencies process FOIA and MDR requests for matter 
that is marked as or potentially contains RD, FRD, or TFNI?
1045.180 What is the procedure if an agency receives an appeal to a 
FOIA or MDR concerning the denial of RD, FRD, or TFNI?
Subpart F--DOE-specific procedures for MDR Requests
1045.185 What is the purpose of this subpart?
1045.190 How does the public submit an MDR for DOE classified 
matter?
1045.195 Is any matter exempt from MDR requests?
1045.200 Is there a cost for an MDR review?
1045.205 How does DOE conduct an MDR review?
1045.210 How does a person submit an appeal if DOE withholds 
classified information in an MDR response?
1045.215 How does DOE process an MDR appeal for DOE matter 
containing NSI?
1045.220 How does DOE process an MDR appeal for matter containing 
RD, FRD, or TFNI?
1045.225 Are DOE responses to MDR requests available to the public?


[[Page 17719]]


    Authority:  42 U.S.C. 2011; E.O. 13526, 75 FR 705, 3 CFR 2010 
Comp., pp. 298-327.

Subpart A--Introduction


Sec.  1045.5  What is the purpose of this part?

    (a) This part implements sections 141, 142, and 146 of the Atomic 
Energy Act, as amended (42 U.S.C. 2011 et seq.) (AEA) and describes the 
procedures to be used by the public in questioning or appealing DOE 
decisions regarding the classification of NSI under E.O. 13526, 
``Classified National Security Information,'' and 32 CFR part 2001, 
``Classified National Security Information; Final Rule.'' This part is 
divided into six subparts:
    (1) Subpart A--``Introduction'' specifies to whom these rules 
apply, describes how to submit comments or suggestions concerning the 
policies and procedures in this part, describes how to request an 
exemption from or an equivalency to a provision in this part; outlines 
sanctions imposed for violating the policies and procedures in this 
part; defines key terms; and lists acronyms used in this part.
    (2) Subpart B--``Program Management of Restricted Data (RD), 
Formerly Restricted Data (FRD), and Transclassified Foreign Nuclear 
Information (TFNI) Classification Programs'' specifies responsibilities 
of officials in DOE and other agencies in the role of identifying RD, 
transclassifying RD to FRD or to TFNI, and returning FRD or TFNI to RD; 
discusses the systematic declassification review of information/matter 
containing RD, FRD, or TFNI; and describes the ``no comment'' policy.
    (3) Subpart C--``Determining if Information is RD, FRD, or TFNI'' 
describes how information is initially classified as RD, 
transclassified as FRD or TFNI, or declassified; lists criteria for 
evaluating whether RD, FRD, or TFNI should be classified or 
declassified; describes the prohibitions against classifying 
information as RD, FRD, or TFNI; lists areas of information that are 
presumed to be RD or unclassified; specifies how privately generated 
information may be classified as RD; defines the classification levels; 
describes how to submit proposals for RD, FRD, and TFNI; describes how 
to challenge the classification or declassification of RD, FRD, or 
TFNI; and describes the issuance of classification guides to promulgate 
classification and declassification determinations.
    (4) Subpart D--``Classifying and Declassifying Matter Containing 
RD, FRD, or TFNI'' describes who has the authority to classify and 
declassify matter containing RD, FRD, or TFNI; the appointment and 
training of these individuals; discusses the use of classified 
addendums; describes classification by association or compilation; 
specifies who must review matter that potentially contains RD, FRD, or 
TFNI intended for public release; describes what to do if an RD 
Derivative Classifier or a person trained to classify matter containing 
TFNI cannot locate classification guidance to make a determination; 
describes the classification and declassification marking requirements; 
and states the prohibition against the automatic declassification of 
matter containing RD, FRD, or TFNI.
    (5) Subpart E--``Government-wide Procedures for Handling Freedom of 
Information Act (FOIA) and Mandatory Declassification Review (MDR) 
Requests for Matter Marked as or Potentially Containing RD, FRD, or 
TFNI'' describes how agencies process FOIA or MDR requests and appeals 
for matter marked as or potentially containing RD, FRD, or TFNI
    (6) Subpart F--``DOE Procedures for MDR Requests'' describes how 
DOE FOIA and MDR requests and appeals for matter marked as or 
potentially containing NSI, RD, FRD, or TFNI are submitted and 
processed.
    (b) Reserved.


Sec.  1045.10   To whom does this part apply?

    (a) Subparts A, B, C, and D apply to--
    (1) Any person or agency with access to RD, FRD, or TFNI;
    (2) Any person or agency who generates information that has the 
potential to be RD, FRD, or TFNI; and
    (3) Any person or agency who generates matter that potentially 
contains RD, FRD, or TFNI.
    (b) Subpart E applies to Government agencies who receive Freedom of 
Information Act (FOIA) or Mandatory Declassification Review (MDR) 
requests for matter that is marked as or potentially contains RD, FRD, 
or TFNI.
    (c) Subpart F applies to DOE and to any person submitting a 
Mandatory Declassification Review request for DOE matter.


Sec.  1045.15   What is the process for submitting a question or a 
comment on any of the policies and procedures contained in this part?

    Any person who has a question or a comment on DOE's classification 
and declassification policies and procedures under this part may submit 
the question or comment in writing to the Director, Office of 
Classification, AU-60/Germantown Building, U.S. Department of Energy, 
1000 Independence Avenue SW, Washington, DC 20585. The correspondence 
should contain the question or comment, include applicable background 
information and/or citations, as appropriate, and must provide an 
address for the response. The Director will make every effort to 
respond within 60 days. Under no circumstance will anyone be subject to 
retribution for asking a question or making a comment regarding DOE's 
classification and declassification policies and procedures.


Sec.  1045.20   How does an agency request an exemption or equivalency 
to meet a provision in this part?

    The agency must submit a request for an exemption or an equivalency 
to the procedural provisions under this part in writing to the 
Director, Office of Classification, AU-60/Germantown Building, U.S. 
Department of Energy, 1000 Independence Avenue SW, Washington, DC 
20585. The request must provide all relevant facts, to include any 
applicable citations, describing the procedure and why the exemption or 
equivalency is required. If the request is for an equivalency, it must 
include a proposed alternate procedure to meet the intent of the 
procedure for which the equivalency is being requested.


Sec.  1045.25  What actions can be taken against a person who violates 
the requirements in this part?

    Any knowing, willful, or negligent action contrary to the 
requirements of this part that results in the misclassification of 
information is subject to appropriate sanctions. Such sanctions may 
range from administrative sanctions (e.g., reprimand, suspension, 
termination) to civil or criminal penalties, depending on the nature 
and severity of the action as determined by the appropriate authority 
in accordance with applicable laws. Other violations of the policies 
and procedures in this part may be grounds for administrative sanctions 
as determined by an appropriate authority.


Sec.  1045.30   What definitions apply to this part?

    The following definitions apply to this part:
    Agency means any ``executive agency'' as defined in 5 U.S.C. 105; 
any ``Military Department'' as defined in 5 U.S.C. 102; and any other 
entity within the executive branch that has access to RD, FRD, or TFNI 
information or matter.
    Associate RD Management Official (ARDMO) means a person appointed 
in accordance with agency policy to assist the RD Management Official 
(RDMO)

[[Page 17720]]

with managing the implementation of this part within that agency.
    Associate Under Secretary for Environment, Health, Safety and 
Security means DOE's Associate Under Secretary for Environment, Health, 
Safety and Security or any person to whom the Associate Under 
Secretary's duties are delegated.
    Atomic Energy Act (AEA) means the Atomic Energy Act of 1954, as 
amended (42 U.S.C. 2011 et seq.).
    Automatic Declassification means the declassification of NSI based 
on a specific date, event, or timeframe, in accordance with E.O. 13526, 
or prior or successor orders.
    Classification means the act or process by which information or 
matter is determined to require protection as RD, FRD, or TFNI, under 
the AEA or as NSI under E.O. 13526 or prior or successor orders.
    Classification Category identifies whether information is 
classified by statute or E.O. The classification categories are: RD, 
FRD, TFNI (classified by the AEA), and NSI (classified by E.O.).
    Classification Guidance means any instruction or source approved by 
an appropriate authority that prescribes the classification of specific 
information (e.g., classification guide, classification bulletins, 
portion-marked source documents).
    Classification Guide means a written record of detailed 
instructions, approved by an appropriate authority, that explicitly 
identifies whether specific information is classified, usually 
concerning a system, plan, project, or program. If classified, the 
level and category of classification assigned to such information is 
specified. For NSI, the classification duration is also specified.
    Classified Information means:
    (1) Information determined to be RD, FRD, or TFNI under the AEA and 
this part, or
    (2) Information that has been determined pursuant to E.O. 13526 or 
any predecessor order to require protection against unauthorized 
disclosure and is marked to indicate its classification status when in 
documentary form.
    Classification Level means one of the three following designators 
for RD, FRD, and TFNI:
    (1) Top Secret (TS) is applied to RD, FRD, or TFNI that is vital to 
the national security and the unauthorized disclosure of which could 
reasonably be expected to cause exceptionally grave damage to the 
national security that the appropriate official is able to identify or 
describe.
    (2) Secret (S) is applied to RD, FRD, or TFNI, the unauthorized 
disclosure of which could reasonably be expected to cause serious 
damage to the national security that the appropriate official is able 
to identify or describe.
    (3) Confidential (C) is applied to RD, FRD, or TFNI the 
unauthorized disclosure of which could reasonably be expected to cause 
undue risk to the common defense and security that the appropriate 
official is able to identify or describe.
    Classified Matter means anything in physical or electronic form 
that contains or reveals classified information.
    Contractor means any industrial, educational, commercial, or other 
entity, grantee, or licensee at all tiers, including a person that has 
executed an agreement with the Federal Government for the purpose of 
performing under a contract, license, or other agreement.
    Declassification means a determination by an appropriate authority 
that:
    (1) Information no longer warrants protection against unauthorized 
disclosure in the interest of the national security, or
    (2) Matter no longer contains or reveals classified information.
    DOE means the Department of Energy.
    Director, Office of Classification, means DOE's Director, Office of 
Classification.
    Downgrading means:
    (1) A decision by DOE that information classified as RD or TFNI is 
classified at a lower level than currently identified in a DOE or joint 
classification guide;
    (2) A joint decision by DOE and the Department of Defense (DoD) 
that FRD is classified at a lower level than currently identified in a 
DOE or joint classification guide; or
    (3) A decision by an RD Derivative Classifier (or in the case of 
TFNI, a person trained to derivatively classify TFNI) based on 
classification guides and bulletins that matter containing RD, FRD, or 
TFNI is classified at a lower level than currently marked.
    (4) A decision, based on a DOE or joint classification guide, by an 
authorized person that matter containing RD, FRD, or TFNI is classified 
at a less sensitive category (e.g., RD to FRD, RD to NSI) than 
currently marked.
    Formerly Restricted Data (FRD) means classified information removed 
from the RD category under the AEA (section 142(d)), after DOE and DoD 
jointly determine it is related primarily to the military utilization 
of nuclear weapons and that the information can be adequately protected 
in a manner similar to NSI.
    Government means the executive branch of the Federal Government of 
the United States.
    Government Information means information that is owned by, produced 
by or for, or is under the control of the U.S. Government.
    Information means facts, data, or knowledge, as opposed to the 
medium in which it is contained.
    Initial Determination means the process used by the Director, 
Office of Classification, to determine if new information is RD. New 
information that falls under the definition of RD is presumed 
classified as RD until the Director, Office of Classification makes the 
initial determination as to its classification status.
    Interagency Security Classification Appeals Panel (ISCAP) means a 
Panel established and administered pursuant to E.O. 13526 and prior or 
successor E.O.s to perform functions specified in the order with 
respect to NSI.
    Matter means any combination of physical documents, electronic 
instances of information or data (including email) at rest or in 
transit, or information or data presentation or representation 
regardless of physical form or characteristics.
    National Security means the national defense or foreign relations 
of the United States.
    National Security Information (NSI) means information that has been 
determined pursuant to E.O. 13526 or prior or successor E.O.s to 
require protection against unauthorized disclosure and is marked to 
indicate its classification status.
    Nuclear weapon means atomic weapon.
    Originating activity, for the purpose of RD, FRD, or TFNI, means 
any development of specific matter (e.g., report, guide) within an 
organization, working group, or between persons, including coordination 
of a product for classification review.
    Person means:
    (1) Any individual, corporation, partnership, firm, association, 
trust, estate, public or private institution, group, Government agency 
other than the Commission, any State or any political subdivision of, 
or any political entity within a State, any foreign government or 
nation or any political subdivision of any such government or nation, 
or other entity; and
    (2) Any legal successor, representative, agent, or agency of the 
foregoing.
    Portion Marking means the application of certain classification

[[Page 17721]]

markings to reasonably segregable sections of matter (e.g., paragraphs, 
phrases, sentences). This also includes any markings required by 
national policy to control portions of unclassified information.
    Restricted Data (RD) means all data concerning: the design, 
manufacture, or utilization of atomic weapons; the production of 
special nuclear material; or the use of special nuclear material in the 
production of energy, except for data declassified or removed from the 
RD category pursuant to section 142 of the AEA.
    RD Derivative Classifier means a person specifically trained and, 
when required, designated to derivatively classify matter containing RD 
or FRD in areas in which they have programmatic expertise.
    RD Management Official (RDMO) means a person appointed by an agency 
to be responsible for managing the implementation of this part within 
the agency.
    Secretary means the Secretary of Energy.
    Source Document means existing classified, portion-marked matter 
that contains classified information that is incorporated, paraphrased, 
restated, or generated in new form into new matter.
    Special Nuclear Materials means special nuclear material as defined 
in the AEA.
    Transclassified Foreign Nuclear Information (TFNI) means 
information concerning the nuclear energy programs of other nations 
(including subnational groups) that is removed from the RD category 
under the AEA (section 142(e)) after DOE and the Director of National 
Intelligence (DNI) jointly determine that the information is necessary 
to carry out intelligence-related activities under the National 
Security Act of 1947, as amended, and that the information can be 
adequately protected in a manner similar to NSI. TFNI includes 
information removed from the RD category by past agreements between DOE 
and the Director of Central Intelligence or past and future agreements 
with the DNI.
    TFNI does not include:
    (1) RD or FRD concerning United Kingdom (U.K.) or Canadian 
programs;
    (2) Any U.S. RD or FRD, including that which the U.S. has 
transmitted to other nations;
    (3) Any evaluation of foreign information based on the use of U.S. 
RD or FRD unless also specifically transclassified to TFNI or any 
evaluation that could reveal such data concerning the U.S., U.K., or 
Canadian programs;
    (4) Classified atomic energy information received from a foreign 
government pursuant to an agreement imposing security measures 
equivalent for those in effect for RD; or
    (5) Classified information on the Tripartite Gas Centrifuge and its 
successor programs, including data on the gas centrifuge work of each 
of the participants.
    TFNI Guideline means a policy document that describes information 
which meets the TFNI criteria for various collection assets.
    Upgrading means:
    (1) A decision by DOE that information classified as RD or TFNI is 
classified at a higher level than currently identified in a DOE or 
joint classification guide;
    (2) A joint decision by DOE and DoD that FRD is classified at a 
higher level than currently identified in a DOE or joint classification 
guide; or
    (3) A decision by an RD Derivative Classifier, (or in the case of 
TFNI, a person trained to classify TFNI) based on classification 
guidance, that matter containing RD, FRD, or TFNI is classified at a 
higher level or category than currently marked. This includes 
correcting the classification level or category of matter that was 
never marked as well as matter erroneously marked as unclassified.


Sec.  1045.35  What acronyms are commonly used in this part?

    The following acronyms are commonly used throughout this part:

AEA--The Atomic Energy Act of 1954, as amended (42 U.S.C. 2011 et seq.)
ARDMO--Associate RD Management Official
C--Confidential
CD--Compact Disk
CFR--Code of Federal Regulations
CUI--Controlled Unclassified Information
DCI--Director of Central Intelligence
DNI--Director of National Intelligence
DoD--Department of Defense
DOE--Department of Energy
E.O.--Executive Order
FOIA--Freedom of Information Act
FRD--Formerly Restricted Data
IC--Intelligence Community
ISCAP--Interagency Security Classification Appeals Panel
ICD--Intelligence Community Directive
ICPG--Intelligence Community Policy Guidance
MDR--Mandatory Declassification Review
NNSA--National Nuclear Security Administration
NRC--Nuclear Regulatory Commission
NSI--National Security Information
Pub. L.--Public Law
RD--Restricted Data
RDMO--RD Management Official
S--Secret
TFNI--Transclassified Foreign Nuclear Information
U.K.--United Kingdom

Subpart B--Management of Restricted Data (RD), Formerly Restricted 
Data (FRD), and Transclassified Foreign Nuclear Information (TFNI) 
Classification Programs


Sec.  1045.40   Is there an official in each agency with access to RD, 
FRD, or TFNI who manages the agency's RD, FRD, or TFNI program to 
ensure the requirements in this part are met?

    (a) Yes. The head of each agency with access to RD, FRD, or TFNI:
    (1) Must appoint at least one Federal official to serve as an RDMO 
who ensures the proper implementation of this part within his or her 
agency and serves as the primary point of contact for coordination with 
the Director, Office of Classification, for classification and 
declassification issues involving RD, FRD, and TFNI. Within DoD, a 
minimum of at least one RDMO must be appointed in each military 
department.
    (2) May appoint or authorize the RDMO to appoint one or more 
Associate RDMOs if there is more than one organization that has access 
to RD, FRD, or TFNI. In such cases, the RDMO is the lead official and 
the primary point of contact with the Director, Office of 
Classification.
    (3) Must ensure contact information for each RDMO and ARDMO is sent 
to the Director, Office of Classification, within 30 days of the 
appointment.


Sec.  1045.45  What are the responsibilities of DOE officials and 
personnel, and the officials and personnel of other agencies, under 
this part?

    (a) The Secretary or Deputy Secretary of Energy must determine in 
writing whether information privately generated by persons in the 
United States but not under a Government contract is classified as RD. 
This responsibility cannot be delegated.
    (b) The Associate Under Secretary for Environment, Health, Safety 
and Security:
    (1) Determines if RD and TFNI may be published without undue risk 
to the common defense and security and declassified;
    (2) Jointly with DoD, determines which information in the RD 
category relating primarily to the military utilization of nuclear 
weapons may be transclassified to the FRD category;
    (3) Jointly with DoD, determines which information in the FRD 
category may be removed from that category and

[[Page 17722]]

returned to the RD category and notifies all appropriate agencies as 
necessary of the change;
    (4) Jointly with DoD, declassifies FRD and RD relating primarily to 
the military utilization of nuclear weapons that may be published 
without undue risk to the common defense and security;
    (5) Jointly with the DNI, determines which information in the RD 
category concerning nuclear energy programs of foreign governments may 
be transclassified to the TFNI category to carry out the provisions of 
the National Security Act of 1947, as amended;
    (6) Jointly with the DNI, determines which information in the TFNI 
category may be removed from that category and returned to the RD 
category and notifies all appropriate agencies as necessary of the 
change;
    (7) Considers declassification proposals received from the public 
or other agencies or their contractors concerning RD, FRD, and TFNI, 
and coordinates responses with the appropriate agencies;
    (8) Makes the final appeal determination concerning the denial of 
any RD, FRD, or TFNI contained in matter requested under statute or 
Executive Order; and
    (9) Makes the final appeal determination for any formal 
classification challenges for RD, DOE FRD, and TFNI.
    (c) The Director, Office of Classification:
    (1) Issues the Government-wide requirements for the classification 
and declassification of RD, FRD, and TFNI in accordance with the AEA 
and this part;
    (2) Grants exemptions and equivalencies to provisions of this part;
    (3) Develops and interprets policies to implement RD, FRD, and TFNI 
classification programs in coordination with DoD for FRD, as 
appropriate;
    (4) Determines whether nuclear-related information is RD;
    (5) Determines if new information in a previously declassified 
subject area warrants classification as RD based on the criteria in 
Sec.  1045.70, except where the information has been widely 
disseminated in the open literature;
    (6) Assigns a classification level to RD and TFNI, and, jointly 
with DoD, to FRD, that reflects the sensitivity of the information to 
the national security;
    (7) Serves as the Denying Official for RD, DOE FRD, and TFNI 
portions of records requested under statute or Executive Order;
    (8) Establishes a system for processing, tracking, and recording 
formal classification challenges and declassification proposals made by 
persons with access to RD, FRD, and TFNI;
    (9) Considers challenges to RD, FRD, and TFNI, coordinates 
challenges with other agencies, as appropriate, and makes the initial 
determination pertaining to the challenge of a classification 
determination concerning RD, DOE FRD, or TFNI;
    (10) Delegates the authority to declassify matter containing RD, 
FRD, or TFNI to qualified individuals in other Government agencies;
    (11) Develops and distributes classification guides to promulgate 
classification and declassification determinations for RD, FRD, and 
TFNI, and jointly develops classification guides and TFNI guidelines 
with DoD, the Nuclear Regulatory Commission (NRC), the National 
Aeronautics and Space Administration, and other agencies in the RD, 
FRD, or TFNI categories or subject areas for which DOE and the agencies 
share responsibility;
    (12) Reviews classification guides that contain RD and jointly 
reviews classification guides that contain FRD topics with the 
appropriate DoD authority (as specified in DoD Instruction 5210.02 or 
successor instructions) that are developed by other agencies;
    (13) Reviews TFNI guidelines and classification guides containing 
TFNI topics developed by other agencies;
    (14) Assists agencies with the implementation of RD, FRD, and TFNI 
classification programs to comply with this part;
    (15) In consultation with the agency RDMO, determines when to 
conduct on-site reviews of agency programs established under this part 
to evaluate the agency's implementation of the requirements;
    (16) Coordinates on-site reviews of the Intelligence Community (IC) 
with the DNI;
    (17) Reviews agency implementing policies;
    (18) Develops training materials related to implementing this part 
and provides these materials to RDMOs and other appropriate persons;
    (19) Reviews any RD-, FRD-, or TFNI-related training material 
submitted by other agencies to ensure consistency with current 
policies;
    (20) Periodically hosts a meeting of RDMOs to disseminate 
information or address issues; and
    (21) Responds to questions and considers comments received from any 
person, including the public, concerning RD, FRD, and TFNI 
classification and declassification policies and procedures.
    (d) DoD jointly with DOE:
    (1) Determines which information in the RD category relating 
primarily to the military utilization of nuclear weapons may be 
transclassified to the FRD category;
    (2) Determines which information in the FRD category may be removed 
from that category and returned to the RD category;
    (3) Assigns a classification level to FRD that reflects the 
sensitivity of the information to the national security;
    (4) Prepares classification guides for FRD; and
    (5) Declassifies FRD and RD relating primarily to the military 
utilization of nuclear weapons that may be published without undue risk 
to the common defense and security.
    (6) Considers challenges to FRD, and coordinates challenges with 
other agencies, as appropriate.
    (e) The DNI jointly with DOE:
    (1) Determines which information in the RD category concerning 
nuclear energy programs of foreign governments may be transclassified 
to the TFNI category to carry out the provisions of the National 
Security Act of 1947, as amended;
    (2) Determines which information in the TFNI category may be 
removed from that category and returned to the RD category; and
    (3) Coordinates IC Directives (ICD) and IC Policy Guidance (ICPG) 
concerning RD, FRD, and TFNI to ensure policies are consistent;
    (f) NRC:
    (1) Jointly with DOE, develops classification guides for programs 
over which both agencies have cognizance; and
    (2) Ensures the review and proper classification of matter 
containing RD by RD Derivative Classifiers that is generated by NRC or 
by its licensed or regulated facilities and activities.
    (g) Heads of Agencies with access to RD, FRD, or TFNI:
    (1) Ensure that matter containing RD, FRD, and TFNI is reviewed by 
a person with appropriate authority and properly classified.
    (2) Must appoint at least one RDMO to manage the implementation of 
this part within the agency;
    (3) Ensure implementing directives for this part are developed, 
submitted to DOE for review prior to issuance, to ensure consistency 
with this part, and promulgated;
    (4) Should periodically review holdings containing RD, FRD, or TFNI 
that are likely to have a high degree of public interest and a 
likelihood of declassification. If any matter containing RD, FRD, or 
TFNI is

[[Page 17723]]

identified for declassification, ensure coordination for the 
declassification of matter marked as RD, FRD, or TFNI with DOE or DoD, 
as appropriate;
    (5) Develop and promulgate procedures for persons with access to RD 
or FRD to submit classification challenges and declassification 
proposals for guide topics that are RD or FRD or for matter containing 
RD or FRD. If the agency possesses TFNI, develops and promulgates 
procedures for persons with access to TFNI to submit classification 
challenges and declassification proposals for guide topics that are 
TFNI or matter containing TFNI;
    (6) Ensure joint classification guides for programs over which DOE 
and the agency have cognizance are developed;
    (7) Ensure that any classification guides the agency develops or 
revises that contain RD or FRD, topics are coordinated with the 
Director, Office of Classification prior to issuance, to ensure 
consistency with DOE and DoD guidance;
    (8) Ensure that any TFNI guidelines or classification guides 
containing TFNI topics the agency develops or revises are reviewed by 
the Director, Office of Classification, prior to issuance for 
consistency with policies developed by DOE and current 
transclassification agreements;
    (9) Ensure that agency classification guides containing RD, FRD, or 
TFNI topics are reviewed for consistency with current DOE 
classification guides at least once every 5 years and that appropriate 
revisions are made, if necessary;
    (10) Ensure that NSI records of permanent historical value are 
reviewed as required under the ``Special Historical Records Review Plan 
(Supplement)'' established under Public Law 105-261 and 106-65 or 
subsequent statutes;
    (11) Ensure that each RDMO and Federal RD Derivative Classifier 
whose duties involve the classification of a significant amount of 
matter containing RD or FRD have his or her personnel performance 
evaluated with respect to such classification activities; and
    (12) Ensure that contracting officers are notified of any contracts 
that have access to or generate matter containing RD, FRD, or TFNI, and 
that the requirements of this part are incorporated into those 
contracts.
    (13) Ensure DOE classification guides, classification bulletins and 
matter containing DOE classification guide topics that is not itself 
classified is safeguarded and its dissemination is limited to persons 
with a need to know.
    (h) Agency RDMOs:
    (1) Ensure that procedures for training and designating ARDMOs and 
RD Derivative Classifiers within the agency are established;
    (2) Ensure that persons with access to RD, FRD, and TFNI are 
trained in accordance with Sec.  1045.120;
    (3) Ensure that RD Derivative Classifiers are designated and 
trained in accordance with Sec. Sec.  1045.115 and 1045.120, 
respectively;
    (4) Ensure that persons who derivatively classify matter containing 
TFNI are trained in accordance with Sec.  1045.120;
    (5) Ensure that RD Derivative Classifiers and persons who 
derivatively classify TFNI have access to any classification guides 
needed;
    (6) Ensure that a periodic review of a sample of the agency's RD, 
FRD, and TFNI derivative classification determinations is conducted 
that evaluates that each determination was made by appropriately 
trained and (when required) designated employees acting within his or 
her authority, that the determination is accurate, and that the 
markings are applied correctly;
    (7) In consultation with the Director, Office of Classification 
determine when to conduct on-site reviews of their agency program 
established under this part to evaluate the agency's implementation of 
the requirements; and
    (8) Cooperate with and provide information as necessary to the 
Director, Office of Classification, to fulfill their responsibilities 
under this part.
    (i) RD Derivative Classifiers:
    (1) Must receive training prescribed by Sec.  1045.120;
    (2) Must use approved DOE or joint classification guides, in the 
subject areas in which they have programmatic expertise, or an 
applicable portion-marked source document as the basis for derivative 
decisions to classify or upgrade matter containing RD or FRD; and
    (3) Must use DOE classification guides and bulletins, joint DOE-
agency classification guides, or agency classification guides 
containing RD or FRD topics that have been coordinated with DOE as the 
basis to downgrade the level of matter containing RD or FRD. Source 
documents must not be used as a basis to downgrade matter containing RD 
or FRD;
    (4) Must not downgrade the category of matter containing RD, FRD, 
or TFNI (e.g., RD to NSI, FRD to NSI), unless granted this authority by 
DOE for RD or TFNI or by DOE or DoD for FRD;
    (5) Must not declassify matter containing RD, FRD, or TFNI unless 
delegated this authority by DOE for RD or TFNI, or by DOE or DoD for 
FRD; and
    (6) Can remove the RD, FRD, and TFNI portions from a portion-marked 
source document in accordance with Sec.  1045.150.
    (j) Persons who derivatively classify matter containing TFNI:
    (1) Must receive training prescribed by Sec.  1045.120;
    (2) Must use approved TFNI guidelines, DOE or joint classification 
guides in the subject areas in which they have programmatic expertise, 
or an applicable portion-marked source document as the basis for 
derivative decisions to classify or upgrade matter containing TFNI; and
    (3) Must not declassify or downgrade the category of matter 
containing TFNI unless delegated this authority by DOE.
    (k) Persons with access to RD, FRD, or TFNI:
    (1) Must be trained in accordance with Sec.  1045.120;
    (2) Must submit matter that potentially contains RD, FRD, or TFNI 
to a person with the appropriate authority for review in accordance 
with Sec.  1045.125;
    (3) Must submit matter that potentially contains RD, FRD, or TFNI 
to a person with the appropriate authority for declassification or 
public release.


Sec.  1045.50   Reserved.


Sec.  1045.55   When are RD, FRD, and TFNI considered for 
declassification?

    (a) RD, FRD, and TFNI information and matter are considered for 
declassification during several processes.
    (1) DOE reviews all classification guides containing RD, FRD, or 
TFNI topics at least once every 5 years to determine if information 
identified as RD, FRD, or TFNI still meets the criteria for 
classification under Sec.  1045.70. If RD, FRD, and TFNI information 
contained in a classification guide does not meet the standards for 
classification, the information is declassified.
    (2) TFNI is no longer TFNI when comparable U.S. RD is declassified.
    (3) Agencies with holdings containing RD, FRD, or TFNI should 
periodically review holdings that are likely to have a high degree of 
public interest and a likelihood of declassification. If any matter 
containing RD, FRD, or TFNI is identified for declassification, 
agencies must coordinate the declassification of matter marked as RD, 
FRD, or TFNI with DOE or DoD, as appropriate.
    (4) RD, FRD, or TFNI information or matter containing RD, FRD, or 
TFNI in particular areas of public interest may

[[Page 17724]]

be considered for declassification if sufficient interest is 
demonstrated. Proposals for the systematic review of given collections 
or subject areas must be addressed to the Director, Office of 
Classification, AU-60/Germantown Building; U.S. Department of Energy; 
1000 Independence Avenue SW, Washington, DC 20585.
    (5) During the FOIA and MDR request process, agencies must refer 
any responsive matter that is marked as or potentially contains RD, 
FRD, or TFNI to DOE or DoD, as provided under Subpart F. During this 
process, the information may be reviewed to determine it still meets 
the standards for classification.
    (6) The public and persons with access to RD, FRD, or TFNI may 
submit a declassification proposal for RD, FRD, or TFNI under Sec.  
1045.105.


Sec.  1045.60   Does an unauthorized public release of RD, FRD, or TFNI 
result in its declassification?

    The unauthorized disclosure of RD, FRD, or TFNI does not 
automatically result in its declassification. However, if a disclosure 
is sufficiently authoritative or credible, the Associate Under 
Secretary for Environment, Health, Safety and Security will examine the 
possibility of declassifying the information.


Sec.  1045.65   What are the responsibilities of a person with access 
to RD, FRD, or TFNI, if they see information in the open literature 
that they think is RD, FRD, or TFNI?

    (a) A person with access to RD, FRD, or TFNI, must not confirm or 
expand upon the classification status or technical accuracy of 
information in the open literature that is RD, FRD, or TFNI or 
suspected to be RD, FRD, or TFNI. Commenting on such information can 
cause greater damage to national security by confirming its location, 
classified nature, or technical accuracy.
    (b) Because the open literature may contain information that is 
still classified as RD, FRD, or TFNI, a person who has access to RD, 
FRD, or TFNI who incorporates information from the open literature that 
is potentially classified as RD, FRD, or TFNI into matter must ensure 
the matter is reviewed as required under Sec.  1045.125 to ensure the 
information incorporated is not classified.

Subpart C--Determining if Information Is RD, FRD, or TFNI


Sec.  1045.70  How is information initially determined to be RD?

    (a) For new information to be classified as RD it must fall under 
the definition of RD that states such information concerns: The design, 
manufacture, or utilization of nuclear weapons; the production of 
special nuclear material; or the use of special nuclear material in the 
production of energy, and the unauthorized release of the information 
must reasonably be expected to cause undue risk to the common defense 
and security.
    (b) This initial determination is made by the Director, Office of 
Classification after:
    (1) Ensuring the information is not prohibited from being 
classified under Sec.  1045.75;
    (2) Considering whether the information falls within the 
classification or declassification presumptions in Sec.  1045.80; and
    (3) Evaluating the criteria in this paragraph.
    (i) Whether the information is so widely known or readily apparent 
to knowledgeable observers that its classification would cast doubt on 
the credibility of classification programs;
    (ii) Whether publication of the information would assist in the 
development of countermeasures or otherwise jeopardize any U.S. weapon 
or weapon system;
    (iii) Whether the information would hinder U.S. nonproliferation 
efforts by significantly assisting potential adversaries to develop or 
improve a nuclear weapon capability, produce nuclear weapons materials, 
or make other military use of nuclear energy;
    (iv) Whether information would assist terrorists to: Develop a 
nuclear weapon, produce nuclear materials, or use special nuclear 
material in a terrorist attack;
    (v) Whether publication of the information would have a detrimental 
effect on U.S. foreign relations;
    (vi) Whether publication of the information would benefit the 
public welfare, taking into account the importance of the information 
to public discussion and education and potential contribution to 
economic growth; and
    (vii) Whether publication of the information would benefit the 
operation of any Government program by reducing operating costs or 
improving public acceptance.
    (c) In consideration of the analysis of the criteria of this 
section, if there is significant doubt about the need to classify the 
information, then the Director cannot make an initial determination to 
classify the information.


Sec.  1045.75   Are there prohibitions against information being 
classified, remaining classified, or prevented from being declassified 
as RD, FRD, or TFNI?

    (a) Yes. Information must not be classified or remain classified as 
RD, FRD, or TFNI to accomplish the purposes described in paragraphs (b) 
through (g) of this section. Persons must also not prevent information 
from being declassified as RD, FRD, or TFNI for the purposes described 
in paragraphs (b) through (g) of this section.
    (b) Conceal violations of law, inefficiency, or administrative 
error;
    (c) Prevent embarrassment to a person, organization, or agency;
    (d) Restrain competition;
    (e) Prevent or delay the release of information that does not 
require protection for the national security or nonproliferation 
reasons;
    (f) Unduly restrict dissemination by assigning an improper 
classification level; or
    (g) Prevent or delay the release of information bearing solely on 
the physical environment or public or worker health and safety.


Sec.  1045.80   What are the classification and declassification 
presumptions?

    (a) The Director, Office of Classification and the Associate Under 
Secretary of Environment, Health Safety and Security consider the 
presumptions in paragraph (b)(1) of this section before applying the 
criteria in Sec.  1045.70. These presumptions concern information in 
certain but not all nuclear-related areas that may generally be 
presumed to be RD or are generally unclassified. The term ``generally'' 
here means that as a rule, but not necessarily in every case, the 
information in the identified area is presumed classified or not 
classified as indicated. Inclusion of specific existing information in 
one of the presumption categories does not mean that new information in 
a category is or is not classified, but only that arguments to differ 
from the presumed classification status of the information should use 
the appropriate presumption as a starting point.
    (b) Information in the following areas is presumed to be RD--
    (1) Detailed designs, specifications, and functional descriptions 
of nuclear explosives, whether in the active stockpile or retired;
    (2) Material properties under conditions achieved in nuclear 
explosions that are principally useful only for design and analysis of 
nuclear weapons;
    (3) Vulnerabilities of U.S. nuclear weapons to sabotage, 
countermeasures, or unauthorized use;

[[Page 17725]]

    (4) Nuclear weapons logistics and operational performance 
information (e.g., specific weapon deployments, yields, capabilities) 
related to military utilization of those weapons required by DoD;
    (5) Details of the critical steps or components in nuclear material 
production processes; and
    (6) Features of military nuclear reactors, especially naval nuclear 
propulsion reactors, that are not common to or required for civilian 
power reactors
    (c) Information in the following areas is presumed to be 
unclassified--
    (1) Basic science: Mathematics, chemistry, theoretical and 
experimental physics, engineering, materials science, biology, and 
medicine;
    (2) Magnetic confinement fusion technology;
    (3) Civilian power reactors, including nuclear fuel cycle 
information but excluding technologies for uranium enrichment;
    (4) Source materials (defined as uranium and thorium and ores 
containing them);
    (5) Fact of use of safety features (e.g., insensitive high 
explosives, fire resistant pits) to lower the risks and reduce the 
consequences of nuclear weapon accidents;
    (6) Generic nuclear weapons effects;
    (7) Physical and chemical properties of uranium and plutonium, most 
of their alloys and compounds, under standard temperature and pressure 
conditions;
    (8) Nuclear fuel reprocessing technology and reactor products not 
revealing classified production rates or inventories;
    (9) The fact, time, location, and yield range (e.g., ``less than 20 
kilotons'' or ``20-150 kilotons'') of U.S. nuclear tests;
    (10) General descriptions of nuclear material production processes 
and theory of operation;
    (11) DOE special nuclear material aggregate inventories and 
production rates not revealing the size of or details concerning the 
nuclear weapons stockpile;
    (12) Types of waste products resulting from all DOE weapon and 
material production operations;
    (13) Any information solely relating to the public and worker 
health and safety or to environmental quality; and
    (14) The simple association or simple presence of any material 
(i.e., element, compound, isotope, alloy, etc.) at a specified DOE 
site.


Sec.  1045.85  How is information determined to be FRD or TFNI and can 
FRD or TFNI be returned to the RD category?

    (a) To be eligible to become FRD or TFNI, information must first be 
classified as RD in accordance with the AEA and this part. FRD and TFNI 
are removed from and may be returned to the RD category under section 
142 of the AEA. The process by which information is removed from the RD 
category and placed into the FRD or TFNI category or returned to the RD 
category is called transclassification and involves the following 
decisions:
    (1) For information to be transclassified from RD to the FRD 
category, the Associate Under Secretary for Environment, Health, Safety 
and Security and the appropriate official within DoD (as specified in 
DoD Instruction 5210.02 or subsequent instructions) must jointly 
determine that the information relates primarily to the military 
utilization of nuclear weapons and can be adequately protected in a 
manner similar to NSI.
    (2) For information to be transclassified from RD to the TFNI 
category, the Associate Under Secretary for Environment, Health, Safety 
and Security and the DNI must jointly determine that information 
concerning a foreign nuclear energy program that falls under the RD 
definition must be removed from the RD category in order to carry out 
the provisions of the National Security Act of 1947, as amended, and 
can be adequately protected in a manner similar to NSI.
    (b) The process to return FRD and TFNI to the RD category is as 
follows:
    (1) FRD may be returned to the RD category if the DOE and DoD 
jointly determine that the programmatic requirements that caused the 
information to be removed from the RD category no longer apply, the 
information would be more appropriately protected as RD and returning 
the information to the RD category is in the interest of national 
security. DOE jointly with DoD must notify all appropriate agencies of 
the change.
    (2) TFNI may be returned to the RD category if the DOE and the DNI 
jointly determine that the programmatic requirements that caused the 
information to be removed from the RD category no longer apply, the 
information would be more appropriately protected as RD and returning 
the information to the RD category is in the interest of national 
security. DOE jointly with the DNI must notify all appropriate agencies 
of the change.


Sec.  1045.90   Can information generated by private entities that is 
not owned by, produced by, or controlled by the U.S. Government be 
classified as RD?

    Yes. Under the AEA, DOE may classify information that is privately 
generated (e.g., not under a Government contract) as RD. This may only 
be done in writing by the Secretary or Deputy Secretary. This 
responsibility cannot be delegated. Once such a determination is made, 
DOE must notify the public through the Federal Register. This notice is 
not required to reveal any details about the determination and must 
protect the national security as well as the interests of the private 
party.


Sec.  1045.95  What are the criteria used to assign levels to RD, FRD, 
or TFNI?

    (a) When the Director, Office of Classification, makes the initial 
determination that information is RD, he or she determines the 
appropriate level of the information based on the damage that would 
occur if there was an unauthorized disclosure of the information. The 
Director, Office of Classification, also determines the level for TFNI, 
and, jointly with the appropriate DoD official (as specified in DoD 
Instruction 5210.02 or successor instructions) determines the level for 
FRD information.
    (b) The three classification levels of RD, FRD, and TFNI are:
    (1) Top Secret. Top Secret is applied to information that is vital 
to the national security the unauthorized disclosure of which could 
reasonably be expected to cause exceptionally grave damage to the 
national security that the appropriate official is able to identify or 
describe.
    (2) Secret. Secret is applied to information, the unauthorized 
disclosure of which could reasonably be expected to cause serious 
damage to the national security that the appropriate official is able 
to identify or describe.
    (3) Confidential. Confidential is applied to information, the 
unauthorized disclosure of which could reasonably be expected to cause 
undue risk to the common defense and security that the appropriate 
official is able to identify or describe.


Sec.  1045.100   How are RD, FRD, and TFNI declassified?

    (a) This section addresses the declassification of information, not 
derivatively classified matter. See Subpart D for requirements for the 
declassification of matter containing RD, FRD, or TFNI.
    (b) RD and TFNI are declassified by the Associate Under Secretary 
for Environment, Health, Safety and

[[Page 17726]]

Security by evaluating the criteria in Sec.  1045.70. FRD requires the 
evaluation of the same criteria and a joint decision by the Associate 
Under Secretary for Environment, Health, Safety and Security and the 
appropriate DoD official (as specified in DoD Instruction 5210.02 or 
subsequent instructions).


Sec.  1045.105  What is the method to request the declassification of 
RD, FRD or TFNI?

    (a) If a person believes RD, FRD, or TFNI should not be classified, 
he or she may submit a declassification proposal. Proposals must be 
submitted in writing and must include a description of the information 
concerned and may include a reason for the request. If submitted by a 
person with access to RD, FRD, or TFNI the request must be submitted 
through secure means. The proposal is processed as follows:
    (b) The Associate Under Secretary for Environment, Health, Safety 
and Security considers declassification proposals from the public and 
Government agencies and their contractors for the declassification of 
RD, FRD, and TFNI on an ongoing basis. For FRD, the Director, Office of 
Classification, will coordinate the declassification proposal with the 
appropriate DoD official (as specified in DoD Instruction 5210.02 or 
subsequent instructions).
    (c) Declassification proposals may be sent to the Associate Under 
Secretary for Environment, Health, Safety and Security, AU-1/Forrestal 
Building, U.S. Department of Energy, 1000 Independence Avenue SW, 
Washington, DC 20585. For FRD, the proposal may be sent to the 
Director, Office of Classification, or the appropriate DoD official (as 
specified in DoD Instruction 5210.02 or subsequent instructions). DOE 
and DoD must coordinate with one another concerning declassification 
proposals for FRD.


Sec.  1045.110   How are challenges to the classification and 
declassification of RD, FRD, or TFNI submitted and processed?

    (a) Any person with access to RD, FRD, or TFNI who believes that 
RD, FRD, or TFNI is improperly classified is encouraged and expected to 
challenge the classification. The challenge may be to information RD, 
FRD, or TFNI (e.g., a guide topic) or the classification status of 
matter containing RD, FRD, or TFNI.
    (b) Challenges are submitted in accordance with agency procedures.
    (c) Each agency must establish procedures for a person to challenge 
the classification status of RD, FRD, or TFNI if they believe that the 
classification status is improper. These procedures must:
    (1) Advise the person of their right to submit a challenge directly 
to the Director, Office of Classification, AU-60/Germantown Building; 
U.S. Department of Energy; 1000 Independence Avenue SW, Washington, DC 
20585, at any time.
    (2) Ensure that under no circumstances is an employee subject to 
retribution for challenging the classification status of RD, FRD, or 
TFNI;
    (3) Require the agency that initially receives the challenge to 
provide an initial response within 60 days to the person submitting the 
challenge.
    (4) Require the agency to advise the person of their appeal rights. 
If the employee is not satisfied with the agency response or the agency 
has not responded to the challenge within 180 days, the challenge 
involving RD, FRD, or TFNI may be appealed to the Director, Office of 
Classification.
    (i) In the case of FRD and RD related primarily to the military 
utilization of nuclear weapons, the Director, Office of Classification, 
coordinates with the appropriate DoD official (as specified in DoD 
Instruction 5210.02 or subsequent instructions).
    (ii) In the case of TFNI, the Director, Office of Classification, 
coordinates with DNI.
    (5) If the response to the initial appeal and its justification for 
classification does not satisfy the person making the challenge, a 
further appeal may be made to the Associate Under Secretary for 
Environment, Health, Safety and Security, AU-1/Forrestal Building, U.S. 
Department of Energy, 1000 Independence Avenue SW, Washington, DC 
20585.
    (d) Agency responses to RD or TFNI challenges are limited to 
interpreting the application of guidance to derivatively classify 
matter. Except for DoD, agency responses to FRD are limited to 
interpreting the application of guidance to derivatively classify 
matter. An agency may coordinate challenges regarding interpreting 
guidance for RD or TFNI with DOE, and may coordinate challenges 
regarding interpreting guidance for FRD with DOE or DoD.
    (e) Agencies must forward challenges that require decisions other 
than interpreting the application of guidance (e.g., challenges to 
guide topics) to the Director, Office of Classification.

Subpart D--Classifying and Declassifying Matter Containing RD, FRD, 
or TFNI


Sec.  1045.115   Who is authorized to derivatively classify matter that 
contains RD, FRD, or TFNI?

    (a) Specific authority and/or training is required to derivatively 
classify matter containing RD, FRD, or TFNI. These derivative 
classification decisions must be based on a classification guide, a 
classification bulletin, or a portion-marked source document and must 
only be made in the RD Derivative Classifier's subject areas of 
expertise. In cases where guidance does not exist, for RD the Director, 
Office of Classification must make an initial determination that 
information is RD or that the matter contains RD, and for FRD DOE and 
DoD must jointly determine that the information is FRD or the matter 
contains FRD. No other agency or agency personnel has the authority to 
make an initial determination regarding RD or FRD. See Sec.  1045.135 
for the process for requesting a determination in cases where guidance 
does not exist.
    (b) Each person who derivatively classifies matter containing RD or 
FRD must be an RD Derivative Classifier.
    (c) Except for DoD military and DoD Federal civilian employees, 
each RD Derivative Classifier must be designated by name or position in 
writing in accordance with agency procedures.
    (d) An agency contractor employee may be an RD Derivative 
Classifier. All contractor employees, including DoD contractors, must 
be designated by name or position as such in writing in accordance with 
agency procedures.
    (e) Once a person is an RD Derivative Classifier for an agency, he 
or she may classify matter containing RD or FRD in those subject areas 
in which they have programmatic expertise for any agency, provided the 
other agency or agencies accept the existing authority.
    (f) No specific designation as an RD Derivative Classifier is 
required to classify matter containing TFNI. Any person who has 
received training required by Sec.  1045.120 may classify matter 
containing TFNI.


Sec.  1045.120   What training is required for persons who have access 
to or who derivatively classify matter containing RD, FRD, or TFNI?

    (a) Prior to being authorized access to RD and FRD, a person must 
receive training that explains:
    (1) What information is potentially RD and FRD;
    (2) Matter that potentially contains RD or FRD must be reviewed by 
an RD Derivative Classifier to determine whether it contains RD or FRD;

[[Page 17727]]

    (3) DOE must review matter that potentially contains RD or TFNI for 
public release and DOE or DoD must review matter that potentially 
contains FRD for public release;
    (4) RD Derivative Classification authority is required to classify 
or upgrade matter containing RD or FRD, or to downgrade the level of 
matter containing RD or FRD;
    (5) Only a person trained in accordance with this section, may 
classify matter containing TFNI;
    (6) Matter containing RD, FRD, and TFNI is not automatically 
declassified and only DOE authorized persons may downgrade the category 
or declassify matter marked as containing RD; only DOE or DoD 
authorized persons may downgrade the category or declassify matter 
marked as containing FRD;
    (7) How to submit a challenge if they believe RD, FRD, or TFNI 
information (e.g., a guide topic) or matter containing RD, FRD, or TFNI 
is not properly classified; and
    (8) Access requirements for matter marked as containing RD or FRD.
    (b) Each person with access to RD and FRD must also receive 
periodic refresher briefings covering these same topics.
    (c) In addition to the training in paragraph (a) of this section, 
prior to derivatively classifying matter containing RD, or FRD and 
every 2 years thereafter, each RD Derivative Classifier must also 
receive training that explains:
    (1) The use of classification guides, classification bulletins, and 
portion-marked source documents to classify matter containing RD and 
FRD;
    (2) What to do if applicable classification guidance is not 
available;
    (3) Limitations on an RD Derivative Classifier's authority to 
remove RD or FRD portions from matter; and
    (4) Marking requirements for matter containing RD and FRD.
    (d) Prior to having access to TFNI, and periodically thereafter, 
each person must receive the following training (which may be combined 
with the training required for access to RD or FRD):
    (1) What information is potentially TFNI;
    (2) Only a person with appropriate training may determine if matter 
contains TFNI;
    (3) Marking requirements for matter containing TFNI;
    (4) Matter containing TFNI is not automatically declassified and 
only DOE authorized persons may downgrade the category or declassify 
matter marked as containing TFNI; and
    (5) How to submit a challenge if they believe TFNI information 
(e.g., a guide topic) or matter containing TFNI is not properly 
classified.
    (e) In addition to the training in Sec.  1045.120(d), prior to 
derivatively classifying matter containing TFNI and every 2 years 
thereafter, each person who derivatively classifies matter containing 
TFNI must also receive training that explains:
    (1) The markings applied to matter containing TFNI;
    (2) Limitations on their authority to remove TFNI portions from 
matter;
    (3) Only DOE authorized persons may determine that classified 
matter no longer contains TFNI;
    (4) Only DOE authorized persons may declassify matter marked as 
containing TFNI; and
    (5) DOE must review matter that potentially contains TFNI for 
public release.


Sec.  1045.125   What is the process for reviewing and derivatively 
classifying matter that potentially contains RD, FRD, or TFNI?

    (a) Protecting and marking matter that potentially contains RD, 
FRD, or TFNI prior to review. Prior to the review of matter to 
determine if it contains RD, FRD, or TFNI, the matter must be protected 
at the overall potential highest level and category and marked as a 
working paper in accordance with Sec.  1045.140.
    (b) Matter that potentially contains RD, FRD, or TFNI that is 
intended for public release. Any person who generates or possesses 
matter that potentially contains RD, FRD, or TFNI that is intended for 
public release must ensure that it is reviewed by the Director, Office 
of Classification, or a DOE official granted the authority by 
delegation, regulation, or DOE directive, prior to release. FRD may 
also be reviewed by the appropriate DoD official as specified in DoD 
Instruction 5210.02 or subsequent instructions.
    (c) Matter that potentially contains RD or FRD information that is 
not intended for public release. Matter that potentially contains RD or 
FRD that is not intended for public release must be reviewed by an RD 
Derivative Classifier.
    (d) Matter that potentially contains TFNI that is not intended for 
public release. Matter that potentially contains TFNI that is not 
intended for public release must be reviewed by a person who has been 
trained in accordance with Sec.  1045.120(e).
    (e) Matter that incorporates information from the open literature 
that potentially contains RD, FRD, or TFNI. Because the open literature 
may contain information that is still classified as RD, FRD, or TFNI, 
matter that incorporates information from the open literature that is 
potentially RD, FRD, or TFNI must be reviewed as required under this 
section.
    (f) Matter being reviewed under E.O. 13526 or successor orders. If, 
when reviewing matter under the automatic or systematic review 
provisions of E.O. 13526 or successor orders, the person finds matter 
potentially contains RD, FRD, or TFNI that it is not correctly marked
    (1) An RD Classifier may review the matter to determine if it 
contains RD or FRD. If the matter is determined to contain RD or FRD, 
the matter must be appropriately marked and is exempt from automatic 
declassification.
    (2) A person trained to classify TFNI may review the matter to 
determine if it contains TFNI. If the matter is determined to contain 
TFNI, the matter must be appropriately marked and is exempt from 
automatic declassification.
    (3) If an authorized person is unable to make a determination for 
RD, FRD, or TFNI, the matter must be referred to DOE. Matter containing 
FRD may also be referred to DoD. The matter may not be automatically 
declassified until DOE or DoD makes a determination as to its 
classification status.


Sec.  1045.130   How does an authorized person derivatively classify 
matter containing RD, FRD, or TFNI?

    (a) For RD or FRD, an RD Derivative Classifier makes the derivative 
classification determination using:
    (1) A DOE classification guide or bulletin, a joint DOE-agency 
classification guide, an agency guide with RD/FRD topics that is within 
his or her programmatic area of expertise; or
    (2) An applicable portion-marked source document.
    (b) For TFNI, a person who is trained to derivatively classify 
matter containing TFNI makes the determination using:
    (1) Approved TFNI guidelines;
    (2) A DOE classification guide or bulletin, a joint DOE-agency 
classification guide, an agency guide with RD, FRD, or TFNI topics 
within his or her programmatic area of expertise; or
    (3) An applicable portion-marked source document.
    (c) Association and Compilation.
    (1) RD, FRD, or TFNI classification based on association. If two or 
more different, unclassified facts when combined in a specific way 
result in a classified statement, or if two or more different 
classified facts or unclassified and classified facts when combined in 
a specific way result in a higher classification level or more 
restrictive category, then an RD Derivative Classifier may classify or 
upgrade the matter based on the association. If the

[[Page 17728]]

matter is to be portion marked, then each portion of the associated 
information must be marked at the level and category of the 
association.
    (2) RD, FRD, or TFNI classification based on compilation. A large 
number of often similar unclassified pieces of information or a large 
number of often similar RD, FRD, or TFNI pieces of information by 
selection, arrangement, or completeness in matter may add sufficient 
value to merit classification or to merit classification at a higher 
level. If there is a classification guide topic that applies to the 
compilation, an RD Derivative Classifier may classify the information 
by compilation. In the absence of a classification guide topic that 
applies, for RD or TFNI, the Director, Office of Classification, may 
make the determination to classify or upgrade the matter based on 
compilation. For FRD, the Director, Office of Classification, or any 
appropriate DoD official (as specified in DoD Instruction 5210.02 or 
subsequent instructions) may classify or upgrade the matter based on 
compilation. Matter that is classified as RD, FRD, or TFNI based on 
compilation is never portion marked.
    (d) Use of a classified addendum. When it is important to maximize 
the amount of information available to the public or to simplify matter 
handling procedures, the RD, FRD, or TFNI should be segregated into a 
classified addendum.


Sec.  1045.135   Can a person make an RD, FRD, or TFNI classification 
determination if applicable classification guidance is not available?

    (a) No. If an RD Derivative Classifier or a person trained to 
classify matter containing TFNI is unable to locate a classification 
guide or classification bulletin that applies to the nuclear-related 
information within his or her programmatic expertise and does not have 
an applicable portion-marked source document to use for derivative 
classification, then he or she must contact the RDMO or an ARDMO for 
assistance. The RDMO/ARDMO may be aware of other classification 
guidance that could apply to the information.
    (b) If no guidance is identified, the RDMO must forward the matter 
to the Director, Office of Classification, for a determination. Within 
30 days, the Director, Office of Classification must:
    (1) Determine whether the information is already classified as RD, 
FRD, or TFNI under current classification guidance and, if so, provide 
such guidance to the RDMO who forwarded the matter.
    (2) If the information is not already classified as RD, FRD, or 
TFNI, the procedures for initially classifying information as RD, FRD, 
or TFNI under Sec.  1045.70 must be followed. The Director, Office of 
Classification, must notify the RDMO of the results of the initial 
classification determination within 90 days of receiving the matter. 
Initial determinations must be incorporated into classified guides, as 
appropriate.
    (c) Pending a determination, the matter under review must be 
protected at a minimum as Secret RD, Secret FRD, or Secret TFNI, as 
appropriate.


Sec.  1045.140  How is matter containing RD, FRD, or TFNI marked?

    (a) Matter determined to contain RD, FRD, or TFNI must be clearly 
marked to convey to the holder of that matter that it contains such 
information.
    (b) Marking matter containing RD, FRD, or TFNI in the IC. Matter 
generated by/for the IC containing RD, FRD, or TFNI must be marked in 
accordance with the requirements in this part as described in ICD 710 
or successor directives, and the corresponding implementation 
directives and policy guidance issued or approved by the DNI concerning 
marking matter containing RD, FRD, and TFNI.
    (c) Working papers containing RD, FRD, or TFNI. Prior to the 
determination that matter contains RD, FRD, or TFNI, it must be marked 
and protected as a working paper. Matter that has not been reviewed 
that potentially contains RD, FRD, or TFNI, or is expected to be 
revised prior to the preparation of a finished product that contains 
RD, FRD, or TFNI, must be dated when created or last changed, marked 
with the highest potential level and category of information (and 
caveats, when applicable) on the bottom and top of each page and must 
be protected at the highest potential level and category of the 
information contained in the matter. The matter must also be marked 
``Draft'' or ``Working Paper'' on the front cover. The RD/FRD 
admonishment is not required. RD Derivative Classifier authority is not 
required to mark working papers containing RD or FRD. However, working 
papers containing RD or FRD must be reviewed by an RD Derivative 
Classifier, and working papers containing TFNI must be reviewed by a 
person trained to mark matter containing TFNI, and the matter must be 
marked as a final document when it is:
    (1) Released outside the originating activity;
    (2) Retained more than 180 days from the date of origin or the date 
of the last change; or
    (3) Filed permanently.
    (d) RD and FRD markings. An RD Derivative Classifier applies or 
authorizes the application of the following markings on matter 
determined to contain RD or FRD:
    (1) Front page. The front page of matter containing RD or FRD must 
have the page/banner markings at the top and bottom, the RD or FRD 
admonishment, subject/title marking, and the classification authority 
block.
    (i) Front page/banner markings. The top and bottom of the front 
page must clearly indicate the overall classification level of the 
matter. The classification category may also be included. No other 
markings are required in the page/banner marking.
    (ii) Admonishments.
    (A) If the matter contains RD or RD and FRD, use the following 
admonishment:

RESTRICTED DATA

    This document contains RESTRICTED DATA as defined in the Atomic 
Energy Act of 1954, as amended. Unauthorized disclosure subject to 
administrative and criminal sanctions.
    (B) If the document contains FRD and no RD, use the following 
admonishment:

FORMERLY RESTRICTED DATA

    Unauthorized disclosure subject to administrative and criminal 
sanctions. Handle as RESTRICTED DATA in foreign dissemination. Section 
144b, Atomic Energy Act of 1954, as amended.
    (iii) Subject/title marking. The classification level and category 
of the text of the subject or title (e.g., U, SRD, CFRD, S//RD, C//FRD) 
must be marked immediately preceding the text of the subject or title.
    (iv) Classification authority block. The classification authority 
block for matter containing RD or FRD must identify the RD Derivative 
Classifier who classified the matter and the classification guidance 
used to classify the matter.
    (A) Identity of the RD Derivative Classifier. The RD Derivative 
Classifier must be identified by name and position or title, and, if 
not otherwise evident, the agency and office of origin must be 
identified. An RD Derivative Classifier may also be identified by a 
unique identifier. For example:

Classified By: Jane Doe, Nuclear Analyst, DOE, CTI-61

    (B) Identity of classification guidance. If a classification guide 
is used to classify the matter, the ``Derived From'' line must include 
the short title of the

[[Page 17729]]

guide, the issue date of the guide, the issuing agency and, when 
available, office of origin. For example:

Derived From: CG-ABC-1, 10/16/2014, DOE OC

    If a source document is used to classify the matter, it must be 
identified, including the office of origin and the date of the source 
document. If more than one classification guide or source document is 
used, the words ``Multiple Sources'' may be included. In the case of 
multiple sources, a source list identifying each guide or source 
document must be included with all copies of the matter.
    (C) Declassification Instructions. Matter containing RD or FRD are 
never automatically declassified and must either omit the ``Declassify 
On'' line, or indicate that the matter is exempt from automatic 
declassification (Not Applicable or N/A for RD/FRD, as appropriate).
    (2) Interior page/banner marking. Each interior page of matter 
containing RD or FRD must be clearly marked at the top and bottom with 
the overall classification level and category of the matter or the 
overall classification level and category of the page, whichever is 
preferred. The abbreviations ``RD'' and ``FRD'' may be used in 
conjunction with the matter classification (e.g., SECRET//RD, 
CONFIDENTIAL//FRD).
    (3) Back cover or back page marking. The outside of the back cover 
or back page must be marked with the overall level of information in 
the matter.
    (4) Portion marking. Other than the required subject/title marking, 
portion marking is permitted, but not required, for matter containing 
RD or FRD. Each agency that generates matter containing RD or FRD 
determines the policy for portion marking matter generated within the 
agency. If matter containing RD or FRD is portion marked, each portion 
containing RD or FRD must be marked with the level and category of the 
information in the portion (e.g., SRD, CFRD, S//RD, C//FRD).
    (e) TFNI markings. If matter contains RD or FRD commingled with 
TFNI, the RD or FRD markings take precedence. If matter contains TFNI 
and no RD or FRD a person who is trained to classify matter containing 
TFNI applies or authorizes the application markings on matter 
determined to contain TFNI in accordance with 32 CFR part 2001.22, or 
successor regulations, and with this part.
    (1) Front page. If the matter contains TFNI and no RD or FRD, no 
admonishment is required on the front page, but the top and bottom of 
the front page must be clearly marked with the overall classification 
level and the TFNI label (e.g., SECRET//TFNI).
    (2) Subject/title marking. The classification level and category of 
the subject or title must be marked immediately preceding the text of 
the subject or title.
    (3) Portion marking. Matter containing TFNI and no RD or FRD must 
be portion marked. Each portion containing TFNI must be marked 
immediately preceding the portion to which it applies with the level 
and category of the information in the portion (e.g., S//TFNI).
    (4) Classification authority block. The classifier and guidance 
used to classify matter containing TFNI must be identified as described 
in Sec.  1045.40(d)(1)(iv)(A) and (B). In addition, the ``Declassify 
On'' line must be annotated with the statement: ``Not Applicable [or N/
A] to TFNI portions.''
    (5) Interior pages. If the matter contains TFNI and no RD or FRD, 
the top and bottom of each interior page must be clearly marked with 
the overall classification level and the TFNI label (e.g., SECRET//
TFNI) or the overall classification level for each page with the TFNI 
label included on only those pages that contain TFNI, whichever is 
preferred.
    (6) Back cover or back page marking. If the matter contains TFNI 
and no RD or FRD, the top and bottom of the outside of the back cover 
or back page must be clearly marked with the overall classification 
level of information in the matter.
    (f) Commingled matter--NSI. Matter that contains a mixture of RD, 
FRD, or TFNI and NSI, and is portion marked, must also comply with the 
following:
    (1) Declassification instructions. If the matter is not portion 
marked, then no declassification instructions are included. If the 
matter is portion marked, declassification instructions for each 
portion must be included in a source list. See the paragraph (f)(2) and 
E.O. 13526 or successor orders for instructions on annotating the 
source list.
    (2) Source list. The source list must include declassification 
instructions for all NSI sources used to classify the NSI portions. The 
declassification instructions for sources that are used to classify the 
RD, FRD, or TFNI portions must state ``Not applicable [or N/A] to RD/
FRD/TFNI (as appropriate).'' The source list must not appear on the 
front page of the matter, unless the matter is a single page. If the 
matter is a single page, the source list may appear at the bottom of 
the page, and must be clearly separate from the classification 
authority block.
    (g) Commingled matter--CUI.
    (1) If matter containing RD and/or FRD and CUI is not portion 
marked, CUI markings are not required.
    (2) Applicable CUI Decontrol instructions.
    (i) If the matter contains RD or FRD and is not portion marked, 
then CUI decontrol instructions must not be included.
    (ii) If the matter is portion marked and decontrol instructions are 
applied, the decontrol instructions for the CUI portions must not be on 
the front page. Where they appear, they must be clearly labeled as 
decontrol instructions for CUI.
    (iii) If the matter contains TFNI, and decontrol instructions are 
applied, the decontrol instructions for the CUI portions must not be on 
the front page. Where they appear they must be clearly labeled as 
decontrol instructions for CUI.
    (h) Marking special format matter. Standard RD, FRD, or TFNI 
markings must be applied to matter in special formats (e.g., 
photographs, flash memory drives, compact discs, audio or video tapes) 
to the extent practicable. Regardless of the precise markings in such 
cases, any special format matter that contains RD, FRD, or TFNI must be 
marked so that both a person in physical possession of the matter and a 
person with access to the information in or on the matter are aware 
that it contains RD, FRD, or TFNI.


Sec.  1045.145   Who must review output from a classified IT system 
that is marked as RD, FRD, or TFNI?

    If the output is a final product that has been reviewed by a person 
with appropriate authority, and is properly marked, or is a working 
paper that is properly marked, no additional review is required. 
Otherwise, the output must be reviewed in accordance with Sec.  
1045.30.


Sec.  1045.150  Can anyone remove the RD, FRD, or TFNI portions and 
markings to produce an NSI or unclassified version of the matter?

    (a) No. Specific authority is required to remove RD, FRD, or TFNI 
portions from matter. The authority required depends on whether the 
matter is intended for public release, the category of information in 
the matter, and whether the matter is portion marked.
    (b) If the resulting or new matter is intended for public release. 
An RD Derivative Classifier or a person trained to classify matter 
containing TFNI does not have the authority to remove the RD, FRD, or 
TFNI portions or markings for matter intended for public release. The 
matter must be submitted in accordance with Sec.  1045.125 to the 
appropriate

[[Page 17730]]

agency who will review the matter and remove the RD, FRD, or TFNI 
portions and markings.
    (c) If the resulting matter is not intended for public release.
    (1) An RD Derivative Classifier may remove the portions marked as 
containing RD or FRD and remove the RD or FRD markings.
    (2) A person trained in accordance with Sec.  1045.120(e) may 
remove the portions containing TFNI and the TFNI markings.
    (3) In all cases under Sec.  1045.150(b) this may be done only if 
the matter is originated by the authorized person's agency and the 
matter is portion marked, and the resulting matter is reviewed to 
ensure it does not contain RD, FRD, or TFNI by a person authorized to 
review the matter.


Sec.  1045.155  How is matter marked as containing RD, FRD, or TFNI 
declassified?

    (a) RD, FRD, and TFNI are never automatically declassified. No date 
or event for automatic declassification ever applies to RD, FRD, or 
TFNI, even when commingled with NSI. It takes positive action by an 
authorized person to declassify matter potentially containing or marked 
as containing RD, FRD, or TFNI.
    (b) Only authorized persons within DOE may declassify matter marked 
as RD or TFNI and only authorized persons within DOE or DoD may 
declassify matter marked as FRD. Only these same persons may identify 
the portions of classified matter that contain RD, FRD, or TFNI that 
must be redacted prior to public release.
    (c) Declassification of matter containing RD or TFNI. Except as 
allowed under paragraph (c) of this section only designated persons in 
DOE may declassify matter marked as containing RD or TFNI, or identify 
the RD or TFNI portions of matter that must be removed from the matter 
prior to public release. Such determinations must be based on 
classification guides.
    (d) Declassification of matter containing FRD. Except as allowed 
under paragraph (c) of this section, only designated persons in DOE or 
appropriate persons in DoD (as specified in DoD Instruction 5210.02 or 
subsequent instructions) may declassify matter marked as containing FRD 
or determine the FRD portions of matter that must be removed prior to 
public release. Such determinations must be based on classification 
guides.
    (e) Delegation of declassification authority. The Director, Office 
of Classification, may delegate declassification authority for matter 
containing RD and TFNI to other agencies Federal and contractor 
personnel. The Director, Office of Classification, or an appropriate 
person in DoD (as specified in DoD Instruction 5210.02 or subsequent 
instructions) may delegate declassification authority for matter 
containing FRD to qualified Federal or contractor personnel in other 
agencies.


Sec.  1045.160   When the RD, FRD, or TFNI is removed from matter, what 
action must be taken if the matter still contains NSI?

    When an appropriate authority removes the RD, FRD, or TFNI from 
matter and it still contains NSI, the matter must be marked following 
E.O. 13526 and 32 CFR part 2001 or successor orders and regulations, 
including portion marking if the matter was not previously portion 
marked, and the classification authority block of the matter must be 
changed to contain declassification instructions for the NSI. This does 
not apply to matter produced as part of the coordination process for 
declassification or public release reviews.


Sec.  1045.165   Once matter marked as RD, FRD, or TFNI is 
declassified, how is it marked?

    (a) Matter that is determined to no longer contain RD, FRD, or TFNI 
and also does not or no longer contains NSI must be clearly marked to 
convey to the holder of that matter that the matter is declassified;
    (b) The front page must identify the person authorizing the 
declassification by name and position or title, if not otherwise 
evident, agency, and office of origin; or with a unique identifier; the 
classification guide that served as the basis for the declassification 
by short title, date, agency and, when available, the office of origin; 
and the declassification date. For example:

(1) Declassified by: Jane Doe, Nuclear Analyst, DOE, CTI-61
(2) Derived from: CG-ABC-1, 10/16/2014, DOE OC
(3) Declassified on: 20201009

    (c) The person authorizing the declassification must line through 
but not obliterate the classification markings and apply or authorize 
the application of the appropriate markings.

Subpart E--Government-Wide Procedures for Handling Freedom of 
Information Act (FOIA) and Mandatory Declassification Review (MDR) 
Requests for Matter Marked as or Potentially Containing RD, FRD, or 
TFNI


Sec.  1045.170   What is the purpose of this subpart?

    This subpart contains requirements that apply when Federal agencies 
other than DOE receive FOIA or MDR requests for matter that is marked 
as or potentially contains RD, FRD, or TFNI. RD, FRD, and TFNI are 
classified under the Atomic Energy Act and are not subject to the 
provisions governing MDR requests under E.O. 13526 or successor orders. 
To ensure RD, FRD, and TFNI are considered and appropriately reviewed 
when requested under a FOIA or MDR request, this section describes the 
process Federal agencies must follow for FOIA and MDR requests for 
matter that is marked as or potentially contains RD, FRD, or TFNI.


Sec.  1045.175   How must agencies process FOIA and MDR requests for 
matter that is marked as or potentially contains RD, FRD, or TFNI?

    (a) When an agency receives a FOIA or MDR request for which any 
responsive matter is marked as or potentially contains RD, FRD, or 
TFNI, the agency must forward the matter to the appropriate agency as 
follows:
    (1) Forward any matter marked as or potentially containing RD or 
TFNI to the Director, Office of Classification or a DOE official 
granted authority by delegation, regulation, or DOE directive.
    (2) Forward any matter originated by DOE and marked as or 
potentially containing FRD to either the Director, Office of 
Classification or a DOE official granted authority by delegation, 
regulation, or DOE directive. Forward any matter originated by DoD and 
marked as or potentially containing FRD to the appropriate DoD program 
(as specified in DoD Manual 5400.07, DoD Freedom of Information Act 
(FOIA) Program, subsequent manuals, or other applicable manuals). 
Matter not originated by DOE or DoD may be submitted to either agency 
as provided in this paragraph.
    (b) DOE and DoD must coordinate the review of matter marked as or 
potentially containing RD and FRD, when appropriate. DOE and the DNI 
must coordinate the review of matter marked as or potentially 
containing TFNI, when appropriate.
    (c) DOE, DoD, or the DNI may refuse to confirm or deny the 
existence or nonexistence of the requested matter

[[Page 17731]]

whenever the fact of its existence or nonexistence is itself classified 
as RD, FRD, or TFNI.
    (d) If the information contained in the requested matter has been 
reviewed for declassification within the past 2 years, another review 
need not be conducted, but instead the agency may inform the requester 
of this fact and of the results of the prior review decision.
    (e) When paragraph (c) or (d) of this section do not apply, the 
appropriate DOE or DoD authority must conduct a line-by-line review of 
matter forwarded under paragraph (a); identify the information that is 
classified under current classification guidance as RD, FRD, or TFNI; 
and respond to the agency that forwarded the matter. The response to 
the agency who forwarded the request must identify the RD, FRD, or TFNI 
that is exempt from public release; provide the FOIA exemption or 
appropriate MDR notation for the RD, FRD, or TFNI withheld; identify 
the Denying Official for the RD, FRD, or TFNI withheld; and explain the 
applicable appeal procedures identified in Sec.  1045.180.
    (1) The Denying Officials are as follows:
    (i) The Denying Official for matter containing RD or TFNI is the 
Director, Office of Classification.
    (ii) The Denying Official for matter containing FRD is the 
Director, Office of Classification, or the appropriate DoD Component's 
Initial Denying Authority (as specified in applicable DoD manuals).
    (iii) The Denying Official for Naval Nuclear Propulsion Information 
is the National Nuclear Security Administration (NNSA) Deputy Director, 
Deputy Administrator for Naval Reactors.
    (f) Upon receipt of the response from DOE or DOD, the agency 
processing the initial request must inform the requester of the results 
of the review; provide the name of the Denying Official identified for 
any RD, FRD, or TFNI withheld; and advise the requester of his or her 
appeal rights concerning the RD, FRD, or TFNI.


Sec.  1045.180  What is the procedure if an agency receives an appeal 
to a FOIA or MDR concerning the denial of RD, FRD, or TFNI?

    (a) If an agency receives a FOIA appeal for RD, FRD, or TFNI denied 
by DOE, the appeal must be submitted to the DOE Director, Office of 
Hearings and Appeals as required under 10 CFR 1004.8. If an agency 
receives a FOIA appeal for FRD denied by DoD, it must be submitted to 
DoD in accordance with applicable DoD FOIA regulations or instructions.
    (b) Appeals of MDR responses when DOE denied RD, FRD, or TFNI may 
be submitted to the agency that replied to the initial MDR request or 
directly to DOE.
    (1) When an appeal concerning DOE-withheld RD, FRD, or TFNI is sent 
to the agency that replied to the initial MDR request, the agency must 
forward the appeal to the Associate Under Secretary of Environment, 
Health, Safety and Security at the following address: Associate Under 
Secretary for Environment, Health, Safety and Security, AU-1/Forrestal 
Building, U.S. Department of Energy, 1000 Independence Avenue SW, 
Washington, DC 20585. The appeal must be received by the agency who 
replied to the initial request within 60 days of receipt of the denial 
and contain the information required under Sec.  1045.210(b).
    (2) When sent directly to DOE, the appeal must be received by the 
Associate Under Secretary for Environment, Health, Safety and Security 
within 60 days of the denial and contain the information required under 
Sec.  1045.210(b).
    (3) MDR appeals received by DOE are processed consistent with Sec.  
1045.220.
    (c) If an agency receives an MDR appeal for FRD withheld by DoD, 
the agency must submit the appeal to the appropriate DoD Component as 
identified in applicable DoD manuals.
    (d) The MDR appeal authorities for RD, FRD, or TFNI are as follows:
    (1) The MDR appeal authority for RD and TFNI is the Associate Under 
Secretary for Environment, Health, Safety and Security.
    (2) The MDR appeal authority for FRD is the Associate Under 
Secretary for Environment, Health, Safety and Security or the 
appropriate DoD Component appellate authority.
    (3) The appeal authority for Naval Nuclear Propulsion Information 
is the NNSA Deputy Administrator for Naval Reactors.
    (e) Final Appeal. The classification and declassification of RD, 
FRD, and TFNI is governed by the AEA and this part and is not subject 
to E.O. 13526 or successor orders. Therefore, appeal decisions by the 
Associate Under Secretary for Environment, Health, Safety and Security, 
for RD, FRD, and TFNI and appeal decisions by the appropriate DoD 
Component appellate authority for FRD are final agency decisions and 
are not subject to review by ISCAP. However, if matter containing RD, 
FRD, or TFNI also contains NSI, the NSI portions may be appealed to the 
ISCAP. Prior to submission to ISCAP, the RD, FRD, or TFNI portions must 
be deleted.
    (f) Declassification proposals resulting from appeal reviews. The 
appeal review of RD, FRD, and TFNI withheld from a requester is based 
on current classification guidance. However, as part of the appeal 
review, the withheld information must be reviewed to determine if it 
may be a candidate for possible declassification. If declassification 
of the information appears to be appropriate, then a declassification 
proposal must be initiated, and the requester must be advised that 
additional information will be available if the declassification 
proposal is approved.

Subpart F--DOE-Specific Procedures for MDR Requests


Sec.  1045.185   What is the purpose of this subpart?

    This subpart describes the process for MDR requests submitted for 
DOE matter classified under E.O. 13526 or successor orders, and the 
Atomic Energy Act.


Sec.  1045.190  How does the public submit an MDR for DOE classified 
matter?

    (a) DOE matter marked as containing NSI, RD, FRD, or TFNI is 
subject to review for declassification by DOE if the request for a 
declassification review describes the matter containing the information 
with sufficient specificity to enable DOE to locate it with a 
reasonable amount of effort.
    (b) The request must be sent to the Director, Office of 
Classification, AU-60/Germantown Building, U.S. Department of Energy, 
1000 Independence Avenue SW, Washington, DC 20585.


Sec.  1045.195   Is any matter exempt from MDR requests?

    (a) MDR requests are not accepted for:
    (1) Matter containing RD technical engineering, blueprints, and 
design regarding nuclear weapons, if they contain no NSI.
    (2) Matter required to be submitted for prepublication review or 
other administrative process pursuant to an approved nondisclosure 
agreement;
    (3) Matter that is the subject of pending litigation; or
    (4) Any matter contained within an operational file exempted from 
search and review, publication, and disclosure under the FOIA in 
accordance with law.
    (b) Current Presidential records as described in section 3.5(b) of 
E.O. 13526 or successor orders that are in the custody of DOE are 
exempt from release in response to an MDR request.

[[Page 17732]]

Sec.  1045.200  Is there a cost for an MDR review?

    Yes. The fees for an MDR are the same as for providing records 
under the FOIA as defined in 10 CFR 1004.9.


Sec.  1045.205   How does DOE conduct an MDR review?

    (a) If DOE has reviewed the information contained in the requested 
matter for declassification within the past 2 years, DOE need not 
conduct another review. DOE may instead inform the requester of this 
fact and of the prior review decision, as well as advise the requester 
of his or her appeal rights as provided in Sec.  1045.210.
    (b) DOE performs an MDR as follows:
    (1) Conducts a line-by-line review of the matter;
    (2) Coordinates the review with appropriate programs and agencies, 
as necessary;
    (3) Identifies and withholds any information that meets the 
standards for classification;
    (4) Declassifies any NSI that no longer meets the standards for 
classification under E.O. 13526 or successor orders and any RD, FRD, or 
TFNI that no longer meets the standards for classification under this 
part;
    (5) If the matter also contains unclassified information that is 
potentially exempt from release under the FOIA, the matter is further 
processed to ensure unclassified information that is exempt from public 
release is identified and that the appropriate officials responsible 
for denying any unclassified portion of the matter are provided and 
listed with the notice of denial.
    (6) Upon completion of the review, releases the matter to the 
requester unless withholding is authorized by law. If NSI, RD, FRD, or 
TFNI, is withheld, the response must advise the requester of his or her 
appeal rights under Sec.  1045.210.


Sec.  1045.210   How does a person submit an appeal if DOE withholds 
classified information in an MDR response?

    (a) When the Director, Office of Classification, denies NSI, RD, 
FRD, or TFNI, or the NNSA Deputy Director, Deputy Administrator for 
Naval Reactors, denies Naval Nuclear Propulsion information, in matter 
requested under an MDR, the requester may appeal the determination to 
the Associate Under Secretary for Environment, Health, Safety and 
Security. The appeal must be received within 60 days of the receipt of 
the denial.
    (b) The appeal must be in writing and submitted to the Associate 
Under Secretary for Environment, Health, Safety and Security, AU-1/
Forrestal Building, U.S. Department of Energy, 1000 Independence Avenue 
SW, Washington, DC 20585. The appeal:
    (1) Must contain a concise statement of grounds upon which it is 
brought, and a description of the relief sought.
    (2) Must include a copy of the letter containing the determination 
being appealed.
    (3) Should include a discussion of all relevant authorities that 
include but are not limited to DOE (and predecessor agencies) rulings, 
regulations, interpretations, and decisions on appeals, as well as any 
judicial determinations being relied upon to support the appeal.


Sec.  1045.215   How does DOE process an MDR appeal for DOE matter 
containing NSI?

    (a) An appeal for NSI requested under the provisions of E.O. 13526 
or successor orders is processed as follows:
    (1) The Associate Under Secretary for Environment, Health, Safety 
and Security must act upon the appeal within 60 working days of its 
receipt. If no determination on the appeal has been issued at the end 
of this 60-day period, the requester may consider his or her 
administrative remedies to be exhausted and may seek a review by the 
ISCAP. When no determination can be issued within the applicable time 
limit, the appeal must nevertheless continue to be processed. On 
expiration of the time limit, DOE must inform the requester of the 
reason for the delay, of the date on which a determination may be 
expected to be issued, and of the requester's right to seek further 
review by the ISCAP. Nothing in this subpart precludes the appeal 
authority and the requester from agreeing to an extension of time for 
the decision on an appeal. The Associate Under Secretary for 
Environment, Health, Safety and Security must confirm any such 
agreement in writing and clearly specify the total time agreed upon for 
the appeal decision.
    (2) The Associate Under Secretary for Environment, Health, Safety 
and Security's action on an appeal must be in writing and set forth the 
reason for the decision. DOE may refuse to confirm or deny the 
existence or nonexistence of requested information whenever the fact of 
its existence or nonexistence is itself classified under E.O. 13526 or 
successor orders.
    (3) Right of final appeal. The requester has the right to appeal a 
final DOE decision, or a failure to provide a determination on an 
appeal within the allotted time, to the ISCAP for those appeals dealing 
with NSI. In cases where NSI documents also contain RD, FRD, or TFNI, 
the portions of the document containing RD, FRD, or TFNI must be 
deleted prior to forwarding the NSI and unclassified portions to the 
ISCAP for review.


Sec.  1045.220  How does DOE process an MDR appeal for matter 
containing RD, FRD, or TFNI?

    (a) Final appeals for DOE matter containing RD, FRD, or TFNI are 
submitted to the Associate Under Secretary for Environment, Health, 
Safety and Security. The Associate Under Secretary for Environment, 
Health, Safety and Security will coordinate appeals concerning Naval 
Nuclear Propulsion Information with the NNSA Deputy Administrator for 
Naval Reactors.
    (b) The classification and declassification of RD, FRD, and TFNI is 
governed by the AEA and this part and is not subject to E.O. 13526 or 
successor orders. Therefore, appeal decisions concerning RD, FRD, or 
TFNI by the Associate Under Secretary for Environment, Health, Safety 
and Security, or the NNSA Deputy Administrator for Naval Reactors are 
not subject to review by ISCAP.


Sec.  1045.225  Are DOE responses to MDR requests available to the 
public?

    Yes. Once the classified and unclassified information exempt from 
public release is redacted, DOE responses to MDR requests, as well as 
FOIA requests for matter containing classified information, are posted 
on DOE's OpenNet System at: https://www.osti.gov/opennet/.

[FR Doc. 2018-07990 Filed 4-20-18; 8:45 am]
 BILLING CODE 6450-01-P



                                               17710                    Federal Register / Vol. 83, No. 78 / Monday, April 23, 2018 / Proposed Rules

                                               DEPARTMENT OF ENERGY                                    Lesley Nelson-Burns, Office of Quality                 I. Background
                                                                                                       Management, Department of Energy,
                                               10 CFR Part 1045                                                                                               A. Authority and Reasons for Regulation
                                                                                                       AU–61/Germantown Building, 1000
                                               [AU60–2016–1045]                                        Independence Avenue SW, Washington,                       The Atomic Energy Act of 1954, as
                                                                                                       DC 20585, or lesley.nelson-burns@                      amended, 42 U.S.C. 2011 et seq. (AEA),
                                               RIN 1992–AA49                                           hq.doe.gov, or phoned to 301–903–4861.                 is the basis for the classification of
                                                                                                         Instructions: All submissions must                   nuclear-weapons related information as
                                               Nuclear Classification and
                                                                                                       include the agency name and Docket                     Restricted Data (RD), and information
                                               Declassification
                                                                                                       Number or RIN for this rulemaking. All                 transclassified from the RD category.
                                               AGENCY: Department of Energy.                           comments received, including any                       The AEA grants the Department of
                                               ACTION:Notice of proposed rulemaking                    personal information provided, will be                 Energy (DOE) Government-wide
                                               and public hearings.                                    posted without change to http://                       authority for RD and the control of
                                                                                                       www.regulations.gov.                                   information as RD. Title 10 of the Code
                                               SUMMARY:    The Department of Energy                                                                           of Federal Regulations (CFR) part 1045
                                               (DOE) proposes to revise its regulations                  Docket: The docket is available for                  (this part) implements DOE authority
                                               concerning the requirements for                         review at regulations.gov, including                   under the AEA to manage the
                                               classification and declassification of                  Federal Register notices, comments,                    Government-wide system of classifying
                                               Restricted Data (RD) and Formerly                       and other supporting documents/                        and declassifying RD. This part
                                               Restricted Data (FRD). Since 1997, when                 materials. All documents in the docket                 prescribes procedures for the
                                               DOE amended the regulations, changes                    are listed in the regulations.gov index.               identification of RD, FRD, and TFNI,
                                               in legislation and DOE and national                     Not all documents listed in the index                  describes how members of the public
                                               policies have rendered portions of the                  may be publicly available, such as                     may request the release of RD, FRD,
                                               existing regulations outdated. The                      information that is exempt from public                 TFNI, and DOE National Security
                                               proposed revisions update the                           disclosure.                                            Information (NSI), and sets forth the
                                               regulations to address these changes.                     A link to the docket web page to read                process to appeal decisions regarding
                                               Additional changes made are to clarify                  background documents or comments                       such requests.
                                               requirements, as well as allow agencies                 received can be found at: http://                         In 1997, DOE issued a final rule in 10
                                               more flexibility in implementing RD/                    www.regulations.gov/#!                                 CFR part 1045 that established the
                                               FRD programs. This proposed rule is                     docketDetail;D=AU60-2016-104, or                       Government-wide responsibilities and
                                               rewritten for clarity and reorganized for               contact Lesley Nelson-Burns at 301–                    requirements for RD and FRD. 62 FR
                                               ease of use.                                            903–4861 or lesley.nelson-burns@                       68502 (Dec. 31, 1997). The DOE
                                               DATES: Written comments must be                         hq.doe.gov.                                            affirmed in the preamble to the final
                                               received by DOE on or before May 23,                                                                           rule that this DOE rule would establish
                                                                                                       FOR FURTHER INFORMATION CONTACT:
                                               2018.                                                                                                          the policies and procedures
                                                                                                       Lesley Nelson-Burns (Office of Quality
                                                  A public meeting will be held if one                                                                        implementing the requirements of the
                                                                                                       Management) at 301–903–4861 or
                                               is requested by May 8, 2018.                                                                                   AEA for the classification and
                                                                                                       lesley.nelson-burns@hq.doe.gov.
                                               ADDRESSES: Comments submitted                                                                                  declassification of RD and FRD. The
                                               should be identified by Docket Number                   SUPPLEMENTARY INFORMATION:                             rule also implemented the provisions of
                                               AU60–2016–1045 and/or Regulatory                        I. Background                                          the E.O. 12958 pertaining to National
                                               Information Number (RIN) 1992–AA49                         A. Authority and Reasons for Regulation             Security Information that directly affect
                                                                                                          B. Reasons for Revisions                            the public. The final rule included
                                               and may be submitted through the
                                                                                                          C. Summary of Revisions                             several requirements intended to
                                               following methods:                                      II. Regulatory Review and Procedural
                                                  • Federal eRulemaking Portal: http://                      Requirements
                                                                                                                                                              provide increased transparency and
                                               www.regulations.gov. Follow the                            A. Review Under Executive Orders 12866
                                                                                                                                                              accountability to the process of
                                               instructions for submitting comments.                         and 13563                                        classifying and declassifying RD and
                                                  • Email: officeofclassification@                        B. Review Under Executive Orders 13771              FRD. These included options for the
                                               hq.doe.gov. Include Docket Number                             and 13777                                        public to submit suggestions and
                                               AU60–2016–1045 and/or RIN 1992–                            C. Review Under the Regulatory Flexibility          complaints about classification policy,
                                               AA49 in the subject line of the message.                      Act                                              and for persons to submit challenges to
                                                  • Mail or Hand Delivery/Courier:                        D. Review Under the Paperwork Reduction             classification determinations and
                                               Mailing address for paper or compact                          Act                                              declassification proposals. The rule also
                                               disk (CD) submissions: Department of                       E. Review Under the National                        identified the specific criteria to be used
                                                                                                             Environmental Policy Act
                                               Energy, Office of Quality Management                                                                           to determine if information is RD, to
                                                                                                          F. Review Under E.O. 13132, ‘‘Federalism’’
                                               (AU–61/Germantown Building, Attn:                          G. Review Under E.O. 12988, ‘‘Civil Justice
                                                                                                                                                              declassify RD, and prohibitions on the
                                               Lesley Nelson-Burns), 1000                                    Reform’’                                         application of classification.
                                               Independence Ave. SW, Washington,                          H. Review Under the Unfunded Mandates               B. Reasons for Revisions
                                               DC 20585. If possible, submit all items                       Reform Act of 1995
                                               on a CD. It is not necessary to include                    I. Review Under E.O. 13211, ‘‘Regulations             DOE is revising this part to: Update
                                               printed copies.                                               that Significantly Affect Energy Supply,         DOE organizational responsibilities;
                                                  As a result of potential delays in the                     Distribution or Use’’                            incorporate changes in the Atomic
                                                                                                          J. Review Under the Treasury and General
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                                               receipt and processing of mail sent                                                                            Energy Act; Executive Order 13526,
                                               through the U.S. Postal Service, DOE                          Government Appropriations Act, 2001              Classified National Security
                                                                                                          K. Review Under the Treasury and General
                                               encourages respondents to submit                                                                               Information; and 32 CFR part 2001,
                                                                                                             Government Appropriations Act of 1999
                                               comments electronically to ensure                       III. Opportunities for Public Comment                  Classified National Security
                                               timely receipt.                                            A. Participation in This Proposed                   Information, as well as to improve
                                                  Questions concerning submitting                            Rulemaking                                       policies and procedures due to lessons
                                               written comments and requests to hold                      B. Written Comment Procedures                       learned and feedback from other Federal
                                               public meetings should be addressed to                  IV. Approval of the Office of the Secretary            agencies (agencies).


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                                                                        Federal Register / Vol. 83, No. 78 / Monday, April 23, 2018 / Proposed Rules                                             17711

                                                  Section 142(e) of the AEA authorizes                 recommendations in the revision to this                —§ 1045.9: This content was moved to
                                               the transclassification of information                  part. For example, the revised proposed                  § 1045.45(g).
                                               concerning the atomic programs of other                 rule permits RD Derivative Classifiers to                The sections of Subpart A are now as
                                               nations. Under section 142(e), RD                       remove RD, FRD, and TFNI from matter                   follows:
                                               concerning the atomic energy programs                   under certain circumstances when the                   —§ 1045.5: This content was previously
                                               of other nations is transclassified by                  resulting matter remains classified. The                 in sections § 1045.1, § 1045.10, and
                                               joint agreement with the Director of                    changes to this part do not significantly                § 1045.30. It now addresses the
                                               Central Intelligence (DCI) or the DNI to                impact current practices and many of                     purpose of 10 CFR part 1045 and its
                                               facilitate sharing in the Intelligence                  the changes provide greater flexibility                  subparts. The descriptions of the
                                               Community (IC). Information                             for agencies in implementing their RD                    purpose of each subpart have been
                                               transclassified under section 142 of the                programs.                                                changed to reflect the new content
                                               AEA, did not have a unique name or
                                                                                                       C. Summary of Revisions                                  and organization of each subpart.
                                               marking prior to being named TFNI in                                                                           —§ 1045.10: To lessen duplication, this
                                               2010 under 32 CFR part 2001. Prior to                   1. Subpart A                                             content now consolidates the
                                               2010, documents containing this
                                                                                                          Subpart A, previously titled,                         applicability sections of each subpart,
                                               information had no special identifier,
                                                                                                       ‘‘Program Management of the Restricted                   (formerly § 1045.2, § 1045.11,
                                               were handled in a manner similar to
                                                                                                       Data and Formerly Restricted Data                        § 1045.31, and § 1045.51). The
                                               NSI, and were not marked as exempt
                                                                                                       Classification System,’’ was renamed                     requirements for generating
                                               from automatic declassification.
                                                                                                       ‘‘Introduction.’’ Subpart A previously                   information and matter are in separate
                                               Although the information concerns
                                                                                                       contained § 1045.1 to § 1045.9. It now                   sections in the proposed rule to
                                               foreign nuclear programs, the
                                                                                                       contains § 1045.5 to § 1045.35. Sections                 clarify the distinct authorities and
                                               information may be the same or similar
                                                                                                       are now numbered by fives to allow for                   processes for each.
                                               to U.S. RD, which is never automatically
                                                                                                       future additions. The new sections                     —§ 1045.15: This content was
                                               declassified due to its sensitivity. To
                                                                                                       contain introductory information on this                 previously in § 1045.7. The address
                                               ensure this information is not
                                               automatically declassified and                          part including: The purpose and                          for the DOE Office of Classification
                                               inadvertently released, E.O. 13526                      application of this part; how to submit                  was updated.
                                               recognized the Secretary of Energy’s                    comments and requests for                              —§ 1045.20: This content was
                                               authority to determine its                              equivalencies and exemptions;                            previously in § 1045.8. The term
                                               declassification. The Information                       sanctions that may be implemented                        ‘‘procedural exemption’’ has been
                                               Security Oversight Office (ISOO) of the                 against violators of this regulation; and                changed to ‘‘equivalencies and
                                               National Archives and Records                           definitions and acronyms used in this                    exemptions’’ for greater clarity and to
                                               Administration, in coordination with                    part. Information concerning program                     increase flexibility. Rather than
                                               DOE, developed language to incorporate                  management and individual                                requesting a complete exemption to a
                                               TFNI marking requirements into 32 CFR                   responsibilities was moved to Subpart                    requirement, DOE proposes to permit
                                               2001.24(i).                                             B.                                                       agencies request an equivalency, by
                                                  Revisions to this part mirror the                       The existing sections of Subpart A                    providing an alternate but sufficient
                                               marking policies jointly developed by                   were changed as follows: Changes to the                  method of meeting a requirement. Due
                                               DOE and ISOO contained in 32 CFR part                   content are discussed in the new                         to the addition of equivalencies, the
                                               2001 and ISOO Notice 2011–02. These                     location noted.                                          information required in a submission
                                               policies ensure matter containing RD,                   —§ 1045.1: This content was moved to                     for an exemption or equivalency has
                                               FRD, and TFNI are not automatically                        § 1045.5.                                             been expanded. The addresses were
                                               declassified. These policies are publicly               —§ 1045.2: This content was moved to                     also updated.
                                               available from the ISOO website at                         § 1045.10(a).                                       —§ 1045.25: This content was
                                               https://www.archives.gov/isoo.                          —§ 1045.3: This content was moved to                     previously in § 1045.5. There have
                                                  In addition, revisions to this part                     § 1045.30.                                            been no substantive changes to this
                                               define specific responsibilities and                    —§ 1045.4: This content was moved to                     content.
                                               authorities for TFNI, authorities for the                  § 1045.45.                                          —§ 1045.30: This content was
                                               return of FRD and TFNI to the RD                        —§ 1045.5: This content was moved to                     previously in § 1045.3. Several
                                               category as permitted by changes to                        § 1045.25.                                            definitions were added, removed, or
                                               Section 142 of the AEA, and the                         —§ 1045.6: This content was deleted.                     revised as follows:
                                               marking of matter that commingles RD/                      The Openness Advisory Panel (OAP)                     —Associate RD Management Official
                                               FRD/TFNI with NSI or Controlled                            was a subcommittee of the Secretary                      (ARDMO)—added to formalize
                                               Unclassified Information (CUI). Many                       of Energy Advisory Board (SEAB). In                      existing practice of Restricted Data
                                               changes are based on DOE’s experience                      May 2006, the Secretary abolished the                    Management Officials (RDMOs)
                                               assisting other agencies in                                SEAB and the OAP was not                                 acting through deputies.
                                               implementing this part.                                    reconstituted when the SEAB was re-                   —Associate Under Secretary for
                                                  E.O. 12866 states regulations must be                   established in 2010. To encourage                        Environment, Health, Safety and
                                               ‘‘simple and easy to understand, with                      persons with access to RD, FRD, or                       Security replaced ‘‘Chief Health,
                                               the goal of minimizing uncertainty and                     TFNI and the public to inform DOE of                     Safety and Security officer’’ to
                                               litigation . . . ’’ (Sec. 1, Par. (b)(12)) and             records of interest, DOE has proposed                    reflect DOE reorganizations.
                                                                                                          to revise the sections in this part on
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                                               E.O. 12988 states that each regulation                                                                           —Classification Category—new
                                               must specify its effect ‘‘in clear                         classification challenges and                            definition to clarify the specific
                                               language’’ (Sec. 3 Par. (b)(2)). In                        declassification proposals to provide                    authority for RD, FRD, and TFNI.
                                               accordance with these E.O.’s, this                         more information on these processes.                  —Classification Guidance—new
                                               proposed regulation is rewritten for                    —§ 1045.7: This content was moved to                        definition to clarify that guidance is
                                               clarity and reorganized for ease of use.                   § 1045.15.                                               approved by an appropriate
                                                  DOE consulted with other agencies                    —§ 1045.8: This content was moved to                        authority and to provide examples
                                               and incorporated many of their                             § 1045.20.                                               of types of guidance.


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                                               17712                    Federal Register / Vol. 83, No. 78 / Monday, April 23, 2018 / Proposed Rules

                                                —Classified Matter—replaced                                streamline definition.                               —Content regarding the
                                                  ‘‘documents and material’’ to be                       —Source Document—edited to                                declassification of FRD was moved
                                                  consistent with current policies.                        emphasize the requirement for RD                        to § 1045.45(b), § 1045.100 and
                                                —Downgrading—defined to describe                           Derivative Classifiers to use only                      § 1045.105.
                                                  downgrading of information and                           portion marked source documents.                   —§ 1045.15: This content was moved to
                                                  matter.                                                The following definitions were                         § 1045.80.
                                                —Initial Determination—defined to                      deleted as they are not used in this part:             —§ 1045.16: This content was moved to
                                                  identify the process by which new                      —Authorized Holder—this term was                       § 1045.70.
                                                  information is determined to be RD.                      replaced by ‘‘person with access.’’                —§ 1045.17: This content was moved to
                                                —Originating Activity—defined to                         —Document—removed. All references                      § 1045.45(c) and § 1045.95.
                                                  clarify the circumstances in which                       are now to ‘‘matter.’’                             —§ 1045.18: This content was moved to
                                                  matter may be distributed as a                       —§ 1045.35: This new content contains                    § 1045.45(c).
                                                  working paper.                                         the acronyms used in the regulation.                 —§ 1045.19: This content was deleted.
                                                —Restricted Data Derivative                                                                                     Classification determinations
                                                  Classifier—replaced Restricted Data                  2. Subpart B                                             concerning RD or FRD, as specified in
                                                  Classifier to clarify all decisions of                  Subpart B, previously titled,                         paragraph (a), follow the criteria in
                                                  an RD Classifier are derivative.                     ‘‘Identification of Restricted Data and                  § 1045.80, which provides the
                                                —TFNI—added to define information                      Formerly Restricted Data Information,’’                  rationale for classification and
                                                  removed from the RD category                         was renamed ‘‘Program Management of                      declassification of RD or FRD.
                                                  under section 142(e) of the AEA.                     Restricted Data (RD), Formerly                           Justifications for the exemptions are
                                                —TFNI Guidelines—added to define                       Restricted Data (FRD), and                               removed because the presumptions
                                                  TFNI-specific policies issued by                     Transclassified Foreign Nuclear                          are a starting point to classify or
                                                  agencies.                                            Information (TFNI) Classification                        declassify information as the Director,
                                                —Upgrading—added for persons to                                                                                 Office of Classification evaluates the
                                                                                                       Programs’’ Subpart B previously
                                                  better understand the difference                                                                              criteria, he or she would also justify
                                                                                                       contained § 1045.10 to § 1045.22. It now
                                                  between upgrading information                                                                                 any exception to the presumptions.
                                                                                                       contains Sections from § 1045.40 to
                                                  (DOE-only) and matter (any RD                                                                                 No separate justification is necessary.
                                                                                                       § 1045.65. Sections from Subparts A, B,
                                                  Derivative Classifier) to ensure in                                                                           The annual report required by
                                                                                                       and C were moved to this Subpart to
                                                  both cases the appropriate authority                                                                          paragraph (b) has not been of interest
                                                                                                       locate agency and individual
                                                  is exercised.                                                                                                 to the public. DOE has had only one
                                                                                                       responsibilities and authorities in a
                                               —The following existing definitions                                                                              request for the annual report since
                                                                                                       single subpart. The section of Subpart B
                                                were revised for clarity:                                                                                       1997. Any specific information of
                                                                                                       describing processes for classification
                                               —Agency—added TFNI.                                                                                              interest to the public may be
                                               —Automatic Declassification—revised                     and declassification of RD and FRD
                                                                                                       (formerly § 1045.14) has been broken up                  requested under the FOIA.
                                                to reflect E.O. 13526.                                                                                        —§ 1045.20: The content of this
                                               —Classification—includes information                    and distributed throughout the
                                                                                                       regulation, with each component                          paragraph was moved to § 1045.105.
                                                classified by statute (the AEA).                                                                              —§ 1045.21: This content was moved to
                                               —Classification Guide—edited for                        relocated to its appropriate section. The
                                                                                                       Subpart also includes new sections on                    § 1045.90.
                                                clarity.                                                                                                      —§ 1045.22: This content was moved to
                                               —Classification Level.                                  responsibility for TFNI and reflects the
                                                                                                       comprehensive development of TFNI                        § 1045.60 and § 1045.65.
                                               —Added TFNI.
                                               —Removed definition of Confidential                     policy by generally including TFNI                       The sections of Subpart B are now as
                                                for NSI because this is defined in E.O.                wherever it should be included with RD                 follows:
                                                13526 and should not be duplicated                     and FRD.                                               —§ 1045.40: This content was
                                                here because it does not apply to RD,                     The existing sections of Subpart B                    previously in § 1045.33. A timeframe
                                                FRD, or TFNI.                                          were changed as follows: Changes to the                  for agencies to notify the Director,
                                                —Classified Information—added                          content are discussed in the new                         Office of Classification, of new RDMO
                                                  TFNI; clarified that classified NSI                  location noted.                                          appointments was added. This change
                                                  includes information classified                      —§ 1045.10: This content was moved to                    will ensure that points of contact are
                                                  under E.O. 13526.                                       § 1045.5.                                             accurate and that a senior point of
                                                —Declassification—edited for clarity.                  —§ 1045.11: This content was moved to                    contact is available to address
                                                —Director, Office of Classification—                      § 1045.10.                                            questions or concerns.
                                                  removed reference to organizational                  —§ 1045.12: This content was moved to                  —§ 1045.45: This content was
                                                  placement of Director, Office of                        § 1045.45.                                            previously in § 1045.4, § 1045.14,
                                                  Classification as it is not necessary.               —§ 1045.13: This content was moved to                    § 1045.17, § 1045.18, and § 1045.32.
                                                —Interagency Security Classification                      § 1045.75.                                            The section on responsibilities
                                                  Appeals Panel (ISCAP)—updated to                     —§ 1045.14: This was moved and                           incorporates changes that describe
                                                  reflect E.O. 13526.                                     subdivided in the following manner:                   current obligations in more detail.
                                                —National Security—definition                             —Content regarding the initial                        Responsibilities concerning the return
                                                  changed to refer to definition used                       classification of RD was moved to                   of FRD or TFNI to the RD category
                                                  by E.O. 13526.                                            § 1045.45(c), § 1045.70, and                        were added. This addition was due to
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                                                —National Security Information—                             § 1045.135.                                         an amendment to sections 142(d) and
                                                  defined as pursuant to E.O. 13526.                      —Content regarding the                                (e) of the AEA which permits this
                                                  Removed clause describing                                 declassification of RD was moved to                 action. Other changes were due to the
                                                  ‘‘defense information’’ as used in                        § 1045.45(b), § 1045.100 and                        implementation of TFNI and the
                                                  the AEA because it is obsolete and                        § 1045.105(a) and (b).                              consolidation of responsibilities
                                                  not pertinent to this proposed rule.                    —Content regarding the classification                 which were previously distributed
                                                —Portion Marking—edited for clarity.                        of FRD was moved to § 1045.45(b)                    throughout the regulation. Additional
                                                —RD Management Official—edited to                           and § 1045.85(a).                                   changes were made to clarify or


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                                                                        Federal Register / Vol. 83, No. 78 / Monday, April 23, 2018 / Proposed Rules                                           17713

                                                codify existing practices. The                          —Adds responsibility for periodic                     3. Subpart C
                                                description of the authority of the                       reviews of agency classification                       Subpart C, previously titled,
                                                Associate Under Secretary for                             decisions of matter containing RD,                  ‘‘Generation and Review of Documents
                                                Environment, Health, Safety, and                          FRD, or TFNI. Agencies currently                    Containing Restricted Data and
                                                Security now appears in § 1045.45(b).                     conduct annual reviews of                           Formerly Restricted Data,’’ was renamed
                                                The substantive changes are as                            classification decisions under 32                   ‘‘Determining if Information is RD, FRD,
                                                follows:                                                  CFR part 2001 to ensure the                         or TFNI.’’ Subpart C previously
                                               —§ 1045.45(b): Changed title of position                   appropriate identification and                      contained § 1045.30 to § 1045.46. It now
                                                to reflect DOE reorganizations.                           marking of National Security                        contains § 1045.70 to § 1045.110.
                                                Implied responsibilities are now                          Information. The periodic review of                 Subpart C consolidates content from
                                                explicitly stated. The content was                        matter containing RD, FRD, or TFNI                  other subparts on the following subjects:
                                                edited to include additional                              may be done during these reviews                    The processes for classification and
                                                information on cooperation with DoD                       to ensure agencies are aware of any                 declassification; the presumptions that
                                                in the classification and                                 systematic issues regarding                         guide those processes; the status of
                                                declassification of FRD and to codify                     compliance with this part; and                      privately-generated information in the
                                                existing practices.                                     —Added the Director of National                       RD realm; classification levels; and
                                               —§ 1045.45(c): This content was                            Intelligence (DNI) responsibility for               classification challenges. Subpart C also
                                                previously in § 1045.4(a), Director,                      IC elements.                                        contains a new section on the
                                                Office of Classification.                              —§ 1045.45(i), (j), and (k): This content              transclassification of information from
                                                —Added TFNI guidelines in the                           was previously in § 1045.32                           the RD category into the TFNI category
                                                  development of joint classification                   —Added descriptions of the limits of                  which is part of the addition of TFNI
                                                  guides (to include clarification of                     the authority regarding                             policy.
                                                  who must perform assigned duties).                      declassification, downgrading, and
                                                —Content was expanded to address                                                                                 The existing sections of Subpart C
                                                                                                          using portion-marked source                         were changed as follows: Changes to the
                                                  agency and Director, Office of                          documents. This description was
                                                  Classification roles in implementing                                                                        content are discussed in the new
                                                                                                          added to clarify requirements and                   location noted.
                                                  this part.                                              allow agencies greater flexibility in
                                               —§ 1045.45(g): This content was                                                                                —§ 1045.30: This content was moved to
                                                                                                          the classification of documents                        § 1045.5.
                                                previously in § 1045.4(e), Head of                        containing RD, FRD, or TFNI, while
                                                Agencies with Access to RD, FRD, and                                                                          —§ 1045.31: This content was moved to
                                                                                                          ensuring documents are                                 § 1045.10(a).
                                                TFNI, with the following changes:                         coordinated with DOE or DoD,
                                                —Added requirement to develop and                                                                             —§ 1045.32: This content was moved to
                                                                                                          when necessary. For clarity, the list                  § 1045.45(i) and § 1045.155.
                                                  promulgate procedures for                               of responsibilities for RD DCs now
                                                  classification challenges and                                                                               —§ 1045.33: This content was moved to
                                                                                                          explicitly requires that source                        § 1045.40.
                                                  declassification proposals for RD,                      documents be portion-marked, and
                                                  FRD, and TFNI.                                                                                              —§ 1045.34: This content was moved to
                                                                                                          gives examples of classification                       § 1045.115(b) and (c).
                                                —Deleted redundant information
                                                                                                          upgrading and downgrading.                          —§ 1045.35: This paragraph was moved
                                                  about parallel procedures for NSI.
                                                                                                        —Added training required for access                      to § 1045.45(c) and § 1045.120.
                                                  This information is governed by
                                                                                                          to and to derivatively classify TFNI                —§ 1045.36: This content was moved to
                                                  E.O. 13526 and should not be
                                                                                                       —§ 1045.55: This content was moved                        § 1045.45(c).
                                                  duplicated here.
                                                —Added responsibilities of DOE, DNI                     from § 1045.37 and § 1045.43. The                     —§ 1045.37: The content regarding
                                                  and the IC for TFNI;                                  language was edited for clarity, and                     classification guides was moved to
                                                —Added responsibility for review of                     the mailing address for the Director of                  § 1045.45. The requirement regarding
                                                  NSI records of permanent historical                   Classification was added for accuracy.                   the 5-year review of guides was
                                                  value under the ‘‘Special Historical                  The requirement for declassification                     moved to § 1045.45(g)(9).
                                                  Records Review Plan                                   proposals from persons with access to                 —§ 1045.38: This content was moved to
                                                  (Supplement)’’ (established under                     RD, FRD, or TFNI to be transmitted                       § 1045.155.
                                                  Public Laws (Pub. L. 105–261 and                      through secure means was added to                     —§ 1045.39: This content was moved to
                                                  106–65); and                                          ensure the proper protection of                          § 1045.110.
                                                —Added requirement for contacting                       classified information.                               —§ 1045.40: This content was moved to
                                                  officer to be notified of contracts                  —§ 1045.60: This content was moved                        § 1045.140 and § 1045.165.
                                                  that have access to or generate                       from § 1045.22. The content did not                   —§ 1045.41: This content was moved to
                                                  matter containing RD, FRD, or                         change.                                                  § 1045.130(d).
                                                  TFNI, to ensure agencies are aware                   —§ 1045.65: This content was moved                     —§ 1045.42: This content was moved to
                                                  of such contracts and that contracts                  from § 1045.22. To be consistent with                    § 1045.170, § 1045.175, and
                                                  incorporate the requirements of 10                    DOE policies and for accuracy, the                       § 1045.180.
                                                  CFR part 1045.                                        term ‘‘public domain’’ was replaced                   —§ 1045.43: This content was moved to
                                               —§ 1045.45(h): This content was                          by ‘‘open literature.’’ The content also                 § 1045.55.
                                                previously in § 1045.4(f), RDMOs,                       now explains:                                         —§ 1045.44: This content was moved to
                                                with the following changes:                             —The possible damage to national                         § 1045.125(b).
                                                                                                                                                              —§ 1045.45: This content was moved to
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                                                —Established procedures for the                           security resulting from commenting
                                                  designation of Associate RDMOs                          on information in the open                             § 1045.125.
                                                  (ARDMOs). This codifies current                         literature that is or may be RD, FRD                —§ 1045.46: This content was moved to
                                                  practices and allows agencies                           or TFNI; and                                           1045.130(c) and (d).
                                                  flexibility in delegating the                         —Required reviews of new                                 The sections of Subpart C are now as
                                                  responsibilities of RDMOs;                              documents which incorporate                         follows:
                                                —Incorporates RDMO responsibilities                       information from the open literature                —§ 1045.70: This content was
                                                  for TFNI;                                               which may be classified.                               previously in § 1045.14 and § 1045.16.


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                                               17714                    Federal Register / Vol. 83, No. 78 / Monday, April 23, 2018 / Proposed Rules

                                                To address current concerns, the                             ensure RD, FRD, and TFNI challenges                and resources spent repeating training
                                                consideration as to whether                                  are referred to the appropriate agency             already provided when the previous
                                                declassification would assist terrorism                      for consideration and any changes to               authority is the same and to allow
                                                was added.                                                   guidance based on a challenge will be              agencies greater flexibility in
                                               —§ 1045.75: This content was                                  promulgated.                                       authorities for Strategic Partnership
                                                previously in § 1045.13. There are no                                                                           Projects when persons may require
                                                changes to the content.                                4. Subpart D                                             classification authority for other
                                               —§ 1045.80: This content was                               Subpart D, previously titled,                         agency work. Content was added to
                                                previously in § 1045.15. The                           ‘‘Executive Order 12958: ‘Classified                     address authority and training to
                                                introduction was revised for clarity.                  National Security Information’’                          classify matter containing TFNI.
                                               —§ 1045.85: This content was                            Requirements Affecting the Public,’’ was                —§ 1045.120: This content was
                                                previously in § 1045.14. The content                   renamed ‘‘Classifying and Declassifying                  previously in § 1045.35. Content was
                                                was edited to include information on                   Matter Containing RD, FRD, or TFNI.’’                    added to provide more detail
                                                coordination with DoD in the                           Subpart D previously contained                           regarding training for persons with
                                                classification of FRD, to codify                       § 1045.50 to § 1045.53. It now contains                  access to RD, FRD, or TFNI, and for
                                                existing practices. It also adds content               § 1045.115 to § 1045.165. The sections                   RD DC training. Periodic refresher
                                                concerning the transclassification of                  of Subpart D that deal with DOE’s NSI                    training was added for persons with
                                                TFNI, which is added due to the                        classification program were moved to                     access to RD, FRD, or TFNI and
                                                comprehensive implementation of                        Subpart F. Sections from Subparts B and                  refresher training every two years is
                                                TFNI. Lastly, it adds content                          C were moved into Subpart D.                             required for RD DCs. This
                                                regarding the return of FRD or TFNI                       Subpart D contains a number of new                    requirement is consistent with
                                                information to the RD category,                        sections. The new sections addressing                    requirements for other classified
                                                codifying a revision to sections 142(d)                TFNI cover: The requirement for a                        information. Content was also added
                                                and (e) of the AEA that allows this                    person trained to classify TFNI to                       concerning officials and training for
                                                action.                                                review any matter that could potentially                 TFNI classification which was added
                                               —§ 1045.90: This content was                            contain TFNI; the requirement for                        to implement TFNI.
                                                previously in § 1045.21. The content                   classification of TFNI by a person with                 —§ 1045.125: This content was
                                                was reworded for clarity.                              appropriate authority; and the                           previously in § 1045.44. To codify
                                               —§ 1045.95: This content was                            appropriate procedure for when TFNI                      existing practices, the section
                                                previously in § 1045.17. Examples of                   guidance cannot be located.                              provides greater detail on the process
                                                RD in each classification level were                      A description of authorities and                      for reviewing matter that potentially
                                                removed as unnecessary and the                         procedures for redacting RD, FRD, or                     contains RD, FRD or TFNI. The
                                                language was revised and reorganized                   TFNI from a document was also added                      requirement for review of such matter
                                                for clarity.                                           to this Subpart. Authorities and                         by an RD DC was changed from ‘‘any
                                               —§ 1045.100: This content was                           procedures for redacting RD, FRD, or                     authorized holder who believes he or
                                                previously in § 1045.14. There have                    TFNI were added to clarify when other                    she has information which may be RD
                                                been no substantive changes to this                    agencies may remove RD, FRD, or TFNI                     shall submit it to an RD Classifier for
                                                content.                                               from matter.                                             evaluation’’ to ‘‘Matter that
                                               —§ 1045.105: This content was                                                                                    potentially contains RD or FRD must
                                                                                                          To assist agencies in developing
                                                previously in § 1045.14 and § 1045.20.                                                                          be reviewed by an RD Derivative
                                                                                                       proper training materials, detail was
                                                To give more detail on an existing                                                                              Classifier.’’ This change reflects the
                                                                                                       added to descriptions of training
                                                process, the paragraph now specifies                                                                            current DOE requirement for
                                                                                                       requirements for RD Derivative
                                                that declassification proposals must                                                                            classification reviews, and adds FRD
                                                                                                       Classifiers and for persons with access
                                                be in writing, and include a reason for                                                                         because FRD and RD often have
                                                                                                       to RD, FRD, or TFNI. The section
                                                the proposal. The paragraph also                                                                                similar content. The requirement for
                                                                                                       describing classification by compilation
                                                provides greater detail on the process                                                                          review no longer relies on the
                                                                                                       or association provides more detail
                                                used to adjudicate declassification                                                                             authorized holder’s subjective belief
                                                                                                       about these training requirements.
                                                proposals to codify existing practices.                                                                         that information may be RD, since it
                                                                                                          The existing sections of Subpart D
                                                Information on coordination with                                                                                may be unreliable. New content was
                                                                                                       were changed as follows: Changes to the
                                                DoD in FRD declassification was                                                                                 added to address TFNI.
                                                                                                       content are discussed in the new
                                                added to codify existing practices.                                                                            —§ 1045.130: This content was
                                                                                                       location noted.
                                               —§ 1045.110: This content was                                                                                    previously § 1045.41, and § 1045.46.
                                                previously in § 1045.39. The changes                   —§ 1045.50: This content was moved to                    Content, was added to address
                                                are: Additional content on agency                         § 1045.5.                                             classification of TFNI. Content was
                                                responsibilities regarding                             —§ 1045.51: This content was moved to                    also added to address when source
                                                classification challenges for RD, FRD,                    § 1045.10(a).                                         documents may be used as a basis for
                                                and TFNI information; an emphasis                      —§ 1045.52: This content was moved to                    classifying matter containing RD or
                                                on the right of challengers to submit                     § 1045.185 and § 1045.190.                            FRD. The section provides more detail
                                                challenges directly to the Director,                   —§ 1045.53: This content was moved to                    for existing practices dealing with the
                                                Office of Classification, at any time;                    § 1045.205 and § 1045.210                             process of classification by
                                                more information on the actions                           The sections of Subpart D are now as                  association or compilation.
                                                                                                       follows:
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                                                required of the Director, Office of                                                                            —§ 1045.135: This content was
                                                Classification, and the challenger’s                   —§ 1045.115: This content was                            previously in § 1045.14. For the
                                                appeal rights. This section also                          previously in § 1045.34. It contains                  RDMO to be aware of guidance
                                                clarifies that agency responses to                        two proposed amendments. The                          available to RD DCs and to resolve
                                                challenges (except for DoD for FRD)                       authority for agencies to recognize RD                issues at the agency level, when
                                                are limited to interpreting the                           DC authorities granted by other                       possible, the RDMO and ARDMO
                                                application of guidance to                                agencies was added to allow agencies                  were added as contacts for when RD
                                                derivatively classify matter. This is to                  flexibility and save agencies the time                DCs have potentially classified


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                                                                        Federal Register / Vol. 83, No. 78 / Monday, April 23, 2018 / Proposed Rules                                           17715

                                                information for which they cannot                      for Matter Marked as or Potentially                      requirement for NSI contained in 32
                                                find guidance. Also, the Director,                     Containing RD, FRD, or TFNI,’’ is a new                  CFR part 2001 section 33.
                                                Office of Classification, is now                       addition containing content currently
                                                                                                                                                              6. Subpart F
                                                explicitly required to notify the                      contained in Subpart C and new
                                                RDMO of the agency originating                         content. This section describes                           Subpart F, ‘‘DOE-specific procedures
                                                information of the results of any                      requirements for other Government                      for MDR Requests,’’ is a new addition
                                                initial determination requests                         agencies when they receive a FOIA or                   containing content currently contained
                                                transmitted to the Director.                           MDR request that potentially contains                  in Subpart C and new content. This
                                                Potentially classified documents                       RD, FRD, or TFNI. Subpart E contains                   section describes how a person submits
                                                pending determination are now                          § 1045.170 to § 1045.180. Sections from                an MDR request to DOE for matter that
                                                protected at a minimum of SRD or                       Subpart C that deal with RD and FRD                    is marked as or potentially contains NSI,
                                                SFRD, instead of CRD required by the                   under a FOIA or an MDR request were                    RD, FRD, or TFNI. This section also
                                                current regulation. This is due to the                 moved to this subpart. These sections                  describes how MDR requests are
                                                fact that since the majority of RD is                  were also expanded to provide greater                  processed within DOE. As recognized in
                                                Secret, this is the most appropriate                   detail regarding the processes for                     section 6.2 of E.O. 13526, RD, FRD, and
                                                level of protection until the specific                 appeals and requests.                                  TFNI, which are classified under the
                                                level is identified. Additional                          The sections of Subpart E are as                     Atomic Energy Act. Therefore, MDR
                                                information was added regarding the                    follows:                                               procedures in E.O. 13526, which only
                                                proper procedure when TFNI                                                                                    applies to NSI, do not apply to RD, FRD,
                                                                                                       —§ 1045.170—This section was added                     or TFNI. This subpart implements DOE
                                                guidance cannot be located.                              to clarify that this section applies to
                                               —§ 1045.140: This content was                                                                                  procedures for processing MDR requests
                                                                                                         other Government agencies who                        for NSI, under E.O. 13526, and also
                                                previously in § 1045.40. New sub-                        receive FOIA and MDR requests for
                                                paragraphs were added to cover                                                                                ensures the public may request
                                                                                                         matter that is marked as or potentially              declassification reviews of documents
                                                markings for: the IC; working papers                     contains RD, FRD, or TFNI. RD, FRD,
                                                containing RD, FRD, or TFNI;                                                                                  containing RD, FRD, or TFNI. Subpart F
                                                                                                         and TFNI, is classified under the                    contains § 1045.185 to § 1045.225.
                                                commingled RD/FRD/TFNI with NSI                          Atomic Energy Act and therefore does
                                                or CUI; special format matter; and                                                                            Sections from Subpart D that deal with
                                                                                                         not fall under the MDR provisions of                 MDR requests and appeals by the public
                                                TFNI markings. All revisions to the                      E.O. 13526, which only applies to
                                                marking sections were based on                                                                                were moved to this Subpart. Subpart F
                                                                                                         NSI. This section ensures that RD,                   contains new sections that describe
                                                national policy, with content added to                   FRD, and TFNI are also considered for
                                                fully address and clarify                                                                                     exemptions to MDR requests, the cost
                                                                                                         declassification and the appropriate                 associated with an MDR, the DOE
                                                requirements.                                            authority reviews matter that is
                                               —§ 1045.145: This section was added to                                                                         process for MDR reviews and appeals,
                                                                                                         marked as or potentially contains this               and DOE’s OpenNet online resource.
                                                address matter printed from an IT
                                                                                                         information.                                            The sections of Subpart F are as
                                                system.
                                               —§ 1045.150: This new section                           —§ 1045.175: This content was                          follows:
                                                addresses authorities and procedures                     previously in § 1045.42. This section                —§ 1045.185—This section was added
                                                for redacting RD, FRD, or TFNI from                      now clarifies that it applies to matter                 to clarify that this subpart concerns
                                                matter. This content was added to                        that potentially contains RD, FRD, or                   DOE-specific processes for MDRs
                                                clarify procedures for removing RD,                      TFNI as well as matter marked as                        under E.O. 13526, which includes
                                                FRD, or TFNI from matter and ensure                      containing RD, FRD, or TFNI. The                        NSI, and review of declassification
                                                the resulting document does not                          Denying Official for Naval Nuclear                      requests for matter marked as or
                                                potentially contain RD, FRD, or TFNI.                    Propulsion was changed to the                           potentially containing RD, FRD, or
                                               —§ 1045.155: This content was                             Deputy Director, Deputy                                 TFNI, which are not governed by E.O.
                                                previously in § 1045.32 and § 1045.38.                   Administrator for Naval Reactors, so                    13526, to ensure these are considered
                                                TFNI was added and new content                           that the Denying Official and the                       and appropriately reviewed.
                                                addresses who may redact RD, FRD,                        appeal authority are no longer the                   —§ 1045.190: This content was
                                                or TFNI from a document being                            same. Language for the DoD Initial                      previously in § 1045.52. The mailing
                                                prepared for public release. This was                    Denying Authority was incorporated                      address for the Director of
                                                added to ensure matter containing RD,                    from DoD Manual 5400.07, DoD                            Classification was updated.
                                                FRD, or TFNI is reviewed by a person                     Freedom of Information Act (FOIA)                    —§ 1045.195: This content was
                                                with subject matter expertise and                        Program.                                                previously in § 1045.52. An
                                                authority so that RD, FRD, or TFNI is                  —§ 1045.180: This content was                             exemption from MDR requests was
                                                not inadvertently released.                              previously in § 1045.42. The content                    added for RD matter (technical
                                               —§ 1045.160: This content is a new                        was expanded to clarify the process                     engineering, blueprints and design
                                                addition. It was added at the request                    and provide greater detail regarding                    documents regarding nuclear
                                                of other agencies to ensure documents                    FOIA and MDR appeals for matter                         weapons). Portion by portion review
                                                from which RD, FRD, or TFNI is                           containing RD, FRD, or TFNI and to                      of these documents is complex and
                                                removed that still contain NSI are                       ensure RD, FRD, or TFNI portions are                    time consuming and results in release
                                                reviewed and marked appropriately.                       not included in NSI appeals to ISCAP.                   of minimal non-exempt information.
                                               —§ 1045.165: This content was                             Since DOE may receive appeals from                      Processing and review of these
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                                                previously in § 1045.40. TFNI was                        individuals or from agencies, both                      documents requires significant
                                                added.                                                   circumstances are now addressed to                      resources. Due to the significant
                                                                                                         ensure all appeals for RD and TFNI                      sensitivity of the vast majority of
                                               5. Subpart E                                              are sent to DOE and all appeals for                     information contained in these
                                                  Subpart E, Government-wide                             FRD are sent to DOE or DoD. Appeals                     documents, DOE determined that they
                                               Procedures for Handling Freedom of                        are now required to be submitted                        should not be subject to an MDR. The
                                               Information Act (FOIA) and Mandatory                      within 60 days of the receipt of the                    exemption from mandatory
                                               Declassification Review (MDR) Requests                    denial, which is consistent with the                    declassification review under the


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                                               17716                    Federal Register / Vol. 83, No. 78 / Monday, April 23, 2018 / Proposed Rules

                                                Central Intelligence Agency                            associated with the governmental                       impact on a substantial number of small
                                                Information Act was removed because                    imposition of private expenditures                     entities. As required by E.O. 13272,
                                                it does not apply to DOE records.                      required to comply with Federal                        ‘‘Proper Consideration of Small Entities
                                               —§ 1045.200: This new section contains                  regulations. This proposed rule is                     in Agency Rulemaking’’ (67 FR 53461,
                                                content addressing costs for MDR                       expected to be an E.O. 13771                           August 16, 2002), DOE published
                                                reviews. When 10 CFR part 1045 was                     deregulatory action.                                   procedures and policies on February 19,
                                                initially issued, DOE received very                       Additionally, on February 24, 2017,                 2003, to ensure that the potential
                                                few MDR requests. Due to a                             the President issued Executive Order                   impacts of its rules on small entities are
                                                significant increase in MDR requests,                  13777, ‘‘Enforcing the Regulatory                      properly considered during the
                                                DOE determined it was necessary to                     Reform Agenda.’’ The Order required                    rulemaking process. DOE has made its
                                                recover some of the cost. The fees                     the head of each agency designate an                   procedures and policies available on the
                                                established mirror DOE fees for FOIA                   agency official as its Regulatory Reform               Office of the General Counsel’s website:
                                                requests.                                              Officer (RRO). Each RRO oversees the                   (http://energy.gov/gc/office-general-
                                               —§ 1045.205: Content addressing MDR                     implementation of regulatory reform                    counsel).
                                                requests and appeals for matter                        initiatives and policies to ensure that                   DOE has reviewed this proposed rule
                                                containing RD, FRD, or TFNI was                        agencies effectively carry out regulatory              under the Regulatory Flexibility Act and
                                                added. The changes codify existing                     reforms, consistent with applicable law.               certifies that, if adopted, the rule would
                                                practices.                                             Further, E.O. 13777 requires the                       not have a significant impact on a
                                               —§ 1045.210: This content was                           establishment of a regulatory task force               substantial number of small entities.
                                                previously in § 1045.53. Addressed                     at each agency. The regulatory task force              This proposed rule applies to Federal
                                                the denial of naval nuclear propulsion                 is required to make recommendations to                 agencies and private entities who have
                                                information in the requirement since                   the agency head regarding the repeal,                  access to RD. The number of private
                                                this information is not initially denied               replacement, or modification of existing               entities with access to RD is very small.
                                                by the Director, Office of                             regulations, consistent with applicable                These include access permittees
                                                Classification.                                        law. At a minimum, each regulatory                     (covered by 10 CFR part 1016) and
                                               —§ 1045.215: This content was                           reform task force must attempt to                      private entities whose operations
                                                previously in § 1045.53.                               identify regulations that:                             involve isotope separation technologies.
                                               —§ 1045.220: This new section was                          (i) Eliminate jobs, or inhibit job                  The proposed rule does not require
                                                added to address final MDR appeals                     creation;                                              significant new requirements for Federal
                                                for matter containing RD, FRD, or                         (ii) Are outdated, unnecessary, or                  agencies or private entities with access
                                                TFNI and ensure RD, FRD, and TFNI                      ineffective;                                           to RD. The proposed changes are
                                                portions are removed from any matter                      (iii) Impose costs that exceed benefits;            administrative changes (e.g.,
                                                containing NSI submitted to ISCAP                         (iv) Create a serious inconsistency or              renumbering, and updating office names
                                                for review. The requirement to                         otherwise interfere with regulatory                    to reflect reorganizations), and updates
                                                coordinate Naval Nuclear Propulsion                    reform initiatives and policies;                       to incorporate responsibilities and
                                                with the NNSA Deputy Administrator                        (v) Are inconsistent with the                       procedures due to changes in laws,
                                                for Naval Nuclear Propulsion was                       requirements of Information Quality                    regulations and E.O.s and clarify
                                                added because that is the appeal                       Act, or the guidance issued pursuant to                requirements.
                                                authority for this information.                        that Act, in particular those regulations                 The proposed rule initiates fees for
                                               —§ 1045.225: This new section advises                   that rely in whole or in part on data,                 Mandatory Declassification Reviews
                                                the public that matter previously                      information, or methods that are not                   (MDRs). When 10 CFR part 1045 was
                                                requested under the FOIA/MDR is                        publicly available or that are                         initially issued, DOE received very few
                                                available on the DOE OpenNet                           insufficiently transparent to meet the                 MDR requests. Due to a significant
                                                database and provided link to                          standard for reproducibility; or                       increase in MDR requests, DOE
                                                                                                          (vi) Derive from or implement                       determined it was necessary to recover
                                                OpenNet.
                                                                                                       Executive Orders or other Presidential                 some of the cost. Matter requested under
                                               II. Regulatory Review and Procedural                    directives that have been subsequently                 an MDR could be requested under the
                                               Requirements                                            rescinded or substantially modified.                   FOIA (but cannot be requested under
                                                                                                          This proposed rule, which would                     both), so the fees established mirror
                                               A. Review Under Executive Orders                        update the existing rule to reflect
                                               12866 and 13563                                                                                                DOE fees for FOIA requests rather than
                                                                                                       changes in the Atomic Energy Act, E.O.                 creating a different fee structure.
                                                 OMB has determined that this action                   13526, 32 CFR part 2001, DOE policies                     For the above reasons, DOE certifies
                                               does not constitute a ‘‘significant                     and DOE reorganizations that have                      that the proposed rule, if adopted, will
                                               regulatory action’’ as defined in section               rendered portions of the existing                      not have a significant economic impact
                                               3(f) of E.O. 12866, ‘‘Regulatory Planning               regulations outdated, as well clarify                  on a substantial number of small
                                               and Review’’ (58 FR 51735, October 4,                   requirements and allow agencies more                   entities.
                                               1993).                                                  flexibility in implementing RD/FRD
                                                                                                       programs, meets the goals and objectives               D. Review Under the Paperwork
                                               B. Review Under Executive Orders                                                                               Reduction Act
                                               13771 and 13777                                         of the task force.
                                                                                                                                                                This proposed rule does not contain
                                                  On January 30, 2017, the President                   C. Review Under the Regulatory
                                                                                                                                                              a collection of information subject to the
                                                                                                       Flexibility Act
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                                               issued Executive Order 13771,                                                                                  Office of Management and Budget
                                               ‘‘Reducing Regulation and Controlling                     The Regulatory Flexibility Act (5                    (OMB) approval under the Paperwork
                                               Regulatory Costs.’’ That Order stated the               U.S.C. 601 et seq.) requires preparation               Reduction Act.
                                               policy of the executive branch is to be                 of a regulatory flexibility analysis for
                                               prudent and financially responsible in                  any rule that by law must be proposed                  E. Review Under the National
                                               the expenditure of funds, from both                     for public comment, unless the agency                  Environmental Policy Act
                                               public and private sources. The Order                   certifies that the rule, if promulgated,                 DOE has determined that this action
                                               stated it is essential to manage the costs              will not have a significant economic                   meets the requirements for a Categorical


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                                                                        Federal Register / Vol. 83, No. 78 / Monday, April 23, 2018 / Proposed Rules                                            17717

                                               Exclusion A–5 of Appendix A to                          errors and needless ambiguity, drafting                any proposed significant energy action.
                                               Subpart D, 10 CFR part 1021, which                      the regulations to minimize litigation,                A ‘‘significant energy action’’ is defined
                                               applies to a rulemaking that addresses                  providing clear and certain legal                      as any action by an agency that
                                               or amends an existing rule or regulation                standards for affected legal conduct, and              promulgates or is expected to lead to the
                                               that does not change the environmental                  promoting simplification and burden                    promulgation of a final rule, and that:
                                               effect of the rule or regulation being                  reduction. Agencies are also instructed                (1) Is a significant regulatory action
                                               amended.                                                to make every reasonable effort to                     under E.O. 12866, or any successor
                                                  This proposed rulemaking is                          ensure that the regulation describes any               order; and (2) is likely to have a
                                               necessary because changes in DOE and                    administrative proceeding to be                        significant adverse effect on the supply,
                                               national policies have rendered portions                available prior to judicial review and                 distribution, or use of energy; or (3) is
                                               of the existing rule outdated. In                       any provisions for the exhaustion of                   designated by the Administrator of
                                               addition, changes are needed to clarify                 administrative remedies. DOE has                       OIRA as a significant energy action. For
                                               requirements and allow agencies more                    determined that this regulatory action                 any proposed significant energy action,
                                               flexibility in implementing programs for                meets the requirements of section 3(a)                 the agency must give a detailed
                                               RD and FRD.                                             and (b) of E.O. 12988.                                 statement of any adverse effects on
                                                  These changes are administrative in                                                                         energy supply, distribution, or use
                                               nature reflecting changes to                            H. Review Under the Unfunded
                                                                                                       Mandates Reform Act of 1995                            should the proposal be implemented,
                                               responsibilities and procedures, and                                                                           and of reasonable alternates to the
                                               amending the rule will not change the                      Title II of the Unfunded Mandates                   action and their expected benefits on
                                               environmental effect of the rule.                       Reform Act of 1995 (UMRA) (Pub. L.                     energy supply, distribution, and use.
                                               Accordingly, neither an environmental                   104–4), requires each Federal agency to
                                               assessment nor an environmental                         assess the effects of Federal regulatory                 This proposed rule is not a significant
                                               impact analysis is required.                            action on state, local and tribal                      energy action, nor has it been
                                                                                                       governments and the private sector. For                designated as such by the Administrator
                                               F. Review Under E.O. 13132,                             proposed regulatory actions likely to                  of OIRA. Accordingly, DOE has not
                                               ‘‘Federalism’’                                          result in a rule that may cause                        prepared a Statement of Energy Effects.
                                                  E.O. 13132 (64 FR 43255, August 4,                   expenditures by State, local, and Tribal               J. Review Under the Treasury and
                                               1999), imposes certain requirements on                  governments, in the aggregate, or by the               General Government Appropriations
                                               agencies formulating and implementing                   private sector of $100 million or more                 Act, 2001
                                               policies or regulations that preempt                    in any one year (adjusted annually for
                                               State law or that have federalism                       inflation), section 202 of UMRA requires                  The Treasury and General
                                               implications. Agencies are required to                  a Federal agency to publish estimates of               Government Appropriations Act, 2001
                                               develop a process to ensure meaningful                  the resulting costs, benefits, and other               (44 U.S.C. 3516, note) provides for
                                               and timely input by State and local                     effects on the national economy. UMRA                  agencies to review most disseminations
                                               officials in the development of                         also requires Federal agencies to                      of information to the public under
                                               regulatory policies that have                           develop an effective process to permit                 guidelines established by each agency
                                               ‘‘federalism implications.’’ Policies that              timely input by elected officers of State,             pursuant to general guidelines issued by
                                               have federalism implications are                        local, and Tribal governments on a                     OMB. OMB’s guidelines were published
                                               defined in the E.O. to include                          proposed ‘‘significant intergovernmental               at 67 FR 8452 (February 22, 2002), and
                                               regulations that have ‘‘substantial direct              mandate.’’ In addition, UMRA requires                  DOE’s guidelines were published at 67
                                               effects on the States, on the relationship              an agency plan for giving notice and                   FR 62446 (October 7, 2002). DOE has
                                               between the national government and                     opportunity for timely input to small                  reviewed this proposed rule under the
                                               the States, or on the distribution of                   governments that may be affected before                OMB and DOE guidelines and has
                                               power and responsibilities among the                    establishing a requirement that might                  concluded that it is consistent with
                                               various levels of government.’’ On                      significantly or uniquely affect them. On              applicable policies in those guidelines.
                                               March 7, 2011, DOE published a                          March 18, 1997, DOE published a
                                                                                                                                                              K. Review Under the Treasury and
                                               statement of policy describing the                      statement of policy on its process for
                                                                                                                                                              General Government Appropriations
                                               intergovernmental consultation process                  intergovernmental consultation under
                                                                                                                                                              Act of 1999
                                               it will follow in the development of                    the UMRA (62 FR 12820, March 18,
                                               such regulations (65 FR 13735, March                    1997). This policy is available at DOE                   Section 654 of the Treasury and
                                               14, 2000).                                              General Counsel’s website (http://                     General Government Appropriations
                                                  DOE has examined this proposed rule                  energy.gov/gc/office-general-counsel).                 Act, 1999 (Pub. L. 105–277) requires
                                               and has determined that it does not                     This part contains neither an                          Federal agencies to issue a Family
                                               have a substantial direct effect on the                 intergovernmental mandate, nor a                       Policymaking Assessment for any
                                               States, on the relationship between the                 mandate that may result in the                         proposed rule or policy that may affect
                                               national government and the States, or                  expenditure of $100 million or more in                 family well-being. This proposed rule
                                               on the distribution of power and                        any year, so these requirements do not                 would not have any impact on the
                                               responsibilities among the various                      apply.                                                 autonomy or integrity of the family as
                                               levels of government. No further action                                                                        an institution. Accordingly, DOE has
                                                                                                       I. Review Under E.O. 13211, ‘‘Actions
                                               is required by E.O. 13132.                                                                                     concluded that it is not necessary to
                                                                                                       Concerning Regulations That
                                               G. Review Under E.O. 12988, ‘‘Civil                     Significantly Affect Energy Supply,                    prepare a Family Policymaking
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                                               Justice Reform’’                                        Distribution, or Use’’                                 Assessment.
                                                 Section 3 of E.O. 12988 (61 FR 4729,                     E.O. 13211 (66 FR 28355, May 22,                    III. Opportunities for Public Comment
                                               February 7, 1996), instructs each agency                2001) requires Federal agencies to                     A. Participation in This Proposed
                                               to adhere to certain requirements in                    prepare and submit to the Office of                    Rulemaking
                                               promulgating new regulations. These                     Information and Regulatory Affairs
                                               requirements, set forth in section 3(a)                 (OIRA), Office of Management and                         DOE encourages the maximum level
                                               and (b), include eliminating drafting                   Budget, a Statement of Energy Effects for              of public participation in this proposed


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                                               17718                    Federal Register / Vol. 83, No. 78 / Monday, April 23, 2018 / Proposed Rules

                                               rulemaking. Interested persons are                      PART 1045—NUCLEAR                                      Subpart D—Classifying and Declassifying
                                               encouraged to provide comments.                         CLASSIFICATION AND                                     Matter Containing RD, FRD, or TFNI
                                                 DOE has established a period of 30                    DECLASSIFICATION                                       1045.115 Who is authorized to derivatively
                                               days following publication of this                                                                                 classify matter that contains RD, FRD, or
                                               proposed rulemaking for persons and                     Subpart A—Introduction                                     TFNI?
                                               organizations to comment. All public                    Sec.                                                   1045.120 What training is required for
                                                                                                       1045.5 What is the purpose of this part?                   persons who have access to or who
                                               comments and other docket material                                                                                 derivatively classify matter containing
                                               will be available for review at                         1045.10 To whom does this part apply?
                                                                                                                                                                  RD, FRD, or TFNI?
                                               regulations.gov. The docket material                    1045.15 What is the process for submitting
                                                                                                                                                              1045.125 What is the process for reviewing
                                               will be found under Docket Number                            a question or a comment on any of the                 and derivatively classifying matter that
                                               AU60–2016–1045.                                              policies and procedures contained in                  potentially contains RD, FRD, or TFNI?
                                                                                                            this part?                                        1045.130 How does an authorized person
                                               B. Written Comment Procedures                           1045.20 How does an agency request an                      derivatively classify matter containing
                                                                                                            exemption or equivalency to meet a                    RD, FRD, or TFNI?
                                                  Interested persons are invited to
                                                                                                            provision in this part?                           1045.135 Can a person make an RD, FRD,
                                               participate in this proceeding by                       1045.25 What actions can be taken against                  or TFNI classification determination if
                                               submitting written data, views or                            a person who violates the requirements                applicable classification guidance is not
                                               arguments with respect to the subjects                       in this part?                                         available?
                                               set forth in this proposed rulemaking.                  1045.30 What definitions apply to this part?           1045.140 How is matter containing RD,
                                               Instructions for submitting written                     1045.35 What acronyms are commonly                         FRD, or TFNI, marked?
                                               comments are set forth at the beginning                      used in this part?                                1045.145 Who must review output from a
                                               of this proposed rulemaking and in this                                                                            classified IT system that is marked as
                                                                                                       Subpart B—Management of Restricted Data                    RD, FRD, or TFNI?
                                               section. Where possible, comments
                                                                                                       (RD), Formerly Restricted Data (FRD), and              1045.150 Can anyone remove the RD, FRD,
                                               should identify the specific section they               Transclassified Foreign Nuclear Information                or TFNI portions and markings to
                                               address.                                                (TFNI) Classification Programs                             produce an NSI or unclassified version
                                                  Comments should be labeled both on                                                                              of the matter?
                                                                                                       1045.40 Is there an official in each agency
                                               the envelope and on the documents as                        with access to RD, FRD, or TFNI who                1045.155 How is matter marked as
                                               Docket Number AU60–2016–1045 and                            manages the agency’s RD, FRD, or TFNI                  containing RD, FRD, or TFNI
                                               must be received by the date specified                      program to ensure the requirements in                  declassified?
                                               at the beginning of this proposed rule.                                                                        1045.160 When the RD, FRD, or TFNI is
                                                                                                           this part are met?
                                               All comments and other relevant                                                                                    removed from matter, what action must
                                                                                                       1045.45 What are the responsibilities of
                                               information received by the date                                                                                   be taken if the matter still contains NSI?
                                                                                                           DOE officials and personnel, and the
                                                                                                                                                              1045.165 Once matter marked as RD, FRD,
                                               specified at the beginning of this                          officials and personnel of other agencies,             or TFNI is declassified, how is it
                                               proposed rulemaking will be considered                      under this part?                                       marked?
                                               by DOE in the subsequent stages of the                  1045.50 Reserved.
                                               rulemaking process.                                     1045.55 When are RD, FRD, and TFNI                     Subpart E—Government-wide Procedures
                                                  Pursuant to the provisions of 10 CFR                     considered for declassification?                   for Handling Freedom of Information Act
                                                                                                       1045.60 Does an unauthorized public                    (FOIA) and Mandatory Declassification
                                               part 1004, ‘‘Freedom of Information,’’                                                                         Review (MDR) Requests for Matter Marked
                                               any person submitting information or                        release of RD, FRD, or TFNI result in its
                                                                                                           declassification?                                  as or Potentially Containing RD, FRD, or
                                               data that is believed to be exempt by                                                                          TFNI
                                                                                                       1045.65 What are the responsibilities of a
                                               law from public disclosure should                                                                              1045.170 What is the purpose of this
                                                                                                           person who has access to RD, FRD, or
                                               submit one complete copy of the                             TFNI if they see information in the open                subpart?
                                               document and three copies, if possible,                     literature that they think is RD, FRD, or          1045.175 How must agencies process FOIA
                                               from which the information believed to                      TFNI?                                                   and MDR requests for matter that is
                                               be exempt has been deleted. DOE will                                                                                marked as or potentially contains RD,
                                               make its own determination with regard                  Subpart C—Determining if Information is                     FRD, or TFNI?
                                               to the confidential status of the                       RD, FRD, or TFNI                                       1045.180 What is the procedure if an
                                               information or data and treat it                        1045.70 How is information initially                        agency receives an appeal to a FOIA or
                                               according to its determination.                             determined to be RD?                                    MDR concerning the denial of RD, FRD,
                                                                                                       1045.75 Are there prohibitions against                      or TFNI?
                                               IV. Approval of the Office of the                           information being classified, remaining            Subpart F—DOE-specific procedures for
                                               Secretary                                                   classified, or prevented from being                MDR Requests
                                                                                                           declassified as RD, FRD, or TFNI?
                                                 The Secretary of Energy has approved                                                                         1045.185 What is the purpose of this
                                                                                                       1045.80 What are the classification and
                                               publication of this proposed rule.                                                                                 subpart?
                                                                                                           declassification presumptions?
                                                                                                                                                              1045.190 How does the public submit an
                                               List of Subjects in 10 CFR Part 1045                    1045.85 How is information determined to
                                                                                                                                                                  MDR for DOE classified matter?
                                                                                                           be FRD or TFNI and can FRD or TFNI
                                                 Classified information,                                                                                      1045.195 Is any matter exempt from MDR
                                                                                                           be returned to the RD category?                        requests?
                                               Declassification, Formerly restricted                   1045.90 Can information generated by
                                               data, Restricted data, Transclassified                                                                         1045.200 Is there a cost for an MDR review?
                                                                                                           private entities that is not owned by,             1045.205 How does DOE conduct an MDR
                                               foreign nuclear information.                                produced by, or controlled by the U.S.                 review?
                                                 Issued in Washington, DC, on April 11,                    Government be classified as RD?                    1045.210 How does a person submit an
                                               2018.                                                   1045.95 What are the criteria used to assign               appeal if DOE withholds classified
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                                               Matthew B. Moury,                                           levels to RD, FRD, or TFNI?                            information in an MDR response?
                                                                                                       1045.100 How are RD, FRD, and TFNI                     1045.215 How does DOE process an MDR
                                               Associate Under Secretary for Environment,                  declassified?
                                               Health, Safety and Security.                                                                                       appeal for DOE matter containing NSI?
                                                                                                       1045.105 What is the method to request the             1045.220 How does DOE process an MDR
                                                 For the reasons discussed in the                          declassification of RD, FRD or TFNI?                   appeal for matter containing RD, FRD, or
                                               preamble, DOE proposes to amend part                    1045.110 How are challenges to the                         TFNI?
                                               1045 of Title 10 of the Code of Federal                     classification and declassification of RD,         1045.225 Are DOE responses to MDR
                                               Regulations, as follows:                                    FRD, or TFNI submitted and processed?                  requests available to the public?



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                                                                        Federal Register / Vol. 83, No. 78 / Monday, April 23, 2018 / Proposed Rules                                               17719

                                                 Authority: 42 U.S.C. 2011; E.O. 13526, 75             matter containing RD, FRD, or TFNI; the                SW, Washington, DC 20585. The
                                               FR 705, 3 CFR 2010 Comp., pp. 298–327.                  appointment and training of these                      correspondence should contain the
                                                                                                       individuals; discusses the use of                      question or comment, include
                                               Subpart A—Introduction                                  classified addendums; describes                        applicable background information and/
                                               § 1045.5   What is the purpose of this part?            classification by association or                       or citations, as appropriate, and must
                                                  (a) This part implements sections 141,               compilation; specifies who must review                 provide an address for the response. The
                                               142, and 146 of the Atomic Energy Act,                  matter that potentially contains RD,                   Director will make every effort to
                                               as amended (42 U.S.C. 2011 et seq.)                     FRD, or TFNI intended for public                       respond within 60 days. Under no
                                               (AEA) and describes the procedures to                   release; describes what to do if an RD                 circumstance will anyone be subject to
                                               be used by the public in questioning or                 Derivative Classifier or a person trained              retribution for asking a question or
                                               appealing DOE decisions regarding the                   to classify matter containing TFNI                     making a comment regarding DOE’s
                                               classification of NSI under E.O. 13526,                 cannot locate classification guidance to               classification and declassification
                                               ‘‘Classified National Security                          make a determination; describes the                    policies and procedures.
                                               Information,’’ and 32 CFR part 2001,                    classification and declassification
                                                                                                       marking requirements; and states the                   § 1045.20 How does an agency request an
                                               ‘‘Classified National Security                                                                                 exemption or equivalency to meet a
                                               Information; Final Rule.’’ This part is                 prohibition against the automatic                      provision in this part?
                                               divided into six subparts:                              declassification of matter containing RD,
                                                                                                       FRD, or TFNI.                                            The agency must submit a request for
                                                  (1) Subpart A—‘‘Introduction’’                                                                              an exemption or an equivalency to the
                                               specifies to whom these rules apply,                      (5) Subpart E—‘‘Government-wide
                                                                                                       Procedures for Handling Freedom of                     procedural provisions under this part in
                                               describes how to submit comments or                                                                            writing to the Director, Office of
                                               suggestions concerning the policies and                 Information Act (FOIA) and Mandatory
                                                                                                       Declassification Review (MDR) Requests                 Classification, AU–60/Germantown
                                               procedures in this part, describes how                                                                         Building, U.S. Department of Energy,
                                               to request an exemption from or an                      for Matter Marked as or Potentially
                                                                                                       Containing RD, FRD, or TFNI’’ describes                1000 Independence Avenue SW,
                                               equivalency to a provision in this part;                                                                       Washington, DC 20585. The request
                                               outlines sanctions imposed for violating                how agencies process FOIA or MDR
                                                                                                       requests and appeals for matter marked                 must provide all relevant facts, to
                                               the policies and procedures in this part;                                                                      include any applicable citations,
                                               defines key terms; and lists acronyms                   as or potentially containing RD, FRD, or
                                                                                                       TFNI                                                   describing the procedure and why the
                                               used in this part.                                                                                             exemption or equivalency is required. If
                                                  (2) Subpart B—‘‘Program Management                     (6) Subpart F—‘‘DOE Procedures for
                                                                                                       MDR Requests’’ describes how DOE                       the request is for an equivalency, it must
                                               of Restricted Data (RD), Formerly                                                                              include a proposed alternate procedure
                                               Restricted Data (FRD), and                              FOIA and MDR requests and appeals for
                                                                                                       matter marked as or potentially                        to meet the intent of the procedure for
                                               Transclassified Foreign Nuclear                                                                                which the equivalency is being
                                               Information (TFNI) Classification                       containing NSI, RD, FRD, or TFNI are
                                                                                                       submitted and processed.                               requested.
                                               Programs’’ specifies responsibilities of
                                               officials in DOE and other agencies in                    (b) Reserved.                                        § 1045.25 What actions can be taken
                                               the role of identifying RD,                                                                                    against a person who violates the
                                                                                                       § 1045.10    To whom does this part apply?
                                               transclassifying RD to FRD or to TFNI,                                                                         requirements in this part?
                                                                                                         (a) Subparts A, B, C, and D apply to—
                                               and returning FRD or TFNI to RD;                                                                                 Any knowing, willful, or negligent
                                                                                                         (1) Any person or agency with access
                                               discusses the systematic declassification                                                                      action contrary to the requirements of
                                                                                                       to RD, FRD, or TFNI;
                                               review of information/matter containing                                                                        this part that results in the
                                                                                                         (2) Any person or agency who
                                               RD, FRD, or TFNI; and describes the ‘‘no                                                                       misclassification of information is
                                                                                                       generates information that has the
                                               comment’’ policy.                                                                                              subject to appropriate sanctions. Such
                                                                                                       potential to be RD, FRD, or TFNI; and
                                                  (3) Subpart C—‘‘Determining if                                                                              sanctions may range from
                                                                                                         (3) Any person or agency who
                                               Information is RD, FRD, or TFNI’’                                                                              administrative sanctions (e.g.,
                                                                                                       generates matter that potentially
                                               describes how information is initially                                                                         reprimand, suspension, termination) to
                                                                                                       contains RD, FRD, or TFNI.
                                               classified as RD, transclassified as FRD                                                                       civil or criminal penalties, depending
                                                                                                         (b) Subpart E applies to Government
                                               or TFNI, or declassified; lists criteria for                                                                   on the nature and severity of the action
                                                                                                       agencies who receive Freedom of
                                               evaluating whether RD, FRD, or TFNI                                                                            as determined by the appropriate
                                                                                                       Information Act (FOIA) or Mandatory
                                               should be classified or declassified;                                                                          authority in accordance with applicable
                                                                                                       Declassification Review (MDR) requests
                                               describes the prohibitions against                                                                             laws. Other violations of the policies
                                                                                                       for matter that is marked as or
                                               classifying information as RD, FRD, or                                                                         and procedures in this part may be
                                                                                                       potentially contains RD, FRD, or TFNI.
                                               TFNI; lists areas of information that are                                                                      grounds for administrative sanctions as
                                                                                                         (c) Subpart F applies to DOE and to
                                               presumed to be RD or unclassified;                                                                             determined by an appropriate authority.
                                                                                                       any person submitting a Mandatory
                                               specifies how privately generated
                                                                                                       Declassification Review request for DOE                § 1045.30   What definitions apply to this
                                               information may be classified as RD;
                                                                                                       matter.                                                part?
                                               defines the classification levels;
                                               describes how to submit proposals for                   § 1045.15 What is the process for                        The following definitions apply to
                                               RD, FRD, and TFNI; describes how to                     submitting a question or a comment on any              this part:
                                               challenge the classification or                         of the policies and procedures contained in              Agency means any ‘‘executive
                                               declassification of RD, FRD, or TFNI;                   this part?                                             agency’’ as defined in 5 U.S.C. 105; any
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                                               and describes the issuance of                             Any person who has a question or a                   ‘‘Military Department’’ as defined in 5
                                               classification guides to promulgate                     comment on DOE’s classification and                    U.S.C. 102; and any other entity within
                                               classification and declassification                     declassification policies and procedures               the executive branch that has access to
                                               determinations.                                         under this part may submit the question                RD, FRD, or TFNI information or matter.
                                                  (4) Subpart D—‘‘Classifying and                      or comment in writing to the Director,                   Associate RD Management Official
                                               Declassifying Matter Containing RD,                     Office of Classification, AU–60/                       (ARDMO) means a person appointed in
                                               FRD, or TFNI’’ describes who has the                    Germantown Building, U.S. Department                   accordance with agency policy to assist
                                               authority to classify and declassify                    of Energy, 1000 Independence Avenue                    the RD Management Official (RDMO)


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                                               17720                    Federal Register / Vol. 83, No. 78 / Monday, April 23, 2018 / Proposed Rules

                                               with managing the implementation of                        (2) Secret (S) is applied to RD, FRD,               adequately protected in a manner
                                               this part within that agency.                           or TFNI, the unauthorized disclosure of                similar to NSI.
                                                  Associate Under Secretary for                        which could reasonably be expected to                     Government means the executive
                                               Environment, Health, Safety and                         cause serious damage to the national                   branch of the Federal Government of the
                                               Security means DOE’s Associate Under                    security that the appropriate official is              United States.
                                               Secretary for Environment, Health,                      able to identify or describe.                             Government Information means
                                               Safety and Security or any person to                       (3) Confidential (C) is applied to RD,              information that is owned by, produced
                                               whom the Associate Under Secretary’s                    FRD, or TFNI the unauthorized                          by or for, or is under the control of the
                                               duties are delegated.                                   disclosure of which could reasonably be                U.S. Government.
                                                  Atomic Energy Act (AEA) means the                    expected to cause undue risk to the                       Information means facts, data, or
                                               Atomic Energy Act of 1954, as amended                   common defense and security that the                   knowledge, as opposed to the medium
                                               (42 U.S.C. 2011 et seq.).                               appropriate official is able to identify or            in which it is contained.
                                                  Automatic Declassification means the                 describe.                                                 Initial Determination means the
                                               declassification of NSI based on a                         Classified Matter means anything in                 process used by the Director, Office of
                                               specific date, event, or timeframe, in                  physical or electronic form that contains              Classification, to determine if new
                                               accordance with E.O. 13526, or prior or                 or reveals classified information.                     information is RD. New information that
                                               successor orders.                                          Contractor means any industrial,                    falls under the definition of RD is
                                                  Classification means the act or                      educational, commercial, or other                      presumed classified as RD until the
                                               process by which information or matter                  entity, grantee, or licensee at all tiers,             Director, Office of Classification makes
                                               is determined to require protection as                  including a person that has executed an                the initial determination as to its
                                               RD, FRD, or TFNI, under the AEA or as                   agreement with the Federal Government                  classification status.
                                               NSI under E.O. 13526 or prior or                        for the purpose of performing under a                     Interagency Security Classification
                                               successor orders.                                       contract, license, or other agreement.                 Appeals Panel (ISCAP) means a Panel
                                                  Classification Category identifies                      Declassification means a                            established and administered pursuant
                                               whether information is classified by                    determination by an appropriate                        to E.O. 13526 and prior or successor
                                               statute or E.O. The classification                      authority that:                                        E.O.s to perform functions specified in
                                               categories are: RD, FRD, TFNI (classified                  (1) Information no longer warrants                  the order with respect to NSI.
                                               by the AEA), and NSI (classified by                                                                               Matter means any combination of
                                                                                                       protection against unauthorized
                                               E.O.).                                                                                                         physical documents, electronic
                                                                                                       disclosure in the interest of the national
                                                  Classification Guidance means any                                                                           instances of information or data
                                                                                                       security, or
                                               instruction or source approved by an                                                                           (including email) at rest or in transit, or
                                                                                                          (2) Matter no longer contains or
                                               appropriate authority that prescribes the                                                                      information or data presentation or
                                                                                                       reveals classified information.
                                               classification of specific information                                                                         representation regardless of physical
                                                                                                          DOE means the Department of Energy.
                                               (e.g., classification guide, classification                                                                    form or characteristics.
                                                                                                          Director, Office of Classification,                    National Security means the national
                                               bulletins, portion-marked source
                                                                                                       means DOE’s Director, Office of                        defense or foreign relations of the
                                               documents).
                                                  Classification Guide means a written                 Classification.                                        United States.
                                               record of detailed instructions,                           Downgrading means:                                     National Security Information (NSI)
                                               approved by an appropriate authority,                      (1) A decision by DOE that                          means information that has been
                                               that explicitly identifies whether                      information classified as RD or TFNI is                determined pursuant to E.O. 13526 or
                                               specific information is classified,                     classified at a lower level than currently             prior or successor E.O.s to require
                                               usually concerning a system, plan,                      identified in a DOE or joint                           protection against unauthorized
                                               project, or program. If classified, the                 classification guide;                                  disclosure and is marked to indicate its
                                               level and category of classification                       (2) A joint decision by DOE and the                 classification status.
                                               assigned to such information is                         Department of Defense (DoD) that FRD                      Nuclear weapon means atomic
                                               specified. For NSI, the classification                  is classified at a lower level than                    weapon.
                                               duration is also specified.                             currently identified in a DOE or joint                    Originating activity, for the purpose of
                                                  Classified Information means:                        classification guide; or                               RD, FRD, or TFNI, means any
                                                  (1) Information determined to be RD,                    (3) A decision by an RD Derivative                  development of specific matter (e.g.,
                                               FRD, or TFNI under the AEA and this                     Classifier (or in the case of TFNI, a                  report, guide) within an organization,
                                               part, or                                                person trained to derivatively classify                working group, or between persons,
                                                  (2) Information that has been                        TFNI) based on classification guides and               including coordination of a product for
                                               determined pursuant to E.O. 13526 or                    bulletins that matter containing RD,                   classification review.
                                               any predecessor order to require                        FRD, or TFNI is classified at a lower                     Person means:
                                               protection against unauthorized                         level than currently marked.                              (1) Any individual, corporation,
                                               disclosure and is marked to indicate its                   (4) A decision, based on a DOE or                   partnership, firm, association, trust,
                                               classification status when in                           joint classification guide, by an                      estate, public or private institution,
                                               documentary form.                                       authorized person that matter                          group, Government agency other than
                                                  Classification Level means one of the                containing RD, FRD, or TFNI is                         the Commission, any State or any
                                               three following designators for RD, FRD,                classified at a less sensitive category                political subdivision of, or any political
                                               and TFNI:                                               (e.g., RD to FRD, RD to NSI) than                      entity within a State, any foreign
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                                                  (1) Top Secret (TS) is applied to RD,                currently marked.                                      government or nation or any political
                                               FRD, or TFNI that is vital to the national                 Formerly Restricted Data (FRD) means                subdivision of any such government or
                                               security and the unauthorized                           classified information removed from the                nation, or other entity; and
                                               disclosure of which could reasonably be                 RD category under the AEA (section                        (2) Any legal successor,
                                               expected to cause exceptionally grave                   142(d)), after DOE and DoD jointly                     representative, agent, or agency of the
                                               damage to the national security that the                determine it is related primarily to the               foregoing.
                                               appropriate official is able to identify or             military utilization of nuclear weapons                   Portion Marking means the
                                               describe.                                               and that the information can be                        application of certain classification


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                                                                        Federal Register / Vol. 83, No. 78 / Monday, April 23, 2018 / Proposed Rules                                              17721

                                               markings to reasonably segregable                         (4) Classified atomic energy                         RD—Restricted Data
                                               sections of matter (e.g., paragraphs,                   information received from a foreign                    RDMO—RD Management Official
                                               phrases, sentences). This also includes                 government pursuant to an agreement                    S—Secret
                                               any markings required by national                       imposing security measures equivalent                  TFNI—Transclassified Foreign Nuclear
                                               policy to control portions of                           for those in effect for RD; or                           Information
                                               unclassified information.                                 (5) Classified information on the                    U.K.—United Kingdom
                                                  Restricted Data (RD) means all data                  Tripartite Gas Centrifuge and its
                                               concerning: the design, manufacture, or                 successor programs, including data on                  Subpart B—Management of Restricted
                                               utilization of atomic weapons; the                      the gas centrifuge work of each of the                 Data (RD), Formerly Restricted Data
                                               production of special nuclear material;                 participants.                                          (FRD), and Transclassified Foreign
                                               or the use of special nuclear material in                 TFNI Guideline means a policy                        Nuclear Information (TFNI)
                                               the production of energy, except for data               document that describes information                    Classification Programs
                                               declassified or removed from the RD                     which meets the TFNI criteria for                      § 1045.40 Is there an official in each
                                               category pursuant to section 142 of the                 various collection assets.                             agency with access to RD, FRD, or TFNI
                                               AEA.                                                      Upgrading means:                                     who manages the agency’s RD, FRD, or
                                                  RD Derivative Classifier means a                       (1) A decision by DOE that                           TFNI program to ensure the requirements in
                                               person specifically trained and, when                   information classified as RD or TFNI is                this part are met?
                                               required, designated to derivatively                    classified at a higher level than                        (a) Yes. The head of each agency with
                                               classify matter containing RD or FRD in                 currently identified in a DOE or joint                 access to RD, FRD, or TFNI:
                                               areas in which they have programmatic                   classification guide;                                    (1) Must appoint at least one Federal
                                               expertise.                                                (2) A joint decision by DOE and DoD                  official to serve as an RDMO who
                                                  RD Management Official (RDMO)                        that FRD is classified at a higher level               ensures the proper implementation of
                                               means a person appointed by an agency                   than currently identified in a DOE or                  this part within his or her agency and
                                               to be responsible for managing the                      joint classification guide; or                         serves as the primary point of contact
                                               implementation of this part within the                    (3) A decision by an RD Derivative                   for coordination with the Director,
                                               agency.                                                 Classifier, (or in the case of TFNI, a                 Office of Classification, for classification
                                                  Secretary means the Secretary of                     person trained to classify TFNI) based                 and declassification issues involving
                                               Energy.                                                 on classification guidance, that matter                RD, FRD, and TFNI. Within DoD, a
                                                  Source Document means existing                       containing RD, FRD, or TFNI is                         minimum of at least one RDMO must be
                                               classified, portion-marked matter that                  classified at a higher level or category               appointed in each military department.
                                               contains classified information that is                 than currently marked. This includes                     (2) May appoint or authorize the
                                               incorporated, paraphrased, restated, or                 correcting the classification level or                 RDMO to appoint one or more Associate
                                               generated in new form into new matter.                  category of matter that was never                      RDMOs if there is more than one
                                                  Special Nuclear Materials means                      marked as well as matter erroneously                   organization that has access to RD, FRD,
                                               special nuclear material as defined in                  marked as unclassified.                                or TFNI. In such cases, the RDMO is the
                                               the AEA.                                                                                                       lead official and the primary point of
                                                                                                       § 1045.35 What acronyms are commonly
                                                  Transclassified Foreign Nuclear                      used in this part?
                                                                                                                                                              contact with the Director, Office of
                                               Information (TFNI) means information                                                                           Classification.
                                                                                                         The following acronyms are                             (3) Must ensure contact information
                                               concerning the nuclear energy programs                  commonly used throughout this part:
                                               of other nations (including subnational                                                                        for each RDMO and ARDMO is sent to
                                                                                                       AEA—The Atomic Energy Act of 1954,                     the Director, Office of Classification,
                                               groups) that is removed from the RD
                                                                                                         as amended (42 U.S.C. 2011 et seq.)                  within 30 days of the appointment.
                                               category under the AEA (section 142(e))
                                                                                                       ARDMO—Associate RD Management
                                               after DOE and the Director of National                                                                         § 1045.45 What are the responsibilities of
                                                                                                         Official
                                               Intelligence (DNI) jointly determine that                                                                      DOE officials and personnel, and the
                                                                                                       C—Confidential
                                               the information is necessary to carry out               CD—Compact Disk                                        officials and personnel of other agencies,
                                               intelligence-related activities under the               CFR—Code of Federal Regulations                        under this part?
                                               National Security Act of 1947, as                       CUI—Controlled Unclassified                               (a) The Secretary or Deputy Secretary
                                               amended, and that the information can                     Information                                          of Energy must determine in writing
                                               be adequately protected in a manner                     DCI—Director of Central Intelligence                   whether information privately generated
                                               similar to NSI. TFNI includes                           DNI—Director of National Intelligence                  by persons in the United States but not
                                               information removed from the RD                         DoD—Department of Defense                              under a Government contract is
                                               category by past agreements between                     DOE—Department of Energy                               classified as RD. This responsibility
                                               DOE and the Director of Central                         E.O.—Executive Order                                   cannot be delegated.
                                               Intelligence or past and future                         FOIA—Freedom of Information Act                           (b) The Associate Under Secretary for
                                               agreements with the DNI.                                FRD—Formerly Restricted Data                           Environment, Health, Safety and
                                                  TFNI does not include:                               IC—Intelligence Community                              Security:
                                                  (1) RD or FRD concerning United                      ISCAP—Interagency Security                                (1) Determines if RD and TFNI may be
                                               Kingdom (U.K.) or Canadian programs;                      Classification Appeals Panel                         published without undue risk to the
                                                  (2) Any U.S. RD or FRD, including                    ICD—Intelligence Community Directive                   common defense and security and
                                               that which the U.S. has transmitted to                  ICPG—Intelligence Community Policy                     declassified;
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                                               other nations;                                            Guidance                                                (2) Jointly with DoD, determines
                                                  (3) Any evaluation of foreign                        MDR—Mandatory Declassification                         which information in the RD category
                                               information based on the use of U.S. RD                   Review                                               relating primarily to the military
                                               or FRD unless also specifically                         NNSA—National Nuclear Security                         utilization of nuclear weapons may be
                                               transclassified to TFNI or any                            Administration                                       transclassified to the FRD category;
                                               evaluation that could reveal such data                  NRC—Nuclear Regulatory Commission                         (3) Jointly with DoD, determines
                                               concerning the U.S., U.K., or Canadian                  NSI—National Security Information                      which information in the FRD category
                                               programs;                                               Pub. L.—Public Law                                     may be removed from that category and


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                                               17722                    Federal Register / Vol. 83, No. 78 / Monday, April 23, 2018 / Proposed Rules

                                               returned to the RD category and notifies                persons with access to RD, FRD, and                      (d) DoD jointly with DOE:
                                               all appropriate agencies as necessary of                TFNI;                                                    (1) Determines which information in
                                               the change;                                                (9) Considers challenges to RD, FRD,                the RD category relating primarily to the
                                                  (4) Jointly with DoD, declassifies FRD               and TFNI, coordinates challenges with                  military utilization of nuclear weapons
                                               and RD relating primarily to the military               other agencies, as appropriate, and                    may be transclassified to the FRD
                                               utilization of nuclear weapons that may                 makes the initial determination                        category;
                                               be published without undue risk to the                  pertaining to the challenge of a                         (2) Determines which information in
                                               common defense and security;                            classification determination concerning                the FRD category may be removed from
                                                  (5) Jointly with the DNI, determines                 RD, DOE FRD, or TFNI;                                  that category and returned to the RD
                                               which information in the RD category                       (10) Delegates the authority to                     category;
                                               concerning nuclear energy programs of                   declassify matter containing RD, FRD, or                 (3) Assigns a classification level to
                                               foreign governments may be                              TFNI to qualified individuals in other                 FRD that reflects the sensitivity of the
                                               transclassified to the TFNI category to                 Government agencies;                                   information to the national security;
                                               carry out the provisions of the National                   (11) Develops and distributes                         (4) Prepares classification guides for
                                               Security Act of 1947, as amended;                       classification guides to promulgate                    FRD; and
                                                  (6) Jointly with the DNI, determines                 classification and declassification                      (5) Declassifies FRD and RD relating
                                               which information in the TFNI category                  determinations for RD, FRD, and TFNI,                  primarily to the military utilization of
                                               may be removed from that category and                   and jointly develops classification                    nuclear weapons that may be published
                                               returned to the RD category and notifies                guides and TFNI guidelines with DoD,                   without undue risk to the common
                                               all appropriate agencies as necessary of                the Nuclear Regulatory Commission                      defense and security.
                                               the change;                                             (NRC), the National Aeronautics and                      (6) Considers challenges to FRD, and
                                                  (7) Considers declassification                       Space Administration, and other                        coordinates challenges with other
                                               proposals received from the public or                   agencies in the RD, FRD, or TFNI                       agencies, as appropriate.
                                               other agencies or their contractors                     categories or subject areas for which                    (e) The DNI jointly with DOE:
                                               concerning RD, FRD, and TFNI, and                       DOE and the agencies share                               (1) Determines which information in
                                               coordinates responses with the                          responsibility;                                        the RD category concerning nuclear
                                               appropriate agencies;                                      (12) Reviews classification guides that             energy programs of foreign governments
                                                  (8) Makes the final appeal                           contain RD and jointly reviews                         may be transclassified to the TFNI
                                               determination concerning the denial of                  classification guides that contain FRD                 category to carry out the provisions of
                                               any RD, FRD, or TFNI contained in                       topics with the appropriate DoD                        the National Security Act of 1947, as
                                               matter requested under statute or                       authority (as specified in DoD                         amended;
                                               Executive Order; and                                    Instruction 5210.02 or successor                         (2) Determines which information in
                                                  (9) Makes the final appeal                           instructions) that are developed by other              the TFNI category may be removed from
                                               determination for any formal                            agencies;                                              that category and returned to the RD
                                               classification challenges for RD, DOE                      (13) Reviews TFNI guidelines and                    category; and
                                               FRD, and TFNI.                                          classification guides containing TFNI                    (3) Coordinates IC Directives (ICD)
                                                  (c) The Director, Office of                          topics developed by other agencies;                    and IC Policy Guidance (ICPG)
                                               Classification:                                            (14) Assists agencies with the                      concerning RD, FRD, and TFNI to
                                                  (1) Issues the Government-wide                       implementation of RD, FRD, and TFNI                    ensure policies are consistent;
                                               requirements for the classification and                 classification programs to comply with                   (f) NRC:
                                               declassification of RD, FRD, and TFNI                   this part;                                               (1) Jointly with DOE, develops
                                               in accordance with the AEA and this                        (15) In consultation with the agency                classification guides for programs over
                                               part;                                                   RDMO, determines when to conduct on-                   which both agencies have cognizance;
                                                  (2) Grants exemptions and                            site reviews of agency programs                        and
                                               equivalencies to provisions of this part;               established under this part to evaluate                  (2) Ensures the review and proper
                                                  (3) Develops and interprets policies to              the agency’s implementation of the                     classification of matter containing RD by
                                               implement RD, FRD, and TFNI                             requirements;                                          RD Derivative Classifiers that is
                                               classification programs in coordination                    (16) Coordinates on-site reviews of the             generated by NRC or by its licensed or
                                               with DoD for FRD, as appropriate;                       Intelligence Community (IC) with the                   regulated facilities and activities.
                                                  (4) Determines whether nuclear-                      DNI;                                                     (g) Heads of Agencies with access to
                                               related information is RD;                                 (17) Reviews agency implementing                    RD, FRD, or TFNI:
                                                  (5) Determines if new information in                 policies;                                                (1) Ensure that matter containing RD,
                                               a previously declassified subject area                     (18) Develops training materials                    FRD, and TFNI is reviewed by a person
                                               warrants classification as RD based on                  related to implementing this part and                  with appropriate authority and properly
                                               the criteria in § 1045.70, except where                 provides these materials to RDMOs and                  classified.
                                               the information has been widely                         other appropriate persons;                               (2) Must appoint at least one RDMO
                                               disseminated in the open literature;                       (19) Reviews any RD-, FRD-, or TFNI-                to manage the implementation of this
                                                  (6) Assigns a classification level to RD             related training material submitted by                 part within the agency;
                                               and TFNI, and, jointly with DoD, to                     other agencies to ensure consistency                     (3) Ensure implementing directives
                                               FRD, that reflects the sensitivity of the               with current policies;                                 for this part are developed, submitted to
                                               information to the national security;                      (20) Periodically hosts a meeting of                DOE for review prior to issuance, to
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                                                  (7) Serves as the Denying Official for               RDMOs to disseminate information or                    ensure consistency with this part, and
                                               RD, DOE FRD, and TFNI portions of                       address issues; and                                    promulgated;
                                               records requested under statute or                         (21) Responds to questions and                        (4) Should periodically review
                                               Executive Order;                                        considers comments received from any                   holdings containing RD, FRD, or TFNI
                                                  (8) Establishes a system for                         person, including the public,                          that are likely to have a high degree of
                                               processing, tracking, and recording                     concerning RD, FRD, and TFNI                           public interest and a likelihood of
                                               formal classification challenges and                    classification and declassification                    declassification. If any matter
                                               declassification proposals made by                      policies and procedures.                               containing RD, FRD, or TFNI is


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                                                                        Federal Register / Vol. 83, No. 78 / Monday, April 23, 2018 / Proposed Rules                                            17723

                                               identified for declassification, ensure                    (1) Ensure that procedures for training             delegated this authority by DOE for RD
                                               coordination for the declassification of                and designating ARDMOs and RD                          or TFNI, or by DOE or DoD for FRD; and
                                               matter marked as RD, FRD, or TFNI with                  Derivative Classifiers within the agency                 (6) Can remove the RD, FRD, and
                                               DOE or DoD, as appropriate;                             are established;                                       TFNI portions from a portion-marked
                                                  (5) Develop and promulgate                              (2) Ensure that persons with access to              source document in accordance with
                                               procedures for persons with access to                   RD, FRD, and TFNI are trained in                       § 1045.150.
                                               RD or FRD to submit classification                      accordance with § 1045.120;                              (j) Persons who derivatively classify
                                               challenges and declassification                            (3) Ensure that RD Derivative                       matter containing TFNI:
                                               proposals for guide topics that are RD or               Classifiers are designated and trained in                (1) Must receive training prescribed
                                               FRD or for matter containing RD or FRD.                 accordance with §§ 1045.115 and                        by § 1045.120;
                                               If the agency possesses TFNI, develops                  1045.120, respectively;                                  (2) Must use approved TFNI
                                               and promulgates procedures for persons                     (4) Ensure that persons who                         guidelines, DOE or joint classification
                                               with access to TFNI to submit                           derivatively classify matter containing                guides in the subject areas in which
                                               classification challenges and                           TFNI are trained in accordance with                    they have programmatic expertise, or an
                                               declassification proposals for guide                    § 1045.120;                                            applicable portion-marked source
                                               topics that are TFNI or matter                             (5) Ensure that RD Derivative                       document as the basis for derivative
                                               containing TFNI;                                        Classifiers and persons who derivatively               decisions to classify or upgrade matter
                                                  (6) Ensure joint classification guides               classify TFNI have access to any                       containing TFNI; and
                                               for programs over which DOE and the                     classification guides needed;                            (3) Must not declassify or downgrade
                                               agency have cognizance are developed;                      (6) Ensure that a periodic review of a              the category of matter containing TFNI
                                                  (7) Ensure that any classification                   sample of the agency’s RD, FRD, and                    unless delegated this authority by DOE.
                                               guides the agency develops or revises                   TFNI derivative classification                           (k) Persons with access to RD, FRD, or
                                               that contain RD or FRD, topics are                      determinations is conducted that                       TFNI:
                                               coordinated with the Director, Office of                evaluates that each determination was                    (1) Must be trained in accordance
                                               Classification prior to issuance, to                    made by appropriately trained and                      with § 1045.120;
                                               ensure consistency with DOE and DoD                     (when required) designated employees                     (2) Must submit matter that
                                               guidance;                                               acting within his or her authority, that               potentially contains RD, FRD, or TFNI
                                                  (8) Ensure that any TFNI guidelines or               the determination is accurate, and that                to a person with the appropriate
                                               classification guides containing TFNI                   the markings are applied correctly;                    authority for review in accordance with
                                               topics the agency develops or revises are                  (7) In consultation with the Director,              § 1045.125;
                                               reviewed by the Director, Office of                     Office of Classification determine when                  (3) Must submit matter that
                                               Classification, prior to issuance for                   to conduct on-site reviews of their                    potentially contains RD, FRD, or TFNI
                                               consistency with policies developed by                  agency program established under this                  to a person with the appropriate
                                               DOE and current transclassification                     part to evaluate the agency’s                          authority for declassification or public
                                               agreements;                                             implementation of the requirements;                    release.
                                                  (9) Ensure that agency classification
                                                                                                       and
                                               guides containing RD, FRD, or TFNI                                                                             § 1045.50   Reserved.
                                                                                                          (8) Cooperate with and provide
                                               topics are reviewed for consistency with
                                                                                                       information as necessary to the Director,              § 1045.55 When are RD, FRD, and TFNI
                                               current DOE classification guides at                                                                           considered for declassification?
                                                                                                       Office of Classification, to fulfill their
                                               least once every 5 years and that
                                                                                                       responsibilities under this part.                         (a) RD, FRD, and TFNI information
                                               appropriate revisions are made, if
                                                                                                          (i) RD Derivative Classifiers:                      and matter are considered for
                                               necessary;
                                                  (10) Ensure that NSI records of                         (1) Must receive training prescribed                declassification during several
                                               permanent historical value are reviewed                 by § 1045.120;                                         processes.
                                               as required under the ‘‘Special                            (2) Must use approved DOE or joint                     (1) DOE reviews all classification
                                               Historical Records Review Plan                          classification guides, in the subject areas            guides containing RD, FRD, or TFNI
                                               (Supplement)’’ established under Public                 in which they have programmatic                        topics at least once every 5 years to
                                               Law 105–261 and 106–65 or subsequent                    expertise, or an applicable portion-                   determine if information identified as
                                               statutes;                                               marked source document as the basis for                RD, FRD, or TFNI still meets the criteria
                                                  (11) Ensure that each RDMO and                       derivative decisions to classify or                    for classification under § 1045.70. If RD,
                                               Federal RD Derivative Classifier whose                  upgrade matter containing RD or FRD;                   FRD, and TFNI information contained
                                               duties involve the classification of a                  and                                                    in a classification guide does not meet
                                               significant amount of matter containing                    (3) Must use DOE classification guides              the standards for classification, the
                                               RD or FRD have his or her personnel                     and bulletins, joint DOE-agency                        information is declassified.
                                               performance evaluated with respect to                   classification guides, or agency                          (2) TFNI is no longer TFNI when
                                               such classification activities; and                     classification guides containing RD or                 comparable U.S. RD is declassified.
                                                  (12) Ensure that contracting officers                FRD topics that have been coordinated                     (3) Agencies with holdings containing
                                               are notified of any contracts that have                 with DOE as the basis to downgrade the                 RD, FRD, or TFNI should periodically
                                               access to or generate matter containing                 level of matter containing RD or FRD.                  review holdings that are likely to have
                                               RD, FRD, or TFNI, and that the                          Source documents must not be used as                   a high degree of public interest and a
                                               requirements of this part are                           a basis to downgrade matter containing                 likelihood of declassification. If any
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                                               incorporated into those contracts.                      RD or FRD;                                             matter containing RD, FRD, or TFNI is
                                                  (13) Ensure DOE classification guides,                  (4) Must not downgrade the category                 identified for declassification, agencies
                                               classification bulletins and matter                     of matter containing RD, FRD, or TFNI                  must coordinate the declassification of
                                               containing DOE classification guide                     (e.g., RD to NSI, FRD to NSI), unless                  matter marked as RD, FRD, or TFNI with
                                               topics that is not itself classified is                 granted this authority by DOE for RD or                DOE or DoD, as appropriate.
                                               safeguarded and its dissemination is                    TFNI or by DOE or DoD for FRD;                            (4) RD, FRD, or TFNI information or
                                               limited to persons with a need to know.                    (5) Must not declassify matter                      matter containing RD, FRD, or TFNI in
                                                  (h) Agency RDMOs:                                    containing RD, FRD, or TFNI unless                     particular areas of public interest may


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                                               17724                    Federal Register / Vol. 83, No. 78 / Monday, April 23, 2018 / Proposed Rules

                                               be considered for declassification if                   information concerns: The design,                      § 1045.75 Are there prohibitions against
                                               sufficient interest is demonstrated.                    manufacture, or utilization of nuclear                 information being classified, remaining
                                               Proposals for the systematic review of                  weapons; the production of special                     classified, or prevented from being
                                               given collections or subject areas must                                                                        declassified as RD, FRD, or TFNI?
                                                                                                       nuclear material; or the use of special
                                               be addressed to the Director, Office of                 nuclear material in the production of                    (a) Yes. Information must not be
                                               Classification, AU–60/Germantown                        energy, and the unauthorized release of                classified or remain classified as RD,
                                               Building; U.S. Department of Energy;                    the information must reasonably be                     FRD, or TFNI to accomplish the
                                               1000 Independence Avenue SW,                            expected to cause undue risk to the                    purposes described in paragraphs (b)
                                               Washington, DC 20585.                                   common defense and security.                           through (g) of this section. Persons must
                                                 (5) During the FOIA and MDR request                                                                          also not prevent information from being
                                                                                                          (b) This initial determination is made              declassified as RD, FRD, or TFNI for the
                                               process, agencies must refer any
                                                                                                       by the Director, Office of Classification              purposes described in paragraphs (b)
                                               responsive matter that is marked as or
                                                                                                       after:                                                 through (g) of this section.
                                               potentially contains RD, FRD, or TFNI
                                               to DOE or DoD, as provided under                           (1) Ensuring the information is not                   (b) Conceal violations of law,
                                               Subpart F. During this process, the                     prohibited from being classified under                 inefficiency, or administrative error;
                                               information may be reviewed to                          § 1045.75;                                               (c) Prevent embarrassment to a
                                               determine it still meets the standards for                 (2) Considering whether the                         person, organization, or agency;
                                               classification.                                         information falls within the                             (d) Restrain competition;
                                                 (6) The public and persons with                       classification or declassification                       (e) Prevent or delay the release of
                                               access to RD, FRD, or TFNI may submit                                                                          information that does not require
                                                                                                       presumptions in § 1045.80; and
                                               a declassification proposal for RD, FRD,                                                                       protection for the national security or
                                               or TFNI under § 1045.105.                                  (3) Evaluating the criteria in this                 nonproliferation reasons;
                                                                                                       paragraph.                                               (f) Unduly restrict dissemination by
                                               § 1045.60 Does an unauthorized public                      (i) Whether the information is so                   assigning an improper classification
                                               release of RD, FRD, or TFNI result in its                                                                      level; or
                                                                                                       widely known or readily apparent to
                                               declassification?                                                                                                (g) Prevent or delay the release of
                                                                                                       knowledgeable observers that its
                                                 The unauthorized disclosure of RD,                    classification would cast doubt on the                 information bearing solely on the
                                               FRD, or TFNI does not automatically                     credibility of classification programs;                physical environment or public or
                                               result in its declassification. However, if                                                                    worker health and safety.
                                               a disclosure is sufficiently authoritative                 (ii) Whether publication of the
                                               or credible, the Associate Under                        information would assist in the                        § 1045.80 What are the classification and
                                               Secretary for Environment, Health,                      development of countermeasures or                      declassification presumptions?
                                               Safety and Security will examine the                    otherwise jeopardize any U.S. weapon                      (a) The Director, Office of
                                               possibility of declassifying the                        or weapon system;                                      Classification and the Associate Under
                                               information.                                               (iii) Whether the information would                 Secretary of Environment, Health Safety
                                                                                                       hinder U.S. nonproliferation efforts by                and Security consider the presumptions
                                               § 1045.65 What are the responsibilities of                                                                     in paragraph (b)(1) of this section before
                                               a person with access to RD, FRD, or TFNI,               significantly assisting potential
                                                                                                       adversaries to develop or improve a                    applying the criteria in § 1045.70. These
                                               if they see information in the open literature
                                               that they think is RD, FRD, or TFNI?                    nuclear weapon capability, produce                     presumptions concern information in
                                                                                                       nuclear weapons materials, or make                     certain but not all nuclear-related areas
                                                  (a) A person with access to RD, FRD,
                                                                                                       other military use of nuclear energy;                  that may generally be presumed to be
                                               or TFNI, must not confirm or expand
                                                                                                                                                              RD or are generally unclassified. The
                                               upon the classification status or                          (iv) Whether information would assist               term ‘‘generally’’ here means that as a
                                               technical accuracy of information in the                terrorists to: Develop a nuclear weapon,               rule, but not necessarily in every case,
                                               open literature that is RD, FRD, or TFNI                produce nuclear materials, or use                      the information in the identified area is
                                               or suspected to be RD, FRD, or TFNI.                    special nuclear material in a terrorist                presumed classified or not classified as
                                               Commenting on such information can                      attack;                                                indicated. Inclusion of specific existing
                                               cause greater damage to national                           (v) Whether publication of the                      information in one of the presumption
                                               security by confirming its location,                    information would have a detrimental                   categories does not mean that new
                                               classified nature, or technical accuracy.               effect on U.S. foreign relations;                      information in a category is or is not
                                                  (b) Because the open literature may
                                                                                                          (vi) Whether publication of the                     classified, but only that arguments to
                                               contain information that is still
                                                                                                       information would benefit the public                   differ from the presumed classification
                                               classified as RD, FRD, or TFNI, a person
                                                                                                       welfare, taking into account the                       status of the information should use the
                                               who has access to RD, FRD, or TFNI
                                                                                                       importance of the information to public                appropriate presumption as a starting
                                               who incorporates information from the
                                                                                                       discussion and education and potential                 point.
                                               open literature that is potentially
                                                                                                       contribution to economic growth; and                      (b) Information in the following areas
                                               classified as RD, FRD, or TFNI into
                                                                                                                                                              is presumed to be RD—
                                               matter must ensure the matter is                           (vii) Whether publication of the                       (1) Detailed designs, specifications,
                                               reviewed as required under § 1045.125                   information would benefit the operation                and functional descriptions of nuclear
                                               to ensure the information incorporated                  of any Government program by reducing                  explosives, whether in the active
                                               is not classified.                                      operating costs or improving public                    stockpile or retired;
                                                                                                       acceptance.
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                                               Subpart C—Determining if Information                                                                              (2) Material properties under
                                               Is RD, FRD, or TFNI                                        (c) In consideration of the analysis of             conditions achieved in nuclear
                                                                                                       the criteria of this section, if there is              explosions that are principally useful
                                               § 1045.70 How is information initially                  significant doubt about the need to                    only for design and analysis of nuclear
                                               determined to be RD?                                    classify the information, then the                     weapons;
                                                 (a) For new information to be                         Director cannot make an initial                           (3) Vulnerabilities of U.S. nuclear
                                               classified as RD it must fall under the                 determination to classify the                          weapons to sabotage, countermeasures,
                                               definition of RD that states such                       information.                                           or unauthorized use;


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                                                                        Federal Register / Vol. 83, No. 78 / Monday, April 23, 2018 / Proposed Rules                                             17725

                                                  (4) Nuclear weapons logistics and                    classified as RD in accordance with the                § 1045.90 Can information generated by
                                               operational performance information                     AEA and this part. FRD and TFNI are                    private entities that is not owned by,
                                               (e.g., specific weapon deployments,                     removed from and may be returned to                    produced by, or controlled by the U.S.
                                               yields, capabilities) related to military                                                                      Government be classified as RD?
                                                                                                       the RD category under section 142 of the
                                               utilization of those weapons required by                AEA. The process by which information                    Yes. Under the AEA, DOE may
                                               DoD;                                                    is removed from the RD category and                    classify information that is privately
                                                  (5) Details of the critical steps or                 placed into the FRD or TFNI category or                generated (e.g., not under a Government
                                               components in nuclear material                                                                                 contract) as RD. This may only be done
                                                                                                       returned to the RD category is called
                                               production processes; and                                                                                      in writing by the Secretary or Deputy
                                                                                                       transclassification and involves the
                                                  (6) Features of military nuclear                                                                            Secretary. This responsibility cannot be
                                                                                                       following decisions:                                   delegated. Once such a determination is
                                               reactors, especially naval nuclear
                                               propulsion reactors, that are not                          (1) For information to be                           made, DOE must notify the public
                                               common to or required for civilian                      transclassified from RD to the FRD                     through the Federal Register. This
                                               power reactors                                          category, the Associate Under Secretary                notice is not required to reveal any
                                                  (c) Information in the following areas               for Environment, Health, Safety and                    details about the determination and
                                               is presumed to be unclassified—                         Security and the appropriate official                  must protect the national security as
                                                  (1) Basic science: Mathematics,                      within DoD (as specified in DoD                        well as the interests of the private party.
                                               chemistry, theoretical and experimental                 Instruction 5210.02 or subsequent
                                               physics, engineering, materials science,                                                                       § 1045.95 What are the criteria used to
                                                                                                       instructions) must jointly determine that              assign levels to RD, FRD, or TFNI?
                                               biology, and medicine;                                  the information relates primarily to the
                                                  (2) Magnetic confinement fusion                                                                                (a) When the Director, Office of
                                                                                                       military utilization of nuclear weapons
                                               technology;                                                                                                    Classification, makes the initial
                                                  (3) Civilian power reactors, including               and can be adequately protected in a                   determination that information is RD, he
                                               nuclear fuel cycle information but                      manner similar to NSI.                                 or she determines the appropriate level
                                               excluding technologies for uranium                         (2) For information to be                           of the information based on the damage
                                               enrichment;                                             transclassified from RD to the TFNI                    that would occur if there was an
                                                  (4) Source materials (defined as                     category, the Associate Under Secretary                unauthorized disclosure of the
                                               uranium and thorium and ores                            for Environment, Health, Safety and                    information. The Director, Office of
                                               containing them);                                       Security and the DNI must jointly                      Classification, also determines the level
                                                  (5) Fact of use of safety features (e.g.,            determine that information concerning a                for TFNI, and, jointly with the
                                               insensitive high explosives, fire                       foreign nuclear energy program that falls              appropriate DoD official (as specified in
                                               resistant pits) to lower the risks and                  under the RD definition must be                        DoD Instruction 5210.02 or successor
                                               reduce the consequences of nuclear                      removed from the RD category in order                  instructions) determines the level for
                                               weapon accidents;                                                                                              FRD information.
                                                                                                       to carry out the provisions of the
                                                  (6) Generic nuclear weapons effects;                                                                           (b) The three classification levels of
                                                  (7) Physical and chemical properties                 National Security Act of 1947, as
                                                                                                       amended, and can be adequately                         RD, FRD, and TFNI are:
                                               of uranium and plutonium, most of their                                                                           (1) Top Secret. Top Secret is applied
                                               alloys and compounds, under standard                    protected in a manner similar to NSI.
                                                                                                                                                              to information that is vital to the
                                               temperature and pressure conditions;                       (b) The process to return FRD and                   national security the unauthorized
                                                  (8) Nuclear fuel reprocessing                        TFNI to the RD category is as follows:                 disclosure of which could reasonably be
                                               technology and reactor products not                                                                            expected to cause exceptionally grave
                                                                                                          (1) FRD may be returned to the RD
                                               revealing classified production rates or                                                                       damage to the national security that the
                                                                                                       category if the DOE and DoD jointly
                                               inventories;                                                                                                   appropriate official is able to identify or
                                                  (9) The fact, time, location, and yield              determine that the programmatic
                                                                                                       requirements that caused the                           describe.
                                               range (e.g., ‘‘less than 20 kilotons’’ or
                                                                                                       information to be removed from the RD                     (2) Secret. Secret is applied to
                                               ‘‘20–150 kilotons’’) of U.S. nuclear tests;
                                                                                                       category no longer apply, the                          information, the unauthorized
                                                  (10) General descriptions of nuclear
                                                                                                       information would be more                              disclosure of which could reasonably be
                                               material production processes and
                                                                                                       appropriately protected as RD and                      expected to cause serious damage to the
                                               theory of operation;
                                                  (11) DOE special nuclear material                    returning the information to the RD                    national security that the appropriate
                                               aggregate inventories and production                                                                           official is able to identify or describe.
                                                                                                       category is in the interest of national
                                               rates not revealing the size of or details                                                                        (3) Confidential. Confidential is
                                                                                                       security. DOE jointly with DoD must
                                               concerning the nuclear weapons                                                                                 applied to information, the
                                                                                                       notify all appropriate agencies of the                 unauthorized disclosure of which could
                                               stockpile;                                              change.
                                                  (12) Types of waste products resulting                                                                      reasonably be expected to cause undue
                                               from all DOE weapon and material                           (2) TFNI may be returned to the RD                  risk to the common defense and security
                                               production operations;                                  category if the DOE and the DNI jointly                that the appropriate official is able to
                                                  (13) Any information solely relating to              determine that the programmatic                        identify or describe.
                                               the public and worker health and safety                 requirements that caused the
                                                                                                                                                              § 1045.100 How are RD, FRD, and TFNI
                                               or to environmental quality; and                        information to be removed from the RD                  declassified?
                                                  (14) The simple association or simple                category no longer apply, the
                                                                                                                                                                (a) This section addresses the
                                               presence of any material (i.e., element,                information would be more
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                                                                                                                                                              declassification of information, not
                                               compound, isotope, alloy, etc.) at a                    appropriately protected as RD and
                                                                                                                                                              derivatively classified matter. See
                                               specified DOE site.                                     returning the information to the RD
                                                                                                                                                              Subpart D for requirements for the
                                                                                                       category is in the interest of national                declassification of matter containing RD,
                                               § 1045.85 How is information determined
                                               to be FRD or TFNI and can FRD or TFNI be                security. DOE jointly with the DNI must                FRD, or TFNI.
                                               returned to the RD category?                            notify all appropriate agencies of the                   (b) RD and TFNI are declassified by
                                                 (a) To be eligible to become FRD or                   change.                                                the Associate Under Secretary for
                                               TFNI, information must first be                                                                                Environment, Health, Safety and


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                                               17726                    Federal Register / Vol. 83, No. 78 / Monday, April 23, 2018 / Proposed Rules

                                               Security by evaluating the criteria in                     (1) Advise the person of their right to             Subpart D—Classifying and
                                               § 1045.70. FRD requires the evaluation                  submit a challenge directly to the                     Declassifying Matter Containing RD,
                                               of the same criteria and a joint decision               Director, Office of Classification, AU–                FRD, or TFNI
                                               by the Associate Under Secretary for                    60/Germantown Building; U.S.
                                               Environment, Health, Safety and                                                                                § 1045.115 Who is authorized to
                                                                                                       Department of Energy; 1000                             derivatively classify matter that contains
                                               Security and the appropriate DoD                        Independence Avenue SW, Washington,                    RD, FRD, or TFNI?
                                               official (as specified in DoD Instruction               DC 20585, at any time.
                                               5210.02 or subsequent instructions).                                                                              (a) Specific authority and/or training
                                                                                                          (2) Ensure that under no                            is required to derivatively classify
                                               § 1045.105 What is the method to request                circumstances is an employee subject to                matter containing RD, FRD, or TFNI.
                                               the declassification of RD, FRD or TFNI?                retribution for challenging the                        These derivative classification decisions
                                                  (a) If a person believes RD, FRD, or                 classification status of RD, FRD, or                   must be based on a classification guide,
                                               TFNI should not be classified, he or she                TFNI;                                                  a classification bulletin, or a portion-
                                               may submit a declassification proposal.                                                                        marked source document and must only
                                                                                                          (3) Require the agency that initially               be made in the RD Derivative
                                               Proposals must be submitted in writing                  receives the challenge to provide an
                                               and must include a description of the                                                                          Classifier’s subject areas of expertise. In
                                                                                                       initial response within 60 days to the                 cases where guidance does not exist, for
                                               information concerned and may include
                                                                                                       person submitting the challenge.                       RD the Director, Office of Classification
                                               a reason for the request. If submitted by
                                               a person with access to RD, FRD, or                        (4) Require the agency to advise the                must make an initial determination that
                                               TFNI the request must be submitted                      person of their appeal rights. If the                  information is RD or that the matter
                                               through secure means. The proposal is                   employee is not satisfied with the                     contains RD, and for FRD DOE and DoD
                                               processed as follows:                                   agency response or the agency has not                  must jointly determine that the
                                                  (b) The Associate Under Secretary for                responded to the challenge within 180                  information is FRD or the matter
                                               Environment, Health, Safety and                         days, the challenge involving RD, FRD,                 contains FRD. No other agency or
                                               Security considers declassification                     or TFNI may be appealed to the                         agency personnel has the authority to
                                               proposals from the public and                           Director, Office of Classification.                    make an initial determination regarding
                                               Government agencies and their                                                                                  RD or FRD. See § 1045.135 for the
                                                                                                          (i) In the case of FRD and RD related               process for requesting a determination
                                               contractors for the declassification of
                                                                                                       primarily to the military utilization of               in cases where guidance does not exist.
                                               RD, FRD, and TFNI on an ongoing basis.
                                                                                                       nuclear weapons, the Director, Office of                  (b) Each person who derivatively
                                               For FRD, the Director, Office of
                                                                                                       Classification, coordinates with the                   classifies matter containing RD or FRD
                                               Classification, will coordinate the
                                               declassification proposal with the                      appropriate DoD official (as specified in              must be an RD Derivative Classifier.
                                                                                                       DoD Instruction 5210.02 or subsequent                     (c) Except for DoD military and DoD
                                               appropriate DoD official (as specified in
                                                                                                       instructions).                                         Federal civilian employees, each RD
                                               DoD Instruction 5210.02 or subsequent
                                                                                                          (ii) In the case of TFNI, the Director,             Derivative Classifier must be designated
                                               instructions).
                                                  (c) Declassification proposals may be                                                                       by name or position in writing in
                                                                                                       Office of Classification, coordinates
                                               sent to the Associate Under Secretary                                                                          accordance with agency procedures.
                                                                                                       with DNI.                                                 (d) An agency contractor employee
                                               for Environment, Health, Safety and                        (5) If the response to the initial appeal           may be an RD Derivative Classifier. All
                                               Security, AU–1/Forrestal Building, U.S.
                                                                                                       and its justification for classification               contractor employees, including DoD
                                               Department of Energy, 1000
                                                                                                       does not satisfy the person making the                 contractors, must be designated by name
                                               Independence Avenue SW, Washington,
                                                                                                       challenge, a further appeal may be made                or position as such in writing in
                                               DC 20585. For FRD, the proposal may be
                                                                                                       to the Associate Under Secretary for                   accordance with agency procedures.
                                               sent to the Director, Office of                                                                                   (e) Once a person is an RD Derivative
                                               Classification, or the appropriate DoD                  Environment, Health, Safety and
                                                                                                       Security, AU–1/Forrestal Building, U.S.                Classifier for an agency, he or she may
                                               official (as specified in DoD Instruction                                                                      classify matter containing RD or FRD in
                                               5210.02 or subsequent instructions).                    Department of Energy, 1000
                                                                                                       Independence Avenue SW, Washington,                    those subject areas in which they have
                                               DOE and DoD must coordinate with one                                                                           programmatic expertise for any agency,
                                               another concerning declassification                     DC 20585.
                                                                                                                                                              provided the other agency or agencies
                                               proposals for FRD.                                         (d) Agency responses to RD or TFNI                  accept the existing authority.
                                                                                                       challenges are limited to interpreting                    (f) No specific designation as an RD
                                               § 1045.110 How are challenges to the
                                               classification and declassification of RD,              the application of guidance to                         Derivative Classifier is required to
                                               FRD, or TFNI submitted and processed?                   derivatively classify matter. Except for               classify matter containing TFNI. Any
                                                  (a) Any person with access to RD,                    DoD, agency responses to FRD are                       person who has received training
                                               FRD, or TFNI who believes that RD,                      limited to interpreting the application of             required by § 1045.120 may classify
                                               FRD, or TFNI is improperly classified is                guidance to derivatively classify matter.              matter containing TFNI.
                                               encouraged and expected to challenge                    An agency may coordinate challenges
                                                                                                                                                              § 1045.120 What training is required for
                                               the classification. The challenge may be                regarding interpreting guidance for RD                 persons who have access to or who
                                               to information RD, FRD, or TFNI (e.g.,                  or TFNI with DOE, and may coordinate                   derivatively classify matter containing RD,
                                               a guide topic) or the classification status             challenges regarding interpreting                      FRD, or TFNI?
                                               of matter containing RD, FRD, or TFNI.                  guidance for FRD with DOE or DoD.                         (a) Prior to being authorized access to
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                                                  (b) Challenges are submitted in                         (e) Agencies must forward challenges                RD and FRD, a person must receive
                                               accordance with agency procedures.                      that require decisions other than                      training that explains:
                                                  (c) Each agency must establish                       interpreting the application of guidance                  (1) What information is potentially RD
                                               procedures for a person to challenge the                (e.g., challenges to guide topics) to the              and FRD;
                                               classification status of RD, FRD, or TFNI                                                                         (2) Matter that potentially contains RD
                                                                                                       Director, Office of Classification.
                                               if they believe that the classification                                                                        or FRD must be reviewed by an RD
                                               status is improper. These procedures                                                                           Derivative Classifier to determine
                                               must:                                                                                                          whether it contains RD or FRD;


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                                                                        Federal Register / Vol. 83, No. 78 / Monday, April 23, 2018 / Proposed Rules                                             17727

                                                  (3) DOE must review matter that                         (e) In addition to the training in                  FRD, or TFNI must be reviewed as
                                               potentially contains RD or TFNI for                     § 1045.120(d), prior to derivatively                   required under this section.
                                               public release and DOE or DoD must                      classifying matter containing TFNI and                    (f) Matter being reviewed under E.O.
                                               review matter that potentially contains                 every 2 years thereafter, each person                  13526 or successor orders. If, when
                                               FRD for public release;                                 who derivatively classifies matter                     reviewing matter under the automatic or
                                                  (4) RD Derivative Classification                     containing TFNI must also receive                      systematic review provisions of E.O.
                                               authority is required to classify or                    training that explains:                                13526 or successor orders, the person
                                               upgrade matter containing RD or FRD,                       (1) The markings applied to matter                  finds matter potentially contains RD,
                                               or to downgrade the level of matter                     containing TFNI;                                       FRD, or TFNI that it is not correctly
                                               containing RD or FRD;                                      (2) Limitations on their authority to               marked
                                                  (5) Only a person trained in                         remove TFNI portions from matter;                         (1) An RD Classifier may review the
                                               accordance with this section, may                          (3) Only DOE authorized persons may                 matter to determine if it contains RD or
                                               classify matter containing TFNI;                        determine that classified matter no                    FRD. If the matter is determined to
                                                  (6) Matter containing RD, FRD, and                   longer contains TFNI;                                  contain RD or FRD, the matter must be
                                               TFNI is not automatically declassified                     (4) Only DOE authorized persons may                 appropriately marked and is exempt
                                               and only DOE authorized persons may                     declassify matter marked as containing                 from automatic declassification.
                                               downgrade the category or declassify                    TFNI; and                                                 (2) A person trained to classify TFNI
                                               matter marked as containing RD; only                       (5) DOE must review matter that                     may review the matter to determine if it
                                               DOE or DoD authorized persons may                       potentially contains TFNI for public                   contains TFNI. If the matter is
                                               downgrade the category or declassify                    release.                                               determined to contain TFNI, the matter
                                               matter marked as containing FRD;                                                                               must be appropriately marked and is
                                                  (7) How to submit a challenge if they                § 1045.125 What is the process for
                                                                                                                                                              exempt from automatic declassification.
                                               believe RD, FRD, or TFNI information                    reviewing and derivatively classifying
                                                                                                       matter that potentially contains RD, FRD, or              (3) If an authorized person is unable
                                               (e.g., a guide topic) or matter containing                                                                     to make a determination for RD, FRD, or
                                               RD, FRD, or TFNI is not properly                        TFNI?
                                                                                                                                                              TFNI, the matter must be referred to
                                               classified; and                                           (a) Protecting and marking matter that
                                                                                                                                                              DOE. Matter containing FRD may also
                                                  (8) Access requirements for matter                   potentially contains RD, FRD, or TFNI
                                                                                                                                                              be referred to DoD. The matter may not
                                               marked as containing RD or FRD.                         prior to review. Prior to the review of
                                                  (b) Each person with access to RD and                                                                       be automatically declassified until DOE
                                                                                                       matter to determine if it contains RD,
                                               FRD must also receive periodic refresher                                                                       or DoD makes a determination as to its
                                                                                                       FRD, or TFNI, the matter must be
                                               briefings covering these same topics.                                                                          classification status.
                                                                                                       protected at the overall potential highest
                                                  (c) In addition to the training in                   level and category and marked as a                     § 1045.130 How does an authorized person
                                               paragraph (a) of this section, prior to                 working paper in accordance with                       derivatively classify matter containing RD,
                                               derivatively classifying matter                         § 1045.140.                                            FRD, or TFNI?
                                               containing RD, or FRD and every 2 years                   (b) Matter that potentially contains                    (a) For RD or FRD, an RD Derivative
                                               thereafter, each RD Derivative Classifier               RD, FRD, or TFNI that is intended for                  Classifier makes the derivative
                                               must also receive training that explains:               public release. Any person who                         classification determination using:
                                                  (1) The use of classification guides,                generates or possesses matter that                        (1) A DOE classification guide or
                                               classification bulletins, and portion-                  potentially contains RD, FRD, or TFNI                  bulletin, a joint DOE-agency
                                               marked source documents to classify                     that is intended for public release must               classification guide, an agency guide
                                               matter containing RD and FRD;                           ensure that it is reviewed by the                      with RD/FRD topics that is within his or
                                                  (2) What to do if applicable                         Director, Office of Classification, or a               her programmatic area of expertise; or
                                               classification guidance is not available;               DOE official granted the authority by                     (2) An applicable portion-marked
                                                  (3) Limitations on an RD Derivative                  delegation, regulation, or DOE directive,              source document.
                                               Classifier’s authority to remove RD or                  prior to release. FRD may also be                         (b) For TFNI, a person who is trained
                                               FRD portions from matter; and                           reviewed by the appropriate DoD
                                                  (4) Marking requirements for matter                                                                         to derivatively classify matter
                                                                                                       official as specified in DoD Instruction               containing TFNI makes the
                                               containing RD and FRD.
                                                  (d) Prior to having access to TFNI, and              5210.02 or subsequent instructions.                    determination using:
                                               periodically thereafter, each person                      (c) Matter that potentially contains RD                 (1) Approved TFNI guidelines;
                                               must receive the following training                     or FRD information that is not intended                   (2) A DOE classification guide or
                                               (which may be combined with the                         for public release. Matter that                        bulletin, a joint DOE-agency
                                               training required for access to RD or                   potentially contains RD or FRD that is                 classification guide, an agency guide
                                               FRD):                                                   not intended for public release must be                with RD, FRD, or TFNI topics within his
                                                  (1) What information is potentially                  reviewed by an RD Derivative Classifier.               or her programmatic area of expertise; or
                                               TFNI;                                                     (d) Matter that potentially contains                    (3) An applicable portion-marked
                                                  (2) Only a person with appropriate                   TFNI that is not intended for public                   source document.
                                               training may determine if matter                        release. Matter that potentially contains                 (c) Association and Compilation.
                                               contains TFNI;                                          TFNI that is not intended for public                      (1) RD, FRD, or TFNI classification
                                                  (3) Marking requirements for matter                  release must be reviewed by a person                   based on association. If two or more
                                               containing TFNI;                                        who has been trained in accordance                     different, unclassified facts when
                                                  (4) Matter containing TFNI is not                    with § 1045.120(e).                                    combined in a specific way result in a
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                                               automatically declassified and only                       (e) Matter that incorporates                         classified statement, or if two or more
                                               DOE authorized persons may                              information from the open literature                   different classified facts or unclassified
                                               downgrade the category or declassify                    that potentially contains RD, FRD, or                  and classified facts when combined in
                                               matter marked as containing TFNI; and                   TFNI. Because the open literature may                  a specific way result in a higher
                                                  (5) How to submit a challenge if they                contain information that is still                      classification level or more restrictive
                                               believe TFNI information (e.g., a guide                 classified as RD, FRD, or TFNI, matter                 category, then an RD Derivative
                                               topic) or matter containing TFNI is not                 that incorporates information from the                 Classifier may classify or upgrade the
                                               properly classified.                                    open literature that is potentially RD,                matter based on the association. If the


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                                               17728                    Federal Register / Vol. 83, No. 78 / Monday, April 23, 2018 / Proposed Rules

                                               matter is to be portion marked, then                       (2) If the information is not already                  (2) Retained more than 180 days from
                                               each portion of the associated                          classified as RD, FRD, or TFNI, the                    the date of origin or the date of the last
                                               information must be marked at the level                 procedures for initially classifying                   change; or
                                               and category of the association.                        information as RD, FRD, or TFNI under                     (3) Filed permanently.
                                                  (2) RD, FRD, or TFNI classification                  § 1045.70 must be followed. The                           (d) RD and FRD markings. An RD
                                               based on compilation. A large number                    Director, Office of Classification, must               Derivative Classifier applies or
                                               of often similar unclassified pieces of                 notify the RDMO of the results of the                  authorizes the application of the
                                               information or a large number of often                  initial classification determination                   following markings on matter
                                               similar RD, FRD, or TFNI pieces of                      within 90 days of receiving the matter.                determined to contain RD or FRD:
                                               information by selection, arrangement,                  Initial determinations must be                            (1) Front page. The front page of
                                               or completeness in matter may add                       incorporated into classified guides, as                matter containing RD or FRD must have
                                               sufficient value to merit classification or             appropriate.                                           the page/banner markings at the top and
                                               to merit classification at a higher level.                 (c) Pending a determination, the                    bottom, the RD or FRD admonishment,
                                               If there is a classification guide topic                matter under review must be protected                  subject/title marking, and the
                                               that applies to the compilation, an RD                  at a minimum as Secret RD, Secret FRD,                 classification authority block.
                                               Derivative Classifier may classify the                  or Secret TFNI, as appropriate.                           (i) Front page/banner markings. The
                                               information by compilation. In the                                                                             top and bottom of the front page must
                                               absence of a classification guide topic                 § 1045.140 How is matter containing RD,                clearly indicate the overall classification
                                               that applies, for RD or TFNI, the                       FRD, or TFNI marked?                                   level of the matter. The classification
                                               Director, Office of Classification, may                    (a) Matter determined to contain RD,                category may also be included. No other
                                               make the determination to classify or                   FRD, or TFNI must be clearly marked to                 markings are required in the page/
                                               upgrade the matter based on                             convey to the holder of that matter that               banner marking.
                                               compilation. For FRD, the Director,                     it contains such information.                             (ii) Admonishments.
                                               Office of Classification, or any                                                                                  (A) If the matter contains RD or RD
                                                                                                          (b) Marking matter containing RD,                   and FRD, use the following
                                               appropriate DoD official (as specified in
                                                                                                       FRD, or TFNI in the IC. Matter generated               admonishment:
                                               DoD Instruction 5210.02 or subsequent
                                                                                                       by/for the IC containing RD, FRD, or
                                               instructions) may classify or upgrade                                                                          RESTRICTED DATA
                                                                                                       TFNI must be marked in accordance
                                               the matter based on compilation. Matter                                                                           This document contains RESTRICTED
                                                                                                       with the requirements in this part as
                                               that is classified as RD, FRD, or TFNI                                                                         DATA as defined in the Atomic Energy
                                                                                                       described in ICD 710 or successor
                                               based on compilation is never portion                                                                          Act of 1954, as amended. Unauthorized
                                                                                                       directives, and the corresponding
                                               marked.                                                                                                        disclosure subject to administrative and
                                                                                                       implementation directives and policy
                                                  (d) Use of a classified addendum.                    guidance issued or approved by the DNI                 criminal sanctions.
                                               When it is important to maximize the                    concerning marking matter containing                      (B) If the document contains FRD and
                                               amount of information available to the                  RD, FRD, and TFNI.                                     no RD, use the following
                                               public or to simplify matter handling                                                                          admonishment:
                                               procedures, the RD, FRD, or TFNI                           (c) Working papers containing RD,
                                                                                                       FRD, or TFNI. Prior to the determination               FORMERLY RESTRICTED DATA
                                               should be segregated into a classified
                                                                                                       that matter contains RD, FRD, or TFNI,                    Unauthorized disclosure subject to
                                               addendum.
                                                                                                       it must be marked and protected as a                   administrative and criminal sanctions.
                                               § 1045.135 Can a person make an RD,                     working paper. Matter that has not been                Handle as RESTRICTED DATA in
                                               FRD, or TFNI classification determination if            reviewed that potentially contains RD,                 foreign dissemination. Section 144b,
                                               applicable classification guidance is not               FRD, or TFNI, or is expected to be                     Atomic Energy Act of 1954, as amended.
                                               available?                                              revised prior to the preparation of a                     (iii) Subject/title marking. The
                                                 (a) No. If an RD Derivative Classifier                finished product that contains RD, FRD,                classification level and category of the
                                               or a person trained to classify matter                  or TFNI, must be dated when created or                 text of the subject or title (e.g., U, SRD,
                                               containing TFNI is unable to locate a                   last changed, marked with the highest                  CFRD, S//RD, C//FRD) must be marked
                                               classification guide or classification                  potential level and category of                        immediately preceding the text of the
                                               bulletin that applies to the nuclear-                   information (and caveats, when                         subject or title.
                                               related information within his or her                   applicable) on the bottom and top of                      (iv) Classification authority block. The
                                               programmatic expertise and does not                     each page and must be protected at the                 classification authority block for matter
                                               have an applicable portion-marked                       highest potential level and category of                containing RD or FRD must identify the
                                               source document to use for derivative                   the information contained in the matter.               RD Derivative Classifier who classified
                                               classification, then he or she must                     The matter must also be marked ‘‘Draft’’               the matter and the classification
                                               contact the RDMO or an ARDMO for                        or ‘‘Working Paper’’ on the front cover.               guidance used to classify the matter.
                                               assistance. The RDMO/ARDMO may be                       The RD/FRD admonishment is not                            (A) Identity of the RD Derivative
                                               aware of other classification guidance                  required. RD Derivative Classifier                     Classifier. The RD Derivative Classifier
                                               that could apply to the information.                    authority is not required to mark                      must be identified by name and position
                                                 (b) If no guidance is identified, the                 working papers containing RD or FRD.                   or title, and, if not otherwise evident,
                                               RDMO must forward the matter to the                     However, working papers containing RD                  the agency and office of origin must be
                                               Director, Office of Classification, for a               or FRD must be reviewed by an RD                       identified. An RD Derivative Classifier
                                               determination. Within 30 days, the                      Derivative Classifier, and working                     may also be identified by a unique
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                                               Director, Office of Classification must:                papers containing TFNI must be                         identifier. For example:
                                                 (1) Determine whether the                             reviewed by a person trained to mark                   Classified By: Jane Doe, Nuclear
                                               information is already classified as RD,                matter containing TFNI, and the matter                    Analyst, DOE, CTI–61
                                               FRD, or TFNI under current                              must be marked as a final document                        (B) Identity of classification guidance.
                                               classification guidance and, if so,                     when it is:                                            If a classification guide is used to
                                               provide such guidance to the RDMO                          (1) Released outside the originating                classify the matter, the ‘‘Derived From’’
                                               who forwarded the matter.                               activity;                                              line must include the short title of the


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                                                                        Federal Register / Vol. 83, No. 78 / Monday, April 23, 2018 / Proposed Rules                                             17729

                                               guide, the issue date of the guide, the                 overall classification level and the TFNI                (1) If matter containing RD and/or
                                               issuing agency and, when available,                     label (e.g., SECRET//TFNI).                            FRD and CUI is not portion marked, CUI
                                               office of origin. For example:                             (2) Subject/title marking. The                      markings are not required.
                                               Derived From: CG–ABC–1, 10/16/2014,                     classification level and category of the                 (2) Applicable CUI Decontrol
                                                  DOE OC                                               subject or title must be marked                        instructions.
                                                                                                       immediately preceding the text of the                    (i) If the matter contains RD or FRD
                                                  If a source document is used to                                                                             and is not portion marked, then CUI
                                                                                                       subject or title.
                                               classify the matter, it must be identified,                (3) Portion marking. Matter containing              decontrol instructions must not be
                                               including the office of origin and the                  TFNI and no RD or FRD must be portion                  included.
                                               date of the source document. If more                    marked. Each portion containing TFNI                     (ii) If the matter is portion marked and
                                               than one classification guide or source                 must be marked immediately preceding                   decontrol instructions are applied, the
                                               document is used, the words ‘‘Multiple                  the portion to which it applies with the               decontrol instructions for the CUI
                                               Sources’’ may be included. In the case                  level and category of the information in               portions must not be on the front page.
                                               of multiple sources, a source list                      the portion (e.g., S//TFNI).                           Where they appear, they must be clearly
                                               identifying each guide or source                           (4) Classification authority block. The             labeled as decontrol instructions for
                                               document must be included with all                      classifier and guidance used to classify               CUI.
                                               copies of the matter.                                   matter containing TFNI must be                           (iii) If the matter contains TFNI, and
                                                  (C) Declassification Instructions.                   identified as described in                             decontrol instructions are applied, the
                                               Matter containing RD or FRD are never                   § 1045.40(d)(1)(iv)(A) and (B). In                     decontrol instructions for the CUI
                                               automatically declassified and must                     addition, the ‘‘Declassify On’’ line must              portions must not be on the front page.
                                               either omit the ‘‘Declassify On’’ line, or              be annotated with the statement: ‘‘Not                 Where they appear they must be clearly
                                               indicate that the matter is exempt from                 Applicable [or N/A] to TFNI portions.’’                labeled as decontrol instructions for
                                               automatic declassification (Not                            (5) Interior pages. If the matter                   CUI.
                                               Applicable or N/A for RD/FRD, as                        contains TFNI and no RD or FRD, the                      (h) Marking special format matter.
                                               appropriate).                                           top and bottom of each interior page                   Standard RD, FRD, or TFNI markings
                                                  (2) Interior page/banner marking.                    must be clearly marked with the overall                must be applied to matter in special
                                               Each interior page of matter containing                 classification level and the TFNI label                formats (e.g., photographs, flash
                                               RD or FRD must be clearly marked at                     (e.g., SECRET//TFNI) or the overall                    memory drives, compact discs, audio or
                                               the top and bottom with the overall                     classification level for each page with                video tapes) to the extent practicable.
                                               classification level and category of the                the TFNI label included on only those                  Regardless of the precise markings in
                                               matter or the overall classification level              pages that contain TFNI, whichever is                  such cases, any special format matter
                                               and category of the page, whichever is                  preferred.                                             that contains RD, FRD, or TFNI must be
                                               preferred. The abbreviations ‘‘RD’’ and                    (6) Back cover or back page marking.                marked so that both a person in physical
                                               ‘‘FRD’’ may be used in conjunction with                 If the matter contains TFNI and no RD                  possession of the matter and a person
                                               the matter classification (e.g., SECRET//               or FRD, the top and bottom of the                      with access to the information in or on
                                               RD, CONFIDENTIAL//FRD).                                 outside of the back cover or back page                 the matter are aware that it contains RD,
                                                  (3) Back cover or back page marking.                 must be clearly marked with the overall                FRD, or TFNI.
                                               The outside of the back cover or back                   classification level of information in the
                                               page must be marked with the overall                                                                           § 1045.145 Who must review output from a
                                                                                                       matter.                                                classified IT system that is marked as RD,
                                               level of information in the matter.                        (f) Commingled matter—NSI. Matter                   FRD, or TFNI?
                                                  (4) Portion marking. Other than the                  that contains a mixture of RD, FRD, or
                                               required subject/title marking, portion                                                                           If the output is a final product that
                                                                                                       TFNI and NSI, and is portion marked,                   has been reviewed by a person with
                                               marking is permitted, but not required,                 must also comply with the following:
                                               for matter containing RD or FRD. Each                                                                          appropriate authority, and is properly
                                                                                                          (1) Declassification instructions. If the
                                               agency that generates matter containing                                                                        marked, or is a working paper that is
                                                                                                       matter is not portion marked, then no
                                               RD or FRD determines the policy for                                                                            properly marked, no additional review
                                                                                                       declassification instructions are
                                               portion marking matter generated                                                                               is required. Otherwise, the output must
                                                                                                       included. If the matter is portion
                                               within the agency. If matter containing                                                                        be reviewed in accordance with
                                                                                                       marked, declassification instructions for
                                               RD or FRD is portion marked, each                                                                              § 1045.30.
                                                                                                       each portion must be included in a
                                               portion containing RD or FRD must be                    source list. See the paragraph (f)(2) and              § 1045.150 Can anyone remove the RD,
                                               marked with the level and category of                   E.O. 13526 or successor orders for                     FRD, or TFNI portions and markings to
                                               the information in the portion (e.g.,                   instructions on annotating the source                  produce an NSI or unclassified version of
                                               SRD, CFRD, S//RD, C//FRD).                              list.                                                  the matter?
                                                  (e) TFNI markings. If matter contains                   (2) Source list. The source list must                  (a) No. Specific authority is required
                                               RD or FRD commingled with TFNI, the                     include declassification instructions for              to remove RD, FRD, or TFNI portions
                                               RD or FRD markings take precedence. If                  all NSI sources used to classify the NSI               from matter. The authority required
                                               matter contains TFNI and no RD or FRD                   portions. The declassification                         depends on whether the matter is
                                               a person who is trained to classify                     instructions for sources that are used to              intended for public release, the category
                                               matter containing TFNI applies or                       classify the RD, FRD, or TFNI portions                 of information in the matter, and
                                               authorizes the application markings on                  must state ‘‘Not applicable [or N/A] to                whether the matter is portion marked.
                                               matter determined to contain TFNI in                    RD/FRD/TFNI (as appropriate).’’ The                       (b) If the resulting or new matter is
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                                               accordance with 32 CFR part 2001.22, or                 source list must not appear on the front               intended for public release. An RD
                                               successor regulations, and with this                    page of the matter, unless the matter is               Derivative Classifier or a person trained
                                               part.                                                   a single page. If the matter is a single               to classify matter containing TFNI does
                                                  (1) Front page. If the matter contains               page, the source list may appear at the                not have the authority to remove the RD,
                                               TFNI and no RD or FRD, no                               bottom of the page, and must be clearly                FRD, or TFNI portions or markings for
                                               admonishment is required on the front                   separate from the classification                       matter intended for public release. The
                                               page, but the top and bottom of the front               authority block.                                       matter must be submitted in accordance
                                               page must be clearly marked with the                       (g) Commingled matter—CUI.                          with § 1045.125 to the appropriate


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                                               17730                    Federal Register / Vol. 83, No. 78 / Monday, April 23, 2018 / Proposed Rules

                                               agency who will review the matter and                   agencies Federal and contractor                        Subpart E—Government-Wide
                                               remove the RD, FRD, or TFNI portions                    personnel. The Director, Office of                     Procedures for Handling Freedom of
                                               and markings.                                           Classification, or an appropriate person               Information Act (FOIA) and Mandatory
                                                 (c) If the resulting matter is not                    in DoD (as specified in DoD Instruction                Declassification Review (MDR)
                                               intended for public release.                            5210.02 or subsequent instructions) may                Requests for Matter Marked as or
                                                 (1) An RD Derivative Classifier may                   delegate declassification authority for                Potentially Containing RD, FRD, or
                                               remove the portions marked as                           matter containing FRD to qualified                     TFNI
                                               containing RD or FRD and remove the                     Federal or contractor personnel in other
                                               RD or FRD markings.                                                                                            § 1045.170   What is the purpose of this
                                                                                                       agencies.                                              subpart?
                                                 (2) A person trained in accordance
                                               with § 1045.120(e) may remove the                       § 1045.160 When the RD, FRD, or TFNI is                  This subpart contains requirements
                                               portions containing TFNI and the TFNI                   removed from matter, what action must be               that apply when Federal agencies other
                                               markings.                                               taken if the matter still contains NSI?                than DOE receive FOIA or MDR requests
                                                 (3) In all cases under § 1045.150(b)                                                                         for matter that is marked as or
                                               this may be done only if the matter is                    When an appropriate authority                        potentially contains RD, FRD, or TFNI.
                                               originated by the authorized person’s                   removes the RD, FRD, or TFNI from                      RD, FRD, and TFNI are classified under
                                               agency and the matter is portion                        matter and it still contains NSI, the                  the Atomic Energy Act and are not
                                               marked, and the resulting matter is                     matter must be marked following E.O.                   subject to the provisions governing MDR
                                               reviewed to ensure it does not contain                  13526 and 32 CFR part 2001 or                          requests under E.O. 13526 or successor
                                               RD, FRD, or TFNI by a person                            successor orders and regulations,                      orders. To ensure RD, FRD, and TFNI
                                               authorized to review the matter.                        including portion marking if the matter                are considered and appropriately
                                                                                                       was not previously portion marked, and                 reviewed when requested under a FOIA
                                               § 1045.155 How is matter marked as                      the classification authority block of the              or MDR request, this section describes
                                               containing RD, FRD, or TFNI declassified?
                                                                                                       matter must be changed to contain                      the process Federal agencies must
                                                  (a) RD, FRD, and TFNI are never                      declassification instructions for the NSI.             follow for FOIA and MDR requests for
                                               automatically declassified. No date or                  This does not apply to matter produced                 matter that is marked as or potentially
                                               event for automatic declassification ever                                                                      contains RD, FRD, or TFNI.
                                                                                                       as part of the coordination process for
                                               applies to RD, FRD, or TFNI, even when
                                                                                                       declassification or public release
                                               commingled with NSI. It takes positive                                                                         § 1045.175 How must agencies process
                                               action by an authorized person to                       reviews.                                               FOIA and MDR requests for matter that is
                                               declassify matter potentially containing                                                                       marked as or potentially contains RD, FRD,
                                                                                                       § 1045.165 Once matter marked as RD,
                                               or marked as containing RD, FRD, or                                                                            or TFNI?
                                                                                                       FRD, or TFNI is declassified, how is it
                                               TFNI.                                                   marked?                                                  (a) When an agency receives a FOIA
                                                  (b) Only authorized persons within                                                                          or MDR request for which any
                                               DOE may declassify matter marked as                        (a) Matter that is determined to no                 responsive matter is marked as or
                                               RD or TFNI and only authorized persons                  longer contain RD, FRD, or TFNI and                    potentially contains RD, FRD, or TFNI,
                                               within DOE or DoD may declassify                        also does not or no longer contains NSI                the agency must forward the matter to
                                               matter marked as FRD. Only these same                   must be clearly marked to convey to the                the appropriate agency as follows:
                                               persons may identify the portions of                    holder of that matter that the matter is                 (1) Forward any matter marked as or
                                               classified matter that contain RD, FRD,                 declassified;                                          potentially containing RD or TFNI to the
                                               or TFNI that must be redacted prior to                     (b) The front page must identify the                Director, Office of Classification or a
                                               public release.                                         person authorizing the declassification                DOE official granted authority by
                                                  (c) Declassification of matter                       by name and position or title, if not                  delegation, regulation, or DOE directive.
                                               containing RD or TFNI. Except as                                                                                 (2) Forward any matter originated by
                                                                                                       otherwise evident, agency, and office of
                                               allowed under paragraph (c) of this                                                                            DOE and marked as or potentially
                                                                                                       origin; or with a unique identifier; the
                                               section only designated persons in DOE                                                                         containing FRD to either the Director,
                                                                                                       classification guide that served as the
                                               may declassify matter marked as                                                                                Office of Classification or a DOE official
                                                                                                       basis for the declassification by short                granted authority by delegation,
                                               containing RD or TFNI, or identify the
                                                                                                       title, date, agency and, when available,               regulation, or DOE directive. Forward
                                               RD or TFNI portions of matter that must
                                               be removed from the matter prior to                     the office of origin; and the                          any matter originated by DoD and
                                               public release. Such determinations                     declassification date. For example:                    marked as or potentially containing FRD
                                               must be based on classification guides.                 (1) Declassified by: Jane Doe, Nuclear                 to the appropriate DoD program (as
                                                  (d) Declassification of matter                            Analyst, DOE, CTI–61                              specified in DoD Manual 5400.07, DoD
                                               containing FRD. Except as allowed                                                                              Freedom of Information Act (FOIA)
                                               under paragraph (c) of this section, only               (2) Derived from: CG–ABC–1, 10/16/                     Program, subsequent manuals, or other
                                               designated persons in DOE or                                 2014, DOE OC                                      applicable manuals). Matter not
                                               appropriate persons in DoD (as specified                (3) Declassified on: 20201009                          originated by DOE or DoD may be
                                               in DoD Instruction 5210.02 or                                                                                  submitted to either agency as provided
                                                                                                         (c) The person authorizing the
                                               subsequent instructions) may declassify                                                                        in this paragraph.
                                                                                                       declassification must line through but
                                               matter marked as containing FRD or                                                                               (b) DOE and DoD must coordinate the
                                                                                                       not obliterate the classification markings             review of matter marked as or
                                               determine the FRD portions of matter
                                                                                                       and apply or authorize the application
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                                               that must be removed prior to public                                                                           potentially containing RD and FRD,
                                               release. Such determinations must be                    of the appropriate markings.                           when appropriate. DOE and the DNI
                                               based on classification guides.                                                                                must coordinate the review of matter
                                                  (e) Delegation of declassification                                                                          marked as or potentially containing
                                               authority. The Director, Office of                                                                             TFNI, when appropriate.
                                               Classification, may delegate                                                                                     (c) DOE, DoD, or the DNI may refuse
                                               declassification authority for matter                                                                          to confirm or deny the existence or
                                               containing RD and TFNI to other                                                                                nonexistence of the requested matter


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                                                                        Federal Register / Vol. 83, No. 78 / Monday, April 23, 2018 / Proposed Rules                                              17731

                                               whenever the fact of its existence or                      (b) Appeals of MDR responses when                      (f) Declassification proposals resulting
                                               nonexistence is itself classified as RD,                DOE denied RD, FRD, or TFNI may be                     from appeal reviews. The appeal review
                                               FRD, or TFNI.                                           submitted to the agency that replied to                of RD, FRD, and TFNI withheld from a
                                                  (d) If the information contained in the              the initial MDR request or directly to                 requester is based on current
                                               requested matter has been reviewed for                  DOE.                                                   classification guidance. However, as
                                               declassification within the past 2 years,                  (1) When an appeal concerning DOE-                  part of the appeal review, the withheld
                                               another review need not be conducted,                   withheld RD, FRD, or TFNI is sent to the               information must be reviewed to
                                               but instead the agency may inform the                   agency that replied to the initial MDR                 determine if it may be a candidate for
                                               requester of this fact and of the results               request, the agency must forward the                   possible declassification. If
                                               of the prior review decision.                           appeal to the Associate Under Secretary                declassification of the information
                                                  (e) When paragraph (c) or (d) of this                of Environment, Health, Safety and                     appears to be appropriate, then a
                                               section do not apply, the appropriate                   Security at the following address:                     declassification proposal must be
                                               DOE or DoD authority must conduct a                     Associate Under Secretary for                          initiated, and the requester must be
                                               line-by-line review of matter forwarded                 Environment, Health, Safety and                        advised that additional information will
                                               under paragraph (a); identify the                       Security, AU–1/Forrestal Building, U.S.                be available if the declassification
                                               information that is classified under                    Department of Energy, 1000                             proposal is approved.
                                               current classification guidance as RD,                  Independence Avenue SW, Washington,
                                               FRD, or TFNI; and respond to the                        DC 20585. The appeal must be received                  Subpart F—DOE-Specific Procedures
                                               agency that forwarded the matter. The                   by the agency who replied to the initial               for MDR Requests
                                               response to the agency who forwarded                    request within 60 days of receipt of the
                                               the request must identify the RD, FRD,                  denial and contain the information                     § 1045.185   What is the purpose of this
                                               or TFNI that is exempt from public                      required under § 1045.210(b).                          subpart?
                                               release; provide the FOIA exemption or                     (2) When sent directly to DOE, the                    This subpart describes the process for
                                               appropriate MDR notation for the RD,                    appeal must be received by the                         MDR requests submitted for DOE matter
                                               FRD, or TFNI withheld; identify the                     Associate Under Secretary for                          classified under E.O. 13526 or successor
                                               Denying Official for the RD, FRD, or                    Environment, Health, Safety and                        orders, and the Atomic Energy Act.
                                               TFNI withheld; and explain the                          Security within 60 days of the denial
                                               applicable appeal procedures identified                 and contain the information required                   § 1045.190 How does the public submit an
                                               in § 1045.180.                                          under § 1045.210(b).                                   MDR for DOE classified matter?
                                                  (1) The Denying Officials are as                        (3) MDR appeals received by DOE are
                                                                                                                                                                (a) DOE matter marked as containing
                                               follows:                                                processed consistent with § 1045.220.
                                                                                                          (c) If an agency receives an MDR                    NSI, RD, FRD, or TFNI is subject to
                                                  (i) The Denying Official for matter                                                                         review for declassification by DOE if the
                                               containing RD or TFNI is the Director,                  appeal for FRD withheld by DoD, the
                                                                                                       agency must submit the appeal to the                   request for a declassification review
                                               Office of Classification.                                                                                      describes the matter containing the
                                                  (ii) The Denying Official for matter                 appropriate DoD Component as
                                                                                                       identified in applicable DoD manuals.                  information with sufficient specificity to
                                               containing FRD is the Director, Office of                                                                      enable DOE to locate it with a
                                               Classification, or the appropriate DoD                     (d) The MDR appeal authorities for
                                                                                                       RD, FRD, or TFNI are as follows:                       reasonable amount of effort.
                                               Component’s Initial Denying Authority
                                               (as specified in applicable DoD                            (1) The MDR appeal authority for RD                   (b) The request must be sent to the
                                               manuals).                                               and TFNI is the Associate Under                        Director, Office of Classification, AU–
                                                  (iii) The Denying Official for Naval                 Secretary for Environment, Health,                     60/Germantown Building, U.S.
                                               Nuclear Propulsion Information is the                   Safety and Security.                                   Department of Energy, 1000
                                               National Nuclear Security                                  (2) The MDR appeal authority for FRD                Independence Avenue SW, Washington,
                                               Administration (NNSA) Deputy                            is the Associate Under Secretary for                   DC 20585.
                                               Director, Deputy Administrator for                      Environment, Health, Safety and
                                                                                                       Security or the appropriate DoD                        § 1045.195   Is any matter exempt from MDR
                                               Naval Reactors.                                                                                                requests?
                                                  (f) Upon receipt of the response from                Component appellate authority.
                                                                                                          (3) The appeal authority for Naval                    (a) MDR requests are not accepted for:
                                               DOE or DOD, the agency processing the
                                                                                                       Nuclear Propulsion Information is the
                                               initial request must inform the requester                                                                        (1) Matter containing RD technical
                                                                                                       NNSA Deputy Administrator for Naval
                                               of the results of the review; provide the                                                                      engineering, blueprints, and design
                                                                                                       Reactors.
                                               name of the Denying Official identified                                                                        regarding nuclear weapons, if they
                                                                                                          (e) Final Appeal. The classification
                                               for any RD, FRD, or TFNI withheld; and                                                                         contain no NSI.
                                                                                                       and declassification of RD, FRD, and
                                               advise the requester of his or her appeal
                                                                                                       TFNI is governed by the AEA and this                     (2) Matter required to be submitted for
                                               rights concerning the RD, FRD, or TFNI.
                                                                                                       part and is not subject to E.O. 13526 or               prepublication review or other
                                               § 1045.180 What is the procedure if an                  successor orders. Therefore, appeal                    administrative process pursuant to an
                                               agency receives an appeal to a FOIA or                  decisions by the Associate Under                       approved nondisclosure agreement;
                                               MDR concerning the denial of RD, FRD, or                Secretary for Environment, Health,                       (3) Matter that is the subject of
                                               TFNI?                                                   Safety and Security, for RD, FRD, and                  pending litigation; or
                                                 (a) If an agency receives a FOIA                      TFNI and appeal decisions by the
                                               appeal for RD, FRD, or TFNI denied by                   appropriate DoD Component appellate                      (4) Any matter contained within an
                                                                                                                                                              operational file exempted from search
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                                               DOE, the appeal must be submitted to                    authority for FRD are final agency
                                               the DOE Director, Office of Hearings and                decisions and are not subject to review                and review, publication, and disclosure
                                               Appeals as required under 10 CFR                        by ISCAP. However, if matter containing                under the FOIA in accordance with law.
                                               1004.8. If an agency receives a FOIA                    RD, FRD, or TFNI also contains NSI, the                  (b) Current Presidential records as
                                               appeal for FRD denied by DoD, it must                   NSI portions may be appealed to the                    described in section 3.5(b) of E.O. 13526
                                               be submitted to DoD in accordance with                  ISCAP. Prior to submission to ISCAP,                   or successor orders that are in the
                                               applicable DoD FOIA regulations or                      the RD, FRD, or TFNI portions must be                  custody of DOE are exempt from release
                                               instructions.                                           deleted.                                               in response to an MDR request.


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                                               17732                      Federal Register / Vol. 83, No. 78 / Monday, April 23, 2018 / Proposed Rules

                                               § 1045.200       Is there a cost for an MDR               Associate Under Secretary for                          Security’s action on an appeal must be
                                               review?                                                   Environment, Health, Safety and                        in writing and set forth the reason for
                                                 Yes. The fees for an MDR are the same                   Security. The appeal must be received                  the decision. DOE may refuse to confirm
                                               as for providing records under the FOIA                   within 60 days of the receipt of the                   or deny the existence or nonexistence of
                                               as defined in 10 CFR 1004.9.                              denial.                                                requested information whenever the fact
                                                                                                           (b) The appeal must be in writing and                of its existence or nonexistence is itself
                                               § 1045.205 How does DOE conduct an                        submitted to the Associate Under
                                               MDR review?                                                                                                      classified under E.O. 13526 or successor
                                                                                                         Secretary for Environment, Health,                     orders.
                                                  (a) If DOE has reviewed the                            Safety and Security, AU–1/Forrestal
                                               information contained in the requested                    Building, U.S. Department of Energy,                      (3) Right of final appeal. The
                                               matter for declassification within the                    1000 Independence Avenue SW,                           requester has the right to appeal a final
                                               past 2 years, DOE need not conduct                        Washington, DC 20585. The appeal:                      DOE decision, or a failure to provide a
                                               another review. DOE may instead                             (1) Must contain a concise statement                 determination on an appeal within the
                                               inform the requester of this fact and of                  of grounds upon which it is brought,                   allotted time, to the ISCAP for those
                                               the prior review decision, as well as                     and a description of the relief sought.                appeals dealing with NSI. In cases
                                               advise the requester of his or her appeal                   (2) Must include a copy of the letter                where NSI documents also contain RD,
                                               rights as provided in § 1045.210.                         containing the determination being                     FRD, or TFNI, the portions of the
                                                  (b) DOE performs an MDR as follows:                    appealed.                                              document containing RD, FRD, or TFNI
                                                  (1) Conducts a line-by-line review of                    (3) Should include a discussion of all               must be deleted prior to forwarding the
                                               the matter;                                               relevant authorities that include but are              NSI and unclassified portions to the
                                                  (2) Coordinates the review with                        not limited to DOE (and predecessor                    ISCAP for review.
                                               appropriate programs and agencies, as                     agencies) rulings, regulations,
                                               necessary;                                                interpretations, and decisions on                      § 1045.220 How does DOE process an
                                                  (3) Identifies and withholds any                       appeals, as well as any judicial                       MDR appeal for matter containing RD, FRD,
                                               information that meets the standards for                                                                         or TFNI?
                                                                                                         determinations being relied upon to
                                               classification;                                           support the appeal.                                       (a) Final appeals for DOE matter
                                                  (4) Declassifies any NSI that no longer                                                                       containing RD, FRD, or TFNI are
                                               meets the standards for classification                    § 1045.215 How does DOE process an
                                                                                                         MDR appeal for DOE matter containing NSI?              submitted to the Associate Under
                                               under E.O. 13526 or successor orders                                                                             Secretary for Environment, Health,
                                               and any RD, FRD, or TFNI that no                             (a) An appeal for NSI requested under
                                                                                                                                                                Safety and Security. The Associate
                                               longer meets the standards for                            the provisions of E.O. 13526 or
                                                                                                         successor orders is processed as follows:              Under Secretary for Environment,
                                               classification under this part;                                                                                  Health, Safety and Security will
                                                  (5) If the matter also contains                           (1) The Associate Under Secretary for
                                                                                                         Environment, Health, Safety and                        coordinate appeals concerning Naval
                                               unclassified information that is
                                                                                                         Security must act upon the appeal                      Nuclear Propulsion Information with
                                               potentially exempt from release under
                                                                                                         within 60 working days of its receipt. If              the NNSA Deputy Administrator for
                                               the FOIA, the matter is further
                                                                                                         no determination on the appeal has                     Naval Reactors.
                                               processed to ensure unclassified
                                               information that is exempt from public                    been issued at the end of this 60-day                     (b) The classification and
                                               release is identified and that the                        period, the requester may consider his                 declassification of RD, FRD, and TFNI is
                                               appropriate officials responsible for                     or her administrative remedies to be                   governed by the AEA and this part and
                                               denying any unclassified portion of the                   exhausted and may seek a review by the                 is not subject to E.O. 13526 or successor
                                               matter are provided and listed with the                   ISCAP. When no determination can be                    orders. Therefore, appeal decisions
                                               notice of denial.                                         issued within the applicable time limit,               concerning RD, FRD, or TFNI by the
                                                  (6) Upon completion of the review,                     the appeal must nevertheless continue                  Associate Under Secretary for
                                               releases the matter to the requester                      to be processed. On expiration of the                  Environment, Health, Safety and
                                               unless withholding is authorized by                       time limit, DOE must inform the                        Security, or the NNSA Deputy
                                               law. If NSI, RD, FRD, or TFNI, is                         requester of the reason for the delay, of              Administrator for Naval Reactors are not
                                               withheld, the response must advise the                    the date on which a determination may                  subject to review by ISCAP.
                                               requester of his or her appeal rights                     be expected to be issued, and of the
                                               under § 1045.210.                                         requester’s right to seek further review               § 1045.225 Are DOE responses to MDR
                                                                                                         by the ISCAP. Nothing in this subpart                  requests available to the public?
                                               § 1045.210 How does a person submit an                    precludes the appeal authority and the                   Yes. Once the classified and
                                               appeal if DOE withholds classified                        requester from agreeing to an extension
                                               information in an MDR response?                                                                                  unclassified information exempt from
                                                                                                         of time for the decision on an appeal.                 public release is redacted, DOE
                                                 (a) When the Director, Office of                        The Associate Under Secretary for
                                               Classification, denies NSI, RD, FRD, or                                                                          responses to MDR requests, as well as
                                                                                                         Environment, Health, Safety and
                                               TFNI, or the NNSA Deputy Director,                                                                               FOIA requests for matter containing
                                                                                                         Security must confirm any such
                                               Deputy Administrator for Naval                                                                                   classified information, are posted on
                                                                                                         agreement in writing and clearly specify
                                               Reactors, denies Naval Nuclear                                                                                   DOE’s OpenNet System at: https://
                                                                                                         the total time agreed upon for the appeal
                                               Propulsion information, in matter                                                                                www.osti.gov/opennet/.
                                                                                                         decision.
                                               requested under an MDR, the requester                        (2) The Associate Under Secretary for               [FR Doc. 2018–07990 Filed 4–20–18; 8:45 am]
                                               may appeal the determination to the                       Environment, Health, Safety and                        BILLING CODE 6450–01–P
amozie on DSK30RV082PROD with PROPOSALS




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Document Created: 2018-04-21 00:32:38
Document Modified: 2018-04-21 00:32:38
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionProposed Rules
ActionNotice of proposed rulemaking and public hearings.
DatesWritten comments must be received by DOE on or before May 23, 2018.
ContactLesley Nelson-Burns (Office of Quality Management) at 301-903-4861 or [email protected]
FR Citation83 FR 17710 
RIN Number1992-AA49
CFR AssociatedClassified Information; Declassification; Formerly Restricted Data; Restricted Data and Transclassified Foreign Nuclear Information

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