10 C.F.R. Subpart A—Program Management of the Restricted Data and Formerly Restricted Data Classification System
Title 10 - Energy
This subpart establishes responsibilities associated with this part, describes the Openness Advisory Panel, defines key terms, describes sanctions related to violation of the policies and procedures in this part, and describes how to submit suggestions or complaints concerning the Restricted Data classification and declassification program, and how to request procedural exceptions. This subpart applies to— (a) Any person with authorized access to RD or FRD; (b) Any agency with access to RD or FRD; and (c) Any person who might generate information determined to be RD or FRD. As used in this part: Agency means any “Executive Agency” as defined in 5 U.S.C. 105; any “Military Department” as defined in 5 U.S.C. 102; and any other entity within the executive branch that comes into possession of RD or FRD information or documents. Atomic Energy Act means the Atomic Energy Act of 1954, as amended (42 U.S.C. 2011 et seq.). Authorized Holder means a person with the appropriate security clearance required to have access to classified information and the need to know the information in the performance of Government-approved activities. Automatic Declassification means the declassification of information or documents based solely upon: (1) The occurrence of a specific date or event as determined by the classifier; or (2) The expiration of a maximum time frame for duration of classification established under Executive Order 12958. Classification means the act or process by which information is determined to be classified information. Classification Guide means a written record of detailed instructions as to whether specific information is classified, usually concerning a system, plan, project, or program. It identifies information to be classified and specifies the level (and duration for NSI only) of classification assigned to such information. Classification guides are the primary basis for reviewing documents to determine whether they contain classified information. Classification Level means one of three designators: (1) Top Secret is applied to information (RD, FRD, or NSI), the unauthorized disclosure of which reasonably could be expected to cause exceptionally grave damage to the national security that the appropriate official is able to identify or describe. (2) Secret is applied to information (RD, FRD, or NSI), the unauthorized disclosure of which reasonably could be expected to cause serious damage to the national security that the appropriate official is able to identify or describe. (3) Confidential. (i) For NSI, Confidential is applied to information, the unauthorized disclosure of which reasonably could be expected to cause damage to the national security that the appropriate official is able to identify or describe. (ii) For RD and FRD, Confidential is applied to information, the unauthorized disclosure of which could reasonably be expected to cause undue risk to the common defense and security that the appropriate official is able to identify or describe. Classified Information means: (1) Information classified as RD or FRD under the Atomic Energy Act; or (2) Information determined to require protection against unauthorized disclosure under Executive Order (E.O.) 12958 or prior Executive Orders (also identified as National Security Information or NSI). Contractor means any industrial, educational, commercial or other entity, grantee or licensee at all tiers, including an individual, that has executed an agreement with the Federal Government for the purpose of performing under a contract, license or other agreement. Declassification means a determination by appropriate authority that information or documents no longer require protection, as classified information, against unauthorized disclosure in the interests of national security. Department or DOE means Department of Energy. Director of Declassification means the Department of Energy Director, Office of Declassification, or any person to whom the Director's duties are delegated. The Director of Declassification is subordinate to the Director of Security Affairs. Director of Security Affairs means the Department of Energy Director, Office of Security Affairs, or any person to whom the Director's duties are delegated. Document means the physical medium on or in which information is recorded, or a product or substance which contains or reveals information, regardless of its physical form or characteristics. Formerly Restricted Data (FRD) means classified information jointly determined by DOE and the DoD to be related primarily to the military utilization of nuclear weapons and removed (by transclassification) from the RD category pursuant to section 142(d) of the Atomic Energy Act. Government means the executive branch of the Federal Government of the United States. Government Information means information that is owned by, produced by or for, or is under the control of the U.S. Government. Information means facts, data, or knowledge itself, as opposed to the medium in which it is contained. Interagency Security Classification Appeals Panel (ISCAP) means a panel created pursuant to Executive Order 12958 to perform functions specified in that order with respect to National Security Information. National Security means the national defense or foreign relations of the United States. National Security Information (NSI) means information that has been determined pursuant to Executive Order 12958 or prior Executive Orders to require protection against unauthorized disclosure and is marked to indicate its classification status when in document form. NSI is referred to as “defense information” in the Atomic Energy Act. Nuclear weapon means atomic weapon. Person means: (1) Any individual, contractor, corporation, partnership, firm, association, trust, estate, public or private institution, group, Government agency, any State, or any political subdivision thereof, or any political entity within a State; and (2) Any legal successor, representative, agent, or agency of the foregoing. Portion Marking means the application of certain classification markings to individual words, phrases, sentences, paragraphs, or sections of a document to indicate their specific classification level and category. Restricted Data (RD) means a kind of classified information that consists of all data concerning the following, but not including data declassified or removed from the RD category pursuant to section 142 of the Atomic Energy Act: (1) Design, manufacture, or utilization of atomic weapons; (2) Production of special nuclear material; or (3) Use of special nuclear material in the production of energy. Restricted Data Classifier means an individual who derivatively classifies RD or FRD documents. Within the DoD, RD classifiers may also declassify FRD documents. Restricted Data Management Official means an individual appointed by any agency with access to RD and FRD who is responsible for managing the implementation of this part within that agency or any person to whom these duties are delegated. This person may be the senior agency official required by E.O. 12958. Secretary means the Secretary of Energy. Source Document means a classified document, other than a classification guide, from which information is extracted for inclusion in another document. The classification of the information extracted is determined by the classification markings shown in the source document. Special Nuclear Material means plutonium, uranium enriched in the isotope 233 or in the isotope 235, and any other material which the Secretary determines to be special nuclear material pursuant to the Atomic Energy Act. (a) The DOE Director of Declassification shall: (1) Manage the Government-wide system for the classification and declassification of RD and FRD in accordance with the Atomic Energy Act; (2) In coordination with the DoD, develop regulations to implement the RD and FRD classification system; (3) Determine whether nuclear-related information is RD; (4) Oversee agency implementation of the RD and FRD classification system to ensure compliance with this part; (5) Review agency implementing policies and conduct on-site reviews of each agency's program established under this part; (6) Prepare and distribute classification guides concerning RD and FRD and review such guides developed by any agency; (7) Consider and take action on complaints and suggestions from any person with respect to administration of this program; and (8) Periodically meet with interested members of the public to solicit input for the classification and declassification program. (b) The DOE Director of Security Affairs shall: (1) Declassify RD which may be published without undue risk to the common defense and security; (2) Jointly with the DoD, determine which information in the RD category relating primarily to the miliary utilization of nuclear weapons may be declassified or placed into the FRD category; and (3) Jointly with the DoD, declassify FRD which may be published without undue risk to the common defense and security. (c) The DoD jointly with the DOE shall: (1) Determine which information in the RD category relating primarily to the military utilization of nuclear weapons may be declassified or placed into the FRD category; (2) Ensure that classification guides for FRD and RD relating primarily to the military utilization of nuclear weapons are prepared; and (3) Declassify FRD and RD relating primarily to the military utilization of nuclear weapons which may be published without undue risk to the common defense and security. (d) The Nuclear Regulatory Commission (NRC) shall: (1) Jointly with the DOE, develop classification guides for programs over which both agencies have cognizance; and (2) Ensure the review and proper classification of RD by RD classifiers under this part, which is generated by the NRC or by its licensed or regulated facilities and activities. (e) Heads of Agencies with access to RD and FRD shall: (1) Ensure that RD and FRD are classified in such a manner as to assure the common defense and security in accordance with the policies established in this part; (2) Designate an RD management official to direct and administer the RD classification program within the agency; and (3) Promulgate implementing directives. (f) Agency RD management officials shall: (1) Jointly with the DOE, develop classification guides for programs over which both agencies have cognizance; (2) Ensure that agency and contractor personnel who generate RD and FRD documents have access to any classification guides needed; (3) Ensure that persons with access to RD and FRD are trained on the authorities required to classify and declassify RD and FRD information and documents and on handling procedures and that RD classifiers are trained on the procedures for classifying, declassifying, marking and handling RD and FRD information and documents; and (4) Cooperate and provide information as necessary to the DOE Director of Declassification to fulfill responsibilities under this part. (a) Knowing, willful, or negligent action contrary to the requirements of this part which results in the misclassification of information may result in appropriate sanctions. Such sanctions may range from administrative sanctions to civil or criminal penalties, depending on the nature and severity of the action as determined by appropriate authority, in accordance with applicable laws. (b) Other violations of the policies and procedures contained in this part may be grounds for administrative sanctions as determined by appropriate authority. The DOE shall maintain an Openness Advisory Panel, in accordance with the Federal Advisory Committee Act, to provide the Secretary with independent advice and recommendations on Departmental openness initiatives, including classification and declassification issues that affect the public. (a) Any person who has suggestions or complaints regarding the Department's classification and declassification policies and procedures may direct them in writing to the Openness Coordinator, Department of Energy, Office of Declassification, 19901 Germantown Road, Germantown, Maryland 20874–1290. (b) Such letters should include a description of the issue or problem, the suggestion or complaint, all applicable background information, and an address for the response. (c) DOE will make every effort to respond within 60 days. (d) Under no circumstances shall persons be subject to retribution for making a suggestion or complaint regarding the Department's classification and declassification policies or programs. (a) Exemptions to the procedural provisions of this part may be granted by the DOE Director of Declassification. (b) A request for an exemption shall be made in writing to the DOE Director of Declassification and shall provide all relevant facts, justification, and a proposed alternate procedure. (a) Heads of agencies shall ensure that RD management officials and those RD classifiers whose duties involve the classification or declassification of significant numbers of RD or FRD documents shall have their personnel performance evaluated with respect to classification activities. (b) Procedures for the evaluation under paragraph (a) of this section may be the same as those in place for NSI related classification activities as required by Executive Order 12958.
Title 10: Energy
PART 1045—NUCLEAR CLASSIFICATION AND DECLASSIFICATION
Subpart A—Program Management of the Restricted Data and Formerly Restricted Data Classification System
§ 1045.1 Purpose and scope.
§ 1045.2 Applicability.
§ 1045.3 Definitions.
§ 1045.4 Responsibilities.
§ 1045.5 Sanctions.
§ 1045.6 Openness Advisory Panel.
§ 1045.7 Suggestions or complaints.
§ 1045.8 Procedural exemptions.
§ 1045.9 RD classification performance evaluation.
