10 C.F.R. Subpart C—Generation and Review of Documents Containing Restricted Data and Formerly Restricted Data
Title 10 - Energy
This subpart specifies Government-wide classification program implementation requirements for agencies with access to RD and FRD, describes authorities and procedures for RD and FRD document classification and declassification, provides for periodic or systematic review of RD and FRD documents, and describes procedures for the mandatory review of RD and FRD documents. This subpart applies to all RD and FRD documents, regardless of whether they also contain National Security Information (NSI), or other controlled information such as “For Official Use Only” information or “Unclassified Controlled Nuclear Information.” This subpart applies to— (a) Any person with authorized access to RD or FRD; (b) Any agency with access to RD or FRD; and (c) Any person generating a document containing RD or FRD. (a) Classification of RD and FRD documents. (1) To the maximum extent practical, all RD and FRD documents shall be classified based on joint DOE-Agency classification guides or Agency guides coordinated with the DOE. When it is not practical to use classification guides, source documents may be used as an alternative. (2) Only individuals designated as RD classifiers may classify RD and FRD documents, except within the DoD. Within the DoD, any individual with access to RD and FRD who has been trained may classify RD and FRD documents. (3) RD classifiers shall classify only documents in subject areas in which they have programmatic expertise. (4) RD classifiers may upgrade or downgrade the classification level of RD or FRD documents in accordance with joint DOE-Agency classification guides or Agency guides coordinated with the DOE. When it is not practical to use classification guides, source documents may be used as an alternative. (b) Declassification of RD and FRD documents. (1) Only designated individuals in the DOE may declassify documents containing RD. (2) Except as provided in paragraph (b)(3) of this section, only designated individuals in the DOE or appropriate individuals in DoD may declassify documents marked as FRD in accordance with joint DoD-DOE classification guides or DoD guides coordinated with the DOE. (3) The DOE and DoD may delegate these authorities to other agencies and to contractors. Contractors without the delegated authority shall send any document marked as RD or FRD that needs to be considered for declassification to the appropriate agency office. (a) Each agency with access to RD or FRD shall appoint an official to be responsible for the implementation of this part and shall advise the DOE Director of Declassification of such appointment. (b) This official shall ensure the proper implementation of this part within his or her agency and shall serve as the primary point of contact for coordination with the DOE Director of Declassification on RD and FRD classification and declassification issues. (c) Within the DoD, an RD management official shall be appointed in each DoD agency. (a) Except within the DoD, RD management officials shall ensure that persons who derivatively classify RD or FRD documents are designated by position or by name as RD classifiers. (b) All contractor organizations with access to RD and FRD, including DoD contractors, shall designate RD classifiers. (a) RD management officials shall ensure that persons with access to RD and FRD information are trained on the authorities required to classify and declassify RD and FRD information and documents and on handling procedures. RD management officials shall ensure that RD classifiers are trained on the procedures for classifying, declassifying, marking and handling RD and FRD information and documents. (b) The DOE Director of Declassification shall develop training materials related to implementation of this part and shall provide these materials to RD management officials and any other appropriate persons. (c) The DOE Director of Declassification shall review any RD-related training material submitted by agency and contractor representatives to ensure consistency with current policy. (a) The DOE and each agency with access to RD and FRD shall consult periodically to assure appropriate implementation of this part. Such consultations may result in DOE conducting an on-site review within the agency if DOE and the RD management official determine that such a review would be mutually beneficial or that it is necessary to remedy a problem. (b) To address issues concerning implementation of this part, the DOE Director of Declassification shall establish a standing group of all RD management officials to meet periodically. (a) The classification and declassification determinations made by the DOE Directors of Declassification and Security Affairs under the classification criteria in §1045.16 shall be promulgated in classification guides. (b) DOE shall jointly develop classification guides with the DoD, NRC, NASA, and other agencies as required for programs for which DOE and these agencies share responsibility. (c) Agencies shall coordinate with the DOE Director of Declassification whenever they develop or revise classification guides with RD or FRD information topics. (d) Originators of classification guides with RD or FRD topics shall review such guides at least every five years and make revisions as necessary. (e) RD classifiers shall use classification guides as the primary basis for classifying and declassifying documents containing RD and FRD. (f) Each RD management official shall ensure that all RD classifiers have access to all pertinent nuclear classification guides. (a) Documents containing RD and FRD remain classified until a positive action by an authorized person is taken to declassify them. (b) In accordance with the Atomic Energy Act, no date or event for automatic declassification ever applies to RD and FRD documents, even if such documents also contain NSI. (c) E.O. 12958 acknowledges that RD and FRD are exempt from all provisions of the E.O., including automatic declassification. (a) Any authorized holder of an RD or FRD document who, in good faith, believes that the RD or FRD document has an improper classification status is encouraged and expected to challenge the classification with the RD Classifier who classified the document. (b) Agencies shall establish procedures under which authorized holders of RD and FRD documents are encouraged and expected to challenge any classification status they believe is improper. These procedures shall assure that: (1) Under no circumstances are persons subject to retribution for bringing forth a classification challenge. (2) The individual who initially receives the challenge provides a response within 90 days to the person bringing forth the challenge. (3) A decision concerning a challenge involving RD or FRD may be appealed to the DOE Director of Declassification. In the case of FRD and RD related primarily to the military utilization of nuclear weapons, the DOE Director of Declassification shall coordinate with the DoD. If the justification for classification does not satisfy the person making the challenge, a further appeal may be made to the DOE Director of Security Affairs. (c) Classification challenges concerning documents containing RD and FRD information are not subject to review by the Interagency Security Classification Appeals Panel, unless those documents also contain NSI which is the basis for the challenge. In such cases, the RD and FRD portions of the document shall be deleted and then the NSI and unclassified portions shall be provided to the Interagency Security Classification Appeals Panel for review. (a) RD classifiers shall ensure that each RD and FRD document is clearly marked to convey to the holder that it contains RD or FRD information, the level of classification assigned, and the additional markings in paragraphs (b)(3) and (4) of this section. (b) Front Marking. In addition to the overall classification level of the document, the following notices shall appear on the front of the document, as appropriate: (1) If the document contains RD:
RESTRICTED DATA This document contains RESTRICTED DATA as defined in the Atomic Energy Act of 1954. Unauthorized disclosure subject to administrative and criminal sanctions. (2) If the document contains FRD but does not contain RD:
FORMERLY RESTRICTED DATA Unauthorized disclosure subject to administrative and criminal sanctions. Handle as RESTRICTED DATA in foreign dissemination. Section 144b, Atomic Energy Act of 1954. (3) An RD or FRD document shall be marked to identify the classification guide or source document, by title and date, used to classify the document:
Derived from: (Classification Guide or source document—title and date) (4) An RD or FRD document shall be marked with the identity of the RD classifier, unless the classifier is the same as the document originator or signer.
RD Classifier: (Name and position or title) (c) Interior Page. RD classifiers shall ensure that RD and FRD documents are clearly marked at the top and bottom of each interior page with the overall classification level and category of the document or the classification level and category of the page, whichever is preferred. The abbreviations “RD” and “FRD” may be used in conjunction with the document classification (e.g., SECRET RD or SECRET FRD). (d) Declassification Marking. Declassified RD and FRD documents shall be marked with the identity of the individual authorizing the declassification, the declassification date and the classification guide which served as the basis for the declassification. Individuals authorizing the declassification shall ensure that the following marking is affixed on RD and FRD documents which they declassify:
Declassified on: (Date) Authorizing Individual: (Name and position or title) Authority: (Classification Guide—title and date) (a) In order to maximize the amount of information available to the public and to simplify document handling procedures, document originators should segregate RD or FRD into an addendum whenever practical. When RD or FRD is segregated into an addendum, the originator shall acknowledge the existence of the classified addendum unless such an acknowledgment would reveal classified information. (b) When segregation of RD or FRD into an addendum is not practical, document originators are encouraged to prepare separate unclassified versions of documents with significant public interest. (c) When documents contain environmental, safety or health information and a separate unclassified version cannot be prepared, document originators are encouraged to provide a publicly releasable rationale for the classification of the documents. (a) General. (1) Agencies with documents containing RD and FRD shall respond to mandatory review and Freedom of Information Act (FOIA) requests for these documents from the public. (2) In response to a mandatory review or Freedom of Information Act request, DOE or DoD may refuse to confirm or deny the existence or nonexistence of the requested information whenever the fact of its existence or nonexistence is itself classified as RD or FRD. (b) Processing Requests. (1) Agencies shall forward documents containing RD to DOE for review. (2) Agencies shall forward documents containing FRD to the DOE or to the DoD for review, depending on which is the originating agency. (3) The DOE and DoD shall coordinate the review of RD and FRD documents as appropriate. (4) The review and appeal process is that described in subpart D of this part except for the appeal authority. DOE and DoD shall not forward RD and FRD documents to the Interagency Security Classification Appeals Panel (ISCAP) for appeal review unless those documents also contain NSI. In such cases, the DOE or DoD shall delete the RD and FRD portions prior to forwarding the NSI and unclassified portions to the ISCAP for review. (5) Information Declassification Actions resulting from appeal reviews. (i) Appeal reviews of RD or FRD documents shall be based on existing classification guidance. However, the DOE Director of Declassification shall review the RD and FRD information in the appealed document to determine if it may be a candidate for possible declassification. (ii) If declassification of the information appears appropriate, the DOE Director of Declassification shall initiate a formal declassification action and so advise the requester. (c) Denying Official. (1) The denying official for documents containing RD is the DOE Director of Declassification. (2) The denying official for documents containing FRD is either the DOE Director of Declassification or an appropriate DoD official. (d) Appeal Authority. (1) The appeal authority for RD documents is the DOE Director of Security Affairs. (2) The appeal authority for FRD documents is either the DOE Director of Security Affairs, or an appropriate DoD official. (e) The denying official and appeal authority for Naval Nuclear Propulsion Information is the Director, Office of Naval Reactors. (f) RD and FRD information contained in documents shall be withheld from public disclosure under exemption 3 of the FOIA (5 U.S.C. 522 (b)(3)) because such information is exempt under the statutory jurisdiction of the Atomic Energy Act. (a) The Secretary shall ensure that RD documents, and the DoD shall ensure that FRD documents, are periodically and systematically reviewed for declassification. The focus of the review shall be based on the degree of public and researcher interest and likelihood of declassification upon review. (b) Agencies with RD or FRD document holdings shall cooperate with the DOE Director of Declassification (and with the DoD for FRD) to ensure the systematic review of RD and FRD documents. (c) Review of documents in particular areas of public interest shall be considered if sufficient interest is demonstrated. Proposals for systematic document reviews of given collections or subject areas should be addressed to the Director of Declassification, Department of Energy, 19901 Germantown Road, Germantown, MD 20874–1290. Any person with authorized access to RD or FRD who generates a document intended for public release in an RD or FRD subject area shall ensure that it is reviewed for classification by the appropriate DOE organization (for RD) or the appropriate DOE or DoD organization (for FRD) prior to its release. (a) Individuals reviewing NSI records of permanent historical value under the automatic or systematic review provisions of E.O. 12958 may come upon documents that they suspect may contain RD or FRD, but which are not so marked. Such documents are not subject to automatic declassification. (b) Such documents shall be reviewed by an RD Classifier as soon as possible to determine their classification status. Assistance may be requested from the DOE Director of Declassification. (a) If two pieces of unclassified information reveal classified information when associated, then RD classifiers may classify the document. (b) RD classifiers may classify a document because a number of pieces of unclassified information considered together contain some added value such as completeness or comprehensiveness of the information which warrants classification.
Title 10: Energy
PART 1045—NUCLEAR CLASSIFICATION AND DECLASSIFICATION
Subpart C—Generation and Review of Documents Containing Restricted Data and Formerly Restricted Data
§ 1045.30 Purpose and scope.
§ 1045.31 Applicability.
§ 1045.32 Authorities.
§ 1045.33 Appointment of restricted data management official.
§ 1045.34 Designation of restricted data classifiers.
§ 1045.35 Training requirements.
§ 1045.36 Reviews of agencies with access to restricted data and formerly restricted data.
§ 1045.37 Classification guides.
§ 1045.38 Automatic declassification prohibition.
§ 1045.39 Challenging classification and declassification determinations.
§ 1045.40 Marking requirements.
§ 1045.41 Use of classified addendums.
§ 1045.42 Mandatory and Freedom of Information Act reviews for declassification of restricted data and formerly restricted data documents.
§ 1045.43 Systematic review for declassification.
§ 1045.44 Classification review prior to public release.
§ 1045.45 Review of unmarked documents with potential restricted data or formerly restricted data.
§ 1045.46 Classification by association or compilation.
