(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, and 32 CFR part 2001, Classified National Security Information. 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 (RD), 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]

(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.

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, EHSS-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.

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, EHSS-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.

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.

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) with managing the implementation of this part within that agency.

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.

Director, Office of Environment, Health, Safety and Security means DOE's Director for Environment, Health, Safety and Security or any person to whom the Director's duties are delegated.

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 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:

(1) 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.

(2) TFNI does not include:

(i) RD or FRD concerning United Kingdom (U.K.) or Canadian programs;

(ii) Any U.S. RD or FRD, including that which the U.S. has transmitted to other nations;

(iii) 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;

(iv) Classified atomic energy information received from a foreign government pursuant to an agreement imposing security measures equivalent for those in effect for RD; or

(v) 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.

The following acronyms are commonly used throughout this part: