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Title 10 Part 1045 → Subpart D

Title 10 → Chapter X → Part 1045 → Subpart D

Electronic Code of Federal Regulations e-CFR

Title 10 Part 1045 → Subpart D

e-CFR data is current as of December 12, 2019

Title 10Chapter XPart 1045 → Subpart D


Title 10: Energy
PART 1045—NUCLEAR CLASSIFICATION AND DECLASSIFICATION


§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 §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 §1045.120 may classify matter containing TFNI.

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§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;

(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 §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.

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§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 §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 §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.

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

(a) Derivative classification of RD or FRD. 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) Derivative classification of TFNI. 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 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.

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§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 §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.

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

(a) Matter determined to contain RD, FRD, or TFNI. 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. (1) If a classification guide is used to classify the matter, the “Derived From” line must include the short title of the 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

(2) 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 §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 this 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.

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§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 §1045.30.

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

(a) Removal of RD, FRD, or TFNI portions from matter containing RD, FRD, or TFNI. 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 §1045.125 to the appropriate 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 §1045.120(e) may remove the portions containing TFNI and the TFNI markings.

(3) In all cases under §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.

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

(a) Declassification of matter containing RD, FRD, or TFNI. 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) Authority to declassify matter containing RD, FRD, or TFNI. 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 (b) 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 (b) 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.

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§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.

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§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.

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