(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 Director, Office of 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 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 § 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 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 § 1045.120;

(3) Ensure that RD Derivative Classifiers are designated and trained in accordance with §§ 1045.115 and 1045.120, respectively;

(4) Ensure that persons who derivatively classify matter containing TFNI are trained in accordance with § 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 § 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 § 1045.150.

(j) Persons who derivatively classify matter containing TFNI:

(1) Must receive training prescribed by § 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 § 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 § 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.

[83 FR 66007, Dec. 21, 2018, as amended at 88 FR 41294, June 26, 2023]