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Highlights of the Department of Energy's Proposed Draft Regulation 10 CFR Part 1045 Information Classification

Openness ... Creating a Legacy

Highlights of the Department of Energy's Proposed Draft Regulation 10 CFR Part 1045: Information Classification

The Department of Energy Office of Declassification has developed a draft regulation which will, for the first time, publicly define and implement Government-wide requirements for the classification and declassification of Restricted Data and Formerly Restricted Data under the Atomic Energy Act. The regulation also implements those provisions of Executive Order 12958, "Classified National Security Information," that affect members of the public.

Several recent studies, involving both Government and public stakeholders, have recommended that a regulatory approach would be an effective means to implement Restricted Data classification and declassification policies and procedures. This regulation generally implements the current program but will provide a suitable framework to implement some of the recommendations of the Fundamental Classification Policy Review. As a result, this regulation will not be published as a final rule until the Fundamental Classification Policy Review is completed. Those recommendations that are adopted and that can be implemented by means of a regulation will be incorporated immediately. Those recommendations that require statutory changes, will be able to be included in a future revision to this regulation.

This action is significant because it formalizes the Department's commitment to Openness and modifies the current system to ensure greater accountability to the public for classification decisions. In addition, by establishing new classification procedures, training requirements for classifiers, and an assistance/oversight program, it will help all Federal agencies to better protect that nuclear-related information that needs to be protected. By increasing the quality of classification reviews, excessive classification will be reduced, resulting in decreased physical protection costs for information that really does not warrant such protection.

Coordination with stakeholders from the public as well as other agencies has been critical to the development of the draft regulation. This is a prime example of the new Departmental commitment to "open policies openly arrived at." A copy of the draft regulation's Table of Contents is attached. Highlights of the regulation include the following:

  • By issuance of this regulation, several prohibitions on classification of information will be put into effect (e.g. unwarranted classification or classification of information dealing solely with environment, safety and health issues).
  • The Department's criteria to be used in making classification and declassification determinations are specified in the regulation. These criteria collectively form the foundation for a harm-based system with a goal of reasonable risk management rather than near absolute risk avoidance.
  • The regulation establishes certain categories of nuclear-related information which are almost entirely unclassified or which still contain some classified information. For example, unclassified nuclear-related subject areas include civilian power reactor and nuclear fuel reprocessing technology while still-classified subject areas include detailed designs of nuclear weapons and naval nuclear propulsion reactors. New information generated in one on these categories is presumed to have the same classification status as the information in the overall category. These presumptions serve as the starting point in the decision making process as to whether information should be classified. When decisions are made which are exceptions to the presumptions, the Department is required to justify such exceptions in a manner that can be made available to the public. Inclusion of this provision will ensure that the Department's decisions are consistent and that the public has access to the rationale for our decisions.
  • The Atomic Energy Act allows for the classification of sensitive nuclear-related information even if it is generated by private companies or individuals. Although this authority has been seldom used in the past, it is being retained because of its potential value in minimizing nuclear proliferation as a result of technology developed in the private sector. In order to assure that this unique authority is never abused, the regulation limits its application to the Secretary or the Deputy Secretary. In addition, the Department is required to publicly announce each time this authority is exercised.
  • A provision requiring for the first time that Restricted Data documents be periodically and systematically reviewed for declassification based on public interest and likelihood of declassification will assure that such reviews of documents in the Department will be carried out.
  • To further the goals of openness, an Openness Advisory Panel is created comprised of independent outside stakeholders to advise the Secretary on a wide variety of openness issues, ranging from general accessibility problems to specific details concerning the classification and declassification programs.
  • The regulation outlines procedures for authorized holders of classified documents to challenge classification decisions they believe are inappropriate.
  • To facilitate public release of as much information as possible, the regulation emphasizes that originators of classified documents should prepare classified addenda whenever classified information constitutes a small portion of an otherwise publicly releasable document.
  • Finally, this regulation provides much needed guidance to the many Federal agencies and Departments which handle and maintain Restricted Data and Formerly Restricted Data. This regulation will lead to more effective classification management of nuclear-related information throughout the Government. The goal is to minimize both over- and under- classification, thus protecting only that information which is truly sensitive while maximizing the amount of information that can be publicly released.

The Department is in the process of internal and interagency coordination of the regulation. We anticipate publication of the regulation as a draft rule in the Federal Register at the end of February. A public hearing will be held in the spring in Washington, D.C. We hope to publish the regulation as a final rule next fall.





1045.1 Purpose and Scope
1045.2 Applicability
1045.3 Definitions
1045.4 Sanctions
1045.5 Openness Advisory Panel
1045.6 Suggestions or Complaints


1045.10 Purpose and Scope
1045.11 Applicability
1045.12 Authorities
1045.13 Classification Prohibitions
1045.14 Process for Classification and Declassification of Restricted Data and Formerly Restricted Data Information
1045.15 Classification and Declassification Presumptions
1045.16 Criteria for Evaluation of Restricted Data and Formerly Restricted Data Information
1045.17 Classification Levels
1045.18 Newly Generated Information in a Previously Declassified Subject Area
1045.19 Accountability for Classification and Declassification Determinations
1045.20 Ongoing Call for Declassification Proposals
1045.21 Privately Generated Restricted Data
1045.22 No Comment Policy


1045.30 Purpose and Scope
1045.31 Applicability
1045.32 Authorities
1045.33 Appointment of Restricted Data Management Official
1045.34 Designation and Training Requirements for Restricted Data Classifiers
1045.35 Reviews of Agencies with Access to Restricted Data and Formerly Restricted Data
1045.36 Classification Guides
1045.37 Automatic Declassification Prohibition
1045.38 Challenging Classification and Declassification Determinations
1045.39 Marking Requirements
1045.40 Use of Classified Addendums
1045.41 Mandatory Review for Declassification of Restricted Data and Formerly Restricted Data Documents
1045.42 Systematic Review for Declassification
1045.43 Classification Review Prior to Public Release
1045.44 Review of Unmarked Documents with Potential Restricted Data or Formerly Restricted Data


1045.50 Purpose and Scope
1045.51 Declassification Appeal under Request for Mandatory Review

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