Determining if Information is RD, FRD, or TFNI

10 C.F.R. Part ..., Subpart C
in effectEffective: 2024-07-01

10 C.F.R. § 1045.70 How is information initially determined to be RD?

(a) For new information to be classified as RD it must fall under the definition of RD that states such information concerns: The design, manufacture, or utilization of nuclear weapons; the production of special nuclear material; or the use of special nuclear material in the production of energy, and the unauthorized release of the information must reasonably be expected to cause undue risk to the common defense and security. (b) This initial determination is made by the Director, Office of Classification after: (1) Ensuring the information is not prohibited from being classified under § 1045.75; (2) Considering whether the information falls within the classification or declassification presumptions in § 1045.80; and (3) Evaluating the criteria in this paragraph. (i) Whether the information is so widely known or readily apparent to knowledgeable observers that its classification would cast doubt on the credibility of classification programs; (ii) Whether publication of the information would assist in the development of countermeasures or otherwise jeopardize any U.S. weapon or weapon system; (iii) Whether the information would hinder U.S. nonproliferation efforts by significantly assisting potential adversaries to develop or improve a nuclear weapon capability, produce nuclear weapons materials, or make other military use of nuclear energy; (iv) Whether information would assist terrorists to develop a nuclear weapon, produce nuclear materials, or use special nuclear material in a terrorist attack; (v) Whether publication of the information would have a detrimental effect on U.S. foreign relations; (vi) Whether publication of the information would benefit the public welfare, taking into account the importance of the information to public discussion and education and potential contribution to economic growth; and (vii) Whether publication of the information would benefit the operation of any Government program by reducing operating costs or improving public acceptance. (c) In consideration of the analysis of the criteria of this section, if there is significant doubt about the need to classify the information, then the Director cannot make an initial determination to classify the information.

10 C.F.R. § 1045.75 Are there prohibitions against information being classified, remaining classified, or prevented from being declassified as RD, FRD, or TFNI?

(a) Yes. Information must not be classified or remain classified as RD, FRD, or TFNI to accomplish the purposes described in paragraphs (b) through (g) of this section. Persons must also not prevent information from being declassified as RD, FRD, or TFNI for the purposes described in paragraphs (b) through (g) of this section. (b) Conceal violations of law, inefficiency, or administrative error; (c) Prevent embarrassment to a person, organization, or agency; (d) Restrain competition; (e) Prevent or delay the release of information that does not require protection for the national security or nonproliferation reasons; (f) Unduly restrict dissemination by assigning an improper classification level; or (g) Prevent or delay the release of information bearing solely on the physical environment or public or worker health and safety.

10 C.F.R. § 1045.80 What are the classification and declassification presumptions?

(a) The Director, Office of Classification and the Director, Office of Environment, Health, Safety and Security consider the presumptions in paragraph (b)(1) of this section before applying the criteria in § 1045.70. These presumptions concern information in certain but not all nuclear-related areas that may generally be presumed to be RD or are generally unclassified. The term “generally” here means that as a rule, but not necessarily in every case, the information in the identified area is presumed classified or not classified as indicated. Inclusion of specific existing information in one of the presumption categories does not mean that new information in a category is or is not classified, but only that arguments to differ from the presumed classification status of the information should use the appropriate presumption as a starting point. (b) Information in the following areas is presumed to be RD: (1) Detailed designs, specifications, and functional descriptions of nuclear explosives, whether in the active stockpile or retired; (2) Material properties under conditions achieved in nuclear explosions that are principally useful only for design and analysis of nuclear weapons; (3) Vulnerabilities of U.S. nuclear weapons to sabotage, countermeasures, or unauthorized use; (4) Nuclear weapons logistics and operational performance information (e.g., specific weapon deployments, yields, capabilities) related to military utilization of those weapons required by DoD; (5) Details of the critical steps or components in nuclear material production processes; and (6) Features of military nuclear reactors, especially naval nuclear propulsion reactors, that are not common to or required for civilian power reactors. (c) Information in the following areas is presumed to be unclassified: (1) Basic science: Mathematics, chemistry, theoretical and experimental physics, engineering, materials science, biology, and medicine; (2) Magnetic confinement fusion technology; (3) Civilian power reactors, including nuclear fuel cycle information but excluding technologies for uranium enrichment; (4) Source materials (defined as uranium and thorium and ores containing them); (5) Fact of use of safety features (e.g., insensitive high explosives, fire resistant pits) to lower the risks and reduce the consequences of nuclear weapon accidents; (6) Generic nuclear weapons effects; (7) Physical and chemical properties of uranium and plutonium, most of their alloys and compounds, under standard temperature and pressure conditions; (8) Nuclear fuel reprocessing technology and reactor products not revealing classified production rates or inventories; (9) The fact, time, location, and yield range (e.g., “less than 20 kilotons” or “20-150 kilotons”) of U.S. nuclear tests; (10) General descriptions of nuclear material production processes and theory of operation; (11) DOE special nuclear material aggregate inventories and production rates not revealing the size of or details concerning the nuclear weapons stockpile; (12) Types of waste products resulting from all DOE weapon and material production operations; (13) Any information solely relating to the public and worker health and safety or to environmental quality; and (14) The simple association or simple presence of any material (i.e., element, compound, isotope, alloy, etc.) at a specified DOE site.

10 C.F.R. § 1045.85 How is information determined to be FRD or TFNI and can FRD or TFNI be returned to the RD category?

(a) To be eligible to become FRD or TFNI, information must first be classified as RD in accordance with the AEA and this part. FRD and TFNI are removed from and may be returned to the RD category under section 142 of the AEA. The process by which information is removed from the RD category and placed into the FRD or TFNI category or returned to the RD category is called transclassification and involves the following decisions: (1) For information to be transclassified from RD to the FRD category, the Director, Office of Environment, Health, Safety and Security and the appropriate official within DoD (as specified in DoD Instruction 5210.02 or subsequent instructions) must jointly determine that the information relates primarily to the military utilization of nuclear weapons and can be adequately protected in a manner similar to NSI. (2) For information to be transclassified from RD to the TFNI category, the Director, Office of Environment, Health, Safety and Security and the DNI must jointly determine that information concerning a foreign nuclear energy program that falls under the RD definition must be removed from the RD category in order to carry out the provisions of the National Security Act of 1947, as amended, and can be adequately protected in a manner similar to NSI. (b) The process to return FRD and TFNI to the RD category is as follows: (1) FRD may be returned to the RD category if the DOE and DoD jointly determine that the programmatic requirements that caused the information to be removed from the RD category no longer apply, the information would be more appropriately protected as RD and returning the information to the RD category is in the interest of national security. DOE jointly with DoD must notify all appropriate agencies of the change. (2) TFNI may be returned to the RD category if the DOE and the DNI jointly determine that the programmatic requirements that caused the information to be removed from the RD category no longer apply, the information would be more appropriately protected as RD and returning the information to the RD category is in the interest of national security. DOE jointly with the DNI must notify all appropriate agencies of the change.

10 C.F.R. § 1045.90 Can information generated by private entities that is not owned by, produced by, or controlled by the U.S. Government be classified as RD?

Yes. Under the AEA, DOE may classify information that is privately generated (e.g., not under a Government contract) as RD. This may only be done in writing by the Secretary or Deputy Secretary. This responsibility cannot be delegated. Once such a determination is made, DOE must notify the public through the Federal Register. This notice is not required to reveal any details about the determination and must protect the national security as well as the interests of the private party.

10 C.F.R. § 1045.95 What are the criteria used to assign levels to RD, FRD, or TFNI?

(a) When the Director, Office of Classification, makes the initial determination that information is RD, he or she determines the appropriate level of the information based on the damage that would occur if there was an unauthorized disclosure of the information. The Director, Office of Classification, also determines the level for TFNI, and, jointly with the appropriate DoD official (as specified in DoD Instruction 5210.02 or successor instructions) determines the level for FRD information. (b) The three classification levels of RD, FRD, and TFNI are: (1) Top Secret. Top Secret is applied to information that is vital to the national security 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. Secret is applied to information, 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. Confidential is applied to information, 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.

10 C.F.R. § 1045.100 How are RD, FRD, and TFNI declassified?

(a) This section addresses the declassification of information, not derivatively classified matter. See Subpart D for requirements for the declassification of matter containing RD, FRD, or TFNI. (b) RD and TFNI are declassified by the Director, Office of Environment, Health, Safety and Security by evaluating the criteria in § 1045.70. FRD requires the evaluation of the same criteria and a joint decision by the Director, Office of Environment, Health, Safety and Security and the appropriate DoD official (as specified in DoD Instruction 5210.02 or subsequent instructions).

10 C.F.R. § 1045.105 What is the method to request the declassification of RD, FRD or TFNI?

(a) If a person believes RD, FRD, or TFNI should not be classified, he or she may submit a declassification proposal. Proposals must be submitted in writing and must include a description of the information concerned and may include a reason for the request. If submitted by a person with access to RD, FRD, or TFNI, the request must be submitted through secure means. The proposal is processed as follows: (b) The Director, Office of Environment, Health, Safety and Security considers declassification proposals from the public and Government agencies and their contractors for the declassification of RD, FRD, and TFNI on an ongoing basis. For FRD, the Director, Office of Classification, will coordinate the declassification proposal with the appropriate DoD official (as specified in DoD Instruction 5210.02 or subsequent instructions). (c) Declassification proposals may be sent to the Director, Office of Environment, Health, Safety and Security, EHSS-1/Forrestal Building, U.S. Department of Energy, 1000 Independence Avenue SW, Washington, DC 20585. For FRD, the proposal may be sent to the Director, Office of Classification, or the appropriate DoD official (as specified in DoD Instruction 5210.02 or subsequent instructions). DOE and DoD must coordinate with one another concerning declassification proposals for FRD.

10 C.F.R. § 1045.110 How are challenges to the classification and declassification of RD, FRD, or TFNI submitted and processed?

(a) Any person with access to RD, FRD, or TFNI who believes that RD, FRD, or TFNI is improperly classified is encouraged and expected to challenge the classification. The challenge may be to information RD, FRD, or TFNI (e.g., a guide topic) or the classification status of matter containing RD, FRD, or TFNI. (b) Challenges are submitted in accordance with agency procedures. (c) Each agency must establish procedures for a person to challenge the classification status of RD, FRD, or TFNI if they believe that the classification status is improper. These procedures must: (1) Advise the person of their right to submit a challenge directly to the Director, Office of Classification, EHSS-60/Germantown Building, U.S. Department of Energy, 1000 Independence Avenue SW, Washington, DC 20585, at any time. (2) Ensure that under no circumstances is an employee subject to retribution for challenging the classification status of RD, FRD, or TFNI; (3) Require the agency that initially receives the challenge to provide an initial response within 60 days to the person submitting the challenge. (4) Require the agency to advise the person of their appeal rights. If the employee is not satisfied with the agency response or the agency has not responded to the challenge within 180 days, the challenge involving RD, FRD, or TFNI may be appealed to the Director, Office of Classification. (i) In the case of FRD and RD related primarily to the military utilization of nuclear weapons, the Director, Office of Classification, coordinates with the appropriate DoD official (as specified in DoD Instruction 5210.02 or subsequent instructions). (ii) In the case of TFNI, the Director, Office of Classification, coordinates with DNI. (5) If the response to the initial appeal and its justification for classification does not satisfy the person making the challenge, a further appeal may be made to the Director, Office of Environment, Health, Safety and Security, EHSS-1/Forrestal Building, U.S. Department of Energy, 1000 Independence Avenue SW, Washington, DC 20585. (d) Agency responses to RD or TFNI challenges are limited to interpreting the application of guidance to derivatively classify matter. Except for DoD, agency responses to FRD are limited to interpreting the application of guidance to derivatively classify matter. An agency may coordinate challenges regarding interpreting guidance for RD or TFNI with DOE, and may coordinate challenges regarding interpreting guidance for FRD with DOE or DoD. (e) Agencies must forward challenges that require decisions other than interpreting the application of guidance (e.g., challenges to guide topics) to the Director, Office of Classification.

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