10 C.F.R. Subpart B—Identification of Restricted Data and Formerly Restricted Data Information
Title 10 - Energy
(a) This subpart implements sections 141 and 142 (42 U.S.C. 2161 and 2162) of the Atomic Energy Act, which provide for Government-wide policies and procedures concerning the classification and declassification of RD and FRD information. (b) This subpart establishes procedures for classification prohibitions for RD and FRD, describes authorities and procedures for identifying RD and FRD information, and specifies the policies and criteria DOE shall use in determining if nuclear-related information is RD or FRD. This subpart applies to— (a) Any person with authorized access to RD or FRD; (b) Any agency with access to RD or FRD; and (c) Any person who might generate information determined to be RD or FRD. (a) The DOE Director of Declassification may determine whether nuclear-related information is RD. (b) Except as provided in paragraph (c) of this section, the DOE Director of Security Affairs may declassify RD information. (c) The DOE Director of Security Affairs, jointly with the DoD, may determine which information in the RD category relating primarily to the military utilization of nuclear weapons may be declassified or placed into the FRD category. (d) The DOE Director of Security Affairs jointly with the DoD may declassify FRD information. In no case shall information be classified RD or FRD in order to: (a) Conceal violations of law, inefficiency, or administrative error; (b) Prevent embarrassment to a person, organization, or Agency; (c) Restrain competition; (d) Prevent or delay the release of information that does not require protection for national security or nonproliferation reasons; (e) Unduly restrict dissemination by assigning an improper classification level; or (f) Prevent or delay the release of information bearing solely on the physical environment or public or worker health and safety. (a) Classification of Restricted Data—(1) Submission of Potential RD for Evaluation. Any authorized holder who believes he or she has information which may be RD shall submit it to an RD classifier for evaluation. The RD classifier shall follow the process described in this paragraph whenever he or she is unable to locate guidance in a classification guide that can be applied to the information. The RD classifier shall forward the information to the DOE Director of Declassification via their local classification or security office. The DOE Director of Declassification shall determine whether the information is RD within 90 days of receipt by doing the following: (i) Determine whether the information is already classified RD under current classification guidance; or (ii) If it is not already classified, determine if the 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 (A) Apply the criteria in §1045.16 and §1045.17 as the basis for determining the appropriate classification; and (B) Provide notification of the decision by revising applicable classification guides, if appropriate. (2) Protection of Potential RD during Evaluation. Pending a determination by the DOE Director of Declassification, potential RD submitted for evaluation by authorized holders shall be protected at a minimum as Confidential Restricted Data. (b) Declassification of Restricted Data. The DOE Director of Security Affairs shall apply the criteria in §1045.16 when determining whether RD may be declassified. (c) Classification of Formerly Restricted Data. The DOE Director of Security Affairs, jointly with the DoD, shall remove information which relates primarily to the military utilization of nuclear weapons from the RD classification category and classify it as FRD. (d) Declassification of Formerly Restricted Data. The DOE Director of Security Affairs, jointly with the DoD, shall apply the criteria in §1045.16 when determining whether FRD may be declassified. (a) The DOE Directors of Declassification and Security Affairs shall consider the presumptions listed in paragraphs (d) and (e) of this section before applying the criteria in §1045.16. (b) Not all areas of nuclear-related information are covered by the presumptions. (c) In general, existing information listed in paragraphs (d) and (e) of this section has the classification status 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. (d) The DOE Directors of Declassification and Security Affairs shall presume that information in the following areas is unclassified unless application of the criteria in §1045.16 indicates otherwise: (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 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 size 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. (e) The DOE Directors of Declassification and Security Affairs shall presume that information in the following areas is classified unless the application of the criteria in §1045.16 indicates otherwise: (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 the 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. (a) The DOE Director of Declassification shall classify information as RD and the DOE Director of Security Affairs shall maintain the classification of RD (and FRD in coordination with the DoD) only if undue risk of damage to the common defense and security from its unauthorized disclosure can be identified and described. (b) The DOE Director of Declassification shall not classify information and the DOE Director of Security Affairs shall declassify information if there is significant doubt about the need to classify the information. (c) The DOE Directors of Declassification and Security Affairs shall consider the presumptions in §1045.15 (d) and (e) before applying the criteria in paragraph (d) of this section. (d) In determining whether information should be classified or declassified, the DOE Directors of Declassification and Security Affairs shall consider the following: (1) Whether the information is so widely known or readily apparent to knowledgeable observers that its classification would cast doubt on the credibility of the classification system; (2) Whether publication of the information would assist in the development of countermeasures or otherwise jeopardize any U.S. weapon or weapon system; (3) 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; (4) Whether publication of the information would have a detrimental effect on U.S. foreign relations; (5) 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, 6) Whether publication of the information would benefit the operation of any Government program by reducing operating costs or improving public acceptance. (a) Restricted Data. The DOE Director of Declassification shall assign one of the following classification levels to RD information to reflect the sensitivity of the information to the national security. The greater the damage expected from unauthorized disclosure, the higher the classification level assigned to the information. (1) Top Secret. The DOE Director of Declassification shall classify RD information Top Secret if it is vital to the national security and if its unauthorized disclosure could reasonably be expected to cause exceptionally grave damage to the national security. Examples of RD information that warrant Top Secret classification include detailed technical descriptions of critical features of a nuclear explosive design that would enable a proliferant or nuclear power to build or substantially improve a nuclear weapon, information that would make possible the unauthorized use of a U.S. nuclear weapon, or information revealing catastrophic failure or operational vulnerability in a U.S. nuclear weapon. (2) Secret. The DOE Director of Declassification shall classify RD information as Secret if its unauthorized disclosure could reasonably be expected to cause serious damage to the national security, but the RD information is not sufficiently comprehensive to warrant designation as Top Secret. Examples of RD information that warrant Secret classification include designs for specific weapon components (not revealing critical features), key features of uranium enrichment technologies, or specifications of weapon materials. (3) Confidential. The DOE Director of Declassification shall classify RD information as Confidential if it is deemed to be of significant use to a potential adversary or nuclear proliferant and its unauthorized disclosure could reasonably be expected to cause undue risk to the common defense and security. Examples of RD information that warrant Confidential classification are the amount of high explosives used in nuclear weapons, gaseous diffusion design information, and design information for Naval reactors. (b) Formerly Restricted Data. The DOE Director of Declassification, jointly with the DoD, shall assign one of the classification levels in paragraph (a) of this section to FRD information to reflect its sensitivity to the national security. (a) The DOE Director of Declassification may evaluate newly generated specific information in a previously declassified subject area using the criteria in section 1045.16 and classify it as RD, if warranted. (b) The DOE Director of Declassification shall not classify the information in such cases if it is widely disseminated in the public domain. (a) Whenever a classification or declassification determination concerning RD or FRD information is made, the DOE Directors of Declassification and Security Affairs shall be able to justify the determination. For FRD and RD primarily related to military utilization, the DOE Directors of Declassification and Security Affairs shall coordinate the determination and justification with the DoD. If the determination involves a departure from the presumptions in §1045.15, the justification shall include a rationale for the departure. Often the justification itself will contain RD or FRD information. In such a case, the DOE Directors of Declassification and Security Affairs shall ensure that a separate justification can be prepared which is publicly releasable. The publicly releasable justification shall be made available to any interested person upon request to the DOE Director of Declassification. (b) The DOE Director of Declassification shall prepare a report on an annual basis on the implementation of this part. This report shall be available to any interested person upon request to the DOE Director of Declassification. Requests may be submitted to the Department of Energy, Director of Declassification, 19901 Germantown Road, Germantown, Maryland 20874–1290. The DOE Director of Security Affairs shall consider proposals from the public or agencies or contractors for declassification of RD and FRD information on an ongoing basis. Declassification proposals for RD and FRD information shall be forwarded to the Department of Energy, Director of Security Affairs, 1000 Independence Avenue SW, Washington, DC 20585. Any proposed action shall include a description of the information concerned and may include a reason for the request. DOE and DoD shall coordinate with one another concerning declassification proposals for FRD information. (a) DOE may classify RD which is privately generated by persons not pursuant to Government contracts, in accordance with the Atomic Energy Act. (b) In order for information privately generated by persons to be classified as RD, the Secretary or Deputy Secretary shall make the determination personally and in writing. This authority shall not be delegated. (c) DOE shall publish a (a) Authorized holders of RD and FRD shall not confirm or expand upon the classification status or technical accuracy of classified information in the public domain. (b) Unauthorized disclosure of classified information does not automatically result in the declassification of that information. (c) If the disclosure of classified information is sufficiently authoritative or credible, the DOE Director of Security Affairs shall examine the possibility of declassification.
Title 10: Energy
PART 1045—NUCLEAR CLASSIFICATION AND DECLASSIFICATION
Subpart B—Identification of Restricted Data and Formerly Restricted Data Information
§ 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.
