§ 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.