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e-CFR data is current as of January 15, 2021

Title 10Chapter XPart 1045Subpart E → §1045.180


Title 10: Energy
PART 1045—NUCLEAR CLASSIFICATION AND DECLASSIFICATION
Subpart E—Government-Wide Procedures for Handling Freedom of Information Act (FOIA) and Mandatory Declassification Review (MDR) Requests for Matter Marked as or Potentially Containing RD, FRD, or TFNI


§1045.180   What is the procedure if an agency receives an appeal to a FOIA or MDR concerning the denial of RD, FRD, or TFNI?

(a) If an agency receives a FOIA appeal for RD, FRD, or TFNI denied by DOE within 90 days of receipt of the denial and as required under 10 CFR 1004.8, the appeal must be submitted to the DOE Director, Office of Hearings and Appeals. If an agency receives a FOIA appeal for FRD denied by DoD, it must be submitted to DoD in accordance with applicable DoD FOIA regulations or instructions.

(b) Appeals of an MDR response when DOE denied RD, FRD, or TFNI may be submitted to the agency that replied to the initial MDR request or directly to DOE.

(1) When an MDR appeal concerning DOE-withheld RD, FRD, or TFNI is sent to the agency that replied to the initial MDR request, the appeal must be received by the agency who replied to the initial request within 60 days of receipt of the denial and contain the information required under §1045.210(b). The agency must forward the appeal to the Associate Under Secretary of Environment, Health, Safety and Security at the following address: Associate Under Secretary for Environment, Health, Safety and Security, AU-1/Forrestal Building, U.S. Department of Energy, 1000 Independence Avenue SW, Washington, DC 20585.

(2) When sent directly to DOE, an MDR appeal must be received by the Associate Under Secretary for Environment, Health, Safety and Security within 60 days of the denial and contain the information required under §1045.210(b).

(3) MDR appeals received by DOE are processed consistent with §1045.220.

(c) If an agency receives an MDR appeal for FRD withheld by DoD, the agency must submit the appeal to the appropriate DoD Component as identified in applicable DoD manuals.

(d) MDR Final Appeal: The classification and declassification of RD, FRD, and TFNI is governed by the AEA and this part and is not subject to E.O. 13526 or successor orders. Therefore, MDR appeal decisions by the Associate Under Secretary for Environment, Health, Safety and Security, for RD, FRD, and TFNI and MDR appeal decisions by the appropriate DoD Component appellate authority for FRD are final agency decisions and are not subject to review by ISCAP. However, if matter containing RD, FRD, or TFNI also contains NSI, the NSI portions may be appealed to the ISCAP. Prior to submission to ISCAP, the RD, FRD, or TFNI portions must be deleted.

(e) The FOIA and MDR appeal authorities for RD, FRD, or TFNI are as follows:

(1) The appeal authority for RD and TFNI is the Associate Under Secretary for Environment, Health, Safety and Security.

(2) The appeal authority for FRD is the Associate Under Secretary for Environment, Health, Safety and Security or the appropriate DoD Component appellate authority.

(3) The appeal authority for Naval Nuclear Propulsion Information is the NNSA Deputy Administrator for Naval Reactors.

(f) Declassification proposals resulting from appeal reviews: The appeal review of RD, FRD, and TFNI withheld from a requester is based on current classification guidance. However, as part of the appeal review, the withheld information must be reviewed to determine if it may be a candidate for possible declassification. If declassification of the information appears to be appropriate, then a declassification proposal must be initiated, and the requester must be advised that additional information will be available if the declassification proposal is approved.

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