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

Title 10Chapter XPart 1045 → Subpart E


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


Contents
§1045.170   What is the purpose of this subpart?
§1045.175   How must agencies process FOIA and MDR requests for matter that is marked as or potentially contains 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?

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§1045.170   What is the purpose of this subpart?

This subpart contains requirements that apply when Federal agencies other than DOE receive FOIA or MDR requests for matter that is marked as or potentially contains RD, FRD, or TFNI. RD, FRD, and TFNI are classified under the Atomic Energy Act and are not subject to the provisions governing MDR requests under E.O. 13526 or successor orders. To ensure RD, FRD, and TFNI are considered and appropriately reviewed when requested under a FOIA or MDR request, this section describes the process Federal agencies must follow for FOIA and MDR requests for matter that is marked as or potentially contains RD, FRD, or TFNI.

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§1045.175   How must agencies process FOIA and MDR requests for matter that is marked as or potentially contains RD, FRD, or TFNI?

(a) When an agency receives a FOIA or MDR request for which any responsive matter is marked as or potentially contains RD, FRD, or TFNI, the agency must forward the matter to the appropriate agency as follows:

(1) Forward any matter marked as or potentially containing RD or TFNI to the Director, Office of Classification or a DOE official granted authority by delegation, regulation, or DOE directive.

(2) Forward any matter originated by DOE and marked as or potentially containing FRD to either the Director, Office of Classification or a DOE official granted authority by delegation, regulation, or DOE directive. Forward any matter originated by DoD and marked as or potentially containing FRD to the appropriate DoD program (as specified in DoD Manual 5400.07, DoD Freedom of Information Act (FOIA) Program, subsequent manuals, or other applicable manuals). Matter not originated by DOE or DoD may be submitted to either agency as provided in this paragraph.

(b) DOE and DoD must coordinate the review of matter marked as or potentially containing RD and FRD, when appropriate. DOE and the DNI must coordinate the review of matter marked as or potentially containing TFNI, when appropriate.

(c) DOE, DoD, or the DNI may refuse to confirm or deny the existence or nonexistence of the requested matter whenever the fact of its existence or nonexistence is itself classified as RD, FRD, or TFNI.

(d) If the information contained in the requested matter has been reviewed for declassification within the past 2 years, another review need not be conducted, but instead the agency may inform the requester of this fact and of the results of the prior review decision.

(e) When paragraph (c) or (d) of this section do not apply, and the information requested under an MDR is not exempt under §1045.195, the appropriate DOE or DoD authority must conduct a line-by-line review of matter forwarded under paragraph (a) of this section; identify the information that is classified under current classification guidance as RD, FRD, or TFNI; and respond to the agency that forwarded the matter. The response to the agency who forwarded the request must identify the RD, FRD, or TFNI that is exempt from public release; provide the FOIA exemption or appropriate MDR notation for the RD, FRD, or TFNI withheld; identify the Denying Official for the RD, FRD, or TFNI withheld; and explain the applicable appeal procedures for a FOIA request identified in 10 CFR 1004.8 or for an MDR request identified in §1045.180.

(1) The Denying Officials are as follows:

(i) The Denying Official for matter containing RD or TFNI is the Director, Office of Classification.

(ii) The Denying Official for matter containing FRD is the Director, Office of Classification, or the appropriate DoD Component's Initial Denying Authority (as specified in applicable DoD manuals).

(iii) The Denying Official for Naval Nuclear Propulsion Information is the National Nuclear Security Administration (NNSA) Deputy Director, Deputy Administrator for Naval Reactors.

(f) Upon receipt of the response from DOE or DOD, the agency processing the initial request must inform the requester of the results of the review; provide the name of the Denying Official identified for any RD, FRD, or TFNI withheld; and advise the requester of his or her appeal rights concerning the RD, FRD, or TFNI.

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§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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