Specific Procedures for MDR Requests

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

10 C.F.R. § 1045.185 What is the purpose of this subpart?

This subpart describes the process for MDR requests submitted for DOE matter classified under E.O. 13526 or successor orders, and the Atomic Energy Act.

10 C.F.R. § 1045.190 How does the public submit an MDR for DOE classified matter?

(a) DOE matter marked as containing NSI, RD, FRD, or TFNI is subject to review for declassification by DOE if the request for a declassification review describes the matter containing the information with sufficient specificity to enable DOE to locate it with a reasonable amount of effort. (b) The request must be sent to the Director, Office of Classification, EHSS-60/Germantown Building, U.S. Department of Energy, 1000 Independence Avenue SW, Washington, DC 20585.

10 C.F.R. § 1045.195 Is any matter exempt from MDR requests?

(a) MDR requests are not accepted for: (1) Matter containing RD technical engineering, blueprints, and design regarding nuclear weapons, if they contain no NSI. (2) Matter required to be submitted for prepublication review or other administrative process pursuant to an approved nondisclosure agreement; (3) Matter that is the subject of pending litigation; or (4) Any matter contained within an operational file exempted from search and review, publication, and disclosure under the FOIA in accordance with law. (b) Current Presidential records as described in section 3.5(b) of E.O. 13526 or successor orders that are in the custody of DOE are exempt from release in response to an MDR request.

10 C.F.R. § 1045.200 Is there a cost for an MDR review?

Yes. The fees, including waivers, reductions, and categorizations, are the same for an MDR as for providing records under the FOIA as defined in 10 CFR 1004.9.

10 C.F.R. § 1045.205 How does DOE conduct an MDR review?

(a) If DOE has reviewed the information contained in the requested matter for declassification within the past 2 years, DOE need not conduct another review. DOE may instead inform the requester of this fact and of the prior review decision, as well as advise the requester of his or her appeal rights as provided in § 1045.210. (b) DOE performs an MDR as follows: (1) Conducts a line-by-line review of the matter; (2) Coordinates the review with appropriate programs and agencies, as necessary; (3) Identifies and withholds any information that meets the standards for classification; (4) Declassifies any NSI that no longer meets the standards for classification under E.O. 13526 or successor orders and any RD, FRD, or TFNI that no longer meets the standards for classification under this part; (5) If the matter also contains unclassified information that is potentially exempt from release under the FOIA, the matter is further processed to ensure unclassified information that is exempt from public release is identified and that the appropriate officials responsible for denying any unclassified portion of the matter are provided and listed with the notice of denial. (6) Upon completion of the review, releases the matter to the requester unless withholding is authorized by law. If NSI, RD, FRD, or TFNI, is withheld, the response must advise the requester of his or her appeal rights under § 1045.210.

10 C.F.R. § 1045.210 How does a person submit an appeal if DOE withholds classified information in an MDR response?

(a) When the Director, Office of Classification, denies NSI, RD, FRD, or TFNI, or the NNSA Deputy Director, Deputy Administrator for Naval Reactors, denies Naval Nuclear Propulsion information, in matter requested under an MDR, the requester may appeal the determination to the Director, Office of Environment, Health, Safety and Security. The appeal must be received within 60 days of the receipt of the denial. (b) The appeal must be in writing and submitted 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. The appeal: (1) Must contain a concise statement of grounds upon which it is brought, and a description of the relief sought. (2) Must include a copy of the letter containing the determination being appealed. (3) Should include a discussion of all relevant authorities that include but are not limited to DOE (and predecessor agencies) rulings, regulations, interpretations, and decisions on appeals, as well as any judicial determinations being relied upon to support the appeal.

10 C.F.R. § 1045.215 How does DOE process an MDR appeal for DOE matter containing NSI?

An appeal for NSI requested under the provisions of E.O. 13526 or successor orders is processed as follows: (a) The Director, Office of Environment, Health, Safety and Security must act upon the appeal within 60 working days of its receipt. If no determination on the appeal has been issued at the end of this 60-day period, the requester may consider his or her administrative remedies to be exhausted and may seek a review by the ISCAP. When no determination can be issued within the applicable time limit, the appeal must nevertheless continue to be processed. On expiration of the time limit, DOE must inform the requester of the reason for the delay, of the date on which a determination may be expected to be issued, and of the requester's right to seek further review by the ISCAP. Nothing in this subpart precludes the appeal authority and the requester from agreeing to an extension of time for the decision on an appeal. The Director, Office of Environment, Health, Safety and Security must confirm any such agreement in writing and clearly specify the total time agreed upon for the appeal decision. (b) The Director, Office of Environment, Health, Safety and Security's action on an appeal must be in writing and set forth the reason for the decision. DOE may refuse to confirm or deny the existence or nonexistence of requested information whenever the fact of its existence or nonexistence is itself classified under E.O. 13526 or successor orders. (c) The requester has the right to appeal a final DOE decision, or a failure to provide a determination on an appeal within the allotted time, to the ISCAP for those appeals dealing with NSI. In cases where NSI documents also contain RD, FRD, or TFNI, the portions of the document containing RD, FRD, or TFNI must be deleted prior to forwarding the NSI and unclassified portions to the ISCAP for review.

10 C.F.R. § 1045.220 How does DOE process an MDR appeal for matter containing RD, FRD, or TFNI?

(a) Final appeals for DOE matter containing RD, FRD, or TFNI are submitted to the Director, Office of Environment, Health, Safety and Security. The Director, Office of Environment, Health, Safety and Security will coordinate appeals concerning Naval Nuclear Propulsion Information with the NNSA Deputy Administrator for Naval Reactors. (b) 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, appeal decisions concerning RD, FRD, or TFNI by the Director, Office of Environment, Health, Safety and Security, or the NNSA Deputy Administrator for Naval Reactors are not subject to review by ISCAP.

10 C.F.R. § 1045.225 Are DOE responses to MDR requests available to the public?

Yes. Once the classified and unclassified information exempt from public release is redacted, DOE responses to MDR requests, as well as FOIA requests for matter containing classified information, are posted on DOE's OpenNet System at: https://www.osti.gov/opennet/.

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