[Code of Federal Regulations]
[Title 10, Volume 4]
[Revised as of January 1, 2006]
From the U.S. Government Printing Office via GPO Access
[CITE: 10CFR1004.8]

[Page 721-722]
 
                            TITLE 10--ENERGY
 
          CHAPTER X--DEPARTMENT OF ENERGY (GENERAL PROVISIONS)
 
PART 1004_FREEDOM OF INFORMATION--Table of Contents
 
Sec. 1004.8  Appeal of initial denials.

    (a) Appeal to Office of Hearings and Appeals. When the Authorizing 
Official has denied a request for records in whole or in part or has 
responded that there are no documents responsive to the request 
consistent with Sec. 1004.4(d), or when the Freedom of Information 
Officer has denied a request for waiver of fees consistent with Sec. 
1004.9, the requester may, within 30 calendar days of its receipt, 
appeal the determination to the Office of Hearings and Appeals.
    (b) Elements of appeal. The appeal must be in writing, addressed to 
the Director, Office of Hearings and Appeals, Department of Energy, 1000 
Independence Avenue SW., Washington, DC 20585 and both the envelope and 
letter must be clearly marked ``Freedom of Information Appeal.'' The 
appeal must contain a concise statement of grounds upon which it is 
brought and a description of the relief sought. It should also include a 
discussion of all relevant authorities, including, but not limited to, 
DOE (and predecessor agencies) rulings, regulations, interpretations and 
decisions on appeals and any judicial determinations being relied upon 
to support the appeal. A copy of the letter containing the determination 
which is being appealed, must be submitted with the appeal.
    (c) Receipt of appeal. An appeal will be considered to be received 
for purposes of 5 U.S.C. 552(a)(6) upon receipt by the appeal authority. 
Documents delivered after regular business hours of the Office of 
Hearings and Appeals are considerd received on the next regular business 
day.
    (d) Action within 20 working days. (1) The appeal authority will act 
upon the appeal within 20 working days of its receipt, except that if 
unusual circumstances (as defined in Sec. 1004.5(d)(2)) require an 
extension of time before a decision on a request can be reached, the 
appeal authority may extend the time for final action for an additional 
10 working days less the number of days of any statutory extension which 
may have been taken by the Authorizing Official during the period of 
initial determination.
    (2) The requester must be promptly notified in writing of the 
extension, setting forth the reasons for the extension, and the date on 
which a determination is expected to be issued.
    (3) If no determination on the appeal has been issued at the end of 
the 20-day period or the last extension thereof, the requester may 
consider his administrative remedies to be exhausted and seek a review 
in a district court of the United States as specified in 5 U.S.C. 
552(a)(4). When no determination can be issued within the applicable 
time limit, the appeal will nevertheless continue to be processed; on 
expiration of the time limit the requester will be informed of the 
reason for the delay, of the date on which a determination may be 
expected to be issued, and of his right to seek judicial review in the 
United States district court in the district in which he resides or has 
his principal place of business, the district in which the records are 
situated, or the District of Columbia. The requester may be asked to 
forego judicial review until determination of the appeal.
    (4) Nothing in this part will preclude the appeal authority and a 
requester from agreeing to an extension of time for the decision on an 
appeal. Any such agreement will be confirmed in writing by the appeal 
authority and will clearly specify the total time agreed upon for the 
appeal decision.
    (e) Form of action on appeal. The appeal authority's action on an 
appeal will be in writing and will set forth the reason for the 
decision. It will also contain a statement that it constitutes final 
agency action on the request and that judicial review will be available 
either in the district in which the requester resides or has a principal 
place of business, the district in which the records are situated, or in 
the District

[[Page 722]]

of Columbia. Documents determined by the appeal authority to be 
documents subject to release will be made promptly available to the 
requester upon payment of any applicable fees.
    (f) Classified records and records covered by section 148 of the 
Atomic Energy Act. The Secretary of Energy or his designee will make the 
final determination concerning appeals involving the denial of requests 
for classified information or the denial of requests for information 
falling within the scope of section 148 of the Atomic Energy Act of 
1954, as amended (42 U.S.C. 2168).