[Federal Register Volume 72, Number 178 (Friday, September 14, 2007)]
[Proposed Rules]
[Pages 52506-52519]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-18052]


-----------------------------------------------------------------------

DEPARTMENT OF ENERGY

10 CFR Part 1017

RIN 1992-AA35


Identification and Protection of Unclassified Controlled Nuclear 
Information

AGENCY: Office of Health, Safety and Security, Department of Energy.

ACTION: Notice of proposed rulemaking and public hearing.

-----------------------------------------------------------------------

SUMMARY: The Department of Energy (DOE) proposes to amend regulations 
that prohibit the unauthorized dissemination of certain unclassified 
but sensitive information identified as Unclassified Controlled Nuclear 
Information (UCNI). DOE is amending these regulations to clarify the 
types of information that may be identified as UCNI to prevent overly-
broad application of UCNI controls and to streamline the UCNI program 
by simplifying the process for identifying information as UCNI.

DATES: Written comments (7 copies) may be submitted on or before 
November 13, 2007. A public hearing will be held in Washington, DC, on 
October 29, 2007. Requests to speak at the hearing must be received by 
October 22, 2007.

ADDRESSES: You may submit comments and requests to speak at the 
hearing, identified by RIN 1992-AA35, by any of the following methods:
    Federal eRulemaking Portal: http://www.regulations.gov. Follow the 
instructions for submitting comments.
    E-mail: [email protected]. Include RIN 1992-AA35 in the subject 
line of the message.
    Fax: (301) 903-1230.
    Mail: Emily A. Puhl, Department of Energy, Office of 
Classification, HS-91/Germantown Building, 1000 Independence Ave., SW., 
Washington, DC 20585-1290.
    A public hearing will be held on October 29, 2007, from 9:30 a.m. 
until 11:30 a.m. at the U.S. Department of Energy, 1000 Independence 
Ave., SW., Washington, DC, room GJ-015.
    All submissions must include the agency name for this rulemaking. 
For detailed instructions on submitting comments and additional 
information on the rulemaking process, see the ``Public Comment 
Procedures'' heading of the SUPPLEMENTARY INFORMATION section of this 
document. Electronic submissions are encouraged.

FOR FURTHER INFORMATION CONTACT: Nicholas G. Prospero, Office of 
Classification, U.S. Department of Energy, 1000 Independence Ave., SW., 
Washington, DC 20585-1290, (301) 903-9967; Jo Ann Williams, Office of 
the General Counsel, U.S. Department of Energy, 1000 Independence Ave., 
SW., Washington, DC 20585, (202) 586-6899.

SUPPLEMENTARY INFORMATION: 

I. Background
II. Description of Proposed Changes
III. Procedural Requirements
    A. Review Under Executive Order 12866
    B. Review Under the Regulatory Flexibility Act
    C. Review Under the Paperwork Reduction Act
    D. Review Under the National Environmental Policy Act
    E. Review Under Executive Order 13132
    F. Review Under Executive Order 12988
    G. Review Under the Unfunded Mandates Reform Act of 1995
    H. Review Under the Treasury and General Government 
Appropriations Act, 1999
    I. Review Under the Treasury and General Government 
Appropriations Act, 2001

[[Page 52507]]

    J. Review Under Executive Order 13211
IV. Public Comment Procedures
    A. Written Comments
    B. Public Hearing
V. Approval of the Office of the Secretary

I. Background

    Under the Atomic Energy Act of 1954 (42 U.S.C. 2011 et seq.), DOE 
is charged with the operation of programs for: (1) Research, 
development, testing, and production of nuclear weapons; (2) nuclear 
material production for defense activities; and, (3) certain defense 
related nuclear reactors. In 1981, Congress and DOE became increasingly 
concerned about the possibility of terrorist or other criminal acts 
directed against a Government nuclear defense activity. This concern 
was based, in part, on the increased incidence of acts of terrorist-
inspired violence, the increased sophistication of these acts, and the 
increased availability of the technological resources, including 
information in the public domain, necessary to commit these acts.
    In response to this threat, Congress, in 1982, amended the Atomic 
Energy Act of 1954 (hereafter ``the Act'') by adding section 148 
(``Prohibition Against the Dissemination of Certain Unclassified 
Information''), which directed DOE to adopt regulations to safeguard 
certain types of unclassified but sensitive information from 
unauthorized dissemination in the interest of protecting both the 
health and safety of the public and the common defense and security of 
the Nation. Congress recognized that while much information concerning 
atomic energy defense programs was classified, a new statutory 
provision was necessary to protect certain sensitive information that 
could not be classified under statute or executive order for 
operational or legal reasons.
    Section 148 was not without precedent. In 1980, the Congress 
amended the Act to add section 147. Section 147 of the Act requires the 
Nuclear Regulatory Commission to prohibit the unauthorized disclosure 
of Safeguards Information, which includes a licensee's or applicant's 
procedures and security measures for the protection of special nuclear 
material, source material, or byproduct material. Under section 147, 
Safeguards Information also includes security measures for the 
protection of and location of certain plant equipment vital to the 
safety of production or utilization facilities. The major purpose of 
section 148 is to require DOE to control similar sensitive information 
about its atomic energy defense programs as section 147 protects with 
respect to commercial and other non-DOE nuclear facilities.
    Section 148 directs the Secretary of Energy (the Secretary) to 
prescribe regulations, after notice and opportunity for public comment, 
or issue orders as may be necessary to prohibit the unauthorized 
dissemination of certain unclassified information concerning atomic 
energy defense programs. This information must pertain to the 
following:
    1. The design of production or utilization facilities;
    2. Security measures (including security plans, procedures, and 
equipment) for the physical protection of (a) production or utilization 
facilities or (b) nuclear material, regardless of its physical state or 
form, contained in these facilities or in transit; or,
    3. The design, manufacture, or utilization of nuclear weapons or 
components that were once classified as Restricted Data, as defined in 
section 11y. of the Act.
    In order for the information in the above categories to be 
controlled under section 148, the Secretary must determine that the 
unauthorized dissemination of such information could reasonably be 
expected to have a significant adverse effect on the health and safety 
of the public or the common defense and security by significantly 
increasing the likelihood of: (1) The illegal production of nuclear 
weapons, or (2) the theft, diversion, or sabotage of nuclear materials, 
equipment, or facilities.
    UCNI only includes Government information that: (1) Is not 
classified; (2) concerns atomic energy defense programs; (3) falls 
within at least one of the three categories described above; (4) meets 
the adverse effect test described above; and (5) is not exempt from 
being UCNI under these regulations.

II. Description of Proposed Changes

    The intent of this proposed rule is to describe more precisely the 
information that may be identified as UCNI. Section II.A. of this 
preamble describes new definitions intended to more clearly define the 
kind of information that may be identified as UCNI. Section II.B. 
discusses proposed changes intended to simplify and to streamline the 
UCNI program based on experience gained in the program to date. Section 
II.C. briefly describes a number of conforming technical changes.

A. Amendments To Clarify Information That May Be Identified as UCNI

1. New Definitions: ``Production Facility'' and ``Utilization 
Facility''
    DOE proposes to add definitions of ``production facility'' and 
``utilization facility'' to define more precisely the types of 
information that may be identified as UCNI. These definitions are based 
on sections 11.v. and 11.cc., respectively, of the Act, and include 
lists of specific categories of equipment and devices that are subject 
to UCNI controls. These proposed lists are definitive; no additions may 
be made to them except through the process for amending these 
regulations. The inclusion of these more precise definitions of 
``production facility'' and ``utilization facility'' would clarify what 
information may be identified as UCNI. DOE emphasizes that the proposed 
definitions of ``production facility'' and ``utilization facility'' are 
intended to only apply to these proposed regulations and do not 
constitute a more general interpretation of these statutory terms.
    The key to determining that a facility is a production or 
utilization facility for purposes of these proposed regulations is 
establishing whether the facility ever produced (in the case of a 
production facility) or ever used (in the case of a utilization 
facility) ``special nuclear material'' as defined in section 11.aa. of 
the Act. Production facilities include uranium enrichment activities 
and plutonium production reactors since both produce special nuclear 
material. Conversely, tritium production reactors are not considered 
production facilities because tritium is not a ``special nuclear 
material.'' However, tritium production reactors are considered 
utilization facilities because they use special nuclear material to 
make tritium. Similarly, weapons plants, such as DOE's Pantex Plant, 
that make use of special nuclear material to produce nuclear weapons or 
components are examples of utilization facilities. In contrast, weapons 
plants that do not make use of special nuclear material in producing 
nuclear weapons or components, such as the Kansas City Plant, which 
makes nonnuclear electronic and mechanical components, are not 
considered utilization facilities. In addition, special nuclear 
material storage facilities are not considered to be utilization 
facilities since storage is not considered use. Therefore, facilities 
such as the Yucca Mountain waste repository and the Waste Isolation 
Pilot Plant are not considered utilization facilities, and UCNI 
controls cannot apply to them.

[[Page 52508]]

    The fact that a facility meets the definition of production or 
utilization facility does not mean that all information about the 
facility is automatically treated as UCNI. All of the criteria in 
proposed Sec.  1017.7 must also be met for information to be identified 
as UCNI.
2. Simplification of ``Adverse Effect Test''
    In order for information to be identified as UCNI, it must meet the 
``adverse effect test'' described in section 148.a.(2) of the Act and 
the current regulations in Sec.  1017.9. DOE is proposing to add two 
new definitions to the regulations (see proposed Sec.  1017.4) that 
simplify the ``adverse effect test'' in order to reduce ambiguities in 
the UCNI determination process. The terms are ``essential technology-
related information'' and ``exploitable security-related information.'' 
``Essential technology-related information'' means technical 
information the unauthorized dissemination of which could significantly 
increase the likelihood of the illegal production of a nuclear weapon. 
``Exploitable security-related information'' means information whose 
unauthorized dissemination could significantly increase the likelihood 
of the theft, diversion, or sabotage of nuclear material, equipment, or 
facilities. If information is not covered by one of these definitions, 
it cannot be identified as UCNI because it fails to meet the ``adverse 
effect test.'' Experience gained in implementing the UCNI program for 
over 20 years has convinced DOE that the proposed new definitions will 
eliminate ambiguities and promote consistency in application of the 
statutory criteria.
3. Clarification of the Concept of ``Widely Disseminated in the Public 
Domain''
    DOE proposes to clarify the concept of ``widely disseminated in the 
public domain.'' In Sec.  1017.6(b)(2) of the current regulations, a 
document that has been at any time ``widely disseminated in the public 
domain'' cannot be protected as UCNI. The intent of this language was 
to make clear that documents that were not only widely disseminated in 
the past, but also are currently available in the public domain cannot 
be protected as UCNI. However, the concept of ``widely disseminated in 
the public domain'' was not intended to apply to documents that were 
disseminated in the past but are no longer available. A document that 
cannot be located during a reasonable search is not considered ``widely 
disseminated in the public domain'' and is eligible to be protected as 
UCNI today. For example, a report sent to a university library in 1960 
that cannot be located today at the university library or anywhere else 
would not be ``widely disseminated in the public domain.'' Therefore, 
copies of the report held by DOE may be protected as UCNI.
    DOE proposes to address the concept of ``widely disseminated in the 
public domain'' in a new section, proposed Sec.  1017.15 (``Review 
Process''), which is intended to further clarify the concept by 
describing more clearly the process for reviewing documents or material 
for UCNI in order to minimize the likelihood of UCNI controls being 
erroneously applied.
4. Revised Definition for ``Atomic Energy Defense Programs''
    DOE proposes to revise the definition of ``atomic energy defense 
programs'' (see proposed Sec.  1017.4) to more clearly reflect the 
statute's intent to include not only Government activities, equipment, 
and facilities currently engaged in support of (1) Developing, 
producing, testing, sampling, maintaining, repairing, modifying, 
assembling or disassembling, using, transporting, or retiring nuclear 
weapons or components of nuclear weapons, or (2) producing, using, or 
transporting nuclear material that could be used in nuclear weapons or 
military-related utilization facilities, but also those activities, 
equipment, and facilities that are capable of performing these 
activities. This amendment is necessary to protect nuclear defense 
activities, equipment, and facilities that are not currently being 
conducted or used by the U.S. Government to support nuclear weapons or 
components development, but that were once conducted or used in support 
of such programs and that could be conducted or used again in the 
future to support the national security. Information about activities, 
equipment, and facilities relating to programs that are no longer 
active clearly may represent a national security risk and, if so, 
should be protected as UCNI. For example, gaseous diffusion technology 
is not currently being used to enrich uranium for nuclear weapons 
production, yet the activities, equipment, and facilities previously 
involved with this technology remain sensitive because of their 
potential for misuse by proliferants or terrorists.
    In addition, we are proposing to delete one part (subparagraph (3)) 
of the definition of ``atomic energy defense programs'' that concerns 
the ``safeguarding of activities, equipment, or facilities which 
support the functions in paragraphs (b)(1) and (b)(2) of this section, 
including the protection of nuclear weapons, components of nuclear 
weapons, or nuclear material for military applications at a fixed 
facility or in transit.'' DOE is proposing to delete this subparagraph 
to clarify the original intent of the definition in these regulations. 
In order for security measures to be identified as UCNI, they must 
pertain to the physical protection of production or utilization 
facilities, nuclear material contained in these facilities, or nuclear 
material in transit. In other words, the security measures must pertain 
to nuclear material. Because subparagraph (3) does not include this 
``nuclear material'' limitation, it does not express the original 
intent of the definition, and we are therefore proposing to delete it.
5. Clarification of Materials That Can Be Determined To Be ``Nuclear 
Material''
    DOE proposes to clarify what materials other than byproduct, 
source, or special nuclear material can be determined to be ``nuclear 
material.'' Under Sec.  1017.10(a)(2)(i) of the current regulations, 
the Secretary may determine that specific material that ``could be used 
as a hazardous environmental contaminant'' is within the scope of the 
term ``nuclear material.'' DOE is proposing to revise this paragraph to 
state ``could be used as a hazardous, radioactive environmental 
contaminant'' in order to clarify the intent of this section. Adding 
``radioactive'' would ensure that only materials capable of releasing 
hazardous radioactivity could be determined to be ``nuclear material.''

B. Changes Made To Simplify and Streamline the UCNI Program

1. Designated Officials
    DOE proposes to delete the position of ``Controlling Official'' 
described in the current regulations in Sec.  1017.3(e) and Sec.  
1017.7(a) to simplify the UCNI review process by removing a concept 
that has often led to confusion and uncertainty. In the current 
regulations, the Controlling Official is responsible for applying 
control criteria (i.e., the adverse effect test) to information and 
using the results of the ``test'' to develop UCNI guidance, whereas the 
Reviewing Official is responsible for following instructions in UCNI 
guidance. This division in responsibilities has led to confusion in 
implementation over the past 20 years, with the most common error being 
that Reviewing Officials have attempted to apply the ``adverse effect 
test'' during review of a document rather than simply following 
instructions in UCNI guidance. Deleting the concept of Controlling 
Official

[[Page 52509]]

would limit the application of the ``adverse effect test'' to the 
Secretary or his or her designee, which would remove any confusion in 
roles and improve the UCNI review process.
    In addition, DOE proposes to amend the definition of Denying 
Official to include a reference to DOE's Freedom of Information Act 
regulations at 10 CFR part 1004. This amendment would clarify under 
what authority a Denying Official is empowered to withhold information 
from the public.
2. Routine Access
    DOE proposes to revise current Sec.  1017.16 to remove redundancies 
in the eligibility requirements for routine access to UCNI. No 
substantive changes would be made to this section.
3. Limited Access
    A definition of ``limited access'' is proposed to be added to 
proposed Sec.  1017.4. The same concept appears in the current 
regulations in Sec.  1017.16(b) but is identified as ``special access'' 
to UCNI. The new term more accurately conveys that this form of access 
has more restrictions than does routine access to UCNI.
4. Requesting a Deviation
    A new Sec.  1017.5 is proposed to establish a process for 
requesting a deviation for any requirements in these regulations.
5. Subject Areas Eligible To Be UCNI
    DOE proposes to revise Sec.  1017.8 to delete extraneous language; 
no substantive changes would be made.
6. Information Exempt From Being UCNI
    Current Sec.  1017.6, Exemptions, would be revised to delete 
exemptions that are redundant or that are no longer necessary. DOE 
proposes to delete existing Sec.  1017.6 subparagraphs (a)(1) (non-
Government information) and (a)(2) (non-atomic energy defense programs) 
because these exemptions are covered in the criteria for information to 
be identified as UCNI in proposed Sec.  1017.7. DOE proposes to delete 
Restricted Data, Formerly Restricted Data, and National Security 
Information from current Sec.  1017.6 subparagraph (a)(3) because these 
are categories of classified information and as such are excluded from 
being identified as UCNI because only unclassified information may be 
UCNI. DOE proposes to delete subparagraphs (a)(5), (a)(6), (a)(8), and 
(a)(10) of current Sec.  1017.6 because the proposed new definitions of 
``production facility'' and ``utilization facility'' provide explicit 
language that eliminates ambiguity in these exemptions.
7. Review Process for Documents
    Although the procedure for reviewing documents for UCNI would not 
substantively change, DOE is proposing to clarify the review process 
currently described in Sec.  1017.12 by adding a new Sec.  1017.15. The 
proposed language would emphasize that reviewing documents to identify 
UCNI begins with the Reviewing Official determining whether the 
document is ``widely disseminated in the public domain.'' This is an 
essential part of the review process because documents determined to be 
``widely disseminated in the public domain'' cannot be protected as 
UCNI. The current regulations do not explain this clearly. Proposed 
Sec.  1017.15 also contains a paragraph that exempts documents already 
in files from requiring review and clarifies how these documents are to 
be handled.
8. UCNI Markings on Documents or Material
    DOE proposes to revise Sec.  1017.15 to clarify the marking 
procedures for documents and material. Proposed Sec.  1017.16 would add 
a requirement for separate front markings and page markings. Proposed 
Sec.  1017.16 would also prohibit the marking of classified documents 
as UCNI. Finally, proposed Sec.  1017.16 would prohibit the use of the 
``May Contain UCNI'' marking. Although originally intended to protect 
documents that were likely to contain UCNI pending their transmittal to 
a Reviewing Official for a determination, a lack of understanding has 
led to widespread misuse of the stamp.
9. Determining That a Document or Material No Longer Contains or Does 
Not Contain UCNI
    DOE proposes to add a new Sec.  1017.17 to address how Reviewing 
and Denying Officials should handle documents or material that, after 
review, are determined no longer to contain or not to contain UCNI. A 
new stamp with the marking, ``Does Not Contain UCNI,'' is being 
proposed for use in these situations.
10. Enforcement of Civil Penalty Provisions
    DOE proposes to revise the civil penalty enforcement provisions in 
the current regulations to achieve greater consistency with procedures 
in other DOE civil penalty enforcement regimes, particularly those 
related to violations of classified information protection 
requirements. DOE issued ``Procedural Rules for the Assessment of Civil 
Penalties for Classified Information Security Violations'' (10 CFR part 
824) (70 F.R. 3599, January 26, 2005), to implement section 234B of the 
Act. To the extent appropriate, the procedures proposed today adopt the 
procedures in 10 CFR part 824.

C. Technical Changes

    DOE proposes a number of technical changes to the present 
regulations to reflect, among other matters, DOE organizational changes 
and minor changes in Federal Government procedures.

III. Procedural Requirements

A. Review Under Executive Order 12866

    Today's regulatory action has been determined not to be a 
``significant regulatory action'' under Executive Order 12866, 
``Regulatory Planning and Review,'' 58 FR 51735 (October 4, 1993). 
Accordingly, this notice of proposed rulemaking was not subject to 
review by OMB under the Executive Order.

B. Review Under the Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires 
preparation of an initial regulatory flexibility analysis for any rule 
that by law must be proposed for public comment, unless the agency 
certifies that the rule, if promulgated, will not have a significant 
economic impact on a substantial number of small entities. As required 
by Executive Order 13272, ``Proper Consideration of Small Entities in 
Agency Rulemaking'' (67 FR 53461, August 16, 2002), DOE published 
procedures and policies to ensure that the potential impacts of its 
draft rules on small entities are properly considered during the 
rulemaking process (68 FR 7990, February 19, 2003), and has made them 
available on the Office of the General Counsel's Web site: http://www.gc.doe.gov. DOE has reviewed today's proposed rule under the 
provisions of the Regulatory Flexibility Act and the procedures and 
policies published on February 19, 2003.
    Today's proposed rule would amend DOE's policies and procedures 
regarding UCNI. The rule, if promulgated, will apply to all agencies, 
persons, and entities that generate and maintain UCNI documents or 
material. The Department estimates that fewer than five Federal 
Government entities have access to UCNI documents or material. Each of 
these Government entities may, in turn, have contractors or consultants 
who have access to UCNI documents or material.

[[Page 52510]]

    Section 1017.14 would impose on Government and non-Government 
entities the requirement that persons who review documents for UCNI be 
properly trained and certified. The economic impact of the training 
requirement on non-Government entities would be limited to the labor 
hours required to familiarize those persons reviewing documents for 
UCNI with the training materials provided by DOE.
    Section 1017.16 would require that Government and non-Government 
Reviewing Officials clearly mark or authorize the marking of a new 
document or material to convey that it contains UCNI. The burden of the 
marking requirement would vary depending on the number of documents or 
amount of material the entity generates. DOE considers the proper 
marking of a controlled document to be an act integrated in the act of 
creating the document. As such, the marking of documents or material 
containing UCNI imposes minimal costs on the entity generating new UCNI 
documents or material.
    DOE recognizes that in most cases non-Government entities that 
generate documents or material containing UCNI will do so pursuant to a 
Government contract. In such cases, any costs incurred in compliance 
with these regulations will be charged back to the Government. 
Infrequently, DOE may enter into an agreement (e.g., a Cooperative 
Research and Development Agreement) with a non-Government entity in 
which DOE provides UCNI to the entity without any vehicle for 
reimbursement by the Government for increased security costs. However, 
since UCNI is protected in a manner similar to how a company protects 
proprietary or employees' personal information, the incremental cost of 
protecting UCNI would be negligible. In these cases, this rule would 
have only a minor economic impact on very few small entities.
    On the basis of the foregoing, DOE certifies that the proposed 
rule, if promulgated, would not have a significant economic impact on a 
substantial number of small entities. Accordingly, DOE has not prepared 
a regulatory flexibility analysis for this rulemaking.

C. Review Under the Paperwork Reduction Act

    No new information or record keeping requirements are imposed by 
this rulemaking. Accordingly, no OMB clearance is required under the 
Paperwork Reduction Act (44 U.S.C. 3501 et seq.).

D. Review Under the National Environmental Policy Act of 1969

    DOE has concluded that promulgation of this rule falls into a class 
of actions that would not individually or cumulatively have a 
significant impact on the human environment, as determined by DOE's 
regulations implementing the National Environmental Policy Act of 1969 
(42 U.S.C. 4321 et seq.). Specifically, this rule deals only with 
agency procedures and, therefore, is covered under the Categorical 
Exclusion in paragraph A6 to subpart D, 10 CFR part 1021. Accordingly, 
neither an environmental assessment nor an environmental impact 
statement is required.

E. Review Under Executive Order 13132

    Executive Order 13132, ``Federalism'' (64 FR 43255, August 4, 1999) 
imposes certain requirements on agencies formulating and implementing 
policies or regulations that preempt State law or that have federalism 
implications. Agencies are required to examine the constitutional and 
statutory authority supporting any action that would limit the 
policymaking discretion of the States and carefully assess the 
necessity for such actions. The Executive Order also requires agencies 
to have an accountable process to ensure meaningful and timely input by 
State and local officials in the development of regulatory policies 
that have federalism implications. On March 14, 2000, DOE published a 
statement of policy describing the intergovernmental consultation 
process it will follow in the development of such regulations (65 FR 
13735). DOE has examined today's proposed rule and has determined that 
it does not preempt State law and does not have a substantial direct 
effect on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government. No further 
action is required by Executive Order 13132.

F. Review Under Executive Order 12988

    With respect to the review of existing regulations and the 
promulgation of new regulations, section 3(a) of Executive Order 12988, 
``Civil Justice Reform'' (61 FR 4729, February 7, 1996), imposes on 
Federal agencies the general duty to adhere to the following 
requirements: (1) Eliminate drafting errors and ambiguity; (2) write 
regulations to minimize litigation; and (3) provide a clear legal 
standard for affected conduct rather than a general standard and 
promote simplification and burden reduction. Section 3(b) of Executive 
Order 12988 specifically requires that Executive agencies make every 
reasonable effort to ensure that the regulation: (1) Clearly specifies 
the preemptive effect, if any; (2) clearly specifies any effect on 
existing Federal law or regulation; (3) provides a clear legal standard 
for affected conduct while promoting simplification and burden 
reduction; (4) specifies the retroactive effect, if any; (5) adequately 
defines key terms; and, (6) addresses other important issues affecting 
clarity and general draftsmanship under any guidelines issued by the 
Attorney General. Section 3(c) of Executive Order 12988 requires 
Executive agencies to review regulations in light of applicable 
standards in section 3(a) and section 3(b) to determine whether they 
are met or it is unreasonable to meet one or more of them. DOE has 
completed the required review and determined that, to the extent 
permitted by law, this proposed rule meets the relevant standards of 
Executive Order 12988.

G. Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-
4) requires a Federal agency to perform a written assessment of the 
anticipated costs and benefits of any rule that includes a Federal 
mandate which may result in costs to State, local, or tribal 
governments, in the aggregate, or to the private sector, of $100 
million or more in any one year (adjusted annually for inflation). 2 
U.S.C. 1532(a) and (b). Section 204 of that title requires each agency 
that proposes a rule containing a significant Federal intergovernmental 
mandate to develop an effective process for obtaining meaningful and 
timely input from elected officers of State, local, and tribal 
governments. 2. U.S.C. 1534.
    The proposed rule would not impose a Federal mandate on State, 
local and tribal governments or on the private sector. Accordingly, no 
assessment or analysis is required under the Unfunded Mandates Reform 
Act of 1995.

H. Review Under the Treasury and General Government Appropriations Act, 
1999

    Section 654 of the Treasury and General Government Appropriations 
Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family 
Policymaking Assessment for any rule that may affect family well-being. 
This proposed rule would not have any impact on the autonomy or 
integrity of the family as an institution. Accordingly, DOE has 
concluded that it

[[Page 52511]]

is not necessary to prepare a Family Policymaking Assessment.

I. Review Under the Treasury and General Government Appropriations Act, 
2001

    The Treasury and General Government Appropriations Act, 2001 (44 
U.S.C. 3516 note) provides for agencies to review most disseminations 
of information to the public under guidelines established by each 
agency pursuant to general guidelines issued by OMB. OMB's guidelines 
were published at 67 FR 8452 (February 22, 2002), and DOE's guidelines 
were published at 67 FR 62446 (October 7, 2002). DOE has reviewed 
today's notice under the OMB and DOE guidelines and has concluded that 
it is consistent with applicable policies in those guidelines.

J. Review Under Executive Order 13211

    Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 
28355, May 22, 2001) requires Federal agencies to prepare and submit to 
the Office of Information and Regulatory Affairs (OIRA), Office of 
Management and Budget, a Statement of Energy Effects for any proposed 
significant energy action. A ``significant energy action'' is defined 
as any action by an agency that promulgated or is expected to lead to 
promulgation of a final rule, and that: (1) Is a significant regulatory 
action under Executive Order 12866, or any successor order; and (2) is 
likely to have a significant adverse effect on the supply, 
distribution, or use of energy, or (3) is designated by the 
Administrator of OIRA as a significant energy action. For any proposed 
significant energy action, the agency must give a detailed statement of 
any adverse effects on energy supply, distribution, or use should the 
proposal be implemented, and of reasonable alternatives to the action 
and their expected benefits on energy supply, distribution, and use. 
Today's regulatory action is not a significant energy action. 
Accordingly, DOE has not prepared a Statement of Energy Effects.

IV. Public Comment Procedures

A. Written Comments

    Interested persons are invited to participate by submitting data, 
views, or arguments with respect to the proposed amendments to these 
regulations set forth in this notice. Written comments should be 
submitted to the address indicated in the ADDRESSES section of this 
notice. All comments will be available for public inspection in the DOE 
Freedom of Information Reading Room, room 1E-190, 1000 Independence 
Avenue, SW., Washington, DC 20585, between the hours of 9 a.m. and 4 
p.m., Monday through Friday, except Federal holidays. Written comments 
received by the date indicated in the DATES section of this notice of 
proposed rulemaking will be assessed and considered prior to 
publication of the final rule. Any information that a commenter 
considers to be confidential must be so identified and submitted in 
writing, one copy only. DOE reserves the right to determine the 
appropriateness of confidential status for the information and to treat 
it in accordance with its determination. See 10 CFR 1004.11.

B. Public Hearing

    Requests to speak at the hearing must be submitted to the address 
and by the date indicated in the DATES section of this notice of 
proposed rulemaking. Requests for oral presentations should contain a 
telephone number where the requester may be contacted prior to the 
hearing. Speakers are requested to submit copies of their statement to 
DOE at the hearings.
    DOE reserves the right to select the persons to be heard at the 
hearing, to schedule their respective presentations, and to establish 
the procedures governing the conduct of the hearing. The length of each 
presentation is limited to fifteen minutes. The hearing will begin at 
9:30 a.m. A DOE official will be designated to preside at the hearing. 
It will not be a judicial-type hearing. Questions may be asked only by 
those conducting the hearing. Any further procedural rules needed for 
the proper conduct of the hearing will be announced by the presiding 
officer. A transcript of the hearing will be made available to the 
public. The entire record of the hearing, including the transcript, 
will be retained by DOE and made available for inspection in the DOE 
Freedom of Information Reading Room. Transcripts may be purchased from 
the hearing transcriber/reporter.

V. Approval of the Office of the Secretary

    The Secretary of Energy has approved the publication of today's 
proposed rule.

List of Subjects in 10 CFR Part 1017

    Administrative practice and procedure, Government contracts, 
Nuclear energy, Penalties, Security measures.

    Issued in Washington, DC on September 7, 2007.
Glenn Podonsky,
Office of Health, Safety and Security.

    For the reasons set out in the preamble, DOE proposes to revise 
part 1017 of Chapter X of Title 10 of the Code of Federal Regulations 
to read as follows:

PART 1017--IDENTIFICATION AND PROTECTION OF UNCLASSIFIED CONTROLLED 
NUCLEAR INFORMATION

Subpart A--General Overview
Sec.
1017.1 Purpose and scope.
1017.2 Applicability.
1017.3 Policy.
1017.4 Definitions.
1017.5 Requesting a deviation.
Subpart B--Initially Determining What Information Is Unclassified 
Controlled Nuclear Information
1017.6 Authority.
1017.7 Criteria.
1017.8 Subject areas eligible to be Unclassified Controlled Nuclear 
Information.
1017.9 Nuclear material determinations.
1017.10 Adverse effect test.
1017.11 Information exempt from being Unclassified Controlled 
Nuclear Information.
1017.12 Prohibitions on identifying Unclassified Controlled Nuclear 
Information.
1017.13 Report concerning determinations.
Subpart C--Review of a Document or Material for Unclassified Controlled 
Nuclear Information
1017.14 Designated officials.
1017.15 Review process.
1017.16 Unclassified Controlled Nuclear Information markings on 
documents or material.
1017.17 Determining that a document or material no longer contains 
or does not contain Unclassified Controlled Nuclear Information.
1017.18 Joint documents or material.
Subpart D--Access to Unclassified Controlled Nuclear Information
1017.19 Access limitations.
1017.20 Routine access.
1017.21 Limited access.
Subpart E--Physical Protection Requirements
1017.22 Notification of protection requirements.
1017.23 Protection in use.
1017.24 Storage.
1017.25 Reproduction.
1017.26 Destruction.
1017.27 Transmission.
1017.28 Processing on Automated Information Systems (AIS).
Subpart F--Violations
1017.29 Civil penalty.

[[Page 52512]]

1017.30 Criminal penalty.

    Authority: 42 U.S.C. 7101 et seq.; 50 U.S.C. 2401 et seq.; 42 
U.S.C. 2168; 28 U.S.C. 2461.

Subpart A--General Overview


Sec.  1017.1  Purpose and scope.

    (a) This part implements section 148 of the Atomic Energy Act (42 
U.S.C. 2168) which prohibits the unauthorized dissemination of certain 
unclassified Government information. This information identified by the 
term ``Unclassified Controlled Nuclear Information'' (UCNI) consists of 
certain design and security information concerning nuclear facilities, 
nuclear materials, and nuclear weapons.
    (b) This part:
    (1) Provides for the review of information prior to its designation 
as UCNI;
    (2) Describes how information is determined to be UCNI;
    (3) Establishes minimum physical protection standards for documents 
and material containing UCNI;
    (4) Specifies who may have access to UCNI; and,
    (5) Establishes a procedure for the imposition of penalties on 
persons who violate section 148 of the Atomic Energy Act or any 
regulation or order of the Secretary issued under section 148 of the 
Atomic Energy Act, including these regulations.
    (c) This part does not apply to information controlled under 10 
U.S.C. 128 by the Department of Defense.


Sec.  1017.2  Applicability.

    This part applies to any person who is or was authorized access to 
UCNI, requires authorized access to UCNI, or attempts to gain or gains 
unauthorized access to UCNI.


Sec.  1017.3  Policy.

    The Department of Energy (DOE) strives to make information publicly 
available to the fullest extent possible. Therefore, this part must be 
interpreted and implemented to apply the minimum restrictions needed to 
protect the health and safety of the public or the common defense and 
security consistent with the requirement in section 148 of the Atomic 
Energy Act to prohibit the unauthorized dissemination of UCNI.


Sec.  1017.4  Definitions.

    As used in this part:
    Atomic Energy Act means the Atomic Energy Act of 1954, as amended 
(42 U.S.C. 2011 et seq.).
    Atomic energy defense programs means Government activities, 
equipment, and facilities that are capable of:
    (1) Developing, producing, testing, sampling, maintaining, 
repairing, modifying, assembling or disassembling, using, transporting, 
or retiring nuclear weapons or components of nuclear weapons; or
    (2) Producing, using, or transporting nuclear material that could 
be used in nuclear weapons or military-related utilization facilities.
    Authorized Individual means a person who has routine access to UCNI 
under Sec.  1017.20.
    Component means any operational, experimental, or research-related 
part, subsection, design, or material used in the manufacture or 
utilization of a nuclear weapon, nuclear explosive device, or nuclear 
weapon test assembly.
    Denying Official means a DOE official designated under 10 CFR 
1004.2(b) who is authorized to deny a request for unclassified 
information that is exempt from release when requested under the 
Freedom of Information Act (FOIA).
    Director means the DOE Official, or his or her designee, to whom 
the Secretary has assigned responsibility for enforcement of this part.
    Document means the physical medium on or in which information is 
recorded, regardless of its physical form or characteristics.
    DOE means the United States Department of Energy, including the 
National Nuclear Security Administration (NNSA).
    Essential technology-related information means technical 
information whose unauthorized dissemination could significantly 
increase the likelihood of the illegal production of a nuclear weapon.
    Exploitable security-related information means information whose 
unauthorized dissemination could significantly increase the likelihood 
of the theft, diversion, or sabotage of nuclear material, equipment, or 
facilities.
    Government means the Executive Branch of the United States 
Government.
    Government information means any fact or concept, regardless of its 
physical form or characteristics, that is owned by, produced by or for, 
or otherwise controlled by the United States Government, including such 
facts or concepts that are provided by the Government to any person, 
including persons who are not employees of the Government.
    Guidance means detailed written instructions that describe 
decisions made by the Secretary or his/her designee issued under 
Subpart B of these regulations concerning what specific information is 
UCNI.
    Illegal production means the production or manufacture of a nuclear 
weapon in violation of either domestic (e.g., the Atomic Energy Act) or 
international (e.g., the Treaty on the Non-Proliferation of Nuclear 
Weapons) law.
    In transit means the physical movement of a nuclear weapon, a 
component of a nuclear weapon containing nuclear material, or nuclear 
material from one part to another part of a facility or from one 
facility to another facility. An item is considered ``in transit'' 
until it has been relinquished to the custody of the authorized 
recipient and is in storage at its ultimate destination. An item in 
temporary storage pending shipment to its ultimate destination is ``in 
transit.''
    Limited access means access to specific UCNI granted by the 
cognizant DOE Program Secretarial Officer or a Deputy Administrator of 
the NNSA to an individual not eligible for routine access (see Sec.  
1017.21).
    Material means a product (e.g., a part or a machine) or substance 
(e.g., a compound or an alloy), regardless of its physical form or 
characteristics.
    Need to know means a determination made by an Authorized Individual 
that a person requires access to specific UCNI to perform official 
duties or other Government-authorized activities.
    Nuclear material means special nuclear material, byproduct 
material, or source material as defined by sections 11.aa., 11.e., and 
11.z., respectively, of the Atomic Energy Act (42 U.S.C. 2014 aa., e., 
and z), or any other material used in the production, testing, 
utilization, or assembly of nuclear weapons or components of nuclear 
weapons that the Secretary determines to be nuclear material under 
Sec.  1017.9(a).
    Nuclear weapon means atomic weapon as defined in section 11.d. of 
the Atomic Energy Act (42 U.S.C. 2014 d).
    Person means any person as defined in section 11.s. of the Atomic 
Energy Act (42 U.S.C. 2014 s) or any affiliate or parent corporation 
thereof.
    Production facility means:
    (1) Any equipment or device capable of producing special nuclear 
material in such quantity as to be of significance to the common 
defense and security or in such manner as to affect the health and 
safety of the public; or
    (2) Any important component part especially designed for such 
equipment or device.
    (3) For the purposes of this part, equipment and devices described 
in

[[Page 52513]]

paragraphs (1) and (2) of this definition include only:
    (i) Government uranium isotope enrichment equipment or devices and 
any other uranium isotope enrichment equipment or devices that use 
related technology provided by the Government; or
    (ii) Government plutonium production reactors, isotope enrichment 
equipment or devices, and separation and purification equipment or 
devices and other such equipment or devices that use related technology 
provided by the Government.
    Reviewing Official means an individual authorized under Sec.  
1017.14(a) to make a determination, based on guidance, that a document 
or material contains UCNI.
    Routine access means access to UCNI granted by an Authorized 
Individual to an individual eligible to receive UCNI under Sec.  
1017.20 in order to perform official duties or other Government-
authorized activities.
    Secretary means the Secretary of Energy.
    Unauthorized dissemination means the intentional or negligent 
transfer of UCNI documents or material to any person other than an 
Authorized Individual or a person granted limited access to UCNI under 
Sec.  1017.21.
    Unclassified Controlled Nuclear Information or UCNI means certain 
unclassified Government information concerning nuclear facilities, 
materials, weapons, and components whose dissemination is controlled 
under section 148 of the Atomic Energy Act and this part.
    Utilization facility means:
    (1) Any equipment or device, or any important component part 
especially designed for such equipment or device, except for a nuclear 
weapon, that is capable of making use of special nuclear material in 
such quantity as to be of significance to the common defense and 
security or in such manner as to affect the health and safety of the 
public. For the purposes of this part, such equipment or devices 
include only Government equipment or devices that use special nuclear 
material in the research, development, production, or testing of 
nuclear weapons, nuclear weapon components, or nuclear material capable 
of being used in nuclear weapons; or
    (2) Any equipment or device, or any important component part 
especially designed for such equipment or device, except for a nuclear 
weapon, that is peculiarly adapted for making use of nuclear energy in 
such quantity as to be of significance to the common defense and 
security or in such manner as to affect the health and safety of the 
public. For the purposes of this part, such equipment or devices 
include only:
    (i) Naval propulsion reactors;
    (ii) Military reactors and power sources that use special nuclear 
material;
    (iii) Tritium production reactors; and,
    (iv) Government research reactors.


Sec.  1017.5  Requesting a deviation.

    (a) Any person may request a deviation, or condition that diverges 
from the norm and that is categorized as:
    (1) A variance (i.e., an approved condition that technically varies 
from a requirement in these regulations);
    (2) A waiver (i.e., an approved nonstandard condition that deviates 
from a requirement in these regulations and which, if uncompensated, 
would create a potential or real vulnerability); or
    (3) An exception (i.e., an approved deviation from a requirement in 
these regulations for which DOE accepts the risk of a safeguards and 
security vulnerability) according to the degree of risk involved.
    (b) In writing, the person must:
    (1) Identify the specific requirement for which the deviation is 
being requested;
    (2) Explain why the deviation is needed; and,
    (3) If appropriate, describe the alternate or equivalent means for 
meeting the requirement.
    (c) DOE employees must submit such requests according to internal 
directives. DOE contractors must submit such requests according to 
directives incorporated into their contracts. Other individuals must 
submit such requests to the Office of Classification, Office of Health, 
Safety and Security, U.S. Department of Energy, 1000 Independence Ave., 
SW., Washington, DC 20585-1290. The Office of Classification's decision 
must be made within 30 days.

Subpart B--Initially Determining What Information Is Unclassified 
Controlled Nuclear Information


Sec.  1017.6  Authority.

    The Secretary, or his or her designee, determines whether 
information is UCNI. These determinations are incorporated into 
guidance that each Reviewing Official and Denying Official consults in 
his or her review of a document or material to decide whether the 
document or material contains UCNI.


Sec.  1017.7  Criteria.

    To be identified as UCNI, the information must meet each of the 
following criteria:
    (a) The information must be Government information as defined in 
Sec.  1017.4;
    (b) The information must concern atomic energy defense programs as 
defined in Sec.  1017.4;
    (c) The information must fall within the scope of at least one of 
the three subject areas eligible to be UCNI in Sec.  1017.8;
    (d) The information must meet the adverse effect test described in 
Sec.  1017.10; and
    (e) The information must not be exempt from being UCNI under Sec.  
1017.11.


Sec.  1017.8  Subject areas eligible to be Unclassified Controlled 
Nuclear Information.

    To be eligible for identification as UCNI, information must concern 
at least one of the following categories:
    (a) The design of production or utilization facilities;
    (b) Security measures (including security plans, procedures, and 
equipment) for the physical protection of production or utilization 
facilities or nuclear material, regardless of its physical state or 
form, contained in these facilities or in transit; or
    (c) The design, manufacture, or utilization of nuclear weapons or 
components that were once classified as Restricted Data, as defined in 
section 11y. of the Atomic Energy Act.


Sec.  1017.9  Nuclear material determinations.

    (a) The Secretary may determine that a material other than special 
nuclear material, byproduct material, or source material as defined by 
the Atomic Energy Act is included within the scope of the term 
``nuclear material'' if it meets the following criteria:
    (1) The material is used in the production, testing, utilization, 
or assembly of nuclear weapons or components of nuclear weapons; and
    (2) Unauthorized acquisition of the material could reasonably be 
expected to result in a significant adverse effect on the health and 
safety of the public or the common defense and security because the 
specific material:
    (i) Could be used as a hazardous radioactive environmental 
contaminant; or
    (ii) Could be of significant assistance in the illegal production 
of a nuclear weapon.
    (b) Designation of a material as a nuclear material under paragraph 
(a) of this section does not make all

[[Page 52514]]

information about the material UCNI. Specific information about the 
material must still meet each of the criteria in Sec.  1017.7 prior to 
its being identified and controlled as UCNI.


Sec.  1017.10  Adverse effect test.

    In order for information to be identified as UCNI, it must be 
determined that the unauthorized dissemination of the information under 
review could reasonably be expected to result in a significant adverse 
effect on the health and safety of the public or the common defense and 
security by significantly increasing the likelihood of:
    (a) Illegal production of a nuclear weapon; or
    (b) Theft, diversion, or sabotage of nuclear material, equipment, 
or facilities.


Sec.  1017.11  Information exempt from being Unclassified Controlled 
Nuclear Information.

    Information exempt from these regulations includes:
    (a) Information protected from disclosure under section 147 of the 
Atomic Energy Act (42 U.S.C. 2167) that is identified as Safeguards 
Information and controlled by the United States Nuclear Regulatory 
Commission;
    (b) Basic scientific information (i.e., information resulting from 
research directed toward increasing fundamental scientific knowledge or 
understanding rather than any practical application of that knowledge);
    (c) Radiation exposure data and all other personal health 
information; and,
    (d) Information concerning the transportation of low level 
radioactive waste.


Sec.  1017.12  Prohibitions on identifying Unclassified Controlled 
Nuclear Information.

    Information, documents, and material must not be identified as 
being or containing UCNI in order to:
    (a) Conceal violations of law, inefficiency, or administrative 
error;
    (b) Prevent embarrassment to a person or organization;
    (c) Restrain competition; or,
    (d) Prevent or delay the release of any information that does not 
properly qualify as UCNI.


Sec.  1017.13  Report concerning determinations.

    The Office of Classification or successor office shall issue a 
report by the end of each quarter that identifies any new information 
that has been determined for the first time to be UCNI during the 
previous quarter, explains how each such determination meets the 
criteria in Sec.  1017.7, and explains why each such determination 
protects from disclosure only the minimum amount of information 
necessary to protect the health and safety of the public or the common 
defense and security. A copy of the report may be obtained by writing 
to the Office of Classification, Office of Health, Safety and Security, 
U.S. Department of Energy, 1000 Independence Ave., SW., Washington, DC 
20585-1290.

Subpart C--Review of a Document or Material for Unclassified 
Controlled Nuclear Information


Sec.  1017.14  Designated officials.

    (a) Reviewing Official.--(1) Authority. A Reviewing Official with 
cognizance over the information contained in a document or material is 
authorized to determine whether the document or material contains UCNI 
based on applicable guidance. A Reviewing Official marks or authorizes 
the marking of the document or material as specified in Sec.  1017.16.
    (2) Request for designation. Procedures for requesting that a DOE 
Federal or contractor employee be designated as a Reviewing Official 
are contained in Departmental directives issued by the Secretary. DOE 
may also designate other Government agency employees, contractors, or 
other individuals granted routine access under Sec.  1017.20 as 
Reviewing Officials.
    (3) Designation. Prior to being designated as a Reviewing Official, 
each employee must receive training approved by DOE that covers the 
requirements in this regulation and be tested on his or her proficiency 
in using applicable UCNI guidance. Upon successful completion of the 
training and test, he or she is designated as a Reviewing Official only 
while serving in his or her current position for a maximum of 3 years. 
The employee does not retain the authority when he or she leaves his or 
her current position. The employee cannot delegate this authority to 
anyone else, and the authority may not be assumed by another employee 
acting in the employee's position. At the end of 3 years, if the 
position still requires the authority, the employee must be retested 
and redesignated by DOE as a Reviewing Official.
    (b) Individuals approved to use DOE or joint DOE classification 
guidance--(1) Authority. Other Government agency employees who are 
approved by DOE or another Government agency to use classification 
guidance developed by DOE or jointly by DOE and another Government 
agency may also be approved to review documents for UCNI and to make 
UCNI determinations. This authority is limited to the UCNI subject 
areas contained in the specific classification guidance that the 
individual has been approved to use.
    (2) Designation. Individuals must be designated this authority in 
writing by the appropriate DOE or other Government agency official with 
cognizance over the specific DOE or Joint DOE classification guidance.
    (c) Denying Official--(1) Authority. A DOE Denying Official for 
unclassified information with cognizance over the information contained 
in a document is authorized to deny a request made under statute (e.g., 
the FOIA, the Privacy Act) or the mandatory review provisions of 
Executive Order 12958, as amended, ``Classified National Security 
Information,'' and its successor orders, for all or any portion of the 
document that contains UCNI. The Denying Official bases his or her 
denial on applicable guidance, ensuring that the Reviewing Official who 
determined that the document contains UCNI correctly interpreted and 
applied the guidance.
    (2) Designation. Information on the designation of DOE Denying 
Officials is contained in 10 CFR part 1004, Freedom of Information (see 
definition of the term ``Authorizing or Denying Official.'')


Sec.  1017.15  Review process.

    (a) Reviewing documents for UCNI. Anyone who originates or 
possesses a document that he or she thinks may contain UCNI must send 
the document to a Reviewing Official for a determination before it is 
finalized, sent outside of his or her organization, or filed. If the 
originator or possessor must send the document outside of his or her 
organization for the review, he or she must mark the front of the 
document with ``Protect as UCNI Pending Review'' and must transmit the 
document in accordance with the requirements in Sec.  1017.27. The 
Reviewing Official must first determine whether or not the document is 
widely disseminated in the public domain, which means that the document 
under review can be found in a public library or open literature 
source, or it can be accessed on the Internet using readily available 
search methods.
    (1) If the document is determined to be widely disseminated in the 
public domain, it cannot be controlled as UCNI. The Reviewing Official 
returns the document to the person who sent it to the Reviewing 
Official and informs him or her why the document cannot be controlled 
as UCNI. This does not preclude control of the same

[[Page 52515]]

information as UCNI if it is contained in another document that is not 
widely disseminated.
    (2) If the document is not determined to be widely disseminated in 
the public domain, the Reviewing Official evaluates the information in 
the document using guidance to determine whether the document contains 
UCNI. If the Reviewing Official determines that the document does 
contain UCNI, the Reviewing Official marks or authorizes the marking of 
the document as specified in Sec.  1017.16. If the Reviewing Official 
determines that the document does not contain UCNI, the Reviewing 
Official returns the document to the person who sent it and informs him 
or her that the document does not contain UCNI. For documentation 
purposes, the Reviewing Official may mark or authorize the marking of 
the document as specified in Sec.  1017.17(b).
    (3) If no applicable guidance exists, but the Reviewing Official 
thinks the information should be identified as UCNI, then the Reviewing 
Official must send the document to the appropriate official identified 
in applicable DOE directives issued by the Secretary or his or her 
designee. The Reviewing Official should also include a written 
recommendation as to why the information should be identified as UCNI.
    (b) Review exemption for documents in files. Any document that was 
permanently filed prior to May 22, 1985, is not required to be reviewed 
for UCNI while in the files or when retrieved from the files for 
reference, inventory, or similar purposes as long as the document will 
be returned to the files and is not accessible by individuals who are 
not Authorized Individuals for the UCNI contained in the document. 
However, when a document that is likely to contain UCNI is removed from 
the files for dissemination within or outside of the immediate 
organization, it must be reviewed by a Reviewing Official with 
cognizance over the information.
    (c) Reviewing material for UCNI. Anyone who produces or possesses 
material that he or she thinks may contain or reveal UCNI must consult 
with a Reviewing Official for a determination. If the Reviewing 
Official determines that the material does contain or reveal UCNI, the 
Reviewing Official marks or authorizes the marking of the material as 
specified in Sec.  1017.16(b).


Sec.  1017.16  Unclassified Controlled Nuclear Information markings on 
documents or material.

    (a) Marking documents. If a Reviewing Official determines that a 
document contains UCNI, the Reviewing Official must mark or authorize 
the marking of the document as described in this section.
    (1) Front marking. The following marking must appear on the front 
of the document:

Unclassified Controlled Nuclear Information Not for Public 
Dissemination

Unauthorized dissemination subject to civil and criminal sanctions 
under section 148 of the Atomic Energy Act of 1954, as amended (42 
U.S.C. 2168).
Reviewing Official:
-----------------------------------------------------------------------
 (Name/Organization)

Date:------------------------------------------------------------------
Guidance Used:---------------------------------------------------------

    (2) Page marking. The marking ``Unclassified Controlled Nuclear 
Information'' must be placed on the bottom of the front of the document 
and on the bottom of each interior page of the document that contains 
text or if more convenient, on the bottom of only those interior pages 
that contain UCNI. The page marking must also be placed on the back of 
the last page. If space limitations do not allow for use of the full 
page marking, the acronym ``UCNI'' may be used as the page marking.
    (3) Classified documents. UCNI front and page markings are not 
applied to a classified document that also contains UCNI. If a 
classified document is portion marked, the acronym ``UCNI'' is used to 
indicate those unclassified portions that contain UCNI.
    (4) Obsolete ``May Contain UCNI'' marking. The ``May Contain UCNI'' 
marking is no longer used. Any document marked with the ``May Contain 
UCNI'' marking is considered to contain UCNI and must be protected 
accordingly until a Reviewing Official or Denying Official determines 
otherwise. The obsolete ``May Contain UCNI'' marking reads as follows:

    Not for Public Dissemination
    May contain Unclassified Controlled Nuclear Information subject 
to section 148 of the Atomic Energy Act of 1954 (42 U.S.C. 2168). 
Approval by the Department of Energy prior to release is required.

    (b) Marking material. If possible, material containing or revealing 
UCNI must be marked as described in Sec.  1017.16(a)(1). If space 
limitations do not allow for use of the full marking in Sec.  
1017.16(a)(1), the acronym ``UCNI'' may be used.


Sec.  1017.17  Determining that a document or material no longer 
contains or does not contain Unclassified Controlled Nuclear 
Information.

    (a) Document or material no longer contains UCNI. A Reviewing 
Official with cognizance over the information in a document or material 
marked as containing UCNI may determine that the document or material 
no longer contains UCNI. A Denying Official may also determine that 
such a document or material no longer contains UCNI. The official 
making this determination must base it on guidance and must ensure that 
any UCNI markings are crossed out (for documents) or removed (for 
material). The official marks or authorizes the marking of the document 
(or the material, if space allows) as follows:

DOES NOT CONTAIN UNCLASSIFIED CONTROLLED NUCLEAR INFORMATION

Reviewing/Denying Official:
-----------------------------------------------------------------------
 (Name and organization)

Date:------------------------------------------------------------------

    (b) Document or material does not contain UCNI. A Reviewing 
Official may confirm that an unmarked document or material does not 
contain UCNI based on guidance. No markings are required in this case; 
however, for documentation purposes, the Reviewing Official may mark or 
may authorize the marking of the document or material with the same 
marking used in Sec.  1017.17(a).


Sec.  1017.18  Joint documents or material.

    If a document or material marked as containing UCNI is under 
consideration for decontrol and falls under the cognizance of another 
DOE organization or other Government agency, the Reviewing Official or 
Denying Official must coordinate the decontrol review with that DOE 
organization or other Government agency. Any disagreement concerning 
the control or decontrol of any document or material that contains UCNI 
that was originated by or for DOE or another Government agency is 
resolved by the Secretary or his or her designee.

Subpart D--Access to Unclassified Controlled Nuclear Information


Sec.  1017.19  Access limitations.

    A person may only have access to UCNI if he or she has been granted 
routine access by an Authorized Individual (see Sec.  1017.20) or 
limited access by the DOE Program Secretarial Officer or NNSA Deputy or 
Associate Administrator with cognizance over the UCNI (see Sec.  
1017.21). The Secretary, or his or her designee, may impose

[[Page 52516]]

additional administrative controls concerning the granting of routine 
or limited access to UCNI to a person who is not a U.S. citizen.


Sec.  1017.20  Routine access.

    (a) Authorized Individual. The Reviewing Official who determines 
that a document or material contains UCNI is the initial Authorized 
Individual for that document or material. An Authorized Individual, for 
UCNI in his or her possession or control, may determine that another 
person is an Authorized Individual who may be granted access to the 
UCNI, subject to limitations in paragraph (b) of this section, and who 
may further disseminate the UCNI under the provisions of this section.
    (b) Requirements for routine access. To be eligible for routine 
access to UCNI, the person must have a need to know the UCNI in order 
to perform official duties or other Government-authorized activities 
and must be:
    (1) A U.S. citizen who is:
    (i) An employee of any branch of the Federal Government, including 
the U.S. Armed Forces;
    (ii) An employee or representative of a State, local, or Indian 
tribal government;
    (iii) A member of an emergency response organization;
    (iv) An employee of a Government contractor or a consultant, 
including those contractors or consultants who need access to bid on a 
Government contract;
    (v) A member of Congress or a staff member of a congressional 
committee or of an individual member of Congress;
    (vi) A Governor of a state, his or her designated representative, 
or a State government official;
    (vii) A member of a DOE advisory committee; or,
    (viii) A member of an entity that has entered into a formal 
agreement with the Government, such as a Cooperative Research and 
Development Agreement or similar arrangement; or,
    (2) A person who is not a U.S. citizen but who is:
    (i) A Federal Government employee or a member of the U.S. Armed 
Forces;
    (ii) An employee of a Federal Government contractor or 
subcontractor;
    (iii) A Federal Government consultant;
    (iv) A member of a DOE advisory committee; or,
    (v) A member of an entity that has entered into a formal agreement 
with the Government, such as a Cooperative Research and Development 
Agreement or similar arrangement; or,
    (3) A person who is not a U.S. citizen but who needs to know the 
UCNI in conjunction with an activity approved by the DOE Program 
Secretarial Officer or NNSA Deputy or Associate Administrator with 
cognizance over the UCNI.


Sec.  1017.21  Limited access.

    (a) A person who is not eligible for routine access to specific 
UCNI under Sec.  1017.20 may request limited access to such UCNI by 
sending a written request to the DOE Program Secretarial Officer or 
NNSA Deputy or Associate Administrator with cognizance over the 
information. The written request must include the following:
    (1) The name, current residence or business address, birthplace, 
birth date, and country of citizenship of the person submitting the 
request;
    (2) A description of the specific UCNI for which limited access is 
being requested;
    (3) A description of the purpose for which the UCNI is needed; and,
    (4) Certification by the requester that he or she:
    (i) Understands and will follow these regulations; and
    (ii) Understands that he or she is subject to the civil and 
criminal penalties under Subpart F of this part.
    (b) The decision whether to grant the request for limited access is 
based on the following criteria:
    (1) The sensitivity of the UCNI for which limited access is being 
requested;
    (2) The approving official's evaluation of the likelihood that the 
requester will disseminate the UCNI to unauthorized individuals; and,
    (3) The approving official's evaluation of the likelihood that the 
requester will use the UCNI for illegal purposes.
    (c) Within 30 days of receipt of the request for limited access, 
the appropriate DOE Program Secretarial Officer or NNSA Deputy or 
Associate Administrator must notify the requester if limited access is 
granted or denied, or if the determination cannot be made within 30 
days, of the date when the determination will be made.
    (d) A person granted limited access to specific UCNI is not an 
Authorized Individual and may not further disseminate the UCNI to 
anyone.

Subpart E--Physical Protection Requirements


Sec.  1017.22  Notification of protection requirements.

    (a) An Authorized Individual who grants routine access to specific 
UCNI under Sec.  1017.20 to a person who is not an employee or 
contractor of the DOE must notify the person receiving the UCNI of 
protection requirements described in this subpart and any limitations 
on further dissemination.
    (b) A DOE Program Secretarial Officer or NNSA Deputy or Associate 
Administrator who grants limited access to specific UCNI under Sec.  
1017.21 must notify the person receiving the UCNI of protection 
requirements described in this subpart and any limitations on further 
dissemination.


Sec.  1017.23  Protection in use.

    An Authorized Individual or a person granted limited access to UCNI 
under Sec.  1017.21 must maintain physical control over any document or 
material marked as containing UCNI that is in use to prevent 
unauthorized access to it.


Sec.  1017.24  Storage.

    A document or material marked as containing UCNI must be stored to 
preclude unauthorized disclosure. When not in use, documents or 
material containing UCNI must be stored in locked receptacles (e.g., 
file cabinet, desk drawer), or if in secured areas or facilities, in a 
manner that would prevent inadvertent access by an unauthorized 
individual.


Sec.  1017.25  Reproduction.

    A document marked as containing UCNI may be reproduced without the 
permission of the originator to the minimum extent necessary consistent 
with the need to carry out official duties, provided the reproduced 
document is marked and protected in the same manner as the original 
document.


Sec.  1017.26  Destruction.

    A document marked as containing UCNI must be destroyed, at a 
minimum, by using a cross-cut shredder that produces particles no 
larger than \1/4\-inch wide and 2 inches long. Other comparable 
destruction methods may be used. Material containing or revealing UCNI 
must be destroyed according to agency directives.


Sec.  1017.27  Transmission.

    (a) Physically transmitting UCNI documents or material.
    (1) A document or material marked as containing UCNI may be 
transmitted by:
    (i) U.S. First Class, Express, Certified, or Registered mail;
    (ii) Any means approved for transmission of classified documents or 
material;
    (iii) An Authorized Individual or person granted limited access 
under Sec.  1017.21 as long as physical control of the package is 
maintained; or,
    (iv) Internal mail services.
    (2) The document or material must be packaged to conceal the 
presence of the

[[Page 52517]]

UCNI from someone who is not authorized access. A single, opaque 
envelope or wrapping is sufficient for this purpose. The address of the 
recipient and the sender must be indicated on the outside of the 
envelope or wrapping along with the words ``TO BE OPENED BY ADDRESSEE 
ONLY.''
    (b) Transmitting UCNI documents over telecommunications circuits. 
Encryption algorithms that comply with all applicable Federal laws, 
regulations, and standards for the protection of unclassified 
controlled information must be used when transmitting UCNI over a 
telecommunications circuit (including the telephone, facsimile, radio, 
e-mail, Internet).


Sec.  1017.28  Processing on Automated Information Systems (AIS).

    UCNI may be processed or produced on any AIS that complies with the 
guidance in OMB Circular No. A-130, Revised, Transmittal No. 4, 
Appendix III, ``Security of Federal Automated Information Resources,'' 
or is certified for classified information.

Subpart F--Violations


Sec.  1017.29  Civil penalty.

    (a) Any person who violates an UCNI security requirement of any of 
the following is subject to a civil penalty under this part:
    (1) 10 CFR Part 1017--Identification and Protection of Unclassified 
Controlled Nuclear Information; or
    (2) Any other DOE regulation related to the safeguarding or 
security of UCNI if the regulation provides that violation of its 
provisions may result in a civil penalty pursuant to section 148 of the 
Act.
    (b) If, without violating a requirement of any regulation issued 
under section 148, a person by an act or omission causes, or creates a 
risk of, the loss, compromise or unauthorized disclosure of UCNI, the 
Secretary may issue a compliance order to that person requiring the 
person to take corrective action and notifying the person that 
violation of the compliance order is subject to a notice of violation 
and assessment of a civil penalty. If a person wishes to contest the 
compliance order, the person must file a notice of appeal with the 
Secretary within 15 days of receipt of the compliance order.
    (c) The Director may propose imposition of a civil penalty for 
violation of a requirement of a regulation under paragraph (a) of this 
section or a compliance order issued under paragraph (b) of this 
section, not to exceed $100,000 for each violation.
    (d) Settlements. The Director may enter into a settlement, with or 
without conditions, of an enforcement proceeding at any time if the 
settlement is consistent with the objectives of DOE's UCNI protection 
requirements.
    (e) Investigations. The Director may conduct investigations and 
inspections relating to the scope, nature and extent of compliance by a 
person with DOE security requirements specified in these regulations 
and take such action as the Director deems necessary and appropriate to 
the conduct of the investigation or inspection, including signing, 
issuing and serving subpoenas.
    (f) Preliminary notice of violation. (1) In order to begin a 
proceeding to impose a civil penalty under this part, the Director 
shall notify the person by a written preliminary notice of violation 
sent by certified mail, return receipt requested, of:
    (i) The date, facts, and nature of each act or omission 
constituting the alleged violation;
    (ii) The particular provision of the regulation or compliance order 
involved in each alleged violation;
    (iii) The proposed remedy for each alleged violation, including the 
amount of any civil penalty proposed;
    (iv) The right of the person to submit a written reply to the 
Director within 30 calendar days of receipt of such preliminary notice 
of violation; and,
    (v) The fact that upon failure of the person to pay any civil 
penalty imposed, the penalty may be collected by civil action.
    (2) A reply to a preliminary notice of violation must contain a 
statement of all relevant facts pertaining to an alleged violation. The 
reply must:
    (i) State any facts, explanations, and arguments that support a 
denial of the alleged violation;
    (ii) Demonstrate any extenuating circumstances or other reason why 
a proposed remedy should not be imposed or should be mitigated;
    (iii) Discuss the relevant authorities that support the position 
asserted, including rulings, regulations, interpretations, and previous 
decisions issued by DOE;
    (iv) Furnish full and complete answers to any questions set forth 
in the preliminary notice; and,
    (v) Include copies of all relevant documents.
    (3) If a person fails to submit a written reply within 30 calendar 
days of receipt of a preliminary notice of violation:
    (i) The person relinquishes any right to appeal any matter in the 
preliminary notice; and
    (ii) The preliminary notice, including any remedies therein, 
constitutes a final order.
    (4) The Director, at the request of a person notified of an alleged 
violation, may extend for a reasonable period the time for submitting a 
reply or a hearing request letter.
    (g) Final notice of violation. (1) If a person submits a written 
reply within 30 calendar days of receipt of a preliminary notice of 
violation, the Director must make a final determination whether the 
person violated or is continuing to violate an UCNI security 
requirement.
    (2) Based on a determination by the Director that a person has 
violated or is continuing to violate an UCNI security requirement, the 
Director may issue to the person a final notice of violation that 
concisely states the determined violation, the amount of any civil 
penalty imposed, and further actions necessary by or available to the 
person. The final notice of violation also must state that the person 
has the right to submit to the Director, within 30 calendar days of the 
receipt of the notice, a written request for a hearing under paragraph 
(h) of this section.
    (3) The Director must send a final notice of violation by certified 
mail, return receipt requested, within 30 calendar days of the receipt 
of a reply.
    (4) Subject to paragraphs (g)(7) and (g)(8) of this section, the 
effect of final notice shall be:
    (i) If a final notice of violation does not contain a civil 
penalty, it shall be deemed a final order 15 days after the final 
notice is issued.
    (ii) If a final notice of violation contains a civil penalty, the 
person must submit to the Director within 30 days after the issuance of 
the final notice:
    (A) A waiver of further proceedings; or
    (B) A request for an on-the-record hearing under paragraph (h) of 
this section.
    (5) If a person waives further proceedings, the final notice of 
violation shall be deemed a final order enforceable against the person. 
The person must pay the civil penalty set forth in the notice of 
violation within 60 days of the filing of waiver unless the Director 
grants additional time.
    (6) If a person files a request for an on-the-record hearing, then 
the hearing process commences.
    (7) The Director may amend the final notice of violation at any 
time before the time periods specified in paragraphs (g)(4)(i) or 
(g)(4)(ii) of this section expire. An amendment shall add 15 days to 
the time period under paragraph (g)(4) of this section.
    (8) The Director may withdraw the final notice of violation, or any 
part thereof, at any time before the time periods specified in 
paragraphs (g)(4)(i) or (g)(4)(ii) of this section expire.

[[Page 52518]]

    (h) Hearing. (1) Any person who receives a final notice of 
violation under paragraph (g) may request a hearing concerning the 
allegations contained in the notice. The person must mail or deliver 
any written request for a hearing to the Director within 30 calendar 
days of receipt of the final notice of violation.
    (2) Upon receipt from a person of a written request for a hearing, 
the Director shall:
    (i) Appoint a Hearing Counsel; and
    (ii) Select an administrative law judge appointed under section 
3105 of Title 5, U.S.C., to serve as Hearing Officer.
    (i) Hearing Counsel. The Hearing Counsel:
    (1) Represents DOE;
    (2) Consults with the person or the person's counsel prior to the 
hearing;
    (3) Examines and cross-examines witnesses during the hearing; and,
    (4) Enters into a settlement of the enforcement proceeding at any 
time if settlement is consistent with the objectives of the Act and DOE 
security requirements.
    (j) Hearing Officer. The Hearing Officer:
    (1) Is responsible for the administrative preparations for the 
hearing;
    (2) Convenes the hearing as soon as is reasonable;
    (3) Administers oaths and affirmations;
    (4) Issues subpoenas, at the request of either party or on the 
Hearing Officer's motion;
    (5) Rules on offers of proof and receives relevant evidence;
    (6) Takes depositions or has depositions taken when the ends of 
justice would be served;
    (7) Conducts the hearing in a manner which is fair and impartial;
    (8) Holds conferences for the settlement or simplification of the 
issues by consent of the parties;
    (9) Disposes of procedural requests or similar matters;
    (10) Requires production of documents; and,
    (11) Makes an initial decision under paragraph (m) of this section.
    (k) Rights of the person at the hearing. The person may:
    (1) Testify or present evidence through witnesses or by documents;
    (2) Cross-examine witnesses and rebut records or other physical 
evidence, except as provided in paragraph (l)(4) of this section;
    (3) Be present during the entire hearing, except as provided in 
paragraph (l)(4) of this section; and
    (4) Be accompanied, represented, and advised by counsel of the 
person's choosing.
    (l) Conduct of the hearing. (1) DOE shall make a transcript of the 
hearing.
    (2) Except as provided in paragraph (l)(4) of this section, the 
Hearing Officer may receive any oral or documentary evidence, but shall 
exclude irrelevant, immaterial, or unduly repetitious evidence.
    (3) Witnesses shall testify under oath and are subject to cross-
examination, except as provided in paragraph (l)(4) of this section.
    (4) The Hearing Officer must use procedures appropriate to 
safeguard and prevent unauthorized disclosure of classified 
information, UCNI, or any other information protected from public 
disclosure by law or regulation, with minimum impairment of rights and 
obligations under this part. The UCNI status shall not, however, 
preclude information from being introduced into evidence. The Hearing 
Officer may issue such orders as may be necessary to consider such 
evidence in camera including the preparation of a supplemental initial 
decision to address issues of law or fact that arise out of that 
portion of the evidence that is protected.
    (5) DOE has the burden of going forward with and of proving by a 
preponderance of the evidence that the violation occurred as set forth 
in the final notice of violation and that the proposed civil penalty is 
appropriate. The person to whom the final notice of violation has been 
addressed shall have the burden of presenting and of going forward with 
any defense to the allegations set forth in the final notice of 
violation. Each matter of controversy shall be determined by the 
Hearing Officer upon a preponderance of the evidence.
    (m) Initial decision. (1) The Hearing Officer shall issue an 
initial decision as soon as practicable after the hearing. The initial 
decision shall contain findings of fact and conclusions regarding all 
material issues of law, as well as reasons therefor. If the Hearing 
Officer determines that a violation has occurred and that a civil 
penalty is appropriate, the initial decision shall set forth the amount 
of the civil penalty based on:
    (i) The nature, circumstances, extent, and gravity of the violation 
or violations;
    (ii) The violator's ability to pay;
    (iii) The effect of the civil penalty on the person's ability to do 
business;
    (iv) Any history of prior violations;
    (v) The degree of culpability; and,
    (vi) Such other matters as justice may require.
    (2) The Hearing Officer shall serve all parties with the initial 
decision by certified mail, return receipt requested. The initial 
decision shall include notice that it constitutes a final order of DOE 
30 days after the filing of the initial decision unless the Secretary 
files a Notice of Review. If the Secretary files a Notice of Review, he 
shall file a final order as soon as practicable after completing his 
review. The Secretary, at his discretion, may order additional 
proceedings, remand the matter, or modify the amount of the civil 
penalty assessed in the initial decision. DOE shall notify the person 
of the Secretary's action under this paragraph in writing by certified 
mail, return receipt requested. The person against whom the civil 
penalty is assessed by the final order shall pay the full amount of the 
civil penalty assessed in the final order within 30 days unless 
otherwise agreed by the Director.
    (n) Collection of penalty. (1) The Secretary may request the 
Attorney General to institute a civil action to collect a penalty 
imposed under this section.
    (2) The Attorney General has the exclusive power to uphold, 
compromise or mitigate, or remit any civil penalty imposed by the 
Secretary under this section and referred to the Attorney General for 
collection.
    (o) Direction to NNSA. (1) Notwithstanding any other provision of 
this part, the NNSA Administrator, rather than the Director, signs, 
issues, serves, or takes the following actions that direct NNSA 
employees, contractors, subcontractors, or employees of such NNSA 
contractors or subcontractors.
    (i) Subpoenas;
    (ii) Orders to compel attendance;
    (iii) Disclosures of information or documents obtained during an 
investigation or inspection;
    (iv) Preliminary notices of violation; and,
    (v) Final notice of violations.
    (2) The Administrator shall act after consideration of the 
Director's recommendation. If the Administrator disagrees with the 
Director's recommendation, and the disagreement cannot be resolved by 
the two officials, the Director may refer the matter to the Deputy 
Secretary for resolution.


Sec.  1017.30  Criminal penalty.

    Any person who violates section 148 of the Atomic Energy Act or any 
regulation or order of the Secretary issued under section 148 of the 
Atomic Energy Act, including these regulations, may be subject to a 
criminal penalty under section 223 of the Atomic Energy Act (42 U.S.C. 
2273). In such case, the Secretary shall refer the matter to the

[[Page 52519]]

Attorney General for investigation and possible prosecution.

[FR Doc. E7-18052 Filed 9-13-07; 8:45 am]
BILLING CODE 6450-01-P