[Federal Register: September 14, 2007 (Volume 72, Number 178)]
[Proposed Rules]
[Page 52506-52519]
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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.
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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: emily.puhl@hq.doe.gov. 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
