42 U.S.C. 7101
(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 this part.
(c) This part does not apply to information controlled under 10 U.S.C. 128 by the Department of Defense.
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.
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.
As used in this part:
(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.
(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 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.
(1) Plutonium, uranium enriched in the isotope 233 or in the isotope 235, and any other material which DOE or the Nuclear Regulatory Commission, pursuant to the provisions of section 51 of the Atomic Energy Act (42 U.S.C. 2071), determines to be special nuclear material, but does not include source material; or
(2) Any material artificially enriched by any of the foregoing, but does not include source material.
(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
(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.
(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.
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.
To be identified as UCNI, the information must meet each of the following criteria:
(a) The information must be Government information as defined in § 1017.4;
(b) The information must concern atomic energy defense programs as defined in § 1017.4;
(c) The information must fall within the scope of at least one of the three subject areas eligible to be UCNI in § 1017.8;
(d) The information must meet the adverse effect test described in § 1017.10; and
(e) The information must not be exempt from being UCNI under § 1017.11.
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 as defined in this part;
(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.
(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 information about the material UCNI. Specific information about the material must still meet each of the criteria in § 1017.7 prior to its being identified and controlled as UCNI.
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.
Information exempt from this part 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.
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.
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 § 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.
(a)
(2)
(3)
(b)
(2)
(c)
(2)
(a)
(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
(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 § 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 § 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)
(c)
(a)
(1)
(2)
(3)
(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.
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)
(a)
(b)
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.
A person may only have access to UCNI if he or she has been granted routine access by an Authorized Individual (see § 1017.20) or limited access by the DOE Program Secretarial Officer or NNSA Deputy or Associate Administrator with cognizance over the UCNI (see § 1017.21). The Secretary, or his or her designee, may impose additional administrative controls concerning the granting of routine or limited access to UCNI to a person who is not a U.S. citizen.
(a)
(b)
(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;
(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;
(vi) An employee or representative of a State, local, or Indian tribal government; or,
(vii) A member of an emergency response organization when responding to an emergency; 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.
(a) A person who is not eligible for routine access to specific UCNI under § 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.
(a) An Authorized Individual who grants routine access to specific UCNI under § 1017.20 to a person who is not an
(b) A DOE Program Secretarial Officer or NNSA Deputy or Associate Administrator who grants limited access to specific UCNI under § 1017.21 must notify the person receiving the UCNI of protection requirements described in this subpart and any limitations on further dissemination.
An Authorized Individual or a person granted limited access to UCNI under § 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.
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.
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.
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.
(a)
(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 § 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 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)
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.
(a)
(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)
(c)
(d)
(e)
(f)
(g)
(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.
(h)
(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 (i) 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 (h)(7) and (h)(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 (i) 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 (h)(4)(i) or (h)(4)(ii) of this section expire. An amendment shall add 15 days to the time period under paragraph (h)(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 (h)(4)(i) or (h)(4)(ii) of this section expire.
(i)
(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 5 U.S.C. 3105, to serve as Hearing Officer.
(j)
(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.
(k)
(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 (n) of this section.
(l)
(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 (m)(4) of this section;
(3) Be present during the entire hearing, except as provided in paragraph (m)(4) of this section; and
(4) Be accompanied, represented, and advised by counsel of the person's choosing.
(m)
(2) Except as provided in paragraph (m)(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 (m)(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
(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.
(n)
(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.
(o)
(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.
(p)
(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.
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 Attorney General for investigation and possible prosecution.