Collapse to view only § 2163. Access to Restricted Data
- § 2161. Policy of Commission
- § 2162. Classification and declassification of Restricted Data
- § 2163. Access to Restricted Data
- § 2164. International cooperation
- § 2165. Security restrictions
- § 2166. Applicability of other laws
- § 2167. Safeguards information
- § 2168. Dissemination of unclassified information
- § 2169. Fingerprinting for criminal history record checks
§ 2161. Policy of Commission
It shall be the policy of the Commission to control the dissemination and declassification of Restricted Data in such a manner as to assure the common defense and security. Consistent with such policy, the Commission shall be guided by the following principles:
(a) Until effective and enforceable international safeguards against the use of atomic energy for destructive purposes have been established by an international arrangement, there shall be no exchange of Restricted Data with other nations except as authorized by section 2164 of this title; and
(b) The dissemination of scientific and technical information relating to atomic energy should be permitted and encouraged so as to provide that free interchange of ideas and criticism which is essential to scientific and industrial progress and public understanding and to enlarge the fund of technical information.
(Aug. 1, 1946, ch. 724, title I, § 141, as added Aug. 30, 1954, ch. 1073, § 1, 68 Stat. 940; renumbered title I, Pub. L. 102–486, title IX, § 902(a)(8), Oct. 24, 1992, 106 Stat. 2944.)
§ 2162. Classification and declassification of Restricted Data
(a) Periodic determination
(b) Continuous review
(c) Joint determination on atomic weapons; Presidential determination on disagreement
(d) Removal from Restricted Data category
(1) The Commission shall remove from the Restricted Data category such data as the Commission and the Department of Defense jointly determine relates primarily to the military utilization of atomic weapons and which the Commission and Department of Defense jointly determine can be adequately safeguarded as defense information: Provided, however, That no such data so removed from the Restricted Data category shall be transmitted or otherwise made available to any nation or regional defense organization, while such data remains defense information, except pursuant to an agreement for cooperation entered into in accordance with subsection (b) or (d) of section 2164 of this title.
(2) The Commission may restore to the Restricted Data category any information related to the design of nuclear weapons removed under paragraph (1) if the Commission and the Department of Defense jointly determine that—
(A) the programmatic requirements that caused the information to be removed from the Restricted Data category are no longer applicable or have diminished;
(B) the information would be more appropriately protected as Restricted Data; and
(C) restoring the information to the Restricted Data category is in the interest of national security.
(3) In carrying out paragraph (2), information related to the design of nuclear weapons shall be restored to the Restricted Data category in accordance with regulations prescribed for purposes of such paragraph.
(e) Joint determination on atomic energy programs
(1) The Commission shall remove from the Restricted Data category such information concerning the atomic energy programs of other nations as the Commission and the Director of National Intelligence jointly determine to be necessary to carry out the provisions of section 102(d) of the National Security Act of 1947, as amended,1
1 See References in Text note below.
and can be adequately safeguarded as defense information.(2) The Commission may restore to the Restricted Data category any information concerning atomic energy programs of other nations removed under paragraph (1) if the Commission and the Director of National Intelligence jointly determine that—
(A) the programmatic requirements that caused the information to be removed from the Restricted Data category are no longer applicable or have diminished;
(B) the information would be more appropriately protected as Restricted Data; and
(C) restoring the information to the Restricted Data category is in the interest of national security.
(3) In carrying out paragraph (2), information concerning atomic energy programs of other nations shall be restored to the Restricted Data category in accordance with regulations prescribed for purposes of such paragraph.
(Aug. 1, 1946, ch. 724, title I, § 142, as added Aug. 30, 1954, ch. 1073, § 1, 68 Stat. 941; amended Pub. L. 102–484, div. C, title XXXI, § 3152, Oct. 23, 1992, 106 Stat. 2644; renumbered title I, Pub. L. 102–486, title IX, § 902(a)(8), Oct. 24, 1992, 106 Stat. 2944; Pub. L. 103–337, div. A, title XXXI, § 3155(c)(2), (3), Oct. 5, 1994, 108 Stat. 3092; Pub. L. 112–239, div. C, title XXXI, § 3163, Jan. 2, 2013, 126 Stat. 2205.)
§ 2163. Access to Restricted Data
The Commission may authorize any of its employees, or employees of any contractor, prospective contractor, licensee or prospective licensee of the Commission or any other person authorized access to Restricted Data by the Commission under section 2165(b) and (c) of this title to permit any employee of an agency of the Department of Defense or of its contractors, or any member of the Armed Forces to have access to Restricted Data required in the performance of his duties and so certified by the head of the appropriate agency of the Department of Defense or his designee: Provided, however, That the head of the appropriate agency of the Department of Defense or his designee has determined, in accordance with the established personnel security procedures and standards of such agency, that permitting the member or employee to have access to such Restricted Data will not endanger the common defense and security: And provided further, That the Secretary of Defense finds that the established personnel and other security procedures and standards of such agency are adequate and in reasonable conformity to the standards established by the Commission under section 2165 of this title.
(Aug. 1, 1946, ch. 724, title I, § 143, as added Aug. 30, 1954, ch. 1073, § 1, 68 Stat. 941; amended Aug. 6, 1956, ch. 1015, § 14, 70 Stat. 1071; Pub. L. 87–206, § 5, Sept. 6, 1961, 75 Stat. 476; renumbered title I, Pub. L. 102–486, title IX, § 902(a)(8), Oct. 24, 1992, 106 Stat. 2944.)
§ 2164. International cooperation
(a) By CommissionThe President may authorize the Commission to cooperate with another nation and to communicate to that nation Restricted Data on—
(1) refining, purification, and subsequent treatment of source material;
(2) civilian reactor development;
(3) production of special nuclear material;
(4) health and safety;
(5) industrial and other applications of atomic energy for peaceful purposes; and
(6) research and development relating to the foregoing:
(b) By Department of DefenseThe President may authorize the Department of Defense, with the assistance of the Commission, to cooperate with another nation or with a regional defense organization to which the United States is a party, and to communicate to that nation or organization such Restricted Data (including design information) as is necessary to—
(1) the development of defense plans;
(2) the training of personnel in the employment of and defense against atomic weapons and other military applications of atomic energy;
(3) the evaluation of the capabilities of potential enemies in the employment of atomic weapons and other military applications of atomic energy; and
(4) the development of compatible delivery systems for atomic weapons;
whenever the President determines that the proposed cooperation and the proposed communication of the Restricted Data will promote and will not constitute an unreasonable risk to the common defense and security, while such other nation or organization is participating with the United States pursuant to an international arrangement by substantial and material contributions to the mutual defense and security: Provided, however, That the cooperation is undertaken pursuant to an agreement entered into in accordance with section 2153 of this title.
(c) Exchange of information concerning atomic weapons; research, development, or design, of military reactorsIn addition to the cooperation authorized in subsections (a) and (b), the President may authorize the Commission, with the assistance of the Department of Defense, to cooperate with another nation and—
(1) to exchange with that nation Restricted Data concerning atomic weapons: Provided, That communication of such Restricted Data to that nation is necessary to improve its atomic weapon design, development, or fabrication capability and provided that nation has made substantial progress in the development of atomic weapons; and
(2) to communicate or exchange with that nation Restricted Data concerning research, development, or design, of military reactors,
whenever the President determines that the proposed cooperation and the communication of the proposed Restricted Data will promote and will not constitute an unreasonable risk to the common defense and security, while such other nation is participating with the United States pursuant to an international arrangement by substantial and material contributions to the mutual defense and security: Provided, however, That the cooperation is undertaken pursuant to an agreement entered into in accordance with section 2153 of this title.
(d) By Department of Energy
(1) In addition to the cooperation authorized in subsections (a), (b), and (c), the President may, upon making a determination described in paragraph (2), authorize the Department of Energy, with the assistance of the Department of Defense, to cooperate with another nation to communicate to that nation such Restricted Data, and the President may, upon making such determination, authorize the Department of Defense, with the assistance of the Department of Energy, to cooperate with another nation to communicate to that nation such data removed from the Restricted Data category under section 2162 of this title, as is necessary for—
(A) the support of a program for the control of and accounting for fissile material and other weapons material;
(B) the support of the control of and accounting for atomic weapons;
(C) the verification of a treaty; and
(D) the establishment of international standards for the classification of data on atomic weapons, data on fissile material, and related data.
(2) A determination referred to in paragraph (1) is a determination that the proposed cooperation and proposed communication referred to in that paragraph—
(A) will promote the common defense and security interests of the United States and the nation concerned; and
(B) will not constitute an unreasonable risk to such common defense and security interests.
(3) Cooperation under this subsection shall be undertaken pursuant to an agreement for cooperation entered into in accordance with section 2153 of this title.
(e) Communication of data by other Government agencies
(Aug. 1, 1946, ch. 724, title I, § 144, as added Aug. 30, 1954, ch. 1073, § 1, 68 Stat. 942; amended Pub. L. 85–479, §§ 5–7, July 2, 1958, 72 Stat. 278; renumbered title I, Pub. L. 102–486, title IX, § 902(a)(8), Oct. 24, 1992, 106 Stat. 2944; Pub. L. 103–337, div. C, title XXXI, § 3155(a), (c)(4), Oct. 5, 1994, 108 Stat. 3091, 3092.)
§ 2165. Security restrictions
(a) On contractors and licensees
(b) Employment of personnel; access to Restricted Data
(c) Acceptance of investigation and clearance granted by other Government agencies
(d) Investigations by FBI
(e) Presidential investigation
(1) If the President deems it to be in the national interest he may from time to time determine that investigations of any group or class which are required by subsections (a), (b), and (c) of this section be made by the Federal Bureau of Investigation.
(2) In the case of an individual employed in a program known as a Special Access Program, any investigation required by subsections (a), (b), and (c) of this section shall be made by the Federal Bureau of Investigation.
(f) Performance of personnel security investigations by FBI
(1) Notwithstanding the provisions of subsections (a), (b), and (c) of this section, but subject to subsection (e) of this section, a majority of the members of the Commission may direct that an investigation required by such provisions on an individual described in paragraph (2) be carried out by the Federal Bureau of Investigation rather than by the Civil Service Commission.
(2) An individual described in this paragraph is an individual who is employed—
(A) in a program certified by a majority of the members of the Commission to be of a high degree of importance or sensitivity; or
(B) in any other specific position certified by a majority of the members of the Commission to be of a high degree of importance or sensitivity.
(g) Investigation standards
(h) War time clearance
(Aug. 1, 1946, ch. 724, title I, § 145, as added Aug. 30, 1954, ch. 1073, § 1, 68 Stat. 942; amended Pub. L. 85–681, § 5, Aug. 19, 1958, 72 Stat. 633; Pub. L. 87–206, § 6, Sept. 6, 1961, 75 Stat. 476; Pub. L. 87–615, § 10, Aug. 29, 1962, 76 Stat. 411; 1978 Reorg. Plan No. 2, § 102, eff. Jan. 1, 1979, 43 F.R. 36037, 92 Stat. 3783; renumbered title I, Pub. L. 102–486, title IX, § 902(a)(8), Oct. 24, 1992, 106 Stat. 2944; Pub. L. 106–65, div. C, title XXXI, § 3144(a), Oct. 5, 1999, 113 Stat. 934; Pub. L. 108–136, div. C, title XXXI, § 3131, Nov. 24, 2003, 117 Stat. 1749.)
§ 2166. Applicability of other laws
(a) Sections 2161 to 2165 of this title shall not exclude the applicable provisions of any other laws, except that no Government agency shall take any action under such other laws inconsistent with the provisions of those sections.
(b) The Commission shall have no power to control or restrict the dissemination of information other than as granted by this or any other law.
(Aug. 1, 1946, ch. 724, title I, § 146, as added Aug. 30, 1954, ch. 1073, § 1, 68 Stat. 943; renumbered title I, Pub. L. 102–486, title IX, § 902(a)(8), Oct. 24, 1992, 106 Stat. 2944.)
§ 2167. Safeguards information
(a) Confidentiality of certain types of information; issuance of regulations and orders; considerations for exercise of Commission’s authority; disclosure of routes and quantities of shipment; civil penalties; withholding of information from Congressional committees
In addition to any other authority or requirement regarding protection from disclosure of information, and subject to subsection (b)(3) of section 552 of title 5, the Commission shall prescribe such regulations, after notice and opportunity for public comment, or issue such orders, as necessary to prohibit the unauthorized disclosure of safeguards information which specifically identifies a licensee’s or applicant’s detailed—
(1) control and accounting procedures or security measures (including security plans, procedures, and equipment) for the physical protection of special nuclear material, by whomever possessed, whether in transit or at fixed sites, in quantities determined by the Commission to be significant to the public health and safety or the common defense and security;
(2) security measures (including security plans, procedures, and equipment) for the physical protection of source material or byproduct material, by whomever possessed, whether in transit or at fixed sites, in quantities determined by the Commission to be significant to the public health and safety or the common defense and security; or
(3) security measures (including security plans, procedures, and equipment) for the physical protection of and the location of certain plant equipment vital to the safety of production or utilization facilities involving nuclear materials covered by paragraphs (1) and (2) 1
1 So in original. Probably should be followed by a semicolon.
if the unauthorized disclosure 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 theft, diversion, or sabotage of such material or such facility. The Commission shall exercise the authority of this subsection—
(A) so as to apply the minimum restrictions needed to protect the health and safety of the public or the common defense and security, and
(B) upon a determination that the unauthorized disclosure 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 theft, diversion, or sabotage of such material or such facility.
Nothing in this chapter shall authorize the Commission to prohibit the public disclosure of information pertaining to the routes and quantities of shipments of source material, by-product material, high level nuclear waste, or irradiated nuclear reactor fuel. Any person, whether or not a licensee of the Commission, who violates any regulation adopted under this section shall be subject to the civil monetary penalties of section 2282 of this title. Nothing in this section shall be construed to authorize the withholding of information from the duly authorized committees of the Congress.
(b) Regulations or orders issued under this section and section 2201(b) of this title for purposes of section 2273 of this title
(c) Judicial review
(d) Reports to Congress; contents
Upon prescribing or issuing any regulation or order under subsection (a) of this section, the Commission shall submit to Congress a report that:
(1) specifically identifies the type of information the Commission intends to protect from disclosure under the regulation or order;
(2) specifically states the Commission’s justification for determining that unauthorized disclosure of the information to be protected from disclosure under the regulation or order 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 theft, diversion, or sabotage of such material or such facility, as specified under subsection (a) of this section; and
(3) provides justification, including proposed alternative regulations or orders, that the regulation or order applies only the minimum restrictions needed to protect the health and safety of the public or the common defense and security.
(Aug. 1, 1946, ch. 724, title I, § 147, as added Pub. L. 96–295, title II, § 207(a)(1), June 30, 1980, 94 Stat. 788; renumbered title I, Pub. L. 102–486, title IX, § 902(a)(8), Oct. 24, 1992, 106 Stat. 2944.)
§ 2168. Dissemination of unclassified information
(a) Dissemination prohibited; rules and regulations; determinations of Secretary prerequisite to issuance of prohibiting regulations or orders; criteria
(1) In addition to any other authority or requirement regarding protection from dissemination of information, and subject to section 552(b)(3) of title 5, the Secretary of Energy (hereinafter in this section referred to as the “Secretary”), with respect to atomic energy defense programs, shall prescribe such regulations, after notice and opportunity for public comment thereon, or issue such orders as may be necessary to prohibit the unauthorized dissemination of unclassified information pertaining to—
(A) the design of production facilities or utilization facilities;
(B) security measures (including security plans, procedures, and equipment) for the physical protection of (i) production or utilization facilities, (ii) nuclear material contained in such facilities, or (iii) nuclear material in transit; or
(C) the design, manufacture, or utilization of any atomic weapon or component if the design, manufacture, or utilization of such weapon or component was contained in any information declassified or removed from the Restricted Data category by the Secretary (or the head of the predecessor agency of the Department of Energy) pursuant to section 2162 of this title.
(2) The Secretary may prescribe regulations or issue orders under paragraph (1) to prohibit the dissemination of any information described in such paragraph only if and to the extent that the Secretary determines 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 (A) illegal production of nuclear weapons, or (B) theft, diversion, or sabotage of nuclear materials, equipment, or facilities.
(3) In making a determination under paragraph (2), the Secretary may consider what the likelihood of an illegal production, theft, diversion, or sabotage referred to in such paragraph would be if the information proposed to be prohibited from dissemination under this section were at no time available for dissemination.
(4) The Secretary shall exercise his authority under this subsection to prohibit the dissemination of any information described in paragraph (1) of this subsection—
(A) so as to apply the minimum restrictions needed to protect the health and safety of the public or the common defense and security; and
(B) upon a determination that the unauthorized dissemination of such information 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 (i) illegal production of nuclear weapons, or (ii) theft, diversion, or sabotage of nuclear materials, equipment, or facilities.
(5) Nothing in this section shall be construed to authorize the Secretary to authorize the withholding of information from the appropriate committees of the Congress.
(b) Civil penalties
(1) Any person who violates any regulation or order of the Secretary issued under this section with respect to the unauthorized dissemination of information shall be subject to a civil penalty, to be imposed by the Secretary, of not to exceed $100,000 for each such violation. The Secretary may compromise, mitigate, or remit any penalty imposed under this subsection.
(2) The provisions of subsections (b) and (c) of section 2282 of this title, shall be applicable with respect to the imposition of civil penalties by the Secretary under this section in the same manner that such provisions are applicable to the imposition of civil penalties by the Commission under subsection (a) of such section.
(c) Criminal penalties
(d) Judicial review
(Aug. 1, 1946, ch. 724, title I, § 148, as added Pub. L. 97–90, title II, § 210(a)(1), Dec. 4, 1981, 95 Stat. 1169; amended Pub. L. 97–415, § 17, Jan. 4, 1983, 96 Stat. 2076; renumbered title I, Pub. L. 102–486, title IX, § 902(a)(8), Oct. 24, 1992, 106 Stat. 2944; Pub. L. 112–239, div. C, title XXXI, § 3134(c), Jan. 2, 2013, 126 Stat. 2193.)
§ 2169. Fingerprinting for criminal history record checks
(a) In general
(1)
(A)
(i) The Commission shall require each individual or entity described in clause (ii) to fingerprint each individual described in subparagraph (B) before the individual described in subparagraph (B) is permitted access under subparagraph (B).
(ii) The individuals and entities referred to in clause (i) are individuals and entities that, on or before the date on which an individual is permitted access under subparagraph (B)—(I) are licensed or certified to engage in an activity subject to regulation by the Commission;(II) have filed an application for a license or certificate to engage in an activity subject to regulation by the Commission; or(III) have notified the Commission in writing of an intent to file an application for licensing, certification, permitting, or approval of a product or activity subject to regulation by the Commission.
(B) The Commission shall require to be fingerprinted any individual who—
(i) is permitted unescorted access to—(I) a utilization facility; or(II) radioactive material or other property subject to regulation by the Commission that the Commission determines to be of such significance to the public health and safety or the common defense and security as to warrant fingerprinting and background checks; or
(ii) is permitted access to safeguards information under section 2167 of this title.
(2) All fingerprints obtained by an individual or entity as required in paragraph (1) shall be submitted to the Attorney General of the United States through the Commission for identification and a criminal history records check.
(3) The costs of an identification or records check under paragraph (2) shall be paid by the individual or entity required to conduct the fingerprinting under paragraph (1)(A).
(4) Notwithstanding any other provision of law—
(A) the Attorney General may provide any result of an identification or records check under paragraph (2) to the Commission; and
(B) the Commission, in accordance with regulations prescribed under this section, may provide the results to the individual or entity required to conduct the fingerprinting under paragraph (1)(A).
(b) Waiver
(c) RegulationsFor purposes of administering this section, the Commission shall prescribe requirements—
(1) to implement procedures for the taking of fingerprints;
(2) to establish the conditions for use of information received from the Attorney General, in order—
(A) to limit the redissemination of such information;
(B) to ensure that such information is used solely for the purpose of determining whether an individual shall be permitted unescorted access to a utilization facility, radioactive material, or other property described in subsection (a)(1)(B) or shall be permitted access to safeguards information under section 2167 of this title;
(C) to ensure that no final determination may be made solely on the basis of information provided under this section involving—
(i) an arrest more than 1 year old for which there is no information of the disposition of the case; or
(ii) an arrest that resulted in dismissal of the charge or an acquittal; and
(D) to protect individuals subject to fingerprinting under this section from misuse of the criminal history records; and
(3) to provide each individual subject to fingerprinting under this section with the right to complete, correct, and explain information contained in the criminal history records prior to any final adverse determination.
(d) Use of biometric methodsThe Commission may require a person or individual to conduct fingerprinting under subsection (a)(1) by authorizing or requiring the use of any alternative biometric method for identification that has been approved by—
(1) the Attorney General; and
(2) the Commission, by regulation.
(e) Processing fees; use of amounts collected
(1) The Commission may establish and collect fees to process fingerprints and criminal history records under this section.
(2) Notwithstanding section 3302(b) of title 31, and to the extent approved in appropriation Acts—
(A) a portion of the amounts collected under this subsection in any fiscal year may be retained and used by the Commission to carry out this section; and
(B) the remaining portion of the amounts collected under this subsection in such fiscal year may be transferred periodically to the Attorney General and used by the Attorney General to carry out this section.
(3) Any amount made available for use under paragraph (2) shall remain available until expended.
(Aug. 1, 1946, ch. 724, title I, § 149, as added Pub. L. 99–399, title VI, § 606(a), Aug. 27, 1986, 100 Stat. 876; renumbered title I, Pub. L. 102–486, title IX, § 902(a)(8), Oct. 24, 1992, 106 Stat. 2944; Pub. L. 109–58, title VI, § 652, Aug. 8, 2005, 119 Stat. 810.)