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[Federal Register Volume 77, Number 143 (Wednesday, July 25, 2012)]
[Rules and Regulations]
[Pages 43506-43511]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-18122]

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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 223

[Docket ID: DOD-2010-OS-0108]
RIN 0790-AI64

DoD Unclassified Controlled Nuclear Information (UCNI)

AGENCY: Department of Defense.

ACTION: Final rule.

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SUMMARY: This rule updates policies and responsibilities for 
controlling Department of Defense (DoD) Unclassified Controlled Nuclear 
Information (UCNI) in accordance with the provisions of current U.S. 
Code. This revision streamlines and reflects current practices within 
the Department of Defense. This rule may be altered, in accordance with 
applicable statutory and regulatory requirements, as necessary to align 
with any future direction given in response to on-going efforts 
currently being led by the National Archives and Records Administration 
in the implementation of Executive Order 13556, ``Controlled 
Unclassified Information,'' signed on November 4, 2010.

DATES: This rule is effective August 24, 2012.

FOR FURTHER INFORMATION CONTACT: Linda B. Jones, (757) 229-3866.

SUPPLEMENTARY INFORMATION: The Department of Defense published a 
proposed rule on April 25, 2011 (76 FR 22849-22854). Comments from two 
submitters were received and are addressed below:
    Comment: One submitter suggested clarifications and changes to the 
markings specified by sections 223.6(d) and 223.6(e). We made the 
changes suggested.
    Comment: One comment suggested a change to the placement of the 
required markings for consistency with 32 CFR part 2001.21(b). As 32 
CFR part 2001 applies only to classified national security information, 
we have not changed the placement requirements in the final rule.
    Comment: One comment recommended adding a statement regarding 
parenthetical markings for classified messages. The change was made.
    Comment: Suggestions for clarifying the last half of paragraph 
223.6(d)(3) were made. Changes were incorporated in the final rule when 
we agreed they clarified the guidance.
    Comment: One comment questioned the scope of the allowable 
dissemination within the U.S. Government. A change to the dissemination 
guidance was made.
    Comment: One submitter suggested more definitive guidance on 
identifying information that qualifies for designation as DoD UCNI and 
that which qualifies for classification. Classification of information 
regarding protection of DoD special nuclear material, equipment and 
facilities, is a decision made by an authorized classification 
authority based on his or her reasoned judgment as to the degree of 
damage that could be caused by unauthorized disclosure. As such 
determinations are inherently subjective, risk-managed decisions and, 
thus, it is not possible to identify a ``definitive line where UCNI 
stops and higher classification starts.'' No changes were made as a 
result of this comment.
    Comment: Additional changes were made based on DoD legal and 
editorial review.

Regulatory Procedures

Executive Order 12866, ``Regulatory Planning and Review'' and Executive 
Order 13563, ``Improving Regulation and Regulatory Review''

    It has been certified that 32 CFR part 223 does not:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy; a section of the 
economy; productivity; competition; jobs; the environment; public 
health or safety; or State, local, or tribunal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another Agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs, or the rights and obligations of 
recipients thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
this Executive Order.
    It has been certified that 32 CFR part 223 is not economically 
significant, and 32 CFR part 223 has been reviewed by the Office of 
Management and Budget as required under the provisions of E.O. 12866.

Sec. 202, Public Law 104-4, ``Unfunded Mandates Reform Act''

    It has been certified that 32 CFR part 223 does not contain a 
Federal mandate that may result in the expenditure by State, local, and 
tribunal governments, in aggregate, or by the private sector, of $100 
million or more in any one year.

Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)

    It has been certified that 32 CFR part 223 is not subject to the 
Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if 
promulgated, have a significant economic impact on a substantial number 
of small entities.

Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 35)

    It has been certified that 32 CFR part 223 does not impose 
reporting or recordkeeping requirements under the Paperwork Reduction 
Act of 1995.

Executive Order 13132, ``Federalism''

    It has been certified that 32 CFR part 223 does not have federalism 
implications, as set forth in Executive Order 13132. This rule does not 
have substantial direct effects on:
    (1) The States;
    (2) The relationship between the National Government and the 
States; or
    (3) The distribution of power and responsibilities among the 
various levels of Government.

List of Subjects in 32 CFR Part 223

    National defense, Nuclear energy, Reporting and recordkeeping 
requirements, Security measures.

0
Accordingly, 32 CFR part 223 is revised to read as follows.

[[Page 43507]]

PART 223--DOD UNCLASSIFIED CONTROLLED NUCLEAR INFORMATION (UCNI)

Sec.
223.1 Purpose.
223.2 Applicability.
223.3 Definitions.
223.4 Policy.
223.5 Responsibilities.
223.6 Procedures-identifying and controlling DoD UCNI.
223.7 Procedures-determination of DoD UCNI.

    Authority: 10 U.S.C. 128 and 5 U.S.C. 552(b)(3).

Sec.  223.1  Purpose.

    This part:
    (a) Updates policies, assigns responsibilities and prescribes 
procedures for the implementation of 10 United States Code (U.S.C.) 
128, which is the statutory basis for controlling unclassified 
information on the physical protection of DoD special nuclear material 
(SNM), SNM equipment, and SNM facilities. Such information is referred 
to as DoD UCNI, to distinguish it from a similar Department of Energy 
(DOE) program.
    (b) Identifies the authority to be used for denying disclosure of 
DoD UCNI pursuant to 5 U.S.C. 552.
    (c) Supplements security classification guidance contained in DoD 
Instruction 5210.67,\1\ DOE classification guide CG-SS-4,\2\ and DoD/
DOE joint classification guides by establishing procedures for 
identifying, controlling, and limiting the dissemination of 
unclassified information on the physical protection of DoD SNM.
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    \1\ Copies available on the Internet at http://www.dtic.mil/whs/directives/corres/pdf/521067p.pdf.
    \2\ Copies available to authorized recipients from the Director 
of Classification, Department of Energy.
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Sec.  223.2  Applicability.

    This part applies to:
    (a) Office of the Secretary of Defense, the Military Departments, 
the Office of the Chairman of the Joint Chiefs of Staff and the Joint 
Staff, the Combatant Commands, the Office of the Inspector General of 
the Department of Defense, the Defense Agencies, the DoD Field 
Activities, and all other organizational entities within the Department 
of Defense (hereinafter referred to collectively as the ``DoD 
Components'').
    (b) All SNM, regardless of form, whether in reactor cores or other 
items under the direct control of the DoD Components (hereinafter 
referred to as ``DoD SNM'').
    (c) Nuclear weapons containing SNM that are in DoD custody 
(hereinafter referred to as ``nuclear weapons in DoD custody'').
    (d) Contractors, consultants, and grantees of the Department of 
Defense.

Sec.  223.3  Definitions.

    These terms and their definitions are for the purposes of this 
part:
    (a) Atomic Energy Defense Programs. Activities, equipment, and 
facilities of the Department of Defense that are capable of the 
following:
    (1) Development, production, testing, sampling, maintenance, 
repair, modification, assembly, utilization, transportation, or 
retirement of nuclear weapons or nuclear weapon components.
    (2) Production, utilization, or transportation of DoD SNM for 
military applications.
    (3) Safeguarding of activities, equipment, or facilities that 
support the functions in paragraphs (a)(1) and (a)(2) of this section, 
including the protection of nuclear weapons, nuclear weapon components, 
or DoD SNM for military applications at a fixed facility or in transit.
    (b) Document or material. The physical medium on or in which 
information is recorded, or a product or substance that contains or 
reveals information, regardless of its physical form or 
characteristics.
    (c) DoD UCNI. Unclassified information on the physical protection 
of DoD SNM, SNM equipment, and SNM facilities, including unclassified 
information on the physical protection of nuclear weapons containing 
SNM that are in DoD custody.
    (d) Information. Any fact or concept, regardless of the physical 
form or characteristics of the medium on or in which it is recorded, 
contained, or revealed.
    (e) Intelligence Community. An element or agency of the U.S. 
Government identified in or designated pursuant section 3.5(h) of 
Executive Order 12333, as amended.
    (f) Reviewing official. An individual appointed by the Assistant 
Secretary of Defense for Nuclear, Chemical, and Biological Defense 
Programs who may make a determination that a document or material 
contains, does not contain, or no longer contains DoD UCNI.
    (g) Safeguards. An integrated system of physical protection, 
document and material accounting, and control measures designed to 
deter, prevent, detect, and respond to unauthorized possession, use, or 
sabotage of DoD SNM, SNM equipment, SNM facilities, or nuclear weapons 
in DoD custody.
    (h) SNM. Defined in 42 U.S.C. 2014.
    (i) SNM equipment. Equipment, systems, or components whose failure 
or destruction would cause an impact on safeguarding DoD SNM resulting 
in an unacceptable interruption to a national security program or an 
unacceptable impact on the health and safety of the public.
    (j) SNM facility. A DoD facility that performs a function in 
support of Atomic Energy Defense Programs whose disruption could 
reasonably be expected to have a significant adverse effect on 
safeguarding DoD SNM, the health and safety of the public or the common 
defense and security.
    (k) Unauthorized dissemination. The intentional or negligent 
transfer, in any manner and by any person, of information contained in 
a document or material determined by a reviewing official to contain 
DoD UCNI, and so marked in accordance with the procedures in Sec.  
223.6 of this part, to any person or entity other than an individual or 
entity authorized access to DoD UCNI in accordance with 10 U.S.C. 128 
and this part.

Sec.  223.4  Policy.

    It is DoD policy that:
    (a) Unauthorized dissemination of unclassified information 
pertaining to security measures, including security plans, procedures, 
and equipment, for the physical protection of DoD SNM, SNM equipment, 
SNM facilities, or nuclear weapons in DoD custody is prohibited.
    (b) Unclassified information shall be protected as DoD UCNI based 
on a determination 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 the illegal 
production of nuclear weapons or the theft, diversion, or sabotage of 
DoD SNM, SNM equipment, SNM facilities, or nuclear weapons in DoD 
custody.
    (c) Unclassified information regarding physical protection of DoD 
SNM and nuclear weapons in DoD custody shall be made publicly available 
to the fullest extent possible by applying the minimum restrictions, 
consistent with the requirements of 10 U.S.C. 128, necessary to protect 
the health and safety of the public or the common defense and security.
    (d) This part and title 10 of the Code of Federal Regulations (CFR) 
part 1017 shall be used as guidance for handling DOE UCNI that is under 
DoD control.
    (e) This part does not prevent a determination that information 
previously determined to be DoD UCNI is classified information in 
accordance

[[Page 43508]]

with Volume 1 of DoD Manual 5200.01 \3\ and other applicable standards 
of classification.
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    \3\ Available on the Internet at http://www.dtic.mil/whs/directives/corres/pdf/520001_vol1.pdf.
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Sec.  223.5  Responsibilities.

    (a) The Under Secretary of Defense for Intelligence (USD(I)) shall 
oversee the DoD program for controlling DoD UCNI and coordinate DoD 
compliance with the DOE program for controlling DOE UCNI.
    (b) The Assistant Secretary of Defense for Nuclear, Chemical, and 
Biological Defense Programs (ASD(NCB)), under the authority, direction, 
and control of the Under Secretary of Defense for Acquisition, 
Technology, and Logistics, shall:
    (1) Identify information regarding nuclear weapons security and the 
protection of SNM at DoD nuclear reactor facilities as DoD UCNI and 
protect it from unauthorized dissemination, consistent with the 
requirements of 10 U.S.C. 128 and this part.
    (2) Advise the USD(I) on implementation of the DoD UCNI program.
    (3) Designate a DoD UCNI reviewing official, who shall be 
authorized to determine that materials or documents contain, do not 
contain, or no longer contain DoD UCNI.
    (c) The Director, Administration and Management shall provide 
guidance, as needed, to the Heads of the DoD Components regarding 5 
U.S.C. 552, as implemented by 32 CFR part 286, as it applies to the DoD 
UCNI program.
    (d) The Heads of the DoD Components shall identify DoD UCNI within 
their Component and protect it from unauthorized dissemination, 
consistent with the requirements of 10 U.S.C. 128 and this part.

Sec.  223.6  Procedures-identifying and controlling DoD UCNI.

    (a) General. (1) The decision to protect unclassified information 
as DoD UCNI shall be based on a determination that the unauthorized 
dissemination of such information could reasonably be expected to have 
an adverse effect on the health and safety of the public or the common 
defense and security by increasing significantly the likelihood of the 
illegal production of nuclear weapons or the theft, diversion, or 
sabotage of DoD SNM, SNM equipment, SNM facilities, or nuclear weapons 
in DoD custody. This is called the ``adverse effects test.''
    (2) DoD UCNI shall be identified, controlled, marked, transmitted, 
and safeguarded in the DoD Components, the Intelligence Community, and 
the North Atlantic Treaty Organization (NATO), and among DoD 
contractors, consultants, and grantees. Within NATO, DoD UCNI shall be 
marked, controlled, and safeguarded as ``NATO RESTRICTED'' information.
    (3) Contracts requiring access to or the preparation of 
unclassified information that is or could be DoD UCNI shall require 
compliance with this part and any applicable DoD Component regulations, 
and shall specify requirements for identifying, marking, handling, and 
safeguarding DoD UCNI.
    (b) Identifying DoD UCNI. (1) To be designated and protected as DoD 
UCNI, information must:
    (i) Be unclassified.
    (ii) Pertain to security measures, including plans, procedures, and 
equipment, for the physical protection of DoD SNM, SNM equipment, SNM 
facilities, or nuclear weapons in DoD custody.
    (iii) Meet the adverse effects test.
    (2) Information shall be protected as DoD UCNI if it qualifies for 
one or more of the categories listed in Sec.  223.7(c) and meets the 
criteria in paragraph (b)(1) of this section.
    (3) DoD personnel, in making a determination to protect 
unclassified information as DoD UCNI, shall consider the probability of 
illegal production of nuclear weapons or of theft, diversion, or 
sabotage of DoD SNM, SNM equipment, SNM facilities, or nuclear weapons 
in DoD custody if the information proposed for protection were made 
available for public disclosure and dissemination. The cognizant 
official shall consider how the unauthorized disclosure or 
dissemination of such information could assist a potential adversary 
in:
    (i) Selecting a target for an act of theft, diversion, or sabotage 
of nuclear weapons in DoD custody, DoD SNM, SNM equipment, or SNM 
facilities (e.g., relative importance of a facility or the location, 
form, and quantity of DoD SNM). Information that can be obtained by 
observation from public areas outside controlled locations should not 
be considered as DoD UCNI.
    (ii) Planning or committing an act of theft, diversion, or sabotage 
of nuclear weapons in DoD custody, DoD SNM, SNM equipment, or SNM 
facilities (e.g., design of security systems; building plans; methods 
and procedures for transfer, accountability, and handling of nuclear 
weapons or DoD SNM; or security plans, procedures, and capabilities).
    (iii) Measuring the success of an act of theft, diversion, or 
sabotage of nuclear weapons in DoD custody, DoD SNM, SNM equipment, or 
SNM facilities (e.g., actual or hypothetical consequences of the 
sabotage of specific vital equipment or facilities).
    (iv) Illegally producing a nuclear explosive device (e.g., 
unclassified nuclear weapon design information useful in designing a 
primitive nuclear device; location of unique DoD SNM needed to 
fabricate such a device; or location of a nuclear weapon).
    (v) Dispersing DoD SNM in the environment (e.g., location, form, 
and quantity of DoD SNM).
    (c) Where questions or disagreements arise on designation or 
continued protection of information as DoD UCNI, the reviewing official 
appointed by the ASD(NCB) shall make the final determination. If a 
determination cannot be made because applicable guidance is unclear or 
does not exist, the document or material in question shall be referred 
to the reviewing official for a determination.
    (d) Access to DoD UCNI. (1) No explicit designation or security 
clearance is required for access to DoD UCNI; however, a person granted 
access to DoD UCNI must have a need to know the specific DoD UCNI to 
which access is granted in the performance of official duties or of 
DoD-authorized activities.
    (2) The individual granting access to DoD UCNI shall notify each 
person granted such access of applicable regulations, including the 
physical protection and access requirements, concerning the protection 
of DoD UCNI as well as any special dissemination limitations that apply 
to the specific DoD UCNI to which access is being granted, prior to 
dissemination of the DoD UCNI to the person.
    (3) The requirement to notify persons granted access to DoD UCNI of 
applicable regulations concerning protection and dissemination of DoD 
UCNI may be met by attachment of an appropriate cover sheet to the 
front of each document or material containing DoD UCNI prior to its 
transmittal to the person granted access.
    (e) Marking DoD UCNI. (1) An unclassified document with DoD UCNI 
shall be marked ``DOD UNCLASSIFIED CONTROLLED NUCLEAR INFORMATION'' (or 
abbreviated ``DOD UCNI'') at the bottom on: the outside of the front 
cover, if any; the outside of the back cover, if any; the first page; 
and each individual page containing DoD UCNI.
    (2) Within an unclassified document, an individual page containing 
DoD UCNI shall be marked to show which of its portions contain DoD 
UCNI. In marking sections, parts, paragraphs, or

[[Page 43509]]

similar portions, the parenthetical term ``(DCNI)'' shall be used and 
placed at the beginning of the applicable portions.
    (3) In a classified document, an individual page that has both DoD 
UCNI and classified information shall be marked at the top and bottom 
of the page with the highest security classification of information 
appearing on that page or with the overall classification of the 
document. In marking sections, parts, paragraphs, or similar portions, 
the parenthetical term ``(U//DCNI)'' shall be used and placed at the 
beginning of those portions containing DoD UCNI. In a classified 
document, an individual page that has DoD UCNI, but no classified 
information, shall be marked ``UNCLASSIFIED//DOD UNCLASSIFIED 
CONTROLLED NUCLEAR INFORMATION'' (or ``UNCLASSIFIED//DOD UCNI'') at the 
top and bottom of the page, unless the page is marked with the overall 
classification of the document. The DoD UCNI information may be 
included in the same portion with other classified or unclassified 
information, if all relevant statutory and regulatory markings and 
citations are included. Volume 2 of DoD Manual 5200.01 \4\ provides 
additional guidance on marking classified documents.
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    \4\ Available on the Internet at http://www.dtic.mil/whs/directives/corres/pdf/520001_vol2.pdf.
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    (4) Other material (e.g., electronic media, photographs, films, 
tapes, or slides) containing DoD UCNI shall be conspicuously marked 
``DOD UNCLASSIFIED CONTROLLED NUCLEAR INFORMATION'' (or ``DOD UCNI''), 
in accordance with paragraphs (d)(1) through (d)(3) of this section, to 
ensure that a recipient or viewer is aware of the status of the 
information.
    (e) Dissemination and Transmission. (1) DoD UCNI may be 
disseminated among the DoD Components, members of the Intelligence 
Community, NATO, and DoD contractors, consultants, and grantees on a 
need-to-know basis for the conduct of official business for the 
Department of Defense. Dissemination to NATO or other foreign or 
international entities requires prior review and approval by the 
appropriate dissemination entity.
    (2) Recipients shall be made aware of the status as DoD UCNI for 
all such information disseminated to them. Transmission of DoD UCNI 
shall be by means which preclude unauthorized disclosure or 
dissemination (e.g., secure phone, encrypted email).
    (3) Documents containing DoD UCNI shall be marked as prescribed in 
paragraph (d) of this section. Transmittal documents shall call 
attention to the presence of DoD UCNI attachments using an appropriate 
statement in the text or including at the bottom of the transmittal 
document a statement similar to: ``The attached document contains DoD 
Unclassified Controlled Nuclear Information (DoD UCNI).''
    (4) DoD UCNI transmitted outside the Department of Defense requires 
application of an expanded marking to explain the significance of the 
DoD UCNI marking. That may be accomplished by adding the transmittal 
statement ``DEPARTMENT OF DEFENSE/UNCLASSIFIED CONTROLLED NUCLEAR 
INFORMATION/EXEMPT FROM MANDATORY DISCLOSURE PURSUANT TO 5 U.S.C. 
552(b)(3), AS AUTHORIZED BY 10 U.S.C. 128'' to the document cover 
before transfer.
    (5) When not commingled with classified information, DoD UCNI may 
be sent by first-class mail in a single, opaque envelope, or wrapping.
    (6) DoD UCNI shall not be discussed or transmitted over an 
unprotected telephone or telecommunications circuit (to include 
facsimile transmissions) except in case of an emergency.
    (7) Each part of electronically transmitted messages containing DoD 
UCNI portions shall be marked appropriately. Unclassified messages, 
including email, with DoD UCNI portions shall have the abbreviation 
``DOD UCNI'' at the top of the message, before the beginning of the 
text, and the parenthetical marking ``(DCNI)'' preceding each portion 
of text containing DoD UCNI information. Classified messages containing 
DoD UCNI portions shall be marked with the highest classification of 
information within the message; use the parenthetical marking ``(U//
DCNI)'' preceding each portion of text containing DoD UCNI information.
    (8) DoD UCNI processed, stored, or produced on stand-alone or 
networked computers or other information technology systems shall 
enforce protection from unauthorized disclosure or dissemination, in 
accordance with the procedures in paragraph (f) of this section.
    (9) A document marked as having DoD UCNI may be reproduced 
minimally without permission of the originator and consistent with the 
need to carry out official business.
    (f) Safeguarding DoD UCNI. (1) During normal working hours, 
documents and materials determined to contain DoD UCNI shall be 
safeguarded and controlled by measures designed to reduce the risk of 
access to DoD UCNI by unauthorized individuals. Particular attention 
should be paid to areas where DoD UCNI is used or stored if unescorted 
access by unauthorized individuals is possible.
    (2) At the close of business, DoD UCNI shall be stored to preclude 
disclosure. Storage of such information with other unclassified 
information in unlocked receptacles (e.g., desks, bookcases) is 
adequate if Government or Government-contractor internal building 
security is provided during non-duty hours. When such internal building 
security is not provided, locked rooms or buildings normally provide 
adequate after-hours protection. If such protection is not considered 
adequate, DoD UCNI shall be stored in locked receptacles (e.g., locked 
file cabinet, locked desk drawer, safe).
    (3) Non-record copies of DoD UCNI shall be destroyed by shredding 
or burning or, if the sensitivity or volume of the information 
justifies it, in accordance with the procedures specified by Volume 3 
of DoD Manual 5200.01 \5\ for classified information. Record copies of 
DoD UCNI shall be disposed of in accordance with the DoD Component's 
record management regulations. DoD UCNI on magnetic storage media shall 
be disposed of by overwriting to preclude its reconstruction. DoD UCNI 
in electronic form shall be deleted and also removed from any desktop 
trash or recycling files.
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    \5\ Available on the Internet at http://www.dtic.mil/whs/directives/corres/pdf/520001_vol3.pdf.
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    (4) Unauthorized dissemination and disclosure of DoD UCNI justifies 
investigative and administrative actions to determine cause, assess 
impact, and fix responsibility. The DoD Component that originated the 
DoD UCNI shall be informed of its unauthorized disclosure and the 
outcome of the investigative and administrative actions. Unauthorized 
disclosure of DoD UCNI does not constitute a compromise of classified 
information.
    (g) Retirement of Document or Material. (1) Any unclassified 
document or material that is not marked as containing DoD UCNI but that 
may contain DoD UCNI shall be marked upon retirement in accordance with 
the DoD Component's record management regulations.
    (2) A document or material marked as containing DoD UCNI is not 
required to be reviewed upon, or subsequent, to retirement. Retired 
documents or materials shall be reviewed in accordance with paragraph 
(h) of this section upon a request for their release made pursuant to 5 
U.S.C. 552.

[[Page 43510]]

    (h) Requests for Public Release of UCNI. (1) Pursuant to 10 U.S.C. 
128, information that qualifies as DoD UCNI is exempt from mandatory 
disclosure pursuant to 5 U.S.C. 552. Requests for the public release of 
DoD UCNI shall be denied, in accordance with procedures established in 
32 CFR part 286, pursuant to 5 U.S.C. 552(b)(3), citing 10 U.S.C. 128 
as authority.
    (2) Requests for DOE UCNI contained within DoD documents shall also 
be denied pursuant to 5 U.S.C. 552(b)(3), but 42 U.S.C 2168 shall be 
cited, after formal FOIA consultation with the DOE, as the basis for 
invoking the exemption. Requests for DOE documents will be formally 
referred to DOE for final adjudication and response to the requestor.
    (3) The reviewing official designated by the ASD (NCB) shall review 
any retired DoD UCNI document or material upon a request for its 
release made pursuant to 5 U.S.C. 552.

Sec.  223.7  Procedures-determination of DoD UCNI.

    (a) Use of the Guidelines. (1) The guidelines in this section are 
the basis for determining what unclassified information regarding the 
physical protection of DoD SNM, SNM equipment, SNM facilities, or 
nuclear weapons in DoD custody, in a given technical or programmatic 
subject area are to be designated as DoD UCNI.
    (2) The decision to protect unclassified information as DoD UCNI 
shall be based on a determination that the unauthorized dissemination 
of such information could reasonably be expected to have an adverse 
effect on the health and safety of the public or the common defense and 
security by significantly increasing the likelihood of the illegal 
production of nuclear weapons or the theft, diversion, or sabotage of 
SNM, SNM equipment, SNM facilities, or nuclear weapons in DoD custody.
    (b) General Guidance. (1) Unclassified information relating to the 
physical protection of DoD SNM, SNM equipment, SNM facilities, or 
nuclear weapons in DoD custody is to be protected from public 
disclosure to prevent the adverse effects identified in paragraph 
(a)(2) of this section. Public availability of information that would 
not result in such adverse effects is not to be restricted.
    (2) In controlling DoD SNM information, only the minimum 
restrictions needed to protect the health and safety of the public or 
the common defense and security shall be applied to prohibit the 
disclosure and dissemination of DoD UCNI.
    (3) Any information that has been, or is, widely and irretrievably 
disseminated in the public domain and whose dissemination was not, or 
is not, under Government control is exempt from control under these 
guidelines. However, the fact that information is in the public domain 
is not a sufficient basis for determining that similar or updated 
Government-owned and -controlled information in another document or 
other material is not, or is no longer, DoD UCNI; case-by-case 
determinations are required.
    (c) Topical Guidance. DoD Components shall consider the topics 
discussed in this section during the preparation of unclassified 
information that addresses the physical protection of DoD SNM or 
nuclear weapons in DoD custody to determine if it qualifies for control 
as DoD UCNI.
    (1) Vulnerability Assessments. (i) General vulnerabilities that 
could be associated with specific DoD SNM, SNM equipment, SNM facility 
locations, or DoD nuclear weapons storage facilities.
    (ii) The fact that DoD SNM or nuclear weapons facility security-
related projects or upgrades are planned or in progress, if not 
observable from a public area.
    (iii) Identification and description of security system components 
intended to mitigate the consequences of an accident or act of sabotage 
at a DoD SNM or nuclear weapons facility.
    (2) Material Control and Accountability. (i) Total quantity or 
categories of DoD SNM at a facility.
    (ii) Control and accountability plans or procedures.
    (iii) Receipts that, cumulatively, would reveal quantities and 
categories of DoD SNM of potential interest to an adversary.
    (iv) Measured discards, decay losses, or losses due to fission and 
transmutation for a reporting period.
    (v) Frequency and schedule of DoD SNM inventories.
    (3) Facility Description. (i) Maps, conceptual design, and 
construction drawings of a DoD SNM or nuclear weapons facility showing 
construction characteristics of building(s) and associated electrical 
systems, barriers, and back-up power systems not observable from a 
public area.
    (ii) Maps, plans, photographs, or drawings of man-made or natural 
features in a DoD SNM or nuclear weapons facility not observable from a 
public area; e.g., tunnels, storm or waste sewers, water intake and 
discharge conduits, or other features having the potential for 
concealing surreptitious movement.
    (iii) Communications and computer network configurations and 
capabilities.
    (4) Intrusion Detection and Security Alarm Systems. (i) Information 
on the layout or design of security and alarm systems at a specific DoD 
SNM or nuclear weapons facility, if the information is not observable 
from a public area.
    (ii) The fact that a particular system make or model has been 
installed at a specific DoD SNM or nuclear weapons facility, if the 
information is not observable from a public area.
    (iii) Performance characteristics of installed systems.
    (5) Keys, Locks, Combinations, and Tamper-Indicating Devices. (i) 
Types and models of keys, locks, and combinations of locks used in DoD 
SNM or nuclear weapons facilities and during shipment.
    (ii) Method of application of tamper-indicating devices.
    (iii) Vulnerability information available from unclassified vendor 
specifications.
    (6) Threat Response Capability and Procedures. (i) Information 
about arrangements with local, State, and Federal law enforcement 
agencies of potential interest to an adversary.
    (ii) Information in ``non-hostile'' contingency plans of potential 
value to an adversary to defeat a security measure, e.g., fire, safety, 
nuclear accident, radiological release, or other administrative plans.
    (iii) Required response time of security forces.
    (7) Physical Security Evaluations. (i) Method of evaluating 
physical security measures not observable from public areas.
    (ii) Procedures for inspecting and testing communications and 
security systems.
    (8) In-Transit Security. (i) Fact that a shipment is going to take 
place.
    (ii) Specific means of protecting shipments.
    (iii) Number and size of packages.
    (iv) Mobile operating and communications procedures that an 
adversary could exploit.
    (v) Information on mode, routing, protection, communications, and 
operations that must be shared with law enforcement or other civil 
agencies, but not visible to the public.
    (vi) Description and specifications of transport vehicle 
compartments or security systems not visible to the public.
    (9) Information on Nuclear Weapon Stockpile and Storage 
Requirements, Nuclear Weapon Destruction and Disablement Systems, and 
Nuclear Weapon Physical Characteristics. Refer

[[Page 43511]]

to DOE CG-SS-4 for guidance about the physical protection of 
information on nuclear weapon stockpile and storage requirements, 
nuclear weapon destruction and disablement systems, and nuclear weapon 
physical characteristics that may, under certain circumstances, be 
unclassified. Such information meeting the adverse effects test shall 
be protected as DoD UCNI.

    Dated: July 16, 2012.
Patricia L. Toppings,
OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2012-18122 Filed 7-24-12; 8:45 am]
BILLING CODE 5001-06-P
```