43506 Federal Register / Vol. 77, No. 143 / Wednesday, July 25, 2012 / Rules and Regulations 

Commission processing of the appeal. 

* * * 

§ 1614.502 [Amended] 

■ 14. In § 1614.502, amend the last 

sentence of paragraph (c) by removing 

the words ‘‘60 days’’ and adding in their 

place add the words ‘‘120 days’’. 

■ 15. In § 1614.504, revise the second 

sentence of paragraph (c) to read as 

follows: 

§ 1614.504 Compliance with settlement 

agreements and final action. 

* * * * * 

(c) * * * If the Commission 

determines that the agency is not in 

compliance with a decision or 

settlement agreement, and the 

noncompliance is not attributable to 

acts or conduct of the complainant, it 

may order such compliance with the 

decision or settlement agreement, or, 

alternatively, for a settlement 

agreement, it may order that the 

complaint be reinstated for further 

processing from the point processing 

ceased. * * * 

[FR Doc. 2012–18134 Filed 7–24–12; 8:45 am] 

BILLING CODE 6570–01–P 

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. 

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. 

■ Accordingly, 32 CFR part 223 is 

revised to read as follows. 


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1Copies available on the Internet at http:// 

www.dtic.mil/whs/directives/corres/pdf/ 

521067p.pdf. 

2Copies available to authorized recipients from 

the Director of Classification, Department of Energy. 

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). 

§ 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. 

§ 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. 

§ 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 § 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. 

§ 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 


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with Volume 1 of DoD Manual 5200.01 3

and other applicable standards of 

classification. 

§ 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. 

§ 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 § 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 


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4Available on the Internet at http://www.dtic.mil/ 

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5Available on the Internet at http://www.dtic.mil/ 

whs/directives/corres/pdf/520001_vol3.pdf. 

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. 

(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. 

(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. 


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(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. 

§ 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 tamperindicating 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 


TKELLEY on DSK3SPTVN1PROD with RULES
Federal Register / Vol. 77, No. 143 / Wednesday, July 25, 2012 / Rules and Regulations 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 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 100 

[Docket Number USCG–2012–0341] 

RIN 1625–AA08 

Special Local Regulations for Marine 

Events, Temporary Change of Dates 

for Recurring Marine Events in the 

Fifth Coast Guard District, Wrightsville 

Channel; Wrightsville Beach, NC 

AGENCY: Coast Guard, DHS. 

ACTION: Temporary final rule. 

SUMMARY: The Coast Guard is 

temporarily changing the enforcement 

period of one special local regulation for 

a recurring marine event in the Fifth 

Coast Guard District, specifically the 

‘‘Wilmington YMCA Triathlon’’, locally 

known as the ‘‘Beach 2 Battleship’’, 

conducted on the waters of Wrightsville 

Channel near Wrightsville Beach, North 

Carolina. This Special Local Regulation 

is necessary to provide for the safety of 

life on navigable waters during the 

event, which has been rescheduled from 

the last Saturday in October or the first 

or second Saturday in November to the 

third Saturday in October. This action is 

intended to restrict vessel traffic on 

Wrightsville Channel during the 

swimming portion of this event. 

DATES: This rule is effective from 

September 15, 2012 until November 15, 

2012. The regulated area discussed in 

this rule will be enforced on October 20, 

2012 from 7 a.m. until 11 a.m. 

ADDRESSES: Documents mentioned in 

this preamble are part of docket [USCG– 

2012–0341]. To view documents 

mentioned in this preamble as being 

available in the docket, go to http:// 

www.regulations.gov, type the docket 

number in the ‘‘SEARCH’’ box and click 

‘‘SEARCH.’’ Click on Open Docket 

Folder on the line associated with this 

rulemaking. You may also visit the 

Docket Management Facility in Room 

W12–140 on the ground floor of the 

Department of Transportation West 

Building, 1200 New Jersey Avenue SE., 

Washington, DC 20590, between 9 a.m. 

and 5 p.m., Monday through Friday, 

except Federal holidays. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions on this rule, call or 

email BOSN4 Joseph M. Edge, Coast 

Guard Sector North Carolina, Coast 

Guard; telephone 252–247–4525, email 

Joseph.M.Edge@uscg.mil. If you have 

questions on viewing or submitting 

material to the docket, call Renee V. 

Wright, Program Manager, Docket 

Operations, telephone (202) 366–9826. 

SUPPLEMENTARY INFORMATION: 

Table of Acronyms 

DHS Department of Homeland Security 

FR Federal Register 

NPRM Notice of Proposed Rulemaking 

A. Regulatory History and Information 

Annually, since 2008, a regulation has 

been enforced for the ‘‘Wilmington 

YMCA Triathlon’’, locally known as the 

‘‘Beach 2 Battleship’’. The event was 

recently added to 33 CFR 100.501 on 

January 19, 2012 in 77 FR 2629. 

Historically no comments or objections 

have been received for the regulation. 

Based on tidal predictions the sponsor 

has requested a change to the effective 

dates of this rule. 

On May 24, 2012 a Notice of Proposed 

Rule Making (NRPM) was published in 

33 FR 30929 reflecting the change to the 

effective dates. We received no 

comments on the proposed rule. No 

public meeting was requested, and none 

was held. 

B. Basis and Purpose 

The YMCA sponsors an annual 

Triathlon, ‘‘Wilmington YMCA 

Triathlon’’, locally known as the ‘‘Beach 

2 Battleship’’, in the Wrightsville Beach 

area of North Carolina. The Triathlon 

consists of three events: a running 

portion, a bike-riding portion, and a 

swimming portion. The swimming 

portion of the Triathlon takes place in 

the waters adjacent to Wrightsville 

Beach. A special local regulation is 

effective annually to create a safety zone 

for the swimming portion of the 

Triathlon. 

The regulation listing annual marine 

events within the Fifth Coast Guard 

District and corresponding dates is 33 

CFR 100.501. The Table to § 100.501 

identifies marine events by Captain of 

the Port zone. This particular marine 

event is listed in section (d.) line No. 4 

of the table. 

The current regulation described in 

section (d.) line No. 4 of the table 

indicates the Triathlon should take 

place this year on October 27, 2012, 

November 3, 2012 or November 10, 

2012, this year. This regulation changes 

the date for the event to take place on 

October 20, 2012 for this year only. 

The swim portion of the Triathlon, 

scheduled to take place on Saturday 

October 20, 2012, will consist of two 

groups of 950 swimmers entering Banks 

Channel at the Blockade Runner Hotel 

and swimming northwest along Motts 

Channel to Seapath Marine. A fleet of 

spectator vessels are expected to gather 

near the event site to view the 

competition. 

To provide for the safety of the 

participants, spectators and other 

transiting vessels, the Coast Guard will 

temporarily restrict vessel traffic in the 

event area during this event. The 

regulation at 33 CFR 100.501 would be 

enforced from 7 a.m. to 11 a.m. on 

October 20, 2012; vessels may not enter 

the regulated area unless they receive 

permission from the Coast Guard Patrol 

Commander. 

C. Discussion of Comments, Changes 

and the Final Rule 

We received no comments on the 

proposed rule. No public meeting was 

requested, and none was held. 

The Coast Guard will temporarily 

suspend the regulation listed at section 

(d.) line No. 4 in the Table to § 100.501 

and insert this new temporary 

regulation at the Table to § 100.501 line 

No. 5 in order to reflect the change of 

date for this year’s event. This change is 

needed to accommodate the change in 

date of the annual Triathlon. No other 

portion of the Table to § 100.501 or 

other provisions in § 100.501 shall be 

affected by this regulation. 

This safety zone will restrict vessel 

movement on the specified waters of 

Wrightsville Channel, Wrightsville 

Beach, NC. The regulated area will be 

established in the interest of participant 

safety during the swim portion of the 

‘‘Wilmington YMCA Triathlon’’ and 

will be enforced from 7 a.m. to 11 a.m. 

on October 20, 2012. The Coast Guard, 

at its discretion, when deemed safe will 

allow the passage of vessels. During the 

Marine Event no vessel will be allowed 

to transit the waterway unless the vessel 

is given permission from the Patrol 

Commander to transit the regulated 

segment of the waterway. 

Any vessel transiting the regulated 

area must do so at a no-wake speed 

during the effective period. Nothing in 

this rule negates the requirement to 


TKELLEY on DSK3SPTVN1PROD with RULES