§128 — Title 10 Armed Forces | U.S. Code

Summary

The Secretary of Defense must make rules or orders, after giving notice and a chance for public comment and subject to section 552(b)(3) of title 5, to stop people from sharing unclassified details about how special nuclear material is physically protected. The Secretary may only prohibit sharing if he finds that the unauthorized release could reasonably be expected to cause a significant harm to public health or safety or to the common defense and security by greatly increasing the chance of illegal nuclear-weapons production or the theft, diversion, or sabotage of nuclear material, equipment, or facilities. He may judge the risk by asking what the chance would be if the information were never available, and must use the smallest restrictions needed. The Secretary cannot use this authority to keep information from the proper Congressional committees. His decisions can be reviewed in court under section 552(a)(4)(B) of title 5. If the Department gives prohibited information to a State or local government, the Department keeps control of it and State or local disclosure laws do not apply.

Title 10, §128

Armed Forces — Source: USLM XML via OLRC

(a)(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 Defense, with respect to special nuclear materials, 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 security measures, including security plans, procedures, and equipment for the physical protection of special nuclear material.

(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 special 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)—

(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.

(b)Nothing in this section shall be construed to authorize the Secretary to withhold, or to authorize the withholding of, information from the appropriate committees of the Congress.

(c)Any determination by the Secretary concerning the applicability of this section shall be subject to judicial review pursuant to section 552(a)(4)(B) of title 5.

(d)Information that the Secretary prohibits to be disseminated pursuant to subsection (a) that is provided to a State or local government shall remain under the control of the Department of Defense, and a State or local law authorizing or requiring a State or local government to disclose such information shall not apply to such information.

Notes & Related Subsidiaries

Editorial Notes

Prior Provisions

A prior section 128 was renumbered section 421 of this title.

Amendments

2016—Pub. L. 114–328, § 1662(a)(2), substituted “Control and physical protection” for “Physical protection” in section catchline. Subsec. (d). Pub. L. 114–328, § 1662(a)(1), added subsec. (d). 2003—Subsec. (d). Pub. L. 108–136 struck out subsec. (d) which required the Secretary to prepare an annual report detailing the Secretary’s application during the year of each regulation or order prescribed or issued under this section. 1990—Subsec. (d). Pub. L. 101–510 substituted “on an annual basis” for “on a quarterly basis”.

§128 Control and Physical Protection of Special Nuclear Material: Limitation on Dissemination of Unclassified Information