ML23020A028

FOIA-2023-000051 - Resp 1 - Final, Agency Records Subject to the Request Are Enclosed (Part 1 of 7)

ML23020A028
Person / Time
Issue date:	01/03/2023
From:	NRC/OCIO
To:
Shared Package
ML23020A026	List: ML23020A027 ML23020A028 ML23020A029 ML23020A030 ML23020A031 ML23020A032 ML23020A033 ML23020A034
References
FOIA-2023-000051
Download: ML23020A028 (1)

Text

MEMORANDUM OF UNDERSTANDING AMONG THE DEPARTMENT OF HOMELAND SECURITY, THE DEPARTMENT OF TRANSPORTATION, AND THE U.S. NUCLEAR REGULATORY COMMISSION CONCERNING COOPERATION ON RADIOACTIVE MATERIALS TRANSPORTATION SECURITY I. PARTIES The parties to this memorandum of understanding (MOU) are the Department of Homeland Security (DHS), the Department of Transportation (DOT), and the United States (U.S.) Nuclear Regulatory Commission (NRC), hereafter referred to as the Parties. When designated officials are identified in various sections of this MOU, the officials include their designees. DHS and DOT participation in the MOU includes the participation of their relevant component agencies: the Transportation Security Administration (TSA), U.S. Customs and Border Protection (CBP), and the U.S. Coast Guard (USCG) for DHS; and the Pipeline and Hazardous Materials Safety Administration (PHMSA), Federal Aviation Administration (FAA), Federal Motor Carrier Safety Administration (FMCSA), and Federal Railroad Administration (FRA) for DOT.

II. PURPOSE This MOU establishes a framework for allowing the Parties to coordinate, to the maximum extent practicable, their respective responsibilities and activities related to the secure transportation of radioactive materials within the U.S. or across U.S. borders.

Coordination among the Parties will achieve the following goals:

• enhance collaborative exchanges;

• promote the leveraging of mutual interests;

• provide a forum for interdepartmental communication;

• reduce duplication of effort in areas of shared interest;

• maximize the success of efforts to develop capabilities that serve the needs of the Commission and the Departments in the execution of their homeland security and civil support missions; and

• promote the standardization of approach and policy on the transportation security of radioactive materials.

The goal of this MOU is to ensure that the transportation of radioactive material in the U.S.

and across U.S. borders is carried out in a secure manner that protects the public health and safety; and in a manner that is not inimical to the common defense and security of the U.S.

III. AUTHORITIES

a. DHS enters into this MOU pursuant to 6 U.S.C. §112(b); 49 U.S.C. §114; Homeland Security Presidential Directive (HSPD)-5; Presidential Policy Directive (PPD)-8 and PPD-21.

b. DOT enters into this MOU pursuant to 49 U.S.C. §301, PPD-8 and PPD-21.

c. Presidential Policy Directive (PPD-21), February 12, 2013, Critical Infrastructure Security and Resilience advances a national unity effort to strengthen and maintain secure, functioning and resilient critical infrastructure. It directs that the NRC regulate the transport of radioactive material and coordinate with, as appropriate, other Federal parties during these activities.

d. In accordance with the Homeland Security Act of 2002, Public Law No. 107-296, 116 Stat. 2135, November 25, 2002 (Homeland Security Act) and PPD-21, DHS and DOT collaborate on security activities for all modes of transportation within the U.S. or across U.S. borders. Pursuant to the Aviation and Transportation Security Act, Public Law 107-71, 115 Stat. 597, November 19, 2001 (ATSA) and specific delegation by the Secretary of Homeland Security (currently DHS Delegation Number 7060.2), TSA acts as the lead Federal entity, with DOT collaboration, for transportation security, including hazardous materials and pipeline security.

e. The NRC, under the Atomic Energy Act of 1954, as amended (42 U.S.C.

Chapter 23), and Section 201 of the Energy Reorganization Act of 1974, as amended (42 U.S.C. 5841), is authorized to license and regulate the receipt, possession, use, and transfer of byproduct material, source material, and special nuclear material (as defined in 42 U.S.C. 2014). The NRCs authority to license air shipment(s) of plutonium is further governed by Section 201 of Public Law 94-79 (42 USC 5841 note), Section 5062 of Public Law 100-202, and Public Law 100-203.

f. Nothing in this MOU shall diminish or otherwise affect the authority and activities of the respective Offices of Inspector General for NRC, DHS and DOT, consistent with the requirements of the Inspector General Act of 1978, Public Law 95-452, 92 Stat. 1101, October 12, 1978, 5 U.S.C. App 3.

2

IV. BACKGROUND Through legislative authorities and departmental delegations, TSA supports DHS' counterterrorism and critical infrastructure protection missions. TSA enters into this memorandum pursuant to 49 U.S.C. §§ 106(m) and 114(m); the Homeland Security Act, § 430; the Intelligence Reform and Terrorism Prevention Act of 2004, as amended; PPD: Critical Infrastructure Security and Resilience (PPD-21), February 12, 2013; and PPD: National Preparedness (PPD-8), March 30, 2011. DHS and DOT were delegated responsibilities as Co-Sector-Specific Agencies for the Transportation Systems Sector under PPD-21. In addition, at the direction of the Secretary of Homeland Security, TSA has primary responsibility for developing the National Strategy for Transportation Security jointly with the Secretary of Transportation. 49 U.S.C. 114(s)(2).

CBP supports the mission of DHS and enforces hundreds of U.S. laws and regulations at the border, including those regarding the transportation of hazardous materials across the U.S. border. In general, border search authority permits customs officers to search without a warrant and without any suspicion any person, conveyance, or container that crosses the U.S. border. See, e.g., 19 U.S.C. §§ 482, 1401, 1496, 1499, 1581, 1582.

The USCG is responsible for overseeing regulatory compliance in the transportation of hazardous materials by water. (Currently DHS Delegation No. 0170, Sec. 2(99) & 2(100); see also 6 U.S.C. 458(b), 551(d)(2)).

PHMSA is responsible for promulgating and enforcing regulations and administering a national safety and security program of multimodal hazardous materials (hazmat) transportation. PHMSA is also responsible for overseeing regulatory compliance in the shipment of hazardous materials and the manufacture, fabrication, marking, maintenance, reconditioning, repair or testing of multi-modal containers which are represented, marked, certified, or sold for use in the transportation of hazardous materials.

49 CFR § 1.97(b). Within DOT, except as provided in 49 CFR §1.97(b)(2), enforcement authority has been delegated to FAA, FMCSA, FRA, and PHMSA.

FAA is responsible for overseeing regulatory compliance in the transportation of hazardous materials by air. 49 CFR § 1.83(d).

FMCSA is responsible for overseeing regulatory compliance in the transportation of hazardous materials by highway, including the manufacture, fabrication, marking, maintenance, reconditioning, repair or testing of containers which are represented, marked, certified, or sold for use in bulk transportation of hazardous materials by highway. 49 CFR § 1.87(d).

FRA is responsible for overseeing regulatory compliance in the transportation of hazardous materials by railroad, including the manufacture, fabrication, marking, maintenance, 3

reconditioning, repair or testing of containers which are represented, marked, certified, or sold for use in bulk transportation of hazardous materials by railroad. 49 CFR § 1.89(j).

Under the Atomic Energy Act of 1954, as amended (42 U.S.C. Chapter 23), the NRC regulates the possession, use and transfer of civilian radioactive material and is empowered to establish by rule or order, and to enforce such standards to govern these uses as the Commission may deem necessary or desirable in order to protect the common defense and security and promote the public health and safety of the U.S.

The NRC, under Section 204 of the Energy Reorganization Act of 1974, as amended (42 U.S.C. 5841), identifies the NRC's Director of Nuclear Material Safety and Safeguards as performing transportation security functions including:

1. Principal licensing and regulation involving all licensed facilities and materials associated with the processing, transport, and handling of nuclear materials, including the provision and maintenance of safeguards against threats, thefts, and sabotage of such licensed facilities, and materials.

2. Review safety and safeguards of all such licensed facilities and materials; such reviews shall include, but not be limited to-

a. monitoring, testing, and recommending upgrading of internal accounting systems for licensed special nuclear and other nuclear materials;

b. developing, in consultation and coordination with the Energy Research and Development Administration (now the Department of Energy), contingency plans for dealing with threats, thefts, and sabotage relating to special nuclear materials, high-level radioactive wastes and nuclear facilities resulting from all activities licensed under the Atomic Energy Act of 1954, as amended.

V. COOPERATIVE FRAMEWORK Consistent with the terms and conditions of this MOU, the Parties will coordinate, to the maximum extent practicable, their regulatory responsibilities related to the secure transportation of radioactive materials that pose a significant risk to public health and safety and the environment or the common defense and security.

The Parties recognize that the topical areas set forth in Attachment 1 of this MOU are important to development and deployment of an enhanced security strategy for the transportation of risk significant radioactive material in the U.S. and across U.S. borders.

For the purposes of this MOU, the term risk significant radioactive material means radioactive material that requires security measures to be applied to it above prudent management practices. See e.g., the International Atomic Energy Agencys Nuclear 4

Security Recommendations on Physical Protection of Nuclear Material and Nuclear Facilities (Information Circular/225/Revision 5). In addition, the Parties will agree on the radioactive material, within the statutory and regulatory jurisdiction of a Party, for implementation under this MOU, on a case-by-case basis.

Attachment 1 of the MOU describes the infrastructure of the desired interactions between the Parties to this MOU. A series of annexes will be developed after approval of the MOU to establish the working arrangements between the NRC and the relevant component agencies within the signatory Departments. Working arrangements will provide the details of these interactions.

VI. IMPLEMENTATION The Parties to this MOU commit themselves or their component agencies, as appropriate, to coordinate their programs and activities, to the maximum extent practicable, in order to improve transportation security of radioactive material in the U.S. or across U.S.

borders while minimizing duplication, disruptions to transportation operations, and unnecessary costs imposed on transportation stakeholders and the public.

After the MOU has been signed, the Parties will support the development of annexes or work plans among the appropriate component agencies of each Department and the NRC to specifically delineate roles, responsibilities, resources, and actions needed to advance execution of subsections a through l in Attachment 1. To that end, each Party will designate one or more members to participate in a working group to develop a multi-year action plan, including specific timelines for implementing the Parties' general commitments, as set forth in Attachment 1.

VII. COORDINATION MEETINGS The Parties will establish, at the minimum of one per year, regularly-scheduled coordination meetings; as appropriate.

VIII. GENERAL PROVISIONS

a. Principal Agency Contacts. Subject to updates by the Parties, has the designated points of contact for this MOU.

b. Pre-Existing Agreements. Pre-existing agreements, or annexes between components of DHS, elements of DOT, or elements of NRC, such as the MOU between DHS and DOT dated September 28, 2004, or the MOU between DOT and NRC dated July 2, 1979, are not superseded by this MOU, and remain in effect until rescinded, modified, or incorporated into annexes to this MOU. DOT, DHS and NRC will review these pre-existing agreements to determine whether to amend, continue, or revoke them.

5

c. Severability. Nothing in this MOU or any supplement thereto is intended to alter or conflict with statutory provisions, regulations, orders, or directives of DHS, DOT, NRC, or any other Federal agency or entity. If a provision of this MOU, or any supplement thereto, is inconsistent with such authority, then that provision will be invalid to the extent of such inconsistency, but the remainder of that provision and all other provisions, terms, and conditions of this MOU, and any supplement thereto, will remain in full force and effect.

d. Rights and Benefits. Nothing in this MOU is intended to diminish or otherwise affect the authority of the NRC, DOT or DHS, or of their respective component agencies, to carry out statutory, regulatory, or other official functions; nor is this MOU intended to create any right or benefit, substantive or procedural, enforceable at law or in equity, by any party against the U.S., its departments, agencies, officers, or employees, state agencies or officers carrying out programs authorized under Federal law, or any other person.

e. Period of Agreement /Termination. This MOU shall be effective as of the date of final signature by the Parties and remain in effect until terminated by NRC, DOT, or DHS. The Parties agree to review this MOU every 5 years. This review may be waived if the Parties mutually agree, in writing, that such a review is not necessary. Parties may terminate this MOU by providing written notice at a minimum of 60 calendar days prior to the desired termination date, to the respective contacts listed in Attachment 2 herein.

f. Reimbursement. Unless otherwise agreed to under the provisions of Section h.3 of Attachment 1, each Party will be responsible for its own expenses incurred in carrying out activities under this MOU. The Parties agree to resolve any dispute over reimbursement for such activities through mutual negotiation. If the Parties are unable to resolve such a dispute, they agree to have the signatories to this MOU, or their approved designees, resolve the issue.

g. Amendment and Modification. If, in addition to the matters specifically covered in this MOU, any party identifies additional matters associated with the secure transportation of radioactive material that should be specifically included in this MOU, that party will request that the MOU be amended accordingly, and the Parties will meet to discuss the need for such an amendment. Any agreed upon amendment or modification must be in writing, and executed by the appropriate representatives of DHS, NRC, and DOT.

6

TOPICAL AREAS This enclosure to the Memorandum of Understanding (MOU) describes the infrastructure of the desired interactions between the U.S. Nuclear Regulatory Commission (NRC) and the departments. A series of annexes will be developed after approval of the MOU to establish the working arrangements between the NRC and the relevant component agencies within the signatory departments. Working arrangements will provide the details of these interactions.

a. Risk Assessments. The Parties will inform the other agencies when assessments related to the transportation of radioactive materials are being planned, in an effort to coordinate such efforts, as appropriate.

The Parties agree to support the sharing, to the maximum extent practicable and as permitted under the law, of all relevant information collected in the course of respective risk assessments undertaken by them or their component agencies, and their respective Office of the Inspector General (OIG). Relevant information could include, but is not limited to, information collected in the course of security inspections and assessments, reviews of security plans, and oversight of the activities of transportation of carriers, shippers, and receivers.

The Parties agree to the coordination, to the maximum extent practicable and as permitted under the law of measures derived from safety inspections and assessments to evaluate whether they conflict with, or adversely affect, current or planned security requirements.

The parties agree to the coordination of implementation of any recommendations developed by them or their component agencies as a result of their respective inspections and assessments to ensure that those recommendations do not adversely impact the safe and secure transportation of radioactive materials.

b. Strategic Planning. Strategic planning will be based on risk. The parties will strive for consensus concerning measures for the transportation of radioactive material that establish and maintain risk at acceptable levels and minimize the consequences of security events. The parties will support the sharing of initiatives and activities among themselves or their component agencies for achieving identified performance security goals, as appropriate.

c. Standards, Regulations, Guidelines, Advisories, Orders, and Directives. To the maximum extent practicable, the parties will coordinate in the development of standards, regulations, guidelines, advisories, orders, and directives affecting the transportation of radioactive materials.

d. Inspections and Enforcement. The parties will promote coordination among themselves and their component agencies regarding inspection and enforcement activities, with the objective of optimizing available resources and maximizing communications on areas of mutual interest. Nothing in this MOU shall limit any party from taking the appropriate response, inspection, or enforcement action within the scope of its regulatory authority and jurisdiction.

Attachment 1

The parties will develop procedures for the referral of safety and security issues and will develop specific plans for closer coordination in the deployment and use of inspectors to facilities within the parties respective jurisdictions. Under specific working arrangements, the NRC will act as the point of contact to facilitate communications between licensed facilities and the parties to this MOU to support inspection and enforcement efforts, and completion of any requirements associated with access to the facility (e.g., site access training).

e. Technical Support. The parties recognize that exigent circumstances or other contingencies may tax available security resources. In these situations, any of the parties may seek to supplement its resources with those of its partners. When assistance is necessary to develop, support, staff, implement, or enforce transportation security regulations, orders, directives, plans, programs, or other measures, or to conduct security reviews (e.g., during a period of an elevated security threat), a partys request for assistance must be made in writing. If appropriate, the written request should be in accordance with Enclosure 1, h.3., herein.

f. Sharing Information During an Emergency Response. The parties may participate in established emergency response procedures involving the transportation of radioactive materials. However, the parties acknowledge in this MOU that they require timely information during emergencies and commit to promptly sharing information about emergency situations that implicate the missions and interests of the other parties, as appropriate. Information in this context includes both the initial incident report and ongoing information about incident developments. The timely sharing of such information serves the public interest in the operation of a secure and safe national transportation system.

g. Legislative Matters. To the maximum extent practicable, and in accordance with each agencys authorities and established policies, the parties agree to discuss legislative matters of mutual concern affecting the secure transport of radioactive materials.

h. Budget.

1. All activities pursuant to this MOU are subject to the availability of appropriated funds and each agencys budget priorities.

2. This MOU is neither a fiscal nor a funds obligating document. Nothing in this MOU authorizes or is intended to obligate any party to expend, exchange, or reimburse funds, services or supplies, or to transfer or receive anything of value, or to enter into any contract, assistance agreement, interagency agreement or other financial obligation.

3. Goods and services shall be provided under this MOU only after an appropriate Interagency Agreement (IA) has been negotiated and signed by an appropriate representative of each party authorized to execute the IA. Upon signature by each partys representative, the IA shall constitute a valid order under the Economy Act of 1932, as amended (31 USC § 1535), or other appropriate funding mechanism, as specified in the IA.

4. This MOU shall not be construed to create any legal obligation on the part of any Party.

This MOU shall not be construed to provide a private right of action for or by any entity or person.

5. Consistent with each Partys established policies, procedures, and budget requirements, the parties agree to consult throughout the budget development, planning, and execution process concerning funding for projects affecting the secure transportation of radioactive material, in order to minimize unnecessary duplication of effort and to provide an aligned position for the funding of such projects.

i. Communication. The parties recognize the critical importance of regular, timely, and open communication, and commit to establishing strong lines of communication among the NRC and the appropriate component agencies of the Department of Transportation (DOT) and the Department of Homeland Security (DHS). In furtherance of this recognition (as deemed necessary by that party), each Party will designate appropriate officials to serve as points of contact for items of mutual concern and benefit. As appropriate, the parties will seek to leverage existing interagency forums and partnership frameworks that foster integrated, collaborative engagement and interactions. The Radiation Source Protection and Security Task Force, Government Coordinating Council, Critical Infrastructure Partnership Advisory Council, and the Federal Senior Leadership Council are among a few suggested bodies whose objective is to drive enhanced communications and coordination among Federal departments and agencies that have a role in the secure transportation of radioactive materials.

j. Intelligence and Information Sharing

1. The parties will cooperate, to the extent permitted by law, in sharing intelligence, security, and threat information affecting the secure transport of radioactive materials.

The parties will designate appropriate points of contact and methods and means to effect such communication in accordance with applicable statutes and executive orders to ensure the protection of classified and sensitive unclassified information.

2. Consistent with their respective authorities and established policies, the parties will promptly report security events related to the transport of radioactive materials to all parties. These events shall include, but not be limited to, incidents of theft, diversion, or sabotage of radioactive material(s) in transport. The parties will develop protocols and designate appropriate points of contact for prompt reporting of security-related incidents to each other. Consistent with the National Response Framework, the parties will collaborate on response plans for security-related incidents involving theft, diversion, or sabotage of radioactive materials in transport, and will develop coordination plans for enforcement actions and investigations. The plans will identify roles and responsibilities and establish protocols for occasions where joint investigations are appropriate and necessary. These exchanges will include appropriate notifications to the OIG identified at Section III.f of the MOU.

k. Background Investigations. Under existing statutory authorities, NRC and DHS can require fingerprinting identifications and perform background investigations of individuals with access or control over radioactive materials. Under certain conditions, DOT regulations require drivers of hazardous material to comply with the Transportation Security Administration access authorization requirements. In order to avoid duplicative requirements on individuals, each Party will consider background investigation reciprocity where appropriate and in accordance with applicable laws and regulations.

The parties will review their respective individual background investigation and fingerprinting programs, if applicable, to identify those areas where the program needs are essentially the same and reciprocity can be applied. This would only occur if the fingerprinting and background check is related to the transportation of radioactive materials.

l. Cooperative Research Programs. The parties will conduct a review of their recently completed and ongoing safety- and security-related projects and programs to identify opportunities to collaborate on research designed to improve the safety and security of transportation of radioactive materials. The parties will establish protocols for ongoing information sharing and participation in their respective research programs.

Points of contact for the Memorandum of Understating:

Transportation Security Administration Assistant Administrator Office of Security Policy and Industry Engagement (OSPIE) 601 South 12th Street Arlington, VA 20598 Phone (571) 227-9023 Fax (571) 227-2935 U.S. Department of Transportation Pipeline and Hazardous Materials Safety Administration Associate Administrator for Hazardous Materials Safety East Building, 2nd Floor 1200 New Jersey Avenue, SE Washington, DC 20590 Phone (202) 366-0656 Fax (202) 366-5713 U.S. Department of Transportation Federal Aviation Administration 800 Independence Avenue, SW Washington, DC 20591 U.S. Department of Transportation Federal Motor Carrier Safety Administration Associate Administrator for Enforcement 1200 New Jersey Avenue, SE West Building, 6th Floor Washington, DC 20590 U.S. Department of Transportation Federal Railroad Administration Director of the Office of Safety Assurance and Compliance 1200 New Jersey Avenue, SE West Building, 3rd Floor Washington, DC 20590 U.S. Customs and Border Protection ATTN: Executive Director, Cargo and Conveyance Security Division Office of Field Operations 1300 Pennsylvania Ave N.W.

Washington, DC 20229-1015 877-227-5511 Attachment 2

U.S. Department of Homeland Security U.S. Coast Guard Assistant Commandant for Prevention Policy (CG-5P) 2100 Second Street, SW, Stop 7581 Washington, DC 20593-7581 U.S. Nuclear Regulatory Commission ATTN: Director, Division of Security Policy Office of Nuclear Security and Incident Response Washington D.C. 20555 Phone (301) 287-3598 Fax (301) 287-9346