As I noted yesterday DHS and the Nuclear Regulatory Commission (NRC) have signed an memorandum of understanding (MOU) that addresses the provisions of the §550 CFATS authorization language that exempts from CFATS coverage “any facility subject to regulation by the Nuclear Regulatory Commission”. It clarifies the ‘subject to regulation’ wording, establishes procedures for DHS and NRC to evaluate the status of individual facilities, and provides for changes to that status brought about by changes at the facility.
Subject to Regulation
Section 4b of the MOU provides the definition of the Section 550 exemption language as agreed to by DHS and NRC. That definition has three core ideas. First it clarifies that the exemption may apply to just part of a facility. Next it requires that NRC or an Agreement State (a State that has reached an agreement with the NRC to enforce NRC regulations) “imposes significant security requirements that protect an NRC-licensed or Agreement-State-licensed material”. Finally it requires that “the licensee has implemented security requirements” for the definition to apply.
Section 5a addresses the issue of facilities that may only be partially exempt from CFATS coverage. It specifically notes that: “DHS and the NRC acknowledge that a facility that is subject to NRC regulations could contain areas that are not subject to NRC regulations and that such areas, as determined by the parties under Section 6(b) of this MOU, may be subject to DHS regulations under CFATS.”
Section 5c provides that the NRC will provide DHS with a list of facilities that NRC believes are covered, or partially covered by the NRC CFATS exemption. For partially covered facilities it specifies that “the NRC will provide DHS with sufficient information to identify any area within the facility that should not be subject to the exemption from the CFATS rule”. Once DHS and NRC staffs agree on a list of exempted facilities, DHS will notify facilities of their exemption or the limits of their exemption from the CFATS requirements.
Yesterday’s publication of the Federal Register notice marked the end of the 60-day period that NRC was allotted in the MOU to provide the list of covered facilities to DHS. There is nothing in the MOU that indicates when we might expect to see DHS provide facilities with their notification of exemption. Hopefully ISCE will provide a date by which covered facilities would expect to have received their notification. That would be the only way that facilities not covered by the NRC exemption might know that they have fallen outside of that process.
Dual Coverage Facilities
The NRC will provide DHS a list of facilities that might contain areas not exempted from CFATS coverage. I would expect that DHS would use that list to specifically notify those facilities that areas of their facility are not exempt and for those facilities to submit a Top Screen for those areas if they have covered COI at or above the screening threshold quantity set for those COI.
Once DHS makes a determination that an ‘uncovered’ portion of an NRC regulated facility is a high-risk chemical facility the life for the security management team at that facility is bound to get interesting. Since it would not be unexpected for there to be conflicting security requirements under CFATS and NRC regulations, §7a provides that “DHS and the NRC may jointly establish implementing agreements specific to the responsibilities and authorities of their respective agencies at any facility subject to both DHS and NRC regulation, as well as information-sharing protocols, or similar agreements with respect to such a facility”.
I want to congratulate the NRC for making this MOU public in this manner. We had been led to believe that the discussions between the Coast Guard and ISCD on the limits of the MTSA exemption to CFATS were more advanced than those with the NRC. That would be expected since ISCD and the CG both work for the DHS Secretary. When that MOU is finally signed, I would hope that DHS follows the example set by the NRC in publishing the details of that MOU.