Memorandum of Understanding Between the Canadian Nuclear Safety Commission and the Department of National Defence Concerning Joint Efforts

Introduction

1.1    The Canadian Nuclear Safety Commission (hereinafter "the CNSC") and the Department of National Defence (hereinafter "DND") (hereinafter referred to collectively as the “Participants” or singly as the “Participant”) have independent, but related, mandates in regard to health, safety, security and the protection of the environment. Activities carried out by the CNSC and by DND may potentially affect each other’s programs and responsibilities.

1.2    The Cabinet Directive on Regulation ^{Footnote 1} requires that federal departments and agencies take full advantage of opportunities to coordinate their activities.

1.3    Pursuant to the Nuclear Safety and Control Act (NSCA), S.C. 1997, c. 9, the CNSC regulates the development, production and use of nuclear energy and the production, possession and use of nuclear substances, prescribed equipment and prescribed information in order to:

1. prevent unreasonable risk to the environment and to the health and safety of persons;
2. prevent unreasonable risk to national security; and
3. achieve conformity with measures of control and international obligations to which Canada has agreed.

1.4    Pursuant to paragraph 21(1)(a) of the NSCA, the CNSC is empowered to “enter into arrangements, including an arrangement to provide training, with any person, any department or agency of the Government of Canada or of a province, any regulatory agency or department of a foreign government or any international agency”. The goal of these arrangements is to achieve the CNSC’s objects under the NSCA.

1.5    Under the National Defence Act, R.S.C., 1985, c. N-5, and Order-in-Council PC 2000-1421, titled Order Excluding the Department of National Defence and the Canadian Forces from the Application of the Nuclear Safety and Control Act and any Regulations made pursuant to this Act (hereinafter "the Order"), ^{Footnote 2} DND has a duty, taking into account its operational requirements, to establish and maintain requirements for the conduct of the military operations and the use of military equipment that, to the extent practicable, are consistent with the requirements for health, safety, security and the protection of the environment established under the NSCA and the regulations made under the NSCA. The powers, duties and functions relating to DND’s establishment of requirements under the Order are exercised by the Assistant Deputy Minister (Infrastructure and Environment), under the authority of the Deputy Minister.

1.6    Within the confines of the Order, DND has the responsibility and mandate to:

1. establish requirements for nuclear energy and nuclear substance-related activities within DND;
2. apply knowledge, science and technology to resolve DND-related nuclear energy and nuclear substance-related health, safety, security and environmental problems; and
3. manage the planning and direct the DND response that applies to a nuclear-powered or nuclear-capable naval vessel of a foreign state that is invited into Canada by Her Majesty in right of Canada.

1.7    Therefore, the Participants will endeavour to consult and cooperate in accordance with the provisions of this Memorandum of Understanding (MOU) in order to achieve compliance with the Order, minimize duplication, and use government resources effectively.

2.    Objectives and scope

2.1    The Participants, in carrying out their respective mandates, will cooperate and support each other, as appropriate, in meeting their responsibilities in relation to health, safety, security and the protection of the environment and in other areas of mutual interest, including achieving conformity with measures of control and fulfilling predetermined international obligations.

2.2    The Participants will provide each other with the opportunity to advise on policies, programs, projects, operational activities and/or exercises that may affect the mandate of the other, in a manner that allows for timely response and the sharing of information in a timely manner.

2.3    The Participants will collaborate in support of Canada’s counter-proliferation interests and priorities as they relate to regulatory controls on nuclear exports and imports, including through the sharing of relevant information on matters related to risks to national security and on activities that contribute to the risk of proliferation of nuclear weapons and nuclear explosive devices. This information may be used for ensuring compliance with the NSCA, for CNSC licensing and for fulfilling the Participants’ mandates.

2.4    The Participants will endeavour to foster strong working relationships by establishing mechanisms and links to share information (including at the classified level), collaborate, and contribute to joint initiatives as outlined in paragraphs 2.1 and 2.2 of this section, taking into account legal constraints on the sharing of confidential business information.

2.5    The Participants will collaborate on identifying opportunities for training and staff exchanges in areas of mutual interest.

2.6    The Participants acknowledge that notwithstanding the wording used in this MOU, neither the MOU as a whole nor any of its parts taken separately are, or ever have been, intended to be a contract, and no contractual obligations are incurred by the Participants as a result of the existence of this MOU.

2.7    This MOU is not a procurement instrument. The Participants will process any procurement resulting from or required by the implementation of this MOU in accordance with contracting laws, regulations and spending authorities.

3.    Points of contact

3.1    The CNSC and DND will designate primary points of contact under this MOU. DND’s point of contact is the person appointed as Nuclear Safety Specialist, Director General Infrastructure and Environment Engineering Services, Director Nuclear Safety. The CNSC’s point of contact is the person appointed as Director General, Directorate of Security and Safeguards, Technical Support Branch.

3.2    The Participants will make reasonable efforts to meet annually. The persons named in paragraph 3.1 of this section will make efforts to ensure the attendance of relevant officials from each Participant when meeting.

4.    Implementation

4.1    Without impacting the conduct of any military operation and use of military equipment, DND will:

• 4.1.1    inform and advise the CNSC on DND's current ionizing radiation training programs, and provide the opportunity for CNSC staff to take these training programs within DND’s security constraints;
• 4.1.2    cooperate with the CNSC on matters of mutual concern involving the nuclear industry, including:
  1. the Sealed Source Tracking System for Category I and II sources, as defined in the International Atomic Energy Agency Code of Conduct on the Safety and Security of Radioactive Sources, 2004, Table 1 – Activities Corresponding to Thresholds of Categories,
  2. the CNSC’s administration of safeguards requirements,
  3. access to and use of DND’s laboratory capabilities and specialized ionizing radiation detection equipment and services,
  4. considerations ^{Footnote 3} in the use of requirements and guidance for new reactor facilities, including applications for research, isotope production, steam production or small electrical power,
  5. the opportunity, on request and where appropriate, to observe the inspections of facilities and activities regulated by DND that are similar in nature to inspections conducted by the CNSC,
  6. access, for CNSC inspectors, to a DND establishment where there are civilians conducting licensed activities under a CNSC licence, and
  7. the CNSC's administration of nuclear and radioactive source export and import control measures that are designed to achieve conformity with predetermined international obligations;
• 4.1.3    consult and cooperate with the CNSC in the development of any national or international standard, arrangement, agreement, convention or commitment that could affect the regulation of the nuclear industry by the CNSC;
• 4.1.4    cooperate with the CNSC in matters of mutual interest related to nuclear security and nuclear emergency preparedness and response;
• 4.1.5    cooperate with the CNSC on the conduct of studies and assessments of interest to the regulation of nuclear facilities and radiological nuclear threat, and risk assessment studies, and in the sharing of expert assistance and information (including at the classified level) in the conduct of these studies and assessments for research and development and operational purposes; participation by DND in any study and assessment of interest to the regulation of nuclear facilities and radiological nuclear threat, and risk assessment studies not led by DND or the CNSC will not require the CNSC’s formal participation.

4.2    Without impacting its mandate as Canada’s nuclear energy and nuclear substances regulator, the CNSC will:

• 4.2.1    inform and advise DND on the CNSC’s current ionizing radiation training programs, and provide the opportunity to DND staff to take these training programs within the CNSC’s security constraints;
• 4.2.2    cooperate with DND on regulatory matters of mutual concern involving the nuclear industry, including:
  1. requests for the assistance of the CNSC's laboratory, including its radiation survey meter calibration services, specialized radiation detection equipment, and expertise in measurement and analysis of special nuclear materials (SNMs) and other radiological and nuclear samples,
  2. considerations ^{Footnote 3} in the use of requirements and guidance for new reactor facilities, including applications for research, isotope production, steam production or small electrical power,
  3. the opportunity, on request and where appropriate, to observe the inspections of facilities and activities licensed by the CNSC, and
  4. changes in the administration of nuclear and radioactive source export and import control measures that are designed to achieve conformity with predetermined international obligations;
• 4.2.3    consult with DND, on request and where appropriate, in the development of any national or international standards, arrangements, agreements or conventions concerning ionizing radiation protection;
• 4.2.4    cooperate with DND in matters of mutual interest related to nuclear security and nuclear emergency preparedness and response;
• 4.2.5    cooperate with DND on the conduct of studies and assessments of interest to the regulation of nuclear facilities and radiological nuclear threat, and risk assessment studies, and in the sharing of expert assistance in the conduct of these studies and assessments; participation by the CNSC in any study and  assessment of interest to the regulation of nuclear facilities and radiological nuclear threat, and risk assessment studies not led by the CNSC or DND will not require DND’s formal participation.

5.    Financial arrangements

5.1    Generally, and subject to paragraph 5.2 of this section, each Participant, in cooperating under this MOU, will do so without charge to the other Participant.

5.2    Should financial arrangements be necessary, such arrangements will be concluded between the Participants on a case-by-case basis to offset, in whole or in part, costs associated with this MOU. Where such arrangements are necessary, the Participants will consult and cooperate to develop mutually satisfactory financial arrangements. No cost incurred by one Participant will be assumed by the other Participant unless otherwise agreed to in writing under an annex entered into pursuant to this MOU. All costs or estimated costs will be detailed in the relevant annex.

6.    Security

6.1    Each Participant will use, transmit, store, handle, safeguard and dispose of all information exchanged or generated in connection with this MOU in accordance with the Policy on Government Security and associated directives and standards issued by the Treasury Board of Canada.

6.2    Each Participant will transfer classified information only through government-to-government channels or through channels approved by the departmental security authorities of the Participants. The Participants will ensure that classified information bears a marking that indicates the applicable level of categorization.

6.3    Each Participant will ensure that access to classified information is limited to those persons who possess the requisite security clearance and a specific need to know for the purposes of this MOU.

6.4    Each Participant will take all lawful steps available to it to ensure that information provided or generated pursuant to this MOU is safeguarded from further disclosure without the originating Participant’s consent to such disclosure. Accordingly, each Participant will ensure that the recipients:

• 6.4.1    do not release the information to any national organization or other entity of a third party without the prior written consent of the originating Participant;
• 6.4.2    do not use the information for purposes other than those provided for pursuant to this MOU;
• 6.4.3    comply with any distribution and access restrictions on information that is provided pursuant this MOU.

6.5    The Participants will investigate all cases in which it is known, or where there are grounds for suspecting, that information provided or generated pursuant to this MOU has been lost or disclosed to unauthorized entities. Each Participant will also promptly and fully inform the other Participant of the details of any such occurrences, of the final results of the investigation, and of the action taken to preclude recurrences.

6.6    The Participants will ensure that all visiting personnel comply with the security regulations of the host Participant. Any information disclosed or made available to visiting personnel by the Participants will be treated as if supplied to the Participant sponsoring the visiting personnel and will be subject to the provisions of this MOU.

6.7    The responsibilities of the Participants regarding the use, transmission, storage, handling, safeguarding, disposal and disclosure to third parties of information provided or generated pursuant to this MOU will continue to remain in effect after this MOU is terminated.

6.8    Information provided or generated pursuant to this MOU may be categorized as high as CLASSIFIED.

6.9    The existence of this MOU is UNCLASSIFIED and its content is UNCLASSIFIED.

7.    Access to establishments

7.1    In the matter of subparagraph 4.1.2 (vi) of this MOU, the CNSC will arrange in advance access to DND establishments through the applicable establishment’s security office. The designated DND primary point of contact will make every reasonable effort to resolve an access issue.

7.2    In the matter of subparagraphs 4.1.2 (iii) and 4.2.2 (i) of this MOU, DND or the CNSC will arrange in advance access to DND’s or the CNSC’s laboratory capabilities and use of the laboratory facilities and services through the appropriate designated primary point of contact. The designated primary point of contact will make every reasonable effort to resolve an access issue.

8.    Differences in interpretation and application

8.1    The Participants will make every reasonable effort to resolve at the working level any differences that arise from this MOU. Failing resolution at the working level, differences may be referred for resolution to the offices named pursuant to paragraph 3.1 of this MOU or, failing resolution at that level, to the signatories to this MOU. The Participants will not refer any differences to a court, tribunal or any third party for resolution.

9.    Amendment

9.1    The Participants will consult in advance concerning any significant changes in the level or nature of involvement that either Participant may request, or intends to request, of the other Participant pursuant to this MOU.

9.2    The Participants may revise this MOU upon their mutual written consent.

10.    Review, duration, withdrawal and termination

10.1    The Participants understand that the points of contact identified in paragraph 3.1 of this MOU will review this MOU every five (5) years, beginning five (5) years from the date of the later signature in section 12 of this MOU.

10.2    This MOU will remain in effect until withdrawn from or terminated pursuant to paragraphs 10.3 and 10.4 of this section.

10.3    Either Participant may withdraw from this MOU by providing at least six (6) months prior written notice to the other, specifying its intention to withdraw and the effective date of withdrawal.

10.4    The Participants may terminate this MOU at any time, effective immediately, upon their mutual written consent.

10.5    Any responsibilities incurred by a Participant during the effective period of this MOU will remain that Participant’s responsibility until fulfilled, notwithstanding withdrawal from or termination or expiry of this MOU.

11.    Languages

11.1    Signed in duplicate in the English and French languages, both versions being considered equally authentic.

12.    Effective date and signature

12.1    This MOU will come into effect on the date of the later signature.

12.2    The Participants will sign this MOU using industry-standard electronic signature software and/or by exchanging portal document format (PDF) signatures, and the Participants will accept and rely upon such signature as if this MOU contained original signatures. Such PDF signature or electronic signature will have the same effect as an original signature.

Original MOU signed by:

Rumina Velshi
President and CEO
Canadian Nuclear Safety Commission
Signed on June 14, 2022

and

Rob Chambers
Assistant Deputy Minister
Department of National Defence
Signed on July 22, 2022