Presidential Emergency Action Documents

[coderman]

http://www.governmentattic.org/18docs/NRCupdtPEADS_2004.pdf

Description of document:

Nuclear Regulatory Commission (NRC) Update of
Presidential Emergency Action Documents (PEADS), 2004

Requested date:

2012

Released date:

January 2015

Posted date:

07-December-2015

Source of document:

US Nuclear Regulatory Commission
Mail Stop T-5 F09
Washington, DC 20555-0001
Fax:
301-415-5130
E-mail: FOIA.resource@nrc.gov

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PART l.C COMMENTS ( Use attached Comments continuation page if required)

1. Group H: Secy-04-0129: "Update of Presidential Emergency Action
Documents (PEADS)"
2. This is Response #5 and the Final Response.

SIGNATURE~·F...ccL>VM ..,,...,,~RMATION ACT AND PRIVACY ACT OFFICER

Roger Andoh
NRC FORM 464 Part 1 (10-2014)

NRC FORM 464 Part II
(08-2013)

/

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.., .,.. J
c

...

'

DATE

JAN I 6, ~o \.5

PART II.A -- APPLICABLE EXEMPTIONS
Records subject to the request that are contained in the specified
group are being withheld in their entirety or in part under the
. Exemption No.(s) of the PA and/or the FOIA as indicated below (5
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RESPONSE TO FREEDOM OF INFORMATION
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GHROUP

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Exemption 1: The withheld information is properly classified pursuant
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Exemption 4: The withheld information is a trade secret or commercial
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See Form 464, Part l.C

APPELLATE OFFICIAL
EDD

SECY

IG

000
l J LJ LJ

ODD

Appeal must be made in writing within 30 days of receipt of this
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NRC FORM 464 Part II (08-2013)

SECY-04-0129

July 23, 2004

'"'Y ISSUE

TO:

Chairman Diaz_i:.n.1
Commissioner~·-====<:.;"-'=-...;;..._-=-=-----Commissioner Me~l9tation Vote)

FROM:

Stephen G. Bums
Acting General Counsel

SUBJECT:

UPDATE OF PRESIDENTIAL EMERGENCY ACTION DOCUMENTS
(PEADS)

PURPOSE:
[OUO]

This paper outlines the combined efforts of OGC and NSIR to review and make
recommendations for update of the Presidential Emergency Action
Documents (PEADs).
There are 48 PEADs, which are currently being reviewed and updated on
a government-wide
basis. The review and update process is being managed by the
Department of Justice
(DOJ), the Federal Emergency Management Agency (FEMA), and the National Security
Council (NSC).

[OUO]

The NRC's input to the PEAD review and update process is due to DOJ
and FEMA on July
30, 2004. This paper requests Commission approval to transmit the
attached inputs
(Attachment 2) to DOJ and FEMA on that date.
DISCUSSION:

I. Background
The PEADs
[OUO]

The PEADs are pre-coordinated legal documents designed to implement Presidential
decisions during a national emergency. The PEADs consist of
proclamations, executive
orders, Presidential messages, and draft legislation ready for
submission to Congress.
Originally designed for use in the event of any major attack against
the United States that
disrupted the normal functions of the government, PEADs are used to implement
extraordinary Presidential authority in response to extraordinary situations.

CONTACT:

Darani Reddick, OGC: 415-3841
Jared Heck, OGC: 415-1623

Declassified by: Krista Ziebell #3220
Information Security Specialist
Declassified on: 20141125

SECRET DECLASSIFIED
.ll!PllVED PROM

19
l!-:1~
~ii0i~P.l-­

,4~x;,

2
SECRET DECLASSIFIED
[OUO]

The PEADs are useful tools in the case of an emergency because they
are flexible, may be
quickly executed, and are capable of rapid distribution and
implementation. PEADs reduce
the normal amount of time required to promulgate and implement such Presidential
documents by being prepared in advance of an emergency. They are
divided into seven
categories according to their subject matter, and designate
departments or agencies that
would have primary or support responsibility should the PEAD be executed.

[OUO]

Under the PEAD system, primary responsibility is designated to an
agency recommending
the execution of the PEAD, or one of the main agencies responsible for
its implementation.
Support responsibility is designated to an agency that has either been
assigned direct
involvement in carrying out one or more provisions of a PEAD, or an
agency that would be
directly impacted by the carrying out of a PEAD.

The PEAD Update and Revision Project
[OUO]

The current PEAD portfolio was created in 1989 and contains 48 PEAOs.
The first meeting
to discuss the PEAD update and revision project took place on April
22, 2004. The NRC was
not invited to this meeting, nor was the NRC specifically invited to
review the PEAD portfolio.
According to FEMA, the NRC was not asked to participate in the review
because the NRC is
not listed as a primary or support agency in any PEAD.

[OUO]

NSIR staff did not learn until June 2004 that the PEAD review was
underway. NSIR staff
subsequently contacted FEMA and requested copies of the PEADs and
guidance on how to
participate in the review process. NSIR staff did not receive this
information until late June.

[OUO]

The PEAD review and update process calls on all federal departments
and agencies to
review existing PEADs and develop any new PEADs within their
jurisdiction. FEMA serves
as the Executive Secretariat to facilitate the review and update
process, while DOJ
determines the legal sufficiency of any proposed changes or additions
to the PEADs. The
NSC provides overall policy direction for the effort, and will serve
as the final approval
authority for any recommended PEAD changes.

[OUO]

There were three main steps to the OGC/NSIR PEAD review and update
process. First,
OGC and NSIR jointly reviewed existing PEADs to determine their
potential impact on the
NRC, its licensees, and the energy sector in general. Second, NSIR
developed a list of
potential NRC security concerns during a national emergency that might
be addressed
through the PEAD mechanism, and researched whether those concerns are
currently being
addressed outside the PEAD framework. Finally, OGC researched the
legal basis for
existing PEADs, as well as recently enacted legislation, to determine
whether there is any
statutory basis to justify the proposal of a new or amended PEAD to
address NSIR's
concerns. On the basis of our review, OGC recommends one minor change to the
comments on an existing PEAD.

SECRET DECLASSIFIED

3
SECRET DECLASSIFIED

II. Analysis of Existing PEADs

fSi

[U]

As mentioned above, the PEADs are organized by seven broad categories:

fBi

[U]

Only category D contains PEADs that, if executed, might directly
impact the operations of
NRG-licensed facilities. These PEADs, D-201 and D-301, are discussed
in some detail
below. PEADs in cate ories A, F, and G mi ht indirect! affect NRC
licensees-for example,

PEADs in categories B
and are not likely to impact NRC operations or NRC-licensed activities
and are not
discussed here.
[UJ

We turn now to a discussion of specific PEADs of greatest interest to the NRC.

fSJ

[U]

fS:l

[U]

fS:l

[U]

f-61

[U]

SUPPORTING AGENCIES: To be determined at the time of implementation

SECRET DECLASSIFIED

4
SECRET DECLASSIFIED

fSj [UJ

One statute that does is the Robert T. Stafford Disaster Relief and
Emergency Assistance
Act, 42 U.S.C. § 5121 et. seq. That Act authorizes the President to
declare an emergency
under certain circumstances, thus bringing federal resources to bear
in response to
catastrophic events. For example, in the event of a successful
terrorist attack on a nuclear
power plant or a natural disaster resulting in a radioactive release,
the President might
choose to execute his Stafford Act authority. 2

fS}

Federal response to a Presidentially-declared emergency under the
Stafford Act would be
organized under the National Response Plan {NRP}, which is currently
being developed by
the De artment of Homeland Security (DHS) with input from the NRC and
other a encies.

[UJ

fS} [UJ

With the Commission's approval, OGC would recommend that DOJ add
clarifying comments
The specific clarifying comments are set forth in the proposed
transmittal to DOJ (Attachment
2).

fSl

[U]

fSj [U]

f5i

[U]

f5i

[U]

SUPPORTING AGENCIES: To be determined at time of implementation

2

[0UO] We refer here to the President's authority to declare an
"emergency" under the
Stafford Act, not his more familiar power to declare a "major
disaster" in response to a state
governor's request. The President's authority to declare an
"emergency" can be exercised
without first receiving a state governor's requestfor assistance.
Compare 42 U.S.C. § 5191 (a)
with 42 U.S.C. § 5191 (b).
3

[U) According to the House Report No. 93-707 on the Energy Reorganization Act of
1974, DOE (then the Energy Research and Development Administration)
and NRC share
authority under AEA section 108. H.R. Rep. No. 93-707 at 27 {Dec. 7,
1973). Under section
201 of the Energy Reorganization Act, NRC exercises ulicensing and
regulatory" functions
under section 108. DOE exercises all other functions. See ERA§ 104(c).
SECRET DECLASSIFIED

5

SECRET DECLASSIFIED
~

[U]

fS:l [ U]
[Si [U]
[Si [U]

fSi

[U]

Nevertheless, the attached inputs to DOJ (Attachment 2) reflect this
expectation and
call for appropriate NRC coordination in the event this PEAD is
executed in a manner that
impacts NRC-licensed facilities.
~

[U]

"'[U] See 50 U.S.C. App. 2071. Statutory authority in 10 U.S.C. §
2538 and 50 U.S.C.
§ 82 also forms the legal basis for the President's authority under PEAD D-201.
5

[U] 10 U.S.C. § 2538 authorizes the President to take such action in
the time of war or
when war is imminent, while 50 U.S.C. § 82 could only be used in the
time of war. This section
is particularly applicable to the NRC because it defines uwar
materials" to include "arms,
armament, ammunition, stores, supplies, and equipment for ships and
airplanes, and everything
required for or in connection with the production thereof." Naval
reactor fuel manufactured by a
fuel facility is likely to fall under this definition.
6

[U] Executive Order 12,919 delegated to DOE the President's authority under 50
(continued ... )

SECRET DECLASSIFIED

6
SECRET DECLASSIFIED

fS] [U]

fS] [U]

fBi

[U]

fBi

[U]

fe:J

[U]

fSi

[U]

fe:J

[U]

5

SUPPORTING AGENCIES: To be determined at the time of implementation

( ... continued)

U.S.C. App. 2017(c) to require the allocation of materials, equipment,
and services to maximize
domestic energy supplies with respect to all forms of energy. See 59
Fed. Reg. 29,525 ( 1994).
7

[U] See 50 U.S.C. 2071 (a) & (b).

8

[U] See note 6, supra.

SECRET DECLASSIFIED

7

SECRET DECLASSIFIED

fst

[U]

~

[U]

fS1

[U]

fSj [U]
fSj [U]
fSj [UJ

SUPPORTING AGENCIES: To be determined at the time of implementation

[U]

Under 10 U.S.C. § 12406, the President may call the National Guard
into federal service
whenever one of the following three circumstances exist:
the United States, or any of the Territories, Commonwealths, or possessions, is
invaded or is in danger of invasion by a foreign nation;
there is a rebellion or danger of rebellion against the authority of
the Government of
the United States; or
the President is unable with the regular forces to execute the laws of
the United
States.

(1)
(2)

(3)

9

[UJ 50 U.S.C. § 2152(12).

10

[UJ 50 U.S.C. App. 2071.

SECRET DECLASSIFIED

8
SECRET DECLASSIFIED
fS} [U]

fS}

[U]

fS}

[U]

Other than this statement of clarity, no revision to this PEAD is necessary.
[U]
~

Other Energy-Related PEADs
[U]

SECRET DECLASSIFIED

9

SECRET DECLASSIFIED
[Si

[U]

Ill. Analysis of Recently Enacted Legislation and Consideration of New PEADs
[OUO]

As stated above, NSIR provided OGC with a list of potential areas of
NRC concern during a
national emergency that might be remedied by creation of a new PEAD
(Attachment 1 ). In
addition to analyzing existing PEADs to determine whether they could
be used to address
NSIR's concerns, OGC analyzed recently enacted legislation to
determine whether any new
Presidential emergency powers have been established that might be
incorporated into the
PEADs. Specifically, OGC examined the USA PATRIOT Act of 2001 and the Homeland
Security Act of 2002 to determine whether Congress has provided the
President with any
emergency powers that might support new PEADs germane to the NRC's
mission and/or
responsive to NSIR's concerns.

[OUO)

The Homeland Security Act, though sweeping in its reorganization of
federal agencies, did
not significantly expand the emergency powers of the President. Most,
if not all, Presidential
powers established by the Act relate to appointments, transfers and
designations of officials
responsible for executing the Act. The Act does establish some
substantive Presidential
authority-for example, the President is directed to prescribe
government-wide policies and
· procedures for sharing and protecting homeland security
information. But this authority is
apparently exercised through normal policymaking channels on a
continuing basis and would
not require a PEAD for emergency implementation.

[OUOJ

The USA PATRIOT Act includes a wide range of provisions aimed at
improving investigative
tools in the fight against terrorism. These provisions largely apply
to the day-to-day functions
of law-enforcement agencies. The Act also expands the President's
authority to confiscate
property of foreign entities that engage in armed hostilities against
the United States.
Although seizure of property would disrupt terrorist organization over
time, it would not likely
address pressing social, economic, military, or political issues
during or after a national
emergency. Therefore, there appears to be no need for this
Presidential authority to be
implemented through the PEAD mechanism. It is also unclear how a PEAD
related to the
President's powers under the USA PATRIOT Act would relate to NRC's mission.

[OUO]

Ultimately, OGC discovered no new statutory authority that might be
used to support
development of new PEADs germane to NRC's mission or that would
address the areas of
concern identified by NSIR (Attachment 1).

SECRET DECLASSIFIED

10

SECRET DECLASSIFIED
COORDINATION
[U]

This paper has been coordinated with the Office of the Executive
Director for Operations and
the Office of Nuclear Security and Incident Response.
RECOMMENDATION

[U]

That the Commission approve transmittal of the proposed comment letter
to FEMA and DOJ
(Attachment 2).

[U]

Note: In order to meet the July 30 deadline, prompt Commission action
is requested.

Attachments:
1. NSIR Areas of Potential Concern
2. Proposed Comment Letter

Commissioners' completed vote sheets/comments should be provided directly to
the Office of the Secretary by COB Wednesday, July 28, 2004.
Commission Staff Office comments, if any, should be submitted to the
Commissioners NLT July 27, 2004, with an information copy to the Office of
the Secretary. If the paper is of such a nature that it requires additional
review and comment, the Commissioners and the Secretariat should be apprised
of when comments may be expected.
DISTRIBUTION:

Commissioners
OGG
EDO
SECY

SECRET DECLASSIFIED
ATTACHMENT 1
NSIR AREAS OF POTENTIAL CONCERN DURING NATIONAL EMERGENCIES
[OUO]

As part of the PEAD review and update process, NSIR staff posed a
number of scenarios
that might arise during a national emergency and asked whether any
PEADs should be
changed or added to address those scenarios. NSIR (in consultation
with other offices) also
considered whether existing authorities outside the PEAD framework
cold be used to address
its concerns. OGC then analyzed existing PEADs and recent legislation
to determine
whether any of NSIR's concerns should be addressed through PEAD
changes. Ultimately,
OGC recommends no substantive changes to the PEADs because NSIR's concerns can
either be addressed using existing PEADs, or are better addressed through other
decisionmaking processes.
NSIR Concerns Addressed by Existing PEADs

[OUO]

1.

In the event of a national emergency, the President should not have to
wait for a state
governor to request assistance under the Stafford Act or to engage the National
Response Plan. Should a PEAD be developed that would allow the President to act
accordingly?
Under 42 U.S.C. § 5191 (b), the President may engage the Stafford Act without a
request from a state governor by declaring that an emergency exists
for which the
primary responsibility for response rests with the United States because the
emergency involves a ·subject area for which, under the Constitution
or laws of the
United States, the United States exercises exclusive or preeminent
responsibility and
authority. The National Response Plan would be used to implement the
Stafford Act
in these circumstances.

[OUO]

GC will recommend

[OUO]

make this explicit.
[OUO]

fSj

[U]

~

[U]

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[U]

2.

Situations may arise where security at critical nuclear facilities
needs to be supplemented
with armed forces. Should the President be able to direct the use of
National Guard units
or military reserves for this purpose using a PEAD?

3.

Situations may arise where specific goods or services are needed to
respond to a nuclear
incident. For example, priority diagnosis and treatment for essential
nuclear power plant
personnel exposed to a range of chem-bio-rad hazards may be needed.

SECRET DECLASSIFIED

2
SECRET DECLASSIFIED

fSj [U]

fSf

[U]

In the scenario posed by NSIR,
the Department of Health and Human Services, which has been delegated authority
to act under the DPA by Executive Order 12,919, would be em owered

Other NSIR Concerns for Which No PEAD Changes

are Needed

[OUO]

1. Situations may arise where a need for power requires continued
nuclear power plant
operation in violation of federal environmental laws or under degraded
safety conditions.
Would a PEAD authorizing such operation be useful? ·

[OUO]

OGC does not recommend the development of a PEAD that could be used to order
operation of nuclear power plants under degraded safety conditions. Enforcement
discretion could be exercised by federal authorities (including the
NRC) to allow
continued operation even though not all safety and environmental
requirements are
being met. Specific decisions should be made by the agencies expert in
the relevant
field. PEADs are not used to make these detailed, technical judgments.

[OUO}

2. Terrorist attacks may cause radioactive material shipments to be
rerouted through states
that object. Is a PEAD necessary to resolve those objections?

[OUO]

The Department of Transportation currently has the authority to route
shipments over
a state's objection, so a PEAD is not needed. DOT regulations adopted under the
Hazardous Materials Transportation Act of 1975, as amended, would preempt state
efforts to block emergency rerouting of radioactive material shipments. See 49
U.S.C. §§ 5101-5127; 49 C.F.R. § 397.101.

[OUO]

3. The NRC may need to take control of certain radioactive materials
because of increased
threats, weakened security, or other reasons that increase the risk to
the public. Is a
PEAD necessary for this purpose?

SECRET DECLASSIFIED

3

SECRET DECLASSIFIED
[OUO]

Under AEA sections 1OB and 186.c, the Commission has authority to order the
recapture of special nuclear material if a license is revoked or if
Congress declares a
national emergency.

[OUO]

The Commission also has broad authority under the AEA to take actions to protect
public health and safety and promote the common defense and security. This
authority can be invoked to ensure protection of material by mandating
protective
measures or transfer of material to an authorized recipient. The NRC also has a
standing agreement with DOE to take radioactive materials when
necessary to protect
the public.

[QUO]

[QUO]

4. It may become critical and urgent that the NRC participate more
directly in assessing a
threat or in sharing threat information than is normally allowed.
Should a PEAD ordering
enhanced information sharing be written to meet the NRC's needs?
Information sharing and intelligence coordination continues to be a
high priority in the
daily operations of the federal government. In a national emergency, OGC expects
that those efforts would be further enhanced as observed in the response to the
attacks of September 11, 2001 .. Improvements to information and
intelligence sharing
should continue to be pursued through the Department of Homeland Security and
existing intelligence groups with which NRC has working contacts.

[OUO]

5. Nuclear power plant workers may refuse to work due to terrorist
threats against the plant
or a spreading outbreak of communicable disease or virus. Should a PEAD be
developed to address this possibility?

[OUO]

If a nuclear plant does not have enough willing workers to operate
safely, it would
have to be shut down. There is no legal authority that could be used
to force nuclear
power plant employees to work.

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ATTACHMENT 2
PROPOSED COMMENT LETTER TO DOJ

Dear Sir or Madam:
[DUO]

This letter provides the Nuclear Regulatory Commission's (NRC) input
to the Presidential
Emergency Action Documents (PEADs) update and review process. Although
the NRC was
not invited to participate in this review, the NRC learned of the
project through contacts with
FEMA and requested the opportunity to comment. The NRC did not receive
the PEADs or
review guidance until late June.

[DUO]

The NRC recommends one minor change to the comments on an existing PEAD, offers
clarifying comments setting forth its understanding of another PEAD,
and sets forth its
expected role as a support agency in the event certain PEADs are executed.

fSi

[U]

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fSi

[U]

fSj

[U]

to implement the NRP or the Stafford Act in every
situation. In typical scenarios, the President implements those
authorities by declaring a
"major disaster" in response to a state ovemor's re uest-this model
remains valid and
should continue to be followed
But extraordinary circumstances
may arise that require the President to engage the Stafford Act and
the NRP even before a
state requests federal assistance. In such circumstances, the
President may wish to
exercise his authority under 42 U.S.C. § 5191(b) to declare an
"emergency" so that federal
resources are quickly brought to bear.
But currently, it is not c l e a r can trigger application of the NRP.
the followin comment to the legal basis discussion

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Alternatively, the President could issue a subsequent, stand-alone
executive order
implementing his emergency powers under the Stafford Act.

fSj [U]

Clarification of NRC Supporting Agency Role

f5i

[U]

The NRC notes that a number of PEADs, if executed in a

If you have any questions about our comments, please contact our staff
attorney Darani
Reddick at (301) 415-3841 or Jared Heck at (301) 415-1623. I can be
reached at (301) 4151740. Thank you for the opportunity to provide
input to the PEAD review and update
process.
Sincerely,

Stephen G. Bums
Acting General Counsel

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