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On February 13, the US Nuclear Regulatory Commission (NRC) held a second public meeting regarding the role of third parties in reviewing and possibly reversing licensee access authorization and fitness-for-duty (FFD) determinations. The NRC currently is preparing a draft regulatory basis document to identify issues in the existing regulatory framework, the scope of those issues, and how to resolve them. The regulatory basis will propose one of several possible solutions, which include taking no action, revising regulations, revising guidance, or issuing a Commission Policy Statement.

We previously reported on NRC’s first public meeting on this topic held in November 2016. The NRC also held a closed meeting in December 2016 with representatives from the International Brotherhood of Electrical Workers (IBEW). IBEW requested the closed meeting to discuss and challenge specific details within SECY-15-0149, the NRC staff paper which, among other things, is the underlying basis for the current pre-rulemaking activities. IBEW also requested the February 13 public meeting; however, it is unclear why, as IBEW did not present any views or comments that it had not already presented at prior meetings.

IBEW’s comments at the February 13 meeting highlighted that third-party involvement in access authorization and FFD determinations does not pose a significant issue. To support that notion, IBEW representatives presented data from an internally conducted poll that showed that very few access determinations are reversed by third parties. IBEW also noted that there have not been any negative consequences as a result of the small number of reversals made by third parties. No other unions attended the February 13 meeting.

In contrast to IBEW, licensee representatives at the February 13 meeting opposed third party involvement in access authorization and FFD determinations. Licensee representatives also acknowledged due process concerns but stressed that their internal appeals processes are sufficient to protect the rights of individuals and that their determinations also are subject to NRC inspection and investigation.

In the past, NRC staff appeared to side with licensees by indicating that only licensees can make final decisions on access authorization and FFD determinations (see SECY-15-0149). Currently, however, the staff appears to be taking a more neutral stance, repeatedly stating during the last two public meetings that the staff has not yet determined whether allowing third parties to review and reverse licensee determinations poses any significant problems. NRC staff plans on publishing its regulatory basis document later this year.

Morgan Lewis will continue to follow this issue and provide updates in future publications.