As we last reported on October 5, 2018, the NRC Staff appeared ready to recommend withdrawing a rulemaking on third-party arbitration of access authorization and fitness-for-duty determinations. On April 4, 2019, the NRC Staff formally made its recommendation in SECY-19-0033. In so doing, the NRC Staff “request[ed] Commission approval to discontinue the rulemaking activity, ‘Access Authorization and Fitness-for-Duty Determinations’,” which began nearly four years ago. As previously reported, this rulemaking activity was a response to a 2012 decision by the US Court of Appeals for the Seventh Circuit in which the court determined that NRC regulations permitted third-party arbitration of unescorted access determinations. At that time, the NRC Staff disagreed with the decision and asked for Commission approval to begin a rulemaking.
The NRC Staff reversed their position in October 2018 in a reference material released in advance of a November 1, 2018, public meeting, and now formally recommend maintaining the status quo. The NRC Staff provided three bases for the recommendation: (1) third-party reversals of licensee access authorization and fitness-for-duty decisions do not present a significant safety or security concern that warrants rulemaking; (2) “[l]icensees have maintained and implemented defense-in-depth security programs” that ensure individuals granted unescorted access are trustworthy and reliable and fit for duty; and (3) discontinuing the rulemaking would avert approximately $1.7 million of rulemaking costs out of the original estimated rulemaking cost of $4.5 million.
To support their recommendation, the NRC Staff cited information provided by the International Brotherhood of Electrical Workers that, over 32 years, 371 individuals had their access authorizations terminated. Of the 371 individuals, 46 sought arbitration to review the termination, and 14 had their unescorted access reinstated. NRC Staff also reviewed information provided by a licensee on four arbitration cases that resulted in reinstatement. In SECY-19-0033, the NRC Staff found that “[t]o date, none of these instatements have resulted in an adverse impact on public health and safety or the common defense and security.”
Notwithstanding this, the NRC Staff acknowledged that its recommendation to maintain the status quo could result in conflicting legal directives without a consolidated resolution. Specifically, a third-party reviewer could require a licensee to reinstate an individual or take other actions that result in a violation of NRC regulations. One example noted by the NRC Staff that illustrates this potential conflict involved a licensee that, pursuant to an arbitrator’s ruling, removed disqualifying information from a “shared database” regarding an individual whom the licensee had previously denied unescorted access. The NRC later found that the removal of this information constituted a violation of NRC regulations.
The NRC Staff provides no guidance or suggestions as to how licensees can avoid situations such as this going forward. Failure to follow the arbitrator’s or other binding decision by a third party could lead to sanctions in that proceeding, while the NRC Staff implicitly reserves the option to take enforcement action against a licensee for following the arbitrator’s decision if it violates access authorization or fitness for duty regulations. As such, licensees should review their procedures and processes regarding access authorization and fitness for duty determinations and develop a plan for engaging with the NRC in the event of a third-party arbitrator’s decision that potentially conflicts with related NRC regulations.
Morgan Lewis will continue to monitor future developments on access authorization issues.