The Nuclear Regulatory Commission, by a 3-1 vote on August 7, agreed with the NRC Staff’s recommendation to discontinue a rulemaking on third-party arbitration of access authorization and fitness-for-duty determinations. The decision leaves admitted ambiguity, including a potential enforcement risk in the event that a licensee reinstates an individual’s revoked access authorization or a fitness-for-duty determination.
As we last reported on April 24, the NRC Staff recommended in SECY-19-0033 to withdraw a rulemaking begun in 2015 to revise the NRC’s regulations regarding whether a third-party arbitrator could review a licensee’s access authorization or fitness-for-duty decisions. In SRM-SECY-19-0033, the Commission agreed with that recommendation.
All four commissioners provided comments to explain their votes on SRM-SECY-19-0033. In approving the NRC Staff’s recommendation, Commissioners Svinicki and Wright emphasized that licensees’ defense-in-depth security programs were designed to ensure that individuals with unescorted access are trustworthy, reliable, and fit for duty. Both commissioners, however, emphasized their expectation that the NRC Staff will continue to monitor whether the need for a rulemaking might become apparent in the future. Commissioner Svinicki also suggested that routine reporting on this topic in the NRC’s Annual Threat Environment Review might be appropriate.
Commissioner Baran’s explanation reiterated his rationale for voting against a rulemaking in 2016, namely that the NRC’s regulations always allowed third-party reviews of access authorization and fitness-for-duty decisions. He pointed to statements in the 1991 statements of consideration for the establishment of access authorization programs that the NRC “never intended that any review procedure that already exists in a bargaining agreement  be abandoned.” See Final Rule, Access Authorization Program for Nuclear Power Plants, 56 Fed. Reg. 18,997, 19,002 (Apr. 25, 1991). Commissioner Baran concluded his explanation by reminding the NRC Staff that “it is important that the regulatory guidance on access authorization is consistent with the Commission’s unambiguous determination in 1991 that third-party arbitration of access decisions is permitted.”
In dissent, Commissioner Caputo highlighted an “open concern” regarding the role of third-party arbitrators and the command of 10 CFR 73.56(a)(4) that “[o]nly a licensee shall grant an individual unescorted access.” Commissioner Caputo would have continued the rulemaking as necessary to provide “adequate protection of the public health and safety and the common defense,” arguing that the “Commission should not maintain a muddled status quo where our regulations are in conflict on such a fundamental issue.” She also found the need for rulemaking remained in that, as explained in SECY-15-0149, complying with an arbitrator’s interpretation of one regulation could lead to noncompliance with another. According to Commissioner Caputo, “While Staff can manage these situations by employing enforcement discretion, that approach establishes a process that is subjective and neither transparent nor efficient, contrary to our Principles of Good Regulation.”
All of the commissioners stated a belief that this issue may reappear; as such, we will continue to follow developments regarding third-party review of access authorization and fitness-for-duty decisions.