The director of the Nuclear Regulatory Commission’s (NRC) Office of Enforcement (OE) issued Enforcement Guidance Memorandum (EGM) 2020-001, “Enforcement Discretion Not to Cite Certain Violations of 10 CFR 73.56 Requirements” on February 13. The purpose of the EGM is to formalize that the NRC will not cite certain “violations” of 10 CFR 73.56(d)(3) based on an updated interpretation of what that regulation requires regarding confirmation of “true identity” when granting access authorization.
The EGM states that the “general performance objective of 10 CFR 73.56 is to provide high assurance that the individuals subject to 10 CFR 73.56 are trustworthy and reliable,” and that, as part of that process, licensees must verify the “true identity” of individuals applying for unescorted access (UA) or unescorted access authorization (UAA). Specifically, the EGM states that licensees must verify an applicant’s social security number and immigration status as part of their obligation under Subsection (d)(3).
The EGM also notes that, based on several investigations into potential violations of NRC regulations and associated wrongdoing by licensees regarding 10 CFR 73.56(d)(3), “the NRC has identified the need to clarify existing regulatory requirements that licensees are required to meet to demonstrate compliance.” The EGM further states that “[t]he regulatory requirement in 10 CFR 73.56(d)(3) is for the licensee to validate that the applicant’s claimed non-immigration status is correct...licensees must take additional steps to determine the non-immigration status of applicants seeking UA or UAA, including that the applicants are legally authorized to carry out the activities for which UA or UAA is sought in accordance with the regulatory requirements associated with their visa, e.g., work visa or tourist visa, issued to them for entry into the US.” Based on past practices, the NRC appears to have expanded its interpretation of what is necessary for “true identify” verification from whether the individual has a visa to the specific type of visa the individual possesses.
The EGM states that the NRC will “not cite NRC licensees for past or future violations of 10 CFR 73.56(d)(3) as specifically described in this memorandum for a period of six months from the date of issuance of new regulatory guidance.” This does not mean, however, that the NRC will uniformly cease to look into these matters. It should be noted that it is not clear that the nuclear power industry agrees with this aforementioned reinterpretation of the regulation, nor is it clear that current industry practice is inconsistent with the regulation for which enforcement discretion is being granted.
The memorandum directs the Office of Nuclear Security and Incident Response (NSIR) to: “(1) develop and issue revised guidance describing an acceptable approach for complying with 10 CFR 73.56(d)(3), and (2) update applicable inspection guidance accordingly.”
The EGM will be effective until the earlier of six months from the issuance date of new regulatory guidance, or December 31, 2020.