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The NRC published notice of a draft Regulatory Issue Summary (RIS) (previously published in ADAMS) in the Federal Register on March 31. The draft RIS purports to “clarify” licensees’ requirements pursuant to 10 CFR § 73.56(d)(3) to verify the “true identity” of non-immigrant foreign nationals who are granted unescorted access to nuclear power plants. The NRC issued the RIS to “reinforce” its “expectation” that licensees verify that non-immigrant foreign employees have the correct visa category to perform assigned work inside the nuclear power plant protected area as part of the unescorted access process. Despite the NRC’s claim that the RIS does not transmit any new requirement, the NRC’s position, if unchanged, will likely require licensees to revise their procedures and provide additional training to unescorted access personnel regarding the NRC’s expectations for what is now required to confirm true identity or face additional regulatory scrutiny. The NRC requests in the Federal Register Notice that all comments on the draft RIS be submitted by April 30, 2020.

The NRC’s regulations in 10 CFR § 73.56(d)(3) require that licensees “verify the true identity of an individual who is applying for unescorted access . . . in order to ensure that the applicant is the person that he or she has claimed to be.” Licensees have long implemented this requirement by, among other things, verifying the social security number of applicants for unescorted access.

The NRC states that the draft RIS was triggered by investigations by the US Department of Homeland Security (DHS) and the NRC’s Office of Investigations into at least three separate instances where individuals and licensee employees allegedly violated NRC regulations and plant procedures as part of decisions to grant foreign nationals unescorted access to a site despite the fact that these individuals were not authorized to work in the United States under immigration law. As we previously discussed, the NRC’s Office of Enforcement (OE) recently issued an Enforcement Guidance Memorandum granting enforcement discretion for these types of “violations” of 10 CFR § 73.56(d)(3). In issuing the Enforcement Guidance Memorandum, OE asked the NRC’s Office of Nuclear Security and Incident Response (NSIR) to issue revised guidance and to update inspection procedures as it relates to this issue.

As explained in the draft RIS, it is meant to “reinforce[] NRC’s expectations with regard to verifying that non-immigrant foreign nationals being granted or reinstated with [unescorted access] or [unescorted access authorization] have the correct visa category to perform the type of work at a nuclear power plant for which the access is granted.” Most notably, the RIS states that “licensees must take reasonable steps to access reliable, independent sources of information, in addition to the information provided by the application, to verify the applicant’s claimed non-immigration status.” The NRC also claims that “contractors can provide the verification for their employees but the licensee is ultimately responsible for verifying the true identity and validating the non-immigrant foreign national’s eligibility to work with the correct visa category when granting” unescorted access.

The draft RIS suggests using DHS’s “Systematic Alien Verification for Entitlements” or “SAVE” database to verify the non-immigration status. The NRC also suggests licensees should use various DHS and US Department of State websites as resources to help them meet this “requirement.” As support for its position that the RIS is not asking licensees to do anything new, the NRC points in the draft RIS to NEI 03-01, Revision 3, Supplement 1, the NRC’s endorsed industry guidance, which states that licensees “should confirm eligibility for employment through [US Citizenship and Immigration Services] (USCIS).” But the rest of the sentence quoted by the NRC states that the purpose of this confirmation is to “verify and ensure[,] to the extent possible, the accuracy of a social security number [or] alien registration number.” It is not clear that 10 CFR § 73.56(d)(3) or NEI 03-01 would require verification of employment eligibility based solely on this language. Indeed, the draft RIS admits that “NEI 03-01, Revision 3, Supplement 1 only “recommends that licensees use the USCIS SAVE program,” and does not require it.

It is our understanding that the nuclear industry is closely monitoring this issue, with focus on the fact that the NRC has not previously required that licensees verify the correlation of documents authorizing work in the United States (i.e., the visa status) to the work actually being performed as part of confirming true identity and a precursor to granting unescorted access authorization pursuant to 10 CFR § 73.56(d)(3).

That the RIS was released as a draft suggests that the NRC is still reviewing this position and industry has a chance to influence the final document, with the most likely impact coming from stakeholder comments submitted by April 30, 2020. Potential challenges could include that the NRC is incorrect that the RIS “does not transmit any new requirements” and therefore is a backfit subject to the Backfit Rule. Morgan Lewis will continue monitoring this issue.