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The comment period for the NRC’s draft Regulatory Issue Summary (RIS) on true identity verification requirements closed on June 15, 2020. The industry had asked for and received a 45-day extension from the original April 30 deadline to provide comments. As we previously reported, the draft RIS purports to “clarify” licensees’ requirements pursuant to 10 CFR § 73.56(d)(3) to verify the “true identity” of nonimmigrant foreign nationals who are granted unescorted access to nuclear power plants. Comments from the nuclear industry on the draft RIS strongly disagreed with the guidance and emphasized that the guidance “would substantially expand the existing requirement to verify the true identity of non-immigrant foreign nationals.” The industry suggests that the guidance should not be finalized because the draft RIS’s interpretation is unsupported by the language of the regulation and because the NRC did not conduct a backfit analysis under 10 CFR § 50.109. It remains to be seen, however, whether the NRC will be persuaded by the industry’s comments.

As a brief reminder, 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 claimed that its draft RIS, issued for public comment in March, was 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.”

In comments submitted June 15, the industry reiterated its commitments to complying with the requirements of 10 CFR § 73.56 to provide high assurance that individuals granted unescorted access to nuclear power plant protected and vital areas are trustworthy and reliable. To protect the public health and safety, nuclear licensees have implemented a complex, multi-input process to evaluate whether individuals should be granted unescorted access, including the use of background investigations, psychological assessments, behavioral observations, and self-reporting of legal actions. The requirement to verify true identity in 10 CFR § 73.56(d)(3) is but one layer in this larger process.

The industry made several main points in its comments on the draft RIS. First, industry disputed that 10 CFR § 73.56(d)(3) requires licensees to perform a detailed validation of employment eligibility as part of granting unescorted access. The industry focused on the fact that 10 CFR § 73.56(d)(3), when “read in context” requires a licensee simply to “ensure that the applicant is the person that he or she has claimed to be.” To the extent that the draft RIS attempts to clarify that a licensee’s obligations require confirmation of employment eligibility, industry’s comments suggest that the RIS goes beyond the requirements of the regulation.

Second, the industry also challenged the draft RIS’s reliance on a statement in Supplement 1 to NEI 03-01, Rev. 3, the NRC-endorsed guidance document that provides one method for compliance with 10 CFR § 73.56. The draft RIS quoted language from Supplement 1 that licensees “should confirm eligibility for employment through the U.S. Citizenship and Immigration Service (CIS).” But the industry emphasized that the purpose of this statement Supplement 1 was that licensees should “ensure, to the extent possible, the accuracy of a social security number [or] alien registration number” and that this statement did not require a licensee to confirm employment eligibility for every unescorted access determination.

Third, the industry argues that, even if the language in 10 CFR § 73.56(d)(3) could be read to require verification of employment eligibility, the draft RIS and associated Enforcement Guidance Memorandum (EGM) 20-001 represent a backfit. The industry reminded the NRC that both the draft RIS and EGM-20-001 explicitly point to a lack of clarity on how to comply with 10 CFR § 73.56(d)(3). But the NRC’s interpretation of how to comply with the regulation has not previously required verification of employment eligibility. As such, the changes proposed in the draft RIS, which the NRC admits are based on recent operating experience, are subject to the Backfit Rule in 10 CFR § 50.109. Because the NRC has not performed such an analysis, the industry argues that the draft RIS should not be adopted.

Fourth, the industry’s comments emphasized that the requirement to prove eligibility to work in the US is separate and distinct from the unescorted access process. According to the industry’s comments, all US employers are required by Department of Homeland Security regulations in 8 CFR Part 274a to verify that employment eligibility. The industry points out, however, that this requirement is restricted to the employer who employs the individual. Licensees often contract with other companies to perform work at their sites and the work may require unescorted access. As such, the regulations in 8 CFR Part 274 serve a different purpose from the NRC’s identity verification requirements.

Last, in this same regard, the industry also commented that the reviewing officials at licensees who make access authorization determinations currently are not employment authorization experts trained to evaluate the hundreds of codes that allow nonimmigrants into the United States nor are they provided information about the type of work someone granted unescorted access will be performing. As such, the industry argues that the draft RIS goes beyond the current requirements to require something more, buttressing the argument that the draft RIS is a backfit.

Morgan Lewis will continue monitoring developments as the NRC considers finalizing the draft RIS.