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.

Our colleagues in the False Claims Act practice have just announced the publication of Civil False Claims and Qui Tam Actions, Fifth Edition. This comprehensive two-volume treatise— frequently cited by federal and state courts as authority on the False Claims Act (FCA)—provides a full history of the FCA, an in-depth analysis of its liability provisions and the case law interpreting them, extensive perspectives on FCA practice and procedure, and a survey of state and local false claims laws.

The US Department of the Treasury’s Committee on Foreign Investment in the United States (CFIUS) published proposed rule changes on May 21 addressing when parties must notify the Committee of proposed transactions. The current regulations require parties to file a notice when the target US business is classified by one of 27 North American Industry Classification System (NAICS) Codes. The proposed regulations would rely on the US export control regulations and regimes – and not on NAICS codes – to determine when parties must notify CFIUS. In short, although the proposed changes represent an expansion of the potential industries affected by the mandatory declaration requirements through the elimination of the 27 NAICS codes, they narrow the focus for the nuclear industry to those foreign persons (and the countries where they are located) that are subject to export licensing requirements.

The US Department of Labor’s chief administrative law judge (ALJ) issued an administrative order and notice on June 1, indefinitely suspending all in-person hearings before the Office of Administrative Law Judges (OALJ). The indefinite suspension is due to the ongoing coronavirus (COVID-19) pandemic, which continues to cause travel and social proximity risks. Thus, for now, hearings will continue to be held by telephone or videoconference.

The US Department of Labor (DOL) recently published a new rule to give the Secretary of Labor discretion to review Administrative Review Board (ARB) decisions. In 1996, the Secretary of Labor established the ARB while simultaneously granting it the authority and assigning it the responsibility to issue final agency decisions—after review or on appeal—of matters arising under various worker protection laws, including the many whistleblower protection laws administered by the DOL. Under the new rule, the Secretary now has the ability to review the ARB’s decisions under these same laws.

A panel of the US Court of Appeals for the Ninth Circuit on May 22 issued an order upholding a trial court’s dismissal of the long-running Cooper v. Tokyo Electric Power Co. Holdings Inc. lawsuit. The court’s decision is the latest chapter in the long-running suit brought by US Navy sailors, who claimed that radiation emitted from the damaged Fukushima-Daiichi nuclear power plant in March 2011 injured them. The Ninth Circuit’s decision also provides a reminder of the importance of understanding international nuclear liability regimes and may be useful precedent for future claims brought in US courts involving radiation tort cases based on events taking place outside the United States.

The NRC’s Office of Enforcement (OE) recently issued Attachment 3 to Enforcement Guidance Memorandum (EGM) 20-002, providing guidance to NRC Staff to disposition violations of emergency preparedness (EP) regulations during the coronavirus (COVID-19) public health emergency (PHE). The guidance applies to entities licensed under 10 CFR Parts 30, 40, 50, 52, 70, and 72.

For background, when the NRC issued EGM 20-002 on April 15, it stated that it would provide guidance on a topic-by-topic basis in the form of attachments to the EGM. The NRC issued Attachment 1 with the EGM on April 15. As we reported, Attachment 1 addressed the training and recertification of security personnel covered by 10 CFR Part 73, Appendix B. The NRC then issued Attachment 2 on May 19 and, as we reported, addressed issues applicable to byproduct material licensees.

The NRC issued a letter to holders of licenses other than operating power reactor licenses (separate information regarding requests for temporary exemptions from certain security requirements at operating reactors has been issued) to possess Category 1 or 2 quantities of radioactive material (RAM) as defined in Appendix A to 10 CFR Part 37. The letter contains guidance on the NRC’s expedited review process for requests for temporary exemptions from certain requirements contained in 10 CFR Part 37, Physical Protection of Category 1 and Category 2 Quantities of Radioactive Material, during the coronavirus (COVID-19) public health emergency (PHE), and finalizes its April 30 draft guidance on which we reported to reflect input from stakeholders received during a recent public meeting.

The duration of approved temporary exemptions will be determined on a case-by-case basis. Temporary exemptions for materials licensees that the NRC has approved to date for COVID-19-related requests under this expedited process are in effect for periods of 30, 90, or 120 days.

Executive Order 13920, “Securing the United States Bulk-Power System,” issued on May 1 limits the US use of bulk-power system equipment produced by “foreign adversaries.”

We analyzed the implications of the executive order in this recent LawFlash.

The NRC’s Office of Enforcement (OE) recently issued Attachment 2 to Enforcement Guidance Memorandum (EGM) 20-002, providing guidance to NRC inspection staff for exercising enforcement discretion for certain byproduct material licensees that suspended their use of licensed material and are maintaining the licensed material in safe storage because of the coronavirus (COVID-19) public health emergency (PHE). Table 1 of Attachment 2 lists the specific regulatory requirements of 10 CFR Parts 30-36 and 39 that qualify for enforcement discretion if licensees meet all five conditions discussed below.