NRC Now Requiring Validation of Immigration Status for Individuals Receiving Unescorted Access

Pursuant to Title 10 Code of Federal Regulations (10 CFR) § 73.56, “Personnel access authorization requirements for nuclear power plants,” the NRC requires licensed nuclear operators to “establish, implement, and maintain [their] access authorization plan[s].” Section § 73.56(d)(3), “Verification of true identity,” further specifies that “[L]icensees, applicants, and contractors or vendors shall verify the true identity of an individual who is applying for unescorted access (UA) or unescorted access authorization (UAA) in order to ensure that the applicant is the person that he or she has claimed to be.” Among other requirements, this section requires licensees to “validate” that the claimed non-immigration statuses provided by a foreign national applicant is correct.

Citing a “lack of requisite clarity” within NRC oversight of nuclear licensee validations of the true identities of UA and UAA applicants, on February 13, 2020, the NRC issued an Enforcement Guidance Memorandum (EGM-20-001) titled “Enforcement Discretion Not to Cite Certain Violations of 10 CFR 73.56 Requirements.” In the memorandum, the NRC articulated an expansive interpretation of the term “validation” as it is used in 10 CFR § 73.56(d)(3); specifically, the NRC stated that licensees are required to “… take steps to access information in addition to that provided by the individual from other reliable sources to ensure that the personal identifying information the individual has provided to the licensee is authentic.” For immigration status validation, such steps could include accessing the Department of Homeland Security United States (US) Citizenship and Immigration Services (DHS-USCIS) Systematic Alien Verification for Entitlements (SAVE) database.

EGM-20-001 directed the NRC Office of Nuclear Security and Incident Response (NSIR) to develop and issue new guidance on this issue; in parallel, the NRC would exercise enforcement discretion not to cite future violations of 10 CFR § 73.56(d)(3) as described in EGM-20-001 for a period of six months from the date of issuance of new regulatory guidance. In 2021, the NRC extended the memorandum’s effective period to June 30, 2023.

In response to EGM-20-001’s mandate, in March 2020, the NRC published a draft Regulatory Issue Summary (RIS) with a notice for public comment. Industry strongly opposed the draft RIS, which reinforced the NRC’s position in EGM-20-001 on independent verification of immigration status. The Nuclear Energy Institute’s (NEI) comments, for example, stated that the draft RIS “inappropriately conflates” the requirements in the Department of Homeland Security regulations at 8 CFR § 274a.2 which require verification of employment eligibility with the access authorization requirements in 10 CFR § 76.56(d)(3). As it stands, licensees generally do not conduct detailed employment eligibility investigations described in the draft RIS for individuals who are not their employees as part of their access authorization programs.

Despite these industry concerns, the NRC proceeded to issue the final RIS last month. The final RIS reinforces the NRC’s position that 10 CFR § 76.56(d)(3) mandates verification of employment eligibility and that visual verification of documents by itself is insufficient. However, it seems to provide some flexibility to licensees on how verification of eligibility is performed. Specifically, the final RIS notes that licensees “may use any method that reliably verifies that a foreign national is eligible for employment at a nuclear power plant in the U.S.” Further, licensees that accept contractor access authorization programs under 10 CFR § 73.56(a)(4) “must ensure that the contractor or vendor reliably and effectively verifies a foreign national’s employment eligibility as part of validating that the foreign national’s claimed non-immigration status is correct.”

Provided that the RIS moves forward without challenge, change or delay, licensees have until June 30, 2023, to comply with this new guidance.