ML23041A429

NRC Staff Talking Points - Public Meeting on Draft Regulatory Issue Summary Related to Personnel Access Authorization Requirements for Non-Immigrant Foreign Nationals Working at Nuclear Power Plants - January 12, 2023

ML23041A429
Person / Time
Issue date:	01/12/2023
From:	Brian Zaleski NRC/NSIR/DPCP/RSB
To:
References
Download: ML23041A429 (15)

Text

NRC Staff Talking Points - January 12, 2023, NRC Public Meeting to Discuss a Draft RIS Related to Personnel Access Authorization Requirements for Non-Immigrant Foreign Nationals Working at Nuclear Power Plants During the public meeting an attendee requested that the NRC make a copy of the NRC staff talking points available to the public. This document aligns with the NRC staff presentation made during the meeting (ADAMS Accession No. ML23011A304), which consisted of an Introduction, Opening Remarks, and a discussion of the Regulatory and Technical Issue.

Note: following the NRC staff presentation, the NRC staff held an Open Discussion with Stakeholders. A transcript of those discussions is available at ML23041A431.

Facilitator (Open) [Slide 1]

• Good morning, my name is Brad Baxter, and I am a Security Specialist in the NRC Office of Nuclear Security and Incident Response (NSIR).

• I'm one of the Access Authorization Program Managers within NSIR.

• Today Ill be serving as the meeting facilitator.

• My role is to ensure that today's meeting is informative and productive.

• I want to welcome everyone and thank you for participating in today's public meeting to discuss the continuation of the Draft NRC Regulatory Issue Summary (RIS) on Personnel Access Authorization Requirements for Non-Immigrant Foreign Nationals Working at Nuclear Power Plants.

Next Slide Please [Slide 2: Agenda]

• Here is todays agenda. Id also like to mention that this is an Informational Meeting with a Question-and-Answer Session.

• The purpose of this meeting is for the NRC staff to meet directly with individuals to discuss regulatory and technical issues.

• Attendees will have an opportunity to ask questions of the NRC staff or make comments about the issues discussed throughout the meeting; however, the NRC is not actively soliciting comments towards regulatory decisions at this meeting.

• Industry representatives and interested stakeholders can ask questions of the NRC staff or to our meeting participants at the designated Open Discussion timeframe on the meeting agenda (we have allotted 30 minutes beginning around 11:45 AM).

• This meeting is scheduled from 11:00 AM to 12:30 PM EST.

• Id like to inform todays participants that this draft RIS reminds licensees of the requirement in 10 CFR 73.56(d)(3), Verification of true identity, that prior to granting or reinstating unescorted access or certifying unescorted access authorization to non-immigrant foreign 1

NRC Staff Talking Points - January 12, 2023, NRC Public Meeting to Discuss a Draft RIS Related to Personnel Access Authorization Requirements for Non-Immigrant Foreign Nationals Working at Nuclear Power Plants national for the purpose of performing work, licensees shall validate that the foreign nationals claimed non-immigration status is correct and that verifying employment eligibility is an important component of the required validation.

• At this time, Id like to introduce Greg Bowman, Director, Division of Physical and Cyber Security Policy who will give the opening remarks for todays meeting, Greg.

Next Slide Please [Slide 3: Introductions and Opening Remarks] - Greg Bowman

• Good morning, we are here today to share information on the background and purpose for NRCs DRAFT Regulatory Information Summary (RIS), titled:

Clarification of Personnel Access Authorization Requirements for Non-Immigrant Foreign Nationals Working at Nuclear Power Plants, which the staff published in the NRCs Agencywide Documents Access and Management System (ADAMS), dated December 20, 2022 (ML22354A108)

• The staff presentation will describe the regulatory history and recent changes to the draft Regulatory Information Summary based on stakeholder comments received from the August 12, 2022, public comment period.

• We appreciate the wide industry interest in this topic and the commitment by staff and industry alike to ensuring the safe and secure operations of the nations nuclear power plant fleet.

• A robust, multi-faceted security framework, including access authorization, fitness-for-duty and insider mitigation programs, will minimize the likelihood of a licensee allowing the wrong person to gain access, and enable licensees to have a trustworthy and reliable workforce.

This RIS provides a reminder of those necessary steps to validate the true identity of a foreign national seeking unescorted access to a nuclear power plant.

• We are seeking to clarify the existing requirements.

• The RIS does not introduce any new requirements for the access authorization programs.

• Licensees have the ultimate responsibility for granting unescorted access to their facilities, not contractors or their employers.

• The draft RIS describes one means that a licensee may use to validate the claimed non-immigration status of foreign nationals.

• Licensees are free to use other means that will effectively validate the status of these personnel.

2

NRC Staff Talking Points - January 12, 2023, NRC Public Meeting to Discuss a Draft RIS Related to Personnel Access Authorization Requirements for Non-Immigrant Foreign Nationals Working at Nuclear Power Plants

• The purpose of the RIS is not to enforce immigration law.

• The steps in the RIS simply show how a licensee can independently verify information provided by foreign nationals seeking unescorted access to a U.S. nuclear power plant, not take a piece of paper and an individuals word for it that they are who they say they are.

• I look forward to a very productive meeting and now Id like to turn it back over to Brad.

[Brad Baxter]

• Thank you, Greg. Now, I would now like to introduce the NRC staff who will be leading and participating in todays discussion:

o I am the meeting coordinator, and Senior Access Authorization Program Manager Mark Resner will be leading the technical presentation today.

o Id also like to mention we have members from our Reactor Security Branch, Caty Nolan - Acting Branch Chief, Brian Zaleski - Security Specialist for AA/FFD, and finally our Acting Deputy Division Director, Anthony Bowers will be present in todays meeting.

o Id also like to note we will have our Senior Attorney from the Office of General Counsel, Norm St. Amour who will provide general remarks throughout the presentation if requested.

• For todays meeting, the staff is using the Microsoft Teams format.

o Should we have communication issues with Teams during the presentation, we may need to turn off the video presentation of the slides. This will help minimize any internet bandwidth issues.

o In addition, we ask that you please turn off your camera when you are not speaking to the staff.

• For those individuals who may have dialed in and are not using Microsoft Teams to attend this meeting and would like to view or have a copy of the presentation slides, they are located in the NRC's ADAMS document database, and the accession number for today's presentation is ML23011A304.

• To help facilitate the discussion we request that you use the raise hand feature in Teams so we can identify who would like to speak next.

3

NRC Staff Talking Points - January 12, 2023, NRC Public Meeting to Discuss a Draft RIS Related to Personnel Access Authorization Requirements for Non-Immigrant Foreign Nationals Working at Nuclear Power Plants

• The staff will then call on the individual to ask their question. The raise hand button, which is shaped like a small hand, is along the top row in the Teams display area.

• To minimize interruptions, the staff will call on participants who have used the raise hand feature to identify that they have a question or comment.

• If you joined the meeting using the Microsoft Teams bridgeline, you may not have access to these features. If you would like to ask a question or provide a comment, you will need to press *6 to unmute your phone.

• The staff will pause at the end of each topic to ensure all participants have an opportunity to ask a question before moving on to the next topic. After your comment has been discussed your phone line will be muted again. If you want to ask additional questions, you will have to press *6 to unmute your phone again.

Next Slide Please [Slide 4: Background]

• The initial draft RIS:

o Was published in Federal Register (85 FR17770) on March 31, 2020 o The NRC held a Public Meeting seeking public participation and comment on April 28, 2020 o The Public Comment Period closed on June 15, 2020 o The NRC received 15 public comments submitted through regulations.gov

• Comments were provided by industry stakeholders, private citizens and from the Nuclear Energy Institute.

• To summarize the general theme, the comments asserted that verification of employment eligibility for contractor employees to work in the U.S is the responsibility of the contractor employers and not a requirement for licensee access authorization staff under 73.56 (d)(3),

true identity. Therefore, the NRC was reinterpreting the regulation, constituting a backfit.

• The staff considered all stakeholder comments on the March 2020 draft RIS.

• Based on information obtained as part of the staffs retrospective review, which included engagement with industry stakeholders, staff learned that some licensees use only a visual verification of documents provided by the foreign national to validate the foreign nationals claimed non-immigration status.

• As the staff discussed in greater detail in the revised June 2022 draft RIS, the staff determined that a simple visual verification of documents is not sufficient to accurately verify a foreign nationals eligibility to work in the United States 4

NRC Staff Talking Points - January 12, 2023, NRC Public Meeting to Discuss a Draft RIS Related to Personnel Access Authorization Requirements for Non-Immigrant Foreign Nationals Working at Nuclear Power Plants

• Visual verification of documents provided by a foreign national is necessary, but without consulting other sources of reliable information, is not itself sufficient to meet the regulatory requirements under 73.56(d)(3) and is not consistent with the Commissions intent for the validation process.

• In doing so the staff presented the Commission with four options to address licensees practice of only conducting a visual verification of documents to meet the requirements in 73.56(d)(3):

(1) Issuing a revised RIS that clarifies foreign nationals employment eligibility is an important component in validating claimed non-immigration status; (2) Seeking Commission approval of a traditional rulemaking to make verifying employment eligibility explicit under 73.56(d)(3);

(3) Develop a notice of interpretation or an (interpretive rule) that would require the use of a Federal database to verify a foreign nationals employment eligibility; and lastly (4) Develop an interpretive rule allowing licensee to only use a visual verification to validate the foreign nationals claimed non-immigration status.

• Balancing the time and resources needed to implement Options 2 and 3 against the benefit of clarifying the requirements through rulemaking, the staff is not pursuing these two options.

• With respect to the fourth option, the staff has determined that a visual verification of documents provided by a foreign national would not enable the licensee to verify employment eligibility.

• Relying solely on visual verification does not meet the regulatory requirement under 73.56(d)(3) and would weaken the safety and security provided by the requirement to validate the foreign nationals claimed non-immigration status.

• Therefore, the staff has pursued Option 1 and published a revised RIS in the Federal Register for public comment on June 13, 2022. The comment period closed on August 12, 2022.

• The staff received 3 comments in total through regulations.gov. Comments were provided by industry stakeholders and from the Nuclear Energy Institute.

• To summarize the industrys positions on the 2022 RIS:

(1) New interpretation of 10 CFR 73.56(d)(3) substantially expands the existing requirement to verify the true identity of non-immigrant foreign nationals that apply for unescorted access and, if imposed on licensees, would constitute a backfit.

5

NRC Staff Talking Points - January 12, 2023, NRC Public Meeting to Discuss a Draft RIS Related to Personnel Access Authorization Requirements for Non-Immigrant Foreign Nationals Working at Nuclear Power Plants o No mention of employment eligibility determination in the 2009 Power Rector Security Requirements Final Rule under 10 CFR 73.56.

(2) RIS inappropriately interprets the Commission's regulations and reflects a misunderstanding of the capabilities of the SAVE program.

(3) RIS confuses rather than clarifies the requirement to verify the true identity of foreign nationals contained in 10 CFR 73.56(d)(3), and (4) RIS introduces regulatory instability, at a quest for high assurance.

That concludes the Background portion on the draft RIS.

Next Slide Please [Slide 5: Key Messages]

Now, I would like to turn the meeting over to my counterpart and good friend Mark Resner to start todays technical discussion on the Draft RIS, Mark.

• This Regulatory Issue Summary (RIS) reminds licensees that verifying employment eligibility is an important component of the requirement to validate that a foreign nationals claimed non-immigration status is correct.

• Licensees are required to take steps to access information in addition to that provided by the individual from other reliable sources to validate the information is authentic.

• Visual inspection of documents alone does not meet the intent of the requirement in 10 CFR 73.56(d)(3) to validate a foreign nationals claimed non-immigration status.

• Use of UCIS SAVE database by NRC licensees is one acceptable method to meet the regulatory requirements.

• Id like to also mention that under 10 CFR 73.56(a)(4), a licensee can rely on a contractor or vendor to satisfy appropriate elements of its access authorization program, but the licensee remains responsible for the accuracy of the information it relies upon when making an access authorization determination. Only the licensee can grant access authorization.

• Moreover, as Ill discuss in greater detail on the next slide under 73.56(d)(3 ),

Licensees are required to take additional steps to access information in addition to information provided by the foreign national requesting unescorted access from other reliable sources to validate the information is in fact correct by verifying employment eligibility.

6

NRC Staff Talking Points - January 12, 2023, NRC Public Meeting to Discuss a Draft RIS Related to Personnel Access Authorization Requirements for Non-Immigrant Foreign Nationals Working at Nuclear Power Plants

• A visual inspection of documents alone does not meet the intent of the requirement in 10 CFR 73.56(d)(3) to validate a foreign nationals claimed non-immigration status is correct.

Next Slide Please [Slide 6: Verification of True Identity 10 CFR 73.56(d)(3)]

• The objective of a licensee Access Authorization program is to demonstrate that:

o each person who is granted or maintains unescorted access to the facility is trustworthy and reliable; o does not constitute an unreasonable risk to the health and safety of the public or the common defense and security; and o does not pose a threat to interrupt the normal operations of the plant, or to commit radiological sabotage.

• In order to grant an individual unescorted access to the protected area or vital area of a nuclear power plant or certify an individual unescorted access authorization, licensees, applicants and contractors or vendors shall ensure that the individual has been subject to a background investigation.

• One important component of the background investigation is establishing true identification, specifically, dealing with the validation of the foreign nationals claimed non-immigration status is correct.

Licensees, applicants, and contractors or vendors shall verify the true identity of an individual who is applying for unescorted access or unescorted access authorization in order to ensure that the applicant is the person that he or she has claimed to be. At a minimum, licensees, applicants, and contractors or vendors shall validate that the social security number that the individual has provided is his or hers, and, in the case of foreign nationals, validate the claimed non-immigration status that the individual has provided is correct. In addition, licensees and applicants shall also determine whether the results of the fingerprinting required under §73.57 confirm the individual's claimed identity, if such results are available.

Next Slide Please [Slide 7: Contractor or Vendor Requirement 10 CFR 73.56(a)(4)]

• In the case where a licensee chooses to have a contractor or vendor complete portions of the background investigation in whole or in part which may include satisfying the claimed non-immigration status that the individual has provided is correct, through a contractual agreement is within the regulation found under 73.56(a)(4):

The licensee or applicant may accept, in part or whole, an access authorization program implemented by a contractor or vendor to satisfy appropriate elements of the licensees 7

NRC Staff Talking Points - January 12, 2023, NRC Public Meeting to Discuss a Draft RIS Related to Personnel Access Authorization Requirements for Non-Immigrant Foreign Nationals Working at Nuclear Power Plants access authorization program in accordance with the requirements of this section. Only a licensee shall grant an individual unescorted access. Licensees and applicants shall certify individuals' unescorted access authorization and are responsible to maintain, deny, terminate, or withdraw unescorted access authorization.

Next Slide Please [Slide 8: Validation of Claimed Non-Immigration Status]

• In the Statements of Consideration for the Power Reactor Security Proposed Rule the Commission made clear what it meant when using the term validate:

that licensees, applicants and C/Vs [contractors/vendors] would be 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. [October 26, 2006 - 71 FR 62747]

• Validation could be achieved through a variety of means, including accessing information from Federal Government databases.

• As we previously mentioned in the Statements of Consideration to the 2006 Power Reactor Security Requirements proposed rule, the Commission made clear what it meant by the term validation.

o In the Commissions words, validation would require that licensees access information other than that provided by the individual to ensure that the information provided is authentic.

o The Commission further stated that validation could be accomplished by a variety of means, including accessing information from databases maintained by the Federal government.

o It is clear from this discussion that rather than just relying on information presented by an applicant for UA or UAA, the Commission expects licensees to take steps to obtain additional information to independently authenticate a foreign nationals claimed non-immigration status.

• To revisit the Commissions intentthe requirements in 10 CFR 73.56(d)(3) obligate licensees to verify the true identify of individuals applying for unescorted access or unescorted access authorization. As part of this obligation, licensees must validate that the social security number provided by an individual is, in fact, his or her social security number.

• The term validate is not defined in the regulations. However, the Commission addressed its understanding of this term in the Power Reactor Security Requirements Proposed Rule issued for public comment on October 26, 2006.

8

NRC Staff Talking Points - January 12, 2023, NRC Public Meeting to Discuss a Draft RIS Related to Personnel Access Authorization Requirements for Non-Immigrant Foreign Nationals Working at Nuclear Power Plants o In discussing the proposed § 73.56(d)(3), the Commission stated that [t]he term validation would be used. . . to indicate that licensees, applicants, and [contractors or vendors] would be 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.

o This validation could be achieved through a variety of means, including, but not limited to, accessing information from databases that are maintained by the Federal Government, or evaluating an accumulation of information, such as comparing the social security number the individual provided to the social security number(s) included in a credit history report and information obtained from other sources.

Next Slide Please [Slide 9: Claimed Non-Immigration Status]

• What is claimed non-immigration status and how can a licensee establish the status?

• As part of this obligation, licensees must validate that the claimed non-immigration status is correct.

• One acceptable method to comply with 10 CFR 73.56(d)(3), including the requirement to verify employment eligibility, would include the licensees visual verification of documents provided by the non-immigrant foreign national, including the official government issued photo identification (e.g., passport, Work Authorization Document, or visa), along with the use of a Federal database like SAVE to review the visa category.

• This methodology is consistent with the language in the PADS bulletin to use the SAVE database and perform a visual verification of the documents provided by the foreign national. The SAVE database prompts a user to enter appropriate demographic and other information on the foreign national being considered for UA.

• The SAVE response clearly indicates that the foreign national is entitled to work in the U.S.,

but it does not provide any indication of the type of business activity or work the foreign national is authorized to perform. There are several visa categories that would allow a foreign national to perform work in the U.S., but not the types of business activity or work that are typically performed at a nuclear power plant. Typical visa categories authorizing a foreign national to perform the types of business activity or work typically required at a nuclear power plant.

• The SAVE response clearly indicates that the foreign national is entitled to work in the U.S.

by the visa category, but it does not provide any indication of the type of business activity or work the foreign national is authorized to perform. Typical visa categories authorizing a foreign national to perform the types of business activity or work typically required at a 9

NRC Staff Talking Points - January 12, 2023, NRC Public Meeting to Discuss a Draft RIS Related to Personnel Access Authorization Requirements for Non-Immigrant Foreign Nationals Working at Nuclear Power Plants nuclear power plant include, but are not limited to, those categories identified in Enclosure 1 to this RIS that the staff added for clarity.

• The SAVE visa category or also known as class of admission (COA) determines employment eligibility.

• Just to reiterate what is meant by validate.

• A foreign nationals immigration status determines what they are allowed to do in the U.S. For example:

o A tourist visa allows a person to visit, not work.

o A farm labor visa allows you to do agricultural work.

o Other types of visas allow foreign nationals to do other kinds of work, including office work or industrial work.

• Validating that the claimed non-immigration status is correct involves determining that they are eligible for the kind of work they are seeking or applying for.

o For example, a Visa category of B2 allows for a non-immigrant foreign national to enter the U.S. for tourism purposes but would not allow them to work at a nuclear power plant.

• Accordingly, the licensee would be responsible to confirm that the Visa category is correct for the purpose that unescorted access is being requested.

Next Slide Please [Slide 10: Significance of Validation]

• Licensees must have an access authorization program that provides high assurance that individuals granted UA or certified for UAA are trustworthy and reliable. 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. If, consistent with 10 CFR 73.56(a)(4), a licensee accepts a contractor or vendors access authorization program to satisfy appropriate elements of the licensees program, the licensee must ensure that the contractor or vendor reliably and effectively verifies a foreign nationals employment eligibility as part of validating that the foreign nationals claimed non-immigration status is correct.

• One acceptable way to facilitate a licensee validation process of a foreign nationals employment eligibility, is to use a federal database. On September 26, 2007, the NRC entered into a Memorandum of Understanding (MOU) with the U.S. Citizenship and Immigration Services (USCIS) to allow NRC licensees to use the agencys Systematic Alien Verification for Entitlements (SAVE) electronic database. Use of the SAVE database is one acceptable means of verifying a foreign nationals employment eligibility as part of validating the foreign nationals true identify.

10

NRC Staff Talking Points - January 12, 2023, NRC Public Meeting to Discuss a Draft RIS Related to Personnel Access Authorization Requirements for Non-Immigrant Foreign Nationals Working at Nuclear Power Plants

• The draft RIS does not mandate that licensees use the USCIS database to verify a foreign nationals employment eligibility. As noted in the draft RIS, the SAVE program is one method that licensees may use to confirm a foreign nationals eligibility to work in the United States. Licensees may use other independent and reliable sources of information that will allow them to verify a foreign nationals employment eligibility. Consequently, the RIS is not establishing a new requirement and therefore no rulemaking is necessary.

• A visual inspection of documents provided by a foreign national would not enable the licensee to verify employment eligibility. Relying solely on visual verification of documents does not meet the regulatory requirement in 10 CFR 73.56(d)(3) because a visual examination alone may not detect fraudulent documents and may weaken the safety and security provided by the requirement to validate the foreign nationals claimed non-immigration status under true identity.

• The use of visual examination of a passport or visa along with other methodologies such as the use of a Federal database (e.g., SAVE or E-Verify for a contractor/vendor) would reasonably be expected to enable a licensee to verify employment eligibility and thereby validate that a foreign nationals claimed non-immigration status is correct.

Next Slide Please [Slide 11: Operating Experience and Commission Actions]

• The Commission has determined that verifying the employment eligibility of foreign nationals seeking UA or UAA to a nuclear power plant is necessary to ensure that the integrity of a licensee's access authorization program reflects the Commissions concern stated explicitly in the 2002 RIS.

• Based upon the long-standing regulatory history that we will be discussing on this slide, verifying employment eligibility is an important component of validating a foreign nationals claimed non-immigration status and thereby verifying the foreign nationals true identity.

• In 2002, the NRC recognized the need to improve controls for screening individuals for access to nuclear power plants when it discovered that a foreign national was granted unescorted access to a site based on fraudulent documents. This case demonstrated the vulnerability that exists when visual examination of documents alone is used to authorize access.

• Following discussions between the NRC and the Immigration and Naturalization Service, on August 27, 2002, the NRC issued RIS 2002-13, Confirmation of Employment Eligibility.

(Non-public, ML021720225)

• The NRC determined that as a result of this lapse in security, and given the existing threat environment, it was crucial that licensees exercise greater diligence in implementing their access authorization programs. The RIS made clear that confirming employment eligibility 11

NRC Staff Talking Points - January 12, 2023, NRC Public Meeting to Discuss a Draft RIS Related to Personnel Access Authorization Requirements for Non-Immigrant Foreign Nationals Working at Nuclear Power Plants was an important element of the background investigation undertaken to verify an applicants true identity.

• Post 9/11, the Commission determined that the current threat environment would require additional enhancement in the area of access authorization - one of the security measures involved the validation of true-identity.

• On December 17, 2002, the Commission approved Order EA-02-261, imposing access authorization enhancements (including employment verification); On January 7, 2003, the Commission issued Interim Compensatory Measures (ICMs) and implementing guidance.

o Specifically, Section B.1.3.c of the Order stated:

Licensees should confirm eligibility for employment through U.S. Citizenship and Immigration Service (CIS) and thereby verify and ensure to the extent possible, the accuracy of a social security number or alien registration number o Licensees should confirm the eligibility for employment through a Federally acceptable database thereby verifying and ensuring the extent possible, the accuracy of the alien registration number.

Next Slide Please [Slide 12: Operating Experience and Commission Actions (continued)]

• The enhancements for verification of true-identity expanded upon the original 1991 Access Authorization rule for verification of identity. Specifically, it expanded upon the current rule requiring entities who are subject to these requirements, at a minimum, to validate the social security number, or in the case of foreign nationals, the alien registration number, that the individual has provided to the licensee, applicant or C/V is authentic.

• March 27, 2009 - Power Reactor Security Requirements Final Rule (74 FR 13926).

o The NRC revised its regulations for access authorization (in March 2009) to incorporate lessons learned during the implementation and application of the original AA rule published in the Federal Register on April 25, 1991, and to incorporate the enhanced requirements that were provided in ICMs following the terrorist attacks of September 11, 2001.

o The requirements in 10 CFR 73.56(d)(3) were promulgated on March 27, 2009.

NRC Order EA-02-261 was still in effect at this time and included the requirement to verify a foreign nationals employment eligibility.

• On November 28, 2011, the Commission rescinded Order EA-02-261 because all of the requirements for access authorization in Order EA-02-261, to include employment eligibility, 12

NRC Staff Talking Points - January 12, 2023, NRC Public Meeting to Discuss a Draft RIS Related to Personnel Access Authorization Requirements for Non-Immigrant Foreign Nationals Working at Nuclear Power Plants had been incorporated into the regulatory requirements codified in the 2009 Power Reactor Security Requirements final rule.

o The letter stated that all of the requirements in Order EA-02-261, including the requirement to verify employment eligibility, were incorporated into the NRCs 2009 Power Reactor Security Requirements rulemaking.

o The only discussion in the NRCs security regulations of a licensees responsibility to validate that a foreign nationals claimed non-immigration status is correct is found in 10 CFR 73.56(d)(3).

o Accordingly, consistent with the EA-02-261 requirements incorporated into the NRCs security regulations, the process of validating that a foreign nationals non-immigration status is correct includes verifying the foreign nationals eligibility for employment.

• To recap, the issuance of the 2002 RIS, 2003 NRC Order EA-02-261 and 2011 recession letter, the 2009 Power Reactor Security Requirements final rule and subsequent endorsement of industry guidance to licensees on acceptable methods for implementing those requirements, demonstrates the NRCs consistent position that verifying employment eligibility is an important component of validating a foreign nationals claimed non-immigration status and thereby verifying the foreign nationals true identify.

• The draft RIS does not articulate a new or different staff position and, therefore, does not constitute a backfit under NRC requirements in 10 CFR 50.109.

Next Slide Please [Slide 13: Public comments]

• As mentioned previously in the Background slide of this presentation, the staff considered all stakeholder comments addressing the May 2022 draft RIS.

• Based on comments received, the staff revised the latest RIS, dated December 20, 2022, to take into consideration the SAVE System capabilities and providing an example of an acceptable approach for meeting 10 CFR 73.56(d)(3) utilizing the SAVE database and visual verification to verify employment eligibility.

• In summary, by binning the 18 comments received through regulations.gov on the initial March 2020 draft RIS and the subsequent May 2022 draft RIS, the staff revised the RIS based on stakeholder interactions.

• An updated RIS was published for immediate release in ADAMS dated December 20, 2022 (ML22354A108).

13

NRC Staff Talking Points - January 12, 2023, NRC Public Meeting to Discuss a Draft RIS Related to Personnel Access Authorization Requirements for Non-Immigrant Foreign Nationals Working at Nuclear Power Plants

• We will discuss those revisions briefly on the next slide of this presentation. However, there were three main commenter themes as you can see here:

(1) New interpretation of 10 CFR 73.56(d)(3) substantially expands the existing requirement to verify the true identity of non-immigrant foreign nationals that apply for unescorted access and, if imposed on licensees, would constitute a backfit.

- No mention of employment eligibility determination in the 2009 Power Rector Security Requirements Final Rule under 10 CFR 73.56.

(2) Draft RIS inappropriately interprets the Commission's regulations and reflects a misunderstanding of the capabilities of the SAVE program.

(3) Draft RIS confuses rather than clarifies the requirement to verify the true identity of foreign nationals contained in 10 CFR 73.56(d)(3).

Next Slide Please [Slide 14: December 2022 Draft RIS Revisions]

• Staff revised the RIS based on public comments received to provide clarity on employment eligibility and the interpretation of visa categories.

o An example of an acceptable approach for meeting 10 CFR 73.56(d)(3) was added utilizing the SAVE database and visual verification to validate the claimed non-immigration status that the individual has provided is correct.

o A new paragraph describing an acceptable employment eligibility determination was added for clarity.

o Two new enclosures were added to provide step-by-step guidance for licensees to obtain, verify, and interpret visa category information.

• Staff revised the final RIS to include an example of an acceptable approach for meeting 10 CFR 73.56(d)(3) utilizing the SAVE database and visual verification of provided documentation.

o Since the establishment of a memorandum of understanding between USCIS and the NRC on June 26, 2007 (ML072490209), the SAVE system has been available for use by licensees.

o Use of the SAVE system is one acceptable means for a licensee to determine whether a non-immigrant foreign national is authorized with the correct non-immigration status to work in the US.

o The SAVE system is available to use free of charge and provide data from Federal systems to validate the claimed non-immigration work status.

14

NRC Staff Talking Points - January 12, 2023, NRC Public Meeting to Discuss a Draft RIS Related to Personnel Access Authorization Requirements for Non-Immigrant Foreign Nationals Working at Nuclear Power Plants Next Slide Please [Slide 15: Summary]

• The RIS reminds licensees of the requirement to validate a foreign nationals claimed non-immigration status is correct, and that verifying employment eligibility is an important component of the requirement.

o 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.

o Licensees are required to take steps to access information in addition to that provided by the individual from other reliable sources to validate the information is authentic.

THIS CONCLUDES THE TECHNICAL PORTION OF THE PUBLIC MEETING 15