[Federal Register Volume 68, Number 214 (Wednesday, November 5, 2003)]
[Rules and Regulations]
[Pages 62509-62513]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-27804]
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Rules and Regulations
Federal Register
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Federal Register / Vol. 68, No. 214 / Wednesday, November 5, 2003 /
Rules and Regulations
[[Page 62509]]
NUCLEAR REGULATORY COMMISSION
10 CFR Parts 11 and 25
RIN 3150-AH30
Assessment of Access Authorization Fees
AGENCY: Nuclear Regulatory Commission.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Nuclear Regulatory Commission (NRC) is amending its
regulations to change the way the agency assesses access authorization
fees. The NRC is replacing its set fee schedules for special nuclear
material access authorization and national security information or
restricted data access authorization with a formula for calculating
fees based on current Office of Personnel Management (OPM) billing
rates for personnel background investigations. The new formula is
designed to recover the full cost of processing a request for access
authorization from the licensee. The use of a fee assessment formula
tied to current OPM billing rates will eliminate the need for the NRC
to update its access authorization fee schedules through regular
rulemakings.
EFFECTIVE DATE: November 5, 2003.
ADDRESSES: Publicly available documents pertaining to this rulemaking
may be accessed through the NRC's Electronic Reading Room on the
Internet at http://www.nrc.gov/reading-rm/adams.html. If ADAMS access
is not available or difficulty is encountered in its use, contact the
NRC PDR Reference staff at 1-800-397-4209, (301) 415-4737, or through
the PDR's e-mail address at [email protected].
Publicly available NRC documents related to this final rule can
also be viewed on public computers in the NRC Public Document Room
(PDR), located at One White Flint North, 11555 Rockville Pike,
Rockville, Maryland, Room O-1 F21. The PDR reproduction contractor will
make copies of documents for a fee.
FOR FURTHER INFORMATION CONTACT: Patricia A. Smith, Security Branch,
Division of Facilities and Security, Office of Administration, U.S.
Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone
(301) 415-7739, e-mail [email protected].
SUPPLEMENTARY INFORMATION:
Background
Certain individuals employed by licensees or contractors of the
Nuclear Regulatory Commission (NRC) are assigned duties which require
access to special nuclear material (plutonium, uranium-233, and uranium
enriched in the isotopes uranium-233 or uranium-235) or to restricted
data or national security information. Individuals who require access
to such material or information must obtain an access authorization
from the NRC. When a licensee requests access authorization for an
employee or a contractor, the NRC initiates a full-field background
investigation of the individual seeking access authorization. Based on
the results of that investigation, the NRC will determine whether
permitting the individual access to special nuclear material,
restricted data, or national security information would create a
security risk.
The Office of Personnel Management (OPM) conducts the required
access authorization background investigations for the NRC and sets the
rates charged for these investigations. The combined cost of the OPM
background investigation and any related NRC processing activities are
recovered from the licensee through an access authorization fee
assessed by the NRC. It has been the NRC's practice to publish the fee
schedule for special nuclear material access authorization in Sec.
11.15(e)(1) and the corresponding fee schedule for restricted data and
national security information access authorization in Appendix A to 10
CFR Part 25. Both schedules have been based on rates charged by OPM for
conducting the required background investigations. In the past, the NRC
has amended its fee schedules whenever OPM has notified Federal
agencies of a change in the rates charged for conducting background
investigations, with the NRC's adjusted fees becoming effective on the
date the new NRC fee schedules were published in the Federal Register.
Discussion
The NRC's past practice of publishing adjusted fee schedules in
response to OPM rate changes led to frequent NRC rulemakings to revise
Sec. 11.15(e)(1) and Appendix A to Part 25. Rulemaking is a resource-
intensive and inefficient means of accomplishing purely administrative
purposes such as, in this case, the maintenance of NRC fee schedules
fully reflective of current OPM billing rates for routine agency-to-
agency services. Moreover, past NRC rulemakings to update the access
authorization fee schedules did not take into account the increasing
in-house cost to the NRC of processing access authorization
applications. This final rule amends Sec. 11.15(e), Sec. 25.17(f),
and Appendix A to Part 25 to establish a formula for calculating NRC
fees that is directly tied to published OPM billing rates. This
amendment will ensure that the NRC's administrative costs are fully
recovered through access authorization fees charged to licensees, while
obviating the need for routine rulemakings to amend the fee schedules.
This final rule replaces the NRC's set schedule of access
authorization fees with tables which allow licensees to calculate the
NRC fee for any given application by reference to the current OPM
billing schedule for personnel investigation services. Investigations
Reimbursable Billing Rates for personnel background checks are
published by OPM's Investigations Service in a Federal Investigation
Notice (FIN). The current OPM billing rates were published as FIN 02-01
on November 1, 2001 and became effective on January 1, 2002. FIN 02-01
is available on OPM's Investigations Service Web site at http://www.opm.gov/extra/investigate/fins.htm. NRC licensees can also obtain
the current OPM investigations rate schedule from the Security Branch
of the NRC's Division of Facilities and Security by contacting the
individual named under the FOR FURTHER INFORMATION CONTACT heading.
The amendments define the NRC's access authorization fee for any
given request as the sum of (1) the current OPM billing rate for the
required investigation and (2) the NRC's in-house
[[Page 62510]]
processing fee. As noted, the OPM billing rate is pulled directly from
the current OPM fee schedule for investigations. The new tables in
Sec. 11.15(e)(2) and Appendix A to Part 25 cross-reference each type
of NRC access authorization request to the appropriate investigation
service listed on OPM's fee schedule. The NRC's in-house processing fee
is 11.6% of the relevant OPM rate. The in-house processing fee of 11.6%
is based on a recent NRC audit of actual in-house costs incurred in
processing licensee applications for access authorization. This fixed
percentage of the OPM rate, when added to the base OPM investigations
charge, yields the total access authorization fee assessed by the NRC
{OPM rate + [(OPM rate x 11.6%), rounded to the nearest dollar] = NRC
access authorization fee{time} .
For example, a licensee seeking a special nuclear material ``NRC-
U'' access authorization requiring a single scope background
investigation is directed by the table in Sec. 11.15(e)(2) to
calculate the application fee based on the OPM billing rate for a
``Code C'' Single Scope Background Investigation (SSBI). According to
the current OPM investigations fee schedule (FIN 02-01), OPM charges
$2,725 for a ``Code C'' SSBI. The table instructs the licensee to
calculate the NRC processing fee by multiplying $2,725 by 11.6%, which
equals $316.10. The licensee then rounds the NRC processing fee to the
nearest dollar, or $316, and adds that amount to the OPM investigations
fee of $2,725 to determine the total assessed material access
authorization fee: $3041. The table below illustrates the calculation
process:
--------------------------------------------------------------------------------------------------------------------------------------------------------
Plus NRC application processing fee Equals total NRC
----------------------------------------------------------------------------------------- access authorization
Current OPM billing rate for SSBI-C fee for NRC-U
OPM rate x 11.6% = NRC fee (rounded to nearest $) application
--------------------------------------------------------------------------------------------------------------------------------------------------------
$2,725.................................. $2,725 x 11.6% = $316.10 (rounded to $316)...................... = $3,041
--------------------------------------------------------------------------------------------------------------------------------------------------------
Licensees applying for restricted data or national security
information access authorization follow a similar procedure. The table
in Appendix A to Part 25 cross-references each type of ``Q'' or ``L''
access authorization to the corresponding OPM investigation type. The
OPM billing rate for the type of investigation referenced is determined
by consulting the current OPM schedule of billing rates. This rate is
then plugged into the fee assessment formula {OPM rate + [(OPM rate x
11.6%), rounded to the nearest dollar] = NRC access authorization
fee{time} , illustrated above, to calculate the correct NRC access
authorization fee for the type of application submitted.
Section-by-Section Analysis
Section 11.15(e)
The revised paragraph Sec. 11.15(e)(1) describes the relationship
between OPM and NRC and provides the formula used in calculating the
material access authorization fee. This paragraph also explains how to
access the OPM billing schedule and specifies that changes to the
access authorization fees become effective on the effective date of
OPM's most recently published billing schedule.
The revised Sec. 11.15(e)(2) directs licensees to remit the
appropriate access authorization fee with each application submitted,
in accordance with the table presented in that paragraph. The table
cross-references each type of NRC material access authorization request
to a type of investigation in the current OPM fee schedule, and directs
licensees to calculate the application fee according to the stated
formula {OPM rate + [(OPM rate x 11.6%), rounded to the nearest dollar]
= NRC access authorization fee{time} .
New paragraph Sec. 11.15(e)(3) indicates that applications for
individuals that have a current access authorization from another
Federal agency may be processed expeditiously at no cost to the
licensee.
Section 25.17(f)
The revised paragraph Sec. 25.17(f)(1) describes the relationship
between OPM and NRC and provides the formula used in calculating
national security information and restricted data access authorization
fees. This paragraph also explains how to access the OPM billing
schedule and specifies that changes to national security information
and restricted data access authorization fees become effective on the
effective date of OPM's most recently published billing schedule.
The revised Sec. 25.17(f)(2) directs licensees to remit the
appropriate national security information or restricted data access
authorization fee with each application submitted. Applicants are
instructed to calculate the appropriate fee by using the stated formula
{OPM rate + [(OPM rate x 11.6%), rounded to the nearest dollar] = NRC
access authorization fee{time} with reference to the table in appendix
A to part 25.
New paragraph Sec. 25.17(f)(3) indicates that applications for
individuals that have a current access authorization from another
Federal agency may be processed expeditiously at no cost to the
licensee.
Appendix A to Part 25
The revised table in Appendix A cross-references each type of NRC
``Q'' or ``L'' access authorization request to a type of investigation
in the current OPM fee schedule, and directs licensees to calculate the
application fee according to the stated formula.
Administrative Procedure Act
Because this final rule deals solely with agency practice and
procedure, the notice and comment provisions of the Administrative
Procedure Act do not apply under 5 U.S.C. 553(b)(A). The final rule is
effective upon publication in the Federal Register. Good cause exists
to dispense with the usual 30-day delay in the effective date because
the amendments are of a minor and administrative nature.
Voluntary Consensus Standards
The National Technology Transfer and Advancement Act of 1995, Pub.
L. 104-113, requires agencies to use technical standards developed or
adopted by voluntary consensus standards bodies unless the use of such
a standard is inconsistent with applicable law or is otherwise
impractical. This final rule replaces the NRC's published access
authorization fee schedules with a formula for calculating access
authorization fees based on current Office of Personnel Management
billing rates for personnel background investigations. This action is
administrative in nature and does not involve the establishment or
application of a technical standard containing generally applicable
requirements.
Environmental Impact: Categorical Exclusion
The NRC has determined that this final rule is the type of action
described in categorical exclusions 10 CFR 51.22(c)(1) and (2).
Therefore, neither an environmental impact statement nor an
[[Page 62511]]
environmental assessment has been prepared for this final rule. Because
of its procedural nature, this action does not raise environmental
justice concerns.
Paperwork Reduction Act Statement
This final rule does not contain new or amended information
collection requirements subject to the Paperwork Reduction Act of 1995
(44 U.S.C. 3501 et seq.). Existing requirements were approved by the
Office of Management and Budget, approval numbers 3150-0046 and 3150-
0062.
Public Protection Notification
The NRC may not conduct or sponsor, and a person is not required to
respond to, a request for information or an information collection
requirement unless the requesting document displays a currently valid
OMB control number.
Regulatory Analysis
A regulatory analysis has not been prepared for this rulemaking.
This final rule establishes a formula for calculating access
authorization fees which ensures that the NRC recovers the full cost of
application processing from licensees submitting access authorization
requests. The formula provides a more efficient and effective mechanism
for updating NRC access authorization fees in response to changes in
the underlying OPM rate schedule for required personnel background
investigations. These amendments are administrative in nature and will
neither impose new nor relax existing safety requirements and, thus, do
not call for the sort of safety/cost analysis described in the agency's
regulatory analysis guidelines in NUREG/BR-0058.
Backfit Analysis
The NRC has determined that the backfit rule does not apply to this
final rule and a backfit analysis is not required because these
amendments do not involve any provisions that would impose backfits as
defined in 10 CFR Chapter I.
Small Business Regulatory Enforcement Fairness Act
In accordance with the Small Business Regulatory Enforcement
Fairness Act of 1996, the NRC has determined that this action is not a
major rule and has verified this determination with the Office of
Information and Regulatory Affairs of OMB.
List of Subjects
10 CFR Part 11
Hazardous materials-transportation, Investigations, Nuclear
materials, Reporting and recordkeeping requirements, Security measures,
Special nuclear material.
10 CFR Part 25
Classified information, Criminal penalties, Investigations,
Reporting and recordkeeping requirements, Security measures.
0
For the reasons set forth in the preamble and under the authority of
the Atomic Energy Act of 1954, as amended; the Energy Reorganization
Act of 1974, as amended; and 5 U.S.C. 552 and 553, the NRC is adopting
the following amendments to 10 CFR parts 11 and 25.
PART 11--CRITERIA AND PROCEDURES FOR DETERMINING ELIGIBILITY FOR
ACCESS TO OR CONTROL OVER SPECIAL NUCLEAR MATERIAL
0
1. The authority citation for part 11 continues to read as follows:
Authority: Sec. 161, 68 Stat. 948, as amended (42 U.S.C. 2201);
sec. 201, 88 Stat. 1242, as amended (42 U.S.C. 5841).
Section 11.15(e) also issued under sec. 501, 85 Stat. 290 (31
U.S.C. 483a).
0
2. In Sec. 11.15, paragraph (e) is revised to read as follows:
Sec. 11.15 Application for special nuclear material access
authorization.
* * * * *
(e)(1) The Office of Personnel Management (OPM) bills NRC for the
cost of each background investigation conducted in support of an
application for special nuclear material access authorization. The
combined cost of the OPM investigation and NRC's application processing
overhead are recovered from the licensee through a material access
authorization fee calculated with reference to current OPM personnel
investigation billing rates {OPM rate + [(OPM rate x 11.6%), rounded to
the nearest dollar] = NRC access authorization fee{time} . Updated OPM
billing rates are published periodically in a Federal Investigations
Notice (FIN) issued by OPM's Investigations Service. Copies of the
current OPM billing schedule can be obtained by phoning the NRC's
Security Branch, Division of Facilities and Security, Office of
Administration at 1-800-368-5642. Any change in the NRC's access
authorization fees will be applicable to each access authorization
request received on or after the effective date of OPM's most recently
published investigations billing schedule.
(2) Each application for a special nuclear material access
authorization, renewal, or change in level must be accompanied by the
licensee's remittance, payable to the U.S. Nuclear Regulatory
Commission. Applicants shall calculate the access authorization fee
according to the stated formula {OPM rate + [(OPM rate x 11.6%),
rounded to the nearest dollar] = NRC access authorization fee{time}
and with reference to the following table:
----------------------------------------------------------------------------------------------------------------
Plus the NRC's processing fee
(rounded to the nearest
Is the sum of the current OPM dollar), which is equal to
The NRC application fee for an access billing rate charged for an the OPM billing rate for the
authorization type * * * investigation of type * * * type of investigation
referenced multiplied by * *
*
----------------------------------------------------------------------------------------------------------------
i. NRC-R \1\................................ NACLC--National Agency Check with 11.6%
Law and Credit (Standard Service,
Code B).
ii. NRC-R \1\ (expedited processing)........ NACLC--National Agency Check with 11.6%
Law and Credit (Expedite Handling,
Code A).
iii. NRC-R based on certification of No fee assessed for most applications.
comparable investigation \2\.
iv. NRC-R renewal \1\....................... NACLC--National Agency Check with 11.6%
Law and Credit (Standard Service,
Code B).
v. NRC-U requiring single scope SSBI--Single Scope Background 11.6%
investigation. Investigation (120 Day Service,
Code C).
vi. NRC-U requiring single scope SSBI--Single Scope Background 11.6%
investigation (expedited processing). Investigation (35 Day Service,
Code A).
[[Page 62512]]
vii. NRC-U based on certification of No fee assessed for most applications.
comparable investigation \2\.
viii. NRC-U renewal \2\..................... LBI--Limited Background 11.6%
Investigation (120 Day Service,
Code C).
----------------------------------------------------------------------------------------------------------------
\1\ If the NRC, having reviewed the available data, deems it necessary to perform a single scope investigation,
the appropriate NRC-U fee will be assessed prior to the conduct of the investigation.
\2\ If the NRC determines, based on its review of available data, that a single scope investigation is
necessary, the appropriate NRC-U fee will be assessed prior to the conduct of the investigation.
(3) Certain applications from individuals having current Federal
access authorizations may be processed expeditiously at no cost to the
licensee because the Commission, at its discretion, may decide to
accept the certification of access authorizations and investigative
data from other Federal government agencies that grant personnel access
authorizations.
* * * * *
PART 25--ACCESS AUTHORIZATION FOR LICENSEE PERSONNEL
0
3. The authority citation for Part 25 continues to read as follows:
Authority: Secs. 145, 161, 68 Stat. 942, 948, as amended (42
U.S.C. 2165, 2201); sec. 201, 88 Stat. 1242, as amended (42 U.S.C.
5841); E.O. 10865, as amended, 3 CFR 1959-1963 Comp., p. 398 (50
U.S.C. 401, note); E.O. 12829, 3 CFR, 1993 Comp., p. 570; E.O.
12958, 3 CFR, 1995 Comp., p. 333; E.O. 12968, 3 CFR, 1995 Comp., p.
396.
Appendix A also issued under 96 Stat. 1051 (31 U.S.C. 9701).
0
4. In Sec. 25.17, paragraph (f) is revised to read as follows:
Sec. 25.17 Approval for processing applicants for access
authorization.
* * * * *
(f)(1) The Office of Personnel Management (OPM) bills NRC for the
cost of each background investigation conducted in support of an
application for access authorization. The combined cost of the OPM
investigation and NRC's application processing overhead are recovered
from the licensee through an authorization fee calculated with
reference to current OPM personnel investigation billing rates {OPM
rate + [(OPM rate x 11.6%), rounded to the nearest dollar] = NRC access
authorization fee{time} . Updated OPM billing rates are published
periodically in a Federal Investigations Notice (FIN) issued by OPM's
Investigations Service. Copies of the current OPM billing schedule can
be obtained by phoning the NRC's Security Branch, Division of
Facilities and Security, Office of Administration at 1-800-368-5642.
Any change in the NRC's access authorization fees will be applicable to
each access authorization request received on or after the effective
date of OPM's most recently published investigations billing schedule.
(2) Applications for access authorization or access authorization
renewal processing that are submitted to the NRC for processing must be
accompanied by a check or money order, payable to the United States
Nuclear Regulatory Commission, representing the current cost for the
processing of each ``Q'' and ``L'' access authorization, or renewal
request. Applicants shall calculate the access authorization fee
according to the stated formula {OPM rate + [(OPM rate x 11.6%),
rounded to the nearest dollar] = NRC access authorization fee{time}
and with reference to the table in Appendix A to this part.
(3) Certain applications from individuals having current Federal
access authorizations may be processed more expeditiously and at less
cost, since the Commission, at its discretion, may decide to accept the
certification of access authorization and investigative data from other
Federal Government agencies that grant personnel access authorizations.
0
5. Appendix A to Part 25 is revised as follows:
APPENDIX A TO PART 25--FEES FOR NRC ACCESS AUTHORIZATION
----------------------------------------------------------------------------------------------------------------
Plus the NRC's processing fee
(rounded to the nearest
Is the sum of the current OPM dollar), which is equal to
The NRC application fee for an access fee billing rate charged for an the OPM billing rate for the
for an acess authorization type * * * investigation of type * * * type of investigation
referenced multiplied by * *
*
----------------------------------------------------------------------------------------------------------------
Initial ``L'' access authorization \1\...... ANACI--Access National Agency Check 11.6%
with Inquiries (Standard Service,
Code B).
Initial ``L'' access authorization \1\ ANACI--Access National Agency Check 11.6%
(expedited processing). with Inquiries (Expedite Handling,
Code A).
Reinstatement of ``L'' access authorization ANACI--Access National Agency Check 11.6%
\2\. with Inquiries (Standard Service,
Code B).
Extension or Transfer of ``L'' access ANACI--Access National Agency Check 11.6%
authorization \2\. with Inquiries (Standard Service,
Code B).
Renewal of ``L'' access authorization \1\... ANACI--Access National Agency Check 11.6%
with Inquiries (Standard Service,
Code B).
Initial ``Q'' access authorization.......... SSBI--Single Scope Background 11.6%
Investigation (120 Day Service,
Code C).
Initial ``Q'' access authorization SSBI--Single Scope Background 11.6%
(expedited processing). Investigation (35 Day Service,
Code A).
Reinstatement of ``Q'' access authorization SSBI--Single Scope Background 11.6%
\2\. Investigation (120 Day Service,
Code C).
[[Page 62513]]
Reinstatement of ``Q'' access authorization SSBI--Single Scope Background 11.6%
\2\ (expedited processing). Investigation (35 Day Service,
Code A).
Extension or Transfer of ``Q'' \2\.......... SSBI--Single Scope Background 11.6%
Investigation (120 Day Service,
Code C).
Extension or Transfer of ``Q'' \2\ SSBI--Single Scope Background 11.6%
(expedited processing). Investigation (35 Day Service,
Code A).
Renewal of ``Q'' access authorization \2\... LBI--Limited Background 11.6%
Investigation (120 Day Service,
Code C).
----------------------------------------------------------------------------------------------------------------
\1\ If the NRC determines, based on its review of available data, that a single scope investigation is
necessary, the appropriate fee for an Initial ``Q'' access authorization will be assessed before the conduct
of the investigation.
\2\ Full fee will only be charged if an investigation is required.
Dated at Rockville, Maryland, this 27th day of October, 2003.
For the Nuclear Regulatory Commission.
William D. Travers,
Executive Director for Operations.
[FR Doc. 03-27804 Filed 11-4-03; 8:45 am]
BILLING CODE 7590-01-P