[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]



 ========================================================================
 Rules and Regulations
                                                 Federal Register
 ________________________________________________________________________
 
 This section of the FEDERAL REGISTER contains regulatory documents 
 having general applicability and legal effect, most of which are keyed 
 to and codified in the Code of Federal Regulations, which is published 
 under 50 titles pursuant to 44 U.S.C. 1510.
 
 The Code of Federal Regulations is sold by the Superintendent of Documents. 
 Prices of new books are listed in the first FEDERAL REGISTER issue of each 
 week.
 
 ========================================================================
 

  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