[Federal Register Volume 69, Number 190 (Friday, October 1, 2004)]
[Rules and Regulations]
[Pages 58820-58822]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-21766]


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NUCLEAR REGULATORY COMMISSION

10 CFR Part 73

RIN 3150-AH53


Criminal History Check: Assessment of Application Fee

AGENCY: Nuclear Regulatory Commission.

ACTION: Final rule.

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SUMMARY: The Nuclear Regulatory Commission (NRC) is amending its 
regulations to reflect an administrative change in the method of 
calculating the agency's application fee for criminal history checks 
requested by licensees. The amendment establishes the application fee 
amount as the sum of the user fee charged by the Federal Bureau of 
Investigation (FBI) for performing

[[Page 58821]]

criminal history checks on fingerprint records and an NRC handling 
charge assessed to ensure full recovery of NRC's administrative costs 
related to fingerprint record processing. The resulting increase in the 
fee is quite small ($3.00). The amendment also provides for the NRC to 
publish its current criminal history check fee on the NRC public Web 
site. The NRC will continue to notify licensees directly (by e-mail) 
whenever the application fee is adjusted.

EFFECTIVE DATE: October 1, 2004.

ADDRESSES: Publicly available documents related to this rulemaking may 
be viewed on public computers in the NRC's 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. Selected documents can be viewed and 
downloaded electronically via the NRC's rulemaking Web site at http://ruleforum.llnl.gov.
    Publicly available documents created or received at the NRC are 
available electronically at the NRC's Electronic Reading Room at http://www.nrc.gov/NRC/reading-rm/adams.html. From this site, the public can 
gain entry into the NRC's Agencywide Document Access and Management 
System (ADAMS), which provides text and image files of NRC's public 
documents. If you do not have access to ADAMS or if there are problems 
in accessing the documents located in ADAMS, contact the PDR Reference 
staff at 1-800-397-4209, 301-415-4737 or by e-mail to [email protected].

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: NRC licensees authorized to operate nuclear 
power reactors under 10 CFR part 50 must ensure that any individual 
granted access to Safeguards Information or unescorted access to the 
nuclear power facility has passed a criminal history check performed by 
the FBI. 10 CFR part 73, which implements Section 149 of the Atomic 
Energy Act of 1954, as amended, requires licensees to submit a 
fingerprint record for any such individual to the NRC, which forwards 
that record to the FBI for analysis. Based on criminal history 
information received from the FBI, the licensee must determine whether 
to grant or to deny the individual unescorted access to the facility or 
access to Safeguards Information.
    10 CFR 73.57(d) details how licensees are to submit fingerprint 
records and requires that each application for a criminal history check 
be accompanied by payment of the application fee. Section 149 of the 
Atomic Energy Act requires that the costs of these NRC record checks 
shall be paid by the licensee or licensee applicant. In the past, the 
application fee was equal to the amount charged NRC by the FBI for 
checking fingerprint records submitted on behalf of licensees. This FBI 
user fee, currently $24.00, includes a $2.00 handling fee retained by 
the NRC to offset administrative costs associated with the processing 
of licensee submissions. However, a recent audit of the NRC's criminal 
history check program found that the actual cost to the NRC of 
processing each fingerprint check application is more than twice the 
$2.00 agency handling charge included in the FBI user fee. As a result, 
the NRC has not been recovering the full cost of the criminal history 
program from those licensees using the service.
    In order to recover full program costs from licensee users, the NRC 
is increasing the amount of the criminal history check application fee 
by $3.00, to $27.00 per fingerprint record submitted. The higher amount 
will close the gap between the current handling charge and the NRC's 
actual administrative costs related to processing of licensee 
applications. This final rule amends Sec.  73.57(d)(3) to specify that 
the application fee for criminal history checks is the sum of the FBI 
user fee and the supplemental NRC processing charge required to fully 
cover internal administrative costs connected with the program.
    The dollar amount of the application fee was removed from Sec.  
73.57(d)(3) by a final rule published on January 6, 1994 (59 FR 661). 
This was done to allow the NRC to adjust the application fee as 
necessary to ensure cost recovery without undertaking a burdensome 
rulemaking to effect a minor fee change. The 1994 final rule also 
provided that the NRC would publish notice of any future cost 
adjustments in the Federal Register. This final rule changes the 
procedure for notifying NRC licensees of fee adjustments. The amendment 
requires the NRC to post the amount of the current application fee on 
the Criminal History Program web page, accessible from the NRC's 
Electronic Submittals page at http://www.nrc.gov/site-help/eie.html. 
The NRC will continue its current practice of directly informing 
affected licensees of any fee changes. Licensees will be notified of 
future fee adjustments via e-mail.

Administrative Procedure Act

    The NRC finds for good cause that the notice and comment provisions 
of the Administrative Procedure Act do not apply under 5 U.S.C. 
553(b)(A). Congress has mandated that the NRC recover its full 
administrative costs in implementing Section 149 of the Atomic Energy 
Act of 1954, as amended, and the fee increase established here is quite 
small. Therefore, notice and public comment would be unnecessary and 
contrary to the public interest. 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 amendment is 
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 changes the way in which the NRC's 
fingerprint check application fee is assessed, enabling the agency to 
recover the full administrative cost of the criminal history program 
from licensee users. The rule also establishes a new mechanism for 
informing licensees of any future fee adjustments. 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 exclusion 10 CFR 51.22(c) because the rule is 
of a minor or non-policy nature. Therefore, neither an environmental 
impact statement nor an environmental assessment has been prepared for 
this final rule. Because of the nature of the rule, 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 under approval number 3150-0002.

[[Page 58822]]

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 makes an administrative change in the method of 
calculating the NRC's application fee for criminal history checks 
requested by licensees. The amendment is required to ensure that the 
NRC recovers the full cost of the criminal history program from 
licensees using the service. Because this rule implements the Section 
149 requirement that the cost of the criminal history check be paid by 
the licensee or applicant, a regulatory analysis is unnecessary.

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 this 
amendment does 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 in 10 CFR Part 73

    Criminal penalties, Export, Hazardous materials transportation, 
Import, Nuclear materials, Nuclear power plants and reactors, 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 part 73.

PART 73--PHYSICAL PROTECTION OF PLANTS AND MATERIALS

0
1. The authority citation for part 73 continues to read as follows:

    Authority: Secs. 53, 161, 68 Stat. 930, 948, as amended, sec. 
147, 94 Stat. 780 (42 U.S.C. 2073, 2167, 2201); sec. 201, as 
amended, 204, 88 Stat. 1242, as amended, 1245, sec. 1701, 106 Stat. 
2951, 2952, 2953 (42 U.S.C. 5841, 5844, 2297f); sec. 1704, 112 Stat. 
2750 (44 U.S.C. 3504 note).
    Section 73.1 also issued under secs. 135, 141, Pub. L. 97-425, 
96 Stat. 2232, 2241 (42 U.S.C. 10155, 10161). Section 73.37(f) also 
issued under sec. 301, Pub. L. 96-295, 94 Stat. 789 (42 U.S.C. 5841 
note). Section 73.57 is issued under sec. 606, Pub. L. 99-399, 100 
Stat. 876 (42 U.S.C. 2169).


0
2. In Sec.  73.57, paragraph (d)(3) is revised to read as follows:


Sec.  73.57  Requirements for criminal history checks of individuals 
granted unescorted access to a nuclear power facility or access to 
Safeguards Information by power reactor licensees.

* * * * *
    (d) * * *
    (3) (i) Fees for the processing of fingerprint checks are due upon 
application. Licensees shall submit payment with the application for 
the processing of fingerprints through corporate check, certified 
check, cashier's check, money order, or electronic payment, made 
payable to ``U.S. NRC.'' (For guidance on making electronic payments, 
contact the Security Branch, Division of Facilities and Security, at 
(301) 415-7404). Combined payment for multiple applications is 
acceptable.
    (ii) The application fee is the sum of the user fee charged by the 
FBI for each fingerprint card or other fingerprint record submitted by 
the NRC on behalf of a nuclear power plant licensee, and an 
administrative processing fee assessed by the NRC. The NRC processing 
fee covers administrative costs associated with NRC handling of 
licensee fingerprint submissions. The Commission publishes the amount 
of the fingerprint check application fee on the NRC public Web site. 
(To find the current fee amount, go to the Electronic Submittals page 
at http://www.nrc.gov/site-help/eie.html and select the link for the 
Criminal History Program.) The Commission will directly notify 
licensees who are subject to this regulation of any fee changes.
* * * * *

    Dated at Rockville, Maryland, this 20th day of September, 2004.

    For the Nuclear Regulatory Commission.
Martin J. Virgilio,
Acting Executive Director for Operations.
[FR Doc. 04-21766 Filed 9-30-04; 8:45 am]
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