[Federal Register Volume 86, Number 246 (Tuesday, December 28, 2021)]
[Proposed Rules]
[Pages 73685-73687]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-28117]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 86, No. 246 / Tuesday, December 28, 2021 /
Proposed Rules
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NUCLEAR REGULATORY COMMISSION
10 CFR Parts 11, 25, and 95
[NRC-2020-0133]
RIN 3150-AK49
Access Authorization Fees
AGENCY: Nuclear Regulatory Commission.
ACTION: Proposed rule.
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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) is proposing to
amend its regulations to update the access authorization fees charged
to NRC licensees for work performed under the Material Access
Authorization Program and the Information Access Authority Program. The
change in fees is due to an increase in the review time for each
application for access authorization. This amendment is prompted by a
recent audit of fees performed by an external certified public
accounting and financial management services firm and ensures that the
NRC continues to recover the full costs of processing access
authorization requests from NRC licensees. The proposed rule also would
make two administrative changes to revise definitions to include new
naming conventions for background investigation case types and to
specify the electronic process for completing security forms.
DATES: Submit comments by January 27, 2022. Comments received after
this date will be considered if it is practical to do so, but the NRC
is able to ensure consideration only for comments received on or before
this date.
ADDRESSES: You may submit comments by any of the following methods;
however, the NRC encourages electronic comment submission through the
Federal rulemaking website:
Federal Rulemaking Website: Go to https://www.regulations.gov and search for Docket ID NRC-2020-0133. Address
questions about NRC dockets to Dawn Forder; telephone: 301-415-3407;
email: [email protected]. For technical questions contact the
individual listed in the FOR FURTHER INFORMATION CONTACT section of
this document.
Email comments to: [email protected]. If you do
not receive an automatic email reply confirming receipt, then contact
us at 301-415-1677.
Mail comments to: Secretary, U.S. Nuclear Regulatory
Commission, Washington, DC 20555-0001, ATTN: Rulemakings and
Adjudications Staff.
For additional direction on obtaining information and submitting
comments, see ``Obtaining Information and Submitting Comments'' in the
SUPPLEMENTARY INFORMATION section of this document.
FOR FURTHER INFORMATION CONTACT: Emily Robbins, Office of
Administration, telephone: 301-415-7000, email: [email protected]
or Vanessa Cox, Office of Nuclear Material Safety and Safeguards,
telephone: 301-415-8342, email: [email protected]. Both are staff of
the U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Obtaining Information and Submitting Comments
II. Rulemaking Procedure
III. Background
IV. Plain Writing
V. Paperwork Reduction Act
I. Obtaining Information and Submitting Comments
A. Obtaining Information
Please refer to Docket ID NRC-2020-0133 when contacting the NRC
about the availability of information for this action. You may obtain
publicly available information related to this action by any of the
following methods:
Federal Rulemaking Website: Go to https://www.regulations.gov and search for Docket ID NRC-2020-0133.
NRC's Agencywide Documents Access and Management System
(ADAMS): You may obtain publicly available documents online in the
ADAMS Public Documents collection at https://www.nrc.gov/reading-rm/adams.html. To begin the search, select ``Begin Web-based ADAMS
Search.'' For problems with ADAMS, please contact the NRC's Public
Document Room (PDR) reference staff at 1-800-397-4209, at 301-415-4737,
or by email to [email protected]. The ADAMS accession number for
each document referenced (if it is available in ADAMS) is provided the
first time that it is mentioned in this document.
NRC's PDR: You may examine and purchase copies of public
documents, by appointment, at the NRC's PDR, Room P1 B35, One White
Flint North, 11555 Rockville Pike, Rockville, Maryland 20852. To make
an appointment to visit the PDR, please send an email to
[email protected] or call 1-800-397-4209 or 301-415-4737, between
8:00 a.m. and 4:00 p.m. (ET), Monday through Friday, except Federal
holidays.
B. Submitting Comments
The NRC encourages electronic comment submission through the
Federal rulemaking website (https://www.regulations.gov). Please
include Docket ID NRC-2020-0133 in your comment submission.
The NRC cautions you not to include identifying or contact
information that you do not want to be publicly disclosed in your
comment submission. The NRC will post all comment submissions at
https://www.regulations.gov as well as enter the comment submissions
into ADAMS. The NRC does not routinely edit comment submissions to
remove identifying or contact information.
If you are requesting or aggregating comments from other persons
for submission to the NRC, then you should inform those persons not to
include identifying or contact information that they do not want to be
publicly disclosed in their comment submission. Your request should
state that the NRC does not routinely edit comment submissions to
remove such information before making the comment submissions available
to the public or entering the comment into ADAMS.
II. Rulemaking Procedure
Because the NRC considers this action to be non-controversial, the
NRC is publishing this proposed rule concurrently with a direct final
rule in the Rules and Regulations section of this issue of the Federal
Register. The direct final rule will become effective on March 14,
2022. However, if the NRC receives significant adverse comments by
January 27, 2022, then the NRC will
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publish a document that withdraws the direct final rule. If the direct
final rule is withdrawn, the NRC will address the comments in a
subsequent final rule. Absent significant modifications to the proposed
revisions requiring republication, the NRC will not initiate a second
comment period on this action in the event the direct final rule is
withdrawn.
A significant adverse comment is a comment where the commenter
explains why the rule would be inappropriate, including challenges to
the rule's underlying premise or approach, or would be ineffective or
unacceptable without a change. A comment is adverse and significant if
it meets the following criteria:
(1) The comment opposes the rule and provides a reason sufficient
to require a substantive response in a notice-and-comment process. For
example, a substantive response is required under the following
circumstances:
(a) The comment causes the NRC to reevaluate (or reconsider) its
position or conduct additional analysis;
(b) The comment raises an issue serious enough to warrant a
substantive response to clarify or complete the record; or
(c) The comment raises a relevant issue that was not previously
addressed or considered by the NRC.
(2) The comment proposes a change or an addition to the rule, and
it is apparent that the rule would be ineffective or unacceptable
without incorporation of the change or addition.
(3) The comment causes the NRC to make a change (other than
editorial) to the rule.
For procedural information and the regulatory analysis, see the
direct final rule published in the Rules and Regulations section of
this issue of the Federal Register.
III. Background
Certain individuals employed by NRC licensees or their contractors
require access to special nuclear material (plutonium, uranium-233, and
uranium enriched in the isotopes uranium-233 or uranium-235),
restricted data, or national security information. These individuals
must obtain an access authorization from the NRC. When a licensee
requests access authorization for an employee or a contractor, the NRC
initiates a background investigation of the individual seeking access
authorization. Based on the results of that investigation, the NRC
determines whether permitting that individual to have access to special
nuclear material, restricted data, or national security information
would create a security risk.
The Defense Counterintelligence and Security Agency (DCSA) conducts
the access authorization background investigations for the NRC and sets
the rates charged for these investigations. The combined cost of the
DCSA background investigation and any related NRC processing activities
(NRC processing fee) is recovered from the licensee through an access
authorization fee assessed by the NRC. It is the NRC's practice to
publish the fee schedule for special nuclear material access
authorization in Sec. 11.15(e) of title 10 of the Code of Federal
Regulations (10 CFR) and the corresponding fee schedule for restricted
data and national security information access authorization in appendix
A to 10 CFR part 25. Both schedules are based on rates charged by DSCA
for conducting the access authorization background investigations (DSCA
investigation billing rates).
Updated Access Authorization Fees
This proposed rule would amend 10 CFR parts 11, 25, and 95 along
with appendix A to 10 CFR part 25. The NRC is proposing to revise the
processing fee charged to licensees for work performed under the
Material Access Authorization Program (MAAP) and the Information Access
Authority Program (IAAP) from 55.8 percent of the DCSA investigation
billing rates to 90.2 percent. A September 2019 NRC audit of actual in-
house costs incurred in processing licensee applications for access
authorization showed an increase in the NRC's review time for each
application. The audit also showed that the NRC was not recovering its
full-cost fees for the time spent processing the increased number of
complex applications; despite a 2016 biennial review indicating
increasing costs, the NRC had not adjusted its fees since 2012.
In addition, requests for reciprocity would be charged a flat fee
rate of $95.00. Previously, the NRC did not charge a fee for
reciprocity requests because certain applications from individuals with
current Federal access authorizations were processed expeditiously and
at a reduced cost. This flat fee would be aligned with the level of
effort that has recently been expended by DCSA to process reciprocity
requests, and accounts for inflation as well as recovery of the
appropriate cost for conducting this work. In cases where reciprocity
is not acceptable and it is necessary to perform a background
investigation, then the NRC would charge the appropriate fee based on
the DCSA investigation billing rate. This proposed rule would continue
to allow licensees to calculate the NRC access authorization fee for
any given application by referencing the current DCSA investigation
billing rates schedule for background investigation services.
Reimbursable billing rates for personnel background investigations are
published by DCSA in a Federal Investigations Notice (FIN). The current
DCSA investigation billing rates are published on the DCSA website and
are available at https://www.dcsa.mil/mc/pv/gov_hr_security/billing_rates/. The NRC's licensees can also obtain the current DCSA
investigation billing rates schedule by contacting the NRC's Personnel
Security Branch, Division of Facilities and Security, Office of
Administration by email at
[email protected].
The fee-calculation formula is designed to recover the NRC's actual
in-house processing costs for each application received from a
licensee. The NRC's access authorization fee for any given request is
determined using the following formula: The DCSA investigation billing
rates on the day the NRC receives the application + the NRC processing
fee = the NRC material access authorization fee. The provisions in this
proposed rule would set the NRC processing fee; the fee is determined
by multiplying the DCSA investigation billing rate on the day the NRC
receives the application by 90.2 percent (i.e., DCSA rate x 90.2
percent).
Public Law 115-439, the Nuclear Energy Innovation and Modernization
Act (42 U.S.C. 2215), requires the NRC to recover through fees the full
cost incurred in providing a service or thing of value. As noted
previously, the DCSA investigation billing rates are pulled directly
from the current DCSA fee schedule for investigations. The tables in
revised Sec. 11.15(e)(3) and appendix A to 10 CFR part 25 cross-
reference each type of NRC access authorization request to the
appropriate investigation service listed in the DCSA's investigation
billing rates schedule. For example, a licensee seeking a special
nuclear material ``NRC-U'' access authorization requiring a Tier 5 (T5)
investigation is directed by the table in Sec. 11.15(e)(3) to
calculate the NRC processing fee based on the DCSA investigation
billing rates for a ``standard'' T5 investigation. According to the
current DCSA investigation billing rates schedule (FIN 20-04, ``FY 2021
and FY 2022 Investigations Reimbursable Billing Rates,'' dated June 30,
2020), the DCSA charges $5,465 for a ``standard'' T5 investigation. The
table
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instructs the licensee to calculate the NRC's application processing
fee by multiplying $5,465 by 90.2 percent, which equals $4,929.43. The
licensee then rounds the NRC's processing fee to the nearest dollar, or
$4,929, and adds that amount to the DCSA investigation billing rate of
$5,465 to determine the total NRC access authorization fee: $10,394.
The following table illustrates the calculation process:
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Plus NRC application processing fee Equals total NRC
Current DCSA ------------------------------------------------------------------------------------------------------------------- access
investigation authorization
billing rate for NRC fee fee for
standard T5 DCSA rate x 90.2% = (rounded to nearest $) NRC[dash]U
application
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$5,465 $5,465 x 90.2% = $4,929.43 (rounded to $4,929) = $10,394
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Licensees applying for restricted data or national security
information access authorization follow a similar procedure. The table
in appendix A to 10 CFR part 25 cross-references each type of ``Q'' or
``L'' access authorization to the corresponding DCSA investigation
type. The DCSA investigation billing rate for the type of investigation
referenced is determined by consulting the current DCSA investigation
billing rates schedule. This rate is then used in the formula to
calculate the correct NRC access authorization fee for the type of
application submitted. Copies of the current NRC access authorization
fees can be obtained by contacting the NRC's Personnel Security Branch,
Division of Facilities and Security, Office of Administration by email
to [email protected]. Any change in
the NRC's access authorization fees would be applicable to each access
authorization request received on or after the effective date of the
DCSA's most recently published investigation billing rates schedule.
Administrative Changes
In Federal Investigations Notice Number 16-07, dated September 26,
2016 (https://www.dcsa.mil/Portals/91/Documents/pv/GovHRSec/FINs/FY16/fin-16-07.pdf), the Office of Personnel Management (OPM) implemented
the Federal Investigative Standards according to the phased Federal
Investigative Standards Implementation Plan issued by the Suitability
and Security Executive Agents. In accordance with the plan, the Access
National Agency Check with Inquiries was renamed to Tier 3 (T3) and the
National Agency Check with Law and Credit was renamed to Tier 3
reinvestigation (T3R). The T3 investigation is required for positions
designated as non-critical sensitive and/or requiring eligibility for
``L'' or ``R'' access or access to Confidential or Secret information.
The T3R is the reinvestigation product for the same positions. The
Single Scope Background Investigation was renamed to Tier 5 (T5) and
the Single Scope Background Investigation-Periodic Reinvestigation was
renamed to Tier 5R (T5R). The T5 investigation is required for
positions designated as critical sensitive, special sensitive, and/or
requiring eligibility for ``Q'' or ``U'' access or access to Top Secret
or Sensitive Compartmented Information. The T5R is the reinvestigation
product required for the same positions. This proposed rule would
revise the definitions in 10 CFR parts 11, 25, and 95 to include the
new naming conventions for background investigations case types. The
definitions for the NRC ``R'' and NRC ``U'' special nuclear material
access authorizations would include the renamed investigation types
Tier 3 and Tier 5, respectively. Also, the definitions for NRC ``L''
and NRC ``Q'' access authorizations would include the renamed
investigation types Tier 3 and Tier 5, respectively.
In 2005, the OPM implemented the Electronic Questionnaires for
Investigative Processing (e-QIP) system, which allows applicants to
electronically enter, update, and release their personal investigative
data over a secure internet connection to an employing agency for
review and approval. The e-QIP system is a web-based automated system
that facilitates the processing of standard investigative forms used
when conducting background investigations for Federal security,
suitability, fitness, and credentialing purposes. The NRC allows
applicants to complete their security form, the Questionnaire for
National Security Positions, Standard Form 86 (SF-86), electronically
through the (e-QIP) system to minimize errors and expedite processing.
This proposed rule would update 10 CFR parts 11 and 25 to clarify that
the NRC uses the e-QIP system for applicants to provide their personal
investigative data.
IV. Plain Writing
The Plain Writing Act of 2010 (Pub. L. 111-274) requires Federal
agencies to write documents in a clear, concise, well-organized manner.
The NRC has written this document to be consistent with the Plain
Writing Act as well as the Presidential Memorandum, ``Plain Language in
Government Writing,'' published June 10, 1998 (63 FR 31885). The NRC
requests comment on the proposed rule with respect to clarity and
effectiveness of the language used.
V. Paperwork Reduction Act
This proposed 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 (OMB), 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.
List of Subjects
10 CFR Part 11
Hazardous materials transportation, Investigations, Nuclear energy,
Nuclear materials, Penalties, Reporting and recordkeeping requirements,
Security measures, Special nuclear material.
10 CFR Part 25
Classified information, Criminal penalties, Investigations,
Penalties, Reporting and recordkeeping requirements, Security measures.
10 CFR Part 95
Classified information, Criminal penalties, Penalties, Reporting
and recordkeeping requirements, Security measures.
Dated: December 21, 2021.
For the Nuclear Regulatory Commission.
Daniel H. Dorman,
Executive Director for Operations.
[FR Doc. 2021-28117 Filed 12-27-21; 8:45 am]
BILLING CODE 7590-01-P