[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]


 ========================================================================
 Proposed Rules
                                                 Federal Register
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 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  

[[Page 73685]]


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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

[[Page 73686]]

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

[[Page 73687]]

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:

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                            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
--------------------------------------------------------------------------------------------------------------------------------------------------------
            $5,465     $5,465      x      90.2%      =   $4,929.43 (rounded to $4,929)                                                        = $10,394
--------------------------------------------------------------------------------------------------------------------------------------------------------

    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