[Federal Register Volume 87, Number 144 (Thursday, July 28, 2022)]
[Rules and Regulations]
[Pages 45235-45242]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-16144]
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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.
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Federal Register / Vol. 87, No. 144 / Thursday, July 28, 2022 / Rules
and Regulations
[[Page 45235]]
NUCLEAR REGULATORY COMMISSION
10 CFR Parts 11, 25, and 95
[NRC-2020-0133]
RIN 3150-AK49
Access Authorization Fees
AGENCY: Nuclear Regulatory Commission.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) is amending 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 final rule 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 final rule also makes 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: The final rule is effective October 1, 2022.
ADDRESSES: 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. Address
questions about NRC dockets to Dawn Forder; telephone: 301-415-3407;
email: [email protected]. For technical questions, contact the
individuals listed in the FOR FURTHER INFORMATION CONTACT section of
this document.
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 the SUPPLEMENTARY INFORMATION
section.
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.
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. Background
II. Discussion
III. Opportunities for Public Participation
IV. Public Comment Analysis
V. Section-by-Section Analysis
VI. Regulatory Flexibility Certification
VII. Regulatory Analysis
VIII. Backfitting and Issue Finality
IX. Cumulative Effects of Regulation
X. Plain Writing
XI. National Environmental Policy Act
XII. Paperwork Reduction Act Statement
XIII. Congressional Review Act
XIV. Voluntary Consensus Standards
I. 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
obtain an access authorization from the NRC. When a licensee requests
access authorization for an employee or a contractor, the NRC initiates
an 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 related NRC processing activities
(NRC processing fee) is recovered from the licensee through an access
authorization fee assessed by the NRC. The NRC publishes 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 DCSA for conducting
the access authorization background investigations (DCSA investigation
billing rates).
On December 28, 2021 (86 FR 73631), the NRC published in the
Federal Register a direct final rule that would have amended parts 11,
25, and 95 of 10 CFR to update these access authorization fees charged
to NRC licensees for work performed under the Material Access
Authorization Program (MAAP) and the Information Access Authority
Program (IAAP). The direct final rule also would have made 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. The direct final rule
was to become effective on March 14, 2022.
The NRC concurrently published a companion proposed rule on
December 28, 2021 (86 FR 73685). In the proposed rule, the NRC stated
that if any
[[Page 45236]]
significant adverse comments were received, then the NRC would withdraw
the direct final rule by publishing a notice in the Federal Register.
In that event, the direct final rule would not take effect.
The NRC received one comment submission (ADAMS Accession No.
ML22025A233) on the proposed rule that accompanied the direct final
rule. The comment was submitted by the Nuclear Energy Institute (NEI),
a private organization, and is available at www.regulations.gov by
searching on Docket ID NRC-2020-0133. The NRC determined the comment to
be a significant adverse comment as defined in Section II, Rulemaking
Procedure, of the direct final rule because the comment raised an issue
serious enough to warrant a substantive response to clarify or complete
the record; therefore, the NRC withdrew the direct final rule (87 FR
12853; March 8, 2022).
As stated in the December 28, 2021, proposed rule, the NRC is
addressing the comment in this final rule.
II. Discussion
Updated Access Authorization Fees
This final rule amends 10 CFR parts 11, 25, and 95, along with
appendix A to 10 CFR part 25. 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. 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. Therefore, the NRC
is revising the processing fee charged to licensees for work performed
under the MAAP and the IAAP from 55.8 percent of the DCSA investigation
billing rates to 90.2 percent.
In addition, all requests for reciprocity will 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 will 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, the NRC will charge the appropriate fee based on the
DCSA investigation billing rate.
Licensees calculate the NRC access authorization fee for an
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 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 final rule
set the NRC processing fee; the processing 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).
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,'' June 30,
2020), the DCSA charges $5,465 for a ``standard'' T5 investigation. The
table 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 for access
authorization fees requiring a standard T5 investigation:
--------------------------------------------------------------------------------------------------------------------------------------------------------
Plus NRC application processing fee Equals total NRC
Current DCSA ------------------------------------------------------------------------------------------------------------------- access
investigation authorization
billing rate for DCSA rate x NRC fee = (rounded to nearest $) fee for NRC-U
standard T5 90.2% 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]. Changes to the
NRC's access authorization fees that result from a modification to the
DCSA's billing rate will apply to access authorization requests
received on or after the
[[Page 45237]]
effective date of the modification to the DCSA's investigation billing
rates schedule.
Administrative Changes
In FIN Number 16-02, dated October 6, 2015, and FIN 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 (FIS) according
to the phased Federal Investigative Standards Implementation Plan
issued by the Suitability and Security Executive Agents and the
Performance Accountability Council. 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 final rule revises 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 include the renamed investigation types Tier 3 and Tier
5, respectively. Also, the definitions for NRC ``L'' and NRC ``Q''
access authorizations 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, which is the Standard Form
86 (SF-86), Questionnaire for National Security Positions,
electronically through the e-QIP system to minimize errors and expedite
processing. This final rule updates 10 CFR parts 11 and 25 to clarify
that the NRC uses the e-QIP system for applicants to provide their
personal investigative data.
III. Opportunities for Public Participation
On December 28, 2021, the NRC concurrently published in the Federal
Register a companion rule with a direct final rule to amend the access
authorization fees charged to NRC licensees for work performed under
the MAAP and the IAAP. The public comment period closed on January 27,
2022.
IV. Public Comment Analysis
The NRC received one significant adverse comment submission from
NEI in response to the companion proposed rule that was concurrently
published with the direct final rule; the NRC did not receive any other
comment submissions. This section provides the NRC's responses to the
comments submitted by NEI.
NEI Comment: The direct final rule lacks transparency because it
does not provide sufficient information on the 2019 audit or why the
NRC found an increase in fees from 55.8 percent to 90.2 percent
necessary and, therefore, it fails to provide a meaningful opportunity
for public comment.
NRC Response: In the companion proposed rule, the NRC provided
sufficient information to inform the public of the proposed change to
the regulations and the agency's reasoning supporting that change. As
explained in the direct final rule and companion proposed rule
published on December 28, 2021, the NRC conducted a biennial review of
fees in 2016. This review of fees for the MAAP and IAAP used a cost
analysis technique and methodology based on legislative and regulatory
requirements, along with information and costs collected from the NRC's
financial management systems. The audit showed that the NRC was not
recovering its full-cost fees for the time spent processing the
increased number of complex applications. The NEI seeks access to the
audit report to confirm the agency's reasoning, but the NRC biennial
review of fees reports, and subsequent memoranda, contain Official Use
Only--Sensitive Internal Information and, as such, are not publicly
available.
The NRC has processes to help ensure the accuracy of its internal
financial analyses. Specifically, the NRC retains an independent audit
firm to conduct biennial reviews of the fees charged by the NRC's IAAP
and MAAP about the processing of IAAP and MAAP applications. The NRC
approves the methodology used and evaluates the results of each review.
A September 2019 NRC audit of actual in-house costs incurred in
processing licensee applications for access authorization also showed
an increase in the NRC's review time for each application. This audit
was performed by an external certified public accounting and financial
management services firm. 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. The increase in processing fees from 55.8 percent of the
DCSA billing rates to 90.2 percent ensures that the NRC continues to
recover the full costs of processing access authorization requests from
NRC licensees.
No change to the final rule was made as a result of this comment.
NEI Comment: The direct final rule does not adequately explain why
NRC processing of background investigation applications has become more
complex.
NRC Response: The NRC disagrees with this comment. As discussed in
response to the previous comment, the direct final rule and companion
proposed rule explained that NRC audits revealed increasing costs for
processing access authorizations, which the NRC is required to recover
regardless of the reason for the increase. Moreover, the direct final
rule and companion proposed rule refer to the FIS that were jointly
issued in 2012 by Security and Suitability Executive Agents and the
Performance Accountability Council. The FIS are the result of a
critical security clearance reform initiative that established new
Federal investigative criteria to conduct background investigations.
These background investigations are used to determine eligibility for
logical and physical access, suitability for U.S. Government (USG)
employment, eligibility for access to classified information or to hold
a sensitive position, and fitness to perform work for or on behalf of
the USG as a contractor employee.
The revised Federal investigative criteria required expansion of
[[Page 45238]]
investigative inquiries/sources and developed potentially disqualifying
information in a greater percentage of cases, resulting in longer
turnaround times and increased efforts by the NRC.
No change to the final rule was made as a result of this comment.
NEI Comment: The proposed implementation schedule is unreasonable.
NRC Response: The NRC is statutorily required to recover most of
its budget authority through fees assessed to applicants for an NRC
license and to holders of NRC licenses. The NRC is required by law to
recover its costs and to provide at least 30-days' notice prior to
changing or introducing new fees. Once the NRC was notified through the
2019 audit results that it was not fully recovering the costs for work
performed under the MAAP and the IAAP, the NRC developed a plan to
implement the rate adjustment. The implementation plan included
publishing a direct final rule and a companion proposed rule to notify
the licensee community and stakeholders of changes in the access
authorization fees. The direct final rule was to become effective on
March 14, 2022, 75 days after publication on December 28, 2021.
The NRC has taken this comment into consideration and is making
this final rule effective on October 1, 2022, so that the new access
authorization fees become effective at the beginning of fiscal year
2023. The beginning of each fiscal year is generally when licensees and
stakeholders are notified of any changes in the access authorization
fee rates.
NEI Comment: The direct final rule incorrectly states that
``despite a 2016 biennial review indicating increasing costs, the NRC
had not adjusted its fees since 2012.'' For example, as demonstrated in
the Q clearance data table, while the NRC's ``markup'' rate remained at
55.8 percent, the NRC access authorization fee has been steadily
adjusted upward since 2012 due to increases in the DCSA investigation
billing rates.
NRC Response: The NRC disagrees with this comment. The upward trend
in cost that the commenter noted is due to DCSA adjustments and not the
NRC processing fee rate. The NRC processing fee percentage has not been
adjusted since 2012 (but the DCSA cost has increased).
No change to the final rule was made as a result of this comment.
V. Section-by-Section Analysis
The following paragraphs describe the specific changes in this
final rule.
Section 11.7 Definitions
This final rule revises the definitions in Sec. 11.7 for NRC-``R''
special nuclear material access authorization and NRC-``U'' special
nuclear material access authorization to include the new naming
conventions for background investigations case types.
Section 11.8 Information Collection Requirements: OMB Approval
This final rule revises Sec. 11.8 to add a new paragraph (c) to
clarify that the information collections for the electronic form
``Electronic Questionnaire for Investigations Processing (e-QIP),
Standard Form 86 (SF-86)--Questionnaire for National Security
Positions'' are approved under OMB control number 3206-0005.
Section 11.15 Application for Special Nuclear Material Access
Authorization
This final rule revises paragraphs (b)(1) and (c)(1)(ii) to specify
the electronic form of the SF-86.
This final rule revises paragraph (e)(1) to change the NRC
processing fee charged to licensees for work performed under the MAAP
from 55.8 percent of the DCSA investigation billing rates to 90.2
percent.
This final rule revises paragraph (e)(3) to (1) change the NRC
processing fee charged to licensees for work performed under the MAAP
from 55.8 percent of the DCSA investigation billing rates to 90.2
percent, (2) indicate that MAAP requests for reciprocity will be
charged at a flat fee rate of $95.00, and (3) include the new naming
conventions for background investigations case types.
This final rule revises paragraph (e)(4) to clarify that certain
applications from individuals with current Federal access
authorizations may be processed expeditiously and at a reduced cost.
This final rule revises paragraph (f)(1) to include the new naming
conventions for background investigations case types.
Section 11.16 Cancellation of Request for Special Nuclear Material
Access Authorization
This final rule revises Sec. 11.16 to include the new naming
conventions for background investigations case types.
Section 25.5 Definitions
This final rule revises the definitions for ``L'' access
authorization and ``Q'' access authorization to include the new naming
conventions for background investigations case types.
Section 25.8 Information Collection Requirements: OMB Approval
This final rule revises paragraph (c)(2) to clarify that the
information collections for the electronic form ``Electronic
Questionnaire for Investigations Processing (e-QIP), SF-86--
Questionnaire for National Security Positions'' are approved under OMB
control number 3206-0005.
Section 25.17 Approval for Processing Applicants for Access
Authorization
This final rule revises paragraph (d)(1)(i) to specify the
electronic form of the SF-86.
This final rule revises paragraph (f)(1) to change the NRC
processing fee charged to licensees for work performed under the IAAP
from 55.8 percent of the DCSA investigation billing rates to 90.2
percent.
This final rule revises paragraph (f)(3) to indicate that IAAP
requests for reciprocity will be charged a flat fee rate of $95.00.
Appendix A to 10 CFR Part 25--Fees for NRC Access Authorization
This final rule revises the table in appendix A to 10 CFR part 25
to include the new naming conventions for background investigations
case types and to change the NRC processing fee charged to licensees
for work performed under the IAAP from 55.8 percent of the DCSA
investigation billing rates to 90.2 percent.
Section 95.5 Definitions
This final rule revises the definitions for NRC ``L'' access
authorization and NRC ``Q'' access authorization to include the new
naming conventions for background investigations case types.
VI. Regulatory Flexibility Certification
Under the Regulatory Flexibility Act (5 U.S.C. 605(b)), the
Commission certifies that this final rule amending 10 CFR parts 11, 25,
and 95 does not have a significant economic impact on a substantial
number of small entities. This final rule applies to those licensees
who use, process, store, transport, or deliver to a carrier for
transport, formula quantities of special nuclear material (as defined
in 10 CFR part 73) or generate, receive, safeguard, and store National
Security Information or Restricted Data (as defined in 10 CFR part 95).
Two licensees, both fuel cycle facilities, are currently required to
comply with 10 CFR part 11. Seventy-eight licensees and other
organizations, mostly power reactors and fuel cycle facilities, are
currently required to comply with 10 CFR part 25. None of these
licensees are ``small entities'' as defined in the
[[Page 45239]]
Regulatory Flexibility Act or the size standards established by the NRC
(Sec. 2.810). This final rule also applies to contractors of those
licensees required to comply with this final rule who use, process,
store, transport, or deliver to a carrier for transport, formula
quantities of special nuclear material (as defined in 10 CFR part 73)
or generate, receive, safeguard, and store National Security
Information or Restricted Data (as defined in 10 CFR part 95). Some of
these contractors may be ``small entities'' as defined in the
Regulatory Flexibility Act or the NRC's size standards. However, some
of these contractors are reimbursed through the contract for the cost
of securing access authorization. There are not a substantial number of
unreimbursed ``small entity'' contractors who apply for access
authorization, nor is the NRC aware of any significant impact on these
unreimbursed ``small entity'' contractors.
VII. Regulatory Analysis
A regulatory analysis has not been prepared for this final rule.
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. This final rule ensures that the
NRC recovers the full cost of application processing from licensees
submitting access authorization requests, as is required by statute (42
U.S.C. 2214(b)). The formula method for calculating these fees
continues to provide an efficient and effective mechanism for updating
the NRC access authorization fees in response to changes in the
underlying DCSA investigation billing rates schedule for required
personnel background investigations. These amendments will neither
impose new safety requirements nor relax existing ones and, therefore,
do not call for the sort of safety/cost analysis described in the NRC's
regulatory analysis guidelines in NUREG/BR-0058, Revision 4,
``Regulatory Analysis Guidelines of the U.S. Nuclear Regulatory
Commission,'' dated September 2004 (ADAMS Accession No. ML042820192).
VIII. Backfitting and Issue Finality
The NRC has determined that the backfit rule does not apply to this
final rule and that a backfit analysis is not required. Collection of
fees to recover the NRC's costs is required by statute (42 U.S.C.
2214(b)). Therefore, changes to rules designating the amount to be
collected are not subject to the backfitting provisions or issue
finality provisions in 10 CFR chapter I.
IX. Cumulative Effects of Regulation
The NRC did not receive any feedback on the potential for
cumulative effects of regulation.
X. Plain Writing
The Plain Writing Act of 2010 (Pub. L. 111-274) requires Federal
agencies to write documents in a clear, concise, and 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).
XI. National Environmental Policy Act
The NRC has determined that this final rule is the type of action
described in Sec. 51.22(c)(1) that is categorically excluded from
environmental review. Therefore, neither an environmental impact
statement nor environmental assessment has been prepared for this final
rule.
XII. 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 (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.
XIII. Congressional Review Act
In accordance with the Congressional Review Act of 1996 (5 U.S.C.
801-808), 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 the Office of Management and Budget.
XIV. Voluntary Consensus Standards
The National Technology Transfer and Advancement Act of 1995 (Pub.
L. 104-113) requires that Federal agencies use technical standards that
are developed or adopted by voluntary consensus standards bodies unless
the use of such a standard is inconsistent with applicable law or is
otherwise impractical. In this final rule, the NRC will revise the
formula for calculating the NRC's access authorization fee charged to
licensees for work performed under MAAP and IAAP from 55.8 percent of
the DCSA investigation billing rate for an investigation of a given
type to 90.2 percent. In addition, MAAP requests for reciprocity will
be charged a flat fee rate of $95.00. This action does not constitute
the establishment of a standard that contains generally applicable
requirements.
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.
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, 25, and 95:
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: Atomic Energy Act of 1954, secs. 161, 223 (42 U.S.C.
2201, 2273); Energy Reorganization Act of 1974, sec. 201 (42 U.S.C.
5841); 44 U.S.C. 3504 note.
Section 11.15(e) also issued under 31 U.S.C. 9701; 42 U.S.C.
2214.
0
2. In Sec. 11.7, revise the definitions for NRC-``R'' special nuclear
material access authorization and NRC-``U'' special nuclear material
access authorization to read as follows:
Sec. 11.7 Definitions.
* * * * *
NRC-``R'' special nuclear material access authorization means an
administrative determination based upon a Tier 3 background
investigation that an individual in the course of employment is
eligible to work at a job falling within the criterion of Sec.
11.11(a)(2).
[[Page 45240]]
NRC-``U'' special nuclear material access authorization means an
administrative determination based upon a Tier 5 background
investigation that an individual in the course of employment is
eligible to work at a job falling within the criterion of Sec.
11.11(a)(1) or Sec. 11.13.
* * * * *
0
3. Sec. In 11.8, add paragraph (c) to read as follows:
Sec. 11.8 Information collection requirements: OMB approval.
* * * * *
(c) In Sec. 11.15, the Standard Form 86 (SF-86), ``Electronic
Questionnaire for Investigations Processing (e-QIP), SF-86--
Questionnaire for National Security Positions,'' is approved under
control number 3206-0005.
0
4. In Sec. 11.15, revise paragraphs (b)(1), (c)(1)(ii), (e)(1), (3),
and (4), and (f)(1) to read as follows:
Sec. 11.15 Application for special nuclear material access
authorization.
* * * * *
(b) * * *
(1) Electronic Questionnaire for Investigations Processing (e-QIP),
SF-86--Questionnaire for National Security Positions;
* * * * *
(c)(1) * * *
(ii) The Electronic Questionnaire for Investigations Processing (e-
QIP), SF-86--Questionnaire for National Security Positions
* * * * *
(e) * * *
(1) Each application for a special nuclear material access
authorization, renewal, or change in level must be accompanied by a
remittance, payable to the U.S. Nuclear Regulatory Commission, which is
equal to the NRC material access authorization fee. This fee must be
determined using the following formula: the DCSA investigation billing
rates on the day of NRC receipt of the application + the NRC processing
fee = the NRC material access authorization fee. The NRC processing fee
is determined by multiplying the DCSA investigation billing rate on the
day of NRC receipt of the application by 90.2 percent (i.e., DCSA rate
x 90.2 percent).
* * * * *
(3) The NRC's Material Access Authorization Program (MAAP) is
considered reimbursable work representing services provided to an
organization for which the NRC is entitled payment. The NRC is
authorized to receive and retain fees from licensees for services
performed. The NRC's Office of the Chief Financial Officer periodically
reviews the fees charged for MAAP and makes recommendations on revising
those charges to reflect costs incurred by the NRC in providing those
services. The reviews are performed using cost analysis techniques to
determine the direct and indirect costs. Based on this review, all MAAP
requests for reciprocity will be charged a flat fee rate of $95.00 as
referenced in paragraph (e)(4)(i) of this section. 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.
Copies of the current NRC material access authorization fee may 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 will 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.
(4) Certain applications from individuals having current Federal
access authorizations may be processed expeditiously and at a reduced
cost 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.
(i) Applications for reciprocity will be processed at the NRC flat
fee rate of $95 per request as referenced in the following table:
------------------------------------------------------------------------
The NRC application fee for an access authorization of
type . . . NRC fee rate
------------------------------------------------------------------------
(A) NRC-R based on certification of comparable $95
investigation \1\....................................
(B) NRC-U based on certification of comparable 95
investigation \2\....................................
------------------------------------------------------------------------
\1\ If the NRC determines, based on its review of available data, that a
Tier 3 investigation is necessary, the appropriate NRC-R fee will be
assessed as shown in paragraph (e)(4)(ii) of this section before the
conduct of the investigation.
\2\ If the NRC determines, based on its review of available data, that a
Tier 5 investigation is necessary, the appropriate NRC-U fee will be
assessed as shown in paragraph (e)(4)(ii) of this section before the
conduct of the investigation.
(ii) Applicants shall, in cases where reciprocity is not acceptable
and it is necessary to perform a background investigation, be charged
the appropriate fee referenced in the following table. Applicants shall
calculate the access authorization fee according to the stated formula
(i.e., DCSA rate x 90.2 percent).
----------------------------------------------------------------------------------------------------------------
Plus the NRC's processing fee
(rounded to the nearest dollar),
Is the sum of the current DCSA which is equal to the DCSA
The NRC application fee for an access investigation billing rate investigation billing rate for
authorization of type . . . charged for an investigation of the type of investigation
type . . . referenced multiplied by . . .
(%)
----------------------------------------------------------------------------------------------------------------
(A) NRC-R initial \1\........................ Tier 3 (T3) (Standard Service). 90.2
(B) NRC-R renewal \1\........................ Tier 3 Reinvestigation (T3R) 90.2
(Standard Service).
(C) NRC-U initial............................ Tier 5 (T5) (Standard Service). 90.2
(D) NRC-U initial............................ Tier 5 (T5) (Priority Handling) 90.2
(E) NRC-U renewal \1\........................ Tier 5 Reinvestigation (T5R) 90.2
(Standard Service).
[[Page 45241]]
(F) NRC-U renewal \1\........................ Tier 5 Reinvestigation (T5R) 90.2
(Priority Handling).
----------------------------------------------------------------------------------------------------------------
\1\ If the NRC determines, based on its review of available data, that a Tier 5 investigation is necessary, the
appropriate NRC-U fee will be assessed before the conduct of the investigation.
(f)(1) Any Federal employee, employee of a contractor of a Federal
agency, licensee, or other person visiting an affected facility for the
purpose of conducting official business, who possesses an active NRC or
DOE-Q access authorization or an equivalent Federal security clearance
granted by another Federal agency (``Top Secret'') based on a
comparable T5 background investigation may be permitted, in accordance
with Sec. 11.11, the same level of unescorted access that an NRC-U
special nuclear material access authorization would afford.
* * * * *
Sec. 11.16 [Amended]
0
5. In Sec. 11.16, fourth sentence, remove the designation ``single
scope'' and add in its place the designation ``Tier 5''.
PART 25--ACCESS AUTHORIZATION
0
6. The authority citation for part 25 continues to read as follows:
Authority: Atomic Energy Act of 1954, secs. 145, 161, 223, 234
(42 U.S.C. 2165, 2201, 2273, 2282); Energy Reorganization Act of
1974, sec. 201 (42 U.S.C. 5841); 44 U.S.C. 3504 note; E.O. 10865, 25
FR 1583, as amended, 3 CFR, 1959-1963 Comp., p. 398; E.O. 12829, 58
FR 3479, 3 CFR, 1993 Comp., p. 570; E.O. 13526, 75 FR 707, 3 CFR,
2009 Comp., p. 298; E.O. 12968, 60 FR 40245, 3 CFR, 1995 Comp., p.
391.
Section 25.17(f) and Appendix A also issued under 31 U.S.C.
9701; 42 U.S.C. 2214.
0
7. In Sec. 25.5, revise the definitions for ``L'' access authorization
and ``Q'' access authorization to read as follows:
Sec. 25.5 Definitions.
* * * * *
``L'' access authorization means an access authorization granted by
the Commission that is normally based on a Tier 3 (T3) investigation
conducted by the Defense Counterintelligence and Security Agency
(DCSA).
* * * * *
``Q'' access authorization means an access authorization granted by
the Commission normally based on a Tier 5 (T5) investigation conducted
by the Defense Counterintelligence and Security Agency, the Federal
Bureau of Investigation, or other U.S. Government agency that conducts
personnel security investigations.
* * * * *
0
8. In Sec. 25.8, revise paragraph (c)(2) to read as follows:
Sec. 25.8 Information collection requirements: OMB approval.
* * * * *
(c) * * *
(2) In Sec. Sec. 25.17(c), 25.21(c), 25.27(b), 25.29, and 25.31,
the ``Electronic Questionnaire for Investigations Processing (e-QIP),
SF-86--Questionnaire for National Security Positions'' is approved
under control number 3206-0005.
* * * * *
0
9. In Sec. 25.17, revise paragraphs (d)(1)(i) and (f)(1), (3), and (4)
to read as follows:
Sec. 25.17 Approval for processing applicants for access
authorization.
* * * * *
(d)(1) * * *
(i) Electronic Questionnaire for Investigations Processing (e-QIP),
SF-86 Questionnaire for National Security Positions;
* * * * *
(f) * * *
(1) Each application for access authorization, renewal, or change
in level must be accompanied by a remittance, payable to the U.S.
Nuclear Regulatory Commission, which is equal to the NRC access
authorization fee. This fee must be determined using the following
formula: the DCSA investigation billing rates on the day the NRC
receives the application + the NRC processing fee = the NRC access
authorization fee. The NRC processing 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).
* * * * *
(3) The NRC's Information Access Authority Program (IAAP) is
considered reimbursable work representing services provided to an
organization for which the NRC is entitled payment. The NRC is
authorized to receive and retain fees from licensees for services
performed. The NRC's Office of the Chief Financial Officer periodically
reviews the fees charged for IAAP and makes recommendations on revising
those charges to reflect costs incurred by the NRC in providing those
services. The reviews are performed using cost analysis techniques to
determine the direct and indirect costs. Based on this review, the IAAP
fees are adjusted to reflect the current cost for the program. IAAP
requests for reciprocity will be charged a flat fee rate of $95.00 as
referenced in paragraph (f)(4) of this section. This flat fee is
aligned with the level of effort that has been expended by DCSA to
process reciprocity requests, and accounts for inflation as well as
recovery of the appropriate cost for conducting the investigations.
Copies of the current NRC access authorization fee may be obtained by
contacting the NRC's Personnel Security Branch, Division of Facilities
and Security, Office of Administration by email at:
[email protected]. Any change in the
NRC's access authorization fee will 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.
(4) Certain applications from individuals having current Federal
access authorizations may be processed more expeditiously and at less
cost because 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.
(i) Applications for reciprocity will be processed at the NRC flat
fee rate of $95 per request, as referenced in the following table:
[[Page 45242]]
------------------------------------------------------------------------
The NRC application fee for an access authorization of
type . . . NRC fee rate
------------------------------------------------------------------------
(A) NRC-L based on certification of comparable $95
investigation \1\....................................
(B) NRC-Q based on certification of comparable 95
investigation \2\....................................
------------------------------------------------------------------------
\1\ If the NRC determines, based on its review of available data, that a
Tier 3 investigation is necessary, the appropriate NRC-L fee will be
assessed as shown in appendix A to this part before the conduct of the
investigation.
\2\ If the NRC determines, based on its review of available data, that a
Tier 5 investigation is necessary, the appropriate NRC-Q fee will be
assessed as shown in appendix A to this part before the conduct of the
investigation.
(ii) Applicants shall, in cases where reciprocity is not acceptable
and it is necessary to perform a background investigation, be charged
the appropriate fee referenced in appendix A to this part. Applicants
shall calculate the access authorization fee according to the stated
formula (i.e., DCSA rate x 90.2 percent).
0
10. Revise appendix A to part 25 to read as follows:
Appendix A to Part 25--Fees for NRC Access Authorization
----------------------------------------------------------------------------------------------------------------
Plus the NRC's processing fee
(rounded to the nearest dollar),
Is the sum of the current DCSA which is equal to the
The NRC application fee for an access investigation billing rate investigation billing rate for
authorization of type . . . charged for an investigation of the type of investigation
type . . . referenced multiplied by . . .
(%)
----------------------------------------------------------------------------------------------------------------
Initial ``L'' access authorization \1\....... Tier 3 (T3) (Standard Service). 90.2
Reinstatement of ``L'' access authorization No fee assessed for most
\2\. applications.
Renewal of ``L'' access authorization \1\.... Tier 3 Reinvestigation (T3R) 90.2
(Standard Service).
Initial ``Q'' access authorization........... Tier 5 (T5) (Standard Service). 90.2
Initial ``Q'' access authorization........... T5 (Priority Handling)......... 90.2
Reinstatement of ``Q'' access authorization No fee assessed for most
\2\. applications.
Renewal of ``Q'' access authorization \1\.... Tier 5 Reinvestigation (T5R) 90.2
(Standard Service).
Renewal of ``Q'' access authorization \1\.... Tier 5 Reinvestigation (T5R) 90.2
(Priority Handling).
----------------------------------------------------------------------------------------------------------------
\1\ If the NRC determines, based on its review of available data, that a Tier 5 investigation is necessary, the
appropriate fee for an Initial ``Q'' access authorization will be assessed before the conduct of
investigation.
\2\ Full fee will only be charged if an investigation is required.
PART 95--FACILITY SECURITY CLEARANCE AND SAFEGUARDING OF NATIONAL
SECURITY INFORMATION AND RESTRICTED DATA
0
11. The authority citation for part 95 continues to read as follows:
Authority: Atomic Energy Act of 1954, secs. 145, 161, 223, 234
(42 U.S.C. 2165, 2201, 2273, 2282); Energy Reorganization Act of
1974, sec. 201 (42 U.S.C. 5841); 44 U.S.C. 3504 note; E.O. 10865, as
amended, 25 FR 1583, 3 CFR, 1959-1963 Comp., p. 398; E.O. 12829, 58
FR 3479, 3 CFR, 1993 Comp., p. 570; E.O. 12968, 60 FR 40245, 3 CFR,
1995 Comp., p. 391; E.O. 13526, 75 FR 707, 3 CFR, 2009 Comp., p.
298.
0
12. In Sec. 95.5, revise the definitions for NRC ``L'' access
authorization and NRC ``Q'' access authorization to read as follows:
Sec. 95.5 Definitions.
* * * * *
NRC ``L'' access authorization means an access authorization
granted by the Commission that is normally based on a Tier 3 (T3)
investigation or a Tier 3 reinvestigation (T3R) conducted by the
Defense Counterintelligence and Security Agency.
NRC ``Q'' access authorization means an access authorization
granted by the Commission normally based on a Tier 5 (T5) investigation
conducted by the Defense Counterintelligence and Security Agency, the
Federal Bureau of Investigation, or other U.S. Government agency that
conducts personnel security investigations.
* * * * *
Dated: July 15, 2022.
For the Nuclear Regulatory Commission.
Daniel H. Dorman,
Executive Director for Operations.
[FR Doc. 2022-16144 Filed 7-27-22; 8:45 am]
BILLING CODE 7590-01-P