[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
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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