ML20211L870

Enclosure 1 - Direct Final Rule - Access Authorization Fee Rule

ML20211L870
Person / Time
Issue date:	12/21/2021
From:	Dan Dorman NRC/EDO
To:
Cox V
Shared Package
ML20211L858	List: ML20211L870 ML20211L871
References
NRC-2020-0133, RIN 3150-AK49
Download: ML20211L870 (29)

Text

[7590-01-P]

NUCLEAR REGULATORY COMMISSION 10 CFR Parts 11, 25, and 95

[NRC-2020-0133]

RIN 3150-AK49 Access Authorization Fees AGENCY: Nuclear Regulatory Commission.

ACTION: Direct 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 amendment is prompted by a recent audit of fees performed by an external certified public accounting and financial management services firm and ensures that the NRC continues to recover the full costs of processing access authorization requests from NRC licensees. The direct 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.

2 DATES: The final rule is effective March 14, 2022, unless significant adverse comments are received by January 27, 2022. If the direct final rule is withdrawn as a result of such comments, timely notification of the withdrawal will be published in the Federal Register.

Comments received after this date will be considered if it is practical to do so, but the NRC is able to ensure consideration only for comments received on or before this date.

Comments received on this direct final rule will also be considered to be comments on a companion proposed rule published in the Proposed Rules section of this issue of the Federal Register.

ADDRESSES: You may submit comments by any of the following methods; however, the NRC encourages electronic comment submission through the Federal rulemaking website:

Federal rulemaking website: Go to https://www.regulations.gov and search for Docket ID NRC-2020-0133. Address questions about NRC dockets to Dawn Forder; telephone: 301-415-3407; e-mail: Dawn.Forder@nrc.gov. For technical questions, contact the individual listed in the FOR FURTHER INFORMATION CONTACT section of this document.

Email comments to: Rulemaking.Comments@nrc.gov. If you do not receive an automatic email reply confirming receipt, then contact us at 301-415-1677.

Mail comments to: Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, ATTN: Rulemakings and Adjudications Staff.

For additional direction on obtaining information and submitting comments, see Obtaining Information and Submitting Comments in the SUPPLEMENTARY INFORMATION section of this document.

3 FOR FURTHER INFORMATION CONTACT: Emily Robbins, Office of Administration, telephone: 301-415-7000, e-mail: Emily.Robbins@nrc.gov or Vanessa Cox, Office of Nuclear Material Safety and Safeguards, telephone: 301-415-8342, e-mail:

Vanessa.Cox@nrc.gov. Both are staff of the U.S. Nuclear Regulatory Commission, Washington DC 20555-0001.

SUPPLEMENTARY INFORMATION:

TABLE OF CONTENTS:

I.

Obtaining Information and Submitting Comments II.

Rulemaking Procedure III.

Background

IV.

Discussion V.

Section-by-Section Analysis VI.

Regulatory Flexibility Certification VII.

Regulatory Analysis VIII.

Backfitting and Issue Finality IX.

Plain Writing X.

National Environmental Policy Act XI.

Paperwork Reduction Act Statement XII.

Congressional Review Act XIII.

Voluntary Consensus Standards I. Obtaining Information and Submitting Comments A. Obtaining Information Please refer to Docket ID NRC-2020-0133 when contacting the NRC about the availability of information for this action. You may obtain publicly available information related to this action by any of the following methods:

Federal Rulemaking Website: Go to https://www.regulations.gov and search for Docket ID NRC-2020-0133.

4 NRCs 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 NRCs Public Document Room (PDR) reference staff at 1-800-397-4209, at 301-415-4737, or by e-mail to pdr.resource@nrc.gov. The ADAMS accession number for each document referenced (if it is available in ADAMS) is provided the first time that it is mentioned in this document.

NRCs PDR: You may examine and purchase copies of public documents, by appointment, at the NRCs 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 PDR.Resource@nrc.gov or call 1-800-397-4209 or 301-415-4737, between 8:00 a.m. and 4:00 p.m. (ET), Monday through Friday, except Federal holidays.

B. Submitting Comments The NRC encourages electronic comment submission through the Federal rulemaking website (https://www.regulations.gov). Please include Docket ID NRC-2020-0133 in your comment submission.

The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at https://www.regulations.gov as well as enter the comment submissions into ADAMS. The NRC does not routinely edit comment submissions to remove identifying or contact information.

If you are requesting or aggregating comments from other persons for

5 submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.

II. Rulemaking Procedure Because the NRC considers this action to be non-controversial, the NRC is using the direct final rule process for this rule. This amendment is effective on March 14, 2022. However, if the NRC receives significant adverse comments on this direct final rule by January 27, 2022, then the NRC will publish a document that withdraws this action and will address the comments received in a subsequent final rule as a response to the companion proposed rule published in the Proposed Rules section of this issue of the Federal Register. Absent significant modifications to the proposed revisions requiring republication, the NRC will not initiate a second comment period on this action.

A significant adverse comment is a comment where the commenter explains why the rule would be inappropriate, including challenges to the rule's underlying premise or approach, or would be ineffective or unacceptable without a change. A comment is adverse and significant if it meets the following criteria:

1) The comment opposes the rule and provides a reason sufficient to require a substantive response in a notice-and-comment process. For example, a substantive response is required under the following circumstances:

a) The comment causes the NRC to reevaluate (or reconsider) its position or conduct additional analysis;

6 b) The comment raises an issue serious enough to warrant a substantive response to clarify or complete the record; or c) The comment raises a relevant issue that was not previously addressed or considered by the NRC.

2) The comment proposes a change or an addition to the rule, and it is apparent that the rule would be ineffective or unacceptable without incorporation of the change or addition.

3) The comment causes the NRC to make a change (other than editorial) to the rule.

For detailed instructions on filing comments, please see the ADDRESSES section of this document.

III. Background Certain individuals employed by NRC licensees or their contractors require access to special nuclear material (plutonium, uranium-233, and uranium enriched in the isotopes uranium-233 or uranium-235), restricted data, or national security information.

These individuals 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

7 for these investigations. The combined cost of the DCSA background investigation and any related NRC processing activities (NRC processing fee) is recovered from the licensee through an access authorization fee assessed by the NRC. It is the NRCs practice to publish the fee schedule for special nuclear material access authorization in § 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).

IV. Discussion Updated Access Authorization Fees This direct final rule amends 10 CFR parts 11, 25, and 95, along with appendix A to 10 CFR part 25. The NRC is revising the processing fee charged to licensees for work performed under the Material Access Authorization Program (MAAP) and the Information Access Authority Program (IAAP) from 55.8 percent of the DCSA investigation billing rates to 90.2 percent. A September 2019 NRC audit of actual in-house costs incurred in processing licensee applications for access authorization showed an increase in the NRCs review time for each application. The audit also showed that the NRC was not recovering its full-cost fees for the time spent processing the increased number of complex applications; despite a 2016 biennial review indicating increasing costs, the NRC had not adjusted its fees since 2012.

In addition, 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

8 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, then the NRC will charge the appropriate fee based on the DCSA investigation billing rate. This direct final rule continues to allow licensees to calculate the NRC access authorization fee for any given application by referencing the current DCSA investigation billing rates schedule for background investigation services.

Reimbursable billing rates for personnel background investigations are published by DCSA in a Federal Investigations Notice (FIN). The current DCSA investigation billing rates are published on the DCSA website and are available at https://www.dcsa.mil/mc/pv/gov_hr_security/billing_rates/. The NRCs licensees can also obtain the current DCSA investigation billing rates schedule by contacting the NRCs Personnel Security Branch, Division of Facilities and Security, Office of Administration by email at Licensee_Access_Authorization_Fee.Resource@nrc.gov.

The fee-calculation formula is designed to recover the NRCs actual in-house processing costs for each application received from a licensee. The NRCs access authorization fee for any given request is determined using the following formula: the DCSA investigation billing rates on the day the NRC receives the application + the NRC processing fee = the NRC material access authorization fee. The provisions in this direct final rule set the NRC processing fee; the fee is determined by multiplying the DCSA investigation billing rate on the day the NRC receives the application by 90.2 percent (i.e., DCSA rate x 90.2 percent).

Public Law 115-439, the Nuclear Energy Innovation and Modernization Act (42

9 U.S.C. 2215), requires the NRC to recover through fees the full cost incurred in providing a service or thing of value. As noted previously, the DCSA investigation billing rates are pulled directly from the current DCSA fee schedule for investigations. The tables in revised § 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 DCSAs 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 § 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 NRCs application processing fee by multiplying $5,465 by 90.2 percent, which equals

$4,929.43. The licensee then rounds the NRCs 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:

Current DCSA Investigation Billing Rate for Standard T5 Plus NRC Application Processing Fee Equals Total NRC Access Authorization Fee for NRC-U Application DCSA NRC Fee Rate x 90.2% = (rounded to nearest $)

$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

10 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 NRCs Personnel Security Branch, Division of Facilities and Security, Office of Administration by email to Licensee_Access_Authorization_Fee.Resource@nrc.gov. Any change in the NRCs access authorization fees will be applicable to each access authorization request received on or after the effective date of the DCSAs most recently published investigation billing rates schedule.

Administrative Changes In Federal Investigations Notice Number 16-07, dated September 26, 2016 (https://www.dcsa.mil/Portals/91/Documents/pv/GovHRSec/FINs/FY16/fin-16-07.pdf),

the Office of Personnel Management (OPM) implemented the Federal Investigative Standards according to the phased Federal Investigative Standards Implementation Plan issued by the Suitability and Security Executive Agents. In accordance with the plan, the Access National Agency Check with Inquiries was renamed to Tier 3 (T3) and the National Agency Check with Law and Credit was renamed to Tier 3 reinvestigation (T3R). The T3 investigation is required for positions designated as non-critical sensitive and/or requiring eligibility for L or R access or access to Confidential or Secret information. The T3R is the reinvestigation product for the same positions. The Single Scope Background Investigation was renamed to Tier 5 (T5) and the Single Scope Background Investigation-Periodic Reinvestigation was renamed to Tier 5R (T5R). The

11 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 direct 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, the Questionnaire for National Security Positions, Standard Form 86 (SF-86), electronically through the (e-QIP) system to minimize errors and expedite processing. This direct 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.

V. Section-by-Section Analysis The following paragraphs describe the specific changes in this direct final rule.

12 Section 11.7 Definitions.

This direct final rule revises the definitions in § 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 direct final rule revises § 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), Questionnaire for National Positions - Standard Form 86 (SF-86) are approved under OMB control number 3206-0005.

Section 11.15 Application for special nuclear material access authorization.

This direct final rule revises paragraphs (b)(1) and (c)(1)(ii) to specify the electronic form of the SF-86.

This direct final rule revises paragraph (e)(1) to revise 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 direct 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 direct 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.

13 This direct 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 direct final rule revises § 11.16 to include the new naming conventions for background investigations case types.

Section 25.5 Definitions This direct 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 direct final rule revises § 25.8(c)(2) to clarify that the information collections for the electronic form Electronic Questionnaire for Investigations Processing (e-QIP),

Questionnaire for National Positions - Standard Form 86 (SF-86) are approved under OMB control number 3206-0005.

Section 25.17 Approval for processing applicants for access authorization.

This direct final rule revises paragraph (d)(1)(i) to specify the electronic form of the SF-86.

This direct 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.

14 This direct 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 direct final rule revises the table in appendix A to 10 CFR part 25 to include the new naming conventions for background investigations case types.

Section 95.5 Definitions This direct 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 direct 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 direct 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

15 the Regulatory Flexibility Act or the size standards established by the NRC (§ 2.810).

This direct final rule also applies to contractors of those licensees required to comply with this direct 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 NRCs 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 direct final rule. This direct 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. 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. 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 NRCs regulatory analysis guidelines in

16 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 direct final rule and that a backfit analysis is not required. Collection of fees to recover the NRCs 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. 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).

X. National Environmental Policy Act The NRC has determined that this final rule is the type of action described in 10 CFR 51.22(c)(1), which is categorically excluded from environmental review.

Therefore, neither an environmental impact statement nor environmental assessment

17 has been prepared for this final rule.

XI. Paperwork Reduction Act Statement This direct 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.

XII. 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.

XIII. Voluntary Consensus Standards The National Technology Transfer and Advancement Act of 1995, Pub.

18 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 direct final rule, the NRC will revise the formula for calculating the NRCs 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.

19 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

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.

2. In § 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:

§ 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

§ 11.11(a)(2).

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

§ 11.11(a)(1) or § 11.13.

20

3. § In 11.8, add paragraph (c) to read as follows:

§ 11.8 Information collection requirements: OMB approval.

(c) In § 11.15, the SF-86, Electronic Questionnaire for Investigations Processing (e-QIP), Questionnaire for National Positions - Standard Form 86, is approved under control number 3206-0005.

4. In § 11.15, revise paragraphs (b)(1), (c)(1)(ii), (e)(1), (3), and (4), and (f)(1) to read as follows:

§ 11.15 Application for special nuclear material access authorization.

(b) * * *

(1) Electronic Questionnaire for Investigations Processing (e-QIP), Questionnaire for National Security Positions - Standard Form 86 (SF-86);

(c)(1) * * *

(ii) The Electronic Questionnaire for Investigations Processing (e-QIP),

Questionnaire for National Security Positions - Standard Form 86 (SF-86);

(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.

21 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 NRCs 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 NRCs 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 NRCs Personnel Security Branch, Division of Facilities and Security, Office of Administration by email to:

Licensee_Access_Authorization_Fee.Resource@nrc.gov. Any change in the NRCs access authorization fees will be applicable to each access authorization request received on or after the effective date of the DCSAs most recently published investigation billing rates schedule.

22 (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 investigation1

$95 (B) NRC-U based on certification of comparable investigation2

$95 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 as 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).

23 The NRC application fee for an access authorization of type Is the sum of the current DCSA investigation billing rate charged for an investigation of type Plus the NRCs processing fee (rounded to the nearest dollar), which is equal to the DCSA investigation billing rate for the type of investigation referenced multiplied by (A) NRC-R initial1 Tier 3 (T3) (Standard Service) 90.2%

(B) NRC-R renewal1 Tier 3 Reinvestigation (T3R) (Standard Service) 90.2%

(C) NRC-U initial Tier 5 (T5) (Standard Service) 90.2%

(D) NRC-U initial (expedited processing)

Tier 5 (T5) (Priority Handling) 90.2%

(E) NRC-U renewal1 Tier 5 Reinvestigation (T5R) (Standard Service) 90.2%

(F) NRC-U renewal1 (expedited processing)

Tier 5 Reinvestigation (T5R) (Priority Handling) 90.2%

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 § 11.11, the same level of unescorted access that an NRC-U special nuclear material access authorization would afford.

24

§ 11.16 [Amended]

5. In § 11.16, fourth sentence:

a. Remove the designation U and add in its place the designation U or R; and

b. Remove the designation single scope and add in its place the designation Tier 5.

PART 25--ACCESS AUTHORIZATION

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.

7. In § 25.5, revise the definitions for L access authorization and Q access authorization to read as follows:

§ 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

25 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.

8. In § 25.8, revise paragraph (c)(2) to read as follows:

§ 25.8 Information collection requirements: OMB approval.

(c) * * *

(2) In §§ 25.17(c), 25.21(c), 25.27(b), 25.29, and 25.31, the Electronic Questionnaire for Investigations Processing (e-QIP), Questionnaire for National Positions - Standard Form 86 (SF-86) is approved under control number 3206-0005.

9. In § 25.17, revise paragraphs (d)(1)(i) and (f)(1), (3), and (4) to read as follows:

§ 25.17 Approval for processing applicants for access authorization.

(d)(1) * * *

(i) Electronic Questionnaire for Investigations Processing (e-QIP), Questionnaire for National Security Positions - Standard Form 86 (SF-86).

26 (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 NRCs 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 NRCs 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 NRCs Personnel Security Branch, Division of Facilities and Security, Office of Administration by email at: Licensee_Access_Authorization_Fee.Resource@nrc.gov.

27 Any change in the NRCs access authorization fee will be applicable to each access authorization request received on or after the effective date of the DCSAs 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:

The NRC application fee for an access authorization of type NRC fee rate (A) NRC-L based on certification of comparable investigation1

$95 (B) NRC-Q based on certification of comparable investigation2

$95 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).

10. Revise appendix A to part 25 to read as follows:

28 Appendix A to Part 25Fees for NRC Access Authorization The NRC application fee for an access authorization of type Is the sum of the current DCSA investigation billing rate charged for an investigation of type Plus the NRC's processing fee (rounded to the nearest dollar), which is equal to the investigation billing rate for the type of investigation referenced multiplied by Initial L access authorization1 Tier 3 (T3) (Standard Service) 90.2%

Reinstatement of L access authorization2 No fee assessed for most applications Renewal of L access authorization1 Tier 3 Reinvestigation (T3R)

(Standard Service) 90.2%

Initial Q access authorization Tier 5 (T5) (Standard Service) 90.2%

Initial Q access authorization (expedited processing)

T5 (Priority Handling) 90.2%

Reinstatement of Q access authorization2 No fee assessed for most applications Renewal of Q access authorization1 Tier 5 Reinvestigation (T5R)

(Standard Service) 90.2%

Renewal of Q access authorization1 Tier 5 Reinvestigation (T5R)

(Priority Handling) 90.2%

1If 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.

2Full fee will only be charged if an investigation is required.

PART 95--FACILITY SECURITY CLEARANCE AND SAFEGUARDING OF NATIONAL SECURITY INFORMATION AND RESTRICTED DATA

11. The authority citation for part 95 continues to read as follows:

29 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.

12. In § 95.5, revise the definitions for NRC L access authorization and NRC Q access authorization to read as follows:

§ 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: December 21, 2021.

For the Nuclear Regulatory Commission.

/RA/

Daniel H. Dorman, Executive Director for Operations.