SUPPLEMENTARY INFORMATION:

Background

Certain individuals employed by licensees or contractors of the NRC are assigned duties which require access to special nuclear material (plutonium, uranium-233, and uranium enriched in the isotopes uranium-233 or uranium-235) or to restricted data or national security information. Individuals who require access to this material or information must obtain an access authorization from the NRC. When a licensee requests access authorization for an employee or a contractor, the NRC initiates a background investigation of the individual seeking access authorization. Based on the results of that investigation, the NRC will determine whether permitting the individual access to special nuclear material, restricted data, or national security information would create a security risk.

OPM conducts the required access authorization background investigations for the NRC and sets the rates charged for these investigations. The combined cost of the OPM background investigation and any related NRC processing activities are recovered from the licensee through an access authorization fee assessed by the NRC. It is the NRC's practice to publish the fee schedule for special nuclear material access authorization in 10 CFR 11.15(e)(1) 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 OPM for conducting the required background investigations.

Discussion

This final rule amends §§ 11.15(e) and 25.17(f), and Appendix A to part 25 by modifying the fee charged to licensees for work performed under the MAAP and IAAP from 11.6 percent of the OPM billing rates to 31.7 percent. This modification will ensure that the NRC's administrative costs are fully recovered through access authorization fees charged to licensees.

This final rule will continue to allow licensees to calculate the NRC fee for any given application by reference to the current OPM billing schedule for personnel investigation services. Investigations Reimbursable Billing Rates for personnel background checks are published by OPM's Investigations Service in a Federal Investigation Notice (FIN). The current OPM billing rates were published as FIN 06-08 on September 11, 2006, and became effective on October 1, 2006. FIN 06-08 is available on OPM's Investigations Service Web site at http://www.opm.gov/​extra/​investigate/​fins.htm. NRC licensees can also obtain the current OPM investigations rate schedule from the Personnel Security Branch of the NRC's Division of Facilities and Security by contacting the individual named under the FOR FURTHER INFORMATION CONTACT heading.

The amendments specify the NRC's access authorization fee for any given request as the sum of the current OPM billing rate for the required investigation, and the NRC's in-house processing fee. As noted previously, the OPM billing rate is pulled directly from the current OPM fee schedule for investigations. The tables in § 11.15(e)(2) and Appendix A to part 25 cross-reference each type of NRC access authorization request to the appropriate investigation service listed in OPM's fee schedule. The NRC's in-house processing fee is 31.7 percent of the relevant OPM rate. The in-house processing fee of 31.7 percent is based on a recent NRC audit of actual in-house costs incurred in processing licensee applications for access authorization. This fixed percentage of the OPM rate, when added to the base OPM investigations charge, yields the total access authorization fee assessed by the NRC {OPM rate + [(OPM rate × 31.7%), rounded to the nearest dollar] = NRC access authorization fee}.

For example, a licensee seeking a special nuclear material “NRC-U” access authorization requiring a single scope background investigation is directed by the table in § 11.15(e)(2) to calculate the application fee based on the OPM billing rate for a “Code C” Single Scope Background Investigation (SSBI). According to the current OPM investigations fee schedule (FIN 06-08), OPM charges $3,550 for a “Code C” SSBI. The table instructs the licensee to calculate the NRC processing fee by multiplying $3,550 by 31.7 percent, which equals $1,125.35. The licensee then rounds the NRC processing fee to the nearest dollar, or $1,125, and adds that amount to the OPM investigations fee of $3,550 to determine the total assessed material access authorization fee: $4,675. The following table illustrates the calculation process:

Licensees applying for restricted data or national security information access authorization follow a similar procedure. The table in Appendix A to part 25 cross-references each type of “Q” or “L” access authorization to the corresponding OPM investigation type. The OPM billing rate for the type of investigation referenced is determined by consulting the current OPM schedule of billing rates. This rate is then plugged into the fee assessment formula {OPM rate + [(OPM rate × 31.7%), rounded to the nearest dollar] = NRC access authorization fee}, illustrated previously, to calculate the correct NRC access authorization fee for the type of application submitted.

Section-by-Section Analysis

Section 11.15(e)

Section 11.15(e)(1) describes how the OPM bills the NRC for the cost of each background investigation of a given type and provides the formula used in calculating the material access authorization fee. The percentage of the OPM billing rates in this formula is being changed from 11.6% of the OPM billing rate to 31.7% of that rate. This section also explains how to access the OPM billing schedule and specifies that any changes to the NRC's access authorization fees will be applicable to each access authorization request received on or after the effective date of OPM's most recently published billing schedule.

Section 11.15(e)(2) directs licensees to remit the appropriate access authorization fee with each application submitted, in accordance with the table presented in that section. The table cross-references each type of NRC material access authorization request to ( printed page 27410) a type of investigation in the current OPM fee schedule, and directs licensees to calculate the application fee according to the stated formula {OPM rate + [(OPM rate × 31.7%), rounded to the nearest dollar] = NRC access authorization fee}.

Section 11.15(e)(3) indicates that applications for individuals that have a current access authorization from another Federal agency may be processed expeditiously at no cost to the licensee.

Section 25.17(f)

Section 25.17(f)(1) describes how the OPM bills the NRC for the cost of each background investigation and provides the formula used in calculating national security information and restricted data access authorization fees. This section also explains how to access the OPM billing schedule and specifies that any changes to the NRC access authorization fees will be applicable to each access authorization request received on or after the effective date of OPM's most recently published billing schedule.

Section 25.17(f)(2) directs licensees to remit the appropriate national security information or restricted data access authorization fee with each application submitted. Applicants are instructed to calculate the appropriate fee by using the stated formula {OPM rate + [(OPM rate × 31.7%), rounded to the nearest dollar] = NRC access authorization fee} with reference to the table in appendix A to part 25.

Section 25.17(f)(3) indicates that applications for individuals that have a current access authorization from another Federal agency may be processed expeditiously at no cost to the licensee.

Appendix A to Part 25

The revised table in Appendix A to part 25 cross-references each type of NRC “Q” or “L” access authorization request to a type of investigation in the current OPM fee schedule, and directs licensees to calculate the application fee according to the stated formula.

Because this final rule deals solely with agency practice and procedure, the notice and comment provisions of the Administrative Procedure Act do not apply under 5 U.S.C. 553(b)(A). The final rule is effective 30 days after its publication in the Federal Register .

Voluntary Consensus Standards

The National Technology Transfer and Advancement Act of 1995, Public Law 104-113, requires agencies to use technical standards developed or adopted by voluntary consensus standards bodies unless the use of such a standard is inconsistent with applicable law or is otherwise impractical. This final rule amends the formula for calculating the NRC access authorization fee charged to licensees for work performed under MAAP and IAAP from 11.6 percent of the OPM billing rate for an investigation of a given type to 31.7 percent.

This action is administrative in nature and does not involve the establishment or application of a technical standard containing generally applicable requirements.

Environmental Impact: Categorical Exclusion

The NRC has determined that this final rule is the type of action described in categorical exclusions 10 CFR 51.22(c)(1) and (2). Therefore, neither an environmental impact statement nor an environmental assessment has been prepared for this final rule.

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

If a means used to impose an information collection does not display a currently valid OMB control number, the NRC may not conduct or sponsor, and a person is not required to respond to the information collection.

Regulatory Analysis

A regulatory analysis has not been prepared for this final rulemaking. This final rule ensures that the NRC recovers the full cost of application processing from licensees submitting access authorization requests. The formula method for calculating these fees continues to provide a more efficient and effective mechanism for updating NRC access authorization fees in response to changes in the underlying OPM rate schedule for required personnel background investigations. These amendments are administrative in nature and will neither impose new nor relax existing safety requirements and, thus, do not call for the sort of safety/cost analysis described in the agency's regulatory analysis guidelines in NUREG/BR-0058.

Backfit Analysis

The NRC has determined that the backfit rule does not apply to this final rule and a backfit analysis is not required because these amendments do not involve any provisions that would impose backfits as defined in 10 CFR Chapter I.

Congressional Review Act

In accordance with the Congressional Review Act, 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 OMB.

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 and 25.

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

Authority: Sec. 161, 68 Stat. 948, as amended (42 U.S.C. 2201); sec. 201, 88 Stat. 1242, as amended (42 U.S.C. 5841); sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note).

Section 11.15(e) also issued under sec. 501, 85 Stat. 290 (31 U.S.C. 9701).

2. In § 11.15, paragraph (e) is revised to read as follows:

3. The authority citation for part 25 continues to read as follows:

Authority: Secs. 145, 161, 68 Stat. 942, 948, as amended (42 U.S.C. 2165, 2201); sec. 201, 88 Stat. 1242, as amended (42 U.S.C. 5841); sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note); E.O. 10865, as amended, 3 CFR 1959-1963 COMP., p. 398 (50 U.S.C. 401, note); E.O. 12829, 3 CFR, 1993 Comp., p. 570; E.O. 12958, as amended, 3 CFR, 1995 Comp., p. 333, as amended by E.O. 13292, 3 CFR 2004 Comp., p. 196; E.O. 12968, 3 CFR, 1995 Comp, p. 396.

Appendix A also issued under 96 Stat. 1051 (31 U.S.C. 9701).

4. In § 25.17, paragraph (f) is revised to read as follows:

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5. Appendix A to part 25 is revised to read as follows: