[Federal Register Volume 64, Number 212 (Wednesday, November 3, 1999)]
[Proposed Rules]
[Pages 59671-59677]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-28593]
[[Page 59671]]
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NUCLEAR REGULATORY COMMISSION
10 CFR Parts 2 and 50
RIN 3150-AG38
Antitrust Review Authority: Clarification
AGENCY: Nuclear Regulatory Commission.
ACTION: Proposed rule.
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SUMMARY: The Nuclear Regulatory Commission is proposing to clarify its
regulations to reflect more clearly its limited antitrust review
authority by explicitly limiting the types of applications that must
include antitrust information. Specifically, because the Commission is
not authorized to conduct antitrust reviews of post-operating license
transfer applications, or at least is not required to conduct this type
of review and has decided that it no longer will conduct them, no
antitrust information is required as part of a post-operating license
transfer application. Because the current regulations do not clearly
specify which types of applications are not subject to antitrust
review, these proposed clarifying amendments would bring the
regulations into conformance with the Commission's limited statutory
authority to conduct antitrust reviews.
DATES: The comment period expires January 3, 2000. Comments received
after this date will be considered if it is practical to do so, but the
Commission is able to assure consideration only for comments received
on or before this date. Comments may be submitted either electronically
or in written form.
ADDRESSES: Written comments should be sent to: Secretary of the
Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555-
0001, Attention: Rulemakings and Adjudications Staff.
You may also provide comments via the NRC's interactive rulemaking
web site (http://ruleforum.llnl.gov). This site provides the ability to
upload comments as files (any format), if your web browser supports
that function. For information about the interactive rulemaking web
site, contact Ms. Carol Gallagher, 301-415-5905; e-mail [email protected].
Comments received on this rulemaking may be examined at the NRC
Public Document Room, 2120 L Street NW (Lower Level), Washington, DC.
FOR FURTHER INFORMATION CONTACT: Jack R. Goldberg, Office of the
General Counsel, U.S. Nuclear Regulatory Commission, Washington, DC
20555-0001; telephone 301-415-1681; e-mail JRG[email protected].
SUPPLEMENTARY INFORMATION:
I. Introduction and Purpose
In a license transfer application filed on October 27, 1998, by
Kansas Gas and Electric Company (KGE) and Kansas City Power and Light
Company (KCP&L) (Applicants), Commission approval pursuant to 10 CFR
50.80 was sought of a transfer of the Applicants' possession-only
interests in the operating license for the Wolf Creek Generating
Station, Unit 1, to a new company, Westar Energy, Inc. Wolf Creek is
jointly owned by the Applicants, each of which owns an undivided 47
percent interest. The remaining 6 percent interest is owned by Kansas
Electric Power Cooperative, Inc. (KEPCo). The Applicants requested that
the Commission amend the operating license for Wolf Creek pursuant to
10 CFR 50.90 by deleting KGE and KCPL as licensees and adding Westar
Energy in their place. KEPCo opposed the transfer on antitrust grounds,
claiming that the transfer would have anticompetitive affects and would
result in ``significant changes'' in the competitive market. KEPCo
petitioned the Commission to intervene in the transfer proceeding and
requested a hearing, arguing that the Commission should conduct an
antitrust review of the proposed transfer under Section 105c of the
Atomic Energy Act, 42, U.S.C. 2135(c). Applicants opposed the petition
and request for a hearing.
By Memorandum and Order dated March 2, 1999, CLI-99-05, 49 NRC 199
(1999), the Commission indicated that although its staff historically
has performed a ``significant changes'' review in connection with
certain kinds of license transfers, it intended to consider in the Wolf
Creek case whether to depart from that practice and ``direct the NRC
staff no longer to conduct significant changes reviews in license
transfer cases, including the current case.'' In deciding this matter,
the Commission stated that it expected to consider a number of factors,
including its statutory mandate, its expertise, and its resources.
Accordingly, the Commission directed the Applicants and KEPCo to file
briefs on the single question: ``whether as a matter of law or policy
the Commission may and should eliminate all antitrust reviews in
connection with license transfers and therefore terminate this
adjudicatory proceeding forthwith.'' Id. at 200.
Because the issue of the Commission's authority to conduct
antitrust reviews of license transfers is of interest to, and affects,
more than only the parties directly involved in, or affected by, the
proposed Wolf Creek transfer, the Commission in that case invited
amicus curiae briefs from ``any interested person or entity.'' CLI-99-
05, 49 NRC at 200, n.1. (Briefs on the issue subsequently were received
from a number of nonparties.) In addition, widespread notice of the
Commission's intent to decide this matter in the Wolf Creek proceeding
was provided by publishing that order on the NRC's web site and in the
Federal Register, and also by sending copies to organizations known to
be active in or interested in the Commission's antitrust activities.
Id.
After considering the arguments presented in the briefs, and based
on a thorough de novo review of the scope of the Commission's antitrust
authority, the Commission concluded that the structure, language, and
history of the Atomic Energy Act do not support its prior practice of
conducting antitrust reviews of post-operating license transfers. The
Commission stated:
It now seems clear to us that Congress never contemplated such
reviews. On the contrary, Congress carefully set out exactly when
and how the Commission should exercise its antitrust authority, and
limited the Commission's review responsibilities to the
anticipatory, prelicensing stage, prior to the commitment of
substantial licensee resources and at a time when the Commission's
opportunity to fashion effective antitrust relief was at its
maximum. The Act's antitrust provisions nowhere even mention post-
operating license transfers.
The statutory scheme is best understood, in our view, as an
implied prohibition against additional Commission antitrust reviews
beyond those Congress specified. At the least, the statute cannot be
viewed as a requirement of such reviews. In these circumstances, and
given what we view as strong policy reasons against a continued
expansive view of our antitrust authority, we have decided to
abandon our prior practice of conducting antitrust reviews of post-
operating license transfers * * *.
Kansas Gas and Electric Co. (Wolf Creek Generating Station, Unit 1),
CLI-99-19, 49 NRC 441, 446 (1999).
II. Discussion
The Commission's decision in Wolf Creek was based on a thorough
consideration of the documented purpose of Congress's grant of limited
antitrust authority to the NRC's predecessor, the Atomic Energy
Commission, the statutory framework of that authority, the carefully-
crafted statutory language, and the legislative history of the
antitrust amendments to the Atomic Energy Act. The Commission's Wolf
Creek decision explained that, in eliminating the theretofore
government monopoly over atomic energy, Congress wished to
[[Page 59672]]
provide incentives for its further development for peaceful purposes
but was concerned that the high costs of nuclear power plants could
enable the large electric utilities to monopolize nuclear generating
facilities to the anticompetitive harm of smaller utilities. Therefore,
Congress amended the Atomic Energy Act to provide for an antitrust
review in the prelicensing stages of the regulatory licensing process.
Congress focused its grant of antitrust review authority on the two
steps of the Commission's licensing process: the application for the
facility's construction permit and the application for the facility's
initial operating license. It is at these early stages of the
facility's licensing that the Commission historically was believed by
Congress to be in a unique position to remedy a situation inconsistent
with the antitrust laws by providing ownership access and related bulk
power services to smaller electric systems competitively disadvantaged
by the planned operation of the nuclear facility. Congress emphasized
that the Commission's review responsibilities were to be exercised at
the anticipatory, prelicensing stages prior to the commitment of
substantial licensee resources and at a time when the Commission's
opportunity to fashion effective relief was at its maximum. See Wolf
Creek at 446-448.
The Commission next focused on the structure and language of its
antitrust review authority found exclusively in Section 105 of the
Atomic Energy Act, 42 U.S.C. 2135. Section 105c provides for a
mandatory and complete antitrust review at the construction permit
phase of the licensing process when all entities who might wish
ownership access to the nuclear facility and who are in a position to
raise antitrust concerns are able to seek an appropriate licensing
remedy from the Commission prior to actual operation of the facility.
The construction permit antitrust review contrasts markedly from the
only other review authorized by the statute. Specifically, Section 105c
explicitly provides that the antitrust review provisions ``shall not
apply'' to an application for an operating license unless ``significant
changes in the licensee's activities or proposed activities have
occurred subsequent to the previous review * * * in connection with the
construction permit for the facility.'' Section 105c.(2). Following
this more limited and conditional review prior to initial operation of
the facility, Section 105 makes clear that traditional antitrust forums
are available to consider asserted anticompetitive conduct of
Commission licensees, which are not relieved of operation of the
antitrust laws. Section 105a, b. Further, if any Commission licensee is
found to have violated any antitrust law, the Commission has the
authority to take any licensing action it deems necessary. Section
105a. See id. at 447-452.
After describing this statutory framework and structure, the
Commission then closely examined the language of its statutory
antitrust review authority. The Commission found that it focused on
only two types of applications, namely those for a construction permit
and those for an initial operating license, but not for other types of
applications explicitly mentioned in Section 103 of the Atomic Energy
Act, such as applications to ``acquire'' or ``transfer'' a license.
Even if an application to transfer an operating license were considered
an application for an operating license for the transferee, the
Commission found that the specific ``significant changes'' review
process mandated by Section 105 does not lend itself to an antitrust
review of post-operating license transfer applications. The Commission
noted that its past practice of conducting ``significant changes''
reviews of post-operating license transfer applications did not use the
construction permit review as the benchmark for comparison as mandated
by Section 105, but instead examined whether there were significant
changes compared with the previous operating license review. Like the
statutory framework, the statutory language was found to be
inconsistent with authorization to conduct post-operating license
antitrust reviews and certainly could not be found to support a
required review at that time. See id. at 452-456.
Finally, the Commission reviewed the legislative history of the
antitrust amendments. It found that the Joint Committee on Atomic
Energy, in its authoritative report on the Commission's prelicensing
antitrust authority, explicitly clarified the scope of the terms
``license application'' and ``application for a license'' in the
language which was enacted as Section 105. The Commission stated:
In its Report, the Joint Committee 11 made clear that
the term ``license application'' referred only to applications for
construction permits or operating licenses filed as part of the
``initial'' licensing process for a new facility not yet
constructed, or for modifications which would result in a
substantially different facility:
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\11\ The Joint Committee Report is the best source of
legislative history of the 1970 amendments. See Alabama Power Co. v.
NRC, 692 F.2d, 1362, 1368 (11th Cir. 1982). The Report was
considered by both houses in their respective floor deliberations on
the antitrust legislation and is entitled to special weight because
of the Joint Committee's ``peculiar responsibility and place * * *
in the statutory scheme.'' See Power Reactor Development Co. v.
International Union, 367 U.S. 396, 409 (1961).
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The committee recognizes that applications may be amended from
time to time, that there may be applications to extend or review
[sic-renew] a license, and also that the form of an application for
construction permit may be such that, from the applicant's
standpoint, it ultimately ripens into the application for an
operating license. The phrases ``any license application'', ``an
application for a license'', and ``any application'' as used in the
clarified and revised subsection 105c. refer to the initial
application for a construction permit, the initial application for
an operating license, or the initial application for a modification
which would constitute a new or substantially different facility, as
the case may be, as determined by the Commission. The phrases do not
include, for purposes of triggering subsection 105 c., other
applications which may be filed during the licensing process.
See id. at 458, quoting Report By The Joint Committee On Atomic Energy:
Amending The Atomic Energy Act of 1954, As Amended, To Eliminate The
Requirement For A Finding Of Practical Value, To Provide For
Prelicensing Antitrust Review Of Production And Utilization Facilities,
And To Effectuate Certain Other Purposes Pertaining To Nuclear
Facilities, H.R. Rep. No. 91-1470 (also Rep. No. 91-1247), 91st Cong.,
2nd Sess., at 29 (1970), 3 U.S. Code and Adm. News 4981 (1970) (``Joint
Committee Report'') (quoting from legislative history of 1954 Act).
In summary, the Commission concluded that neither the language of
the Commission's statutory authority to conduct antitrust reviews nor
its legislative history support any authority to perform antitrust
reviews of post-operating license transfer applications and certainly
cannot be interpreted to require such reviews.
The Commission's Wolf Creek decision is published in its entirety
at 64 FR 33916; June 24, 1999. Interested persons are encouraged to
read the Wolf Creek decision in its entirety for a complete
understanding of the Commission's interpretation of its statutory
antitrust authority.
Because of the Commission's past practice of conducting antitrust
reviews of license transfer applications, including those at the post-
operating license stage of the regulatory process, the Commission in
the Wolf Creek case also closely examined its rules of practice to
determine whether they required or warranted revision to
[[Page 59673]]
conform to its decision in the Wolf Creek decision. The Commission
concluded that, notwithstanding its past interpretation of its rules as
being consistent with an antitrust review of all transfer applications,
including those involving post-operating license transfers, the rules
themselves do not explicitly mandate such reviews. Id. at 462, 467.
The Commission's practice has been to perform a ``significant
changes'' review of applications to directly transfer Section 103
construction permit and operating licenses to a new entity,
including those applications for post-operating license transfers.
While the historical basis for such reviews in the case of post-
operating license transfer applications remains cloudy--it does not
appear that the Commission ever explicitly focused on the issue of
whether such reviews were authorized or required by law, but instead
apparently assumed that they were 14--the reasons, even
if known, would have to yield to a determination that such reviews
are not authorized by the Act. See American Telephone & Telegraph
Co. v. FCC, 978 F.2d 727, 733 (D.C. Cir. 1992). We now in fact have
concluded, upon a close analysis of the Act, that Commission
antitrust reviews of post-operating license transfer applications
cannot be squared with the terms or intent of the Act and that we
therefore lack authority to conduct them. But even if we are wrong
about that, and we possess some general residual authority to
continue to undertake such antitrust reviews, it is certainly true
that the Act nowhere requires them, and we think it sensible from a
legal and policy perspective to no longer conduct them.
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\14\ Until recently, the Commission's staff applied the
``significant changes'' review process to both ``direct'' and
``indirect'' transfers. Indirect transfers involve corporate
restructuring or reorganizations which leave the licensee itself
intact as a corporate entity and therefore involve no application
for a new operating license. The vast majority of indirect transfers
involve the purchase or acquisition of securities of the licensee
(e.g., the acquisition of a licensee by a new parent holding
company). In this type of transfer, existing antitrust license
conditions continue to apply to the same licensee. The Commission
recently did focus on antitrust reviews of indirect license transfer
applications and approved the staff's proposal to no longer conduct
``significant changes'' reviews for such applications because there
is no effective application for an operating license in such cases.
See Staff Requirements Memorandum (November 18, 1997) on SECY-97-
227, Status Of Staff Actions On Standard Review Plans For Antitrust
Reviews And Financial Qualifications And Decommissioning-Funding
Assurance Reviews.
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It is well established in administrative law that, when a
statute is susceptible to more than one permissible interpretation,
an agency is free to choose among those interpretations. Chevron,
467 U.S. at 842-43. This is so even when a new interpretation at
issue represents a sharp departure from prior agency views. Id. at
862. As the Supreme Court explained in Chevron, agency
interpretations and policies are not ``carved in stone'' but rather
must be subject to re-evaluations of their wisdom on a continuing
basis. Id. at 863-64. Agencies ``must be given ample latitude to
``adapt its rules and policies to the demands of changing
circumstances.' '' Motor Vehicle Mfrs. Assn. of United States, Inc.
v. State Farm Mut. Automobile Ins. Co., 463 U.S. 29, 42 (1983),
quoting Permian Basin Area Rate Cases, 390 U.S. 747, 784 (1968). An
agency may change its interpretation of a statute so long as it
justifies its new approach with a ``reasoned analysis'' supporting a
permissible construction. Rust v. Sullivan, 500 U.S. 173, 186-87
(1991); Public Lands Council v. Babbit, 154 F.3d 1160, 1175 (10th
Cir. 1998); First City Bank v. National Credit Union Admin Bd., 111
F.3d 433, 442 (6th Cir. 1997); see also Atchison, T. & S. F. Ry. Co.
v. Wichita Bd. of Trade, 412 U.S. 800, 808 (1973); Hatch v. FERC,
654 F.2d 825, 834 (D.C. Cir. 1981); Greater Boston Television Corp.
v. FCC, 444 F.2d 841, 852 (D.C. Cir. 1971).
We therefore give due consideration to the Commission's
established practice of conducting antitrust reviews of post-
operating license transfer applications but appropriately accord
little weight to it in evaluating anew the issue of Section 105's
scope and whether, even if such reviews are authorized by an
interpretation of Section 105, they should continue as a matter of
policy. Moreover, as we noted above, the Commission's actual
practice of reviewing license transfer applications for significant
changes is on its face inconsistent with the statutory requirement
regarding how significant changes must be determined. The fact that
the statutory method does not lend itself to post-operating license
transfer applications, while the different one actually used does
logically apply, also must be considered and suggests that such a
review is not required by the plain language of the statute and was
never intended by Congress.
In support of the arguments advanced in KEPCo's briefs and some
of the amicus briefs that the Commission must conduct antitrust
reviews of transfer applications, various NRC regulations and
guidance are cited. Just as the Commission's past practices cannot
justify continuation of reviews unauthorized by statute, neither can
regulations or guidance to the contrary. Before accepting the
argument that our regulations require antitrust reviews of post-
operating license transfer applications, however, they warrant close
consideration.
Section 50.80 of the Commission's regulations, 10 CFR 50.80,
``Transfer of licenses,'' provides, in relevant part:
(b) An application for transfer of a license shall include
[certain technical and financial information described in sections
50.33 and 50.34 about the proposed transferee] as would be required
by those sections if the application were for an initial license,
and, if the license to be issued is a class 103 license, the
information required by Sec. 50.33a.
Section 50.33a, ``Information requested by the Attorney General
for antitrust review,'' which by its terms applies only to
applicants for construction permits, requires the submittal of
antitrust information in accordance with 10 CFR Part 50, Appendix L.
Appendix L, in turn, identifies the information ``requested by the
Attorney General in connection with his review, pursuant to section
105c of the Atomic Energy Act of 1954, as amended, of certain
license applications for nuclear power plants.'' ``Applicant'' is
defined in Appendix L as ``the entity applying for authority to
construct or operate subject unit and each corporate parent,
subsidiary and affiliate.'' ``Subject unit'' is defined as ``the
nuclear generating unit or units for which application for
construction or operation is being made.'' Appendix L does not
explicitly apply to applications to transfer an operating license.
KEPCo argues that the section 50.80(b) requirement, in
conjunction with the procedural requirements governing the filing of
applications discussed below, requires the submittal of antitrust
information in support of post-operating license transfer
applications and that the Wolf Creek case cannot lawfully be
dismissed without a ``significant changes'' determination. See KEPCo
Brief at 11. While we agree that section 50.80 may imply that
antitrust information is required for purposes of a ``significant
changes'' review, linguistically it need not be read that way. The
Applicants plausibly suggest that the phrase ``the license to be
issued'' could be interpreted to apply only to entities that have
not yet been issued an initial license. See App. Brief at
11.15 Moreover, neither this regulation nor any other
states the purpose of the submittal of antitrust information. For
applications to construct or operate a proposed facility, it is
clear that section 50.80(b), in conjunction with section 50.33a and
Appendix L, requires the information specified in Appendix L for
purposes of the Section 105c antitrust review, for construction
permits, and for the ``significant changes'' review for operating
licenses. But for applications to transfer an existing operating
license, there are other Section 105 purposes which could be served
by the information. Such information could be useful, for example,
in determining the fate of any existing antitrust license conditions
relative to the transferred license, as well as for purposes of the
Commission's Section 105b responsibility to report to the Attorney
General any information which appears to or tends to indicate a
violation of the antitrust laws.
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\15\ This reading is consistent with the history of section
50.80(b). Its primary purpose appears to have been to address
transfers which were to occur before issuance of the initial
(original) operating license, transfers which unquestionably fall
within the scope of Section 105c. See Detroit Edison Company (Enrico
Fermi Atomic Power Plant, Unit No. 2), LBP-78-13, 7 NRC 583, 587-88
(1978). When section 50.80(b) was revised in 1973 to require
submission of the antitrust information specified in section 50.33a,
the stated purpose was to obtain the ``prelicensing antitrust advice
by the Attorney General.'' 38 FR 3955, 3956 (February 9, 1973)
(emphasis added).
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While we acknowledge that information submitted under section
50.80(b) has not been used for these purposes in the past, and has
instead been used to develop ``significant changes'' findings, the
important point is that section 50.80(b) is simply an information
submission rule. It does not, in and of itself, mandate a
``significant changes'' review of license transfer applications. No
Commission rule imposes such a legal requirement.
[[Page 59674]]
Nonetheless, in conjunction with this decision, we are directing the
NRC staff to initiate a rulemaking to clarify the terms and purpose
of section 50.80 (b).\16\
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\16\ In one important respect the language of section 50.80(b),
quoted above, in fact supports the Commission's analysis of Section
105 and its legislative history. The phrase ``if the application
were for an initial license'' certainly demonstrates that,
consistent with the clearly intended focus of Section 105c on
antitrust reviews of applications for initial licenses, the
Commission has long distinguished initial operating license
applications from license transfer applications. Be that as it may,
clarification of section 50.80(b) will be appropriate in the wake of
our decision that our antitrust authority does not extend to
antitrust reviews of post-operating license transfer applications.
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KEPCo also argues that the Commission's procedural requirements
governing the filing of license applications supports its position
that antitrust review is required in this case. See KEPCo Brief at
11-13. The Applicants disagree, arguing that nothing in those
regulations states that transfer applications will be subject to
antitrust reviews. See App. Reply Brief at 3. For the same reasons
we believe that the specific language in Section 105c does not
support antitrust review of post-operating license transfer
applications, we do not read our procedural requirements to indicate
that there will be an antitrust review of transfer applications.
Indeed, the language in 10 CFR 2.101(e)(1) regarding operating
license applications under Section 103 tracks closely the process
described in Section 105c. As stated in 10 CFR 2.101(e)(1), the
purpose of the antitrust information is to enable the staff to
determine ``whether significant changes in the licensee's activities
or proposed activities have occurred since the completion of the
previous antitrust review in connection with the construction
permit.'' (Emphasis added.) As explained above, this description of
the process for determining ``significant changes'' is consistent
with an antitrust review of the initial operating license
application for a facility but wholly inconsistent with an antitrust
review of post-operating license transfer applications.
Id. at 459-463 (footnotes in original).
Indeed, after considering the various interpretations of the rules
advanced by the parties and amici curiae in the Wolf Creek proceeding,
the Commission concluded: ``Not one comma of the Commission's current
regulations need be changed in the wake of a cessation of such reviews,
although because of the NRC's past practice of conducting such reviews,
we have decided that clarification of our rules is warranted.'' Id. at
467. Therefore, the Commission directed that the rules be clarified
``by explicitly limiting which types of applications must include
antitrust information,'' Id. at 463, and that Regulatory Guide 9.3,
``Information Needed by the AEC Regulatory Staff in Connection with Its
Antitrust Review of Operating License Applications for Nuclear Power
Plants,'' and NUREG-1574, ``Standard Review Plan on Antitrust
Reviews,'' also be clarified.
The proposed clarifications make clear that, consistent with the
decision in the Wolf Creek case, no antitrust information is required
to be submitted as part of any application for Commission approval of a
post-operating license transfer. Because the current regulations do not
clearly specify which types of applications are not subject to
antitrust review, these proposed clarifying amendments will bring the
regulations into conformance with the Commission's limited statutory
authority to conduct antitrust reviews and its decision that such
reviews of post-operating license transfer applications are not
authorized or, if authorized, are not required and not warranted.\1\
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\1\ The same principle holds in the context of Part 52 of the
Commission's regulations. Under that Part, the operating license is
issued simultaneously with the construction permit in a combined
license. The application for the combined license is subject to the
agency's antitrust review, but antitrust reviews of post-combined
license transfer applications are not authorized or, if authorized,
are not required and not warranted.
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Direct transfers of facility licenses which are proposed prior to
the issuance of the initial operating license for the facility,
however, are and continue to be subject to the Commission's antitrust
review.\2\ In order to make clear that the Commission's regulations do
not require antitrust information as part of applications for post-
operating license transfers, the Commission is proposing to amend its
regulations by specifying that antitrust information must be submitted
only with applications for construction permits and ``initial''
operating licenses for the facility and applications for transfers of
licenses prior to the issuance of the ``initial'' operating license.
Thus, the word ``initial'' would be inserted to modify ``operating
license'' in appropriate locations and the word ``application'' would
be modified where necessary to make clear that the application must be
for a construction permit or initial operating license. Appendix L to
10 CFR Part 50, ``Information Requested by the Attorney General for
Antitrust Review [of] Facility License Applications,'' would be
similarly amended and clarified and a new definition would be added
there to define ``initial operation'' to mean operation pursuant to the
first operating license issued by the Commission for the facility.
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\2\ The paragraph speaks only to the historically typical case
in which a construction permit (CP) is issued first, and then years
later an operating license (OL). Under Part 52, the CP and OL are
issued simultaneously, and the antitrust review is done before
issuance. Thus, there could be no direct transfer of the facility CP
before issuance of the initial OL.
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III. Plain Language
The Presidential Memorandum dated June 1, 1998, entitled, ``Plain
Language in Government Writing,'' directed that the government's
writing be in plain language. This memorandum was published June 10,
1998 (63 FR 31883). In complying with this directive, editorial changes
have been made in the proposed revisions to improve the organization
and readability of the existing language of paragraphs being revised.
These types of changes are not discussed further in this notice. The
NRC requests comment on this proposed rule specifically with respect to
the clarity and effectiveness of the language used. Comments should be
sent to the address listed under the ADDRESSES heading.
IV. Voluntary Consensus Standards
The National Technology Transfer and Advancement Act of 1995,
Public Law 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 otherwise impractical. In this proposed rule, the NRC
proposes to eliminate the submission of antitrust information in
connection with post-operating license applications for transfers of
facility operating licenses. This rule would not constitute the
establishment of a standard that establishes generally-applicable
requirements.
V. Finding of No Significant Environmental Impact and Categorical
Exclusion
The Commission has determined under the National Environmental
Policy Act (NEPA) of 1969, as amended, and the Commission's regulations
in Subpart A of 10 CFR Part 51, that this rule, if adopted, falls
within the categorical exclusions appearing at 10 CFR 51.22 (c)(1),
(2), and (3)(i) and (iii) for which neither an Environmental Assessment
nor an Environmental Impact Statement is required.
VI. Paperwork Reduction Act Statement
The proposed rule does not contain a new or amended information
collection requirement 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, approval number 3150-0011.
[[Page 59675]]
VII. 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.
VIII. Regulatory Analysis
The proposed revisions to the regulations clarify that antitrust
information is required to be submitted only in connection with
applications for construction permits and initial operating licenses
and not in connection with applications for post-operating license
transfers. Therefore, to the extent that, in the past, antitrust
information was submitted with applications for post-operating license
transfers, these proposed revisions will reduce the burden on such
applicants by eliminating the submission of antitrust information and
the costs associated with preparing and submitting that information. In
short, the proposed revisions will result in no additional burdens or
costs on any applicants or licensees and will reduce burdens and costs
on others. Clearly, because the proposed revisions only affect when
antitrust information need be submitted to the Commission, there will
be no effect on the public health and safety or the common defense and
security, and they will continue to be adequately protected. The cost
savings to applicants resulting from these revisions justify taking
this action.
To determine whether the amendments contained in this proposed rule
were appropriate, the Commission considered the following options:
1. The No-Action Alternative
This alternative was considered because the current rules are not
explicitly inconsistent with the Commission's decision that antitrust
reviews of post-operating license transfers are not authorized, or at
least are not required and should be discontinued. Because the current
rules have been interpreted to be consistent with the Commission's
practice of conducting such reviews, however, in that they have been
interpreted to require the submission of antitrust information with
post-operating license transfer applications, the Commission concluded
that clarification of the rules are appropriate. Therefore, the
Commission determined that this alternative is not acceptable.
2. Clarification of 10 CFR Parts 2 and 50
For the reasons explained above and in the Commission's Wolf Creek
decision, the Commission decided that its rules could and should be
made clearer that no antitrust information should be submitted with
applications for post-operating license transfers because antitrust
reviews of such applications are not authorized or, if authorized,
should be discontinued as a matter of policy. Therefore, to make clear
that there is no need to submit antitrust information in connection
with post-operating license transfers, and because the proposed
revisions would result in cost savings to certain applicants, with no
additional costs or burdens on anyone, this option was chosen.
IX. Regulatory Flexibility Certification
In accordance with the Regulatory Flexibility Act of 1980, 5 U.S.C.
605(b), the Commission hereby certifies that this rule, if adopted,
will not have a significant economic impact on a substantial number of
small entities that are subject to the requirements of the rule. This
proposed rule affects only the licensing and operation of nuclear power
plants. The entities that own these plants do not fall within the scope
of the definition of ``small entities'' set forth in the Regulatory
Flexibility Act or the size standards established by the NRC (10 CFR
2.810). Furthermore, this proposed rule does not subject any entities
to any additional requirements, nor does it require any additional
information from any entity. Instead, the proposed rule, if adopted,
will clarify that certain information is not required to be submitted
in connection with applications for post-operating license transfers.
X. Backfit Analysis
The NRC has determined that the backfit rule, 10 CFR 50.109, does
not apply to this proposed 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 50.109. The rule does not
constitute a backfit because it does not propose a change to or
additions to requirements for existing structures, systems, components,
procedures, organizations or designs associated with the construction
or operation of a facility. Rather, this proposed rule eliminates the
need for certain applicants to submit antitrust information with their
applications.
XI. Proposed Amendments
List of Subjects
10 CFR Part 2
Administrative practice and procedure, Antitrust, Byproduct
material, Classified information, Environmental protection, Nuclear
materials, Nuclear power plants and reactors, Penalties, Sex
discrimination, Source material, Special nuclear material, Waste
treatment and disposal.
10 CFR Part 50
Antitrust, Classified Information, Criminal penalties, Fire
protection, Intergovernmental relations, Nuclear power plants and
reactors, Radiation protection, Reactor siting criteria, Reporting and
recordkeeping requirements.
For the reasons set out 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. 553, the NRC is proposing to
adopt the following amendments to 10 CFR Parts 2 and 50.
PART 2--RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS
1. The authority section for part 2 continues to read as follows:
Authority: Secs.161, 181, 68 Stat. 948, 953, as amended (42
U.S.C. 2201, 2231); sec. 191, as amended, Pub. L. 87-615, 76 Stat.
409 (42 U.S.C. 2241); sec. 201, 88 Stat. 1242, as amended (42 U.S.C.
5841); 5 U.S.C. 552.
Section 2.101 also issued under secs. 53, 62, 63, 81, 103, 104,
105, 68 Stat. 930, 932, 933, 935, 936, 937, 938, as amended (42
U.S.C. 2073, 2092, 2093, 2111, 2133, 2134, 2135); sec. 114(f), Pub.
L. 97-425, 96 Stat. 2213, as amended (42 U.S.C. 10134(f)); sec. 102,
Pub. L. 91-190, 83 Stat. 853, as amended (42 U.S.C. 4332); sec. 301,
88 Stat. 1248 (42 U.S.C. 5871). Sections 2.102, 2.103, 2.104, 2.105,
2.721 also issued under secs. 102, 103, 104, 105, 183, 189, 68 Stat.
936, 937, 938, 954, 955, as amended (42 U.S.C. 2132, 2133, 2134,
2135, 2233, 2239). Section 2.105 also issued under Pub. L. 97-415,
96 Stat. 2073 (42 U.S.C. 2239). Sections 2.200-2.206 also issued
under secs. 161 b, i, o, 182, 186, 234, 68 Stat. 948-951, 955, 83
Stat. 444, as amended (42 U.S.C. 2201 (b), (i), (o), 2236, 2282);
sec. 206, 88 Stat 1246 (42 U.S.C. 5846). Sections 2.205(j) also
issued under Pub. L. 101-410, 104 Stat. 890, as amended by section
31001(s), Pub. L. 104-134, 110 Stat. 1321-373 (28 U.S.C. 2461 note).
Sections 2.600-2.606 also issued under sec. 102, Pub. L. 91-190, 83
Stat. 853, as amended (42 U.S.C. 4332). Sections 2.700a, 2.719 also
issued under 5 U.S.C. 554. Sections 2.754, 2.760, 2.770, 2.780 also
issued under 5 U.S.C. 557. Section 2.764 also issued under secs.
135, 141, Pub. L. 97-425, 96 Stat. 2232, 2241 (42 U.S.C. 10155,
10161). Section 2.790 also issued under sec. 103, 68 Stat. 936, as
amended (42 U.S.C. 2133) and 5 U.S.C. 552. Sections 2.800 and 2.808
also issued under 5 U.S.C. 553. Section 2.809 also issued under 5
U.S.C. 553 and sec. 29, Pub. L. 85-256, 71 Stat. 579, as amended (42
U.S.C. 2039). Subpart K also issued under sec. 189, 68 Stat. 955 (42
U.S.C. 2239); sec. 134, Pub. L. 97-425, 96 Stat. 2230 (42 U.S.C.
10154). Subpart L also issued under sec. 189, 68 Stat. 955 (42
[[Page 59676]]
U.S.C. 2239). Appendix A also issued under sec. 6, Pub. L. 91-560,
84 Stat. 1473 (42 U.S.C. 2135).
2. In Sec. 2.101 paragraphs (e)(1) and (e)(2) are revised to read
as follows:
Sec. 2.101 Filing of application.
* * * * *
(e)(1) Upon receipt of the antitrust information responsive to
Regulatory Guide 9.3 submitted in connection with an application for a
facility's initial operating license under section 103 of the Act, the
Director of Nuclear Reactor Regulation or the Director of Nuclear
Material Safety and Safeguards, as appropriate, shall publish in the
Federal Register and in appropriate trade journals a ``Notice of
Receipt of Initial Operating License Antitrust Information.'' The
notice shall invite persons to submit, within thirty (30) days after
publication of the notice, comments or information concerning the
antitrust aspects of the application to assist the Director in
determining, pursuant to section 105c of the Act, whether significant
changes in the licensee's activities or proposed activities have
occurred since the completion of the previous antitrust review in
connection with the construction permit. The notice shall also state
that persons who wish to have their views on the antitrust aspects of
the application considered by the NRC and presented to the Attorney
General for consideration should submit such views within thirty (30)
days after publication of the notice to: U.S. Nuclear Regulatory
Commission, Washington, DC 20555. Attention: Chief, Policy Development
and Technical Support Branch.
(2) If the Director of Nuclear Reactor Regulation or the Director
of Nuclear Material Safety and Safeguards, as appropriate, after
reviewing any comments or information received in response to the
published notice and any comments or information regarding the
applicant received from the Attorney General, concludes that there have
been no significant changes since the completion of the previous
antitrust review in connection with the construction permit, a finding
of no significant changes shall be published in the Federal Register,
together with a notice stating that any request for reevaluation of
such finding should be submitted within thirty (30) days of publication
of the notice. If no requests for reevaluation are received within that
time, the finding shall become the NRC's final determination. Requests
for a reevaluation of the no significant changes determination may be
accepted after the date when the Director's finding becomes final but
before the issuance of the initial operating license only if they
contain new information, such as information about facts or events of
antitrust significance that have occurred since that date, or
information that could not reasonably have been submitted prior to that
date.
* * * * *
PART 50--DOMESTIC LICENSING OF PRODUCTION AND UTILIZATION
FACILITIES
3. The authority section for part 50 continues to read as follows:
Authority: Secs. 102, 103, 104, 105, 161, 182, 183, 186, 189, 68
Stat. 936, 937, 938, 948, 953, 954, 955, 956, as amended, sec. 234,
83 Stat. 1244, as amended (42 U.S.C. 2132, 2133, 2134, 2135, 2201,
2232, 2233, 2236, 2239, 2282); secs. 201, as amended, 202, 206, 88
Stat. 1242, as amended, 1244, 1246 (42 U.S.C. 5841, 5842, 5846).
Section 50.7 also issued under Pub. L. 95-601, sec. 10, 92 Stat.
2951 (42 U.S.C. 5851). Section 50.10 also issued under secs. 101,
185, 68 Stat. 955 as amended (42 U.S.C. 2131, 2235), sec. 102, Pub.
L. 91-190, 83 Stat. 853 (42 U.S.C. 4332). Sections 50.13, 50.54(dd),
and 50.103 also issued under sec. 108, 68 Stat. 939, as amended (42
U.S.C. 2138). Sections 50.23, 50.35, 50.55, and 50.56 also issued
under sec. 185, 68 Stat. 955 (42 U.S.C. 2235). Sections 50.33a,
50.55a and Appendix Q also issued under sec. 102, Pub. L. 91-190, 83
Stat. 853 (42 U.S.C. 4332). Sections 50.34 and 50.54 also issued
under sec. 204, 88 Stat. 1245 (42 U.S.C. 5844). Section 50.37 also
issued under E.O. 12829, 3 CFR 1993 Comp., p. 570; E.O. 12958, as
amended, 3 CFR, 1995 Comp., p. 333; E.O. 12968, 3 CFR 1995 Comp., p.
391. Sections 50.58, 50.91, and 50.92 also issued under Pub. L. 97-
415, 96 Stat. 2073 (42 U.S.C. 2239). Section 50.78 also issued under
sec. 122, 68 Stat. 939 (42 U.S.C. 2152). Sections 50.80-50.81 also
issued under sec. 184, 68 Stat. 954, as amended (42 U.S.C. 2234).
Appendix F also issued under sec. 187, 68 Stat. 955 (42 U.S.C 2237).
4. In Sec. 50.42 paragraph (b) is revised to read as follows:
Sec. 50.42 Additional standards for class 103 licenses
* * * * *
(b) Due account will be taken of the advice provided by the
Attorney General, under subsection 105c of the Act, and to any evidence
that may be provided during any proceedings in connection with the
antitrust aspects of the application for a construction permit or the
facility's initial operating license.
(1) For this purpose, the Commission will promptly transmit to the
Attorney General a copy of the construction permit application or
initial operating license application. The Commission will request any
advice as the Attorney General considers appropriate in regard to the
finding to be made by the Commission as to whether the proposed license
would create or maintain a situation inconsistent with the antitrust
laws, as specified in subsection 105a of the Act. This requirement will
not apply--
(i) With respect to the types of class 103 licenses which the
Commission, with the approval of the Attorney general, may determine
would not significantly affect the applicant's activities under the
antitrust laws; and
(ii) To an application for an initial license to operate a
production or utilization facility for which a class 103 construction
permit was issued unless the Commission, after consultation with the
Attorney General, determines such review is advisable on the ground
that significant changes have occurred subsequent to the previous
review by the Attorney General and the Commission.
(2) The Commission will publish any advice it receives from the
Attorney General in the Federal Register. After considering the
antitrust aspects of the application for a construction permit or
initial operating license, the Commission, if it finds that the
construction permit or initial operating license to be issued or
continued, would create or maintain a situation inconsistent with the
antitrust laws specified in subsection 105a of the Act, will consider,
in determining whether a construction permit or initial operating
license should be issued or continued, other factors the Commission
considers necessary to protect the public interest, including the need
for power in the affected area.1
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\1\ As permitted by subsection 105c(8) of the Act, with respect
to proceedings in which an application for a construction permit was
filed prior to Dec. 19, 1970, and proceedings in which a written
request for antitrust review of an application for an operating
license to be issued under section 104b has been made by a person
who intervened or sought by timely written notice to the Atomic
Energy Commission to intervene in the construction permit proceeding
for the facility to obtain a determination of antitrust
considerations or to advance a jurisdictional basis for such
determination within 25 days after the date of publication in the
Federal Register of notice of filing of the application for an
operating license or Dec. 19, 1970, whichever is later, the
Commission may issue a construction permit or operating license in
advance of consideration of, and findings with respect to the
antitrust aspects of the application, provided that the permit or
license so issued contains the condition specified in Sec. 50.55b.
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5. In Sec. 50.80 paragraph (b) is revised to read as follows:
Sec. 50.80 Transfer of licenses.
* * * * *
(b) An application for transfer of a license shall include as much
of the information described in Secs. 50.33 and
[[Page 59677]]
50.34 of this part with respect to the identity and technical and
financial qualifications of the proposed transferee as would be
required by those sections if the application were for an initial
license, and, if the license to be issued is a class 103 construction
permit or initial operating license, the information required by
Sec. 50.33a. The Commission may require additional information such as
data respecting proposed safeguards against hazards from radioactive
materials and the applicant's qualifications to protect against such
hazards. The application shall include also a statement of the purposes
for which the transfer of the license is requested, the nature of the
transaction necessitating or making desirable the transfer of the
license, and an agreement to limit access to Restricted Data pursuant
to Sec. 50.37. The Commission may require any person who submits an
application for license pursuant to the provisions of this section to
file a written consent from the existing licensee or a certified copy
of an order or judgment of a court of competent jurisdiction attesting
to the person's right (subject to the licensing requirements of the Act
and these regulations) to possession of the facility involved.
* * * * *
6. In Appendix L to Part 50, the heading of Appendix L and
Definition 1 are revised, Definitions 3 through 6 are redesignated as
Definitions 4 through 7, and a new Definition 3 is added, to read:
Appendix L to Part 50--Information Requested by the Attorney
General for Antitrust Review of Facility Construction Permits and
Initial Operating Licenses
* * * * *
I. Definitions
1. Applicant means the entity applying for authority to
construct or initially operate subject unit and each corporate
parent, subsidiary and affiliate. Where application is made by two
or more electric utilities not under common ownership or control,
each utility, subject to the applicable exclusions contained in
Sec. 50.33a, should set forth separate responses to each item
herein.
* * * * *
3. Initially operate a unit means to operate the unit pursuant
to the first operating license issued by the Commission for the
unit.
* * * * *
Dated at Rockville, Maryland, this 27th day of October 1999.
For the Nuclear Regulatory Commission.
Annette Vietti-Cook,
Secretary of the Commission.
[FR Doc. 99-28593 Filed 11-2-99; 8:45 am]
BILLING CODE 7590-01-P