[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
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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