Antitrust Review Authority: Clarification
[Federal Register: July 19, 2000 (Volume 65, Number 139)]
[Rules and Regulations]
[Page 44649-44661]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19jy00-3]
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NUCLEAR REGULATORY COMMISSION
10 CFR Parts 2 and 50
RIN 3150 AG38
Antitrust Review Authority: Clarification
AGENCY: U.S. Nuclear Regulatory Commission.
ACTION: Final rule.
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SUMMARY: The Nuclear Regulatory Commission is clarifying 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 clarifying amendments will bring the regulations into
conformance with the Commission's limited statutory authority to
conduct antitrust reviews.
EFFECTIVE DATE: This final rule is effective August 18, 2000.
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 JRG1@nrc.gov.
SUPPLEMENTARY INFORMATION:
I. Background
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 effects 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 (64 FR 11069; March 8, 1999), 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) (Wolf Creek).
II. Discussion
The Commission's decision in Wolf Creek was based on a thorough
consideration of the documented
[[Page 44650]]
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 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:
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 105 c. 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.
______________
\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).
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, and in the NRC Issuances at 49 NRC 441
(1999).
[[Page 44651]]
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 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\ ???????
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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
Sec. 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
Secs. 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 Sec. 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 Sec. 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 Sec. 50.80(b), in
conjunction with Sec. 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.
While we acknowledge that information submitted under
Sec. 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 Sec. 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. Nonetheless, in
conjunction with this decision, we are directing the NRC staff to
initiate a rulemaking to clarify the terms and purpose of
Sec. 50.80(b).\16\
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
[[Page 44652]]
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.
______________
\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.
\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 Sec. 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).
\16\ In one important respect the language of Sec. 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 Sec. 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.
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.
On November 3, 1999 (64 FR 59671), the Commission published for
comment a proposed rule to clarify its regulations consistent with its
Wolf Creek decision. Substantive and timely comments were received from
(1) the law firm of Akin, Gump, Strauss, Hauer & Feld, on behalf of the
FirstEnergy Nuclear Operating Company (FENOC), the licensed operator of
the Perry, Davis-Besse, and Beaver Valley nuclear power plants, for the
subsidiary owners of those facilities, namely Ohio Edison Company, The
Cleveland Electric Illuminating Company, the Toledo Edison Company, and
Pennsylvania Power Company, (2) the Nuclear Energy Institute (NEI), on
behalf of the nuclear energy industry, (3) the law firm of ShawPittman
on behalf of Western Resources, Inc., Kansas Gas and Electric Company,
Wisconsin Electric Power Company, Public Service Electric and Gas
Company, and Rochester Gas and Electric Corporation (ShawPittman
Utilities), (4) Florida Power & Light Company (FPL), the owner and
operator of the St. Lucie and Turkey Point nuclear power plants, (5)
the law firm of Spiegel & McDiarmid, on behalf of the American Public
Power Association, the City of Cleveland, Ohio, the Florida Municipal
Power Agency, the City of Gainesville, Florida, Public Citizen, and the
American Antitrust Institute (collectively APPA), and (6) Florida Power
Corporation. In addition, late comments were received from (7) Jonathon
M. Block on behalf of Citizens Awareness Network, Inc. (CAN).
III. Summary and Analysis of Public Comments
All commenters, except for APPA and CAN, support the Commission's
initiative, reflected in the proposed rule, to clarify its regulations
regarding the submission of antitrust information so the rules are
consistent with the Commission's limited antitrust review authority.
All commenters, except for APPA and CAN, endorsed the adoption of the
changes to the regulations exactly as proposed. There were no
suggestions for different or additional changes. APPA and CAN did not
suggest specific alternative rule changes other; they oppose the rule
in its entirety.
FENOC emphasized that the Commission's antitrust authority in
section 105 of the Atomic Energy Act is specific, not plenary, and that
the Commission's Wolf Creek decision appropriately characterized the
``progressively diminishing role'' that Congress intended for the
Commission on antitrust matters from the construction permit phase of
licensing to the operating license stage, with no review authority
granted for post-operating license transfers. FENOC stated that NRC
regulations do not require any antitrust reviews in license transfer
cases, and that any such review would be duplicative (``redundant and
unnecessary'') in light of other express federal governmental antitrust
authorities.
NEI believes that the Commission was correct in reconsidering its
antitrust authority and that the structure, language and history of the
Atomic Energy Act support the Commission's conclusion that antitrust
reviews should not be conducted in operating license transfer cases.
NEI stated that the approach taken by the Commission to eliminate any
ambiguities in its regulations regarding antitrust reviews is sound and
should be adopted. NEI also believes that the Commission should
initiate a ``separate effort'' to develop guidelines for the
disposition of existing antitrust license conditions in license
transfer cases.
The ShawPittman Utilities support the Commission's proposed rule
clarifying its antitrust authority and, based on both legal and sound
public policy justifications, urged the Commission to adopt the
revisions set forth in the proposed rule. The ShawPittman Utilities
agree with the Commission that the Atomic Energy Act does not authorize
the Commission to perform antitrust reviews of license transfer
applications, and that such reviews, if authorized, would be ``an
inefficient, unnecessary, and duplicative use of the Commission's
resources.''
FPL agrees with the Commission's Wolf Creek decision that its
limited antitrust authority does not extend to operating license
transfer applications and urges the Commission to issue a final rule as
proposed. FPL further
[[Page 44653]]
encouraged the Commission continue its efforts to seek legislation to
divest itself from all antitrust authority. FPL commended the
Commission for its willingness and open-minded approach to reconsider
its antitrust authority and practices and believes that this will
contribute to streamlining agency practices and will result in a more
efficient NRC, which in turn will improve its mission to protect the
public health and safety.
Florida Power Corporation endorses the comments on the proposed
rule submitted by the Nuclear Energy Institute.
APPA believes that the Wolf Creek decision is at odds with a prior
Commission antitrust decision, Detroit Edison Company (Enrico Fermi
Atomic Power Plant, Unit No. 2), LBP-78-13, 7 NRC 583, aff'd, ALAB-475,
7 NRC 752 (1978) (Fermi), which held that an antitrust review is
required when an applicant is added to a construction permit. APPA
believes that there is difficulty interpreting the Atomic Energy Act's
antitrust review provisions regarding post-operating license transfers
but that the Commission's analysis in Wolf Creek is erroneous. APPA
also believes that, even if the Commission's statutory analysis in Wolf
Creek is correct, the Commission plainly would err if it eliminates
antitrust filing requirements for license transfers involving existing
antitrust license conditions and that there is no reasoned basis to
eliminate antitrust filings in such circumstances. Finally, APPA
believes that if the language of section 105c is sufficiently ambiguous
to permit more than one interpretation, the Commission erred by
concluding that, considering other federal antitrust authorities, its
antitrust review authority is superfluous.
CAN believes that the Commission's proposed rule unlawfully
purports to change the substance of the Atomic Energy Act and should be
withdrawn in favor of seeking legislative changes from Congress. CAN
believes that the purpose of the Commission's antitrust authority in
section 105 of the Atomic Energy Act, in conjunction with the
inalienability of licenses provided in section 184, is to prevent
regulatory gaps in the approval of highly dangerous activities, and
that the proposed rule would undermine that purpose. CAN mentions the
possibility of multiplied dangers if licensees cannot meet financial
obligations, cost cutting by nuclear power plant owners in a
competitive environment, potentially serious accidents triggered by
overtime patterns, and foreign ownership of nuclear power plants, as
well as increased regulatory burdens on the NRC, resulting in an
inability of the NRC to inspect large-scale licensees for health and
safety violations. CAN asserts that the NRC has failed to evaluate the
health and safety and national security consequences of the proposed
rule and also has failed to evaluate the environmental impacts of the
proposed rule, in violation of the National Environmental Policy Act.
The commenters can be divided into two categories: Those who
support a final rule identical to the proposed rule and those who
oppose the rule in its entirety and would have the Commission leave in
place the current antitrust information reporting requirements (or at
least leave them in place for transfers involving nuclear power plants
with existing antitrust license conditions). Since no commenter
suggested any alternative provisions or language to what was proposed
by the Commission, the decision for the Commission is whether the
comments opposed to the rule as proposed warrant withdrawal of the
proposed rule (or leaving the current reporting requirement in place
for transfers involving existing antitrust conditions). For the reasons
explained below, the Commission does not believe its analysis of its
statutory antitrust review authority is flawed or that, if it has
authority but is not required to conduct antitrust reviews of post-
operating license transfers, its reasons for discontinuing such reviews
are unsound as a matter of law or policy. The Commission therefore
agrees with the commenters who support the rule and disagrees with the
comments opposing the rule, which are addressed in detail.
Comment: APPA asserts that the Commission's Wolf Creek decision on
the limits of its antitrust review authority is wrong and at odds with
a prior Commission decision involving the Fermi nuclear plant. See
Detroit Edison Company (Enrico Fermi Atomic Power Plant, Unit No. 2),
LBP-78-13, 7 NRC 583, aff'd, ALAB-475, 7 NRC 752 (1978) (Fermi). APPA
states that Fermi ``holds that antitrust review is required when an
applicant is added to a construction permit. By departing from its
Fermi analysis without explanation, the Commission also fails to
construe the Atomic Energy Act in light of the express statutory
purpose of promoting competition.'' APPA comments at 3 (emphasis in
original).
Response: The Commission was mindful of the Fermi decision when it
decided the Wolf Creek case. See, e.g., Wolf Creek at 462 n.15. See
also the November 3, 1999, proposed rule, 64 FR 59673. As noted in Wolf
Creek, none of the Commission's prior adjudicatory decisions (nor any
other Commission issuances) explicitly addressed the Commission's
authority to conduct antitrust reviews of post-operating license
transfers. Id. at 450 n.4. At most, the prior antitrust adjudicatory
decisions reflect an assumption on the part of the Commission that it
had such authority. In part, for that reason, the Commission carefully
focused on its post-operating license antitrust review authority for
the first time in Wolf Creek.
The Fermi case involved an application by Detroit Edison Company
(the licensee) for an amendment to its construction permit for the
Fermi nuclear plant to add the Northern Michigan Electric Cooperative,
Inc. and the Wolverine Electric Cooperative, Inc. as minority co-
owners. The licensee moved to dismiss on the grounds, inter alia, that
the NRC's Licensing Board had no jurisdiction to conduct an antitrust
review of such an application since a construction permit review
already had been conducted and no further review was provided by
section 105c unless there was a finding of significant changes at the
operating license stage. The Licensing Board reasoned that the
statutory language in section 105c ``does not answer the question as to
the effect of a proposed amendment to an original construction permit
to add new co-owners.'' Fermi, LBP-78-13, 7 NRC 583, 587 (emphasis
added). The Board, relying on the Commission's South Texas decision,
Houston Lighting and Power Company (South Texas Project, Unit Nos. 1
and 2), CLI-77-13, 5 NRC 1303 (1977), emphasized the importance of a ``
`thorough' and `in-depth' antitrust review at the construction permit
stage, so that `once an initial, full antitrust review has been
performed, only `significant changes' warrant reopening.'' LBP-78-13, 7
NRC at 588 (emphasis added), quoting South Texas, 5 NRC at 1310, 1312,
1317. The Board concluded that the two cooperatives' application to
become co-licensees was their initial application for a construction
permit and therefore subject to the construction permit stage antitrust
review.
It is clear beyond any question that the Fermi case did not involve
or address in any respect the Commission's antitrust review authority
over applications to transfer operating licenses, cases where there
already had been a construction permit review and a significant changes
review. Fermi involved not the post-operating license time frame but
the pre-initial operating license, construction phase, where, as Wolf
Creek made clear, Congress
[[Page 44654]]
carefully focused the Commission's antitrust authority. Wolf Creek
analyzed this limitation on the Commission's antitrust authority from
the perspective of both the statutory language and its legislative
history. The Board's holding in Fermi is consistent with the Wolf Creek
decision.
A careful reading of APPA's comments suggests that not even APPA
disagrees with this, and its comments are instructive as much for what
they do not say as for what they do. APPA does not assert (as it
reasonably could not) that Fermi addressed and resolved the
Commission's post-operating license antitrust review authority, and
that the Wolf Creek holding is contrary to that of Fermi. APPA says
only that Wolf Creek departs from the Fermi ``analysis'' (APPA comments
at 3) and ``rationale'' (APPA Comments at 17) without explanation. This
refers to the Licensing Board's reasoning that the cooperatives'
applications ``constitute their ``initial application for a
construction permit.'' LBP-78-13, 7 NRC at 588 (emphasis in original).
APPA criticizes the Wolf Creek decision for departing from this
rationale with no explanation. Extrapolating that rationale to post-
operating license transfers, of course, would result in considering the
prospective transferees as applicants for their initial operating
licenses and thus subject to the Section 105c ``significant changes''
review, contrary to the decision in Wolf Creek.
There are two responses to this argument. First, the Commission did
not fail to address this reasoning in its Wolf Creek decision. The
Commission explicitly considered whether the language of section 105c
could accommodate construing the post-operating license transfer
application as an application for an operating license and found that
it could not. See Wolf Creek at 454-56. So, while the Fermi Licensing
Board's reasoning led it to a result for new construction permit
licensees which was consistent with section 105's language and
legislative history, similar reasoning was shown in Wolf Creek to be
incompatible with the language and legislative history of section 105's
operating license review provisions, and also was shown to be flawed as
a practical matter and when measured against the Commission's past
practices. Id. at 451-52, 454-59. Second, a rationale suitable to
interpreting one provision of a statute--construction permit antitrust
reviews--in a manner which is supported by the statutory language and
its legislative history cannot be used to interpret another provision--
post-operating license antitrust reviews--if it cannot be reconciled
with the statutory language and Congressional intent. The Commission's
Wolf Creek's decision explains why the rationale used in Fermi does not
work for post-operating license transfers (actually a step removed from
the initial operating license reviews for the facility contemplated by
Congress).
One final comment in response to APPA's comment that Wolf Creek
inexplicably departs from the Fermi decision. The Fermi Licensing
Board's threshold ruling that it had jurisdiction to consider antitrust
issues associated with the addition of new construction permit
applicants was affirmed by the Commission's Appeal Board. The Detroit
Edison Company (Enrico Fermi Atomic Power Plant, Unit No. 2), ALAB-475,
7 NRC 752, 755 n.7 (1978). (The Commission explicitly noted its
agreement with this result in Wolf Creek at 362 n.15.) It is not clear,
however, that the Appeal Board endorsed the Licensing Board's rationale
that APPA urges the Commission now adopt. The Appeal Board in Fermi
devoted only one footnote of its opinion to the issue of the
Commission's antitrust review authority for the addition of new
construction permit applicants and found it ``sufficient simply to note
our essential agreement with the decision on this point.'' Id.
(emphasis added). What this means with respect to the Appeal Board's
opinion of the Licensing Board's reasoning is and must remain a matter
of speculation. It does suggest, however, something less than full
agreement with everything the Licensing Board said on the issue and
literally may reflect only ``essential agreement'' with the decision
and little or no agreement with the rationale. Be that as it may, as
explained above, the Commission addressed this rationale in its Wolf
Creek decision and found it unsound for determining its antitrust
review authority over post-operating license transfers.
APPA states that ``there is a difficulty in interpreting the
statute to require a `significant changes' review'' for post-operating
license transfers, but the Commission erred in its analysis and its
conclusion that the statute does not require such reviews. APPA
Comments at 15. APPA offers this analysis:
It is obvious that there can be no ``significant changes''
review of the activities of a transferee that is new to an operating
license, because there was no prior review against which to measure
changes. With respect to a transfer of a license to a new entity,
the Commission rejects a forced interpretation of the statute as
require [sic] a significant changes review and concludes that
therefore no antitrust review is called for. This is not reasonable.
Rather, with respect to a new license, the application for transfer
is properly viewed as not falling within the proviso of section
105c(2) at all. That is, such a transfer application is not an
application for a license to operate a facility for which a
construction permit was issued, because the applicant in question
was never issued a construction permit.
This construction of section 105c(2) as focusing on the
applicant rather than the facility eliminates the difficulty that
was fastened upon by the Commission in Wolf Creek. * * *
By the logic of Fermi, then, a transfer of an operating license
to an entity that was not previously a licensee is an initial
application for an operating license not preceded by a construction
permit, and therefore an antitrust review is necessary. This avoids
the linguistic difficulties that the Commission noted in Wolf Creek.
APPA Comments at 15-17 (emphasis in original). The Commission has
several responses to this argument.
First, as the Commission explained in Wolf Creek, the language of
the statute, as well as its legislative history, undeniably focuses on
certain applications for licenses for production or utilization
facilities. See generally Wolf Creek at 448-59. For a given facility,
the applications for which section 105c requires an antitrust review
are applications for construction permits and applications for
operating licenses. Post-operating license transfers are certainly not
applications for a construction permit, so to be within the scope of
the antitrust review requirements of section 105c, they must be deemed
to be applications for a license to operate the facility. But section
105c(2) clearly states that the antitrust review required by paragraph
(1) ``shall not apply to an application for a license to operate a
utilization or production facility for which a construction permit was
issued under section 103 unless the Commission determines such review
is advisable on the ground that significant changes in the licensee's
activities or proposed activities have occurred subsequent to the
previous review * * * under this subsection in connection with the
construction permit for the facility.'' APPA's alternative
interpretation of this provision cannot be reconciled with its specific
language. The heart of APPA's analysis is its characterization of the
request for Commission approval of a post-operating license transfer as
an application for an initial operating license by the transferee
entity. Putting aside for a moment the fact that such approvals do not
result in issuing an initial or any other type of operating license,
but rather an amendment to a previously-issued operating license, if we
consider such a request as seeking
[[Page 44655]]
an initial operating license for the transferee, then we must look
first to the language of section 105c(2) to determine whether an
antitrust review is required. Since we are considering an application
for an operating license, we are governed by the proviso, which, absent
a determination of significant changes, clearly and unambiguously
prohibits (``shall not'') a review of an application to operate a
``facility for which a construction permit was issued.'' Since the
transferee's application is for an operating license for a facility for
which a construction permit was issued, the plain language of the
statute prohibits an antitrust review unless the Commission first
determines that there are significant changes, which even APPA concedes
as ``obvious that there can be no significant changes review.'' APPA
Comments at 15. APPA's reasoning simply cannot be justified by the
specific language in the statute.
Neither is APPA's analysis consistent with the legislative history
in general, which emphasized the need to conduct the complete antitrust
review early in the construction phase of the licensing process and a
conditional operating license review only if there are ``significant
changes in the licensee's activities or proposed activities,'' and that
portion of the legislative history which explicitly addressed the
limitation on the Commission's antitrust review authority to certain
specified applications for a given facility.
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 105 c. 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.
Joint Committee Report at 29. Just as the language of the statute
focuses on certain applications for a given facility, so too does this
explanation of which types of applications for a given facility are
within the statute's scope of review: ``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.'' For a post-operating license
transfer application to be included, it would have to be deemed ``the
initial application for an operating license'' as that phrase is used
in this explanation in the Joint Committee Report. But is it? It may
appear to be included at first thought, but only if the last sentence
of the Committee's explanation is ignored. The last sentence makes
clear that ``the initial'' applications subject to antitrust review
were those filed during the traditional, two-step licensing process
eventually leading to the issuance of the initial operating license for
the facility: ``The phrases do not include, for purposes of triggering
subsection 105 c, other applications which may be filed during the
licensing process.'' (Emphasis added.) While APPA might argue that the
post-operating license transfer application is an application filed
during the licensing process because its review constitutes a
``licensing action,'' such a characterization clearly is not the two-
step licensing process which Congress addressed when it provided the
antitrust review authority contained in Section 105c and focused that
authority on the antitrust situation which existed prior to initial
operation of the facility. Post-operating license transfer applications
certainly fall outside the two-step licensing process and, therefore,
are not applications included in the statute or intended to be included
by any explanation in the legislative history.
APPA's construction of the statute amounts to reading three types
of applications into the scope of section 105c: (1) Applications for
facility construction permits, (2) applications for facility operating
licenses for which a construction permit antitrust review had been
conducted, and, to use APPA's description, (3) ``with respect to a new
licensee, the application for transfer is properly viewed as not
falling within the proviso of section 105c(2) at all. That is, such a
transfer application is not an application for a license to operate a
facility for which a construction permit was issued, because the
applicant in question was never issued a construction permit.'' It is
this third type of application which APPA equates to a post-operating
license transfer application in order to avoid the inherent problem it
acknowledges exists in treating post-operating license transfer
applications as type (2) applications subject to the requirement that
``significant changes'' be measured from the previous construction
permit review. There are two fundamental problems with this
construction. First, it literally makes no sense because it treats a
post-operating license transfer application as ``not an application for
a license to operate a facility for which a construction permit was
issued, because the applicant in question was never issued a
construction permit.'' (Emphasis added.) But under the two-step
licensing process existing when the statute was passed, every facility
issued an operating licenses is a ``facility for which a construction
permit was issued.'' Second, this construction in inconsistent with the
language of the statute. The statutory language in the section 105c(2)
proviso links the issuance of the construction permit to the facility
(``facility for which a construction permit was issued), not to the
applicant, as APPA's construction requires. And third, this
construction would result in an unconditional, full-blown antitrust
review perhaps even decades after initial operation of the facility, a
prospect that is wholly unsupported by the legislative history, which
specifically reflects Congress's rejection of a proposal for an
unconditional operating license review even before initial operation of
the facility. See Wolf Creek discussion at 457-58.
Finally, assuming we accept APPA's concession that ``there is a
difficulty in interpreting the statute,'' the Commission's
interpretation in Wolf Creek certainly is no less reasonable than
APPA's has been shown above to be. See Chevron U.S.A., Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837 (1984). In this regard,
it is important to emphasize that the Commission's decision in Wolf
Creek to no longer conduct antitrust reviews of post-operating license
transfers rested on two alternative grounds, either one of which is
sufficient to support that decision: First, the Commission's analysis
of the relevant statutory provisions and their legislative history led
it to conclude that the scope of its antitrust authority does not
include post-operating license transfer reviews; second, even if its
antitrust authority is concluded to be broad enough to include such
reviews, no reasonable reading of the statute warrants a conclusion
that such reviews are mandatory, and the Commission, therefore, has
chosen, for the reasons stated in Wolf Creek, to not conduct such
reviews as a matter of sound policy. See Wolf Creek at 463-65.
APPA's final argument that the Commission's Wolf Creek analysis is
wrong involves the Commission's statement that, absent section 105, the
Commission would have no antitrust
[[Page 44656]]
authority. APPA Comments at 21. There is no need to argue this academic
point of dicta in Wolf Creek, since the Commission was given very
specific and limited antitrust authority in section 105. As noted in
Wolf Creek, a statutory duty to act under certain specifically-defined
circumstances does not include the discretion to act under different
circumstances unless the statute warrants such a reading. Wolf Creek at
454, citing Railway Labor Executives' Association v. National Mediation
Board, 29 F.3d 655, 671 (D.C. Cir. 1994) (en banc). For the reasons
explained in Wolf Creek and herein, the Commission has concluded that
its specific antitrust authority does not include antitrust reviews of
post-operating license transfers.\1\
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\1\ The Commission's specific antitrust authority does include
other authority which applies both to the post-operating license
conduct of a licensee and to conduct occurring before issuance of
the operating license. Specifically, even after issuance of the
facility operating license, the Commission will refer to the Justice
Department any information it has suggesting that a licensee is in
violation of the antitrust laws and, upon a finding of an antitrust
violation, the Commission has clear authority to fashion a license-
related remedy if warranted. See sections 105a and b of the Act.
This same authority is available should the Commission encounter a
situation where an operating license is transferred from antitrust-
compliant licensees to a transferee who may be violating the
antitrust laws. If such were the case, it would be brought to the
attention of the Justice Department (and perhaps other antitrust law
enforcement agencies), the aggrieved parties could bring a private
antitrust action, and, if any court found a Commission licensee in
violation, a Commission-imposed licensing remedy could be sought.
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Comment: APPA believes that, even if the Commission's Wolf Creek
statutory analysis is correct for license transfers in general, the
Commission would err if it eliminates antitrust filing requirements for
license transfers where there are existing antitrust license
conditions, since such conditions must be dispositioned in conjunction
with the license transfer.
Response: It is true that there may be a number of post-operating
license transfers that involve nuclear facilities whose (transferor)
licensees are subject to antitrust license conditions imposed by the
NRC as a result of the construction permit (or initial operating
license) review. In such cases, consideration must be given to the
appropriate disposition of the existing license conditions. This was
addressed in the Wolf Creek decision. The Commission stated that it
would entertain proposals by the parties as to the proper treatment of
existing license conditions. Wolf Creek at 466. In fact, that is
precisely what the Commission did in the Wolf Creek transfer case
itself, although, because the parties reached a settlement, no decision
was required by the Commission. The Commission continues to believe
that this approach is workable and that retention of the reporting rule
for all post-operating license transfer cases where there are existing
antitrust conditions is unnecessary. For example, the proper
disposition of existing antitrust conditions may be obvious and
agreeable to all involved in some cases, or in other cases may be
satisfactorily accomplished after considering submissions by the
applicants and others much less burdensome than the full scope
reporting urged by APPA. In other cases, such reporting might be
unnecessary for some transfer applicants, or could be burdensome out of
proportion to the benefits. While the possibility cannot be ruled out
that the entirety of the information covered by the current rule may be
useful or even necessary in some cases to achieve proper disposition of
antitrust license conditions, that does not warrant a generally
applicable rule that all transfer applicants must submit the full scope
of information covered by the current rule. Even in cases where it is
determined that the current scope of information--or even more--is
necessary to dispose of existing antitrust conditions, the Commission
is not powerless to obtain and make available the necessary information
in the absence of the current rule. The Commission has ample power to
require (on its own initiative or at the request of another) whatever
information is deemed necessary or appropriate to carry out its
responsibility to assure appropriate disposition of existing antitrust
license conditions. See, e.g., Atomic Energy Act sections 161b, c, i, o
and 182; 10 CFR 2.204, 50.54(f). The Commission need not retain what it
considers at best to be an overly broad reporting requirement for the
limited purpose of deciding the fate of existing antitrust conditions
in certain post-operating license transfer cases. Indeed, in the only
case of that nature that has occurred recently--the Wolf Creek case
itself--the reporting requirement proved entirely unnecessary when the
applicants agreed that the existing antitrust conditions should apply
to the entire, post-transfer organization, as APPA has acknowledged
(APPA Comments at 9).
Comment: Finally, APPA argues that even if the language of section
105c is sufficiently ambiguous to permit more than one interpretation,
the Commission erred in concluding that its antitrust review authority
would be superfluous.
Response: As was made clear in the Wolf Creek decision, the
Commission has concluded that it has no authority to conduct antitrust
reviews of post-operating license transfers. In the absence of
statutory authority for such reviews, it is irrelevant whether such
reviews would be largely duplicative of others. While the Commission
does not believe the statute is sufficiently ambiguous to result in
agency discretion to conduct such reviews, the Commission's Wolf Creek
decision made clear that if the statute does permit such reviews, it
does not mandate them, and therefore the Commission could cease
performing them for the policy and practical reasons explained therein.
See Wolf Creek at 463-65. Contrary to APPA's assertion that the
Commission relied on statutory and regulatory developments which
postdate the 1970 amendments to the Atomic Energy Act to reach its
conclusion about the scope and intent of those amendments, APPA
Comments at 18-19, the Commission considered those developments not in
interpreting its statutory authority but rather only in partial support
for what would be an appropriate policy decision to terminate antitrust
reviews of post-operating license transfers if it had statutory
authority to conduct them but was not required to do so. The Commission
recognizes that APPA views the competitive and regulatory climate as
being more hostile to the antitrust interests of it and its members.
But as explained in Wolf Creek, id., there are other antitrust
authorities and forums with far greater antitrust expertise than the
Commission to address potential antitrust problems with proposed
mergers and acquisitions of owners of nuclear power facilities.
Subsequent to the Wolf Creek decision and the publication of the
proposed rule notice, the issue of multijurisdictional merger
notification and review in the United States was addressed in the Final
Report of the International Competition Policy Advisory Committee to
the Attorney General and Assistant Attorney General for Antitrust
(February 28, 2000) (ICPAC Report). As stated therein, ``[t]he majority
of Advisory Committee members believe that the overlapping review in
the United States is more often than not a defect of the U.S. system
and that a more rational or sensible approach would be to give
exclusive federal jurisdiction to determine competition policy and the
competitive consequences of mergers in federally regulated industries
to the DOJ and FTC.'' ICPAC Report at 143. In a discussion of the cost
implications of multiple reviews remarkably applicable to those
conducted of NRC licensees
[[Page 44657]]
and applicants for post-operating license transfers, the ICPAC Report
states:
From an industry participant's perspective, in theory, such
costs might include the uncertainty generated when multiple entities
possess the authority to review the competitive effects of a
transaction or practice, but reach differing conclusions on the
issue; the increased transaction costs flowing from the need to
defend a proposed transaction before multiple agencies; and the
uncertainty created by agencies' different time frames for review.
From the agencies' perspective, agencies suffer when the duplicative
expenditure of resources inherent in concurrent jurisdiction creates
an inefficient allocation of scarce resources, particularly when the
specialized agency is not bound by the recommendations of the
competition agencies with respect to an assessment of competitive
effects. Further inefficiencies (and perhaps bad policy) can be
created when one agency has the ultimate authority to make decisions
that fall within another agency's area of comparative advantage.
Id. at 145-46. One expert indicated that the ``sector regulators'' have
a long way to go before they can approximate the skills of the
antitrust agencies. Addressing the FCC and FERC, this expert said that
``the antitrust agencies remain decidedly preeminent in their capacity
to examine competition policy questions in the communications and
energy sectors. Only significant increases in resources and experience
would enable the FCC and FERC to match the skills of the DOJ and FTC in
this field.'' Id. at 153 n.174, citing Kovacic Submission, at 24.
For the similar reasons stated in Wolf Creek and in the proposed
rule notice, the Commission has decided that its scarce resources
should be focused on its core mission of protecting the public health,
safety and environment and the common defense and security. This is not
to say that the Commission would ignore those who stand to suffer
antitrust injury as a result of an operating license transfer involving
existing antitrust conditions. As the Commission made clear in Wolf
Creek, they will be heard and their views fully considered. But
retaining a generic, ``one size fits all'' reporting requirement is not
the only way to fulfill that responsibility, and the Commission will
fulfill that responsibility with other, more narrowly crafted means.
Comment: CAN believes that the Commission's proposed rule
unlawfully changes the substance of the Atomic Energy Act and should be
withdrawn in favor of the NRC's seeking legislative changes from
Congress.
Response: The Commission has not changed the ``substance'' of the
Atomic Energy Act but instead has sought to conform its rules and
practices to the authority actually granted it by the Act. The very
purpose of the Commission's careful consideration of its antitrust
review authority, based on the views of the parties to the Wolf Creek
case, the amicus briefs filed therein at the Commission's invitation,
and the commenters in this rulemaking, is to ensure that its practices
and rules will conform to the Act, not depart from it or ``change'' its
substance. CAN provides no discussion or statutory analysis to support
its position that the Commission's decision in the Wolf Creek case and
this rulemaking are inconsistent with the antitrust authority actually
granted by Congress in the Act. CAN merely asserts that the NRC is
``attempting to alter a federal statute by agency rulemaking.'' To the
contrary, the Wolf Creek decision and this rulemaking will achieve
adherence to the limited antitrust authority provided by the Act. While
the Commission agrees with CAN that not acting in accordance with a
clear statutory mandate would be a breach of its responsibility, the
Commission is equally mindful that it also would be irresponsible to
act beyond the scope of its statutory authority. That is precisely what
the Commission decided in the Wolf Creek case about its past practice
of performing antitrust reviews of post-operating license transfers,
and why that practice must cease.
Comment: CAN asserts that the proposed rule would create regulatory
gaps in the NRC's approval of highly dangerous activities, citing
licensees' financial obligations, cost cutting by nuclear power plant
owners in the competitive environment, potentially serious accidents
triggered by overtime patterns, foreign ownership of nuclear power
plants, and increased regulatory burdens on the NRC resulting in an
inability to inspect large-scale licensees for health and safety
violations.
Response: This rule will not result in any gaps in the Commission's
regulation of its licensees to ensure adequate protection of the public
health and safety. This rule, which is narrowly confined to relieving
certain applicants of filing antitrust information, will not change one
iota the Commission's review of proposed license transfers for all
other purposes, such as operational safety, foreign ownership,
financial qualifications, and for every other purpose that such reviews
are conducted. Commission reviews and oversight in those and all other
areas of Commission responsibility will continue unabated and are
unaffected by this rule. Neither will this rule affect in any way the
Commission's inspection capabilities or practices. In fact, by freeing
up resources no longer utilized for unauthorized and unnecessary
antitrust reviews, the Commission actually will be better able to
perform its core mission of regulating to protect the public health,
safety and environment. As far as the Commission's ability to inspect
large-scale licensees, that too is unaffected by this narrow rule and,
in any event, is being separately addressed as part of the Commission's
oversight of the nuclear power industry's deregulation and
consolidation. There simply is no basis to believe that this rule could
result in any of the consequences identified by CAN.
Comment: CAN asserts that the NRC has failed to evaluate the health
and safety and national security consequences of the proposed rule.
Response: This comment seems to be related to CAN's previous
comment that this rule will result in gaps in the Commission's
regulatory program to protect public health and safety and to review
license transfers to ensure that the prohibition on foreign ownership
of nuclear power plants is met. As explained above, there will be no
such gaps and no health and safety or national security consequences of
the rule.
Comment: CAN asserts that the NRC has failed to evaluate the
environmental impacts of the proposed rule, in violation of NEPA.
Response: For the same reasons that this rule will have no impact
on the Commission's public health and safety responsibilities, it will
have no environmental impacts. The rule simply relieves some applicants
of the need to submit antitrust information for a review which no
longer will be conducted and in no way affects the Commission's
environmental obligations or those of its licensees. The Commission has
fully complied with the National Environmental Policy Act of 1969, as
amended, (NEPA) in promulgating this rule. The proposed rule stated the
Commission's determination that this rule, if adopted, falls within the
categorical exclusions in 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 (64 FR 59671, 59674). No comments were
received which disagreed with that determination. CAN's comments do not
address that determination but simply assert that the Commission has
failed to evaluate the environmental impacts of the rule in violation
of NEPA. As stated below, the Commission adheres to that determination.
[[Page 44658]]
IV. Summary of Final Revisions
This final rule, which is identical to the proposed rule, makes
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
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.\2\
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\2\ 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.\3\ 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 amended regulations specify 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'' has been inserted to modify ``operating license'' in
appropriate locations and the word ``application'' has been 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,'' similarly is amended and
clarified and a new definition is 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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\3\ 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, a combined operating
license that has the attributes of both a CP and OL are issued 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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V. 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
were made in the proposed revisions to improve the organization and
readability of the existing language of paragraphs being revised. No
comments were received on these types of changes and they are not
discussed further in this notice.
VI. Voluntary Consensus Standards
The National Technology Transfer and Advancement Act of 1995, Pub.
L. 104-113, requires that Federal agencies use technical standards that
are developed or adopted by voluntary consensus standards bodies unless
the use of such a standard is inconsistent with applicable law or
otherwise impractical. In this final rule, the NRC is eliminating the
submission of antitrust information in connection with post-operating
license applications for transfers of facility operating licenses. This
rule does not constitute the establishment of a standard that
establishes generally-applicable requirements.
VII. 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 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.
VIII. Paperwork Reduction Act Statement
This final 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.
IX. 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.
X. Regulatory Analysis
These 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 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 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 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 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
[[Page 44659]]
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
revisions would result in cost savings to certain applicants, with no
additional costs or burdens on anyone, this option was chosen.
XI. 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 will not have a
significant economic impact on a substantial number of small entities
that are subject to the requirements of the rule. This 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
rule does not subject any entities to any additional requirements, nor
does it require any additional information from any entity. Instead,
the rule clarifies that certain information is not required to be
submitted in connection with applications for post-operating license
transfers.
XII. Backfit Analysis
The NRC has determined that the backfit rule, 10 CFR 50.109, does
not apply to this 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 rule eliminates the need for certain
applicants to submit antitrust information with their applications.
XIII. Small Business Regulatory Enforcement Fairness Act
In accordance with the Small Business Regulatory Enforcement
Fairness Act of 1996, the NRC has determined that this action is not a
major rule and has verified this determination with the Office of
Information and Regulatory Affairs, Office of Management and Budget.
XIV. Final Rule
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 adopting the
following amendments to 10 CFR parts 2 and 50.
PART 2--RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS
1. The authority citation 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
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
[[Page 44660]]
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 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.
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 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.
* * * * *
[[Page 44661]]
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 13th day of July, 2000.
For the Nuclear Regulatory Commission.
Annette Vietti-Cook,
Secretary of the Commission.
[FR Doc. 00-18250 Filed 7-18-00; 8:45 am]
BILLING CODE 7590-01-P
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