ML19209D167
| ML19209D167 | |
| Person / Time | |
|---|---|
| Issue date: | 08/02/1979 |
| From: | Harold Denton Office of Nuclear Reactor Regulation |
| To: | |
| References | |
| REF-10CFR9.7 SECY-79-468, NUDOCS 7910190484 | |
| Download: ML19209D167 (20) | |
Text
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UNITED STATES NUCLEAR REGULATORY COMMISSION SECY-79-468 Aucust 2, 1979 WASHINGTON, D. C. 20b55 CONSENT CALENDAR ITEM For:
The Comissioners From:
Harold R. Centon, Director Office of Nuclear Reactor Regulation Thru:
Executive Director for Operations hD'
Subject:
AMEN 0MENTS TO PARTS 2 AND 50 CONCERNING ANTITRUST INFORMATION REQUIRED IN CERTAIN CASES Purcose:
To obtain Ccmission approval of publication of a notice of final rule that changes the requirements for submission of antitrust information in certain instances and that clarifies the requirement for antitrust review of applications for licenses for class 103 (commercial) facilities other than power reactors.
Catecory:
This paper concerns a minor policy matter.
Decision C ri teri a:
(1)
Implementation of antitrust review requirements in section 105 of the Atomic Energy Act of 1954, as amended.
(2)
Increased efficiency in the licensing process.
(3)
Reduced burdens imposed upon licence applicants without affecting protection of competitive environment.
Issues:
Issue 1:
Should the Comission publish as a final rule an amendment :o 5 50.33a of Part 50 to provide that certain "de minimis" participants in a proposed nuclear pcwer reactor would have to submit none (or only part, depending on an applicant's size) of the
Contact:
Argil Tealston Ext. 192-8339
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' antitrust information requested by the Attorney General unless specifically requested by the Com-mission? If 1 50.33a is amended as indicated, should "de minimis" limits be established by amount of ownership in the proposed reactor or by applicant size as measured by generating capacity?
Issue 2: Should$32.101(a)and50.33abeamended to clarify the requirement for antitrust review of applications for licenses for class 103 (commercial) facilities?
Backaround:
Issue 1: On January 27, 1978, the staff sent to the Commission a paper (SECY-78-59) that described and evaluated the Staff's recommendation for reducing or eliminating, for "de minimis" participants, the antitrust information currently required to be submitted by all applicants for nuclear power plant licenses.
In SECY-78-59, the staff recommended that 5 50.33a of Part 50 be amended to provide that:
(1)A participant having an ownership share of the pro-posed nuclear power reactor that is 20 MW(e) or less would not have to submit any information requested by the Attorney General unless specifically requested 9y the Commission; (2) A participant having an ownership share of the proposed reactor that is greater than 20 MW(e) but no more than 80 MW(e) would initially have to submit only the information required by Question 9 of the information requested by the At+wrney General.
Such a participant would have to submit the information required in any or all of the other questions if specifically requested by the Commission; (3) A participant having an ownership share of the proposed reactor that is greater than 80 MW(e) would have to submit all the information presently required by the Attorney General.
The Commission approved this recommendation and caused a notice of proposed rule making to be published in the Federal Register on April 26, 1978 1174 206
. (43 F.R. p. 17830).
is comments were received on the proposals contained in the Federal Register notice.
In a letter dated June 26, 1978, the law firm of LeBoeuf, Lamb, Leiby & MacRae (henceforth abbreviated LeBoeuf) essentially supported the Commission's intent to reduce or eliminate requirements for reporting antitrust information for "de 'sinimis" license applicants.
However, LeBoeuf suggested three modifications to the Commission's proposed rule changes.
Their first modification suggested that the Commission exempt "de minimis" entities from the antitrust review completely rather than merely exempt them from the requirement to submit antitrust information.
LeBoeuf's reasons for their first modification are threefold.
First, the Commission has the authority to exempt such entities.
Second, antitrust review is required only for " application [s] for a license to construct or ooerate a facility."
(Atomic Energy Act,l105(c)T2))(emphasisadded). An application from such a utility could be construed as one seeking authorization for ownership -- not construction or operation -- and therefore outside the scope of i 105(c)(2).
Third, completely exempting "de minimis" entities from antitrust review is a more logical approach than merely eliminating the reporting requirement.
The staff disagrees with LeBoeuf's first modification to the proposed rule making. Although the staff recognizes that it is unlikely that "de minimis" entities will ever present antitrust problems, scme problems could arise.
For such cases, the Commission should retain its authority to perform an antitrust review.
Second, the staff interprets (as does LeBoeuf) the ALAB decision in Public Service Comoany of Indiana, Inc. to mean that all co-owners of iiuclear facilities must be co-applicants.
(Marble Hill Nuclear Generating Station, Units 1 and 2)
ALAB-459, 7 NRC (February 16, 1978) (slip op.
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N 4
at36-42). As such, they are considered applicants for licenses to construct or operate nuclear facilities and are thus subject to NRC antitrust review, no matter to what pre.tical extent such entities engage in the actual et c~uction or coeration of such facilities. Let auf's logic could be extended to exclude all entities, no matter how large, if they deferred construction and operation of the facility to another applicant.
Such an argument would clearly be contrary to NRC's responsibilities in the antitrust area.
Thus, the staff recomends implementing the final rule as proposed in SECY-78-59 without exempting small applicants from antitrust review.
LeBoeuf's second suggested modification to NRC's proposed rule concerns how the "de minimis" level should be determined.
In SECY-78-59, the staff recomended that "de minimis" levels should be determined on the basis of a utility's entitlement, based on its ownership of the proposed nuclear facility, to electrical output from that facility.
As indicated earlier, the staff proposed limits of 20 MW(e) and 80 ME(e) for elimination or partial elimination of reporting requirements, respectively.
Alternatively, LeBoeuf has suggested that "de minimis" levels be based on the generating capacity of an applicant. Using generating capacity would provide a more direct measurement of the relative size, and thus competitive impact, of an applicant.
LeBoeuf recommends that an applicant whose generating capacit at the time of application does not exceed 200 MW(e) y should be exempted from filing antitrust information unless additional responses are specifically requested by staff. An applicant whose generating capacity at the time of application exceeds 200 MW(e) but does not exceed 1400 MW(e) would be required to file answers only to Question 9 of Appendix L unless specifically requested to file additional respcnses to the other questions.
Such levels of generating capacity correspond, respectively, to approximately the 200 and 100 largest electric utilities in the country.
These were approximately t% limits discussed by the staff in SECY-78-59 when it fo:.nd that the il74 208
,s.
hundredth 1 argest u*ility would typhily add increments of 80 MW(e) in its generating capac
, d that the two-hundredth largest utility woulo
' ally add increments of 20 MW(e) in its gener
' capacity.
The staff s evaluated LeBoeuf's sro 'd modifiestion and agrees that it is a more straiguc-torward approach to determining "de minimis" limits because of its direct relationship to utility size and, thus, probable competitive impact. Further, LeBoeuf argues that its approach would tend to reduce instances of relatively large utilities buying, through plant ownership, small entitlements to nuclear capacity that would exclude them from NRC's antitrust review when they otherwise would have been included. The reverse situation is also true -- i.e., that relatively small utilities buying relatively large encitlements of nuclear capacity would be unnecessarily subject to NRC's antitrust review.
By extension, LeBoeuf's approach would also eliminate the problem of how to treat equitably an applicant who proposes to own a "de minimis" percentage of a multiple-unit facility whose start-up would be phased over several years.
It could be argued that such an applicant's MW(e) entitlement from all units in the facility should be added.
This could subject an app'.fcant to a full antitrust review, even though, if each unit were applied for separately, such an applicant would be clearly considered "de minimis."
The staff notes two problems with LeBoeuf's second modification.
The first is that a utility may rank in the too 100 utilities in kilowatt-hour sales but may rank lower in generating capacity either because it buys much of its requirements wholesale, or more likely, because it is affiliated through corporate ties with purely generating, as opposed to distribution, companies.
This problem can be solved easily enough, however, by requiring answers to any remaining questions in Appendix L if it appears to the staff that such answers are necessary.
The second problem is that, as overall generating capacity grows in the 4
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. United States over time, more and more utilities will be potentially subject to NRC antitrust review as their generating capacities reach and then exceed 200 MW(e) or 1400 MW(e).
To prevent this from happening, NRC's generating capacity limits may have to be revised occasionally to reflect appropriate "de minimis" levels for antitrust review.
LeBoeuf's third modification suggests an editorial change in Appendix L that would refer to the revisions being implemented in 1 50.33a.
The staff agrees with LeBoeuf's suggestion and has incorporated it into the final rule.
The staff solicited comments from the Department of Justice on LeBoeuf's recommendations and Justice responded by letter dated March 5, 1979.
Justice opposes LeBoeuf's suggestion to eliminate entirely NRC's antitrust review for "de minimis" applicants for the same reason the staff does.
Justice has no objection to measuring "de minimis" participation on the basis of utility generating capacity rather than electricity entitlements through ownership.
Because of the Justice Department's agreement and because the staff accepts LeBouef's general reasoning we recommend implementing a final rule that incorporates measuring "de minimis" participation by an applicant's electric generating capacity.
Issue 2: No substantive comments wgpe received on Issue 2 regarding the amendment of 55 2.101(a) and 50.33a to clarify that the antitrust review associated with construction permit applications for uranium enrichment facilities and fuel reprecessing plants may also call for submission of information by the applicant.
The staff recommends that these amendments be implemented as propcsed.
A second set of comments was received from Richard S. Salzman, a member of the Atomic Safety and Licensing Appeal panel.
He recommends redrafting f 2.101(a) as part of the president's program to write more understandable regulations.
Although we support such goals, to rewrite a regulation in isolation may tend to confuse rather than to enlighten the reader.
The staff recommends against adopting Mr. Salzmt.n's 1174 210
. proposed language changes now, but suggests deferring such changes until a Commission-wide effort to rewrite its regulations occurs.
This action will require no new resources.
Recommendation:
The Commission:
a.
Approve publication of the notice of final rule making in Enclosure "A".
b.
Note 1.
No environmental impact statement is required because the revised regulations will have no significant impact on the quality of the human environment; 2.
Because this rule making action reduces the burden on the resources of both the NRC staff and certain applicants without increasing the burden on anyone else, good cause exists for omitting a value/im-pact analysis; 3.
The House Subcommittee on Energy and the Environ-ment, the House Subcommittee on Energy and Power, and the Senate Subcommittee on Nuclear Regulation & the House Ne$ra
[N'ibnkfohu 5;
or-4.
The Office of Public Affairs has recommended that no Public Announcement be issued because of the minor nature of the proposed amendment.
Coordination:
The Office of the Executive Legal Director has no legal objection and the Office of Nuclear Material Safety and Safeguards concurs in the recommendations of this paper.
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. Scheduling:
See information below.
Haro d
. Den on, Director Office of Nuclear Reactor Regulation
Enclosures:
"A" - Notice of Effective Rule "B" - Draft Letters to the House Subcommittee on Energy and the Environment, the House Subcommittee on Energy and Power, and the Senate Subcommittee on Nuclear Regulation Commissioners' comments or consent should be provided directly to the Office of the Secretary by c.o.b. Thursday, Auaust 16, 1979.
Comnission Staff Office comments, if any, should be submitted to the Commissioners NLT August 10, 1979, with an information copy to the Office of the Secretary.
If the paper is of such a nature that it requires additional time for analytical review and comment, the Commissioners and the Secretariat should be apprised of when comments may be expected.
This paper is tentatively scheduled for affirmation at an Open Meeting during the Week of August 27, 1979.
Please refer to the appropriate Weekly Commission Schedule, when published, for a specific date and time.
DISTRIBUTION Commissioners Commission Staff Offices txec Dir for Operations ACRS Secretariat i174 212
Enclosure "A" U. S. NUCLEAR REGULATORY COMMISSION
[10 CFR PARTS 2 AND 50]
RULES OF PRACTICE LICENSING OF PRODUCTION AND UTILIZATION FACILITIES Antitrust Review Procedures AGENCY:
U. S. Nuclear Regulatory Commission ACTION:
Final Rule
SUMMARY
The Nuclear Regulatory Comission is hereby amending current regulations to reduce or eliminate the requirements for submission of antitrust information in certain "de minimis" instances and to clarify requirements for antitrust review of applications for licenses for class 103 facilities (ccmmercial facilities) other than power reactors.
EFFECTIVE DATE:
[date of publication in F.R.]
FOR FURTHER INFORMATION CONTACT:
Mr. Argil Toalston, Office of Nuclear Reactor Regulation, U. S. Nuclear Regulatory Commission, Washington, DC 20555, telephone 301-492-8339.
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. SUPPLEMENTAL INFORMATION:
Each applicant for a license for a production or utilization facility under section 103 of the Atomic Energy Act of 1954, as amended, is required by ! 50.33a of 10 CFR Part 50, Licensing of Production and Utilization Facilities, to respond to a series of questions provided by the Attorney General of the United States in connect'on with the review of antitrust matters pursuant to section 105c of the Atomic Energy Act of 1954, as amended.
In the case of a nuclear power reactor, several utilities may join in a single application for a license.
Some of the participants will hold very small shares of the facility and will be entitled to only small percentages of the total output of electricity from the facility.
Generally, participants holding a small share entitling them to a small percentage of the electricity generated by the facility tend to be small entities not normally having a significant competitive impact in their general area.
Consequently, on April 26, 1978, the Commission caused to be published in the Federal Register (43 F.R. p.178301) a notic. of proposed rule making waiving the requirement that "de minimis" participants in nuclear power plants submit antitrust information specified in Part 50, unless specifically requested by the Ccmmission to do so.
Appendix "A" 1174 214
. The NRC received cements from the law firm of LeBoeuf, Lamb, Leiby &
MacRae (LeBoeuf) addressing the Federal Register Notice. Based on these coments, the Comission has adopted LeBoeuf's suggestion that threshold levels for determining whether an electric utility may be considered "de, minimis" for antitrust purposes should be based on the generating capacity of the applicant at the time of its application rather than its entitlement to electrical output from the facility. Using generating capacity woulu provide a more direct measurement of the relative size, and thus competitive impact, of an applicant.
Thus, the Commission has concluded that participants whose generating capacity at the time of application is 200 MW(e) or less are not required to submit information specified in Appendix L of part 50, unless specifically requested by the Comission to do so.
The Comission notes that the limit of 200 MW(e) of generating capacity would currently require approximately the 200 largest electric utilities in the United States to respond to all or a portion of NRC's antitrust questions.
The Commission believes that utilities smaller than these generally would have a negligible effect on competition. However, under certain circumstances these smaller systems could also be required to submit the information set forth in Appendix L of Part 50 if possible antitrust pruolems become apparent.
The Comission has also concluded that participants whose generating capacity at the time of application is more than 200 MW(e) but not more Appendix "A" 1174 215
. than 1400 MW(e) are required to respond only to Question 9 in Appendix L of Part 50. Question 9 deals with neighboring, non-affiliated electric.
utility systems with peak loads smaller than applicant's.
Such applicants could, of course, subsequently be specifically requested by the Comission to submit all the information required by 3 50.33a.
The Commission notes that the limit of 1400 MW(e) of generating capacity would currently require approximately the 100 largest utilities in the United States to respond to all of the antitrust questions.
These proposed changes would reduce the burden of preparing antitrust-related data on small pplicants, while at the same time maintaining an adequate standard of antitr'Jst review.
The Antitrust Division of the Department of Justice has cencurred in the Commission's proposed action.
Other commercial production and utilization facilities in addition to nuclear power reactors are subject to antitrust review requirements.
Amendments are proposed to Parts 2 and 50 in order to clarify that the antitrust review associated with construction permi applications for uranium enrichment facilities and fuel reprocessing plants may also call for submission of information by the applicant.
Appendix "A" 1174 216
. Because this rule making action reduces the burden on the resources of both the NRC staff and certain applicants without increasing the burden on anyone else, good cause exists for omitting a value/ impact analysis.
Pursuant to the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1974 and section 553 of title 5 of the United States Code, notice is hereby given that the following amendments to Title 10, Chapter 1, Code of Federal Regulations, Parts 2 and 50, have been adopted.
1.
Paragraph 2.101(a) of 10 CFR Part 2 is amended to read a:
follows:
5.2.101 Filing of application.
(a)(5) An applicant for a gonstruction pennit for a production or utilization facility which is subject to i Sl.5(a) of this chapter, and is of the type specified in 5550.21(b)(2)or(3)or50.22ofthis chapter or is a testing facility may submit the information required of applicants by Part 50 of this chapter in three parts.
One part shall be Appendix "A"
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. accompanied by the information required by $ 50.30(f) of this chapter, another part shall include any information required by 11 50.34(a) and, if applicable, 50.34a of this chapter and a third part shall include any information required by 1 50.33a. One part may precede or follow other parts by no longer than six (6) months except that the part including information required by 3 50.33a shall be submitted in accordance with time periods specified in 5 50.33c.
If an applicant for a construction permit for a nuclear power reactor is exempted pursuant to i 50.33a of this chapter from filing the information described by ! 50.33a of this chaoter, such applicant shall file with the first oart of its application an affidavit setting forth facts as to the electrical generating capacity of its system.
If it is determined that any one of the parts as described above is incomplete and not acceptable for processing, the Director of Nuclear Reactor Regulation or Director of Nuclear Material Safety and Safeguards, as appropriate, will infonn the applicant of this determination and the respects in which the document is deficient.
Such a determination of completeness will generally be made within a period of thirty (30) days.
Except for the part including information required by I 50.33a, whichever.part is filed first shall also include the fee required by 55 50.30(e) and 170.21 of this chapter and the information required by il 50.33, 50.34(a)(1), and 50.37 of this chapter.
The Director of Appendix "A" 1174 218
. Nuclear Reactor Regulation or Director of Nuclear Material Safety and Safeguards, as appropriate, will accept for docketing an application for a construction pennit for a production or utilization facility which is subject to 1 Sl.5(a) of this chapter, and is of the type specified in 35 50.21(b)(2) or (3) or 50.22 of this chapter or is a testing facility where one part of the application as described above is complete and conforms to the requirements of Part 50 of this chapter. Additional parts will be docketed upon a determination by the Director of Nuclear Reactor Regulation or Director of Nuclear Material Safety and Safeguards, as appropriate, t' tat they are compl,ete.
In ! 50.33a of 10 CFR Part 50, paragraph (a) is amended and a 2.
new paragraph (e) is added to read as follows:
5 50.33a Information [ required] reauested by the Attorney General for antitrust review.
(a)(1) An applicant for a construction permit for a nuclear power reactor shall submit the information requested by the Attorney General as described in Appendix L [to this part], if the application is for a class 103 permit and if the applicant has electrical ceneratino cacacity exceedina 1400 MW(e).
Appendix "A"
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. (2) An applicant for a construction permit for a nuclear power reactor shall submit the information reauested by the Attorney General as described in paraoraph 9 cf Section II of Accendix L if the applicant has' electrical generating capar xceedina 200 MW(e) but no more than 1400 MW(e).
Upon request of the Commission, the aoplicant shall furnish the other information described in Apoendix L.
(3) An apolicant for a construction permit for a nuclear power reactor is not reouired to submit the information described in Apoendix L unless specifically requested by the Commission to provide the information, if the applicant has electrical generating capacity of 200 MW(e) or less.
(4) [This] The information described in paracraohs (a)(1) and (2) of this section shall be submitted as a separate document prior to any other part of the license application as provided in paragraph (b) and in accordance with 3 2.101 of this chapter.
(e) Any person who acolies for a class 103 construction permit for a uranium enrichment or fuel reprocessino olant shall submit such in-fermation as may be requested by the Attorney General for antitrust review, as a separate document as soon as cossible and in accordance with 5 2.101 of this chaoter.
Appendix "A"
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.g.
3.
In Appendix L of 10 CFR Part 50, paragraph I.1. is amended to read as follows:
APPENDIX L - INFORMATION REQUESTED BY THE ATTORNEY GENERAL FOR ANTITRUST REVIEW FACILITY LICENSE APPLICATIONS I.
Definitions 1.
" Applicant" means the entity applying for authority to construct or 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 acolicable exclusions contained in 5 50.33a, should set forth separate responses to each item herein.
(Secs.103,105,161, Pub. L.83-703, 84-1006, 68 Stat. 939, 938, 948, 70 Stat.1069, 84 Stat.1472 (12 U.S.C. 2133, 2135, 2201); Sec. 201, Pub. L.93-438, 88 Stat.1242 (42 U.S.C. 5841))
Dated at this day of FOR THE NUCLEAR REGULATORY COMMISSION Samuel C. Chilk Secretary of the Commission Appendix
"_A"
\\\\] A
Enclosure "B" Draft Lette~ to the Honorable Morris K. Udall The Honorable Morris K. Udall, Chairman Subcomittee on Energy and the Environment Committee on Interior and Insular Affairs United States House of Representatives Washington, DC 20515
Dear Mr. Chairman:
Enclosed for the infonnation of the Subecmmittee on Energy and the Environment is a Notice of Final Rule Making to amend NRC regulations which changes the recuirements for submission of antitrust information in certain instances and which clarifies Parts 2 and 50 as to requirements for antitrust review of applications for licenses for class 103 facilities (commercial facilities) other than power reactors.
The amended rule provides that applicants for licenses for nuclear power reactors whose total electric generating capacity at time of application is 200 MW(e) or less would be exempt from providing any antitrust information as stipulated in Appendix L, Part 50 of Title 10 of the Code of Federal Regulations, except in those instances in which the Ccmmission would specifically request the information.
The Cerm11ssion notes that the 200 MW(e) generating capacity limit currently includes approximately the 200 largest utilities in the United States.
The Cermiissicn believes that utilities smaller than these are so small as to have negligible effects on competitien except under extraordinary circumstances.
Appendix "B"
\\\\]4 Applicants whose total electrical generating capacity at time of application is more than 200 MW(e) but no more than 1400 MW(e) would be required only to provide information in response to question 9 of Appendi( L of Part 50, which relates to non-affiliated electric utility systems in areas adjacent to the applicant's.
The Commission could request such applicants to furnish additional infomation if it were deemed advisable.
The Commission notes that the 1400 MW(e) ownership limit currently includes approximately the 100 largest utilities in the United States.
These proposed changes would reduce the burden of preparing sntitrust-related data on small or "de minimis" applicants while at the same time maintaining an adequate standard of antitrust review.
The Antitrust
- Division of the Department of Justice has concurred in the Ccmmission's proposed action.
The Commission also proposes to clarify Parts 2 and 50 as to the require.-
ment for antitrust review of applications for licenses for class 103 (commercial) facilities other than power reactors.
The proposed amendments will provide that the antitrust review associated with construction permit Appendix "B"
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, applications for uranium enrichment facilities and fuel reprocessing plants may also cal-for submission of information by applicants.
Sincerely, Harold R. Denton, Director Office of Nuclear Reactor Regulation
Enclosure:
Notice of Final Rule cc:
Rep. Steven Symms Identical Letters sent to:
The Honorable J. D. Dingell, Chairman Subcommittee en Energy and Power Committee on Interstate and Foreign Commerce United States House of Representatives Washington, DC 20515 cc:
Rep. Clarence J. Brown The Honorable Gary Hart, Chairman Subcommittee on Nuclear Regulation Committee on Environment and Public Works United States Senate Washington, OC 20510 cc:
Sen. Alan Simpson The Honorable Toby "offett, Chairman Subcommittee on Environment, Ener:y and Natural Resources Committee on Government Ocerations United States Hcuse of Recresentatives Washincton, D. C.
20515 Appendix "B" cc: Rec. Daul
.1. McCloskey, Jr.
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