ML19312A545
| ML19312A545 | |
| Person / Time | |
|---|---|
| Issue date: | 01/07/1982 |
| From: | Dircks W NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO) |
| To: | |
| Shared Package | |
| ML19312A546 | List: |
| References | |
| REF-10CFR9.7, TASK-RIA, TASK-SE SECY-82-009, SECY-82-9, NUDOCS 8201300348 | |
| Download: ML19312A545 (40) | |
Text
n en nacoq RULEMAKING ISSUE "~*h (Affirmation) ee Q
j The Commissioners b
8 N.
m From:
William J. Dircks Executive Director for Operations
Subject:
AMENDMENTS TO PARTS 1 AND 2 TO IMPLEMENT THE COMMISSION'S DELEGATION OF OL ANTITRUST DETERMINATION TO DIRECTORS OF NRR AND NMSS
Purpose:
To obtain Commission approval of publication of a final rule amending Parts 1 and 2.
Cateaory:
This is a minor policy matter recuiring Commission approval.
Backcround:
On January 19, 1981, the staff recommanded the publica-tion in the Federal Register of proposed rules imple-menting the Commission's delegation of the OL antitrust "significant changes" determination to tne :.: rectors of NRR and NMSS.1/ On February 27, 1981, the Commission approved the action proposed by the staff with minor editorial changes, as suggested by the General Counse' 1/
Pursuant to Section 105c(2) of the Atomic Energy Act of 1954, as amended, 42 U.S.C. 6 2135c(2), the Commission must determine if an Attorney General's antitrust review is advisable on the ground that "signifi-cant changes in the licensee's activities or proposed activities have occurred subsequent to the previous review by the Attorney General and the Commission" at the CP stage.
The Commission delegated this "significant changes" determination to the Director of NRR or NMSS, as appropriate, on September 1?, 1979 (see SECY-79-353). Ti.: Commission also directed the staff to prepare implementing regulations, which were submitted to the Commission in SECY-81-43.
Contact:
Fredric D. Chanania, OELD 492-8689 Argil Toalston, NRR 492-4891 82013o0348 820107 CF SUBJ CF
L The Commissioners in a Memorandum of January 28, 1981.
Subsequently, on March 26, 1981, the proposed rules were published in the Federal Register (46 FR 18747).
Three letters of comment concerning the proposed amendments were received from:
E E. Utley, Executive Vice President, Power Supply and Engineering & Construction, Carolina Power and Light Company; the law finn of LeBoeuf, Lamb. Leiby
& MacRae; and E. E. Van Brunt, Jr., Vice President.
Nuclear Project Management, Arizona Public Service Company (these letters are included as E"losure D).
Discussion:
Briefly, the procedures for implementing the delegation of the "significant changes" determination, as set forth in the Notice of Proposed Rulemaking, entailed the following:
(1) A Federal Register notice, soliciting antitrust information and public comments within 60 days, is published upon receipt cf the applicant's OL antitrust information; (2) The Director of NRR or 7(MSS, as appropriate, deter-mines, after consultation with the Attorney General, whether there have been significant changes (antitrust) in the licensee's activities or proposed activities; (3)
If the Director finds no significant changes, notice of that detemination is published in the Federal Register, with a 60-day period allotted for requests for reevaluation.
(4)
If a request for reevaluation is received and the Director again finds no significant changes have occurred, a Federal Register notice is published and the detennination becomes final after 30 days, unless the Commission exercises sua sponte review.
(5)
If the Director concludes that there have been significant changes, either originally or in response to a request for reevaluation, then the Director forwards a copy of the OL application to the Attorney General for formal adv'ce as to whether issuance of the OL would create or maintain a situation inconsistent with tne antitrust laws.
The following is a summary of the princ pal comments addressing these proposed procedures and of the staff's
~
The Commissioners suggested response to them.
Greater detail on the comments and the staff's analysis is provided in Enclo-sure C.
Please nete that the recommended final rule (Enclosure B) incorporates an expanded version of the following summary as well as other minor editorial and corrective chailges to the rule.
1.
Carolina Power & Licht Company ("CP&L"):
CP&L sug-gested the establishment of a fixed time in whioh the appropriate Director must make the significant changes determination, i.e., 20 days after receipt of comments, if any, from the Attorney General, and a similar reduction (to ten says) in the time allotted for persons to ~. quest reevaluation of the Director's finding when made.
The staff recommends that the appropriate Director be free from such a unifom and short time limit, and that flexibility be retained by not setting any specific time period for the determination to be made.
However, in light of CP&L's arguments, the staff recommends shortening two time periods from 60 to 30 days:
(1) the period in which public comments on OL antitrust matters may be submitted, and (2) the period in which reeval-uation of the Director's finding can be requested.2/
2.
LeBoeuf, Lamb, Leiby & MacRae ("LeBoeuf Lamb"):
LeBoeuf' Lamb proffered two main points--tnat a change in phraseology was necessary to reflect the correct relationship between the OL antitrust information submitted and the OL application, and that NRC consultation with the Attorney General prior to making the significant changes determination should be eliminated.
The staff considers the first point meritorious and has incorporated an appropriate 2_/
CP&L also suggested that tha internal Commission procedures referred to in the Notice of Propesed Rulemaking be published so that licensees and other affected persons might better understand the NRC's activities.
Although the staff has no objection to the publication of the proce-dures, they were intended as interim guidance to be followed until such time as a final rule codifying them was published.
As it seems inappropriate to publish the procedures now that they would, in effect, be supplanted by this final rule, the staff has sent CP&L a copy of the procedures and has included in the Supplementary Information section of the Federal Register Notice publishing the final rule (Enclosure B) a note that the procedures have been and are available in the Commis-sion's Public Document Room.
The Commissioners change in Enclosure B.3/ The staff has not accepted the second point since it is contrary to the Con-gressional intent, specifically expressed in the legislative history on the 1970 amendments to the Atomic Energy Act of 1954, as amended, that such consultation was expected to occur.
3.
Arizona Public Service Company ("APS"): The sug-gestions of APS would have precluded both the sub-mission of public canments to the NRC and the con-sultation between the NRC and the Attorney General prior to making the significant changes determina-tion.
For the reasons discussed above, the latter suggestion was not adopted by the staff in Enclo-sure B.
In addition, the first suggestion was also rejected because of the substantial contribu-tion that public comments can make toward ensuring that the appropriate Director is able to make the most informed and reasoned significant changes determination possible.4/
Recomme iation:
1.
That the Canmission approve publication in the Federal Register of the final rule (Enclosure B).
A comparative text version of the final rule has been included as Enclosure A in order to facilitate review.
2.
Note that:
a.
Comments received in response to the proposed rule are discussed more fully in EncloSJre C, and ?.re thenselves included as Encicsure D.
b.
The appropriate Congressional Com.tittees will be informed of the final rule (oraft letter provided in Enclosure E).
c.
The amendments affect Parts 1 and 2 of the NRC's regulations and do not significantly or 3/
The phrase "sa':.* at portion of an application for a facility oper-ating licen a"
,s been changed to "information responsive to Regulatory Guide 9.3 sue. t r' in connection with an application for a facility operating licen' 4/
APS's final sugsestion favoring post-licensing antitrust review has not been adopted since it is beyond the pirview of this procedural rule ard was not based upon any substantial legal authority or argument.
The Commissioners substantively affect the quality of the human environment or involve unresolved conflicts concerning available resources.
Accordingly, pursuant to 10 CFR 5 51.5(d)(2) and (3), no environmental impact statement, negative declaration or environmental impact appraisal need be prepared.
d.
No public announcement of the final rule will be made, e.
The ACRS is being informed of the final rule.
f.
The final rule contains a statement that the NRC certifies that the amendments will not have a significant economic impact on a sub-stantial number of small entities, pursuant to the Regulatory Flexibility Act of 1980 5 605(b).
g.
The final rule contains a statement that, pursuant to the Paperwork Reduction Act of 1980, the NRC has determined that the amendments do not impose new recordkeeping, information collection, or reporting requirements.
h.
Copies of the final rule will be distributed to applicants, licensees, and other interested persnns by the Office of Administrction.
\\~L William. Dircks Executive Director for Operations
Enclosures:
A.
Comparative Text of Final Rule B.
Final Rule C.
Staff Discussion of Comments D.
Copies of Comments Received E.
Draft letter to Congressional Committees
6 Commissioners' comments or consent should be provided directly to the Office of the Secretary by c.o.b Friday, January 22, 1982.
Commission staff office comments, if any, should be submitted to the Commissioners NLT Friday, January 15, 1982, 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 January 25, 1982.
Please refer to the appropriate weekly Commission Schedule, when published, for a specific date and time.
DISTRIBUTION:
Commissioners Commission Staff Offices EDO ELD ACRS ASLBP ALSAP
g
- _ G ENCLOSURE A
Enclosure A Comparative Text of Final Rule The following comparative text indicates the changes made to the propo ed rule that now appear in the final rule.
Additions are underlined, and deletions are bracketed and crossed out with hyphens.
Corrections in format and to the authority portions in the final rule have not been shown.
PART 1 - STATEMENT OF ORGANIZATION AND GENERAL INFORMATION 1.
The authority citation for Part I reads as follows:
AUTHORITY:
Sec. 161, Pub. L.83-703, 68 Stat. 948 (42 U.S.C. 2201);
secs. 201, 203, 204, 205, and 209, Pub. L.93-438, 88 Stat.1242,1244, 1245, 1246 and 1248 (42 U.S.C. 5841, 5843, 5844, 5845, and 5849); Pub. L.
94-79, 89 Stat. 413; and 5 U.S.C. 552 and 553.
2.
In 6 1.42, paragraph (e) is revised to read as follows:
9 1.42 Office of the Executive Legal Director.
(e)
The Hearing Division also [ Ant 4tewst-94v4s4es) acts as counsel ft' the NRC staff in public administrative proceedings before the Commission, Atomic Safety and Licensing Appeal Boards, Atomic Safety and Licensing Boards, and administrative law judges [3] in matters relating to antitrust aspects of applications for nuclear facility licenses; provides legal
. advice regarding NRC antitrust sonsibilities; and, for operating license antitrust reviews, together with the Antitrust and Economic Analysis [Wt444ty-F4Ramee]BranchoftheOfficeofNuclearReactor Regulation, recommends to the approp iate Office Director (NRR or NMSS) whether or not a finding of significant changes should be made.
3.
In 9 1.61, paragraph (e) is revised to read as follows:
6 1,61 Office of Nuclear Reactnr Regulation.
(e) The Antitrust and Economic Analysis [W4444ty-F4sanee] Branch con-ducts prelicensing reviews of applications for nuclear facilities to assure that issuance of a license will not create or maintain a situation inconsistent with the antitrust laws; for operating license antitrust reviews, together with the Hearing [ Ant 4tFwst] Division of the Office of the Executive Legal Director, recommends to the appropriate Office Director (NRR or NMSS) whether or not a finding of significant changes should be made; [and] is responsible for ascertaining compliance with license conditions pertaining to antitrust matters; analyzes broad engineerina and economic issues in formulating antitrust policy and guidance; and provides specialized technical capabilities in the area of the benefits and costs of power plants and nuclear facilities and need-for-power assessments.
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3
. PART 2 - RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS 1.
The authority citation for Part 2 is revised to read as follows:
AUTHORITY:
Secs.161p and 181, Pub. L.83-703, 68 Stat. 950 and 953 (42 U.S.C. 2201(p) and 2231); sec.191, as amended, Pub. L.87-615, 76 Stat.
409 (42 U.S.C. 2241); sec. 201, as amended, Pub L.93-438, 88 Stat.1242 (4i U.S.C. 5841); Pub. L. 90-23, 81 Stat. 54 (5 U.S.C. 552). unless otherwise noted.
Sections 2.200-2.206 also issued under sec. 186, Pub. L.83-703, 68 Stat. 955 (42 U.S.C. 2236), and sec. 206, Pub. L.93-438, 88 Stat. 1246 (42 U.S.C. 5846).
Sections 2.800-2.808 also issued under 5 U.S.C. 553.
Section 2.809 also issued under 5 U.S.C. 553 and Sec. 29, as amended, Pub. L.85-256, 71 Stat. 579, and Pub. L.95-209, 91 Stat.
1483 (42 U.S.C. 2039).
2.
In 5 2.101, paragraphs (c) and (e) are revised to read as follows:
2.101 Filing of aoplication.
(c)
The notice published in the Federal Register announcing docketin,g
[Feee4pt] of the antitrust information portion of an [part-ef-tke] appli-cation for a facility construction permit [44eense] under section 103 of the Act, except for those applications described in 5 2.101(e) and 5 2.102(d)(2), shall [w444] state that:
4 (3) Any person who wishes to have his views on the antitrust matters of the application considered by the NRC and presented to the Attorney General for consideration should submit such views within sixty (60) days after publication of the notice announcing receipt and docketing of the antitrust information to the U.S. Nuclear Reculatory Commission, Washington, D.C. 20555, Attention:
Chief, Antitrust and Economic Analysis Branch.
(e)(1) Upon receipt of the antitrust [pset4en-ef] information responsive to Reculatorv Guide 9.3 submitted in connection with an application for a facility 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 [w&44] publish in the Federal Register and in appropriate trade journals a " Notice of Receipt of Operating License Antitrust Information." Su-h notice shall
[w444] invite persons to submit within thirty (30) [s4*ty-f 60}] days 2
after publication of the notice comments or infonnation concerning 2
the antitrust aspects of the application to assist the Director in detennining, pursuant to section 105c of the Act, whether significant enanges in the licensee's activities or proposed activities have occurred since the completion of the previous antitrust review in con-nection with the conttruction permit [pweswaRt-le-See%4eP.-H6e-ef-the Aet].
Such notice shall [wi44] 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) [s4xty-(69)] days after publication of the notice to:
U.S. Nuclear Regulatory Commission, Washington, DC 20555, Attention:
Chief, Antitrust and Economic Analysis [Wt444ty-F4R&Ree)
Branch.
(2)
H one Director of Nuclear Reactor Regulation or the Director of Nuclear Material Safety and Safeguards, as appropriate, after review-ing any comments er infomation received in responte to the published notice and any comments or information regardint
!A applicant received from the Attorney General, concludes that there have been no significant
- changes since the completion of the previous antitrust review in con-nection with the construction permit, a finding of no significant changes shall [w444] be published in the Federal Reafster, together with a notice stating that any request for reevaluation of such [prepesed]
finding should be submitted within thirty (30) [s4xty-f69)] days of publication of the notice.
If no requests for reevaluation are received within that time, the [prepesed] finding shall become the NRC's final determination.
Requests for a reevaluation [detem4 Rat 4eR] of the no significant changes determination may [w444] be accepted after the date when the Director's findinc [NRG-detem4 Rat 4eR) becomes final but before the issuance of the OL only if they contain new information, such as infor-nation about [ef] facts or_ [ef] events of antitrust significance that have occurred since that date, or information that could not reasonably have been submitted prior to that date.
. (3)
If, as a result of a reevaluation of the finding described in paragraph (e)(2), it is determined that there have been no significant changes, the Director of Nuclear Reactor Regulation or the Director of Nuclear Material Safety and Safeguards, as appropriate, shall [w444]
deny the request and shall [wil4] publish a notice of finding of no significant changes in the Federal Register.
Such notice and finding shall become-the final NRC decision thirty (30) days after being made and only in the event that the Commission has not exercised sua sponte review.
(4)
If the Director of Nuclear Reactor Regulation or the Directcr of Nuclear Material Safety and Safeguards, as appropriate, concludes that significant changes have occurred since the completion of the antitrust review in connection with the construction permit, then the provisions of i 2.102(d) shall apply.
3.
In 6 2.102, paragraphs (d)(1) and (2) are revised to read as follows:
i 2.102 Administrative review of application.
(d)(1)
Except as provided in subparagraph (2) below, the Director of Nuclear Reactor Regulation or Director of Nuclear Material Safety and Safeguards, as appropriate, will refer and transmit a copy of each docketed application for a construction permit or an operating license for a utilization or production facility under section 103 of the Act to the Attorney General as required by section 105c of the Act.
. (2) The requirements of paragraph (d)(1) do not apply to an application for an operating license for a production or utilization facility under section 103 of the Act for which the construction permit was also issued under section 103, unless the Director of Nuclear Reactor Regulation or the Director of Nuclear Material Safety and Safeguards, as appropriate, determines, after consultation with the Attorney General and in accord-ance with 6 2.101(e), that 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 of the Attorney General and the Commission under section 105c of the Act in connection with the construction penait.
In i 2.104, paragraph (d)(3) is revised to read as follows:II 4.
5 2.104 Notice of Hearing.
(d)
(3) That [The] matters of radiological health ard safety and canmon defense and security, and matters raised under tne National Environmental Policy Act of 1969, will be considered at another hearing if otherwise recuired or ordered to be hald, for which a notice will be published pur-suant to paragraphs (a) and (b) of this section, unless otherwise authorized by the Commission.
1/
The newly-added language in paragraph (d)(3) was not contained in the proposed rule, but is only a clarifying change to an internal rule of practice and procedure and removes an arguable ambiguity in that paragraph.
, APPENDIX A - STATEMENT OF GENERAL POLICY AND PROCEDURE:
CONDUCT OF PROCEEDINGS FOR THE ISSUANCE OF CONSTRUCTION PERMITS AND OPERATING LICENSES FOR PRODUCTION AND UTILIZATION FACILITIES FOR WHICH A HEARING IS REQUIRED UNDER SECTION 189 0F THE ATOMIC ENERGY ACT OF 1954, AS AMENDED 1.
The authority citation for Appendix A is revised to read as follows:
AUTHORITY:
Sec. 191, 80 Stat. 386 (42 U.S.C. 2241); sec. 161, Pub. L.83-703, 68 Stat. 948 (42 U.S.C. 2201); sec. 201, as amended, Pub. L.93-438, 88 Stat. 1243, Pub. L. 94-79, 89 Stat. 413 (42 U.S.C. 5841);
Sec. 6, Pub. L.91-563, 84 Stat. 1472 (42 U.S.C. 2135).
2.
In Appendix A to Part 2, paragraph X(a) is revised, paragraph X(b) is redesignated as pa.ragraph X(b)(1) and is revised, new paragraphs X(b)(2)-X(b)(5) are added, and paragraph X(c) is revised to read as follows:
X.
PROCEEDINGS FOR THE CONSIDERATION OF ANTITRUST ASPECTS OF FACILITY LICENSE APPLICATIONS (a)
Under the Atomic energy Act of 1954, as amended, the Commission is required, with respect to applications for construction permits or oper-ating licenses for proJuction ani utilization facilities for industrial or commercial purposes licensed under section 103, which include power reactors subject to the mandatory hearing requirements of section 189a of the Act, to follaw procedures for antitrust review in section 105c of the Act.
This section outlines the procedures used by the Commission to implement that section.
9_
(b)(1) When the antitrust information portion of an application is received and docketed for a _ facility construction permit [er-aR-epeFat4R$-446eRee fee-a-fae444ty] under section 103 of the Act, which is subject to anti-trust review under section 105_c_ [+s-rese4ved], the notice of receipt of the antitrust information [ app 44 eat 4eR] published in the Federal Reaister shall [w444] state that persons who wish to have their views on the anti-trust aspects of the application considered by the NRC and presented to tne Attorney General for consideration shall submit sucn views to the Commissien within sixty (60) days after publication of the notice.
(2)
Upon receipt of the antitrust information responsive to Reculatory Guide 9.3 submitted in contiection with [peet4eR-ef] an application for a facility 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 [w444] publish in the Federal Reaister and in appropriate trade journals a " Notice of Receipt of Operating Licerse
[ App 44 eat 4eR-aRd-Request-fer] Antitrust Information."
Such notice shall
[wi44] invite persons to submit, within thirty (30) [s4*4y-f69-)] days after publication of the notice comments or information concerning antitrust 2
aspects of the application to assist the Director in detemining, pursuant to section 105c of the Act, whether significant changes in the licunsee's activities or proposed activities have occurred since completion of the previous antitrust review in connection with the construction permit application [pHPSWdRt-le-Seft4eR-iOEe-ef-the-AEt).
Such notice shall
[w444] also state that persons who wish to have their views on the anti-trust aspects of the application considered by the NRC and presented to
. the Attorney General for consideration should submit such views within thirty (30) [s4xty-f 69)] days after publication of the notice to:
U.S.
Nuclear Regulatory Commission, Washington, DC 20555, Attention:
- Chief, Antitrust and Economic Analysis [Wt444ty-f4RaRee] Branen.
(3)
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, ceraludes 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 sig-nificant changes shall [w444] be published in the Federal Register, together with a notice stating that any request for reevaluation of such
[prepesed] finding should be submitted within thirty (30) [s4*ty-f69)]
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 [dete minat4en] of the no_
significant changes determination shall [w444] be accepted after the date when the Director's finding [NRG-detem4 Rat 4en] becomes final but before the issuance of the OL only if they contain new information, such as information about [ef] facts or events of antitrust significance that have occurred since that date, or intor: nation that could not reasonably have been submitted prior to that date.
. (4)
If, as a result of the reevaluation of the finding described above, it is determined that there have been no significant changes, the Director of Nuclear Reactor Regulation or Director of Nuclear Material Safety and Safeguards, as appropriate, shall [w444] deny the request and shall [w&44] publish a notice of finding of no significant changes in the Federal Register.
Such notice and finding shall become the final NRC decision thirty (30) days after being made and only in the event that the Commission has not exercised sua sponte review.
(5)
If the Director of Nuclear Reactor Regulation or the Director of Nuclear Material Safety and Safeguards, as appropriate, concludes that significant changes have occurred since the completion of the previous antitrust review in connection with the construction permit, then the provisions of Q 2.102(d) shall apply.
(c)(1)
Except as provided in subparagraph (2) below, the Director of Nuclear Reactor Regulation or Director of Nuclear Material Safety and Safeguards, as appropriate, shall [w444] refer and transmit a copy of each application for a construction permit or an operating license for a utilization or production facility under section 103 of the Act, to the Attorney General as required by section 105c of the Act.
Under that section, the Attorney General will, within a reasonable time, but in no event to exceed 180 days after receipt, render such advice to the Commission as n [he] determined [s] to be appropriate in regard to the finding to be made by the Commission as to whether the activities under
. the license would create or maintain a situation inconsistent with the antitrust laws specified in subsection 1051[e] cf the Act.
(2) The review by the Attorney Gineral described in subparaoraph (1) above [Sweh-rev4ew] is not required for applications for operating licenses for production or utilization facilities under section 103 of the Act for which the' construction permit was also issued under section 103, unless the Director of Nuclear Reactor Regulation or the Director of Nuclear Material Safety and Safeguards, as appropriate, determines, after consultation with the Attorney General and in accordance with
@ 2.101(e), that such review is advisable on the ground that signifi-cant changes in the licensee's activities or proposed activities have occurred subsequent to the previous review by the Attorney General and by the Commission under section 105c of the Act in connection with the construction permit.
FOR THE NUCLEAR REGULATORY COMMISSION Samuel Chilk Secretary of the Commission Dated at Bethesda, Maryland, this day of
, 1981.
e 6
ENCLOSURE B
Enclosure B NUCLEAR REGULATORY COMMISSION 10 CFR Parts 1 and 2 Implementation of Commission's Dele;ation of Authority to Det::mine Whether inere Have Been Significant Changes in Operating _icense Applicant's Activities or Proposed Activities Since the Construction Permit Antitrust Review AGENCY:
Nuclear Regulatory Commission.
ACTION:
Final Rule.
SUMMARY
The Nuclear Regulatory Commission is amending its regulations to incorporate final procedures implementing the Commission's delegation of authority to make the "significant changes" determination to the Director of Nuclear Reactor Regulation or the Director of Nuclear Material Safety and Safeguards, as appropriate.
The "significant changes" determination, mandated by Section 105c(2) of the Atomic Energy Act of 1954, as amended, is whether there have been changes of antitrust significance in an operating license applicant's activities or proposed activities that have occurred subsequent to the antitrust review conducted in connection with the facility construction permit.
EFFECTIVE DATE:
[ Insert 30 days after date of publication].
. FOR FURTHER INFORMATION CONTACT:
Argil Toalston, Antitrust and Eco".omic Aralysis Branch, Division of Engineering, Office of Nuclear Reactor Regulation, Washington, DC 20555, Telephone:
(301) 492-4891.
SUPPLEMENTARY INFORMATION:
A.
Background
In connection with the prelicensing antitrust review of production and utilization facility applicants (primarily nuclear power reactor owners and operators), Section 105c(2) of tne Atomic Energy Act of 1954, as amended, 42 U.S.C. 5 2135c(2), requires the NRC to forward to the Attorney General, for his antitrust advice, a copy of the operating license ("0L")
application if:
... the Commission determines such review is aavisable on the ground that significant changes in the licensee's activities or proposed activities have occurred subsequent to the previous review by the Attorney General and the Commission under this subsection in connection with the construction pemit for the facility.
On September 12, 1979, the Nuclear Regulatory Commission delegated its authority to make the "significant changes" determination under Section 105c(2) to the Director of Nuclear Reactor Regulation or the Director of Nuclear Material Safety and Safeguards, as appropriate depending on the particular kind of production or utilization facility involved.
In connection with that delegation, the Commission approved procedures to be used until such time as regulations implementing those procedures were adopted.
Although never formally published, these procedures were and are available as attachments to SECY-79-353 (May 24,1979) and SECY-81-43 (January 19,1981) in the Commission's Public Document Room, at 1717 H
1
.?-
t Street, NW, Washington, DC.
On March 26, 1981, the Conmission published for comment in the Federal Register a proposed rule to implement t$1' i
approved procedures (46 FR 18747).
t B.
Comments Three comment letters were received frgn two electric utilities,' Carolina Power & Light Company (CP&L) and Arizona Public Service Company (APS),
and from one law firm, LeBoeuf Lamb, Leiby & MacRae (LeBoeuf Larb), that 3
'i represents several electric utilities.
Copies of these comments an't cr.
NRC staff analysis of 't em are ava ole in the Commission's Public Document Room.
/ 3 1.
Carolina Power & Light Company ("CP&L")
Under the procedures as originally proposed, the NRC would publish a notice in the Federal Register of receipt of dotitr>;t information sub-mitted in cornection with an OL application. The votice would direct that comments on the antitrust aspects of the application should be sub-mitted within 60 days to the NRC for presentation to the Attorney, General.
The proposed procedures envisage receipt of commenls and information back from the Attorney General prior to making a "significant changes"' deter-mination.
CP&L suggested, first, that there should be a fixed time limit of 20 days after receipt of the Attorney General's comments in wiich the appropriate Director would be required to make the "significant changes" determination.
5 The Commission has not adopted CP&L's modification because it would establish a single, rigid time schedule without any fler.ibility.
In some situations,,
and fair consideration of potentially complex anti-trust allegations and factual material may require longer than 20 days.
CP&L's suggestion fails to make any accommodation for such case-by-case variations and is, therefore, undesirable.
The proposed rule permitted members of the public a 60-day period in which to submit their comments in response to the Federal Register notice of receipt of OL antitrust information, and also permitted another GO-day period in which to request reevaluation of a Director's finding of no sign 1ficant changes.
CP&L asserted that the two proposed 60-day periods should be shortened to be consistent with the Proposed Rule for Expediting the NRC Hearing Process (46 FR 17216, March 18, 1981).
The final rule has been changed to provide a 30-day period for the submittal of comments in response to the notice of receipt of OL antitrust information submitted pursuant to Regulatory Guide 9.3.
The Commission believes that 30 days is sufficient time to afford to the public a meaningful opportunity to submit relevant antitrust information to the NRC and to the Attorney General without undermining efforts to expedite the processing of OL applications.
In adddtion, in response to CP&L's comment about the excessive length of time for submitting requests for reevaluation of a significant changes determination, this period has been decreased from 60 days to 30 days in the final rule.
3-2.
LeBoeuf, Lamb, Leiby & McRae ("LeBoet f Lamb")
LePoeuf Lamb pointed cut that the phrase, "the antitrust portion af an application for a facility operating license," in the proposed revision to 10 CFR 2.101(c) is incorrect because antitrust infomation submitted at the OL stage is not a formal part of the OL application.
To better indicate the correct relationship between the antitrust information sub-mitted at the OL stage and the OL application itself, the Commission has, in the final rule, replaced that phrase with the phrase "information responsive to Regulatory Guide 9.3 submitted in connection with an appli-cation for a facility operating license."
LeBoeuf Lamb, as well as Arizona Public Service Company, also maintained that NRC consultation with the Attorney General prior to making the sig-nificant changes determination is contrary to Section 105c(2) of the Act and should be eliminated.
Section 105c(2) addresses the Commission's obligation to make the significant changes determination, upon which a full-scale antitrust review and formal rendering of advice by the Attorney General necessarily depends.
It is true that Section 105c(2) itself is silent on whether the Commission can or should consult with the Attorney General prior to making the significant changes determination.
The legislative history of Section 105c(2), however, is not silent on this point and explicitly states Congress' intention that this pre-determination consultation should occur.
The Joint Committee on Atomic Energy, in connection with the 1970 amendments that added the Section 105c provisions for prelicensing antitrust review, stated thet, as to OL applications:
"The committee expects that the Commission will consult with the Attorney General in regard to its cetermination respecting significant changes."
H. Rep. No. 91-1470, 91st Cong.,
2d Sess., reprinted i_n,3 U.S. Code, Cong. and Adm. News, 91st Cong.,
n 2d Sess., 4981, 5009 (1970).
In light of this express Congressional direction and in light of the obvious benefits gained from the sharing of information and ideas with the Attorney General, the final rule retains the pre-determination consultation provisions.
LeBoeuf Lamb also objected to two "public comment" periods provided under 6 2.101 in the proposed rule, ostensibly referring to the comment period provided in the Federal Register notice of receipt of OL antitrust infomation and to the period in which reevaluation of a no significant changes finding can be regt.asted.
LeBoeuf Lamb asserted that the second was not likely to be useful.
The final rule does not include LeBoeuf Lamb's suggestion to eliminate one of the two so-called " comment" periods.
The first notice announces receipt of Regulatory Guide 9.3 antitrust information submitted in connection with the OL application.
At this time, the antitrust inquiry by the Commission and the Attorr.ey General is not specifically focussed on any particular information, and public com-ments may provide a useful background for the NRC and Attceney General review.
The second time period in which members of the public can request reevaluation of a no significant changes finding is initiated by publication of a Federal Register notice.
That notice contains the Director's initial finding and underlying rationale, and also indicates
/
. the availability of any other staff analysis, thus pemitting the public to base any request for reevaluation upon specific facts or conclusions directly related to the initial significant changes finding.
This second stage for public involvement is a more fec=ad one, which is expected to bring to light any relevant infomation that might have otherwise not been available to the Director in making the finding. Taken toge.ther, these two periods for pJblic input, with their differing emphases, should provide sufficient and current information, supplemented where necessary by independent NRC follow-up activities, upon which a fair and reasoned final significant changes detemination can ultimately be made.
3.
Arizona Public Service Company ("APS")
APS also opposed providing the public with any expanded opportunity to submit pertinent antitrust infomation and comments to the NRC in connec-tion with making the significant changes determination.
APS raised concerns about the raceipt of comments leading to possible delay in making the significant changes determination, as,411 as about an increased potential for formal review by the Attorney Genercl and for NRC antitrust hearings, which could cause more licensing celays.
The Commission believes that the reduced 30-day period for submitting public coraments, as well as the comments themselves, will not lead to unwarranted or significant delays in the NRC licensing process.
The 30-day period accommodates the need for expedition in licensing with the idea that public comments will contribute to a more infomed and less speculative significant changes determination.
To fulfill its statutory obligations under Section 105c, the NRC must have the most current and
. complete information possible.
It would be short-sighted to eliminate one potentially valuable mechanism by which to obtain such information --
comments from the public itself, including other utilities in and around the applicant utility.M C.
Other Minor Changes in Final Rule Several minor editorial changes have been made in the final rule to eliminate certain ambiguities, to correct inaccurate terminology, and to ensure couistency in the Commission's regulations.
Among these are the following principal changes:
(1) 66 1.42, 1.61(e), and 2.101(c)(3):
changes have been made to indicate the most current NRC internal organizational structure and division of responsibilities; (2) 9 2.101(c):
clarification that 6 2.101(c) applies only to construction permit applications, as reflective of current staff practice; (3) 9 2.101(e) and Appendix A:
changes have been made concerning the timing and nature of the notice of receipt of construction permit application antitrust information and the Regulatory 1/
APS asserted the NRC can and should issue operating licenses irre-spective of whether the significant changes determination or the completion of an antitrust review have occurred, citing Kansas Gas and Electric Co. (Wolf Creek Generating Station, Unit No.1),
ALAB-279, 1 NRC 559 (1975), and H. Rep. No. 91-1470, 91st Cong.,
2d Sess. 31 (1970).
These authorities and the issue raised by APS do not address the subject of this rule--the procedures for making a significant changes determination--nor do they provide, without any explanation by APS, an acceptable legal basis for the Commission fo agree or disagree with the assertion made.
.g.
Guide 9.3 OL antitrust information.
The changes also include clarification that public comments submitted will be considered by the NRC and will also be forwarded to the Attorney General; and (4) 5 2.104(d)(3):
clarification of the NRC procedures concerned with notices of hearing, to make it clear that the invitation for the public to submit comments on antitrust matters in the notice of receipt of the OL antitrust information has no effect whatsoever on whether an OL hearing will or should be held on health, safety, environmental, or other matters under the pro-visions of 2.104(d).
In that regard, prelicensing antitrust reviews and hearings are governed by the provisions of 6105c of the Atomic Energy Act of 1954, as amended, Houston Lichtino and Power Co. (South Texas Project, Unit Nos. I and 2),
CLI-77-13, 5 NRC 1303 (1977), and are subject to separate licensing proceedings from those concerned with health, safety, and environmental matters, Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-316, 3 NRC 167 (1976).
Reoulatory Flexibility Certification In accordance with the Regulatory Flexibility Act of 1980, 5 U.S.C.
605(b), the NRC hereby certifies that the promulgation of this rule will nct have a significant economic impact on a substantial number of small entities.
The rule implements current NRC internal procedures related to the licensing of production and utilization facilities under Section 103
/ *~'
c
^
~,.
y n
~
4 10 -
t of the Atomic Energy Act of 1954, as amended, 42 U.S.C. 55 2133.
In addi-tion, the companies (primarily electric utilities) owning and operating these fac'lities are dominant in their service areas and/or do not fall within the definition of a small business found in Section 3 of the small Business Act,15 U.S.C. 9 632, or within the Small Business Size Standards set forth in 13 CFR Part 121.
Accordingly, there is no significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act of 1980.
Paperwork Reduction Act Statement Pursuant to the provisions of the Paperwork Reduction Act of 1980 (Pub.
L.96-511), the NRC has made a determination that these amendments do not impose new recordkeeping, information collection, or reporting requirements.
Pursuant to the Atomic Energy Act of 1954, as amended, the Energy Reor-ganization Act of 1974, as amended, and Section 553 of Title 5 of the United States Code, notice is hereby given that the following amend-ments to Title 10, CPpter 1, Parts 1 and 2, Code of Federal Regulations, are published as a u Aument subject to codification.
PART 1 - STATEMENT OF ORGANIZATION AND GENERAL INFORMATION 1.
The authority citation for Part I reads as follows:
AUTHORITY:
Sec. 161, Pub. L.83-703, 68 Stat. 948 (42 U.S.C. 2201);
secs. 201, 203, 204, 205, and 209, Pub. L.93-438, 88 Stat. 1242, 1244,
=
4
. 1245, 1246 and 1248 (42 U.S.C. 5841, 5843, 5844, 5845, and 5849); Pub. L.
94-79, 89 Stat. 413; and 5 U.S.C. 552 and 553.
2.
In i 1.42, paragraph (e) is revised to read as follows:
0 1.42 Office of the Executive Legal Director.
(e) The Hearing Division also acts as counsel for the NRC staff in public administrative proceedings before the Commission, Atomic Safety and Licensing Appeal Boards, Atomic Safety and Licensing Boards, and administrative law judges in matters relating to antitrust aspects of appiications for nuclear facility licenses; provides legal advice regard-ing NRC antitrust responsibilities; and, for operating license antitrust reviews, together with the Antitrust and Economic Analysis Branch of the Office of Nuclear Reactor Regulation, recommends to the appropriate Office Dir:ctor (NRR or NMSS) whether or not a finding of significant changes should be made.
3.
In 91.61, paragraph (e) is revised to read as follows:
5 1.61 Office of Nuclear Reactor Reculation.
(e) The Antitrust and Economic Analysis Branch conducts prelicensing reviews of applications for nuclear facilities to assure that issuance of a license will not create or maintain a situation inconsistent with the antitrust laws; for operating license antitrust reviews, together with the Hearing Division of the Office of the Executive Legal Director, recommends to the appropriate Office Director (NRR or NMSS) whether or i
not a finding of significant changes should be made; is responsible for ascertaining compliance with license conditions pertaining to antitrust matters; analyzes broad engineering and economic issues in formulating antitrust policy and guidance; and provides specialized technical capa-bilities in the area of the benefits and costs of power plants and nuclear facilities and need-for-power assessments.
PART 2 - RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS 1.
The authority citation for Part 2 is revised to read as follows:
AUTHORITY:
Secs. 161p and 181, Pub. L.83-703, 68 Stat. 950 and 953 (42 U.S.C. 2201(p) and 2231); sec. 191, as amended, Pub. L.87-615, 76 Stat.
409 (42 U.S.C. 2241); sec. 201, as amended, Pub. L.93-438, 88 Stat. 1242 (42 U.S.C. 5841); Pub. L. 90-23, 81 Stat. 54 (5 U.S.C. 552); unless otherwise noted.
Sections 2.200-2.206 also issued under sec. 186, Pub. L.83-703, 68 Stat. 955 (42 U.S.C. 2236), and sec. 206, Pub. L.93-438, 88 Stat. 1246 (42 U.S.C. 5846).
Sections 2.800-2.808 also issued under 5 U.S.C. 553.
Section 2.809 also issued under 5 U.S.C. 553 and Sec. 29, as amended, Pub. L.85-256, 71 Stat. 579, and Pub. L.95-209, 91 Stat.
1483 (42 U.S.C. 2039).
2.
In @ 2.101, paragraphs (c) and (e) are revised to read as follows:
i 2.101 Filina of application.
+
. (c) The notic.e published in the Federal Reaister announcing docketing of the antitrust information portion of an application for a facility con-struction permit under section 103 of the Act, except for those applica-tions described in 9 2.101(e) and 5 2.102(d)(2), shall state that:
(3)
Any person who wishes to have his views on the antitrust matters of the application considered by the NRL and presented to the Attorney General for consideration should submit such views within sixty (60) days after publication of the notice announcing receipt and docketing of the antitrust information to the U.S. Nuclear Regulatory Commission, Washington, D.C. 20555, Attention:
Chief, Antitrust and Economic Analysis Branch.
(e)(1)
Upon receipt of the antitrust information responsive to Regula-tory Guide 9.3 submitted in connection with an application for a facility 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 Operating License Antitrust Information." Such 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 detennining, 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 pemit.
Such 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, Antitrust and Economic Analysis 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 con-nection with the construction permit, a finding of no significant changes sh..ll be published in the Federal Reaister, together with a notice stating that any request for reevaluation of such finding should be submitted within thirty (30) days of publication of the notice.
If no requests for reevaluation are received within that time, the finding shall become the NRC's final determination.
Requests for a reevaluation of the no significant changes detemination may be accepted after the date when the D1 rector's finding becomes final but before the issuance of the OL only if they contain new infomation, such as infomation about facts or events of antitrust significance that have occurred since
. that date, or infonnation that could not reasonably have been submitted prior to that date.
(3)
If, as a result of a reevaluation of the finding described in paragraph (e)(2), it is determined that there have been no significant changes, the Director of Nuclear Reactor Regulation or the Director of Nuclear Material Safety and-Safeguards, as appropriate, shall deny the request and shall publish a notice of finding of no significant changes in the Feieral Reoister.
Such notice and finding shall become the final NRC decision thirty (30) days after being made and only in the event that the Commission has not exercised sua sponte review.
(4)
If the Director of Nuclear Reactor Regulation or the Director of Nuclear Material Safety and Safeguards, as appropriate, concludes that significant changes have occurred since the completion of the antitrust review in connection with the construction permit, then the provisions of 9 2.102(d) shal1 apply.
3.
In 5 2.102, paragraphs (d)(1) and (2) are revised to read as follows:
6 2.102 Administrative review of applica tion.
(d)(1)
Except as provided in subparagraph (2) below, the Director of Nuclear Reactor Regulation or Director of Nuclear Material Safety and Safeguards, as appropriate, will refer and transmit a copy of each docketed application for a construction permit or an oaerating license
. for a utilization or production facility under section 103 of the Act to the Attorney General as required by section 105c of the Act.
(2) The requirements of paragraph (d)(1) do not apply to an application for an operating license for a productien or utilization facility under section 103 of the Act for which the constructiois permit was also issued under section 103, unless the Director of Nuclear Reactor Regulation or the Director of Nuclear Material Safety and Safeguards, as appropriate, determines, after consultation with the Attorney General and in accord-ance with Q 2.101(e), that 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 of the Attorney General and the Commission under section 105c of the Act in connection with the construction pennit.
4.
In s 2.104, paragraph (d)(3) is revised to read as follows:
6 2.104 Notice of Hearina.
(d)
(3) That matters of radiological health and safety and canmon defense and security, and matters raised under the National Environmental Policy Act of 1969, will be considered at another hearing if otherwise required or ordered to be held, for which a notice will be published pursuant to paragraphs (a) and (b) of this sect ~on, unless otherwise authorized by the Commission.
. APPENDIX A - STATEMENT OF GENERAL POLICY AND PROCEDURE:
CONDUCT OF PROCEEDINGS FOR THE ISSUANCE OF CONSTRUCTION PERMITS AND OPERATING LICENSES FOR PRODUCTICN AND UTILIZATION FACILITIES FOR WHICH A HEARING IS REQUIRED UNDER SECTION 189 0F THE ATOMIC ENERGY ACT OF 1954, AS AMENDED 1.
The authority citation for Appendix A is revised to read as follows:
AUTHORITY:
Sec. 191, 80 Stat. 386 (42 U.S.C. 2241); sec. 161, Pub. L.83-703, 68 Stat. 948 (42 U.S.C. 2201); sec. 201, as amended, Pub. L.93-438, 88 Stat. 1243, Pub. L. 94-79, 89 Stat. 413 (42 U.S.C. 5841);
sec. 6, Pub. L.91-560, 84 Stat. 1472 (42 U.S.C. 2135).
2.
In Appendix A to Part 2, paragraph X(a) is revised, paragraph X(b) is redesignated as paragraph X(b)(1) and is revised, new paragraphs X(b)(2)-X(b)(5) are added, and paragraph X(c) is revised to read as follows:
X.
PROCEEDINGS FOR THE CONSIDERATION OF ANTITRUST ASPECTS OF FACILITY LICENSE APPLICATIONS (a) Under the Atomic Energy Act of 1954, as amended, the Commission is required, with respect to applications for construction permits or oper-ating licenses for production and utilization facilities for industrial or commercial purposes licensed under section 103, which fnclude power reactors subject to the mandatory hearing requirements of section 189a of the Act, to follow procedures for antitrust review in s,ection 105c of the Act.
This section outlines the procedures used by the Commission to implement that section.
. (b)(1) When the antitrust infonnation portion of an application is received and docketed fcr a facility construction permit under section 103 of the Act which is rubject to antitrust review under section 105c, tne notice of receipt of the antitrust information published in the Federal Register shall 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 shall submit such views to the Commission within sixty (60) days after publication of the notice.
(2)
Upon receipt of the antitrust information responsive to Regulatory Guide 9.3 submitted in connection with an application for a facility operating license under section 103 of the Act, the Director of Nuclear Reactor Regulaticn or the Director of Nuclear Material Safety and Safe-guards, as appropriate, shall publish in the Federal Reaister and in appropriate trade journals a " Notice of Receipt of Operating License Antitrust Infonnation."
Such notice shall invite persons to submit, within thirty (30) days after publication of the notice, comments or information concerning antitrust aspects of the appiication 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 completion of the previous a.'titrust review in connection with the construction permit application.
Such notice shall also state that persons who wish to have their views on the antitrust aspects of the application considered by the NRC and pre-sented to the Attorney General for consideration should submit such
. views within thirty (30) days after publication of the notice to:
U.S.
Maclear Regulatory Commission, Washington, DC 20555, Attention:
- Chief, Antitrust and Economic Analysis Branch.
(3)
If the Director of Nuclear Reactor Regulation or the Director of Nuclear Matarial 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 sig-nificant changes shall be published in the Federal Recister, together with a notice stating that any request for reevaluation of such finding should be submitted within thirty (30) day.c of publication of the notice.
If no requests for reevaluation t received within that time, the finding shall become the NRC's final cetermination.
Requests for a reevaluation of the no significant changes determination shall be accepted after the date when the Director's finding becomes final but before the issuance of the OL only if they contain new information, such as infonnation 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.
(4)
If, as a result of the reevaluation of the finding described above, it is determined that there have been no significant changes, the
. Director of Nuclear Reactor Regulation or Director of Nuclear Material Safety and Safeguards, as appropriate, shall deny the request and shall publish a notice of finding of no significant changes in the Federal Register.
Such notice and finding shall become the final NRC decision thirty (30) days after being made and only in the event that the Commission has not exercised sua sponte review.
(5)
If the Director of Nuclear Reactor Regulation or the Director of Nuclear Material Safety and Safeguards, as appropriate, concludes that significant changes have occurred since the completion of the previous antitrust review in connection with the construction permit, then the provisions of f 2.102(d) shall apply.
(c)(1)
Except as providcd in subparagraph (2) below, the Director of Nuclear Reactor Regulation or Director of Nuclear Material Safety and Safeguards, as appropriate, shall refer and transmit a copy of each application for a construction permit or an operating license for a utilization or production facility under section 103 of the Act, to the Attorney General as required by section 105c of the Act.
Under that section, the Attorney General will, within a reasonable time, but in no event to exceed 180 days after receipt, render such advice to the Commission as is determined to be appropriate in regard to the finuing to be made by the Commission as to whethe. the activities under the license would create or maintain a situation inconsistent with the antitrust laws specified in subsection 105a of the Act.
. (2) The review by the Attorney General described in subparagraph (1) above is not required for applications for operating licenses for production or utilization facilities under section 103 of the Act for which the construction permit was also issued under section 103, unless the Director of Nuclear Reactor Regulation or the Director of Nuclear Material Safety and Safeguards, as appropriate, determines, after con-sultation with the Attorney General and in accordance with 6 2.101(e),
that 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 by the Attorney General and by the Commission under section 105c of the Act in connection with the con-struction permit.
FOR THE NUCLEAR REGULATORY COMMISSION Samuel Chilk Secretary of the Commission Dated at Bethesda, Maryland, this day of
, 1981.
8 ENCLOSURE C
Enclosure C STAFF DISCUSSION OF COMt'ENTS RECEIVED (1) Carolina Power and Light Company (CP&L)
As discussed in the Commission Paper, CP&L has received a copy of the interim procedures being used. for aking the significant changes determination and the final rule indica.tes that these procedures are located in the Commission's Public Document Room Since the final rule incorporates these procedures, no separate publication is being made.
CP&L's other comments concern the inconsistency of the proposed rule with the NRC's Proposed Rule for Expediting the NRC Hearing Process with regard to health, safety and environnental matters (46 FR 17216, March 18,1981).
In the interest of expediting the Director's finding of whether there have been significant changes in activities under the license since the previous construction permit review, CP&L suggested that the Director should nake the finding within twenty days of receipt of the Attornt y General's comments, and chat 9 2.101(e)(2) be modified accordingly. A furt er suggestion of CP&L is that a request for reevaluation of the deteiminatic.1 should also be decided within twenty days of its receipt and that 9 2.101(e)(3) be modified accord-ingly.
Also, CP&L feels that the sixty-aay period during which persons may request such reevaluation, as provided in Q 2.101(e)(2) of the proposed rule, should be changed to ten days, which is analogous to the time in which petitions for reconsideration of final decisions must be filed.
. Although the staff finds some merit in the modifications proposed by CPM.,
it has suggested that the Directnr shoi! not be put under the time pressure of a 20-day deadline in which to make the significant changes finding and for acting on requests for reevaluation of that finding.
Such time pressure might subject the Director to unnecessary and overly onerous deadlines with-out regard for the complexity of the pecific issues under consideration.
In addition, other means of shortening the overall time involved are avail-able, such as shortening the public comment period from sixty to thirty days and reducing the time in which requests for reevaluation of the Director's finding can be filed from sixty to thirty days.
The CP&L analogy to motions to reconsider final decisions is not entirely accurate.
In inviting requests for reevaluation, +he final rule contem-plates that others in addition to those who commented originally might request reevaluation.
However, only parties may move for reconsideration of Commission orders, and the considerations underlying the request for reevaluation and a motion for reconsideration are, therefore, not the same.
A longer response period is approrriate for interested persons who may not have the same type of actual notice as do parties in an ongoing proceeding when a final order is issued.
Accordingly, the staff has recommended that the public comment periods be shortened to thirty days and that the period during which requests for reevaluation may be submitted also be shortencd to thirty days.
, (2)
LeBoeuf, Lamb, Leiby & MacRae (LeBoeuf Lacb)
In its letter of comment, the law firm of LeBoeuf Lamb points out that the proposed rule's reference to "the antitrust portion of an application for a facility operating license" is inaccurate.
The comment is well-taken and the commenter ts correct in noting that the OL information requested in Regulatory Guice 9.3 is not a formal part of the OL application.
The 9 50.33a requirements for submission of antitrust information in connection with an application for a construction permit are not echoed by comparable requirements at the operating license stage.
The staff has, therefore, included a change in terminology in the final rule -- all references are now to "information responsive to Regulatory Guide 9.3 submitted in connec-tion with an application for a facility operating license."
Although LeBoeuf Lamb is correct in pointing out this defect, their recom-mendation for curing it by a specific rule would, in the staff's opinion, rigidify a function which has heretofore worked well with the amount of flexibility allowed by the use of Regulatory Guide 9.3.
Further, the staff has not yet found applicants unwilling to provide the information requested of them pursuant to Reg. Guide 9.3.
The staff feels that applicants and the public are benefitted by the flexible handling of antitrust information needs at the OL stage.
LeBoeuf Lamb's comment that there is no actual statutory requirement that the Attorney General's advice be sought by the Commission in making a significant
. changes deteruination at the OL stage is technically correct.
However, the
~
final rule, as well as current Commission regulations, reflect an important statement in the legislative history of Section 105c.
The Joint Committee on Atomic Energy, in its Report on the 1970 antitrust amendments to the Atomic Energy Act of 1954 (which added Section 105c),
stated that:
"The committee expects that the Commission will consult with the Attorney General in regard to its determination respecting significant change."
S. Rep. No. 91-1247, 91st Cor,g., 2d Sess., 29 (1970); see also H. Rep. No. 91-1470, 91st Cong., 2d Sess., reprinted in,3 U.S. Code, Cong.
n and Adm. News, 91st Cong., 2d Sess., 4981, 5009 (1970). The staff, therefore, recommends that LeBoeuf Lamb's comment be rejected, as adopting their comment would involve a substantial change in the Commission's procecures which are consistent with the legislative history of the 1970 amendnents.
Although the staff has recommended shortening two time periods (for com-ments in response to notice of receipt 7f OL antitrust information and for requesting reevaluation of a no significant changes finding) from sixty days to tnirty days to be consistent with the Proposed Rule for Expediting the 4RC Hearing Process, the staff has not adopted the LeBoeuf Lamb sug-gestion that the "two comment periods" in 5 2.101(e) be combined into one. The staff understands this reference to mean the two time periods mentioned above.
The first comment period is initiated by the publica-tien of a Notice of Receipt of OL Antitrust Information, obviously at the time that the Regulatory Guide 9.3 antitrust information is submitted.
4 The antitrust comments which may be elicited at this stage are not tied to any particular finding or issue, and can provide a broad range of informa-tion for the NRC and the Attorney General in their reviews.
The second point of potential public input is when the NRC publishes a Federal Register notice of a Director's no significant changes finding.
The members of the public are given thirx days in which to request reevaluation based on new information they may have or on information that could not have been submitted in time for the Director to consider it.
These public comments are, therefore, likely to be more closely directed at the particular state-ments of the applicant or at particular issues discussed in the Director's finding, and may not provide the same breadth of information as that elicited in response to the first notice.
Accordingly, each time period for public comments serves in a different way to enhance the reasonableness and com-pleteness of the final significant changes determination.
These factors lead the staff to recommend that the two separate " comment" periods be retained.
(3) Arizona Public Service Company (APS)
APS was concerned that the proposed rule callec for noticing the receipt of Reg. Guide 9.3 antitrust information in the Federal Reaister, thereby expanding public participation in the licensing process.
Although the staff agrees that the antitrust review at the operating licenso stage may be more limited in scope than the review at the construction permit stage, the public
. should not be precluded from comnenting on any changes of an antitrust nature that may have occurred since the previous construction permit review.
The staff believes that inviting public comment provides a good communication medium in which any alleged changes in an applicant's competitive practices can be brought to the attention of the NRC and the Attorney General.
Those utilities in and around the applicant utility are in the best position to know of any such changes, and to be able to perceive any antitrust or anti-competitive consequences of these changed acti"ities.
APS also asserted that both the public comment periods and the NRC's con-sultation with the Attorney General prior to a significant changes determina-tion would increase the time required in the licensing process and would a'so increase the potential for an OL antitrust hearing to be held.
The staff does not agree that soliciting public commelt or consultation with the Attorney General will necessarily increase the time required for operating license reviews.
Indeed, it may be less likely that the licensing process will be delayed if potential problems are surfaced early in tne review process.
In addition, the potential for holding an antitrust hearing at the OL stage is a function of whether the applicant's activities have significantly changed from an antitrust standpoint since the CP stage.
Con-sultation between the NRC and the Attorney General prior to a significant changes determination will probably serve to make the NRC decision a sounder one.
That, in and of itself, neither increases nor decreases the poten-tial for an OL antitrust hearing.
The staff has recommended rejecting APS's
, suggested changes, for chev would reverse existing staff procedures and preclude the public and the Attorney General's participation in a phase of the OL licensing process in which both contribute substantially.
Finally, ApS provided scant and inapposite authority for its position that post-licensing antitrust review is appropriate at the OL stage.
Based on the authorities cited and the absence of any cogent legal argument supporting this position, the staff believes that this procedural rule is separate from the issue raised by APS and that the APS position is not supportable as presented.
Etic LCS LfT.
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E!'CIOSJEE D 2 : - ' s : : w,. -
g4 PRCPCSEQ BCCE_ rn ~ l %q April 27, 1981
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File:
NG-3514(G)
Serial No.:
u=81-743
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Secretary of the Cen=ission Q/
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United States 'Nr. lear TSgulator, ro=issica c/
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- . s CQidNTS ON PROPOSED Rt*LE TD 0
ww-10CFR-PA3TS 1.CD 2 c..:...{3 gr 3
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Dear Sir:
D E _.. - l In the Mar.h 26, 1981 Federal Register, the Coc=ission published notice of prcposed amend =ents of 10CFR Par:s 1 and 2 in crder to "i planen:
the Co==ission's delsgation cf authori:y :o make the 'significent changes' e
determina:ica [in antitrus: reviews of cperating license applica:iens]
to the Direttor of Suelear Receror Regulation and the Direc:cr of Nuclear Material Safety 5 Safeguards" (16 Fed. Her 15747).
This letter is in respo se :o the Cc=nirsiot.'s invita:1c" 50: cc nnents en the proposed a.:endneu ts.
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Ir. th2 Federa:
.3- :12:er notice, the Cc nais31cn states that ta pr.;, posed at.ent:ct.:s, if adop;ec, vil'. imple ent internal 20 = ission precebres curren:17 in e#fect..
Carolina Power i Light Cc:peny (C?ilj believes tna: i; is prudent to publish rum internal preced res in order f
tha licensacs and other persens whose interests cav be aff.cc:ed will
'I have a greater unders:anding of the CO:2.ission's activities.
Such
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comprehension vill con:ribute to cre efficic :, effe tive conduct of I
Cc=rissien creceecings to which such procedures art applicsble.
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With respect to tne substanc e of the proposed procedure, C?iL vishes to suggest ecdification of two of its pr:posals which appear :o be inconsistent with the Con =ission's recer:ly anneur.ced proposal for facilita:ing expedited review of applica:icas r opera ing licensees (Proposed Rule for Expeditiny, the NRC :iearing Process, 46 Fed. Re2. 17216 March 15, 1931).
1.
M proposed, 12.101(e) (2) und Appendix A :o ICCFR Pai. 2 do not establish a specific time period wi:hin whic' % Dirac:or of Nuclear Reactor Regulation or the Director of Nuclear
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Material Safety i Safeguards, as, appropriate. cust make his finding c,f whe:her or not signiff:an thcnges ir an applican:'s status have occurred since the :caplati:n of the entitrust review perfc =ed in c nnec:icn with the issuan:e of the :enstruc-tien pe nit.
I'nder propesed 12.lCl(e), the Dire :or ca =ct gv*~,
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h make such a finding until t*e Attorney General has provided hin with any ceu ents cr in:cr:ation the forner may have regarding che applicant; and, pursuant ca proposed 12.101(e)(1),
4 the pub.tc is gran:ed sixty ( 0) days within which te subett I
co=nents for nr Ten".ation t' the Attorney Genere' j
In view of the Ccn=ission's goal of establishing a core affi-cient, expedired pr: cess.cr reviewing operating licenso applications, Cp5L sugges;s tha* '2.101. (e) (2) be modified to orovide that the Dire,c:cr vill make the "significant changes" e
uding as soon as practicable. and, n any event, no later in twenty (20) days frc the cace of his receipt of thc
.;torney Ger.aral's com=ents.
Because the tirector vill have hcd sixty (60) days, alus the tine cansumed by the Attorney Jeneral's review, to evalua:e'che information received fro tsae a.p3.4 a..
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t It is requested tha: the Cc==ission censider the preceding s
cc==en:s in finalizing the p cpesed regulation.
k, Yours very truly,
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E. E. Utley Executive Vice President Power Supply and Engineering & Construction Ohd/je (7139) e 0
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