Standard Review Plan on Transfer and Amendment of Antitrust License Conditions and Antitrust Enforcement (NUREG-1574, Revision 2)
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Manuscript Completed: November 2007
Date Published: December 2007
S. Hom and C. Pittiglio
Division of Policy and Rulemaking
Office of Nuclear Reactor Regulation
U.S. Nuclear Regulatory Commission
Washington, DC 20555
Beginning Beginning in 1970, section 105.c of the Atomic Energy Act of 1954, as amended (AEA), required that the U.S. Nuclear Regulatory Commission (NRC or Commission) conduct antitrust reviews of applications to construct or operate facilities licensed under section 103 of the AEA. These reviews led to the imposition of antitrust license conditions in about one-quarter of current operating licenses. The Energy Policy Act of 2005 eliminated the NRC's antitrust review mandate, so no new antitrust conditions will be imposed in new licenses. However, existing antitrust license conditions were not affected and thus remain in place, subject to enforcement, amendments, and license transfers.
In connection with license transfers, the staff's former practice of conducting "significant changes" antitrust reviews was eliminated under the Commission's Wolf Creek decision in 1999. However, the disposition of existing antitrust license conditions during license transfers remains an ongoing issue. Wolf Creek provided some guidance as to the appropriate disposition of antitrust license conditions when a facility license containing such conditions is transferred.
Outside of the context of license transfers, changed circumstances of law or fact may provide the bases to grant an application to amend antitrust license conditions. Such applications should be considered by reviewers on a case-by-case basis, with past antitrust license amendment safety evaluations as guidance. Particular attention should be paid to whether there have been regulatory developments to promote competition in the relevant market since the antitrust conditions were first imposed. Also, any comments of the Antitrust Division of the U.S. Department of Justice should be carefully considered. Furthermore, the views of the public, especially competitors of the licensee, should normally be given some weight.
The Commission has certain antitrust enforcement responsibilities and authority. If a court of competent jurisdiction finds that a licensee has violated the antitrust laws, the NRC may suspend or revoke the license or take other action. In addition, the Commission is to report to the Attorney General when it appears that any utilization of special nuclear material or atomic energy violates the antitrust laws. Furthermore, the Commission may enforce antitrust license conditions or revoke the license for a licensee's noncompliance with the conditions, as well as impose civil monetary penalties. Under 10 CFR 2.206, the Commission may take appropriate enforcement action in response to a petition filed under that section alleging a licensee's noncompliance with its antitrust license conditions.