05-21342. Price-Anderson Act Financial Protection Regulations and Elimination of Antitrust Reviews

AGENCY:

Nuclear Regulatory Commission.

ACTION:

Final rule.

SUMMARY:

The Nuclear Regulatory Commission (NRC) is amending its regulations to conform with the requirements of the Energy Policy Act of 2005. The revised regulations include Congress's prescribed increase in the amount of the required annual financial contributions required from commercial reactors in the event of a nuclear accident to pay for third party liability under the Price-Anderson Act. Another revision provides Congress's accommodation for modular reactors, which permits a defined combination of these reactors to be considered a single reactor for the determination of financial obligations under the Price-Anderson Act. Additional revisions, essentially deletions, result from Congress's terminating NRC's authority and responsibility to conduct antitrust reviews of future applications to construct or operate a nuclear reactor.

DATES:

This rule is effective on November 28, 2005.

FOR FURTHER INFORMATION CONTACT:

Marjorie Nordlinger, Senior Attorney, Office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone [phone], e-mail [e-mail].

SUPPLEMENTARY INFORMATION:

I. Background

II. Discussion of Final Rule

III. Voluntary Consensus Standards

IV. Finding of No Significant Impact: Environmental Assessment

V. Paperwork Reduction Act Statement

VI. Regulatory Analysis

VII. Backfit Analysis

VIII. Congressional Review Act

I. Background

The Nuclear Regulatory Commission (NRC) is amending its regulations to conform with recently enacted provisions contained in the Energy Policy Act of 2005, Public Law 109-58. In that act, Congress amended Section 170 of the Atomic Energy Act (the Price-Anderson Act) to increase the amount reactor licensees must contribute annually to compensate the public for damages if a nuclear accident occurs. Congress also provided special treatment for potential licensees of modular reactors by defining what combination of reactors is entitled to be considered a single reactor under the Price-Anderson Act for determining the applicable financial requirements. In the same legislation, Congress eliminated NRC's authority and responsibility to conduct antitrust reviews of future applications for a license to construct or operate a nuclear reactor.

This rule revises the Commission's regulations solely to comply with the Energy Policy Act of 2005. The changes simply incorporate mandatory statutory requirements or eliminate authorities and actions under a Congressional mandate, which by its terms applies only to future nuclear reactor construction permits and operating license applications and has no effect on the Commissions' authority relative to existing nuclear reactor operating license antitrust conditions. Accordingly, good cause exists under 5 U.S.C. 553(d)(3) to publish this final rule without soliciting public comment because the Commission has no discretion in these matters and public comment would serve no useful purpose. The revisions are being published as a final rule that will become effective 30 days from the date of publication in the Federal Register.

II. Discussion of the Final Rule

A. Antitrust Amendments

The Atomic Energy Commission and its successor the Nuclear Regulatory Commission have had the authority and obligation to conduct antitrust reviews of applicants for licenses to construct and operate nuclear reactors. In determining whether to grant such a license, the Commission was required to make a finding whether the activities under the license would create or maintain a situation inconsistent with the Nation's antitrust laws. Sometimes the Commission has needed to conduct a lengthy hearing on antitrust issues before issuing its decision. In recent years, other Government agencies more specialized in financial matters have demonstrated oversight and authority sufficient to discern and address potential anticompetitive behavior of nuclear energy producers. In light of the redundant antitrust responsibilities of the Commission and those agencies, Congress enacted section 625 of the Energy Policy Act of 2005 which eliminated the Commission's antitrust authority with respect to future license applications. The final rule's changes in the regulations remove all antitrust review requirements and references to the discontinued antitrust review.

B. Price-Anderson Act Amendments

In the event of a serious nuclear accident with substantial offsite damages, the Price-Anderson Amendments Act of 1988 required each licensee of a commercial reactor (one with a rated capacity of 100,000 electrical kilowatts or more) to pay into a retrospective premium pool, as needed, $10 million annually per reactor up to the sum of $63 million as adjusted for inflation to pay for harm to person or property caused by the accident. By August 2003, that sum, as adjusted for inflation, had reached the amount of $95,800,000. In section 603 of The Energy Policy Act of 2005, Congress replaced the $63 million limit with the $95,800,000 current limit, already incorporated in the Commission's rules as the new base for inflation adjustment. Congress also decided that the $10 million annual payment which had remained unchanged since 1988 should be increased to $15 million and should be adjusted for inflation in the future. Accordingly, the Commission is changing the regulation to reflect the current $15 million amount the nuclear reactor licensees would pay annually if public liability damages exceeded the insurance required to be carried by the licensee.

In section 608 of the Energy Policy Act of 2005, Congress recognized that new designs of reactors known as modular reactors could result in groupings of a smaller capacity reactor than the typical commercial reactor currently in use, but where each single modular reactor still exceeds the 100,000 electrical kilowatts that would trigger the financial obligations currently required of a large reactor. To make the small modular reactors economically feasible while maintaining for them an equitable obligation to assure available funds for the public, the Energy Policy Act provided that a prescribed combination of facilities should be considered as a single facility for the sole purpose of assessing financial obligations under the Price-Anderson Act. The Commission is amending its rules to include the description of the combination of modular reactors which is to be treated as a single reactor for assessing obligations to contribute to the pool that will pay for public harm if a serious nuclear accident occurs.

III. Voluntary Consensus Standards

The National Technology Transfer and Advancement Act of 1995, Public Law 104-113, requires that Federal agencies use technical standards that are developed or adopted by voluntary consensus standards bodies unless the use of such a standard is inconsistent with applicable law or otherwise impractical. In this rule, the NRC is revising its regulations to reflect statutory mandates contained in the Energy Policy Act of 2005. This action does not constitute the establishment of a standard that contains generally applicable requirements.

IV. Finding of No Significant Impact: Environmental Assessment

The Commission has determined under the National Environmental Policy Act of 1969, as amended, and the Commission's regulations in Subpart A of 10 CFR Part 51, that this rule is not a major Federal action significantly affecting the quality of the human environment and, therefore, an environmental impact statement is not required. The basis for this determination is that the rule relates to liability under the Price-Anderson Act and the elimination of NRC's antitrust reviews. In addition, the changes to the regulations in Parts 2, 50, 52 and 140 are actions that fall within the categorical exclusions set out in 10 CFR 51.22(c)(1) and (3).

V. Paperwork Reduction Act Statement

This final rule does not contain new or amended information collection requirements subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). Existing requirements were approved by the Office of Management and Budget, approval numbers 3150-0011, 3150-0151, and 3150-0039.

Public Protection Notification

The NRC may not conduct or sponsor, and a person is not required to respond to, a request for information or an information collection requirement unless the requesting document displays a currently valid OMB control number.

VI. Regulatory Analysis

A regulatory analysis has not been prepared for this regulation. This rule amends NRC regulations to be consistent with provisions in the Energy Policy Act of 2005. This rule does not involve an exercise of Commission discretion and, therefore, does not necessitate preparation of a regulatory analysis.

VII. Backfit Analysis

The NRC has determined that the backfit rule does not apply to this final rule; and therefore, a backfit analysis is not required for this final rule because these amendments are mandated by the Energy Policy Act of 2005.

VIII. Congressional Review Act

In accordance with the Congressional Review Act, the NRC has determined that this action is not a major rule and has verified this determination with the Office of Information and Regulatory Affairs of OMB.

List of Subjects

10 CFR Part 2

• Administrative practice and procedure
• Antitrust
• Byproduct material
• Classified information
• Environmental protection
• Nuclear materials
• Nuclear power plants and reactors
• Penalties
• Sex discrimination
• Source material
• Special nuclear material
• Waste treatment and disposal

10 CFR Part 50

• Antitrust
• Classified information
• Criminal penalties
• Fire protection
• Intergovernmental relations
• Nuclear power plants and reactors
• Radiation protection
• Reactor siting criteria
• Reporting and recordkeeping requirements

10 CFR Part 52

• Administrative practice and procedure
• Antitrust
• Backfitting
• Combined license
• Early site permit
• Emergency planning
• Fees
• Inspection
• Limited work authorization
• Nuclear power plants and reactors
• Probabilistic risk assessment
• Prototype
• Reactor siting criteria
• Redress of site
• Reporting and recordkeeping requirements
• Standard design
• Standard design certification

10 CFR Part 140

• Criminal penalties
• Extraordinary nuclear occurrence
• Insurance
• Intergovernmental relations
• Nuclear materials
• Nuclear power plants and reactors
• Reporting and recordkeeping requirements

For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, as amended; and 5 U.S.C. 552 and 553; the NRC is adopting the following amendments to 10 CFR parts 2, 50, 52, and 140.

PART 2—RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS AND ISSUANCE OF ORDERS

1. The authority citation for part 2 is revised to read as follows:

Authority: Secs. 161, 181, 68 Stat. 948, 953, as amended (42 U.S.C. 2201, 2231); sec. 191, as amended, Pub. L. 87-615, 76 Stat. 409 (42 U.S.C. 2241); sec. 201, 88 Stat. 1242, as amended (42 U.S.C. 5841); 5 U.S.C. 552; sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note).

Section 2.101 also issued under secs. 53, 62, 63, 81, 103, 104, 68 Stat. 930, 932, 933, 935, 936, 937, 938, as amended (42 U.S.C. 2073, 2092, 2093, 2111, 2133, 2134, 2135); sec. 114(f), Pub. L. 97-425, 96 Stat. 2213, as amended (42 U.S.C. 10143(f)), sec. 102, Pub. L. 91-190, 83 Stat. 853, as amended (42 U.S.C. 4332); sec. 301, 88 Stat. 1248 (42 U.S.C. 5871).

Sections 2.102, 2.103, 2.104, 2.105, 2.721 also issued under secs. 102, 103, 104, 183i, 189, 68 Stat. 936, 937, 938, 954, 955, as amended (42 U.S.C. 2132, 2133, 2134, 2135, 2233, 2239). Sections 2.105 also issued under Pub. L. 97-415, 96 Stat. 2073 (42 U.S.C. 2239).

Sections 2.200-2.206 also issued under secs. 161b, I, o, 182, 186, 234, 68 Stat. 948-951, 955, 83 Stat. 444, as amended (42 U.S.C. 2201(b), (I), (o), 2236, 2282); sec. 206, 88 Stat 1246 (42 U.S.C. 5846). Section 2.205(j) also issued under Pub. L. 101-410, 104 Stat. 90, as amended by section 3100(s), Pub. L. 104-134, 110 Stat. 1321-373 (28 U.S.C. 2461 note). Sections 2.600-2.606 also issued under sec. 102, Pub. L. 91-190, 83 Stat. 853, as amended (42 U.S.C. 4332). Sections 2.700a, 2.719 also issued under 5 U.S.C. 554. Sections 2.754, 2.760, 2.770, 2.780 also issued under 5 U.S.C. 557. Section 2.764 also issued under secs. 135, 141, Pub. L. 97-425, 96 Stat. 2232, 2241 (42 U.S.C. 10155, 10161). Section 2.790 also issued under sec. 103, 68 Stat. 936, as amended (42 U.S.C. 2133), and 5 U.S.C. 552. Sections 2.800 and 2.808 also issued under 5 U.S.C. 553. Section 2.809 also issued under 5 U.S.C. 553, and sec. 29, Pub. L. 85-256, 71 Stat. 579, as amended (42 U.S.C. 2039). Subpart K also issued under sec. 189, 68 Stat. 955 (42 U.S.C. 2239); sec. 134, Pub. L. 97-425, 96 Stat. 2230 (42 U.S.C. 10154).

Subpart L also issued under sec. 189, 68 Stat. 955 (42 U.S.C. 2239). Subpart M also issued under sec. 184 (42 U.S.C. 2234) and sec. 189, 68 Stat. 955 (42 U.S.C. 2239). Appendix A also issued under sec. 6, Pub. L. 91-560, 84 Stat. 1473 (42 U.S.C. 2135).

2. In § 2.101 paragraphs (a-1)(5) and (e) are removed, paragraphs (f) and (g) are redesignated as paragraphs (e) and (f) respectively, and paragraphs (a)(5), (a-1) introductory text, and (c) are revised to read as follows:

§ 2.101

Filing of application.

(a) * * *

(5) An applicant for a construction permit for a production or utilization facility which is subject to § 51.20(b) of this chapter, and is of the type specified in § 50.21(b)(2) or (3) or § 50.22 of this chapter or is a testing facility may submit the information required of applicants by part 50 of the chapter in two parts. One part shall be accompanied by the information required by § 50.30(f) of this chapter, another part shall include any information required by § 50.34(a) and, if applicable, § 50.34a of this chapter. One part may precede or follow other parts by no longer than six (6) months. If it is determined that either 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 inform 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. Whichever part is filed first shall also include the fee required by §§ 50.30(e) and 170.21 of this chapter and the information required by §§ 50.33, 50.34(a)(1) and 50.37 of this chapter. The Director of Nuclear Reactor Regulation or Director of Nuclear Material Safety and Safeguards, as appropriate, will accept for docketing an application for a construction permit for a production or utilization facility which is subject to § 51.20(b) of this chapter, and is of the type specified in § 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. The 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, that it is complete.

(a-1) Early consideration of site suitability issues. An applicant for a construction permit for a utilization facility which is subject to § 51.20(b) of this chapter and is of the type specified in § 50.21(b)(2) or (3) or § 50.22 of this chapter or is a testing facility, may request that the Commission conduct an early review and hearing and render an early partial decision in accordance with subpart F on issues of site suitability within the purview of the applicable provisions of parts 50, 51 and 100 of this chapter. In such cases, the applicant for the construction permit may submit the information required of applicants by the provisions of this chapter in three parts:

* * * * *

(c) Upon receipt and acceptance for docketing of the required portions of the application dealing with radiological health and safety and environmental matters, notice of receipt will be published in the Federal Register including an appropriate notice of hearing.

* * * * *

§ 2.102

[Amended]

3. In § 2.102, paragraph (d) is removed.

4. In § 2.104, footnote 4 and paragraph (d)(3) are removed, paragraph (d)(4) is redesignated as paragraph (d)(3), the introductory text of paragraph (d) and paragraphs (d)(1) and (d)(2) are revised to read as follows:

§ 2.104

Notice of hearing.

* * * * *

(d) In an application for a construction permit or an operating license for a facility on which a hearing is required by the Act or this chapter, the notice of hearing will, unless the Commission determines otherwise, state:

(1) A time of the hearing which will be as soon as practicable after compliance with section 189a of the Act and this part;

(2) The presiding officer for the hearing who shall be either an administrative law judge or an atomic safety and licensing board established by the Commission or by the Chief Administrative Judge of the Atomic Safety and Licensing Board Panel; and

* * * * *

5. In § 2.105, paragraph (f) is removed and paragraph (e)(2) is revised to read as follows:

§ 2.105

Notice of proposed action.

* * * * *

(e) * * *

(2) If a request for a hearing or a petition for leave to intervene is filed within the time prescribed in the notice, the presiding officer who shall be an Atomic Safety and Licensing Board established by the Commission or by the Chief Administrative Judge of the Atomic Safety and Licensing Board Panel, will rule on the request and/or petition, and the Secretary or the presiding officer will issue a notice of hearing or an appropriate order.

6. In § 2.402, paragraph (a) is revised to read as follows:

§ 2.402

Separate hearings on separate issues; consolidation of proceedings.

(a) In the case of applications under appendix N of part 52 of this chapter for construction permits for nuclear power reactors of a type described in § 50.22 of this chapter, the Commission or the presiding officer may order separate hearings on particular phases of the proceeding, such as matters related to the acceptability of the design of the reactor, in the context of the site parameters postulated for the design or environmental matters.

* * * * *

PART 50—DOMESTIC LICENSING OF PRODUCTION AND UTILIZATION FACILITIES

7. The authority citation for part 50 is revised to read as follows:

Authority: Secs. 102, 103, 104, 161, 182, 183, 186, 189, 68 Stat. 936, 937, 938, 948, 953, 954, 955, 956, as amended, sec. 234, 83 Stat. 444, as amended (42 U.S.C. 2132, 2133, 2134, 2135, 2201, 2232, 2233, 2236, 2239, 2282); secs. 201, as amended, 202, 206, 88 Stat. 1242, as amended, 1244, 1246 (42 U.S.C. 5841, 5842, 5846); sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note). Section 50.7 also issued under Pub. L. 95-601, sec. 10, 92 Stat. 2951 (42 U.S.C. 5841). Section 50.10 also issued under secs. 101, 185, 68 Stat. 955, as amended (42 U.S.C. 2131, 2235); sec. 102, Pub. L. 91-190, 83 Stat. 853 (42 U.S.C. 4332). Sections 50.13, 50.54(dd), and 50.103 also issued under sec. 108, 68 Stat. 939, as amended (42 U.S.C. 2138).

Sections 50.23, 50.35, 50.55, and 50.56 also issued under sec. 185, 68 Stat. 955 (42 U.S.C. 2235). Sections 50.33a, 50.55a and Appendix Q also issued under sec. 102, Pub. L. 91-190, 83 Stat. 853 (42 U.S.C. 4332). Sections 50.34 and 50.54 also issued under sec. 204, 88 Stat. 1245 (42 U.S.C. 5844). Sections 50.58, 50.91, and 50.92 also issued under Pub. L. 97-415, 96 Stat. 2073 (42 U.S.C. 2239). Section 50.78 also issued under sec. 122, 68 Stat. 939 (42 U.S.C. 2152). Sections 50.80—50.81 also issued under sec. 184, 68 Stat. 954, as amended (42 U.S.C. 2234). Appendix F also issued under sec. 187, 68 Stat. 955 (42 U.S.C. 2237).

8. Section 50.8 paragraph (b) is revised to read as follows:

§ 50.8

Information collection requirements: OMB approval.

* * * * *

(b) The approved information collection requirements contained in this part appear in §§ 50.30, 50.33, 50.34, 50.34a, 50.35, 50.36, 50.36a, 50.36b, 50.44, 50.46, 50.47, 50.48, 50.49, 50.54, 50.55, 50.55a, 50.59, 50.60, 50.61, 50.62, 50.63, 50.64, 50.65, 50.66, 50.68, 50.69, 50.70, 50.71, 50.72, 50.74, 50.75, 50.80, 50.82, 50.90, 50.91, 50.120, and appendices A, B, E, G, H, I, J, K, M, N,O, Q, R, and S to this part.

* * * * *

§ 50.33a

[Removed]

9. Section 50.33a is removed.

10. Section 50.80 paragraph (b) is revised to read as follows:

§ 50.80

Transfer of licenses.

* * * * *

(b) An application for transfer of a license shall include as much of the information described in §§ 50.33 and 50.34 of this part with respect to the identity and technical and financial qualifications of the proposed transferee as would be required by those sections if the application were for an initial license. The Commission may require additional information such as data respecting proposed safeguards against hazards from radioactive materials and the applicant's qualifications to protect against such hazards. The application shall include also a statement of the purposes for which the transfer of the license is requested, the nature of the transaction necessitating or making desirable the transfer of the license, and an agreement to limit access to Restricted Data pursuant to § 50.37. The Commission may require any person who submits an application for license pursuant to the provisions of this section to file a written consent from the existing licensee or a certified copy of an order or judgment of a court of competent jurisdiction attesting to the person's right (subject to the licensing requirements of the Act and these regulations) to possession of the facility involved.

* * * * *

Appendix L to Part 50—[Removed and Reserved]

11. Appendix L to part 50 is removed and reserved.

12. In Appendix N to part 50, paragraph 2, is revised to read as follows:

Appendix N to Part 50—Standardization of Nuclear Power Plant Designs; Licenses To Construct and Operate Nuclear Power Reactors of Duplicate Design at Multiple Sites

* * * * *

2. Applications for construction permits submitted pursuant to this appendix must include the information required by §§ 50.33, 50.34(a) and 50.34a(a) and (b) and be submitted as specified in § 50.4. The applicant shall also submit the information required by § 51.50 of this chapter.

* * * * *

PART 52—EARLY SITE PERMITS; STANDARD DESIGN CERTIFICATIONS; AND COMBINED LICENSES FOR NUCLEAR POWER PLANTS

13. The authority citation for part 52 continues to read as follows:

Authority: Sec. 161, 68 Stat. 948, as amended, sec. 274, 73 Stat. 688 (42 U.S.C. 2201, 2021); sec. 201, 88 Stat. 1242, as amended (42 U.S.C. 5841); sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note). Sections 150.3, 150.15, 150.15a, 150.31, 150.32 also issued under secs. 11e(2), 81, 68 Stat. 923, 935, as amended, secs. 83, 84, 92 Stat. 3033, 3039 (42 U.S.C. 2014e(2), 2111, 2113, 2114). Section 150.14 also issued under sec. 53, 68 Stat. 930, as amended (42 U.S.C. 2073). Section 150.15 also issued under secs. 135, 141, Pub. L. 97-425, 96 Stat. 2232, 2241 (42 U.S.C. 10155, 10161). Section 150.17a also issued under sec. 122, 68 Stat. 939 (42 U.S.C. 2152). Section 150.30 also issued under sec. 234, 83 Stat. 444 (42 U.S.C. 2282).

14. Section 52.77 is revised to read as follows:

§ 52.77

Contents of applications; general information.

The application must contain all of the information required by 10 CFR 50.33, as that section would apply to applicants for construction permits and operating licenses.

PART 140—FINANCIAL PROTECTION REQUIREMENTS AND INDEMNITY AGREEMENTS

15. The authority citation for part 140 is revised to read as follows:

Authority: Secs. 161, 170, 68 Stat. 948, 71 Stat. 576 as amended (42 U.S.C. 2201, 2210); secs. 201, as amended, 202, 88 Stat. 1242, as amended, 1244 (42 U.S.C. 5841, 5842); sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note); Pub. L. 109-58.

16. In § 140.11, paragraph (a)(4) is revised to read as follows:

§ 140.11

Amounts of financial protection for certain reactors.

(a) * * *

(4) In an amount equal to the sum of $300,000,000 and the amount available as secondary financial protection (in the form of private liability insurance available under an industry retrospective rating plan providing for deferred premium charges equal to the pro rata share of the aggregate public liability claims and costs, excluding costs payment of which is not authorized by section 170o.(1)(D) of the Act, in excess of that covered by primary financial protection) for each nuclear reactor which is licensed to operate and which is designed for the production of electrical energy and has a rated capacity of 100,000 electrical kilowatts or more: Provided, however, that under such a plan for deferred premium charges for each nuclear reactor which is licensed to operate, no more than $95,800,000 with respect to any nuclear incident (plus any surcharge assessed under subsection 170o.(1)(E) of the Act) and no more than $15,000,000 per incident within one calendar year shall be charged. Except that, where a person is authorized to operate a combination of 2 or more nuclear reactors located at a single site, each of which has a rated capacity of 100,000 or more electrical kilowatts but not more than 300,000 electrical kilowatts with a combined rated capacity of not more than 1,300,000 electrical kilowatts, each such combination of reactors shall be considered to be a single nuclear reactor for the sole purpose of assessing the applicable financial protection required under this section.

* * * * *

Dated at Rockville, Maryland this 11th day of October, 2005.

For the Nuclear Regulatory Commission.

Luis A. Reyes,

Executive Director for Operations.