42 U.S.C. § 2135 — Antitrust provisions governing licenses

Page 5428 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 2135 foreign corporation, or a foreign government. In any event, no license may be issued to any per- son within the United States if, in the opinion of the Commission, the issuance of a license to such person would be inimical to the common defense and security or to the health and safety of the public. (Aug. 1, 1946, ch. 724, title I, § 104, as added Aug. 30, 1954, ch. 1073, § 1, 68 Stat. 937; amended Pub. L. 91–560, § 5, Dec. 19, 1970, 84 Stat. 1472; renum- bered title I, Pub. L. 102–486, title IX, § 902(a)(8), Oct. 24, 1992, 106 Stat. 2944; Pub. L. 115–439, title I, § 106(b), Jan. 14, 2019, 132 Stat. 5577; Pub. L. 118–67, div. B, title VI, § 601, July 9, 2024, 138 Stat. 1481.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsecs. (a), (b), and (c)(2), was in the original ‘‘this Act’’, meaning act Aug. 1, 1946, ch. 724, as added by act Aug. 30, 1954, ch. 1073, § 1, 68 Stat. 919, known as the Atomic Energy Act of 1954, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 2011 of this title and Tables. AMENDMENTS 2024—Subsec. (c). Pub. L. 118–67 inserted subsec. head- ing; designated first sentence as par. (1), inserted par. heading, and substituted ‘‘Subject to paragraphs (2) and (3), the Commission’’ for ‘‘The Commission’’; des- ignated second sentence as par. (2) and inserted head- ing; and substituted par. (3) for third sentence which read as follows: ‘‘The Commission is authorized to issue licenses under this section for utilization facilities use- ful in the conduct of research and development activi- ties of the types specified in section 2051 of this title in which the licensee sells research and testing services and energy to others, subject to the condition that the licensee shall recover not more than 75 percent of the annual costs to the licensee of owning and operating the facility through sales of nonenergy services, en- ergy, or both, other than research and development or education and training, of which not more than 50 per- cent may be through sales of energy.’’ 2019—Subsec. (c). Pub. L. 115–439 struck out ‘‘and which are not facilities of the type specified in sub- section (b)’’ after ‘‘section 2051 of this title’’ and in- serted at end ‘‘The Commission is authorized to issue licenses under this section for utilization facilities use- ful in the conduct of research and development activi- ties of the types specified in section 2051 of this title in which the licensee sells research and testing services and energy to others, subject to the condition that the licensee shall recover not more than 75 percent of the annual costs to the licensee of owning and operating the facility through sales of nonenergy services, en- ergy, or both, other than research and development or education and training, of which not more than 50 per- cent may be through sales of energy.’’ 1970—Subsec. (b). Pub. L. 91–560 substituted provi- sions authorizing the issue of licenses for utilization or production facilities for industrial or commercial pur- poses (i) where specifically authorized by law or (ii) where the facility was constructed or operated under an arrangement with the Commission entered into under the cooperative power reactor demonstration program, and the applicable statutory authorization does not require licensing under section 2133, or (iii) where the facility was theretofore licensed under sec- tion 2134(b), for provisions authorizing the issue of li- censes for utilization and production facilities involved in the conduct of research and development activities leading to the demonstration of the practical value of such facilities for industrial and commercial purposes. Statutory Notes and Related Subsidiaries ENCOURAGING PRIVATE INVESTMENT IN RESEARCH AND TEST REACTORS Pub. L. 115–439, title I, § 106(a), Jan. 14, 2019, 132 Stat. 5577, provided that: ‘‘The purpose of this section [amending this section] is to encourage private invest- ment in research and test reactors.’’ § 2135. Antitrust provisions governing licenses (a) Violations of antitrust laws Nothing contained in this chapter shall relieve any person from the operation of the following Acts, as amended, ‘‘An Act to protect trade and commerce against unlawful restraints and mo- nopolies’’ approved July second, eighteen hun- dred and ninety; sections seventy-three to sev- enty-six, inclusive, of an Act entitled ‘‘An Act to reduce taxation, to provide revenue for the Government, and for other purposes’’ approved August twenty-seven, eighteen hundred and ninety-four; ‘‘An Act to supplement existing laws against unlawful restraints and monopo- lies, and for other purposes’’ approved October fifteen, nineteen hundred and fourteen; and ‘‘An Act to create a Federal Trade Commission, to defined its powers and duties, and for other pur- poses’’ approved September twenty-six, nineteen hundred and fourteen. In the event a licensee is found by a court of competent jurisdiction, ei- ther in an original action in that court or in a proceeding to enforce or review the findings or orders of any Government agency having juris- diction under the laws cited above, to have vio- lated any of the provisions of such laws in the conduct of the licensed activity, the Commis- sion may suspend, revoke, or take such other ac- tion as it may deem necessary with respect to any license issued by the Commission under the provisions of this chapter. (b) Reports to Attorney General The Commission shall report promptly to the Attorney General any information it may have with respect to any utilization of special nuclear material or atomic energy which appears to vio- late or to tend toward the violation of any of the foregoing Acts, or to restrict free competition in private enterprise. (c) Transmissions to Attorney General of copies of license applications; publication of advice; factors considered; exceptions (1) The Commission shall promptly transmit to the Attorney General a copy of any license application provided for in paragraph (2) of this subsection, and a copy of any written request provided for in paragraph (3) of this subsection; and the Attorney General shall, within a reason- able time, but in no event to exceed 180 days after receiving a copy of such application or written request, render such advice to the Com- mission as he determines to be appropriate in regard to the finding to be made by the Commis- sion pursuant to paragraph (5) of this sub- section. Such advice shall include an explana- tory statement as to the reasons or basis there- for. (2) Paragraph (1) of this subsection shall apply to an application for a license to construct or operate a utilization or production facility under section 2133 of this title: Provided, how- Page 5429 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 2135 ever, That paragraph (1) shall not apply to an ap- plication for a license to operate a utilization or production facility for which a construction per- mit was issued under section 2133 of this title unless the Commission determines such review is advisable on the ground that significant changes in the licensee’s activities or proposed activities have occurred subsequent to the pre- vious review by the Attorney General and the Commission under this subsection in connection with the construction permit for the facility. (3) With respect to any Commission permit for the construction of a utilization or production facility issued pursuant to subsection (b) of sec- tion 2134 of this title prior to December 19, 1970, any person who intervened or who sought by timely written notice to the Commission to in- tervene in the construction permit proceeding for the facility to obtain a determination of antitrust considerations or to advance a juris- dictional basis for such determination shall have the right, upon a written request to the Commission, to obtain an antitrust review under this section of the application for an oper- ating license. Such written request shall be made within 25 days after the date of initial Commission publication in the Federal Register of notice of the filing of an application for an operating license for the facility or December 19, 1970, whichever is later. (4) Upon the request of the Attorney General, the Commission shall furnish or cause to be fur- nished such information as the Attorney Gen- eral determines to be appropriate for the advice called for in paragraph (1) of this subsection. (5) Promptly upon receipt of the Attorney General’s advice, the Commission shall publish the advice in the Federal Register. Where the Attorney General advises that there may be ad- verse antitrust aspects and recommends that there be a hearing, the Attorney General or his designee may participate as a party in the pro- ceedings thereafter held by the Commission on such licensing matter in connection with the subject matter of his advice. The Commission shall give due consideration to the advice re- ceived from the Attorney General and to such evidence as may be provided during the pro- ceedings in connection with such subject mat- ter, and shall make a finding as to whether the activities under the license would create or maintain a situation inconsistent with the anti- trust laws as specified in subsection (a). (6) In the event the Commission’s finding under paragraph (5) is in the affirmative, the Commission shall also consider, in determining whether the license should be issued or contin- ued, such other factors, including the need for power in the affected area, as the Commission in its judgment deems necessary to protect the public interest. On the basis of its findings, the Commission shall have the authority to issue or continue a license as applied for, to refuse to issue a license, to rescind a license or amend it, and to issue a license with such conditions as it deems appropriate. (7) The Commission, with the approval of the Attorney General, may except from any of the requirements of this subsection such classes or types of licenses as the Commission may deter- mine would not significantly affect the appli- cant’s activities under the antitrust laws as specified in subsection (a). (8) With respect to any application for a con- struction permit on file at the time of enact- ment into law of this subsection, which permit would be for issuance under section 2133 of this title, and with respect to any application for an operating license in connection with which a written request for an antitrust review is made as provided for in paragraph (3), the Commis- sion, after consultation with the Attorney Gen- eral, may, upon determination that such action is necessary in the public interest to avoid un- necessary delay, establish by rule or order peri- ods for Commission notification and receipt of advice differing from those set forth above and may issue a construction permit or operating li- cense in advance of consideration of and findings with respect to the matters covered in this sub- section: Provided, That any construction permit or operating license so issued shall contain such conditions as the Commission deems appropriate to assure that any subsequent findings and or- ders of the Commission with respect to such matters will be given full force and effect. (9) APPLICABILITY.—This subsection does not apply to an application for a license to con- struct or operate a utilization facility or pro- duction facility under section 2133 or 2134(b) of this title that is filed on or after August 8, 2005. (Aug. 1, 1946, ch. 724, title I, § 105, as added Aug. 30, 1954, ch. 1073, § 1, 68 Stat. 938; amended Pub. L. 88–489, § 14, Aug. 26, 1964, 78 Stat. 606; Pub. L. 91–560, § 6, Dec. 19, 1970, 84 Stat. 1473; renumbered title I, Pub. L. 102–486, title IX, § 902(a)(8), Oct. 24, 1992, 106 Stat. 2944; Pub. L. 107–273, div. C, title IV, § 14102(c)(2)(D), Nov. 2, 2002, 116 Stat. 1921; Pub. L. 109–58, title VI, § 625, Aug. 8, 2005, 119 Stat. 784.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsec. (a), was in the original ‘‘this Act’’, meaning act Aug. 1, 1946, ch. 724, as added by act Aug. 30, 1954, ch. 1073, § 1, 68 Stat. 919, known as the Atomic Energy Act of 1954, which is clas- sified principally to this chapter. For complete classi- fication of this Act to the Code, see Short Title note set out under section 2011 of this title and Tables. The act to protect trade and commerce against un- lawful restraints and monopolies, referred to in subsec. (a), is act July 2, 1890, ch. 647, 26 Stat. 209, known as the Sherman Act, which is classified to sections 1 to 7 of Title 15, Commerce and Trade. For complete classifica- tion of this Act to the Code, see Short Title note set out under section 1 of Title 15 and Tables. Sections seventy-three to seventy-six, inclusive, of an act entitled ‘‘An Act to reduce taxation, to provide rev- enue for the Government, and for other purposes’’, re- ferred to in subsec. (a), are sections 73 to 76 of act Aug. 27, 1894, ch. 349, 28 Stat. 570, known as the Wilson Tariff Act, which are classified to sections 8 to 11, respec- tively, of Title 15. For complete classification of this Act to the Code, see Short Title note set out under sec- tion 8 of Title 15 and Tables. ‘‘An Act to supplement existing laws against unlaw- ful restraints and monopolies, and for other purposes’’ approved October fifteen, nineteen hundred and four- teen, referred to in subsec. (a), is act Oct. 15, 1914, ch. 323, 38 Stat. 730, known as the Clayton Act, which is classified generally to sections 12, 13, 14 to 19, 21, and 22 to 27 of Title 15, and sections 52 and 53 of Title 29, Labor. For further details and complete classification Page 5430 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 2136 of this Act to the Code, see References in Text note set out under section 12 of Title 15 and Tables. The act to create a Federal Trade Commission, to de- fine its powers and duties, and for other purposes, re- ferred to in subsec. (a), is act Sept. 26, 1914, ch. 311, 38 Stat. 717, known as the Federal Trade Commission Act, which is classified generally to subchapter I (§ 41 et seq.) of chapter 2 of Title 15. For complete classifica- tion of this Act to the Code, see section 58 of Title 15 and Tables. PRIOR PROVISIONS Provisions similar to this section were contained in section 1807(c) of this title, prior to the general amend- ment and renumbering of act Aug. 1, 1946, by act Aug. 30, 1954. AMENDMENTS 2005—Subsec. (c)(9). Pub. L. 109–58 added par. (9). 2002—Subsec. (a). Pub. L. 107–273 substituted ‘‘sev- enty-six’’ for ‘‘seventy-seven’’. 1970—Subsec. (c). Pub. L. 91–560 designated existing provisions as pars. (1), (2), (4), and (5) and amended such provisions by extending the time for the Attorney Gen- eral to give advice from 90 to 180 days and provided for review of licenses once granted under section 2133 of this title, and when the Attorney General recommends that there be a hearing, authorized the Commission to hold hearings and permit the Attorney General to ap- pear as a party and to make a finding as to whether the activities under the license would be inconsistent with the antitrust laws, and in par. (3), provided for a review of the permit issued under section 2134(b) of this title, and added pars. (6) to (8). 1964—Subsec. (a). Pub. L. 88–489 struck out ‘‘, including the provisions which vest title to all spe- cial nuclear material in the United States,’’ before ‘‘shall relieve any person’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2002 AMENDMENT Amendment by Pub. L. 107–273 effective Nov. 2, 2002, and applicable only with respect to cases commenced on or after Nov. 2, 2002, see section 14103 of Pub. L. 107–273, set out as a note under section 3 of Title 15, Commerce and Trade. § 2136. Classes of facilities The Commission may— (a) group the facilities licensed either under section 2133 or 2134 of this title into classes which may include either production or utili- zation facilities or both, upon the basis of the similarity of operating and technical charac- teristics of the facilities; (b) define the various activities to be carried on at each such class of facility; and (c) designate the amounts of special nuclear material available for use by each such facil- ity. (Aug. 1, 1946, ch. 724, title I, § 106, as added Aug. 30, 1954, ch. 1073, § 1, 68 Stat. 938; renumbered title I, Pub. L. 102–486, title IX, § 902(a)(8), Oct. 24, 1992, 106 Stat. 2944.) § 2137. Operators’ licenses The Commission shall— (a) prescribe uniform conditions for licens- ing individuals as operators of any of the var- ious classes of production and utilization fa- cilities licensed in this chapter; (b) determine the qualifications of such indi- viduals; (c) issue licenses to such individuals in such form as the Commission may prescribe; and (d) suspend such licenses for violations of any provision of this chapter or any rule or regulation issued thereunder whenever the Commission deems such action desirable. (Aug. 1, 1946, ch. 724, title I, § 107, as added Aug. 30, 1954, ch. 1073, § 1, 68 Stat. 939; renumbered title I, Pub. L. 102–486, title IX, § 902(a)(8), Oct. 24, 1992, 106 Stat. 2944.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in subsecs. (a) and (d), was in the original ‘‘this Act’’, meaning act Aug. 1, 1946, ch. 724, as added by act Aug. 30, 1954, ch. 1073, § 1, 68 Stat. 919, known as the Atomic Energy Act of 1954, which is classified principally to this chapter. For complete classification of this Act to the Code, see Short Title note set out under section 2011 of this title and Tables. Statutory Notes and Related Subsidiaries TECHNICAL CAPABILITY OF LICENSEE PERSONNEL IM- PROVEMENT PLAN; STUDY OF LICENSE REQUIREMENT FOR PLANT MANAGERS AND SENIOR LICENSEE OFFI- CERS; REPORT TO CONGRESS Pub. L. 96–395, title III, § 307, June 30, 1980, 94 Stat. 791, provided that: ‘‘(a) The Commission is authorized and directed to prepare a plan for improving the technical capability of licensee personnel to safely operate utilization facili- ties licensed under section 103 or 104b. of the Atomic Energy Act of 1954 [sections 2133 and 2134(b) of this title]. In proposing such plan, the Commission shall consider the feasibility of requiring standard manda- tory training programs for nuclear facility operators, including classroom study, apprenticeships at the facil- ity, and emergency simulator training. Such plan shall include specific criteria for more intensive training and retraining of operator personnel licensed under section 107 of the Atomic Energy Act of 1954 [this section], and for the licensing of such personnel, to assure— ‘‘(1) conformity with all conditions and require- ments of the operating license; ‘‘(2) early identification of accidents, events, or event sequences which may significantly increase the likelihood of an accident; and ‘‘(3) effective response to any such event or se- quence. Such plan shall include provision for Commission re- view and approval of the qualifications of personnel conducting any required training and retraining pro- gram. The plan shall also include requirements for the renewal of operator licenses including, to the extent practicable, requirements that the operator— ‘‘(A) has been actively and extensively engaged in the duties listed in such license, ‘‘(B) has discharged such duties safely to the satis- faction of the Commission, ‘‘(C) is capable of continuing such duties, and ‘‘(D) has participated in a requalification training program. Such plan shall include criteria for suspending or re- voking operator licenses. In addition, the Commission shall also consider the feasibility of requiring such li- censed operator to pass a requalification test every six months including— ‘‘(i) written questions, and ‘‘(ii) emergency simulator exams. The Commission shall transmit to the Congress the plan required by this subsection within six months after the date of the enactment of this Act [June 30, 1980], and shall implement as expeditiously as prac- ticable each element thereof not requiring legislative enactment.