U.S. Code » Title 42 » Chapter CHAPTER 23— DEVELOPMENT AND CONTROL OF ATOMIC ENERGY › Division Division A— Atomic Energy › Subchapter SUBCHAPTER IX— ATOMIC ENERGY LICENSES

42 U.S.C. § 2135

Antitrust provisions governing licenses

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(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 monopolies” approved July second, eighteen hundred and ninety; sections seventy-three to seventy-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 monopolies, 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 purposes” approved September twenty-six, nineteen hundred and fourteen. In the event a licensee is found by a court of competent jurisdiction, either in an original action in that court or in a proceeding to enforce or review the findings or orders of any Government agency having jurisdiction under the laws cited above, to have violated any of the provisions of such laws in the conduct of the licensed activity, the Commission may suspend, revoke, or take such other action 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 violate 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 reasonable time, but in no event to exceed 180 days after receiving a copy of such application or written request, render such advice to the Commission as he determines to be appropriate in regard to the finding to be made by the Commission pursuant to paragraph (5) of this subsection. Such advice shall include an explanatory statement as to the reasons or basis therefor.(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, however, That paragraph (1) shall not apply to an application for a license to operate a utilization or production facility for which a construction permit 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 previous 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 section 2134 of this title prior to December 19, 1970, any person who intervened or who sought by timely written notice to the Commission to intervene in the construction permit proceeding for the facility to obtain a determination of antitrust considerations or to advance a jurisdictional 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 operating 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 furnished such information as the Attorney General 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 adverse antitrust aspects and recommends that there be a hearing, the Attorney General or his designee may participate as a party in the proceedings 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 received from the Attorney General and to such evidence as may be provided during the proceedings in connection with such subject matter, and shall make a finding as to whether the activities under the license would create or maintain a situation inconsistent with the antitrust 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 continued, 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 determine would not significantly affect the applicant’s activities under the antitrust laws as specified in subsection (a).(8) With respect to any application for a construction permit on file at the time of enactment 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 Commission, after consultation with the Attorney General, may, upon determination that such action is necessary in the public interest to avoid unnecessary delay, establish by rule or order periods for Commission notification and receipt of advice differing from those set forth above and may issue a construction permit or operating license in advance of consideration of and findings with respect to the matters covered in this subsection: 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 orders 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 construct or operate a utilization facility or production 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 NotesReferences 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 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.

The act to protect trade and commerce against unlawful 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 classification 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 revenue for the Government, and for other purposes”, referred 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, respectively, of Title 15. For complete classification of this Act to the Code, see Short Title note set out under section 8 of Title 15 and Tables.

“An Act to supplement existing laws against unlawful restraints and monopolies, and for other purposes” approved October fifteen, nineteen hundred and fourteen, 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 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 define its powers and duties, and for other purposes, referred 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 classification 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 amendment 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 “seventy-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 General 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 appear 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 special nuclear material in the United States,” before “shall relieve any person”.

Statutory Notes and Related SubsidiariesEffective 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.

Notes of Decisions
Cited in 17 cases, 1969–1999 · leading case: City of Cleveland v. The Cleveland Elec. Illuminating Co., 734 F.2d 1157 (6th Cir. 1984).
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City of Cleveland v. The Cleveland Elec. Illuminating Co., 734 F.2d 1157 (6th Cir. 1984). · cites it 3× “” 42 U.S.C. § 2135 (c)(5). Both the Justice Department and the City of Cleveland intervened in the proceedings to complain that Cleveland Electric and the other utilities had violated the antitrust laws in the past and that granting them licenses to operate the requested nuclear…”
City of Cleveland v. Cleveland Elec. Illuminating Co., 538 F. Supp. 1227 (N.D. Ohio 1980). · cites it 7× “(footnote omitted) Contrary to the arguments of the City, the statutory authority and responsibility of the NRC is related solely to prelicensing anticompetitive review and is severely proscribed to considerations of efformation and perpetuation of reasonably probable…”
Alabama Power Co. v. Nuclear Regulatory Comm'n & the United States of Am., 692 F.2d 1362 (11th Cir. 1983). · cites it 4× “The Appeal Board found that the unconditional licensing of these nuclear plants would create or *1364 maintain a situation inconsistent with the antitrust laws and their underlying policies and, pursuant to Section 105(c) of the Atomic Energy Act of 1954, 42 U.S.C. § 2135 (c) as…”
City of Gainesville v. Florida Power & Light Co., 488 F. Supp. 1258 (S.D. Fla. 1980). “The Cities have also argued that Congress thought nuclear-generated electricity to be subject to the Clayton and Robinson-Patman Acts because Section 105(a) of the Atomic Energy Act, 42 U.S.C. § 2135 (a), explicitly provides that nuclear licensees remain subject to various…”
City of Cleveland v. Cleveland Elec. Illuminating Co., 538 F. Supp. 1280 (N.D. Ohio 1980). · cites it 7× “The purported issues of fact which the City maintains are properly submitted to the jury are as follows: (1) Did the antitrust review proceedings involving the City and CEI which were conducted before the NRC pursuant to 42 U.S.C. § 2135 (c)(5) after receiving the *1283 Attorney…”
Ft. Pierce Utils. Auth. v. United States, 606 F.2d 986 (D.C. Cir. 1979). · cites it 11× “Atomic Energy Act § 105(c)(3), 42 U.S.C. § 2135 (c)(3) (1976). The operating licenses at issue here, however, fell outside this limited exception, because, as indicated above, no antitrust objections were raised during the construction permit proceedings.”
Greensboro Lumber Co. v. Georgia Power Co., 643 F. Supp. 1345 (N.D. Ga. 1986). “Pursuant to Section 105(c) of the Atomic Energy Act, 42 U.S.C. § 2135 , the AEC was required to review Georgia Power’s license applications to determine whether the issuance of the requested license to Georgia Power “would create or maintain a situation inconsistent with the…”
Cities of Statesville v. Atomic Energy Comm'n, 441 F.2d 962 (D.C. Cir. 1969). · cites it 5× “The petitioners also assert that section 105(a) of the Act, 42 U.S.C. § 2135 (a) (1964), makes it clear that antitrust laws are applicable to everything contained in that chapter.”
City of Benton v. Nuclear Regulatory Comm'n, 136 F.3d 824 (D.C. Cir. 1998). “18,151-52 (1995); see 42 U.S.C. § 2135 (c)(2) (in-depth antitrust review is warranted only if NRC determines there have been significant changes in licensee’s activities).”
In Re Uranium Antitrust Litig., 552 F. Supp. 518 (N.D. Ill. 1982). “See 42 U.S.C. § 2135 (a) (1976) (§ 105 of the Atomic Energy Act, which provides that “Nothing contained in this chapter shall relieve any person from the operation of’ the antitrust laws.”
Ohio Edison Co. v. Zech, 701 F. Supp. 4 (D.D.C. 1988). “See 42 U.S.C. § 2135 . Based on those hearings, the NRC imposed eleven conditions restricting the business activities of Perry’s owners, one of which is plaintiff.”
United Nuclear Corp. v. Combustion Eng'g, Inc., 302 F. Supp. 539 (E.D. Pa. 1969). “But the conclusive answer is found in 42 U.S.C. § 2135 , which provides: “(a) Nothing contained in this chapter shall relieve any person from the operation of sections * * * 14-19 * * * of Title 15 * * * ” The legislative history of the Private Ownership of Special Nuclear…”
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