Nuclear Regulatory Commission (NRC) continues to raise questions regarding foreign ownership interests in nuclear energy projects.

The Atomic Energy Act of 1954 includes at least one Cold War era relic. Section 103.d of the Act provides that no license for a "production or utilization facility" (a power reactor is a "utilization facility") may be issued to any corporation or other entity that the Commission knows or has reason to believe is "owned, controlled, or dominated by an alien, foreign corporation or foreign government." This restriction presents obstacles to foreign investment in nuclear projects in the United States. The restriction seems anachronistic in an era in which most new reactor technologies have been developed by foreign controlled corporations (e.g., AREVA, GE Hitachi, Toshiba-Westinghouse).

Most recently, the NRC's Atomic Safety and Licensing Board heard argument on whether the application of UniStar Nuclear Energy for a license to construct and operate the proposed Calvert Cliffs Unit 3 should be rejected because UniStar has become wholly-owned by a U.S. subsidiary of Electricité de France (EDF) (that is, after Constellation Energy Group sold its 50% interest in UniStar to the EDF subsidiary in late 2010). The NRC Staff is continuing to review the Calvert Cliffs 3 application, but has rejected UniStar's proposed "negation action plan" intended to mitigate foreign ownership, control, or domination related to the French parent. The negation plan, at least with the current 100% ultimate foreign ownership, was considered by the NRC Staff to be insufficient to satisfy the Atomic Energy Act. UniStar has since committed to obtain a U.S. partner prior to receiving a license from the NRC. The Atomic Safety and Licensing Board is now considering whether the application should be rejected in the meantime.

The NRC's concerns for foreign ownership have also surfaced in connection with the proposed South Texas Project, Units 3 and 4. And, the NRC has been raising questions in connection with foreign shareholders in the Yankee Companies (Maine Yankee, Connecticut Yankee, and Yankee Atomic). The Yankee Companies are licensees for decommissioned sites and presently possess only spent fuel storage facilities. Although licensed under Part 50, these sites are certainly not "utilization facilities." Nonetheless, the foreign ownership issue has paradoxically threatened to delay the proposed merger of two of the Yankees' domestic parents, Northeast Utilities and NSTAR.

Resolution of these issues for Calvert Cliffs, South Texas, and the Yankees will go far to clarify the scale of the regulatory obstacles to foreign investment in U.S. nuclear development posed by the Atomic Energy Act.