U.S. Advanced Boiling Water Reactor Aircraft Impact Design Certification Amendment, 78096-78121 [2011-31906]

Agencies

• NUCLEAR REGULATORY COMMISSION

[Federal Register Volume 76, Number 242 (Friday, December 16, 2011)]
[Rules and Regulations]
[Pages 78096-78121]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-31906]


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NUCLEAR REGULATORY COMMISSION

10 CFR Part 52

RIN 3150-AI84
[NRC-2010-0134]


U.S. Advanced Boiling Water Reactor Aircraft Impact Design 
Certification Amendment

AGENCY: Nuclear Regulatory Commission.

ACTION: Final rule.

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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC or the Commission) 
is amending its regulations to certify an amendment to the U.S. 
Advanced Boiling Water Reactor (U.S. ABWR) standard plant design to 
comply with the NRC's aircraft impact assessment (AIA) regulations. 
This action allows applicants or licensees intending to construct and 
operate a U.S. ABWR to comply with the NRC's AIA regulations by 
referencing the amended design certification rule (DCR). The applicant 
for certification of the amendment to the U.S. ABWR design is STP 
Nuclear Operating Company (STPNOC).

DATES: Effective Date: The effective date of this rule is January 17, 
2012. The incorporation by reference of certain material specified in 
this regulation is approved by the Director of the Office of the 
Federal Register as of January 17, 2012.

ADDRESSES: You can access publicly available documents related to this 
document using the following methods:
     NRC's Public Document Room (PDR): The public may examine 
and have copied, for a fee, publicly available documents at the NRC's 
PDR, O1-F21, One White Flint North, 11555 Rockville Pike, Rockville, 
Maryland 20852.
     NRC's Agencywide Documents Access and Management System 
(ADAMS): Publicly available documents created or received at the NRC 
are available online in the NRC Library at https://www.nrc.gov/reading-rm/adams.html. From this page, the public can gain entry into ADAMS, 
which provides text and image files of the NRC's public documents. If 
you do not have access to ADAMS or if there are problems in accessing 
the documents located in ADAMS, contact the NRC's PDR reference staff 
at 1-(800) 397-4209, (301) 415-4737, or by email at 
pdr.resource@nrc.gov.
     Federal Rulemaking Web Site: Public comments and 
supporting materials related to this final rule can be found at https://www.regulations.gov by searching on Docket ID NRC-2010-0134. Address 
questions about NRC dockets to Carol Gallagher at (301) 492-3668, or by 
email at Carol.Gallagher@nrc.gov.

FOR FURTHER INFORMATION CONTACT: Mr. R. Frederick Schofer, Office of 
New Reactors, U.S. Nuclear Regulatory Commission, Washington, DC 20555-
0001, telephone: (301) 415-5682, email: Fred.Schofer@nrc.gov; or Stacy 
Joseph, Office of New Reactors, U.S. Nuclear Regulatory Commission, 
Washington, DC 20555-0001, telephone: (301) 415-2849, email: 
Stacy.Joseph@nrc.gov.

SUPPLEMENTARY INFORMATION: 

I. Background
II. Summary and Analysis of Public Comments on the Proposed Rule
III. Discussion
    A. Technical Evaluation of the STPNOC Amendment to U.S. ABWR 
Design
    B. Regulatory and Policy Issues
    C. Changes to Appendix A to 10 CFR Part 52--Design Certification 
Rule for the U.S. Advanced Boiling Water Reactor
IV. Section-by-Section Analysis
    A. Introduction (Section I)
    B. Definitions (Section II)
    C. Scope and Contents (Section III)
    D. Additional Requirements and Restrictions (Section IV)
    E. Applicable Regulations (Section V)
    F. Issue Resolution (Section VI)
    G. Processes for Changes and Departures (Section VIII)
    H. Records and Reporting (Section X)
V. Agreement State Compatibility
VI. Availability of Documents
VII. Voluntary Consensus Standards
VIII. Finding of No Significant Environmental Impact: Availability
IX. Paperwork Reduction Act Statement
X. Regulatory Analysis
XI. Regulatory Flexibility Act Certification
XII. Backfitting
XIII. Congressional Review Act

I. Background

    Title 10 of the Code of Federal Regulations (10 CFR), part 52, 
``Licenses, Certifications, and Approvals for Nuclear Power Plants,'' 
Subpart B, presents the process for obtaining standard design 
certifications. Section 52.63, ``Finality of standard design 
certifications,'' provides criteria for determining when the Commission 
may amend the certification information for a previously certified 
standard design in response to a request for amendment from any person. 
On June 30, 2009, the STPNOC tendered its application with the NRC for 
amendment of the U.S. ABWR standard plant design certification to 
comply with the requirements of 10 CFR 50.150, ``Aircraft impact 
assessment'' (ADAMS Accession No. ML092040048). The STPNOC submitted 
this application in accordance with 10 CFR 52.63. The STPNOC proposed 
several changes to the certified U.S. ABWR design to comply with 10 CFR 
50.150, including the addition of an alternate feedwater injection 
system, the addition and upgrading of fire barriers and doors, and the 
strengthening of certain structural barriers. The NRC formally accepted 
the application as a docketed application for amendment to the U.S. 
ABWR design certification (Docket No. 52-001) on December 1, 2009 (74 
FR 62829).
    On June 12, 2009 (74 FR 28112), the NRC amended its regulations to 
require applicants for new nuclear power reactor designs to perform a 
design-specific assessment of the effects of the impact of a large 
commercial aircraft (the AIA rule). These new provisions in 10 CFR 
50.150 require applicants to use realistic analyses to identify and 
incorporate design features and functional capabilities to ensure, with 
reduced use of operator actions, that (1) the reactor core remains 
cooled or the containment remains intact, and (2) spent fuel cooling or 
spent fuel pool integrity is maintained. When it issued the AIA rule, 
the Commission stated that the requirements in existence at that time, 
in conjunction with the March 2009 revisions to 10 CFR 50.54 to address 
loss of large areas of the plant due to explosions or fires, would 
continue to provide adequate protection of the public health and safety 
and the common defense and security. Nevertheless, the Commission 
decided to also require applicants for new nuclear power reactors to 
incorporate into their design additional features to show that the 
facility can withstand the effects of an aircraft impact. The 
Commission stated that the AIA rule to address the capability of new 
nuclear

[[Page 78097]]

power reactors relative to an aircraft impact is based both on enhanced 
public health and safety and enhanced common defense and security, but 
is not necessary for adequate protection. Rather, the AIA rule's goal 
is to enhance the facility's inherent robustness at the design stage.
    The AIA rule requirements apply to various categories of 
applicants, including applicants for combined licenses (COLs) that 
reference a standard design certification issued before the effective 
date of the AIA rule, which has not been amended to comply with the 
rule. These COL applicants have two methods by which they can comply 
with 10 CFR 50.150. They can request an amendment to the certified 
design or they can address the requirements of 10 CFR 50.150 directly 
in their COL application. The STPNOC submitted an application for a COL 
on September 20, 2007. The STPNOC has requested this amendment to the 
U.S. ABWR-certified design to address the requirements of the AIA rule.

II. Summary and Analysis of Public Comments on the Proposed Rule

    The NRC published the U.S. ABWR Aircraft Impact Design 
Certification Amendment proposed rule in the Federal Register on 
January 20, 2011 (76 FR 3540). The public comment period for the 
proposed rule closed on April 5, 2011. The NRC received three comment 
letters on the proposed rule. Of those comments, one commenter, Nuclear 
Innovation North America, LLC (NINA), was in favor of the proposed 
amendment to the U.S. ABWR; one commenter, GE Hitachi Nuclear Energy 
(GEH), was against the proposed amendment to the U.S. ABWR, and one 
commenter, Thomas Shadis, addressed issues unrelated to the proposed 
amendment to the U.S. ABWR. The comments and responses are summarized 
in the following paragraphs.

NRC Use of ``Branches'' and ``Options''

    Comment: The NRC should suspend the STPNOC amendment and review the 
proposed changes to the ABWR design certification as departures in the 
STP Units 3 and 4 combined license application, as is allowed by the 
AIA Rule, 10 CFR 50.150(a)(3)(v)(B) and the associated provision in 10 
CFR 52.79(a)(47). The proposed rulemaking uses a regulatory approach 
solely for the purpose of supporting the combined license application 
for the STP Units 3 and 4. (GEH-1)
    NRC Response: The NRC disagrees with the commenter's understanding 
that the ``options'' approach is being used in this proposed amendment 
of the U.S. ABWR DCR solely to support the COL application for the 
South Texas Project (STP) Units 3 and 4. On the contrary, as stated in 
the statements of consideration (SOC) for the proposed U.S. ABWR 
amendment, the NRC is proposing to use the ``options'' approach after a 
comprehensive review of a set of considerations. To reiterate the NRC's 
bases (as stated in the SOC for the proposed U.S. ABWR amendment), 
there is no statute or NRC regulation prohibiting the use of the 
``branches'' approach, nor are there any statutory or NRC regulatory 
provisions which prohibit the use of the ``options'' approach. All of 
the NRC's safety and regulatory objectives are met under the 
``options'' approach. The STPNOC is providing sufficient information to 
determine its technical qualifications to supply the STPNOC-sponsored 
amendments addressing the AIA rule to third party users (i.e., users 
other than the STPNOC itself).
    In addition, the NRC believes that there are no insurmountable 
issues in requiring the user (in most cases, the COL applicant 
referencing the U.S. ABWR and the STPNOC option) to prepare a single 
Design Control Document (DCD) integrating information from both the DCD 
developed by GE Nuclear Energy (GE) and the DCD developed by the 
STPNOC. The ``options'' approach avoids or addresses all of the 
STPNOC's concerns with the use of the ``branches'' alternative for its 
request to amend the U.S. ABWR. There would be a limited period in 
which the STPNOC option could be referenced by a future COL applicant, 
that is, until the renewal of the U.S. ABWR design certification. 
Finally, the ``options'' approach fully protects the legitimate 
proprietary and commercial interests of GE in the original U.S. ABWR 
design certification. Upon consideration of the information presented 
by the STPNOC in light of the NRC's technical and regulatory concerns, 
the NRC developed the ``options'' approach to address the STPNOC 
amendment. As was stated in the SOC, if the NRC receives other limited-
scope design certification amendments (similar in scope to the STPNOC 
amendment request), it will consider whether the ``branches'' approach 
or the ``options'' approach offers the most effective and efficient 
regulatory option at that time based on the scope of the amendment and 
the specific circumstances associated with the particular application.
    Inasmuch as the basis for the commenter's proposal is incorrect, 
the NRC declines to adopt the commenter's proposed course of action. No 
change was made to the final rule as a result of this comment.
    Comment: The NRC should suspend the STPNOC amendment and review the 
proposed changes to the ABWR design certification as departures in the 
STP Units 3 and 4 combined license application, as is allowed by the 
AIA Rule, 10 CFR 50.150(a)(3)(v)(B) and the associated provision in 10 
CFR 52.79(a)(47). The ``options'' and ``branches'' approaches introduce 
complexity and do not encourage standardization within a single design. 
(GEH-2)
    NRC Response: The NRC agrees with the commenter that the adoption 
of both the ``option'' and ``branches'' approaches to amendment (and 
renewal) of a DCR will introduce complexity to the regulatory scheme. 
However, the commenter did not explain why the NRC's proposal to use 
the ``options'' approach was not the best alternative to address the 
circumstances raised by the STPNOC amendment, as discussed in the SOC 
of the proposed rule.
    Moreover, the solution proposed by the commenter, viz., to process 
the amendment as a plant-specific departure for the STPNOC plants, 
ignores the following considerations. First, the ``departure'' concept 
itself may be regarded as movement away from standardization. The GEH 
did not present any argument why ``departures'' are preferable to 
``options'' when considering the effect on standardization. Second, a 
departure, by its nature, represents a plant-specific dispensation from 
compliance with the standardized provisions of a design certification. 
A departure from the same design provision of a design certification 
could be different among different plants. By contrast, the option 
represents a single alternative to a provision of a design 
certification that would be used by every applicant/licensee 
referencing that option and is more in keeping with the standardization 
goal envisioned by the NRC under the design certification rulemaking 
process. Thus, the use of the ``option'' approach embodies the 
standardization concept more closely than the commenter's proposed use 
of departures. Third, the STPNOC wishes to be a supplier of the U.S. 
ABWR-certified design as is permitted by the current regulation. 
Processing the STPNOC amendment request as a ``departure'' would be 
inconsistent with the applicant's goals, and there appeared to be no 
significant issues or considerations which, considered individually or 
together, precluded the

[[Page 78098]]

use of the ``options'' approach as an acceptable approach for 
accommodating the STPNOC objectives. Finally, the ``options'' approach 
is limited in its ``lifetime.'' As discussed earlier, the STPNOC design 
changes, which are the subject of this U.S. ABWR amendment, are 
embodied in the proposed U.S. ABWR design certification renewal 
currently being pursued by the Toshiba Corporation. Upon renewal of the 
U.S. ABWR with the design changes requested by Toshiba Corporation in 
its renewal application, the STPNOC option cannot be referenced by any 
other applicant. These considerations were addressed in the SOC for the 
proposed U.S. ABWR rule, and the comment did not contain a critique of 
these considerations.
    For these reasons, the NRC declines to adopt the commenter's 
proposed course of action. No change was made to the final rule as the 
result of this comment.
    Comment: The ``options'' approach, as well as the ``branches'' 
approach, undermines the protection afforded by the Commission in its 
decision to use rulemaking to certify standard designs. (GEH-3)
    NRC Response: The NRC disagrees with the comment. The commenter 
provided no basis for the assertion that the ``branches'' approach 
undermines the protection afforded by the design certification 
rulemaking concept. The comment included no analysis of the discussion 
in the SOC for the proposed U.S. ABWR amendment, which explains the 
NRC's bases for its view that protection of the original design 
certification applicant's legitimate commercial interests is afforded 
by the ``branches'' approach. No change was made to the final rule as 
the result of this comment.
    Comment: If the NRC proceeds with the ABWR amendment, then the NRC 
should remove the SOC discussion regarding renewal of a design 
certification rule. The STPNOC is not an applicant for renewal, and the 
NRC need not make a decision at this time regarding how it will later 
treat multiple renewal applications for a single design certification. 
(GEH-4)
    NRC Response: The NRC disagrees with the comment. The NRC believes 
that the most effective regulatory approach for addressing the multiple 
supplier issue is to consider all relevant technical, regulatory, and 
legal issues associated with multiple suppliers of a design the first 
time that the multiple supplier issue must actually be resolved by the 
NRC. The NRC regards such early consideration, with the view of 
establishing (to the extent that it is practical) a consistent 
regulatory approach on multiple suppliers at both amendment and 
renewal, to be desirable. Stakeholders will have the benefit of the 
NRC's position and may conduct their business accordingly. By focusing 
on the multiple supplier issue at one time, the NRC believes that its 
determination of the issue will integrate all known issues and 
considerations, and be accomplished in the most resource-efficient 
manner. Public understanding of the NRC's regulatory consideration and 
determination ensures public confidence in the NRC's approach. In 
short, NRC resolution in a comprehensive fashion of the multiple 
supplier issue is intended to provide regulatory stability, 
predictability, transparency, and public confidence.
    The NRC concedes that the NRC is not legally required to make a 
decision, in the context of a DCR amendment raising the issue of 
multiple suppliers, to also address multiple suppliers at design 
certification renewal. However, the commenter did not assert that the 
NRC is legally prohibited from addressing the multiple supplier issues 
in a comprehensive fashion as part of the STPNOC amendment, and the NRC 
is not aware of any such prohibition.
    For these reasons, the NRC declines to adopt the course of action 
proposed in the comment. No change was made to either the SOCs for the 
final STPNOC amendment or the final rule language as the result of this 
comment.
    Comment: The NRC should remove all discussion regarding commercial 
value of a design certification, as the NRC has no direct knowledge 
regarding how potential customers would value a design certification. 
(GEH-5)
    NRC Response: The NRC notes that the commenter did not cite 
specific portions of the SOC for the proposed rule which are 
objectionable nor did it cite specific portions of the SOC that should 
be removed. The NRC does not believe that the SOC actually attempts to 
characterize or place a ``commercial value'' of a design certification. 
The NRC also agrees with the commenter's implicit assertion that the 
character and magnitude of any ``commercial value'' to any particular 
design certification has no relevance to the NRC's resolution of the 
multiple suppliers' issue.
    Thus, the NRC interprets this comment as requesting that the NRC 
remove references in the SOC with respect to the Commission's 
determination that the ``branches'' approach protects, inter alia, the 
``legitimate commercial interests [emphasis added]'' of the original 
design certification applicant. This discussion is set forth in the 
proposed rule's SOC. The NRC disagrees with the comment as understood. 
As discussed in the SOC, industry stakeholders in the original 10 CFR 
part 52 rulemaking opposed the use of rulemaking to approve (certify) 
designs because they felt that their legitimate commercial interests 
(including, but not limited to, protection of trade secrets and other 
proprietary information) would not be protected in rulemaking. Industry 
stakeholders repeated and amplified these concerns in the development 
of the U.S. ABWR and the System 80+, the first two DCRs. The NRC's 
response to industry stakeholder concerns were reflected in the 
regulatory approach adopted for the U.S. ABWR and System 80+, as 
discussed in the SOC for this amendment of the U.S. ABWR DCR. Hence, 
the NRC believes that it must address the protection of the 
(legitimate) commercial interests of the original design certification 
applicant where an entity intending to supply the certified design that 
is not the original applicant seeks either the amendment or the renewal 
of a DCR. Such NRC discussion simply recognizes the potential existence 
of the commercial interests of the original design certification 
applicant, as a reference for assuring that the proposed rulemaking 
does not significantly diminish or eliminate entirely those commercial 
interests without determining their actual existence or magnitude.
    For these reasons, the NRC declines to adopt the commenter's 
suggestion. No change was made to either the SOCs for the final STPNOC 
amendment or the final rule language as the result of this comment.
    Comment: Regardless of NRC regulatory provisions regarding use of 
an alternative vendor [a ``supplier'' under the NRC's proposed 
terminology] in a combined license proceeding, the NRC should treat an 
alternate entity's application as a new design certification under the 
provisions of 10 CFR 52.59(c). (GEH-6)
    NRC Response: The NRC disagrees with the comment. The NRC did not 
intend, when it adopted 10 CFR 52.59(c) as part of the 2007 revision of 
10 CFR part 52, for this provision to address the circumstance where 
multiple entities wish to supply the same certified design. Section 
52.59 was intended to address a different issue: At what point would 
the changes requested by the design certification renewal applicant be 
``so extensive that the NRC concludes that an essentially new standard 
design is being proposed,'' 72 FR 49352, 49444 (second column), August 
28, 2007. Thus, the NRC does not regard Sec.  52.59(c) as constituting 
the NRC's established approach for dealing with

[[Page 78099]]

multiple suppliers of the same certified design.
    The NRC acknowledges that it may be possible to interpret Sec.  
52.59(c) in the manner suggested by the commenter. However, the 
commenter's proposed approach was considered and rejected by the NRC 
during the development of the proposed STPNOC design certification 
amendment rulemaking. The reasons for the NRC's rejection of a separate 
rulemaking were set forth in the SOC for the proposed rule. No comments 
on the proposed rule have caused the NRC to reconsider its favored 
approach to address multiple suppliers, as described in the proposed 
rule. The NRC notes that such re-interpretation may require additional 
notice and comment. The NRC declines to seek additional public comment 
on the commenter's proposed rulemaking approach because that approach 
was considered and rejected by the NRC in the development of the 
proposed U.S. ABWR rule amendment and the comment presented no new 
information that would cause the NRC to seek additional public comment.
    For the reasons set forth above, the NRC declines to adopt the 
commenter's proposed course of action. No change was made to either the 
SOCs for the final STPNOC amendment or the final rule language as the 
result of this comment.
    Comment: The notice of proposed rulemaking discusses policy issues 
that arise from having multiple suppliers for a single certified 
design, concludes that the ``branches'' alternative should be adopted, 
provides the rationale for concluding that this alternative meets all 
of the NRC's regulatory objectives, and explains the factors which 
support approval of the options approach for the STPNOC amendment. For 
the reasons set forth in the notice, the options approach is the only 
feasible rulemaking approach that would support application of the 
proposed amendment to STP 3&4 without jeopardizing the schedule for COL 
issuance, and is consistent with the NRC regulations and meets all of 
the NRC's safety and regulatory objectives. Consequently, application 
of the options approach to the proposed STPNOC amendment is fully 
justified. (NINA-6)
    NRC Response: The NRC agrees with the comment. No change was made 
to the SOC or the language of the final rule as the result of this 
comment.

Comments in Support of the Proposed Amendment to the U.S. ABWR

    Comment: Amendment of the certified ABWR design would have the 
advantage of constituting final NRC approval of the AIA matters, which 
then can be referenced by other COL applications. This would be a 
significant benefit to NINA if it decides to develop other ABWRs, in 
addition to STP 3&4. (NINA-1)
    NRC Response: The NRC agrees with this comment. Other COL 
applications referencing the amended U.S. ABWR and the STPNOC option 
would benefit from issue resolution with respect to AIA rule (10 CFR 
50.150) compliance, in accordance with paragraph VI of the U.S. ABWR 
DCR, 10 CFR part 52, Appendix A, and 10 CFR 52.83. No change was made 
to the SOC or the language of the final rule as the result of this 
comment.
    Comment: The STP 3&4 COLA references the application for amendment 
of the certified ABWR design. Without NRC adoption of the proposed 
rule, the STP 3 & 4 COLA would not meet the requirements of the AIA 
rule. Consequently, adoption of the proposed rule is of vital 
importance to the success of STP 3&4. (NINA-2)
    NRC Response: The NRC agrees with the comment that without NRC 
adoption of the proposed rule, the STP Units 3 and 4 COL applications, 
as currently submitted, do not contain any direct information on 
compliance with the AIA rule. However, the STP Units 3 and 4 COL 
applicant may also comply with the AIA rule by submitting its plant-
specific information for complying with the AIA rule, as is required 
under 10 CFR 50.150(a)(3)(v). The NRC expresses no opinion on whether 
the adoption of the STPNOC option is of ``vital importance to the 
success of STP 3&4.'' No change was made to the SOC or the language of 
the final rule as the result of this comment.
    Comment: Adoption of the proposed rule also would be consistent 
with the standardization objective that underlies 10 CFR part 52. Its 
adoption obviously would increase standardization if other COL 
applicants that reference the certified ABWR design also reference the 
STPNOC amendment. (NINA-3)
    NRC Response: The NRC agrees with the comment. Standardization with 
respect to design features and functional capabilities for complying 
with the AIA rule would be increased if COL applications referencing 
the U.S. ABWR also reference the STPNOC option. No change was made to 
the SOC or the language of the final rule as the result of this 
comment.
    Comment: COL applicants referencing the ABWR design certification 
rule would have the option of addressing the AIA rule in their COL 
applications, and would not be required to reference the STPNOC 
amendment. Providing this option does not further standardization, but 
it does provide assurance that adoption of the amendment will not 
disadvantage any supplier of the certified design. In fact, adoption of 
the proposed rule as an option will be a benefit to every potential 
supplier of the certified ABWR design because it will demonstrate to 
entities that may be considering selection of the certified ABWR design 
for a new facility that it is feasible to modify that design to meet 
the requirements of the AIA rule. (NINA-4)
    NRC Response: The NRC agrees with the commenter's assertion that 
COL applicants referencing the U.S. ABWR may elect to address the 
requirements of the AIA rule in their COL application, as opposed to 
referencing the STPNOC option. This is inherent in the existing U.S. 
ABWR design certification, which currently does not address the AIA 
rule's requirements.
    The NRC also agrees with the commenter's observation that the 
proposed amendment does not disadvantage any supplier of the U.S. ABWR-
certified design (including the original design certification 
applicant).
    However, the NRC disagrees with the comment to the extent that 
affording the option does not further standardization. It is not 
unreasonable for the NRC to conclude that COL applicants may favor a 
design certification that the NRC has determined meets the requirements 
of the AIA rule. Thus, by approving the option meeting the AIA rule, 
the NRC believes that, as a practical matter, standardization will be 
enhanced. The NRC takes no position on the assertion that the adoption 
of the proposed rule will be a benefit to other potential suppliers, 
because it demonstrates to entities that it is feasible to modify the 
design to meet the AIA rule. Thus, the NRC does not rely upon such an 
assertion as the basis for adopting the STPNOC amendment to the U.S. 
ABWR DCR. No change was made to the SOC or the language of the final 
rule as the result of this comment.
    Comment: Adoption of the proposed rule also would be consistent 
with the NRC's desire to provide the vendor whose design is certified 
with some assurance against ``arbitrary amendment'' of the 
certification rule. See 54 FR at 15375 (Apr. 18, 1989). In adopting the 
AIA rule, the NRC decided to require that certified designs be amended 
to comply with the AIA rule, either through rulemaking or departure 
from the certified design in any COL application that references that 
design. Thus, the proposed amendment would not be arbitrary, and since 
it would only provide an optional design alternative,

[[Page 78100]]

it would not impose a mandatory design change (amendment) to the 
overall certified design. (NINA-5)
    NRC Response: The NRC agrees with the comment. This rationale is 
included in the SOC for the final rule.

Comments on Specific Proposed Rule Provisions

    Comment: The proposed revision to Paragraph I. ``Introduction,'' 
and in the 10th line of proposed revision to Paragraph III.A.2, should 
be revised by changing ``the South Texas Project Nuclear Operating 
Company'' to ``STP Nuclear Operating Company.'' The STP Nuclear 
Operating Company is the full official name of STPNOC, the applicant 
for the amendment. (NINA-7)
    NRC Response: The NRC agrees with the comment. This change is 
included in the SOC and rule language for the final rule.
    Comment: Proposed new paragraph III.E should be deleted. This 
proposed new provision is unnecessary, and is not clear. It is 
unnecessary because, even without any such new provision, existing 
paragraph III.B will continue to state that the applicant is required 
to comply with the GE DCD, except to the limited extent otherwise 
provided in Appendix A to part 52. As a result, the only changes to the 
GE DCD that will be authorized by the proposed amendment are the 
changes described in the STPNOC DCD.
    The notice indicates that the purpose of proposed new III.E is to 
address the situation in which an applicant discovers unintended 
consequences or unaddressed issues resulting from STPNOC's amendment, 
and that in such a situation the applicant would be expected to notify 
the NRC if the situation is not reportable under 10 CFR 21 or sections 
52.6, 50.72 or 50.73. 76 FR at 3551, 3rd column. The notice does not 
explain, however, why there would be a regulatory need for the NRC to 
receive notice of information that does not meet any of these broad 
reporting requirements (e.g., 10 CFR 52.6 requires notice to the NRC of 
information that has ``a significant implication for public health and 
safety or common defense and security'').
    Proposed new paragraph III.E is not clear because it uses the 
undefined term ``a design matter which implements the STPNOC certified 
design option but is not specifically described in the STPNOC DCD.'' In 
particular, NINA is not aware of any definition of ``design matter'' or 
of any common understanding of this term. In addition, it is not clear 
how the proposed paragraph III.E could be interpreted as imposing the 
reporting requirement that the rulemaking notice describes as its 
purpose, when it does not even mention notice to the NRC. The purpose 
of the STPNOC DCD is to identify the necessary changes to the GE DCD to 
meet 10 CFR 50.150(a). Each such change represents a conflict between 
the GE DCD and the STPNOC DCD. Uncertainties about the meaning of 
``design matter'' and the level of detail required for an item to be 
``described specifically'' have the potential to lead to compliance 
issues that are not reasonably related to safety. (NINA-8)
    NRC Response: The NRC agrees with the comment that the proposed 
paragraph III.E is unnecessary. The NRC's intent in proposing the 
reporting requirement was to ensure that the NRC is made aware of 
conflicts between the GE DCD and the STPNOC DCD, which may be 
identified by a referencing COL applicant or holder. Upon consideration 
of the comment, the NRC agrees that any material conflict identified by 
the COL applicant or holder would ultimately be brought to the 
attention of the NRC by virtue of the legally-binding need to comply 
with both DCDs. If there is a conflict, the referencing COL applicant 
or holder would seek resolution of the conflict, through: i) either 
taking or submitting a request for a departure (including a request for 
exemption as necessary); or ii) submitting a 10 CFR part 2, Subpart H 
rulemaking petition to amend the DCR in order to resolve the apparent 
conflict. In addition, reporting may also be required under 10 CFR 
50.55(e), 10 CFR 50.72, 10 CFR 50.73, or 10 CFR part 21.
    In addition, the NRC agrees with the commenter's discussion of the 
reporting obligation of the design certification applicants (both the 
original applicant, as well as the applicant for an amendment which 
leads to establishment of an option or ``branch''). Thus, proposed 
paragraph III.E does not appear to be needed to ensure necessary 
reporting of such conflicts identified by either the original applicant 
or the applicant for an amendment, which leads to establishment of an 
option or ``branch.'' For these reasons, the proposed paragraph III.E 
is not included in the final rule.
    Comment: Proposed new Paragraph IV.A.4 should be deleted. The 
proposed new paragraph would require an application to include 
information that already is required by 10 CFR Sec.  52.73(a), and does 
not appear to be necessary for NRC approval of STPNOC's proposed 
amendment. (NINA-9)
    NRC Response: The NRC disagrees with the comment. Section 52.73(a) 
does not clearly apply to the circumstance of a supplier of an 
``option'' to a design certification. In addition, the ``generic'' 
provision of Sec.  52.73(a) does not make clear, in the context of this 
specific design certification option, that both the STPNOC and Toshiba 
America Nuclear Energy (TANE) Corporation together are technically 
qualified to supply the STPNOC option addressing the AIA rule. Hence, 
the NRC believes that paragraph IV.A.4 is necessary for clarity and to 
ensure that there is no uncertainty with respect to the scope of the 
NRC's technical qualification finding with respect to the STPNOC 
option. For these reasons, the NRC declines to adopt the comment, and 
no change was made to the final rule.
    Comment: Paragraph VI.A. should be revised to read (proposed 
language in bold):

    The Commission has determined that the structures, systems, 
components, and design features of the U.S. ABWR design as contained 
in the GE DCD comply with the provisions of the Atomic Energy Act of 
1954, as amended, and the applicable regulations identified in 
Section V.A.1 of this appendix; and therefore, provide adequate 
protection to the health and safety of the public. The Commission 
has determined that the U.S. ABWR design as contained in the STPNOC 
DCD comply with the provisions of the Atomic Energy Act of 1954, as 
amended, and the applicable regulations identified in Section V.A.2 
of this appendix; and therefore, provide adequate protection to the 
health and safety of the public and achieve the Commission's 
objectives of enhanced public health and safety and enhanced common 
defense and security through improvement of the facility's inherent 
robustness at the design stage. A conclusion that a matter is 
resolved includes the finding that additional or alternative 
structures, systems, components, design features, design criteria, 
testing, analyses, acceptance criteria, or justifications are not 
necessary for the U.S. ABWR design or the STPNOC design option.

    Existing paragraph VI.A contains a reference to Section V that is 
not consistent with the proposed revision of Section V, which would 
renumber paragraph V.A to V.A.1, and add a new paragraph V.A.2. New 
paragraph V.A.2 refers to the NRC regulations as they will exist on the 
date of adoption of the proposed amendment. Those regulations will 
apply to the STPNOC DCD, but not to the GE DCD. The regulations that 
apply to the GE DCD are those that existed on May 2, 1997. 
Additionally, since the findings stated in paragraph VI.A form the 
basis for the resolution of issues in paragraph VI.B, paragraph VI.A 
should include findings sufficient to form the basis for the proposed 
provision in paragraph VI.B related to the STPNOC design option. (NINA-
10)

[[Page 78101]]

    NRC Response: The NRC agrees with the commenter's observation that 
paragraph VI.A does not accurately reflect the scope of the issue 
resolution accorded the STPNOC option and also does not properly 
reference the ``applicable regulations'' under paragraph V. However, 
the NRC does not agree with the commenter's proposed resolution of the 
matter. The NRC believes that a more appropriate approach is to define, 
in separate paragraphs, the scope of issue resolution accorded the 
original GE DCD, the scope of issue resolution accorded the STPNOC 
option, and the scope of issue resolution accorded the combination of 
the GE DCD and the STPNOC option. Accordingly, the final rule includes 
new paragraphs VI.A.1, VI.A.2, and VI.A.3, which describe the issue 
finality provided for nuclear safety issues for the GE DCD, for the 
STPNOC DCD, and for the combination of the GE DCD and the STPNOC DCD.
    Comment: Paragraph VI.B.1, as proposed to be revised, should be 
further revised to delete ``other'' and insert a comma after 
``requirements,'' so that these revised lines would read,

nuclear safety issues, except for operational requirements, 
associated with the

    The reason to delete ``other'' is that it has no antecedent in the 
revised sentence, and appears to have been inadvertently retained 
during drafting. The relevant portion of existing paragraph VI.B.1 is: 
``nuclear safety issues, except for the generic technical 
specifications and other operational requirements, associated.'' There, 
``the generic technical specifications'' is the antecedent of 
``other.'' Since there is no mention of the generic technical 
specifications in the proposed provision concerning the AIA amendment, 
there is nothing for the operational requirements to be ``other than.''
    The comma should be inserted after ``requirements,'' to indicate 
the end of the description of the exception. Without the comma, it 
would appear that the exception encompasses the information in the AIA 
FSER, Tier 1 or Tier 2. Inserting the comma will make it clearer that 
the matters that the Commission considers to be resolved include all 
nuclear safety issues, except for operational requirements, addressed 
in the AIA FSER and the other records mentioned in the revised 
paragraph. (NINA-11)
    NRC Response: The NRC agrees with the change proposed by the 
commenter, for the reasons stated in the comment. The final rule has 
been revised, consistent with the comment.
    Comment: Proposed new paragraph VIII.B.5.d should be revised to 
read as follows:

    An applicant or licensee may depart from the information 
required by 10 CFR 52.47(a)(28) to be included in the FSAR [final 
safety analysis report] for the standard design certification only 
if the modified design features and functional capabilities continue 
to meet the assessment requirements in 10 CFR 50.150(a)(1).

    These changes would delete the references to the requirements to 
consider the effect of the departures and to document how the modified 
design would continue to meet the relevant regulation. Eliminating 
these references would make Section VIII.B.5.d more consistent with 
Sections VIII.B.5.b and c, which specify the standards for determining 
whether a departure requires a license amendment, but do not explicitly 
impose a requirement for an evaluation or for documentation of its 
results. Since existing Section X.A.3 already requires an applicant or 
licensee to prepare and maintain written evaluations which provide the 
bases for determinations required by Section VIII, there is no need to 
duplicate these requirements in new Section VIII.B.5.d. Eliminating 
this duplication will prevent inconsistent interpretations of the 
requirements for evaluation and documentation associated with new 
Section VIII.B.5.d. (NINA-12)
    NRC Response: The NRC disagrees with the comment. Making the change 
suggested by the commenter would conflict with the Commission's 
position on how departures from AIA design features and functional 
capabilities should be addressed in DCRs, as set forth in the SOC 
accompanying the AIA final rule (74 FR 28112, June 12, 2009, at 28122):

    Paragraph (c)(4)(ii) of 10 CFR 50.150 governs combined license 
applicants or holders which are not subject to 10 CFR 50.150(a) and 
states that proposed departures from the information required by 10 
CFR 52.47(a)(28) to be included in the FSAR for the referenced 
standard design certification are governed by the change control 
requirements in the applicable design certification rule. The NRC 
expects to add a new change control provision to future design 
certification rules subject to 10 CFR 50.150 (including amendments 
to any of the four existing design certifications) to govern 
combined license applicants and holders referencing the design 
certification that request a departure from the design features or 
functional capabilities in the referenced design certification. The 
new change control provision will require that, if the applicant or 
licensee changes the information required by 10 CFR 52.47(a)(28) to 
be included in the FSAR for the standard design certification, then 
the applicant or licensee shall consider the effect of the changed 
feature or capability on the original assessment required by 10 CFR 
50.150(a). The applicant or licensee must also describe in a change 
to the FSAR (i.e., a plant-specific departure from the generic 
design control document), how the modified design features and 
functional capabilities continue to meet the assessment requirements 
in the aircraft impact rule. An applicant or licensee's submittal of 
this updated information to the NRC will be governed by the 
reporting requirements in the applicable design certification rule.

    Further, making the changes suggested by the commenter would 
effectively eliminate the requirement for the COL applicant or holder 
to consider the effect of proposed changes to AIA design features or 
functional capabilities on the original assessment required by 10 CFR 
50.150(a). It would also eliminate the requirement to document how the 
modified design continues to meet the AIA rule. Because the changes 
proposed by the commenter are in direct conflict with the Commission's 
policy on implementation of the AIA rule for design certifications and 
because the commenter did not provide any compelling reasons why the 
Commission should consider changing its policy, the NRC declines to 
adopt the proposed changes. No change was made to the SOC or the 
language of the final rule as the result of this comment.
    Comment: The proposed deletion of the current language of paragraph 
VIII.B.5.d and the substitution of language in the proposed rule should 
not be adopted. The deletion of the current language in paragraph 
VIII.B.5.d does not seem appropriate given the context of Paragraph 
VIII.B. Instead, the new language may be added as proposed, but 
existing paragraphs VIII.B.5.d and e should be redesignated as 
paragraphs VIII.B.5.e and f. (GEH-7)
    NRC Response: The commenter has misinterpreted the proposed changes 
to paragraph VIII.B.5 in the proposed rule. The NRC is not proposing to 
delete the rule text in current paragraph VIII.B.5.d. As stated in the 
amendatory language for Appendix A to 10 CFR part 52 (76 FR 3559, 
second column), section VIII, paragraph B.5.b is revised, paragraphs 
B.5.d. e, and f are redesignated as paragraphs B.5.e, f, and g, 
respectively, and new paragraph B.5.d is added. As this is what the 
commenter suggested, no further changes were made to the final rule as 
a result of this comment.

Comment Related to Recent Events in Japan

    Comment: In light of the recent events in Japan and the level of 
water repeatedly exposing the nuclear rods--isn't there a simpler 
solution to relying on pumps to supply the cooling water? If the plant 
was mandated to have a

[[Page 78102]]

reservoir of water that could gravity feed water via manual valves to 
keep the rods covered--diesel backups and battery backups would be a 
non issue. (Shadis-1)
    NRC Response: The NRC staff interprets this comment to be in 
reference to the certified U.S. ABWR design, which is being amended in 
the rulemaking. Changes to the U.S. ABWR design that are not directly 
related to compliance with the NRC's AIA rule, which is the subject of 
this amendment, are outside of the scope of this rulemaking. With 
regard to the recent events at the Fukushima Daiichi Nuclear Plant in 
Japan, the NRC continues to believe that its regulatory framework and 
requirements provide for a rigorous and comprehensive license review 
process that examines the full extent of siting, system design, and 
operation of nuclear power plants. The recommendations of the NRC's 
task force that was established to examine lessons learned from the 
events in Japan will certainly be taken into account in the performance 
of the NRC's ongoing and future reviews of applications, as 
appropriate. Further, the NRC has the necessary regulatory tools to 
require changes to existing licenses or applications for certification 
should the NRC determine that changes are necessary. For example, any 
new requirements that may result from the task force's recommendations 
could be implemented in accordance with existing NRC policies that may 
involve rulemaking or backfitting. If the commenter believes that 
changes should be made to the U.S. ABWR-certified design, the proper 
vehicle for proposing such changes is to submit a petition for 
rulemaking under 10 CFR 2.802, ``Petition for rulemaking.'' No change 
was made to the final rule as a result of this comment.

III. Discussion

A. Technical Evaluation of the STPNOC Amendment to U.S. ABWR Design

    STPNOC requested changes to the U.S. ABWR design in order to comply 
with the AIA rule, 10 CFR 50.150. This amendment takes credit for the 
design features and their functional capability(ies) to maintain core 
cooling and spent fuel integrity following a strike of a large 
commercial aircraft. These design features and their functional 
capability(ies) are summarized below:
     The primary containment structure protects the safety 
systems inside from impact.
     The location and design of the control building structure 
protects the north wall of the reactor building from impact.
     The location and design of the turbine building structure 
protects the north wall of the control building and reactor building 
from impact.
     The location and design of the reactor building structure 
protects the south wall of the control building and primary containment 
from impact.
     The location and design of the spent fuel pool and its 
supporting structure protect the spent fuel pool from impact.
     The physical separation of the Class 1E emergency diesel 
generators and an independent power supply prevent the loss of all 
electrical power to core cooling systems.
     The location and design of 3-hour fire barriers, including 
fire doors and watertight doors inside the reactor building and control 
building protect credited core cooling equipment from fire damage.
     The physical separation and design of the emergency core 
cooling system ensure core cooling.
     The design of the alternate feedwater injection system 
ensures core cooling.
     The design of the containment overpressure protection 
system ensures core cooling.
    The acceptance criteria in 10 CFR 50.150(a)(1) are (1) The reactor 
core will remain cooled or the containment will remain intact, and (2) 
spent fuel pool cooling or spent fuel pool integrity is maintained. The 
applicant states that it has met 10 CFR 50.150(a)(1) by maintaining 
both core cooling and spent fuel pool integrity.
    The applicant proposes to maintain core cooling using the safety-
related and non-safety-related systems, which are specifically designed 
to ensure that the reactor can be shutdown and decay heat can be 
removed adequately from the reactor core. Some of this equipment is 
located (1) inside of the primary containment, (2) inside the reactor 
building, and (3) well away from the power block. Locations inside the 
primary containment are protected from structural, shock and fire 
damage by the design of the primary containment structure as well as 
the reactor building structure that limits the penetration of a large, 
commercial aircraft so that the primary containment is not perforated. 
Equipment inside the reactor building is protected by structural design 
features of the reactor building itself and by structures adjacent to 
the reactor building, including the turbine building and the control 
building. In addition, fire barriers are designed and located in the 
reactor building and control building to limit the spread of fire 
inside the buildings.
    The applicant proposes to satisfy the spent fuel pool integrity 
acceptance criterion in 10 CFR 50.150(a)(1) due to the location and 
design of the spent fuel pool and its support structure. These key 
design features protect the structure from impact by a large commercial 
aircraft.
    The NRC's review of the applicant's proposed amendment to the U.S. 
ABWR design certification confirmed that the applicant has complied 
with 10 CFR 50.150. Specifically, the NRC confirmed that the applicant 
adequately described key AIA design features and functional 
capabilities in accordance with the AIA rule and conducted an 
assessment reasonably formulated to identify design features and 
functional capabilities to show, with reduced use of operator action, 
that the facility can withstand the effects of an aircraft impact. In 
addition, the NRC determined that there will be no adverse impacts from 
complying with the requirements for consideration of aircraft impacts 
on conclusions reached by the NRC in its review of the original U.S. 
ABWR design certification. Finally, the NRC determined that the STPNOC 
and its contractors are technically qualified to perform the design 
work associated with the amended portion of the U.S. ABWR design 
represented by the STPNOC's application and to supply the amended 
portion of the U.S. ABWR design.
    The STPNOC's amendment to the U.S. ABWR design has achieved the 
Commission's objectives of enhanced public health and safety and 
enhanced common defense and security through improvement of the 
facility's inherent robustness at the design stage.

B. Regulatory and Policy Issues

Multiple Suppliers for a Single Certified Design
    In the 1989 10 CFR part 52 rulemaking, the Commission decided to 
approve standard reactor designs by rulemaking, as opposed to 
licensing, and stated that a DCR ``does not, strictly speaking, belong 
to the designer'' (54 FR 15327; April 18, 1989, at 15375, third 
column). Nonetheless, the Commission implicitly recognized the need to 
protect the commercial and proprietary interests of the original 
applicant who intends to supply the certified design, should there be 
another entity who intends to use the design in some fashion without 
approval or compensation to the original design certification 
applicant. Id. The protection was provided, in part, through the 
decision of the Commission

[[Page 78103]]

to protect ``proprietary information'' \1\ developed by the original 
design certification applicant, as well as by several other regulatory 
provisions in both 10 CFR part 52 and 10 CFR part 170.
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    \1\ The term, ``proprietary information,'' means trade secrets 
or commercial or financial information that are privileged or 
confidential, as those terms are used under the Freedom of 
Information Act and the NRC's implementing regulation at 10 CFR part 
9.
---------------------------------------------------------------------------

    Based upon the licensing experience with operating nuclear power 
plants, the Commission understood that portions of proposed design 
certifications, primarily in the area of fuel design, would likely be 
regarded as proprietary information (trade secrets) by future design 
certification applicants. To ensure that design certification 
applicants would not be adversely affected in their capability to 
protect this proprietary information as a result of the NRC's decision 
to approve designs by rulemaking rather than licensing, the Commission 
adopted 10 CFR 52.51(c), which stated, in relevant part, that 
notwithstanding anything in 10 CFR 2.390 to the contrary, proprietary 
information will be protected in the same manner and to the same extent 
as proprietary information submitted in connection with applications 
for licenses, provided that the design certification shall be published 
in Chapter I of title 10. Reference: 10 CFR 52.51(c) (1990, as 
originally promulgated in the 1989 10 CFR part 52 rulemaking, see 54 FR 
15372, April 18, 1989, at 15390).\2\
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    \2\ As originally adopted in 1989, 10 CFR 52.51(c) consisted of 
two sentences. The first sentence limited the bases for a decision 
in a hearing on a design certification to information on which all 
parties had an opportunity to comment. The second sentence is the 
language of the current regulation. The first sentence was removed 
in 2004 as a conforming change when the Commission removed the 
hearing requirements for design certification (69 FR 2182; January 
14, 2004).
---------------------------------------------------------------------------

    Having protected proprietary information developed by the design 
certification applicant, the Commission then adopted several additional 
rulemaking provisions in 10 CFR part 52 providing additional regulatory 
protection to the original design certification applicant against 
unfair use of the design certification by other suppliers. The 
Commission required the (original) design certification applicant, as 
well as the applicant for renewal of the design certification, to 
include in the application a level of design information sufficient to 
enable the Commission to judge the applicant's proposed means of 
assuring that construction conforms to the design and to reach a final 
conclusion on all safety questions associated with the design before 
the certification is granted. The information submitted for a design 
certification must include performance requirements and design 
information sufficiently detailed to permit the preparation of 
acceptance and inspection requirements by the NRC, and procurement 
specifications and construction and installation specifications by an 
applicant. Reference: 10 CFR 52.47(a)(2) (1990, as originally 
promulgated in the 1989 10 CFR part 52 rulemaking, see 54 FR 15372; 
April 18, 1989; at 15390); \3\ 10 CFR 52.57(a).
---------------------------------------------------------------------------

    \3\ This language was moved to the introductory paragraph of the 
current 10 CFR 52.47 in the 2007 revision of 10 CFR part 52.
---------------------------------------------------------------------------

    The Commission also adopted 10 CFR 52.63(c), requiring the 
applicant referencing the design certification to provide the 
information required to be developed by 10 CFR 52.47(a)(2) or its 
equivalent. It stated that the Commission will require, before granting 
a construction permit, combined license, operating license, or 
manufacturing license which references a design certification rule, 
that information normally contained in certain procurement 
specifications and construction and installation specifications be 
completed and available for audit if the information is necessary for 
the Commission to make its safety determinations, including the 
determination that the application is consistent with the certification 
information. This information may be acquired by appropriate 
arrangements with the design certification applicant. Reference: 10 CFR 
52.63(c) (1990). By requiring a level of detailed information 
supporting the certified design to be developed and available for NRC 
audit at renewal and when the design was referenced for use, the 
Commission ensured (among other things) that entities who were not the 
original design certification applicant would not have an inordinate 
financial advantage when either supplying the certified design to a 
referencing user, or referencing the certified design in an 
application.
    In adopting 10 CFR 52.73, the Commission also relied on its 
statutory authority under Section 182 of the Atomic Energy Act of 1954 
(AEA), as amended, to make a technical qualifications finding. Section 
52.73 effectively prohibits a COL applicant from referencing a 
certified design unless the entity that actually supplies the design to 
the referencing applicant is technically qualified to supply the 
certified design. It stated that in the absence of a demonstration that 
an entity other than the one originally sponsoring and obtaining a 
design certification is qualified to supply such design, the Commission 
will entertain an application for a combined license which references a 
standard design certification issued under Subpart B only if the entity 
that sponsored and obtained the certification supplies the certified 
design for the applicant's use. Reference: 10 CFR 52.73 (1990, as 
originally promulgated in the 1989 10 CFR part 52 rulemaking, see 54 FR 
15372; April 18, 1989, at 15393).\4\
---------------------------------------------------------------------------

    \4\ This provision was slightly reworded in the 2007 rulemaking 
amending 10 CFR part 52 in a newly-designed paragraph (b) to 10 CFR 
52.73 (72 FR 49352; August 28, 2007).
---------------------------------------------------------------------------

    Apart from the provisions discussed previously, the Commission also 
indicated in the SOC for the 1989 10 CFR part 52 rulemaking that the 
finality provisions in 10 CFR 52.63 provided some protection against 
arbitrary amendment or rescission of the design certification. Any 
proposed rescission or amendment of the design certification must be 
accomplished under notice and comment rulemaking procedures, as 
required by 10 CFR 52.63(a)(1). The original applicant would, 
accordingly, have the opportunity to comment on any proposed change to 
the design, including those changes initiated by other entities.
    Finally, the Commission adopted, as part of the 1989 rulemaking, 
conforming amendments to 10 CFR 170.12(d) and (e). Under these 
provisions, entities other than the original design certification 
applicant who provide either the renewed or original certified design 
to a referencing applicant for a construction permit, operating license 
or COL must pay the applicable installment of the deferred NRC fee \5\ 
for review of the original or renewed design certification.
---------------------------------------------------------------------------

    \5\ In the 1989 final 10 CFR part 52 rulemaking, the Commission 
decided that the payment of the fee imposed upon the design 
certification applicant to recover the NRC's costs for review and 
approval of the certified design via rulemaking, and renewal of the 
DCR, should be deferred and recovered in equal increments the first 
five times the DCR was referenced in an application. See 10 CFR 
107.12(d)(2) (renewal of DCR); 10 CFR 170.12(e)(2)(i) (initial 
certification) (1990), as originally promulgated in the 1989 10 CFR 
part 52 rulemaking (see 54 FR 15372; April 18, 1989, at 15399).
---------------------------------------------------------------------------

    After the 1989 rulemaking, in each of the four existing DCRs in 10 
CFR part 52, appendices A through D, the Commission adopted an 
additional provision serving to protect the proprietary information and 
safeguards information (SGI) developed by the original design 
certification applicant. Paragraph IV.A.3 of each rule required an 
applicant referencing the DCR to

[[Page 78104]]

``physically include in the plant-specific DCD proprietary information 
and safeguards information referenced in the DCD.'' The Commission's 
view was that by ``physically'' including the proprietary information 
and SGI developed by the original DCR applicant in the application, 
this would be demonstrative of the referencing applicant's rights to 
use that information; otherwise, the referencing applicant could 
provide the equivalent information (62 FR 25800; May 12, 1997, at 
25818, third column).
    In 2007, at the request of the Nuclear Energy Institute and other 
industry commenters, the word, ``physically'' was removed from 
paragraph IV of each of the four DCRs, to allow the DCR applicant more 
flexibility in how the proprietary information and SGI are included in 
the application referencing the DCR (72 FR 49352; August 28, 2007, at 
49363-49365). This change was not intended to represent a retreat from 
the Commission's position that the referencing applicant has the 
appropriate commercial rights to reference the proprietary and SGI 
information or its equivalent. However, the NRC acknowledges that under 
the current language of paragraph IV.A.3, the NRC must do more to 
verify that the referencing applicant has the appropriate commercial 
rights to the proprietary and SGI information developed by the 
originating applicant (unless, of course, the referencing applicant 
indicates that it is supplying ``equivalent'' information).
    The Commission did not describe in the 1989 rulemaking the 
particular regulatory approach and structure to be used for a DCR with 
two or more suppliers of the certified design. In the years after the 
1989 10 CFR part 52 rulemaking, the Commission did not need to address 
the circumstance of multiple suppliers of the same certified design 
(multiple suppliers) to an end user.\6\ However, with the filing of the 
U.S. ABWR design certification amendment request by the STPNOC, as well 
as Toshiba's March 3, 2010, letter to the NRC stating that it intends 
to seek renewal of the U.S. ABWR design certification (ADAMS Accession 
No. ML100710026), the NRC must now determine the regulatory approach 
and structure for the amendment (and, for completeness, the renewal) of 
a certified design where there will be multiple suppliers.
---------------------------------------------------------------------------

    \6\ The term, ``user,'' means an entity which references the 
standard DCR in its application, and the holder of a permit or 
license which incorporates the standard design certification.
---------------------------------------------------------------------------

    When the NRC was advised of the STPNOC's intent to submit an 
amendment of the U.S. ABWR design certification, it began a process of 
identifying and considering possible regulatory alternatives, with the 
goal of identifying a single regulatory approach and structure to be 
used for all design certifications with multiple suppliers. The NRC 
considered three alternatives which it could reasonably select:
    1. Separate rules: Develop separate DCRs for each supplier.
    2. Branches: Develop one DCR with multiple branches, with each 
branch describing a complete design to be supplied by each supplier.
    3. Options: Develop one DCR with options, with each option 
describing a portion of the certified design which may be selected by 
the user as an option to the original ``reference'' certified design.
    Table 1 presents the NRC's current views with respect to the 
differences between these three alternatives.
    In light of the Commission's past practice of protecting the 
proprietary information and legitimate commercial interests of the 
original design certification applicant wherever consistent with other 
applicable law, the NRC believes that it should consider that p