U.S. Advanced Boiling Water Reactor Aircraft Impact Design Certification Amendment, 78096-78121 [2011-31906]
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Federal Register / Vol. 76, No. 242 / Friday, December 16, 2011 / Rules and Regulations
§ 245.6 Application, eligibility and
certification of children for free and reduced
price meals and free milk.
RIN 3150–AI84
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Pike, Rockville, Maryland 20852.
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• 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
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3668, or by email at
Carol.Gallagher@nrc.gov.
[NRC–2010–0134]
FOR FURTHER INFORMATION CONTACT:
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(ii) Households must attest to changes
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Dated: December 8, 2011.
Audrey Rowe,
Administrator, Food and Nutrition Service.
[FR Doc. 2011–32199 Filed 12–15–11; 8:45 am]
BILLING CODE 3410–30–P
NUCLEAR REGULATORY
COMMISSION
10 CFR Part 52
U.S. Advanced Boiling Water Reactor
Aircraft Impact Design Certification
Amendment
Nuclear Regulatory
Commission.
ACTION: Final rule.
AGENCY:
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,
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SUMMARY:
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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
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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 designspecific 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
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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.
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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
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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
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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. ABWRcertified 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
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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
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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
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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
§ 52.59(c) as constituting the NRC’s
established approach for dealing with
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multiple suppliers of the same certified
design.
The NRC acknowledges that it may be
possible to interpret § 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
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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
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78099
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,
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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
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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 § 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
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‘‘option’’ to a design certification. In
addition, the ‘‘generic’’ provision of
§ 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)
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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,
jlentini on DSK4TPTVN1PROD with RULES
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.
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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
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78101
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
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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.
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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
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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
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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
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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.
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
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
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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.
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).
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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).
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
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.
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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
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.
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
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).
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).
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‘‘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.
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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 practice when evaluating possible
alternatives for the approach and
structure of a DCR with multiple
suppliers. Upon consideration, the NRC
concludes that the ‘‘branches’’
alternative should be adopted as the
general approach for all renewals of
design certifications and for major
design certification amendments. The
‘‘branches’’ alternative: (1) Is consistent
with all applicable law, (2) protects the
proprietary information and legitimate
commercial interests of the original
design certification applicant (as well as
the additional suppliers), and (3) meets
the NRC’s regulatory concerns. Each of
these considerations is discussed
separately below.
No Statutory or Other Legal Prohibition
to the ‘‘Branches’’ Alternative
There is no statutory or other legal
prohibition, explicit or otherwise,
against use of the ‘‘branches’’ alternative
in the AEA, the Administrative
Procedure Act, the National Technology
Transfer and Advancement Act, or other
statutes applicable to the NRC. Design
certification rulemaking is not
specifically addressed in the AEA. The
AEA provisions do not appear to
circumscribe or prohibit the NRC’s use
of a regulatory approach of approving
multiple suppliers of a set of closelyrelated certified designs in a single
codified rule.
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Moreover, nothing in 10 CFR part 52
compels the use of a particular
alternative for addressing multiple
suppliers. As discussed previously, the
Commission contemplated that multiple
suppliers could supply the same
certified design from the time it first
adopted the concept of design
certification by rulemaking. However,
the Commission did not mandate any
specific regulatory approach for
accommodating multiple suppliers of a
certified design. Those provisions
intended to protect proprietary
information and the commercial
interests of each supplier do not
mandate any specific approach for
accommodating multiple suppliers, and
do not foreclose the use of the
‘‘branches’’ alternative.
Protection of Proprietary Information
and Legitimate Commercial Interests of
All Suppliers
The ‘‘branches’’ alternative fully
protects the proprietary information and
legitimate commercial interests of all
suppliers. Under the ‘‘branches’’
alternative, each supplier is responsible
for creating and maintaining its own
DCD (including the non-public version
of the DCD containing sensitive
unclassified non-safeguards information
(SUNSI), i.e., proprietary information,
and SGI developed by the supplier).
Because each DCD is self-contained, the
NRC does not foresee any circumstance
that would require the NRC to provide
the non-public DCD (or information
supporting its DCD) prepared and
supported by the original design
certification applicant to the new
supplier, or to provide the non-public
DCD prepared and supported by the
new supplier to the original applicant.
Nor does the use of the ‘‘branches’’
alternative affect the legal issues
associated with providing access to
SUNSI (including proprietary
information) and SGI to members of the
public to facilitate public comment on
a proposed design certification
rulemaking adding a new supplier and
branch.
The ‘‘branches’’ alternative has no
effect on the legal applicability, or on
the NRC’s implementation of the 10 CFR
parts 52 and 170 provisions discussed
previously, which are directed at
protecting the proprietary information
and commercial interests of the original
design applicant. These provisions,
properly applied, should also protect
the proprietary information and
interests of all other suppliers of a
subsequently-approved ‘‘branch.’’ Thus,
the ‘‘branches’’ alternative provides all
suppliers all of the protection of their
proprietary information and commercial
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interests, which the Commission
intended to be afforded to these
suppliers.
A rulemaking adopting a new
‘‘branch’’ (a ‘‘‘branch’ rulemaking’’)
would not disturb the issue resolution
and finality accorded to the original
certified design (as amended in any
subsequent rulemakings), or to the
certified design of any other suppliers in
any previously approved branches. Nor
would a ‘‘branch’’ rulemaking
necessarily require the Commission to
consider and address, in the final
rulemaking adding the new ‘‘branch,’’
comments on the existing certified
design. The NRC believes that each
‘‘branch’’ rulemaking is limited to
adding the new ‘‘branch,’’ together with
requirements and conditions specific to
the new ‘‘branch.’’ Therefore, the NRC
asserts that: (1) The nuclear safety and
other associated matters (severe
accident mitigation design alternatives
(SAMDAs)) resolved in the preceding
design certification rulemaking(s)
continue to be effective and are not
being re-examined in the ‘‘branch’’
rulemaking; and (2) comments on the
existing certified design(s) are out-ofscope and should not be considered in
the ‘‘branch’’ rulemaking.7
The ‘‘branches’’ alternative would not
require the original supplier (or indeed
any previously-approved supplier) of
the certified design to modify their DCD
or incur other costs as part of the
‘‘branch’’ rulemaking. Hence, there is no
financial impact upon the pre-existing
suppliers. The NRC has not identified
any credible argument that could be
raised by the original design
certification applicant that an NRC
decision allowing a new supplier to
supply the certified design could be the
proximate cause of any diminution in
the commercial value of the original
applicant’s certified design. The concept
of multiple suppliers of a single
certified design is inherent in the
concept of design certification by
7 If the out-of-scope comment seeking to modify
the existing certified design was submitted by the
original sponsor of that design, then the NRC
believes that the original sponsor should seek an
amendment of its certified design in accordance
with the design certification amendment process as
addressed in 10 CFR 52.57 and 52.59, and
10 CFR 2.800(c) and 10 CFR 2.811–2.819 (as well
as the procedures common to all petitions for
rulemaking in 10 CFR 2.804–2.810, as prescribed in
10 CFR 2.800(b)). By contrast, if the out-of-scope
comment seeking to modify the existing certified
design was submitted by any other entity (e.g., an
entity that is not the supplier of that certified design
branch), then the staff believes that these comments
should be regarded as petitions for rulemaking and
processed in accordance with the provisions of 10
CFR 2.800(c) and 10 CFR 2.802–2.803 (as well as
the procedures common to all petitions for
rulemaking in 10 CFR 2.804–2.810, as prescribed in
10 CFR 2.800(b)).
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rulemaking. The Commission
anticipated multiple suppliers of a
single design certification when it was
considering the regulatory approach for
certification (rulemaking versus
licensing), and afforded protection to
the original applicant by various
provisions of 10 CFR part 52. This
protection was embodied in provisions
included in each of the DCRs issued to
date, and these provisions would
continue to be included in future DCRs.
Hence, no supplier—including the
original design certification applicant—
may reasonably claim that the approval
of a new ‘‘branch’’ constitutes an
unwarranted diminution in the
commercial value of the certified design
which it sponsored.
NRC’s Regulatory Concerns Are Met
The NRC believes that any alternative
and structure for a DCR with multiple
suppliers must meet the following
regulatory concerns. Any rule
amendment (or renewal) which
introduces a new supplier must
minimize the possibility of re-opening
the safety and regulatory conclusions
reached by the NRC with respect to
previously approved aspects of the
design and supplier(s). In addition, if
the new supplier is proposing changes
to the actual certified design, then the
substitute or new portions of the
design,8 must to the maximum extent
practical, be attributable solely to the
‘‘sponsoring’’ supplier, and therefore
distinguishable from the ‘‘common’’
portions of the design which each
supplier must support (the ‘‘branches’’
alternative adopting the premise that the
supplier must be technically qualified to
supply all of the certified design,
including the ‘‘common’’ portions).9
8 A ‘‘substitute’’ portion of the certified design
sponsored by the new supplier serves to replace a
discrete portion of a design as sponsored by the
original design certification applicant (in other
words, the basis for comparison of a new branch
must always be the original certified design), but
without augmenting or adding a completely new
functional capability. By contrast, a ‘‘new’’ portion
of the certified design sponsored by the new
supplier serves to either: (1) Augment a discrete
portion of the design as sponsored by the original
design certification applicant or (2) add a
completely new functional capability not
previously considered and addressed in the original
certified design. As an example, the amendment of
the U.S. ABWR DCR sought by the STPNOC would
add new functional capabilities—the ability to
withstand aircraft impacts of the kind described in
the AIA rule, 10 CFR 50.150. Hence, the ‘‘changes’’
sought by the STPNOC would be considered ‘‘new’’
portions of the certified design.
9 The NRC believes a broad finding of technical
qualifications is necessary because the original
design certification applicant is under no legal or
NRC regulatory obligation (consistent with the
concept of providing protection to the proprietary
information and legitimate commercial interests of
the original supplier) to provide technical support
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78105
The regulatory approach and structure
must reflect a sound basis for allowing
the NRC to make a technical
qualifications finding with respect to
the supplier. Finally, the approach and
structure must allow for imposition of
applicable NRC requirements on each
supplier, and the legal ability of the
NRC to undertake enforcement and
regulatory action on each supplier.
The ‘‘branches’’ alternative meets all
of these regulatory concerns. This
alternative creates a separate branch for
the design to be supplied by the new
supplier in the rule and requires the
new certified design to be described in
a separate DCD created and supported
by the new supplier. Therefore there is
a strong basis for arguing that the
certified design(s) already approved by
the NRC are not affected and that the
issue finality accorded to those certified
designs (as controlled by 10 CFR 52.63)
continues. Hence, in any rulemaking
approving a new branch, the NRC need
not consider any comments seeking
changes to the existing certified design.
The use of a separate DCD to describe
the new certified design, by its very
nature, serves to (1) distinguish any
substitute or new portions of the
certified design sponsored only by the
new supplier and (2) make clear that the
substitute or new portions are being
sponsored solely by the new supplier
(because the other branches do not
contain any reference to or mention of
the substitute or new portions of the
design sponsored by the new supplier).
The use of a separate DCD describing
the entire design is also consistent with
the NRC’s position that it must conduct
a technical qualifications review of the
new supplier and make a finding that
the new supplier is technically qualified
to provide the entire certified design.
The NRC’s recommendation to use a
separate DCD, coupled with a structure
of the DCR language (as codified in one
of the appendices to 10 CFR part 52)
that applies common regulatory
requirements to all suppliers, allows for
the NRC to take regulatory action
against any supplier without regard to
whether the supplier was the original
design certification applicant.
For these reasons, the NRC concluded
that its regulatory concerns are met
under the ‘‘branches’’ alternative.
However, during discussions with the
STPNOC about the processing of its
request to amend the U.S. ABWR design
certification, the STPNOC proposed that
the NRC adopt a process similar to the
‘‘options’’ approach for the STPNOC
U.S. ABWR amendment.
on the ‘‘common’’ portions of the certified design
to either the new supplier or a user.
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The STPNOC request was based upon
a number of factors that the NRC
considered to be unique to the
STPNOC’s situation. First, under the
‘‘branches’’ approach, the STPNOC
would have to supply the U.S. ABWR
proprietary information (or its
equivalent) which was originally
developed by GE and approved by the
NRC in the original U.S. ABWR design
certification rulemaking. While the
STPNOC has contractual rights from
GEH to use the GE-developed U.S.
ABWR proprietary information for STP
Units 3 and 4, it does not have the right
to supply the GE-developed U.S. ABWR
proprietary information to other
companies in connection with any other
application for a COL that references the
certified U.S. ABWR. In addition,
neither the STPNOC nor its contractors
would be in a position to provide
complete information to substitute for
the GE-developed U.S. ABWR
proprietary information in time to
support the schedule for issuance of the
COLs for STP Units 3 and 4, should they
be approved by the NRC. Second, the
STPNOC indicated that some portion of
the GE-developed U.S. ABWR
proprietary information relates to fuel
design, and the STPNOC does not
intend to use the GE fuel design for
initial operation of STP Units 3 and 4.
Rather, the STPNOC intends to use
another fuel design and obtain NRC
approval via an application for a COL
amendment (i.e., after the issuance of
the COLs). The GE-developed fuel
design also would not be used to
operate any of the possible six U.S.
ABWRs that could be developed under
the agreement between Toshiba and
NINA, which has the right to develop
four U.S. ABWRs in addition to STP
Units 3 and 4. Finally, the STPNOC
indicated that the ‘‘options’’ approach
would not be used at renewal; the
renewal application Toshiba was
developing would reflect the use of the
‘‘branches’’ alternative (i.e., Toshiba
would be seeking approval of and
supplying the entire U.S. ABWR design
at renewal, including replacement
proprietary information). Based on these
factors, the STPNOC requested that it be
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considered the supplier for only that
portion of the U.S. ABWR design
certification necessary to comply with
the AIA, and which is the subject of its
amendment request.
Upon consideration, the NRC has
decided to use the ‘‘options’’ approach
for the STPNOC amendment of the U.S.
ABWR design certification, based on the
following considerations. As with the
‘‘branches’’ alternative, there is no
statute or NRC regulation prohibiting
the use of the ‘‘options’’ approach, nor
is there any provision which prohibits
the concurrent use of both alternatives—
so long as the NRC is able to articulate
a basis for doing so. Moreover, all of the
NRC’s safety and regulatory objectives
are met. The STPNOC is providing
sufficient information to determine its
technical qualifications 10 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 DCD integrating
information from both the DCD
developed by GE and the DCD
developed by the STPNOC. The
‘‘options’’ approach also 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. The STPNOC does not have
to develop and submit to the NRC
information equivalent to the
proprietary information developed by
10 The NRC staff 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. However, the NRC staff determined that the
STPNOC, by itself, is not technically qualified to
supply the amended portion of the U.S. ABWR
design certification represented in the STPNOC’s
DCD, Revision 1. The NRC is including a provision
in the amended U.S. ABWR DCR to specify that if
a COL applicant references the STPNOC option but
does not show they are obtaining the design from
the STPNOC and TANE, acting together, then the
COL applicant must demonstrate that the entity
supplying the STPNOC option to the applicant
possesses the technical qualifications to do so.
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GE to support the STPNOC amendment
application. Nor does the STPNOC have
to demonstrate its technical
qualifications to supply the entire U.S.
ABWR-certified design; it has already
demonstrated its technical
qualifications to supply the STPNOC
option. Toshiba has submitted an
application for renewal of the U.S.
ABWR design certification that is
consistent with the ‘‘branches’’
approach. Thus, the STPNOC option
will have a limited period in which it
can 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.
Based on these considerations, the
NRC is adopting the ‘‘options’’
alternative for the STPNOC amendment
of the U.S. ABWR design certification,
but will regard the ‘‘branches’’
alternative as the default for all
renewals of design certifications and for
major design certification amendments.
Under the ‘‘options’’ approach,
applicants seeking amendments to
already certified designs must be found
to be qualified to supply the limited
scope of the revisions they seek. 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.
By implementing the ‘‘options’’
approach for the STPNOC U.S. ABWR
amendment, a COL applicant that
references the U.S. ABWR standard
design certification can meet the
requirements of the AIA rule by
referencing both the GE DCD and the
STPNOC DCD or by referencing only the
GE DCD and addressing the
requirements of the AIA rule separately
in its COL application.
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TABLE 1—DIFFERENCES IN REGULATORY TREATMENT OF ALTERNATIVES FOR ADDRESSING MULTIPLE DESIGN
CERTIFICATION SUPPLIERS
Alternative 1:
Separate rules
Alternative 2:
One rule with multiple branches
Alternative 3:
One rule with options
Summary Description of Alternative.
Each supplier’s certified design would
be contained in a separate design
certification rule (separate appendices to 10 CFR part 52). Thus,
there would be multiple rules for the
same general design.
Single DCD (see below).
Each supplier’s certified design would
be contained in a single design certification rule (a single appendix to
10 CFR part 52).
Each supplier’s design is a complete
design and presented as an alternative or ‘‘branch’’ within the rule.
DCD ........................
One complete DCD for each rule. Rule
language would incorporate by reference a single DCD.
Two separate DCDs (one for each
supplier), each DCD describing design for that supplier. Rule language
would incorporate by reference two
DCDs.
Identification of Applicant in Rule.
Each supplier identified as original applicant in its rule.
Design information for amended portion of design.
The original applicant and the applicant for each branch (each entity
constituting a supplier) are identified.
Note: Original applicant would always
be the first branch.
Design information for amended portion of design branch.
The original applicant’s certified design
would be contained in a single design certification rule (a single appendix to 10 CFR part 52). An ‘‘option’’ represents an alternative to the
specified portion(s) of the original
applicant’s certified design. The supplier of the option would be providing only the portion(s) of the certified design contained within the option.
A COL referencing a design with options would obtain the total design
from two (or more) suppliers: (i) The
main portion of the design from the
original applicant (unless the COL
applicant demonstrated that another
entity was qualified to supply the design) and (ii) the selected design option from the applicable supplier of
the option.
Two choices for the DCDs (see
below).
Choice 1 (NRC preferred)
Two separate DCDs: (i) Original applicant’s DCD (no change to document) and (ii) a limited-scope DCD
describing only the information in the
option.
Choice 2
Two separate DCDs: (i) Original applicant’s DCD (no change to document) and (ii) new DCD, prepared
by supplier of option, integrating the
original certified design with the substitute design description of the option in the appropriate locations.
Original applicant and applicant for
each ‘‘option’’ (each entity constituting a supplier) are identified.
Technical Content of
Application for
Amendment.
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Original supplier
Design information for amended portion of design.
Supplier of option-initial application for
option
Design information for amended portion of design.
Supplier of option-application for
amendment to option
Design information for amended portion of option
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TABLE 1—DIFFERENCES IN REGULATORY TREATMENT OF ALTERNATIVES FOR ADDRESSING MULTIPLE DESIGN
CERTIFICATION SUPPLIERS—Continued
Alternative 1:
Separate rules
Alternative 2:
One rule with multiple branches
Alternative 3:
One rule with options
Technical Content of
Application for Renewal.
Design information for entire design,
necessary to comply with renewal
updating in accordance with § 52.57.
Design information for entire design
branch, necessary to comply with renewal updating in accordance with
§ 52.57.
Submission of
SUNSI (including
proprietary information), and SGI
(if applicable).
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Regulatory feature
Amendment
Original supplier
Submit publicly-available DCD without
new SUNSI (including proprietary information) and SGI, and submit separate DCD with any new SUNSI (including proprietary information) and
SGI.
Additional supplier
Submit publicly-available DCD without
SUNSI (including proprietary information) and SGI, and submit separate DCD with SUNSI (including proprietary information) and SGI that is
equivalent to all SUNSI (including
proprietary information) and SGI provided by original applicant.
Renewal
Original supplier
Submit publicly-available DCD without
new SUNSI (including proprietary information) and SGI, and submit separate DCD with any new SUNSI (including proprietary information) and
SGI.
Additional supplier
Submit publicly-available DCD without
SUNSI (including proprietary information) and SGI, and submit separate DCD with SUNSI (including proprietary information) and SGI that is
equivalent to all SUNSI (including
proprietary information) and SGI provided by original applicant (unless
previously provided by the non-original applicant in an earlier amendment proceeding).
Amendment
Original supplier
Submit publicly-available DCD without
new SUNSI (including proprietary information) and SGI, and submit separate DCD with any new SUNSI (including proprietary information) and
SGI.
Supplier of branch
Submit publicly-available DCD without
SUNSI (including proprietary information) and SGI, and separate DCD
with SUNSI (including proprietary information) and SGI that is equivalent
to all SUNSI (including proprietary
information) and SGI provided by
original applicant.
Renewal
Original supplier
Submit publicly-available DCD without
new SUNSI (including proprietary information) and SGI, and submit separate DCD with any new SUNSI (including proprietary information) and
SGI.
Supplier of branch
Submit publicly-available DCD without
SUNSI (including proprietary information) and SGI, and submit separate DCD with SUNSI (including proprietary information) and SGI that is
equivalent to all SUNSI (including
proprietary information) and SGI provided by original applicant (unless
previously provided by the non-original applicant in an earlier amendment proceeding).
Original supplier
Design information for entire design
necessary to comply with renewal
updating in accordance with § 52.57.
Supplier of option
N/A (Supplier of option may not renew
the DCR option. If both the original
applicant and the applicant for the
option seek renewal, then renewal
will be implemented as ‘‘branches’’
under Alternative 2 with two named
applicants/suppliers. If the original
applicant or the applicant for the option, alone, seeks renewal, then renewal will be implemented as a single rule with one named applicant/
supplier.)
Amendment
Original supplier
Submit publicly-available DCD without
new SUNSI (including proprietary information) and SGI, and submit separate DCD with any new SUNSI (including proprietary information) and
SGI.
Supplier of option
Submit publicly-available DCD without
SUNSI (including proprietary information) and SGI, and submit separate DCD with SUNSI (including proprietary information) and SGI that is
equivalent to that SUNSI (including
proprietary information) and SGI provided by original applicant which is
within the scope of the amendment,
plus any new SUNSI (including proprietary information) and SGI necessary to support the amendment.
Renewal
Original supplier
Submit publicly-available DCD without
new SUNSI (including proprietary information) and SGI, and submit separate DCD with any new SUNSI (including proprietary information) and
SGI.
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78109
TABLE 1—DIFFERENCES IN REGULATORY TREATMENT OF ALTERNATIVES FOR ADDRESSING MULTIPLE DESIGN
CERTIFICATION SUPPLIERS—Continued
Alternative 1:
Separate rules
Alternative 2:
One rule with multiple branches
Alternative 3:
One rule with options
Nature and Scope of Findings that:
NRC Safety Re(i) Portion of design being amended
view—Amendment.
meets current applicable NRC requirements and
(ii) proposed change does not affect
previous conclusions in other design
areas.
Findings that: (i) Portion of design
being amended meets current applicable NRC requirements and (ii)
proposed change does not affect
previous conclusions in other design
areas.
Nature and Scope of
NRC Safety Review—Renewal.
Findings that:
(i) Design complies with AIA Rule, 10
CFR 50.150 (if not already amended);
(ii) design complies with all regulations
applicable and in effect at time or
original certification; (iii) relevant
findings for any changes to the design requested by the supplier, per
10 CFR 52.59(c); and (iv) the findings required by 10 CFR 52.59(b)
for those changes imposed by the
NRC under that section.
Findings that: (i) Design complies with
AIA Rule, 10 CFR 50.150 (if not already amended); (ii) design complies with all regulations applicable
and in effect at time or original certification; (iii) relevant findings for
any changes to the design requested by the supplier, per 10 CFR
52.59(c); and relevant findings for
changes imposed by the NRC per
10 CFR 52.59(b); and (iv) the findings required by 10 CFR 52.59(b)
for those changes imposed by the
NRC under that section.
Nature and Scope of
NRC Technical
Qualifications Review—Initial Supplier Approval.
Supplier is technically qualified to provide entire design, including detailed
design information.
Original supplier
Supplier is technically qualified to provide entire design, including detailed
design information.
Supplier of branch
Supplier is technically qualified to provide entire design, including detailed
design information and the equivalent SUNSI (including proprietary information) and SGI.
Original supplier
Findings that: (i) Portion of design
being amended meets current applicable NRC requirements and (ii)
proposed change does not affect
previous conclusions in other design
areas.
Supplier of option
Findings that: (i) Design proposed to
be added as an option, or portion of
existing design being amended (as
applicable), meets current applicable
NRC requirements, (ii) (if applicable)
proposed change to an option does
not affect previous conclusions in
other design areas of the option,
and (iii) design proposed to be
added as an option, or proposed
change to existing option (as applicable) does not affect safety of design areas in the portion of the design supplied by the original supplier.
Original supplier
Findings that: (i) Design complies with
AIA Rule, 10 CFR 50.150 (if not already amended); (ii) design complies with all regulations applicable
and in effect at time or original certification; (iii) relevant findings for
any changes to the design requested by the supplier, per 10 CFR
52.59(c); and (iv) the findings required by 10 CFR 52.59(b) for those
changes imposed by the NRC under
that section.
Supplier of option
N/A (Supplier of option would not be
allowed to renew the option).
Original supplier
Supplier is technically qualified to provide entire design, including detailed
design information.
Supplier of option
Supplier is technically qualified to provide detailed design information and
the equivalent SUNSI (including proprietary information) and SGI, if any,
which is within the scope of the
amendment.
N/A (if amendment is in same area as
original option).
Regulatory feature
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Nature and Scope of N/A
NRC Technical
Qualifications Review—Amendment.
Nature and Scope of None, unless significant change in orNRC Technical
ganization or corporate structure/
Qualifications Reownership or information showing a
view—Renewal.
change in circumstances so a supplier no longer has technical qualifications.
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N/A
None, unless significant change in organization or corporate structure/
ownership or information showing a
change in circumstances so a supplier no longer has technical qualifications.
None, unless significant change in organization or corporate structure/
ownership, or information showing a
change in circumstances so a supplier no longer has technical qualifications.
(supplier of option would not be allowed to renew the option unless it
was incorporated into a wholesale
renewal of the design certification).
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TABLE 1—DIFFERENCES IN REGULATORY TREATMENT OF ALTERNATIVES FOR ADDRESSING MULTIPLE DESIGN
CERTIFICATION SUPPLIERS—Continued
Alternative 1:
Separate rules
Alternative 2:
One rule with multiple branches
Alternative 3:
One rule with options
Scope of Comments
in Proposed Rule
FRN—New Rule
or Initial Approval
of Branch or Option.
Comments on design for new rule (no
comment on original DCR).
Original supplier
N/A (comments on the original supplier’s design would be out-of-scope
of a rulemaking proposing to add a
branch).
Supplier of branch
Same as scope of comments on initial
approval of a new DCR.
Scope of Comments
in Proposed Rule
FRN—Amendment.
Whether:
(i) Changed portion of design meets
current applicable NRC requirements and (ii) changes adversely affect previous conclusions in other
design areas.
Whether: (i) Changed portion of design
branch meets current applicable
NRC requirements and (ii) changes
adversely affect previous conclusions in other design areas.
Scope of Comments
in Proposed Rule
FRN—Renewal.
Part 21 Applicability
Consistent with finding that NRC must
make at renewal.
Consistent with finding that NRC must
make at renewal.
Original supplier
N/A (comments on the original supplier’s design would be out-of-scope
of a rulemaking proposing to add an
option).
Supplier of option
(i) Proposed option meets applicable
NRC requirements (ii) proposed option does not affect safety of design
areas in the portion of the design
supplied by the original supplier.
Original supplier
Whether: (i) Changed portion of design
meets current applicable NRC requirements, (ii) changes adversely
affect previous conclusions in other
design areas, and (iii) changed portion of design requires the NRC to
implement conforming changes in
the design option.
Supplier of option
Whether: (i) Proposed change to the
option meets applicable NRC requirements, (ii) proposed change to
the option affects previous conclusions in unchanged portions of the
option, and (iii) proposed change to
the option affects safety of design
areas in the portion of the design
supplied by the original supplier.
N/A (Supplier of option would not be
allowed to renew the option).
Each supplier is responsible for 10
CFR part 21 compliance with respect to its design.
Each supplier is responsible for 10
CFR part 21 compliance with respect to its design branch.
Note: NRC is responsible for advising
suppliers of branches of any defects
in the portion of the design which
was sponsored by another supplier.
Supplier Recordkeeping Responsibilities.
Each supplier required to maintain its
DCD.
Each supplier required to maintain the
DCD representing the branch it
sponsored.
Mode of Referencing
by COL applicant.
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Regulatory feature
Reference the selected rule.
Reference one branch of the rule.
Original supplier
Responsible for 10 CFR part 21 compliance with respect to the entire design with the exception of the option(s).
Supplier of option
Responsible for 10 CFR part 21 compliance with respect to its option.
Note: NRC is responsible for advising:
(i) Suppliers of options of any defects in the design of the original
supplier; and (ii) original supplier of
any defects in any of the options, for
the purpose of facilitating the original
supplier’s consideration of the option’s defect on the original supplier’s design.
Original supplier
Maintain the DCD for the entire design.
Supplier of option
Maintain the DCD for its option.
Reference the rule with identification of
option selected.
Notes:
1. If there is only a single description in a table cell, then that means that the description applies to all suppliers.
2. For purposes of this table, ‘‘supplier’’ means an entity that: (1) Submits an application for a new design certification, an amendment to an
existing design certification, or a renewal for a design certification; and (2) intends to, has offered, or is providing design and engineering services related to the certified design to a license applicant. The information in this table does not apply to petitions for rulemaking under 10 CFR
2.802 submitted by entities who are not acting, do not intend to act, or the NRC believes are not reasonably capable of acting as a ‘‘supplier.’’
‘‘Original supplier’’ means the supplier who was the original applicant for the design certification.
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C. Changes to Appendix A to 10 CFR
Part 52—Design Certification Rule for
the U.S. Advanced Boiling Water
Reactor.
1. Introduction (Section I)
The NRC is amending Section I,
‘‘Introduction,’’ to identify the STPNOC
as the applicant for the amendment of
the U.S. ABWR DCR to address the AIA
rule, 10 CFR 50.150. The portion of the
certified design sponsored by the
STPNOC in this amendment, and which
this rulemaking finds the STPNOC
(acting together with TANE) is
technically qualified to supply, is
termed the ‘‘STPNOC-certified design
option’’ or ‘‘STPNOC option.’’ As
discussed in greater detail in the
section-by-section analysis for Section
III, ‘‘Scope and Contents,’’ an applicant
or licensee referencing this appendix
may use the GE-certified design (which
was first certified by the NRC in a 1997
rulemaking (62 FR 25800; May 12,
1997)), or both the GE-certified design
together with the STPNOC option (the
GE/STPNOC composite certified
design).
The overall purpose of paragraph I of
this appendix is to identify the standard
plant design that was approved and the
applicant for certification of the
standard design. Identification of both
the original design certification
applicant and the applicant for any
amendment to the design is necessary to
implement this appendix, for two
reasons. First, the implementation of 10
CFR 52.63(c) depends on whether an
applicant for a COL contracts with the
design certification applicant to provide
the generic DCD and supporting design
information. If the COL applicant does
not use the design certification
applicant to provide the design
information and instead uses an
alternate nuclear plant supplier, then
the COL applicant must meet the
requirements in paragraph IV.A.4 of this
appendix and 10 CFR 52.73. The COL
applicant must demonstrate that the
alternate supplier is qualified to provide
the standard plant design information.
Second, by identifying the STPNOC
as the applicant for the amendment of
the U.S. ABWR DCR, the provisions of
10 CFR 52.63 will be given effect
whenever a COL applicant references
the certified design option sponsored by
the STPNOC, but does not use the
STPNOC to supply the design
information for this option and instead
uses an alternate supplier. In this
circumstance, the COL applicant must
meet the requirements in paragraph
IV.A.4 of this appendix and 10 CFR
52.73 with respect to the STPNOC
option (i.e., the COL applicant must
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demonstrate that the alternate supplier
is qualified to provide the certified
design information constituting the
STPNOC option).
In addition, by identifying the
STPNOC as the applicant, the STPNOC
must maintain the generic DCD for the
STPNOC option throughout the time
this appendix may be referenced by a
COL, as required by paragraph X.A.1 of
this appendix.
2. Definitions (Section II)
The NRC is revising the definition of
‘‘generic design control document’’
(generic DCD) in paragraph A in Section
II, ‘‘Definitions,’’ to indicate that there
will now be two generic DCDs
incorporated by reference into this
appendix—the DCD for the original U.S.
ABWR design certification submitted by
GE Nuclear Energy (GE DCD) and the
DCD for the amendment to the U.S.
ABWR design submitted by the
STPNOC (STPNOC DCD). The NRC is
making this change to the definition of
‘‘generic DCD’’ to make it clear that all
requirements in this appendix related to
the ‘‘generic DCD’’ apply to both the GE
DCD and the STPNOC DCD, unless
otherwise specified.
During development of the first two
DCRs, the Commission decided that
there would be both generic (master)
DCDs maintained by the NRC and the
design certification applicant, as well as
individual plant-specific DCDs
maintained by each applicant and
licensee that reference this appendix.
This distinction is necessary to specify
the relevant plant-specific requirements
to applicants and licensees referencing
the appendix. To facilitate the
maintenance of the master DCDs, the
NRC will require that each application
for a standard design certification or
amendment to a standard design
certification be updated to include an
electronic copy of the final version of
the DCD. The final version will be
required to incorporate all amendments
to the DCD submitted since the original
application as well as any changes
directed by the NRC as a result of its
review of the original DCD or as a result
of public comments. This final version
will become the master DCD
incorporated by reference in the DCR.
The master DCD will be revised as
needed to include generic changes to
the version of the DCD approved in this
design certification rulemaking. These
changes would occur as the result of
generic rulemaking by the Commission,
under the change criteria in Section
VIII.
The NRC is incorporating by reference
a second DCD into Appendix A of 10
CFR part 52 (i.e., the DCD for the
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78111
STPNOC option (STPNOC DCD)). Under
the revised rule, a reference to a
‘‘generic DCD’’ means, in context, either
or both: (i) The DCD for the original U.S.
ABWR design certification submitted by
GE (GE DCD) and (ii) the STPNOC DCD
submitted by the STPNOC.
3. Scope and Contents (Section III)
The purpose of Section III is to
describe and define the scope and
contents of this design certification and
to present how documentation
discrepancies or inconsistencies are to
be resolved. Paragraph III.A is the
required statement of the Office of the
Federal Register (OFR) for approval of
the incorporation by reference of Tier 1,
Tier 2, and the generic technical
specifications into this appendix. The
NRC is (i) redesignating a portion of the
existing paragraph A regarding the OFR
approval of the incorporation by
reference of the design control
documents as paragraph A.1; (ii)
redesignating the remaining portion of
the existing paragraph A regarding the
GE DCD availability as paragraph A.2;
and (iii) adding a new paragraph A.3
regarding STPNOC DCD availability.
These changes were directed by OFR so
that the incorporation by reference
language is consistent with the guidance
contained in the Federal Register
Document Drafting Handbook, January
2011 Revision.
The legal effect of incorporation by
reference is that the incorporated
material has the same legal status as if
it were published in the Code of Federal
Regulations. This material, like any
other properly issued regulation, has the
force and effect of law. The STPNOC
DCD was prepared to meet the technical
information contents of application
requirements for design certifications
under 10 CFR 52.47(a) and the
requirements of the OFR for
incorporation by reference under 1 CFR
part 51. One of the requirements of the
OFR for incorporation by reference is
that the applicant for the design
certification (or amendment to the
design certification) must make the
generic DCD available upon request
after the final rule becomes effective.
Therefore, paragraph III.A.3 identifies a
STPNOC representative to be contacted
to obtain a copy of the STPNOC DCD.
The generic DCD (master copy) for the
STPNOC DCD is electronically
accessible in ADAMS under Accession
No. ML102870017; at the OFR; and, at
https://www.regulations.gov by searching
under Docket ID NRC–2010–0134.
Copies of the STPNOC generic DCD will
also be available at the NRC’s PDR.
Questions concerning the accuracy of
information in an application that
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references this appendix will be
resolved by checking the master copy of
the generic DCD in ADAMS. If the
design certification amendment
applicant makes a generic change
(through NRC rulemaking) to the DCD
under 10 CFR 52.63 and the change
process provided in Section VIII of
Appendix A, then at the completion of
the rulemaking the NRC will request
approval of the Director, OFR, for the
revised master DCD. The NRC will
require that the design certification
amendment applicant maintain an upto-date copy of the master DCD under
paragraph X.A.1 that includes any
generic changes it has made because it
is likely that most applicants intending
to reference the standard design will
obtain the generic DCD from the design
certification amendment applicant.
In addition, the NRC is revising
paragraph III.B to add text indicating
that an applicant or licensee referencing
this appendix may reference either the
GE DCD, or both the GE DCD and the
STPNOC DCD. An applicant referencing
this appendix will be required to
indicate in its application and in all
necessary supporting documentation
which of these two alternatives it is
implementing. This information is
necessary to support the NRC’s review
and processing of the license
application.
A COL applicant that does not
reference both the GE DCD and the
STPNOC DCD will be required, in
accordance with 10 CFR
50.150(a)(3)(v)(B) to comply with the
requirements of 10 CFR 50.150 as part
of its COL application.
The NRC is making a minor change to
the wording of the last sentence in
paragraph III.B in the final rule for
clarity. In the proposed rule, this
sentence read, ‘‘An applicant
referencing this appendix shall indicate
in its application and in all necessary
supporting documentation which of
these two options it is implementing.’’
This sentence is revised in the final rule
to read, ‘‘An applicant referencing this
appendix shall indicate in its
application and in all necessary
supporting documentation whether it is
implementing the GE DCD, or both the
GE DCD and the STPNOC DCD.’’ This
avoids the use of the word ‘‘options’’
which was used in a different context in
this paragraph than it was in other
sections of the rule.
Paragraphs III.C and III.D set forth the
way potential conflicts are to be
resolved. Paragraph III.C establishes the
Tier 1 description in the DCD as
controlling in the event of an
inconsistency between the Tier 1 and
Tier 2 information in the DCD. The NRC
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is making a minor change to paragraph
III.C, which currently states that, if there
is a conflict between Tier 1 and Tier 2
of ‘‘the’’ DCD, then Tier 1 controls. The
revised paragraph states that, if there is
a conflict between Tier 1 and Tier 2 of
‘‘a’’ DCD, then Tier 1 controls. This
change of ‘‘the’’ to ‘‘a’’ is necessary to
indicate that this requirement applies to
both the GE DCD and the STPNOC DCD.
The NRC is also making a change to
paragraph III.D. Paragraph III.D
establishes the generic DCD as the
controlling document in the event of an
inconsistency between the DCD and the
final safety evaluation report (FSER) for
the certified standard design. The
revision indicates that this is also the
case for an inconsistency between the
STPNOC DCD and the NRC’s associated
FSER, referred to as the ‘‘AIA FSER.’’
In the proposed rule, the NRC had
proposed to redesignate current
paragraph III.E as proposed paragraph
III.F and to add a new paragraph, III.E,
stating that, if there is a conflict between
the design as described in the GE DCD
and a design matter which implements
the STPNOC-certified design option but
is not specifically described in the
STPNOC DCD, then the GE DCD
controls. The NRC had proposed this
paragraph to address the situation
when, despite the best efforts of the
STPNOC and the NRC, there were
unintended consequences or
unaddressed issues resulting from the
STPNOC’s amendment to the U.S.
ABWR design. The NRC received a
comment on this aspect of the proposed
rule from NINA stating that proposed
paragraph III.E should be deleted
because it was unnecessary and not
clear. For the reasons set forth in the
NRC response to comment NINA–8 in
Section II of this document, the NRC
agrees that inclusion of this provision is
not necessary and has decided to delete
the proposed paragraph III.E in the final
rule.
4. Additional Requirements and
Restrictions (Section IV)
Section IV presents additional
requirements and restrictions imposed
upon an applicant who references this
appendix. Paragraph IV.A presents the
information requirements for these
applicants. Paragraph IV.A.3 currently
requires the applicant to include, not
simply reference, the proprietary
information and SGI referenced in the
U.S. ABWR DCD, or its equivalent, to
ensure that the applicant has actual
notice of these requirements. The NRC
is revising paragraph IV.A.3 to indicate
that a COL applicant must include, in
the plant-specific DCD, the proprietary
information and SGI referenced in both
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the GE DCD and the STPNOC DCD, as
applicable.
The NRC is also adding a new
paragraph IV.A.4 to indicate
requirements that must be met in cases
where the COL applicant is not using
the entity that was the original applicant
for the design certification (or
amendment) to supply the design for the
applicant’s use. Paragraph IV.A.4.a
requires that a COL applicant
referencing this appendix include, as
part of its application, a demonstration
that an entity other than GE Nuclear
Energy is qualified to supply the U.S.
ABWR-certified design unless GE
Nuclear Energy supplies the design for
the applicant’s use. Paragraph IV.A.4.b
requires that a COL applicant
referencing the STPNOC-certified
design option include, as part of its
application, a demonstration that an
entity other than the STPNOC and
TANE acting together is qualified to
supply the STPNOC-certified design
option, unless the STPNOC and TANE
acting together supply the design option
for the applicant’s use. In cases where
a COL applicant is not using GE Nuclear
Energy to supply the U.S. ABWRcertified design, or is not using the
STPNOC and TANE acting together to
supply the STPNOC-certified design
option, this information is necessary to
support any NRC finding under 10 CFR
52.73(a) that an entity other than the
one originally sponsoring the design
certification or design certification
amendment is qualified to supply the
certified design or certified design
option.
Under 10 CFR 52.47(a)(7), a design
certification applicant is required to
include information in its application to
demonstrate that it is technically
qualified to engage in the proposed
activities (e.g., supplying the certified
design to license applicants). Based on
the NRC’s review of the STPNOC
application to amend the U.S. ABWRcertified design, 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.
However, the staff determined that the
STPNOC, by itself, is not technically
qualified to supply the amended portion
of the U.S. ABWR design certification
represented in the STPNOC’s DCD.
Rather, the staff determined that the
STPNOC and TANE acting together are
qualified to supply the amended portion
of the U.S. ABWR design certification
represented in the STPNOC’s DCD.
Therefore, the NRC is including
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paragraph IV.A.4.b to ensure that the
basis for the NRC finding of technical
qualifications in support of this design
certification amendment remains valid.
5. Applicable Regulations (Section V)
The purpose of Section V is to specify
the regulations applicable and in effect
when the design certification is
approved (i.e., as of the date specified in
paragraph V.A, which is the date that
Appendix A was originally approved by
the Commission and signed by the
Secretary of the Commission). The NRC
is revising paragraph V.A to indicate
that the current text in this paragraph
(new paragraph V.A.1) applies to the GE
DCD and to add a new paragraph
(V.A.2) indicating the regulations that
apply to the STPNOC DCD, as approved
by the Commission and signed by the
Secretary of the Commission in
approving this amendment to Appendix
A.
In the final rule, the NRC is making
a change to the rule text in proposed
paragraph V.A.2, which stated that the
regulations that apply to the U.S. ABWR
design as contained in the STPNOC
DCD are in 10 CFR parts 50 and 52 that
are applicable and technically relevant,
as described in the FSER on the
STPNOC amendment. The purpose of
the change in the final rule is to more
accurately reflect the issue resolution
afforded to the STPNOC DCD. The
NRC’s review of the STPNOC’s
proposed amendment to the U.S. ABWR
had three objectives. The first objective
was to confirm that the applicant had
complied with the AIA rule (10 CFR
50.150). The second objective was to
determine that there would 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. The
third objective was to determine if the
applicant was technically qualified to
perform the design work, to amend a
portion of the U.S. ABWR design, and
to supply the amended portion of the
design. To more accurately reflect these
objectives, the NRC modified paragraph
V.A.2 to state that the regulations that
apply to the U.S. ABWR design as
contained in the STPNOC DCD are those
described in paragraph V.A.1 (as
applicable to the original GE DCD) and
10 CFR 50.150, as described in the FSER
on the STPNOC amendment addressing
the AIA rule (NUREG–1948).
6. Issue Resolution (Section VI)
The purpose of Section VI is to
identify the scope of issues that were
resolved by the Commission in the
original certification rulemaking and,
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therefore, are ‘‘matters resolved’’ within
the meaning and intent of 10 CFR
52.63(a)(5). The NRC did not identify
any changes to paragraph VI.A in the
proposed rule. However, upon
consideration of a public comment on
the proposed rule suggesting that
changes to paragraph VI.A were
necessary, the NRC is making changes to
paragraph VI.A in the final rule (see
comment NINA–10 and associated NRC
response in section II of this document).
Paragraph VI.A describes in general
terms the nature of the Commission’s
findings, and makes the finding
required by 10 CFR 52.54 for the
Commission’s approval of this final
DCR. Furthermore, paragraph VI.A
explicitly states the Commission’s
determination that this design provides
adequate protection to the public health
and safety. The NRC is revising
paragraph VI.A in the final rule by
redesignating current paragraph VI.A as
new paragraph VI.A.1 and by adding
new paragraphs VI.A.2 and VI.A.3.
Paragraph VI.A.2 describes the scope of
issue resolution accorded the STPNOC
option and states that the Commission
has determined that the structures,
systems, components, and design
features of the U.S. ABWR design, as
contained in the STPNOC DCD, comply
with the provisions of the AEA of 1954,
as amended, and the applicable
regulations identified in Section V.A.2,
including 10 CFR 50.150, and therefore,
provide enhanced protection to the
health and safety of the public afforded
by compliance with 10 CFR 50.150.
Paragraph VI.A.2 further states that 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 to meet the
requirements of 10 CFR 50.150 are not
necessary for the U.S. ABWR design.
Paragraph VI.A.3 describes the scope
of issue resolution accorded the
combination of the GE DCD and the
STPNOC option and states that the
Commission has determined that the
structures, systems, components, and
design features of the U.S. ABWR, as
contained in both the GE DCD and the
STPNOC DCD, when referenced
together, comply with the provisions of
the AEA of 1954, as amended, and the
applicable regulations identified in
Section V.A., and, therefore, provide
adequate protection to the health and
safety of the public. Paragraph VI.A.3
further states that a conclusion that a
matter is resolved includes the finding
that additional or alternative structures,
systems, components, design features,
design criteria, testing, analyses,
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acceptance criteria, or justifications are
not necessary for the U.S. ABWR design,
when the GE DCD and the STPNOC
DCD are referenced together.
Paragraph VI.B presents the scope of
issues that may not be challenged as a
matter of right in subsequent
proceedings and describes the categories
of information for which there is issue
resolution. Paragraph VI.B.1 provides
that all nuclear safety issues arising
from the AEA of 1954, as amended, that
are associated with the information in
the NRC staff’s FSER (ADAMS
Accession No. ML102710198), the Tier
1 and Tier 2 information and the
rulemaking record for this appendix are
resolved within the meaning of 10 CFR
52.63(a)(5). These issues include the
information referenced in the DCD that
are requirements (i.e., ‘‘secondary
references’’), as well as all issues arising
from proprietary information and SGI
that are intended to be requirements.
Paragraph VI.B.2 provides for issue
preclusion of proprietary information
and SGI.
The NRC is revising paragraphs VI.B.1
and VI.B.2 to redesignate references to
the ‘‘FSER’’ as references to the ‘‘U.S.
ABWR FSER,’’ and references to the
‘‘generic DCD’’ as references to the ‘‘GE
DCD’’ to distinguish the FSER and DCD
for the original certified design from the
FSER and DCD issued to support the
STPNOC amendment to the U.S. ABWR
design. In addition, this revision adds
additional text to paragraph VI.B.1 to
identify the information that is resolved
by the Commission in this rulemaking
to certify the STPNOC amendment to
the U.S. ABWR design.
The NRC is also revising paragraph
VI.B.7, which identifies as resolved all
environmental issues concerning severe
accident mitigation design alternatives
(SAMDAs) arising under the National
Environmental Policy Act of 1969
(NEPA) associated with the information
in the NRC’s final environmental
assessment (EA) for the U.S. ABWR
design and Revision 1 of the technical
support document for the U.S. ABWR,
dated December 1994, for plants
referencing this appendix whose site
parameters are within those specified in
the technical support document. The
NRC is revising this paragraph to also
identify as resolved all environmental
issues concerning SAMDAs associated
with the information in the NRC’s final
EA and Revision 0 of ABWR–LIC–09–
621, ‘‘Applicant’s Supplemental
Environmental Report-Amendment to
ABWR Standard Design Certification,’’
for the AIA amendment to the U.S.
ABWR design for plants referencing this
appendix whose site parameters are
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within those specified in the technical
support document.
Finally, the NRC is revising paragraph
VI.E, which provides the procedure for
an interested member of the public to
obtain access to proprietary information
and SGI for the U.S. ABWR design, in
order to request and participate in
proceedings identified in paragraph
VI.B of this appendix, that is,
proceedings involving licenses and
applications which reference this
appendix. The NRC is replacing the
current information in this paragraph
with a statement that the NRC will
specify, at an appropriate time, the
procedure for interested persons to
review SGI or SUNSI (including
proprietary information) for the purpose
of participating in the hearing required
by 10 CFR 52.85, the hearing provided
under 10 CFR 52.103, or in any other
proceeding relating to this appendix in
which interested persons have a right to
request an adjudicatory hearing.
Access to such information would be
for the sole purpose of requesting or
participating in certain specified
hearings, viz., (i) the hearing required by
10 CFR 52.85 where the underlying
application references this appendix, (ii)
any hearing provided under 10 CFR
52.103 where the underlying COL
references this appendix, and (iii) any
other hearing relating to this appendix
in which interested persons have the
right to request an adjudicatory hearing.
For proceedings where the notice of
hearing was published before January
17, 2012, the Commission’s order
governing access to SUNSI and SGI
shall be used to govern access to SUNSI
(including proprietary information) and
SGI on the STPNOC option. For
proceedings in which the notice of
hearing or opportunity for hearing is
published after January 17, 2012,
paragraph VI.E. applies and governs
access to SUNSI (including proprietary
information) and SGI for both the
original GE-certified design and the
STPNOC option; as stated in paragraph
VI.E, the NRC will specify the access
procedures at an appropriate time.
The NRC expects to follow its current
practice of establishing the procedures
by order when the notice of hearing is
published in the Federal Register. (See,
e.g., Florida Power and Light Co.,
Combined License Application for the
Turkey Point Units 6 & 7, Notice of
Hearing, Opportunity To Petition for
Leave To Intervene and Associated
Order Imposing Procedures for Access
to Sensitive Unclassified NonSafeguards Information and Safeguards
Information for Contention Preparation
(75 FR 34777; June 18, 2010); Notice of
Receipt of Application for License;
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Notice of Consideration of Issuance of
License; Notice of Hearing and
Commission Order and Order Imposing
Procedures for Access to Sensitive
Unclassified Non-Safeguards
Information and Safeguards Information
for Contention Preparation; In the
Matter of AREVA Enrichment Services,
LLC (Eagle Rock Enrichment Facility)
(74 FR 38052; July 30, 2009)).
In the four currently approved design
certifications (10 CFR part 52,
appendices A through D), paragraph
VI.E presents specific directions on how
to obtain access to proprietary
information and SGI on the design
certification in connection with a
license application proceeding
referencing that DCR. The NRC is
making this change because these
provisions were developed before the
terrorist events of September 11, 2001.
After September 11, 2001, the Congress
changed the statutory requirements
governing access to SGI, and the NRC
revised its rules, procedures, and
practices governing control and access
to SUNSI and SGI. The NRC now
believes that generic direction on
obtaining access to SUNSI and SGI is no
longer appropriate for newly approved
DCRs. Accordingly, the specific
requirements governing access to SUNSI
and SGI contained in paragraph VI.E of
the four currently approved DCRs are
not included in the amended DCR for
the U.S. ABWR. Instead, the NRC will
specify the procedures to be used for
obtaining access at an appropriate time
in any COL proceeding referencing the
U.S. ABWR DCR. The NRC intends to
include this change in any future
amendment or renewal of the other
existing DCRs. However, the NRC is not
planning to initiate rulemaking to
change paragraph VI.E of the existing
DCRs, to minimize unnecessary
resource expenditures by both the
original DCR applicant and the NRC.
7. Processes for Changes and Departures
(Section VIII)
The purpose of Section VIII is to
present the processes for generic
changes to, or plant-specific departures
(including exemptions) from, the DCD.
The Commission adopted this restrictive
change process to achieve a more stable
licensing process for applicants and
licensees that reference this DCR. The
change processes for the three different
categories of Tier 2 information, namely,
Tier 2, Tier 2*, and Tier 2* with a time
of expiration, are presented in
paragraph VIII.B.
Departures from Tier 2 that a licensee
may make without prior NRC approval
are addressed under paragraph VIII.B.5
(similar to the process in 10 CFR 50.59).
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The NRC is making changes to Section
VIII to address the change control
process specific to departures from the
information required by 10 CFR
52.47(a)(28) to address the NRC’s AIA
requirements in 10 CFR 50.150.
Specifically, the NRC is revising
paragraph VIII.B.5.b to indicate that the
criteria in this paragraph for
determining if a proposed departure
from Tier 2 requires a license
amendment do not apply to a proposed
departure affecting information required
by 10 CFR 52.47(a)(28) to address 10
CFR 50.150. In addition, the NRC is
redesignating paragraphs VIII.B.5.d,
B.5.e, and B.5.f as paragraphs VIII.B.5.e,
B.5.f, and B.5.g, respectively, and
adding a new paragraph VIII.B.5.d.
Paragraph VIII.B.5.d requires an
applicant or licensee who proposed to
depart from the information required by
10 CFR 52.47(a)(28) to be included in
the FSAR for the standard design
certification to consider the effect of the
changed feature or capability on the
original assessment required by 10 CFR
50.150(a). The FSAR information
required by the aircraft impact rule
which is subject to this change control
requirement consists of the descriptions
of the design features and functional
capabilities incorporated into the final
design of the nuclear power facility and
the description of how the identified
design features and functional
capabilities meet the assessment
requirements in 10 CFR 50.150(a)(1).
The objective of the change controls is
to determine whether the design of the
facility, as changed or modified, is
shown to withstand the effects of the
aircraft impact with reduced use of
operator actions. In other words, the
applicant or licensee must continue to
show, with the modified design, that the
acceptance criteria in 10 CFR
50.150(a)(1) are met with reduced use of
operator actions. The rule does not
require an applicant or a licensee
implementing a design change to redo
the complete AIA to evaluate the effects
of the change. The NRC believes it may
be possible to demonstrate that a design
change is bounded by the original
design or that the change provides an
equivalent level of protection, without
redoing the original assessment.
Consistent with the NRC’s intent
when it issued the AIA rule, under the
revision to this section, plant-specific
departures from the AIA information in
the FSAR do not require a license
amendment, but may be made by the
licensee upon compliance with the
substantive requirements of the AIA
rule (i.e., the AIA rule acceptance
criteria). The applicant or licensee is
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also required to document, in the plantspecific departure, how the modified
design features and functional
capabilities continue to meet the
assessment requirements in 10 CFR
50.150(a)(1) in accordance with Section
X of this appendix. Applicants and
licensees making changes to design
features or capabilities included in the
certified design may also need to
develop alternate means to cope with
the loss of large areas of the plant from
explosions or fires to comply with the
requirements in 10 CFR 50.54(hh). The
addition of these provisions to this
appendix is consistent with the NRC’s
intent when it issued the AIA rule in
2009, as noted in the SOC for that rule
(74 FR 28112; June 12, 2009, at 28122,
third column).
8. Records and Reporting (Section X)
The purpose of Section X is to present
the requirements that apply to
maintaining records of changes to and
departures from the generic DCD, which
would be reflected in the plant-specific
DCD. Section X also presents the
requirements for submitting reports
(including updates to the plant-specific
DCD) to the NRC. Paragraph X.A.1
requires that a generic DCD and the
proprietary information and SGI
referenced in the generic DCD be
maintained by the applicant for this
rule. The NRC is revising paragraph
X.A.1 to indicate that there are two
applicants for this appendix and that
the requirements to maintain a copy of
the applicable generic DCD applies to
both the applicant for the original U.S.
ABWR certification (GE) and the
applicant for the AIA amendment to the
U.S. ABWR design (STPNOC).
Paragraph X.A.1 also requires the design
certification applicant to maintain the
proprietary information and SGI
referenced in the generic DCD. The NRC
is replacing the term ‘‘proprietary
information’’ with the broader term
‘‘sensitive unclassified non-safeguards
information (including proprietary
information).’’ Information categorized
as SUNSI is information that is
generally not publicly available and
encompasses a wide variety of
categories, including information about
a licensee’s or applicant’s physical
protection or material control and
accounting program for special nuclear
material not otherwise designated as
SGI or classified as National Security
Information or Restricted Data (securityrelated information), but which the NRC
may protect from public disclosure
under 10 CFR 2.390.
This change ensures that both GE and
the STPNOC (as well as any future
applicants for amendments to the U.S.
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ABWR DCR who intend to supply the
certified design) are required to
maintain a copy of the applicable
generic DCD, and maintain the
applicable SUNSI (including proprietary
information) and SGI—developed by
that applicant—that were approved as
part of the relevant design certification
rulemakings. In the certification of the
original U.S. ABWR design, the NRC
approved both proprietary information
and SGI as part of the design
certification rulemaking. In this
amendment to the U.S. ABWR design,
the NRC is approving information
designated as SUNSI as part of the
amendment rulemaking.
The NRC notes that the generic DCD
concept was developed, in part, to meet
OFR requirements for incorporation by
reference, including public availability
of documents incorporated by reference.
However, the proprietary information
and SGI were not included in the public
version of the DCD prepared by GE, and
the SUNSI was not included in the
public version of the DCD prepared by
the STPNOC. Only the public version of
the generic STPNOC DCD is identified
and incorporated by reference into this
rule. Nonetheless, the SUNSI for the
STPNOC option was reviewed by the
NRC and, as stated in paragraph VI.B.2,
the NRC considers the information to be
resolved within the meaning of 10 CFR
52.63(a)(5). Because this information is
in the non-public versions of the GE and
STPNOC DCDs, this SUNSI (including
proprietary information) and SGI, or its
equivalent, is required to be provided by
an applicant for a license referencing
this DCR.
In addition, the NRC is adding a new
paragraph X.A.4.a that requires the
applicant for the amendment to the U.S.
ABWR design to address the AIA
requirements to maintain a copy of the
AIA performed to comply with the
requirements of 10 CFR 50.150(a) for the
term of the certification (including any
period of renewal). The NRC is also
adding new paragraph X.A.4.b that
requires an applicant or licensee who
references this appendix to include both
the GE DCD and the STPNOC DCD to
maintain a copy of the AIA performed
to comply with the requirements of 10
CFR 50.150(a) throughout the pendency
of the application and for the term of the
license (including any period of
renewal). The addition of paragraphs
X.A.4.a and X.A.4.b is consistent with
the NRC’s intent when it issued the AIA
rule in 2009 (74 FR 28112; June 12,
2009, at 28121, second column).
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78115
IV. Section-by-Section Analysis
A. Introduction (Section I)
The NRC is amending Section I,
‘‘Introduction,’’ to identify the STPNOC
as the applicant for the amendment of
the U.S. ABWR DCR to address the AIA
rule, 10 CFR 50.150.
B. Definitions (Section II)
The NRC is revising the definition of
‘‘generic design control document
(generic DCD)’’ to indicate that there
will be two generic DCDs incorporated
by reference into this appendix—the
DCD for the original U.S. ABWR design
certification submitted by GE Nuclear
Energy (GE DCD) and the DCD for the
amendment to the U.S. ABWR design
submitted by the STPNOC (STPNOC
DCD). This will make it clear that all
requirements in this appendix related to
the ‘‘generic DCD’’ apply to both the GE
DCD and the STPNOC DCD, unless
otherwise specified.
C. Scope and Contents (Section III)
The NRC is (i) redesignating a portion
of the existing paragraph A regarding
the OFR approval of the incorporation
by reference of the design control
documents as paragraph A.1; (ii)
redesignating the remaining portion of
the existing paragraph A regarding the
GE DCD availability as paragraph A.2;
and (iii) adding a new paragraph A.3
regarding STPNOC DCD availability.
The NRC is revising paragraph III.B to
add text indicating that an applicant or
licensee referencing this appendix may
use either the GE DCD, or both the GE
DCD and the STPNOC DCD. By doing
so, the applicant or licensee effectively
indicates which generic design it is
using (i.e., the GE-certified design, or
the GE/STPNOC composite certified
design). An applicant referencing this
appendix is required to indicate in its
application and in all necessary
supporting documentation which of
these two alternatives it is
implementing.
The NRC is making a minor change to
paragraph III.C, which currently states
that, if there is a conflict between Tier
1 and Tier 2 of ‘‘the’’ DCD, then Tier 1
controls. The revised paragraph states
that, if there is a conflict between Tier
1 and Tier 2 of ‘‘a’’ DCD, then Tier 1
controls. This change of ‘‘the’’ to ‘‘a’’
was necessary because the requirement
also applies to the STPNOC DCD.
Paragraph III.D establishes the generic
DCD as the controlling document in the
event of an inconsistency between the
DCD and the FSER for the certified
standard design. The NRC is making a
change to paragraph III.D which
indicates that in the event of an
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inconsistency between the STPNOC
DCD and the AIA FSER, the STPNOC
DCD controls.
D. Additional Requirements and
Restrictions (Section IV)
The NRC is revising paragraph IV.A.3
to indicate that a COL applicant must
include, in the plant-specific DCD, the
proprietary information and SGI
referenced in both the GE DCD and the
STPNOC DCD, as applicable, or its
equivalent.
Section IV presents additional
requirements and restrictions imposed
upon an applicant who references this
appendix. Paragraph IV.A presents the
information requirements for these
applicants. Paragraph IV.A.3 requires
the applicant to include the proprietary
information and SGI referenced in the
DCD, or its equivalent, to ensure that the
applicant has actual notice of these
requirements. The NRC is revising
paragraph IV.A.3 to indicate that a COL
applicant must include, in the plantspecific DCD, the SUNSI (including
proprietary information) and SGI
referenced in both the GE DCD and the
STPNOC DCD, as applicable, or the
equivalent of this information. If the
COL applicant is referencing only the
GE DC, then the applicant must include
the proprietary information and SGI
developed by GE (as presented in the
non-public version of the GE DCD), or
the equivalent of this information. If the
COL applicant is referencing both the
GE DCD and the STPNOC DCD, then the
applicant must include: (1) The
proprietary information and SGI
developed by GE (as presented in the
non-public version of the GE DCD), or
the equivalent of this information; and
(2) the SUNSI developed by the
STPNOC (as presented in the non public
version of the STPNOC DCD), or the
equivalent of this information.
The NRC is also adding a new
paragraph IV.A.4 to indicate
requirements that must be met in cases
where the COL applicant is not using
the entity that was the original applicant
for the design certification (or
amendment) to supply the design for the
applicant’s use. Paragraph IV.A.4.a
requires that a COL applicant
referencing this appendix include, as
part of its application, a demonstration
that an entity other than GE is qualified
to supply the U.S. ABWR-certified
design unless GE supplies the design for
the applicant’s use. Paragraph IV.A.4.b
requires that a COL applicant
referencing the STPNOC-certified
design option include, as part of its
application, a demonstration that an
entity other than the STPNOC and
TANE acting together is qualified to
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supply the STPNOC-certified design
option, unless the STPNOC and TANE
acting together supply the design option
for the applicant’s use. In cases where
a COL applicant is not using GE to
supply the U.S. ABWR-certified design,
or is not using the STPNOC and TANE
acting together to supply the STPNOCcertified design option, the required
information will be used to support any
NRC finding under 10 CFR 52.73(a) that
an entity other than the one originally
sponsoring the design certification or
design certification amendment is
qualified to supply the certified design
or certified design option.
E. Applicable Regulations (Section V)
Paragraph V.A is revised so that the
paragraph V.A.1 identifies the
applicable regulations for the GEcertified design, and paragraph V.A.2
presents the applicable regulations for
the STPNOC Option. In the final rule,
the NRC is making a change to the rule
text in proposed paragraph V.A.2,
which stated that the regulations that
apply to the U.S. ABWR design as
contained in the STPNOC DCD are in 10
CFR parts 50 and 52 that are applicable
and technically relevant, as described in
the FSER on the STPNOC amendment.
The purpose of the change in the final
rule is to more accurately reflect the
issue resolution afforded to the STPNOC
DCD, as reflected in the objectives of the
NRC’s review of the STPNOC’s
proposed amendment to the U.S.
ABWR: (1) To confirm that the applicant
had complied with the AIA rule (10 CFR
50.150); (2) to determine that there
would be no adverse impacts from
complying with the AIA rule on
conclusions reached by the NRC in its
review of the original U.S. ABWR
design certification; and (3) to
determine if the applicant was
technically qualified to perform the
design work to amend a portion of the
U.S. ABWR design and to supply the
amended portion of the design. To more
accurately reflect these objectives, the
NRC modified paragraph V.A.2 to state
that the regulations that apply to the
U.S. ABWR design as contained in the
STPNOC DCD are those described in
paragraph V.A.1 (as applicable to the
original GE DCD) and 10 CFR 50.150, as
described in the FSER on the STPNOC
amendment addressing the AIA rule
(NUREG–1948).
F. Issue Resolution (Section VI)
The NRC is revising paragraph VI.A in
the final rule by redesignating current
paragraph VI.A as new paragraph VI.A.1
and by adding new paragraphs VI.A.2
and VI.A.3. Paragraph VI.A.1 describes
the scope of issue resolution accorded
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the original GE DCD. Paragraph VI.A.2
describes the scope of issue resolution
accorded the STPNOC option.
Paragraph VI.A.3 describes the scope of
issue resolution accorded the
combination of the GE DCD and the
STPNOC option.
The NRC is revising paragraphs VI.B.1
and VI.B.2 to redesignate references to
the ‘‘FSER’’ as references to the ‘‘U.S.
ABWR FSER’’ and references to the
‘‘generic DCD’’ as references to the ‘‘GE
DCD.’’ This was done to distinguish the
FSER and DCD for the original certified
design from the FSER and DCD issued
to support the STPNOC amendment to
the U.S. ABWR design. In addition, this
revision adds text to paragraph VI.B.1 to
identify the information resolved by the
Commission in this rulemaking to
certify the STPNOC AIA amendment to
the U.S. ABWR design.
The NRC is revising paragraph VI.B.7
to identify as resolved all environmental
issues concerning SAMDAs associated
with the information in the NRC’s final
EA and Revision 0 of ABWR–LIC–09–
621, ‘‘Applicant’s Supplemental
Environmental Report-Amendment to
ABWR Standard Design Certification,’’
for the AIA amendment to the U.S.
ABWR design for plants referencing this
appendix whose site parameters are
within those specified in the technical
support document. The existing site
parameters specified in the technical
support document are not affected by
this design certification amendment.
G. Processes for Changes and
Departures (Section VIII)
The NRC is revising Section VIII to
address the change control process
specific to departures from the
information required by 10 CFR
52.47(a)(28) to address the NRC’s AIA
requirements in 10 CFR 50.150.
Specifically, the NRC is revising
paragraph VIII.B.5.b to indicate that the
criteria in this paragraph for
determining if a proposed departure
from Tier 2 requires a license
amendment do not apply to a proposed
departure affecting information required
by 10 CFR 52.47(a)(28) to address
aircraft impacts.
In addition, the NRC is redesignating
paragraphs VIII.B.5.d, B.5.e, and B.5.f as
paragraphs VIII.B.5.e, B.5.f, and B.5.g,
respectively, and adding a new
paragraph VIII.B.5.d. New paragraph
VIII.B.5.d requires an applicant
referencing the U.S. ABWR DCR, that
proposed to depart from the information
required by 10 CFR 52.47(a)(28) to be
included in the FSAR for the standard
design certification, to consider the
effect of the changed feature or
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capability on the original 10 CFR
50.150(a) assessment.
H. Records and Reporting (Section X)
The NRC is revising paragraph X.A.1
to refer to ‘‘applicants’’ for this
appendix and to replace the term
‘‘proprietary information’’ with the
broader term ‘‘sensitive unclassified
non-safeguards information.’’ Paragraph
X.A.1 is revised to require the design
certification amendment applicant to
maintain the SUNSI which it developed
and used to support its design
certification amendment application.
This ensures that the referencing
applicant has direct access to this
information from the design
certification amendment applicant, if it
has contracted with the applicant to
provide the SUNSI to support its license
application. The STPNOC generic DCD
and the NRC-approved version of the
SUNSI are required to be maintained for
the period that this appendix may be
referenced.
The NRC is also adding a new
paragraph X.A.4.a that requires the
STPNOC to maintain a copy of the AIA
performed to comply with the
requirements of 10 CFR 50.150(a) for the
term of the certification (including any
period of renewal). This new provision,
which is consistent with 10 CFR
50.150(c)(3), will facilitate any NRC
inspections of the assessment that the
NRC decides to conduct.
Similarly, the NRC is adding new
paragraph X.A.4.b that requires an
applicant or licensee who references
this appendix, to include both the GE
DCD and the STPNOC DCD, to maintain
a copy of the AIA performed to comply
with the requirements of 10 CFR
50.150(a) throughout the pendency of
the application and for the term of the
license (including any period of
renewal). This provision is consistent
with 10 CFR 50.150(c)(4). For all
applicants and licensees, the supporting
documentation retained onsite should
describe the methodology used in
performing the assessment, including
the identification of potential design
features and functional capabilities to
show that the acceptance criteria in
10 CFR 50.150(a)(1) would be met.
V. Agreement State Compatibility
Under the ‘‘Policy Statement on
Adequacy and Compatibility of
Agreement States Programs,’’ approved
by the Commission on June 20, 1997,
and published in the Federal Register
(62 FR 46517; September 3, 1997), this
rule is classified as compatibility
‘‘NRC.’’ Compatibility is not required for
Category ‘‘NRC’’ regulations. The NRC
program elements in this category are
those that relate directly to areas of
regulation reserved to the NRC by the
AEA or the provisions of this chapter.
Although an Agreement State may not
adopt program elements reserved to the
NRC, it may wish to inform its licensees
of certain requirements by a mechanism
that is consistent with the particular
State’s administrative procedure laws.
Category ‘‘NRC’’ regulations do not
confer regulatory authority on the State.
VI. Availability of Documents
The NRC is making the documents
identified below available to interested
persons through one or more of the
following methods, as indicated. To
access documents related to this action,
see the ADDRESSES section of this
document.
PDR
Web
Comment Letter (1) of Thomas Shadis on Proposed Rule PR–52 Regarding U.S. Advanced Boiling Water Reactor Aircraft Impact Design Certification Amendment.
Comment Letter (2) of Jerald G. Head on Behalf of GE-Hitachi Opposing Proposed Rule PR 52 regarding U.S.
Advanced Boiling Water Reactor Aircraft Impact Design Certification Amendment.
Comment Letter (3) of Mark McBurnett on Behalf of Nuclear Innovation North America LLC on Proposed Rule
PR 52 regarding U.S. Advanced Boiling Water Reactor Aircraft Impact Design Certification Amendment.
SECY–10–0142, ‘‘Proposed Rule—U.S. Advanced Boiling Water Reactor Aircraft Impact Design Certification
Amendment’’.
STPNOC Application to Amend the Design Certification Rule for the U.S. ABWR ................................................
South Texas Project, Units 3 and 4, Combined License Application ......................................................................
March 3, 2010, letter from Toshiba to NRC stating that Toshiba intends to seek renewal of the U.S. ABWR design certification.
General Electric ABWR Design Control Document .................................................................................................
ABWR STP AIA Amendment Design Control Document, Revision 3 (public version) ............................................
Applicant’s Supplemental Environmental Report—Amendment to the ABWR Standard Design Certification ........
Final Safety Evaluation Report for the STPNOC Amendment to the ABWR Design Certification ..........................
NUREG–1948, ‘‘Final Safety Evaluation Report Related to the Aircraft Impact Amendment to the U.S. Advanced Boiling Water Reactor (ABWR) Design Certification’’.
NRC’s Final Environmental Assessment Relating to the Certification of the U.S. ABWR (Attachment 2 of SECY
96–077).
Revision 1 of the Technical Support Document for the U.S. ABWR, December 1994 ...........................................
Environmental Assessment by the U.S. NRC Relating to the Certification of the STPNOC Amendment to the
U.S. ABWR Standard Plant Design.
NUREG–1503, ‘‘Final Safety Evaluation Report Related to the Certification of the Advanced Boiling Water Reactor Design’’.
NUREG–1503, Supplement 1, ‘‘Final Safety Evaluation Report Related to the Certification of the Advanced
Boiling Water Reactor Design’’.
Regulatory History of Design Certification 11 ............................................................................................................
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ML110760174
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ML110950657
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ML11103A032
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ML102100129
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ML092040048
ML072850066
ML100710026
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ML102870017
ML093170455
ML102710198
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ML003761550
VII. Voluntary Consensus Standards
Law 104–113, requires that Federal
agencies use technical standards that are
developed or adopted by voluntary
The National Technology and
Transfer Act of 1995 (the Act), Public
11 The
regulatory history of the NRC’s design
certification reviews is a package of documents that
is available in the NRC’s PDR and ADAMS. This
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history spans the period during which the NRC
simultaneously developed the regulatory standards
for reviewing these designs and the form and
content of the rules that certified the designs.
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consensus standards bodies unless
using such a standard is inconsistent
with applicable law or is otherwise
impractical. In this final rule, the NRC
is approving the AIA amendment to the
U.S. ABWR standard plant design for
use in nuclear power plant licensing
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under 10 CFR parts 50 or 52. Design
certifications (and amendments thereto)
are not generic rulemakings establishing
a generally applicable standard with
which all 10 CFR parts 50 and 52
nuclear power plant licensees must
comply. Design certifications (and
amendments thereto) are Commission
approvals of specific nuclear power
plant designs by rulemaking.
Furthermore, design certifications (and
amendments thereto) are initiated by an
applicant for rulemaking, rather than by
the NRC. For these reasons, the NRC
concludes that the Act does not apply
to this rule.
VIII. Finding of No Significant
Environmental Impact: Availability
The Commission has determined
under NEPA, and the Commission’s
regulations in Subpart A, ‘‘National
Environmental Policy Act; Regulations
Implementing Section 102(2),’’ of 10
CFR part 51, ‘‘Environmental Protection
Regulations for Domestic Licensing and
Related Regulatory Functions,’’ that this
DCR amendment is not a major Federal
action significantly affecting the quality
of the human environment and,
therefore, an environmental impact
statement (EIS) is not required. The
basis for this determination, as
documented in the final EA, is that the
Commission has made a generic
determination under 10 CFR 51.32(b)(2)
that there is no significant
environmental impact associated with
the issuance of an amendment to a
design certification.
This amendment to 10 CFR part 52
does not authorize the siting,
construction, or operation of a facility
using the AIA amendment to the U.S.
ABWR design; it only codifies the AIA
amendment to the U.S. ABWR design in
a rule. The NRC will evaluate the
environmental impacts and issue an EIS
as appropriate under NEPA as part of
the application for the construction and
operation of a facility referencing the
AIA amendment to the U.S. ABWR
DCR.
In addition, as part of the EA for the
AIA amendment to the U.S. ABWR
design, the NRC reviewed the
STPNOC’s evaluation of various design
alternatives to prevent and mitigate
severe accidents in Revision 0 of
ABWR–LIC–09–621, ‘‘Applicant’s
Supplemental Environmental ReportAmendment to ABWR Standard Design
Certification.’’ According to 10 CFR
51.30(d), an EA for a design certification
amendment is limited to the
consideration of whether the design
change which is the subject of the
amendment renders a SAMDA
previously rejected in the earlier EA to
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become cost beneficial, or results in the
identification of new SAMDAs, in
which case the costs and benefits of new
SAMDAs and the bases for not
incorporating new SAMDAs in the
design certification must be addressed.
Based upon review of the STPNOC’s
evaluation, the Commission concludes
that the design changes (1) do not cause
a SAMDA previously rejected in the EA
for the original U.S. ABWR design
certification to become cost-beneficial
and (2) do not result in the
identification of any new SAMDAs that
could become cost beneficial.
The Commission did not receive any
comments on the draft EA and has
prepared a final EA. All environmental
issues concerning SAMDAs associated
with the information in the final EA and
Revision 0 of ABWR–LIC–09–621,
‘‘Applicant’s Supplemental
Environmental Report-Amendment to
ABWR Standard Design Certification,’’
are considered resolved for plants
referencing the AIA amendment to the
U.S. ABWR design whose site
parameters are within those specified in
Revision 1 of the technical support
document for the U.S. ABWR, dated
December 1994. The existing site
parameters specified in the technical
support document are not affected by
this design certification amendment.
The final EA, upon which the
Commission’s finding of no significant
impact is based, and the STPNOC DCD
are available for examination and
copying at the NRC’s PDR, One White
Flint North, 11555 Rockville Pike, Room
O1–F21, Rockville, Maryland 20852.
IX. Paperwork Reduction Act
Statement
This final rule contains new or
amended information collection
requirements that are subject to the
Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.). These requirements
were approved by the Office of
Management and Budget (OMB),
Approval Numbers 3150–0151 and
3150–0210.
The burden to the public for these
information collections is estimated to
average 3 hours per response, including
the time for reviewing instructions,
searching existing data sources,
gathering and maintaining the data
needed, and completing and reviewing
the information collection. Send
comments on any aspect of these
information collections, including
suggestions for reducing the burden, to
the Information Services Branch
(T–5 F52), U.S. Nuclear Regulatory
Commission, Washington, DC 20555–
0001, or by Internet electronic mail to
INFOCOLLECTS.
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RESOURCE@NRC.GOV; and to the Desk
Officer, Office of Information and
Regulatory Affairs, NEOB–10202,
(3150–0151), Office of Management and
Budget, Washington, DC 20503. You
may also email comments to Chad S
Whiteman@omb.eop.gov or comment by
telephone at (202) 395–4718.
Public Protection Notification
The NRC may not conduct or sponsor,
and a person is not required to respond
to, a request for information or an
information collection requirement
unless the requesting document
displays a currently valid OMB control
number.
X. Regulatory Analysis
The NRC has not prepared a
regulatory analysis for this rule. The
NRC prepares regulatory analyses for
rulemakings that establish generic
regulatory requirements applicable to all
licensees. Design certifications (and
amendments thereto) are not generic
rulemakings in the sense that design
certifications (and amendments thereto)
do not establish standards or
requirements with which all licensees
must comply. Rather, design
certifications (and amendments thereto)
are Commission approvals of specific
nuclear power plant designs by
rulemaking, which then may be
voluntarily referenced by applicants for
COLs. Furthermore, design certification
rulemakings are initiated by an
applicant for a design certification (or
amendments thereto), rather than the
NRC. Preparation of a regulatory
analysis in this circumstance would not
be useful because the design to be
certified is proposed by the applicant
rather than the NRC. For these reasons,
the Commission concludes that
preparation of a regulatory analysis is
neither required nor appropriate.
XI. Regulatory Flexibility Act
Certification
Under the Regulatory Flexibility Act
(5 U.S.C. 605(b)), the Commission
certifies that this rule does not have a
significant economic impact on a
substantial number of small entities.
The final rule provides for certification
of an amendment to a nuclear power
plant design. Neither the design
certification amendment applicant, nor
prospective nuclear power plant
licensees who reference this DCR, fall
within the scope of the definition of
‘‘small entities’’ presented in the
Regulatory Flexibility Act or the size
standards established by the NRC (10
CFR 2.810). Thus, this rule does not fall
within the purview of the Regulatory
Flexibility Act.
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XII. Backfitting
The Commission has determined that
this rule does not constitute a backfit as
defined in the backfit rule (10 CFR
50.109) because this design certification
amendment does not impose new or
changed requirements on existing 10
CFR part 50 licensees, nor does it
impose new or changed requirements on
existing DCRs in Appendices A through
D of 10 CFR part 52. Therefore, a backfit
analysis was not prepared for this rule.
The rule does not constitute
backfitting as defined in the backfit rule
(10 CFR 50.109) with respect to either
operating licenses under 10 CFR part 50
because there are no operating licenses
referencing this DCR. The rule does not
constitute backfitting as defined in the
backfit rule or otherwise impose
requirements inconsistent with the
applicable finality requirements under
10 CFR part 52 (10 CFR 52.63, 52.83 and
52.98) because: (i) There are no COLs
issued by the NRC referencing this rule,
and (ii) neither the backfit rule nor the
finality provisions in 10 CFR part 52
protect COL applicants from changes in
NRC requirements which may occur
during the pendency of their application
before the NRC.
The rule is not inconsistent with the
finality requirements in 10 CFR 52.63 as
applied to COLs. The rule establishes an
option to the existing DCR which
addresses the requirements of the AIA
rule. A COL referencing the U.S. ABWR
DCR may voluntarily choose to select
the STPNOC option, or may choose to
reference the U.S. ABWR design
without selecting the STPNOC option.
The AIA rule itself mandated that the
U.S. ABWR DCR be revised (either
during the DCR’s current term or no
later than its renewal) to address the
requirements of the AIA rule. The AIA
rule may therefore be regarded as
inconsistent with applicable finality
provisions in 10 CFR part 52 and
section VI of the U.S. ABWR DCR.
However, the NRC provided an
administrative exemption from these
finality requirements when the final
AIA rule was issued. (See 74 FR 28112;
June 12, 2009, at 28143–45).
Accordingly, the NRC has already
addressed the backfitting implications
of applying the AIA rule to the U.S.
ABWR.
Because the rule does not constitute
backfitting and is not otherwise
inconsistent with finality provisions in
10 CFR part 52, the NRC has not
prepared a backfit analysis or
documented evaluation for this rule.
XIII. Congressional Review Act
In accordance with the Congressional
Review Act of 1996, the NRC has
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determined that this action is not a
major rule and has verified this
determination with the Office of
Information and Regulatory Affairs of
OMB.
List of Subjects in 10 CFR Part 52
Administrative practice and
procedure, Antitrust, Backfitting,
Combined license, Early site permit,
Emergency planning, Fees,
Incorporation by reference, Inspection,
Limited work authorization, Nuclear
power plants and reactors, Probabilistic
risk assessment, Prototype, Reactor
siting criteria, Redress of site, Reporting
and recordkeeping requirements,
Standard design, Standard design
certification.
For the reasons set out in the
preamble and under the authority of the
AEA of 1954, as amended; the Energy
Reorganization Act of 1974, as
amended; and 5 U.S.C. 552 and 553; the
NRC is adopting the following
amendments to 10 CFR part 52.
PART 52—LICENSES,
CERTIFICATIONS, AND APPROVALS
FOR NUCLEAR POWER PLANTS
1. The authority citation for 10 CFR
part 52 continues to read as follows:
■
Authority: Secs. 103, 104, 161, 182, 183,
186, 189, 68 Stat. 936, 948, 953, 954, 955,
956, as amended, sec. 234, 83 Stat. 444, as
amended (42 U.S.C. 2133, 2201, 2232, 2233,
2236, 2239, 2282); secs. 201, 202, 206, 88
Stat. 1242, 1244, 1246, as amended (42 U.S.C.
5841, 5842, 5846); sec. 1704, 112 Stat. 2750
(44 U.S.C. 3504 note); Energy Policy Act of
2005, Pub. L. 109–58, 119 Stat. 594 (2005),
secs. 147 and 149 of the Atomic Energy Act.
2. Appendix A to 10 CFR part 52 is
amended as follows:
■ a. Section I is revised.
■ b. In section II, paragraph A is revised.
■ c. In section III, paragraphs A, B, C,
and D are revised.
■ d. In section IV, paragraph A.3 is
revised, and new paragraph A.4 is
added.
■ e. In section V, paragraph A is revised.
■ f. In section VI, paragraphs A, B, and
E are revised.
■ g. In section VIII, paragraph B.5.b is
revised, paragraphs B.5.d, B.5.e, and
B.5.f are redesignated as paragraphs
B.5.e, B.5.f, and B.5.g, respectively, and
new paragraph B.5.d is added.
■ h. In section X, paragraph A.1 is
revised and new paragraph A.4 is
added.
The revisions and additions read as
follows:
■
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78119
Appendix A to Part 52—Design
Certification Rule for the U.S.
Advanced Boiling Water Reactor
I. Introduction
A. Appendix A constitutes the standard
design certification for the U.S. Advanced
Boiling Water Reactor (U.S. ABWR) design,
in accordance with 10 CFR part 52, subpart
B. The applicant for the original certification
of the U.S. ABWR design was GE Nuclear
Energy (GE).
B. The applicant for the amendment to the
U.S. ABWR design to address the
requirements in 10 CFR 50.150, ‘‘Aircraft
impact assessment,’’ (AIA rule) is the STP
Nuclear Operating Company (STPNOC).
II. Definitions
A. Generic design control document
(generic DCD) means either or both of the
documents containing the Tier 1 and Tier 2
information and generic technical
specifications that are incorporated by
reference into this appendix.
*
*
*
*
*
III. Scope and Contents
A. Design Control Documents
1. Incorporation by reference approval.
Certain documents identified in paragraphs
III.A.2 and III.A.3 of this section are
approved for incorporation by reference into
this appendix by the Director of the Office of
the Federal Register in accordance with 5
U.S.C. 552(a) and 1 CFR part 51. Documents
approved for incorporation by reference and
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, then contact the NRC’s Public
Document Room (PDR) reference staff at
(800) 397–4209, (301) 415–3747, or by email
at PDR.Resource@nrc.gov. A copy of these
DCDs approved for incorporation by
reference are available for examination and
copying at the NRC’s PDR located at Room
O–1F21, One White Flint North, 11555
Rockville Pike, Rockville, Maryland 20852.
Copies are also available for examination at
the NRC Library located at Two White Flint
North, 11545 Rockville Pike, Rockville,
Maryland 20852, telephone: (301) 415–5610,
email: Library.Resource@nrc.gov. All
approved material is available for inspection
at the National Archives and Records
Administration (NARA). For information on
the availability of this material at NARA, call
(202) 741–6030 or go to https://
www.archives.gov/federal-register/cfr/ibrlocations.html.
2. GE DCD: All Tier 1, Tier 2, and the
generic technical specifications in the GE
Nuclear Energy (GE) ‘‘ABWR Design Control
Document, Revision 4, March 1997’’ (GE
DCD). You may obtain copies of the GE DCD
from the National Technical Information
Service, 5285 Port Royal Road, Springfield,
Virginia 22161, (703) 605–6515. To view the
GE DCD in ADAMS, search under ADAMS
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Accession No. ML11126A129. The GE DCD
can also be viewed at the Federal Rulemaking
Web site, https://www.regulations.gov, by
searching for documents filed under Docket
ID NRC–2010–0134.
3. STPNOC DCD: All Tier 1 and Tier 2
information in the STP Nuclear Operating
Company ‘‘Design Control Document ABWR
STP Aircraft Impact Assessment Amendment
Revision 3, Copyright @ 2010’’ (STPNOC
DCD). You may obtain copies of the STPNOC
DCD from the Regulatory Affairs Manager for
STP Units 3 and 4, STP Nuclear Operating
Company, P.O. Box 289, Wadsworth, Texas
77483, telephone: (361) 972–8440. To view
the STPNOC DCD in ADAMS, search under
ADAMS Accession No. ML102870017. The
STPNOC DCD can also be viewed at the
Federal Rulemaking Web site, https://
www.regulations.gov, by searching for
documents filed under Docket ID NRC–2010–
0134.
B. 1. An applicant or licensee referencing
this appendix, in accordance with section IV
of this appendix, shall incorporate by
reference and comply with the requirements
of this appendix, including Tier 1, Tier 2,
and the generic technical specifications
except as otherwise provided in this
appendix. An applicant or licensee
referencing this appendix may reference
either the GE DCD, or both the GE DCD and
the STPNOC DCD. An applicant referencing
this appendix shall indicate in its application
and in all necessary supporting
documentation whether it is implementing
the GE DCD, or both the GE DCD and the
STPNOC DCD.
2. Conceptual design information, as set
forth in the generic DCD, and the ‘‘Technical
Support Document for the ABWR’’ are not
part of this appendix. Tier 2 references to the
probabilistic risk assessment (PRA) in the
ABWR standard safety analysis report do not
incorporate the PRA into Tier 2.
C. If there is a conflict between Tier 1 and
Tier 2 of a DCD, then Tier 1 controls.
D. If there is a conflict between the generic
DCD and the application for design
certification of the U.S. ABWR design,
NUREG–1503, ‘‘Final Safety Evaluation
Report related to the Certification of the
Advanced Boiling Water Reactor Design’’
(ABWR FSER), and Supplement No. 1, or
NUREG–1948 ‘‘Safety Evaluation Report—
The STP Nuclear Operating Company
Amendment to the Advanced Boiling Water
Reactor (ABWR) Design Certification’’ (AIA
FSER), then the generic DCD controls.
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*
*
*
*
*
IV. Additional Requirements and
Restrictions
A. * * *
3. Include, in the plant-specific DCD, the
sensitive unclassified non-safeguards
information (including proprietary
information) and safeguards information
referenced in the GE DCD and the STPNOC
DCD, as applicable.
4.a. Include, as part of its application, a
demonstration that an entity other than GE
Nuclear Energy is qualified to supply the
U.S. ABWR-certified design unless GE
Nuclear Energy supplies the design for the
applicant’s use.
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b. For an applicant referencing the
STPNOC-certified design option, include, as
part of its application, a demonstration that
an entity other than the STPNOC and
Toshiba America Nuclear Energy (TANE)
acting together is qualified to supply the
STPNOC-certified design option, unless the
STPNOC and TANE acting together supply
the design option for the applicant’s use.
*
*
*
*
*
V. Applicable Regulations
A.1. Except as indicated in paragraph B of
this section, the regulations that apply to the
U.S. ABWR design as contained in the GE
DCD are in 10 CFR parts 20, 50, 73, and 100,
codified as of May 2, 1997, that are
applicable and technically relevant, as
described in the FSER (NUREG–1503) and
Supplement No. 1.
2. Except as indicated in paragraph B of
this section, the regulations that apply to the
U.S. ABWR design as contained in the
STPNOC DCD are those described in
paragraph A.1 of this section and 10 CFR
50.150, codified as of December 7, 2011, as
described in the FSER on the STPNOC
amendment addressing the AIA rule
(NUREG–1948).
*
*
*
*
*
VI. Issue Resolution
A. 1. GE DCD. 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. 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. This conclusion does not
include a finding with respect to compliance
with the requirements of 10 CFR 50.150.
2. STPNOC DCD. The Commission has
determined that the structures, systems,
components, and design features of the
STPNOC amendment to 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, including 10 CFR
50.150; and, therefore, provide enhanced
protection to the health and safety of the
public afforded by compliance with 10 CFR
50.150. 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
to meet the requirements of 10 CFR 50.150
are not necessary for the STPNOC
amendment to the U.S. ABWR design.
3. GE and STPNOC DCD referenced
together. The Commission has determined
that the structures, systems, components, and
design features of the U.S. ABWR, as
contained in both the GE DCD and the
STPNOC DCD, when referenced together,
PO 00000
Frm 00028
Fmt 4700
Sfmt 4700
comply with the provisions of the Atomic
Energy Act of 1954, as amended, and the
applicable regulations identified in section
V.A. of this appendix; and, therefore, provide
adequate protection to the health and safety
of the public. 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, when the GE DCD and the
STPNOC DCD are referenced together.
B. The Commission considers the
following matters resolved within the
meaning of 10 CFR 52.63(a)(5) in subsequent
proceedings for issuance of a combined
license, amendment of a combined license, or
renewal of a combined license, proceedings
held under 10 CFR 52.103, and enforcement
proceedings involving plants referencing this
appendix:
1. All nuclear safety issues, except for the
generic technical specifications and other
operational requirements, associated with the
information in the ABWR FSER and
Supplement No. 1, Tier 1, Tier 2 (including
referenced information which the context
indicates is intended as requirements), and
the rulemaking record for the original
certification of the U.S. ABWR design and all
nuclear safety issues, except for operational
requirements, associated with the
information in the AIA FSER, Tier 1, Tier 2
(including referenced information which the
context indicates is intended as
requirements), and the rulemaking record for
certification of the AIA amendment to the
U.S. ABWR design;
2. All nuclear safety and safeguards issues
associated with the referenced sensitive
unclassified non-safeguards information
(including proprietary information) and
safeguards information which, in context, are
intended as requirements in the GE DCD and
the STPNOC DCD;
3. All generic changes to the DCD under
and in compliance with the change processes
in sections VIII.A.1 and VIII.B.1 of this
appendix;
4. All exemptions from the DCD under and
in compliance with the change processes in
sections VIII.A.4 and VIII.B.4 of this
appendix, but only for that plant;
5. All departures from the DCD that are
approved by license amendment, but only for
that plant;
6. Except as provided in paragraph
VIII.B.5.g of this appendix, all departures
from Tier 2 pursuant to and in compliance
with the change processes in paragraph
VIII.B.5 of this appendix that do not require
prior NRC approval, but only for that plant;
7. All environmental issues concerning
severe accident mitigation design alternatives
associated with the information in the NRC’s
final environmental assessment for the U.S.
ABWR design and Revision 1 of the technical
support document for the U.S. ABWR, dated
December 1994, and for the NRC’s final
environmental assessment and Revision 0 of
ABWR–LIC–09–621, ‘‘Applicant’s
Supplemental Environmental ReportAmendment to ABWR Standard Design
Certification,’’ for the AIA amendment to the
U.S. ABWR design for plants referencing this
E:\FR\FM\16DER1.SGM
16DER1
Federal Register / Vol. 76, No. 242 / Friday, December 16, 2011 / Rules and Regulations
appendix whose site parameters are within
those specified in the technical support
document.
*
*
*
*
*
E. The NRC will specify at an appropriate
time the procedures to be used by an
interested person who wishes to review
portions of the design certification or
references containing safeguards information
or sensitive unclassified non-safeguards
information (including proprietary
information, such as trade secrets and
commercial or financial information obtained
from a person that are privileged or
confidential (10 CFR 2.390 and 10 CFR part
9)), for the purpose of participating in the
hearing required by 10 CFR 52.85, the
hearing provided under 10 CFR 52.103, or in
any other proceeding relating to this
appendix in which interested persons have a
right to request an adjudicatory hearing.
VIII. Processes for Changes and Departures
*
*
*
*
*
*
*
*
d. If an applicant or licensee proposes to
depart from 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 document how the modified design
features and functional capabilities continue
to meet the assessment requirements in 10
CFR 50.150(a)(1) in accordance with section
X of this appendix.
*
*
*
*
*
X. Records and Reporting
A. * * *
1. The applicants for this appendix shall
maintain a copy of the applicable generic
DCD that includes all generic changes to Tier
1, Tier 2, and the generic technical
specifications and other operational
requirements. The applicants shall maintain
the sensitive unclassified non-safeguards
information (including proprietary
information) and safeguards information
referenced in the applicable generic DCD for
the period that this appendix may be
referenced, as specified in Section VII of this
appendix.
jlentini on DSK4TPTVN1PROD with RULES
*
*
*
*
*
4.a. The applicant for the amendment to
the U.S. ABWR design to address the
requirements in 10 CFR 50.150, ‘‘Aircraft
impact assessment,’’ shall maintain a copy of
the aircraft impact assessment performed to
comply with the requirements of 10 CFR
50.150(a) for the term of the certification
(including any period of renewal).
b. An applicant or licensee who references
this appendix to include both the GE DCD
VerDate Mar<15>2010
*
*
*
*
*
Dated at Rockville, Maryland, this 7th day
of December 2011.
For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. 2011–31906 Filed 12–15–11; 8:45 am]
BILLING CODE 7590–01–P
BUREAU OF CONSUMER FINANCIAL
PROTECTION
12 CFR Part 1006
*
B. * * *
5. * * *
b. A proposed departure from Tier 2, other
than one affecting resolution of a severe
accident issue identified in the plant-specific
DCD or one affecting information required by
10 CFR 52.47(a)(28) to address 10 CFR
50.150, requires a license amendment if it
would:
*
and the STPNOC DCD shall maintain a copy
of the aircraft impact assessment performed
to comply with the requirements of 10 CFR
50.150(a) throughout the pendency of the
application and for the term of the license
(including any period of renewal).
16:23 Dec 15, 2011
Jkt 226001
[Docket No. CFPB–2011–0022]
RIN 3170–AA06
Fair Debt Collection Practices Act
(Regulation F)
Bureau of Consumer Financial
Protection.
ACTION: Interim final rule with request
for public comment.
AGENCY:
Title X of the Dodd-Frank
Wall Street Reform and Consumer
Protection Act (Dodd-Frank Act)
transferred rulemaking authority for a
number of consumer financial
protection laws from seven Federal
agencies to the Bureau of Consumer
Financial Protection (Bureau) as of July
21, 2011. The Bureau is in the process
of republishing the regulations
implementing those laws with technical
and conforming changes to reflect the
transfer of authority and certain other
changes made by the Dodd-Frank Act.
In light of the transfer of the Federal
Trade Commission’s (Commission’s)
rulemaking authority for the Fair Debt
Collection Practices Act (FDCPA) to the
Bureau, the Bureau is publishing for
public comment an interim final rule
establishing a new Regulation F (Fair
Debt Collection Practices Act). This
interim final rule does not impose any
new substantive obligations on persons
subject to the existing regulations,
previously published by the
Commission.
SUMMARY:
This interim final rule is
effective December 30, 2011. Comments
must be received on or before February
14, 2012.
ADDRESSES: You may submit comments,
identified by Docket No. CFPB–2011–
0022 or RIN 3170–AA06, by any of the
following methods:
DATES:
PO 00000
Frm 00029
Fmt 4700
Sfmt 4700
78121
• Electronic: https://
www.regulations.gov. Follow the
instructions for submitting comments.
• Mail: Monica Jackson, Office of the
Executive Secretary, Consumer
Financial Protection Bureau, 1500
Pennsylvania Avenue NW. (Attn: 1801 L
Street), Washington, DC 20220.
• Hand Delivery/Courier in Lieu of
Mail: Monica Jackson, Office of the
Executive Secretary, Bureau of
Consumer Financial Protection, 1700 G
Street NW., Washington, DC 20006.
All submissions must include the
agency name and docket number or
Regulatory Information Number (RIN)
for this rulemaking. In general, all
comments received will be posted
without change to https://
www.regulations.gov. In addition,
comments will be available for public
inspection and copying at 1700 G Street
NW., Washington, DC 20006, on official
business days between the hours of
10 a.m. and 5 p.m. Eastern Time. You
can make an appointment to inspect the
documents by telephoning (202) 435–
7275.
All comments, including attachments
and other supporting materials, will
become part of the public record and
subject to public disclosure. Sensitive
personal information, such as account
numbers or Social Security numbers,
should not be included. Comments will
not be edited to remove any identifying
or contact information.
FOR FURTHER INFORMATION CONTACT:
Krista Ayoub or Jane Gao, Office of
Regulations, at (202) 435–7700.
SUPPLEMENTARY INFORMATION:
I. Background
The Fair Debt Collection Practices Act
(FDCPA) was enacted to eliminate
abusive debt collection practices by debt
collectors, to insure that those debt
collectors who refrain from using
abusive debt collection practices are not
competitively disadvantaged, and to
promote consistent state action to
protect consumers against debt
collection abuses.1 Prior to July 21,
2011, the FDCPA provided that the
Federal Trade Commission
(Commission) must by regulation
exempt from the FDCPA requirements
any class of debt collection practices
within any state if the Commission
determines that under the law of that
state that class of debt collection
practices is subject to requirements
substantially similar to those imposed
by the FDCPA, and that there is
adequate provision for enforcement.2
1 15
2 15
E:\FR\FM\16DER1.SGM
U.S.C. 1692 et seq.
U.S.C. 16992o.
16DER1
Agencies
[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]
=======================================================================
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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.
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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).
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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).
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\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.
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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\
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\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).
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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.
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\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).
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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.
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\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.
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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