[Federal Register Volume 76, Number 242 (Friday, December 16, 2011)]
[Rules and Regulations]
[Pages 78096-78121]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-31906]
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NUCLEAR REGULATORY COMMISSION
10 CFR Part 52
RIN 3150-AI84
[NRC-2010-0134]
U.S. Advanced Boiling Water Reactor Aircraft Impact Design
Certification Amendment
AGENCY: Nuclear Regulatory Commission.
ACTION: Final rule.
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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC or the Commission)
is amending its regulations to certify an amendment to the U.S.
Advanced Boiling Water Reactor (U.S. ABWR) standard plant design to
comply with the NRC's aircraft impact assessment (AIA) regulations.
This action allows applicants or licensees intending to construct and
operate a U.S. ABWR to comply with the NRC's AIA regulations by
referencing the amended design certification rule (DCR). The applicant
for certification of the amendment to the U.S. ABWR design is STP
Nuclear Operating Company (STPNOC).
DATES: Effective Date: The effective date of this rule is January 17,
2012. The incorporation by reference of certain material specified in
this regulation is approved by the Director of the Office of the
Federal Register as of January 17, 2012.
ADDRESSES: You can access publicly available documents related to this
document using the following methods:
NRC's Public Document Room (PDR): The public may examine
and have copied, for a fee, publicly available documents at the NRC's
PDR, O1-F21, One White Flint North, 11555 Rockville Pike, Rockville,
Maryland 20852.
NRC's Agencywide Documents Access and Management System
(ADAMS): Publicly available documents created or received at the NRC
are available online in the NRC Library at http://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
[email protected].
Federal Rulemaking Web Site: Public comments and
supporting materials related to this final rule can be found at http://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 [email protected].
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: [email protected]; or Stacy
Joseph, Office of New Reactors, U.S. Nuclear Regulatory Commission,
Washington, DC 20555-0001, telephone: (301) 415-2849, email:
[email protected].
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.
---------------------------------------------------------------------------
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
closely-related certified designs in a single codified rule.
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
[[Page 78105]]
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-of-scope and should not be considered in the
``branch'' rulemaking.\7\
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\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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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 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\ 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.
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\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 on the ``common'' portions of the certified design
to either the new supplier or a user.
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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.
[[Page 78106]]
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 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 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.
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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.
[[Page 78107]]
Table 1--Differences in Regulatory Treatment of Alternatives for Addressing Multiple Design Certification Suppliers
--------------------------------------------------------------------------------------------------------------------------------------------------------
Alternative 2: One rule with multiple
Regulatory feature Alternative 1: Separate rules branches Alternative 3: One rule with options
--------------------------------------------------------------------------------------------------------------------------------------------------------
Summary Description of Each supplier's certified design would Each supplier's certified design would The original applicant's certified
Alternative. be contained in a separate design be contained in a single design design would be contained in a
certification rule (separate certification rule (a single appendix single design certification rule (a
appendices to 10 CFR part 52). Thus, to 10 CFR part 52). single appendix to 10 CFR part 52).
there would be multiple rules for the Each supplier's design is a complete An ``option'' represents an
same general design. design and presented as an alternative to the specified
Single DCD (see below). alternative or ``branch'' within the portion(s) of the original
rule. 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).
DCD.............................. One complete DCD for each rule. Rule Two separate DCDs (one for each Choice 1 (NRC preferred)
language would incorporate by supplier), each DCD describing design Two separate DCDs: (i) Original
reference a single DCD. for that supplier. Rule language applicant's DCD (no change to
would incorporate by reference two document) and (ii) a limited-scope
DCDs. 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.
Identification of Applicant in Each supplier identified as original The original applicant and the Original applicant and applicant for
Rule. applicant in its rule. applicant for each branch (each each ``option'' (each entity
entity constituting a supplier) are constituting a supplier) are
identified. identified.
...................................... Note: Original applicant would always
be the first branch.
Technical Content of Application Design information for amended portion Design information for amended portion Original supplier
for Amendment. of design. of design branch. 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
[[Page 78108]]
Technical Content of Application Design information for entire design, Design information for entire design Original supplier
for Renewal. necessary to comply with renewal branch, necessary to comply with Design information for entire design
updating in accordance with Sec. renewal updating in accordance with necessary to comply with renewal
52.57. Sec. 52.57. updating in accordance with Sec.
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.)
Submission of SUNSI (including Amendment Amendment Amendment
proprietary information), and Original supplier Original supplier Original supplier
SGI (if applicable). Submit publicly-available DCD without Submit publicly-available DCD without Submit publicly-available DCD without
new SUNSI (including proprietary new SUNSI (including proprietary new SUNSI (including proprietary
information) and SGI, and submit information) and SGI, and submit information) and SGI, and submit
separate DCD with any new SUNSI separate DCD with any new SUNSI separate DCD with any new SUNSI
(including proprietary information) (including proprietary information) (including proprietary information)
and SGI. and SGI. and SGI.
Additional supplier Supplier of branch Supplier of option
Submit publicly-available DCD without Submit publicly-available DCD without Submit publicly-available DCD without
SUNSI (including proprietary SUNSI (including proprietary SUNSI (including proprietary
information) and SGI, and submit information) and SGI, and separate information) and SGI, and submit
separate DCD with SUNSI (including DCD with SUNSI (including proprietary separate DCD with SUNSI (including
proprietary information) and SGI that information) and SGI that is proprietary information) and SGI
is equivalent to all SUNSI (including equivalent to all SUNSI (including that is equivalent to that SUNSI
proprietary information) and SGI proprietary information) and SGI (including proprietary information)
provided by original applicant. provided by original applicant. and SGI provided by original
Renewal Renewal applicant which is within the scope
Original supplier Original supplier of the amendment, plus any new SUNSI
Submit publicly-available DCD without Submit publicly-available DCD without (including proprietary information)
new SUNSI (including proprietary new SUNSI (including proprietary and SGI necessary to support the
information) and SGI, and submit information) and SGI, and submit amendment.
separate DCD with any new SUNSI separate DCD with any new SUNSI Renewal
(including proprietary information) (including proprietary information) Original supplier
and SGI. and SGI. Submit publicly-available DCD without
Additional supplier Supplier of branch new SUNSI (including proprietary
Submit publicly-available DCD without Submit publicly-available DCD without information) and SGI, and submit
SUNSI (including proprietary SUNSI (including proprietary separate DCD with any new SUNSI
information) and SGI, and submit information) and SGI, and submit (including proprietary information)
separate DCD with SUNSI (including separate DCD with SUNSI (including and SGI.
proprietary information) and SGI that proprietary information) and SGI that
is equivalent to all SUNSI (including is equivalent to all SUNSI (including
proprietary information) and SGI proprietary information) and SGI
provided by original applicant provided by original applicant
(unless previously provided by the (unless previously provided by the
non-original applicant in an earlier non-original applicant in an earlier
amendment proceeding). amendment proceeding).
[[Page 78109]]
Nature and Scope of NRC Safety Findings that: Findings that: (i) Portion of design Original supplier
Review--Amendment. (i) Portion of design being amended being amended meets current Findings that: (i) Portion of design
meets current applicable NRC applicable NRC requirements and (ii) being amended meets current
requirements and proposed change does not affect applicable NRC requirements and (ii)
(ii) proposed change does not affect previous conclusions in other design proposed change does not affect
previous conclusions in other design areas. previous conclusions in other design
areas. 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.
Nature and Scope of NRC Safety Findings that: Findings that: (i) Design complies Original supplier
Review--Renewal. (i) Design complies with AIA Rule, 10 with AIA Rule, 10 CFR 50.150 (if not Findings that: (i) Design complies
CFR 50.150 (if not already amended); already amended); (ii) design with AIA Rule, 10 CFR 50.150 (if not
(ii) design complies with all complies with all regulations already amended); (ii) design
regulations applicable and in effect applicable and in effect at time or complies with all regulations
at time or original certification; original certification; (iii) applicable and in effect at time or
(iii) relevant findings for any relevant findings for any changes to original certification; (iii)
changes to the design requested by the design requested by the supplier, relevant findings for any changes to
the supplier, per 10 CFR 52.59(c); per 10 CFR 52.59(c); and relevant the design requested by the
and (iv) the findings required by 10 findings for changes imposed by the supplier, per 10 CFR 52.59(c); and
CFR 52.59(b) for those changes NRC per 10 CFR 52.59(b); and (iv) the (iv) the findings required by 10 CFR
imposed by the NRC under that findings required by 10 CFR 52.59(b) 52.59(b) for those changes imposed
section. for those changes imposed by the NRC by the NRC under that section.
under that section. Supplier of option
N/A (Supplier of option would not be
allowed to renew the option).
Nature and Scope of NRC Technical Supplier is technically qualified to Original supplier Original supplier
Qualifications Review--Initial provide entire design, including Supplier is technically qualified to Supplier is technically qualified to
Supplier Approval. detailed design information. provide entire design, including provide entire design, including
detailed design information. detailed design information.
Supplier of branch Supplier of option
Supplier is technically qualified to Supplier is technically qualified to
provide entire design, including provide detailed design information
detailed design information and the and the equivalent SUNSI (including
equivalent SUNSI (including proprietary information) and SGI, if
proprietary information) and SGI. any, which is within the scope of
the amendment.
Nature and Scope of NRC Technical N/A N/A N/A (if amendment is in same area as
Qualifications Review--Amendment. original option).
Nature and Scope of NRC Technical None, unless significant change in None, unless significant change in None, unless significant change in
Qualifications Review--Renewal. organization or corporate structure/ organization or corporate structure/ organization or corporate structure/
ownership or information showing a ownership or information showing a ownership, or information showing a
change in circumstances so a supplier change in circumstances so a supplier change in circumstances so a
no longer has technical no longer has technical supplier no longer has technical
qualifications. qualifications. qualifications.
(supplier of option would not be
allowed to renew the option unless
it was incorporated into a wholesale
renewal of the design
certification).
[[Page 78110]]
Scope of Comments in Proposed Comments on design for new rule (no Original supplier Original supplier
Rule FRN--New Rule or Initial comment on original DCR). N/A (comments on the original N/A (comments on the original
Approval of Branch or Option. supplier's design would be out-of- supplier's design would be out-of-
scope of a rulemaking proposing to scope of a rulemaking proposing to
add a branch). add an option).
Supplier of branch Supplier of option
Same as scope of comments on initial (i) Proposed option meets applicable
approval of a new DCR. NRC requirements (ii) proposed
option does not affect safety of
design areas in the portion of the
design supplied by the original
supplier.
Scope of Comments in Proposed Whether: Whether: (i) Changed portion of design Original supplier
Rule FRN--Amendment. (i) Changed portion of design meets branch meets current applicable NRC Whether: (i) Changed portion of
current applicable NRC requirements requirements and (ii) changes design meets current applicable NRC
and (ii) changes adversely affect adversely affect previous conclusions requirements, (ii) changes adversely
previous conclusions in other design in other design areas. affect previous conclusions in other
areas. 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.
Scope of Comments in Proposed Consistent with finding that NRC must Consistent with finding that NRC must N/A (Supplier of option would not be
Rule FRN--Renewal. make at renewal. make at renewal. allowed to renew the option).
Part 21 Applicability............ Each supplier is responsible for 10 Each supplier is responsible for 10 Original supplier
CFR part 21 compliance with respect CFR part 21 compliance with respect Responsible for 10 CFR part 21
to its design. to its design branch. compliance with respect to the
Note: NRC is responsible for advising entire design with the exception of
suppliers of branches of any defects the option(s).
in the portion of the design which Supplier of option
was sponsored by another supplier. 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.
Supplier Recordkeeping Each supplier required to maintain its Each supplier required to maintain the Original supplier
Responsibilities. DCD. DCD representing the branch it Maintain the DCD for the entire
sponsored. design.
Supplier of option
Maintain the DCD for its option.
Mode of Referencing by COL Reference the selected rule. Reference one branch of the rule. Reference the rule with
applicant. identification of option selected.
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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.
[[Page 78111]]
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 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 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 http://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
[[Page 78112]]
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 up-to-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 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 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. ABWR-certified 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. ABWR-certified
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
[[Page 78113]]
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, 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, 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
[[Page 78114]]
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 Non-
Safeguards Information and Safeguards Information for Contention
Preparation (75 FR 34777; June 18, 2010); Notice of Receipt of
Application for License; 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). 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
[[Page 78115]]
also required to document, in the plant-specific 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 (security-related
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. 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).
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
[[Page 78116]]
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
plant-specific 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 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 STPNOC-certified 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 GE-certified 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 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
[[Page 78117]]
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.
----------------------------------------------------------------------------------------------------------------
Document PDR Web ADAMS
----------------------------------------------------------------------------------------------------------------
Comment Letter (1) of Thomas Shadis on Proposed Rule PR- X X ML110760174
52 Regarding U.S. Advanced Boiling Water Reactor
Aircraft Impact Design Certification Amendment.
Comment Letter (2) of Jerald G. Head on Behalf of GE- X X ML110950657
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 X X ML11103A032
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 X X ML102100129
Water Reactor Aircraft Impact Design Certification
Amendment''.
STPNOC Application to Amend the Design Certification Rule X X ML092040048
for the U.S. ABWR.
South Texas Project, Units 3 and 4, Combined License X X ML072850066
Application.
March 3, 2010, letter from Toshiba to NRC stating that X ...... ML100710026
Toshiba intends to seek renewal of the U.S. ABWR design
certification.
General Electric ABWR Design Control Document............ X ...... ML11126A129
ABWR STP AIA Amendment Design Control Document, Revision X X ML102870017
3 (public version).
Applicant's Supplemental Environmental Report--Amendment X X ML093170455
to the ABWR Standard Design Certification.
Final Safety Evaluation Report for the STPNOC Amendment X X ML102710198
to the ABWR Design Certification.
NUREG-1948, ``Final Safety Evaluation Report Related to ...... X ML11182A163
the Aircraft Impact Amendment to the U.S. Advanced
Boiling Water Reactor (ABWR) Design Certification''.
NRC's Final Environmental Assessment Relating to the X X ML003708129
Certification of the U.S. ABWR (Attachment 2 of SECY 96-
077).
Revision 1 of the Technical Support Document for the U.S. X ...... ML100210563
ABWR, December 1994.
Environmental Assessment by the U.S. NRC Relating to the X ...... ML110970669
Certification of the STPNOC Amendment to the U.S. ABWR
Standard Plant Design.
NUREG-1503, ``Final Safety Evaluation Report Related to X X ML080670592
the Certification of the Advanced Boiling Water Reactor
Design''.
NUREG-1503, Supplement 1, ``Final Safety Evaluation X X ML080710134
Report Related to the Certification of the Advanced
Boiling Water Reactor Design''.
Regulatory History of Design Certification \11\.......... X ...... ML003761550
----------------------------------------------------------------------------------------------------------------
VII. Voluntary Consensus Standards
The National Technology and Transfer Act of 1995 (the Act), Public
Law 104-113, requires that Federal agencies use technical standards
that are developed or adopted by voluntary 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
[[Page 78118]]
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.
---------------------------------------------------------------------------
\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 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.
---------------------------------------------------------------------------
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 Report-
Amendment 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
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 [email protected]; 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 [email protected] 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.
[[Page 78119]]
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 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
0
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.
0
2. Appendix A to 10 CFR part 52 is amended as follows:
0
a. Section I is revised.
0
b. In section II, paragraph A is revised.
0
c. In section III, paragraphs A, B, C, and D are revised.
0
d. In section IV, paragraph A.3 is revised, and new paragraph A.4 is
added.
0
e. In section V, paragraph A is revised.
0
f. In section VI, paragraphs A, B, and E are revised.
0
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.
0
h. In section X, paragraph A.1 is revised and new paragraph A.4 is
added.
The revisions and additions read as follows:
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 http://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 [email protected]. 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: [email protected].
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
http://www.archives.gov/federal-register/cfr/ibr-locations.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
[[Page 78120]]
Accession No. ML11126A129. The GE DCD can also be viewed at the
Federal Rulemaking Web site, http://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, http://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.
* * * * *
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.
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, 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 Report-Amendment to ABWR Standard Design
Certification,'' for the AIA amendment to the U.S. ABWR design for
plants referencing this
[[Page 78121]]
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
* * * * *
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:
* * * * *
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.
* * * * *
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 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).
* * * * *
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]
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