Table of Contents I. Submitting Comments and Accessing Information II. Background III. Regulatory and Policy Issues IV. Technical Evaluation of the ESBWR V. 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. Duration of This Appendix (Section VII) H. Processes for Changes and Departures (Section VIII) I. Inspections, Tests, Analyses, and Acceptance Criteria (ITAAC) (Section IX) J. Records and Reporting (Section X) VI. Agreement State Compatibility VII. Availability of Documents VIII. Procedures for Access to Proprietary Information, Sensitive Unclassified Non-Safeguards Information (Including Proprietary Information) and Safeguards Information for Preparation of Comments on the Proposed ESBWR Design Certification Rule IX. Plain Language X. Voluntary Consensus Standards XI. Finding of No Significant Environmental Impact: Availability XII. Paperwork Reduction Act Statement XIII. Regulatory Analysis XIV. Regulatory Flexibility Certification XV. Backfitting I. Submitting Comments and Accessing Information

Comments submitted in writing or in electronic form will be posted on the NRC Web site and on the Federal rulemaking Web site, http://www.regulations.gov. Because your comments will not be edited to remove any identifying or contact information, the NRC cautions you against including any information in your submission that you do not want to be publicly disclosed. The NRC requests that any party soliciting or aggregating comments received from other persons for submission to the NRC inform those persons that the NRC will not edit their comments to remove any identifying or contact information, and therefore, they should not include any information in their comments that they do not want publicly disclosed.

Documents that are not publicly available because they are considered to be either Sensitive Unclassified Non-Safeguards Information (SUNSI) (including SUNSI constituting “proprietary information”  1 ) or Safeguards Information (SGI) may be available to interested persons who may wish to comment on the proposed design certification. Such persons shall follow the procedures described in the Supplementary Information section of this notice, under the heading, “VIII. Procedures for Access to SUNSI (Including Proprietary information) and Safeguards Information for Preparation of Comments on the Proposed ESBWR Design Certification Rule.”

You can access publicly available documents related to this document, including the following documents, 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, Room O-1F21, 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 electronically at the NRC's Electronic Reading Room 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 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, or 301-415-4737, or by e-mail to PDR.Resource@nrc.gov.

• Federal Rulemaking Web Site: Public comments and supporting materials related to this proposed rule can be found at http://www.regulations.gov by searching on Docket ID NRC-2010-0135.

Subpart B to 10 CFR part 52 sets forth the process for obtaining standard design certifications. On August 24, 2005 (70 FR 56745), GEH tendered its application for certification of the ESBWR standard plant design with the NRC. The GEH submitted this application in accordance with Subpart B of 10 CFR part 52. The NRC formally accepted the application as a docketed application for design certification (Docket No. 52-010) on December 1, 2005 (70 FR 73311). The pre-application information submitted before the NRC formally accepted the application can be found in ADAMS under Docket No. PROJ0717 (Project No. 717).

The application for design certification of the ESBWR design has been referenced in the following combined license (COL) application as of the date of this document:

Detroit Edison Company, Fermi Unit 3, Docket No. 52-033 (73 FR 73350; December 2, 2008).

The NRC is implementing existing Commission policy, that operational programs should be excluded from finality except where necessary to find design elements acceptable, in a manner different from other existing design certification rules. This policy is described in the December 6, 1996, staff requirements memorandum (SRM) to SECY-96-077, “Certification of Two Evolutionary Designs,” dated April 15, 1996. The NRC proposes to exclude the two Human Factors Engineering (HFE) operational program elements in Chapter 18 of the ESBWR DCD from the scope of the design approved in the rule. There are 12 elements in the HFE program. Two of the elements concern operational programs (procedures and training) that are not used to assess the adequacy of the HFE design. However, the GEH description of these two HFE operational programs addresses existing NRC guidelines in NUREG-0711, Revision 2, “Human Factors Engineering Program Review Model,” which are comprehensive, and go beyond the operational program information needed as input to the HFE design. In addition, the training and procedure elements included in the HFE program are redundant to what is reviewed as part of the operational programs described in Chapter 13 of the Standard Review Plan (NUREG-0800). Accordingly, the NRC is revising the HFE regulatory guidance in NUREG-0711 to address this overlap, but the revised guidance is not expected to be completed until late 2011. In keeping with the established Commission policy of not approving operational program elements through design certification except where necessary to find design elements acceptable, the NRC proposes to exclude the two HFE operational program elements in the ESBWR DCD from the scope of the design approved in the rule. This would be done explicitly in Section VI, Issue Resolution, of the rule, by excluding the two HFE operational program elements from the finality accorded to the design. This exclusion would be unique to the ESBWR design because all other DCDs for the previously certified designs do not include operational program descriptions of HFE training and procedures and the respective DCRs did not include specific exclusions from finality for it.

In the four currently approved design certifications (10 CFR part 52, Appendices A through D), paragraph VI.E sets forth 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 design certification rule. These provisions were developed before the events of September 11, 2001. After September 11, 2001, Congress has changed the statutory requirements governing access to SGI, and the NRC has revised its rules, procedures, and practices governing control of 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 should not be included in the design certification rule for the ESBWR. Instead, the NRC should specify the procedures to be used for obtaining access at an appropriate time in the COL proceeding referencing the ESBWR DCR. The NRC intends to include this change in any future amendment or renewal of the existing DCRs. However, the NRC is not planning to initiate rulemaking to change paragraph VI.E of the existing DCRs, in order to minimize unnecessary resource expenditures by both the original DCR applicant and the NRC.

The NRC issued a final safety evaluation report (FSER) for the ESBWR design in March 2011. The FSER provides the basis for issuance of a design certification under Subpart B to 10 CFR part 52 and a final design approval under Subpart E to 10 CFR part 52. The GEH has requested the NRC provide its design approval for the ESBWR design under Subpart E. The final design approval for the ESBWR design will be issued before publication of a final rule.

The significant technical issues that were resolved during the review of the ESBWR design are the regulatory treatment of non-safety systems (RTNSS), containment performance, control room cooling, steam dryer methodology, feedwater temperature (FWT) domain, aircraft impact assessment and the use of Code Case N-782.

The ESBWR relies on passive systems to perform safety functions credited in the design basis for 72 hours following an initiating event. After 72 hours, non-safety systems, either passive or active, replenish the passive systems in order to keep them operating or perform post-accident recovery functions directly. The ESBWR design also uses nonsafety-related active systems to provide defense-in-depth capabilities for key safety functions provided by passive systems. The challenge during the review was to identify the non-safety systems, structures and components (SSCs) that should receive enhanced regulatory treatment and to identify the appropriate regulatory treatment to be applied to these SSCs. Such SSCs are denoted as “RTNS SSCs.” As a result of the NRC's review, the applicant added Appendix 19A to the DCD to identify the nonsafety systems that perform these post-72 hour or defense-in-depth functions and the basis for their selection. The applicant's selection process was based on the guidance in SECY-94-084, “Policy and Technical Issues Associated with the Regulatory Treatment of Non-Safety Systems in Passive Plant Designs.”

To provide reasonable assurance that RTNSS SSCs will be available if called upon to function, the applicant established availability controls in DCD Tier 2, Appendix 19ACM, and Technical Specifications (TS) in DCD Tier 2, Chapter 16, when required by 10 CFR 50.36. The applicant also included all RTNSS SSCs in the reliability assurance program described in Chapter 17 of DCD Tier 2 and applied augmented design standards as described in DCD Tier 2, Section 19A.8.3. The NRC finds the applicant's implementation of the RTNSS process described in the DCD acceptable.

The passive containment cooling system (PCCS) maintains the containment within its design pressure and temperature limits for design-basis accidents. The system is passive and does not rely upon moving components or external power for initiation or operation for 72 hours following a loss-of-coolant accident (LOCA). The PCCS and its design basis are described in detail in Section 6.2.2 of the DCD Tier 2. The NRC identified a concern regarding the PCCS long-term cooling capability for the period from 72 hours to 30 days following a LOCA. To address this concern, the applicant proposed additional design features credited after 72 hours to reduce the long-term containment pressure. The features are the PCCS vent fans and passive autocatalytic recombiners as described in DCD Tier 2, Section 6.2.1. These SSCs have been indentified in DCD Appendix 19A as RTNSS SSCs.

The applicant provided calculation results to demonstrate that the long-term containment pressure would be acceptable and that the design complies with general design criterion (GDC) 38. The NRC's independent calculations confirmed the applicant's conclusion and the NRC accepts the proposed design and licensing basis. The NRC also raised a concern regarding the potential accumulation of high concentrations of hydrogen and oxygen in the PCCS and isolation condenser system (ICS), which could lead to combustion following a LOCA. The applicant modified the design of the PCCS and ICS heat exchangers to withstand potential hydrogen detonations. The NRC concludes that the design changes to the PCCS and ICS are acceptable and meet the applicable requirements.

The ESBWR primarily relies on the mass and structure of the control building to maintain acceptable temperatures for human and equipment performance for up to 72 hours on loss of normal cooling. The NRC had not previously approved this approach for maintaining acceptable temperatures in the control building. The applicant proposed acceptance criteria for the evaluation of the control building structure's thermal performance based on industry and NRC guidelines. The applicant incorporates by reference an analysis of the control building structure's thermal performance as described in Tier 2, Sections 3H, 6.4, and 9.4. The applicant also proposed ITAAC to confirm that an updated analysis of the as-built structure continues to meet the thermal performance acceptance criteria. The NRC finds that the applicant's acceptance criteria are consistent with the advanced light-water reactor control room envelope atmosphere temperature limits in NUREG-1242, “NRC Review of Electric Power Research Institute's Advanced Light Water Reactor Utility Requirements Document,” and the use of the wet bulb globe temperature index in evaluation of heat stress conditions as described in NUREG-0700, “Human-System Interface Design Review Guidelines.” The NRC finds the control building structure thermal performance analysis and ITAAC acceptable based on the analysis using bounding environmental assumptions which will be confirmed by the ITAAC. Accordingly, the NRC finds that the acceptance criteria, control building structure thermal performance analysis, and the ITAAC, provide reasonable assurance that acceptable temperatures will be maintained in the control building for 72 hours. Therefore, the NRC finds that the control building design in regard to thermal performance conforms to the guidelines of Standard Review Plan Section 6.4 and complies with the requirements of the general design criteria of 10 CFR part 50, Appendix A, GDC 19.

In operating boiling-water reactors the recirculation pumps are used in combination with the control rods to control and maneuver reactor power level during normal power operation. The ESBWR design is unique in that the core is cooled by natural circulation during normal operation, and there are no recirculation pumps. In Chapter 15 of the DCD, GEH references the licensing topical report (LTR) NEDO-33338, Revision 1, “ESBWR Feedwater Temperature Operating Domain Transient and Accident Analysis.” This LTR describes a broadening of the ESBWR operating domain, which allows for increased flexibility of operation by adjusting the FWT. This increased flexibility accommodates the so-called “soft” operating practices, which reduce the duty (mechanical stress) to the fuel and minimize the probability of pellet-clad interactions and associated fuel failures.

By adjusting the FWT, the operator can control the reactor power level without control blade motion and with minimum impact on the fuel duty. Control blade maneuvering can also be performed at lower power levels.

To control the FWT, the ESBWR design includes a seventh feedwater heater with high-pressure steam. FWT is controlled by either manipulating the main steam flow to the No. 7 feedwater heater to increase FWT above the temperature normally provided by the feedwater heaters with turbine extraction steam (normal FWT) or by directing a portion of the feedwater flow around the high-pressure feedwater heaters to decrease FWT below the normal FWT. An increase in FWT decreases reactor power, and a decrease in FWT increases reactor power. The applicant provided analyses that demonstrated ample margin to acceptance criteria. The NRC concludes that the applicant has adequately accounted for the effects of the proposed FWT operating domain extension on the nuclear design. Further, the applicant has demonstrated that the fuel design limits will not be exceeded during normal or anticipated operational transients and that the effects of postulated transients and accidents will not impair the capability to cool the core. Based on this evaluation, the NRC concludes that the nuclear design of the fuel assemblies, control systems, and reactor core will continue to meet the applicable regulatory requirements.

As a result of reactor pressure vessel (RPV) steam dryer issues at operating BWRs, the NRC issued revised guidance concerning the evaluation of steam dryers. The guidance requested analysis to show that the dryer will maintain its structural integrity during plant operation in spite of or in the face of acoustic and hydrodynamic fluctuating pressure loads. This demonstration of RPV steam dryer structural integrity consists of three steps:

(1) Predict the fluctuating pressure loads on the dryer,

(2) Use these fluctuating pressure loads in a structural analysis to qualify the steam dryer design, and

(3) Implement a startup test program for confirming the steam dryer design analysis results during the initial plant power ascension testing.

The Plant Based Load Evaluation (PBLE) methodology is an analytical tool developed by GEH to predict fluctuating pressure loads on the steam dryer. Section 3.9.5 of the DCD references the GEH LTR NEDE-33313P, “ESBWR Steam Dryer Structural Evaluation,” which references LTR NEDE-33312P, “ESBWR Steam Dryer Acoustic Load Definition,” which references the PBLE load definition method. The PBLE method is described in LTR NEDC-33408P, “ESBWR Steam Dryer-Plant Base Load Evaluation Methodology.” This LTR provides the theoretical basis for determining the fluctuating loads on the ESBWR steam dryer, describes the PBLE analytical model, determines the biases and uncertainties of the PBLE formulation, and describes the application of the PBLE method to the evaluation of the ESBWR steam dryer.

The NRC's review of the PBLE methodology concludes that it is technically sound and provides a conservative analytical approach for definition of flow-induced acoustic pressure loading on the ESBWR steam dryer. The application of the PBLE load definition process together with the design criteria from the American Society of Mechanical Engineers (ASME) Code, Section III, Article NG-3000 in combination with the proposed start up test program provide assurance of the structural integrity of the steam dryer. Implementation of the analytical, design, and testing methodology for the ESBWR steam dryer demonstrate conformance with the general design criteria of 10 CFR part 50, Appendix A, GDCs 1, 2, and 4.

Under 10 CFR 50.150, which became effective on July 13, 2009, designers of new nuclear power reactors are required to perform an assessment of the effects on the designed facility of the impact of a large, commercial aircraft. An applicant for a new design certification rule is required to submit a description of the design features and functional capabilities identified as a result of the assessment (key design features) in its DCD together with a description of how the identified design features and functional capabilities show that the acceptance criteria in 10 CFR 50.150(a)(1) are met.

To address the requirements of 10 CFR 50.150, GEH completed an assessment of the effects on the designed facility of the impact of a large, commercial aircraft. The GEH also added Appendix 19D to DCD Tier 2 to describe the design features and functional capabilities of the ESBWR identified as a result of the assessment that ensure the reactor core remains cooled and the spent fuel pool integrity is maintained.

The NRC finds that the applicant has performed an aircraft impact assessment using NRC-endorsed methodology that is reasonably formulated to identify design features and functional capabilities to show, with reduced use of operator action, that the acceptance criteria in 10 CFR 50.150(a)(1) are met. The NRC finds that the applicant adequately describes the key design features and functional capabilities credited to meet 10 CFR 50.150, including descriptions of how the key design features and functional capabilities show that the acceptance criteria in 10 CFR 50.150(a)(1) are met. Therefore, the NRC finds that the applicant meets the applicable requirements of 10 CFR 50.150(b).

Under 10 CFR 50.55a(a)(3), GEH requested NRC approval for the use of Code Case N-782 as a proposed alternative to the rules of Section III Subsection NCA-1140 regarding applied Code Editions and Addenda required by 10 CFR 50.55a(c), (d), and (e). Code Case N-782 provides that the Code Edition and Addenda endorsed in a certified design or licensed by the regulatory authority may be used for systems and components subject to ASME Code, Section III requirements. These alternative requirements are in lieu of the requirements that base the Edition and Addenda on the date of the COL or manufacturing license, or the application for a construction permit, standard design approval, or standard design certification. Reference to Code Case N-782 will be included in component and system design specifications and design reports to permit certification of these specifications and reports to the Code Edition and Addenda cited in the DCD. The NRC's bases for approving the use of Code Case N-782 as a proposed alternative to the requirements of Section III Subsection NCA-1140 under 10 CFR 50.55a(a)(3) for the ESBWR are described in Section 5.2.1.1.3 of the FSER.

The NRC is proposing to approve an exemption from 10 CFR 50.34(f)(2)(iv) as it relates to the safety parameter display system. This provision requires an applicant to provide a plant safety parameter display console that will display to operators a minimum set of parameters defining the safety status of the plant, capable of displaying a full range of important plant parameters and data trends on demand and indicating when process limits are being approached or exceeded. The ESBWR design integrates the safety parameter display system into the design of the non-safety related distribution control and information system, rather than use a stand-alone console. The NRC's bases for providing the exemption are described in Section 18.8.3.2 of the FSER.

The following discussion sets forth the purpose and key aspects of each section and paragraph of the proposed ESBWR DCR. All section and paragraph references are to the provisions in the proposed Appendix E to 10 CFR part 52 unless otherwise noted. The NRC has modeled the ESBWR DCR on the existing DCRs, with certain modifications where necessary to account for differences in the ESBWR design documentation, design features, and EA (including severe accident mitigation design alternatives (SAMDAs)). As a result, the DCRs are standardized to the extent practical.

The purpose of Section I of proposed Appendix E to 10 CFR part 52 (this appendix) is to identify the standard plant design that would be approved by this DCR and the applicant for certification of the standard design. Identification of the design certification applicant 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 vendor, then the COL applicant must meet the requirements in 10 CFR 52.73. The COL applicant must demonstrate that the alternate supplier is qualified to provide the standard plant design information. Second, paragraph X.A.1 would require the design certification applicant to maintain the generic DCD throughout the time this appendix may be referenced. Thus, it is necessary to identify the entity to which the requirement in paragraph X.A.1 applies.

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 in order to specify the relevant plant-specific requirements to applicants and licensees referencing the appendix. In order to facilitate the maintenance of the master DCDs, the NRC proposes that each application for a standard design certification be updated to include an electronic copy of the final version of the DCD. The final version would 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 would become the master DCD incorporated by reference in the DCR. The master DCD would 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 Commission would also require each applicant and licensee referencing this appendix to submit and maintain a plant-specific DCD as part of the COL Final Safety Analysis Report (FSAR). This plant-specific DCD would include or incorporate by reference the information in the generic DCD. The plant-specific DCD would be updated as necessary to reflect the generic changes to the DCD that the Commission may adopt through rulemaking, plant-specific departures from the generic DCD that the Commission imposed on the licensee by order, and any plant-specific departures that the licensee chooses to make in accordance with the relevant processes in Section VIII. Thus, the plant-specific DCD would function like an updated FSAR because it would provide the most complete and accurate information on a plant's design basis for that part of the plant within the scope of this appendix. Therefore, this appendix would define both a generic DCD and a plant-specific DCD.

Also, the Commission decided to treat the TS in Chapter 16 of the generic DCD as a special category of information and to designate them as generic TS in order to facilitate the special treatment of this information under this appendix. A COL applicant must submit plant-specific TS that consist of the generic TS, which may be modified under paragraph VIII.C, and the remaining plant-specific information needed to complete the TS. The FSAR that is required by 10 CFR 52.79 will consist of the plant-specific DCD, the site-specific portion of the FSAR, and the plant-specific TS.

The terms Tier 1, Tier 2, Tier 2*, and COL action items (license information) are defined in this appendix because these concepts were not envisioned when 10 CFR part 52 was developed. The design certification applicants and the NRC used these terms in implementing the two-tiered rule structure that was proposed by representatives of the nuclear industry after issuance of 10 CFR part 52. Therefore, appropriate definitions for these additional terms are included in this appendix. The nuclear industry representatives requested a two-tiered structure for the DCRs to achieve issue preclusion for a greater amount of information than was originally planned for the DCRs, while retaining flexibility for design implementation. The Commission approved the use of a two-tiered rule structure in its SRM, dated February 14, 1991, on SECY-90-377, “Requirements for Design Certification under 10 CFR Part 52,” dated November 8, 1990. This document and others are available in the Regulatory History of Design Certification ( see Section VII of this document).

The Tier 1 portion of the design-related information contained in the DCD would be certified by this appendix and, therefore, subject to the special backfit provisions in paragraph VIII.A. An applicant who references this appendix would be required to include or incorporate by reference and comply with Tier 1, under paragraphs III.B and IV.A.1. This information consists of an introduction to Tier 1, the system based and non-system based design descriptions and corresponding ITAAC, significant interface requirements, and significant site parameters for the design (refer to Section C.I.1.8 of Regulatory Guide 1.206 for guidance on significant interface requirements and site parameters). The design descriptions, interface requirements, and site parameters in Tier 1 were derived from Tier 2, but may be more general than the Tier 2 information. The NRC staff's evaluation of the Tier 1 information is provided in Section 14.3 of the FSER. Changes to or departures from the Tier 1 information must comply with Section VIII.A.

The Tier 1 design descriptions serve as requirements for the lifetime of a facility license referencing the design certification. The inspection, test, analysis, and acceptance criterion/criteria (ITAAC) verify that the as-built facility conforms to the approved design and applicable regulations. Under 10 CFR 52.103(g), the Commission must find that the acceptance criteria in the ITAAC are met before authorizing operation. After the Commission has made the finding required by 10 CFR 52.103(g), the ITAAC do not constitute regulatory requirements for licensees or for renewal of the COL. However, subsequent modifications to the facility within the scope of the design certification must comply with the design descriptions in the plant-specific DCD unless changes are made under the change process in Section VIII. The Tier 1 interface requirements are the most significant of the interface requirements for systems that are wholly or partially outside the scope of the standard design. Tier 1 interface requirements must be met by the site-specific design features of a facility that references this appendix. An application that references this appendix must demonstrate that the site characteristics at the proposed site fall within the site parameters (both Tier 1 and Tier 2) (refer to paragraph IV.D of this document).

Tier 2 is the portion of the design-related information contained in the DCD that would be approved by this appendix but not certified. Tier 2 information would be subject to the backfit provisions in paragraph VIII.B. Tier 2 includes the information required by 10 CFR 52.47(a) and 52.47(c) (with the exception of generic TS and conceptual design information) and the supporting information on inspections, tests, and analyses that will be performed to demonstrate that the acceptance criteria in the ITAAC have been met. As with Tier 1, paragraphs III.B and IV.A.1 would require an applicant who references this appendix to include or incorporate by reference Tier 2 and to comply with Tier 2, except for the COL action items, including the availability controls in Appendix 19ACM of the generic DCD. The definition of Tier 2 makes clear that Tier 2 information has been determined by the Commission, by virtue of its inclusion in this appendix and its designation as Tier 2 information, to be an approved sufficient method for meeting Tier 1 requirements. However, there may be other acceptable ways of complying with Tier 1 requirements. The appropriate criteria for departing from Tier 2 information would be specified in paragraph VIII.B. Departures from Tier 2 information would not negate the requirement in paragraph III.B to incorporate by reference Tier 2 information.

A definition of “combined license action items” (COL information), which is part of the Tier 2 information, would be added to clarify that COL applicants who reference this appendix are required to address COL action items in their license application. However, the COL action items are not the only acceptable set of information. An applicant may depart from or omit COL action items, provided that the departure or omission is identified and justified in the FSAR. After issuance of a construction permit or COL, these items would not be requirements for the licensee unless they are restated in the FSAR. For additional discussion, see Section IV.D of this document.

The availability controls, which are set forth in Appendix 19ACM of the generic DCD, would be added to the information that is part of Tier 2 to clarify that the availability controls are not operational requirements for the purposes of paragraph VIII.C. Rather, the availability controls are associated with specific design features. The availability controls may be changed if the associated design feature is changed under paragraph VIII.B. For additional discussion, see Section IV.C of this document.

Certain Tier 2 information has been designated in the generic DCD with brackets and italicized text as “Tier 2*” information and, as discussed in greater detail in the section-by-section analysis for Section H, a plant-specific departure from Tier 2* information would require prior NRC approval. However, the Tier 2* designation expires for some of this information when the facility first achieves full power after the finding required by 10 CFR 52.103(g). The process for changing Tier 2* information and the time at which its status as Tier 2* expires is set forth in paragraph VIII.B.6. Some Tier 2* requirements concerning special preoperational tests are designated to be performed only for the first plant or first three plants referencing the ESBWR DCR. The Tier 2* designation for these selected tests would expire after the first plant or first three plants complete the specified tests. However, a COL action item requires that subsequent plants also perform the tests or justify that the results of the first-plant-only or first-three-plants-only tests are applicable to the subsequent plant.

The regulations at 10 CFR 50.59 set forth thresholds for permitting changes to a plant as described in the FSAR without NRC approval. Inasmuch as 10 CFR 50.59 is the primary change mechanism for operating nuclear plants, the Commission believes that future plants referencing the ESBWR DCR should use thresholds as close to 10 CFR 50.59 as is practicable and appropriate for new reactors. Because of some differences in how the change control requirements are structured in the DCRs, certain definitions contained in 10 CFR 50.59 are not applicable to 10 CFR part 52 and are not being included in this proposed rule. The Commission is including a definition for a “departure from a method of evaluation” (paragraph II.G), which is appropriate to include in this rulemaking so that the eight criteria in paragraph VIII.B.5.b will be implemented for new reactors as intended.

The purpose of Section III is to describe and define the scope and contents of this design certification and to set forth 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 TS into this appendix. Paragraph III.B requires COL applicants and licensees to comply with the requirements of this appendix. 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. Tier 1 and Tier 2 information, as well as the generic TS, have been combined into a single document called the generic DCD, in order to effectively control this information and facilitate its incorporation by reference into the rule. The generic 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 design certification applicant must make the generic DCD available upon request after the final rule becomes effective. Therefore, paragraph III.A would identify a GEH representative to be contacted in order to obtain a copy of the generic DCD.

Paragraphs III.A and III.B would also identify the availability controls in Appendix 19ACM of the generic DCD as part of the Tier 2 information. During its review of the ESBWR design, the NRC determined that residual uncertainties associated with passive safety system performance increased the importance of non-safety-related active systems in providing defense-in-depth functions that back-up the passive systems. As a result, GEH developed administrative controls to provide a high level of confidence that active systems having a significant safety role are available when challenged. The GEH named these additional controls “availability controls.” The Commission included this characterization in Section III to ensure that these availability controls would be binding on applicants and licensees that reference this appendix and would be enforceable by the NRC. The NRC's evaluation of the availability controls is provided in Chapter 22 of the FSER.

The generic DCD (master copy) for this design certification is electronically accessible under ADAMS Accession No. ML103440266; at the OFR; and at http://www.regulations.gov by searching under Docket ID NRC-2010-0135. Copies of the generic DCD would also be available at the NRC's PDR. Questions concerning the accuracy of information in an application that references this appendix will be resolved by checking the master copy of the generic DCD in ADAMS. If the design certification applicant makes a generic change (rulemaking) to the DCD under 10 CFR 52.63 and the change process provided in Section VIII, then at the completion of the rulemaking the NRC would request approval of the Director, OFR, for the revised master DCD. The Commission would require that the design certification applicant maintain an up-to-date copy of the master DCD that includes any generic changes it has made under paragraph X.A.1 because it is likely that most applicants intending to reference the standard design would obtain the generic DCD from the design certification applicant. Plant-specific changes to and departures from the generic DCD would be maintained by the applicant or licensee that references this appendix in a plant-specific DCD under paragraph X.A.2.

In addition to requiring compliance with this appendix, paragraph III.B would clarify that the conceptual design information and GEH's evaluation of SAMDAs are not considered to be part of this appendix. The conceptual design information is for those portions of the plant that are outside the scope of the standard design and are contained in Tier 2 information. As provided by 10 CFR 52.47(a)(24), these conceptual designs are not part of this appendix and, therefore, are not applicable to an application that references this appendix. Therefore, the applicant would not be required to conform with the conceptual design information that was provided by the design certification applicant. The conceptual design information, which consists of site-specific design features, was required to facilitate the design certification review. Conceptual design information is neither Tier 1 nor Tier 2. Section 1.8.2 of Tier 2 identifies the location of the conceptual design information. The GEH's evaluation of various design alternatives to prevent and mitigate severe accidents does not constitute design requirements. The Commission's assessment of this information is discussed in Section X of this document.

Paragraphs III.C and III.D would set forth the way potential conflicts are to be resolved. Paragraph III.C would establish 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. Paragraph III.D would establish the generic DCD as the controlling document in the event of an inconsistency between the DCD and the FSER for the certified standard design.

Paragraph III.E would clarify that design activities that are wholly outside the scope of this design certification may be performed using actual site characteristics, provided the design activities do not affect Tier 1 or Tier 2, or conflict with the interface requirements in the DCD. This provision would apply to site-specific portions of the plant, such as the administration building. Because this statement is not a definition, this provision has been located in Section III.

Section IV would set forth additional requirements and restrictions imposed upon an applicant who references this appendix. Paragraph IV.A would set forth the information requirements for these applicants. This paragraph would distinguish between information and/or documents which must actually be included in the application or the DCD, versus those which may be incorporated by reference ( i.e., referenced in the application as if the information or documents were included in the application). Any incorporation by reference in the application should be clear and should specify the title, date, edition, or version of a document, the page number(s), and table(s) containing the relevant information to be incorporated.

Paragraph IV.A.1 would require an applicant who references this appendix to incorporate by reference this appendix in its application. The legal effect of such an incorporation by reference is that this appendix would be legally binding on the applicant or licensee. Paragraph IV.A.2.a would require that a plant-specific DCD be included in the initial application to ensure that the applicant commits to complying with the DCD. This paragraph would also require the plant-specific DCD to either include or incorporate by reference the generic DCD information. Further, this paragraph would also require the plant-specific DCD to use the same format as the generic DCD and reflect the applicant's proposed exemptions and departures from the generic DCD as of the time of submission of the application. The plant-specific DCD would be part of the plant's FSAR, along with information for the portions of the plant outside the scope of the referenced design. Paragraph IV.A.2.a would also require that the initial application include the reports on departures and exemptions as of the time of submission of the application.

Paragraph IV.A.2.b would require that an application referencing this appendix include the reports required by paragraph X.B for exemptions and departures proposed by the applicant as of the date of submission of its application. Paragraph IV.A.2.c would require submission of plant-specific TS for the plant that consists of the generic TS from Chapter 16 of the DCD, with any changes made under paragraph VIII.C, and the TS for the site-specific portions of the plant that are either partially or wholly outside the scope of this design certification. The applicant must also provide the plant-specific information designated in the generic TS, such as bracketed values (refer to guidance provided in Interim Staff Guidance DC/COL-ISG-8, “Necessary Content of Plant-Specific Technical Specifications”).

Paragraph IV.A.2.d would require the applicant referencing this appendix to provide information demonstrating that the proposed site characteristics fall within the site parameters for this appendix and that the plant-specific interface requirements have been met as required by 10 CFR 52.79(d). If the proposed site has a characteristic that does not fall within one or more of the site parameters in the DCD, then the proposed site would be unacceptable for this design unless the applicant seeks an exemption under Section VIII and provides adequate justification for locating the certified design on the proposed site. Paragraph IV.A.2.e would require submission of information addressing COL action items, identified in the generic DCD as COL information in the application. The COL information identifies matters that need to be addressed by an applicant who references this appendix, as required by Subpart C of 10 CFR part 52. An applicant may differ from or omit these items, provided that the difference or omission is identified and justified in its application. Based on the applicant's difference or omission, the NRC may impose additional licensing requirement(s) on the COL applicant as appropriate. Paragraph IV.A.2.f would require that the application include the information specified by 10 CFR 52.47(a) that is not within the scope of this rule, such as generic issues that must be addressed or operational issues not addressed by a design certification, in whole or in part, by an applicant that references this appendix. Paragraph IV.A.3 would require the applicant to physically include, not simply reference, the SUNSI (including proprietary information) and SGI referenced in the DCD, or its equivalent, to ensure that the applicant has actual notice of these requirements.

Paragraph IV.A.4 would 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. Proposed paragraph IV.A.4 would require that a COL applicant referencing this appendix include, as part of its application, a demonstration that an entity other than GEH Nuclear Energy is qualified to supply the ESBWR certified design unless GEH Nuclear Energy supplies the design for the applicant's use. In cases where a COL applicant is not using GEH Nuclear Energy to supply the ESBWR certified design, the required information would 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.

Paragraph IV.B would reserve to the Commission the right to determine in what manner this appendix may be referenced by an applicant for a construction permit or operating license under 10 CFR part 50. This determination may occur in the context of a subsequent rulemaking modifying 10 CFR part 52 or this design certification rule, or on a case-by-case basis in the context of a specific application for a 10 CFR part 50 construction permit or operating license. This provision is necessary because the previous DCRs were not implemented in the manner that was originally envisioned at the time that 10 CFR part 52 was promulgated. The Commission's concern is with the way ITAAC were developed and the lack of experience with design certifications in license proceedings. Therefore, it is appropriate that the Commission retain some discretion regarding the way this appendix could be referenced in a 10 CFR part 50 licensing proceeding.

The purpose of Section V is to specify the regulations that would be applicable and in effect at the time this proposed design certification is approved ( i.e., as of the date specified in paragraph V.A, which would be the date that this appendix is approved by the Commission and signed by the Secretary of the Commission). These regulations would consist of the technically relevant regulations identified in paragraph V.A, except for the regulations in paragraph V.B that would not be applicable to this certified design.

In paragraph V.B, the Commission would identify the regulations that do not apply to the ESBWR design. The Commission has determined that the ESBWR design should be exempt from portions of 10 CFR 50.34 as described in the FSER (NUREG-XXXX) and/or summarized below:

This paragraph requires an applicant to provide a plant safety parameter display console that will display to operators a minimum set of parameters defining the safety status of the plant, capable of displaying a full range of important plant parameters and data trends on demand, and capable of indicating when process limits are being approached or exceeded. The ESBWR design integrates the safety parameter display system into the design of the non-safety related distribution control and information system, rather than use a stand-alone console. The safety parameter display system is described in Section 7.1.5 of the DCD.

The Commission has also determined that the ESBWR design is approved to use the following alternative. Under 10 CFR 50.55a(a)(3), GEH requested NRC approval for the use of Code Case N-782 as a proposed alternative to the rules of Section III, Subsection NCA-1140, regarding applied Code Editions and Addenda required by 10 CFR 50.55a(c), (d), and (e). Code Case N-782 provides that the Code Edition and Addenda endorsed in a certified design or licensed by the regulatory authority may be used for systems and components constructed to ASME Code, Section III requirements. These alternative requirements are in lieu of the requirements that base the Edition and Addenda on the construction permit date. Reference to Code Case N-782 will be included in component and system design specifications and design reports to permit certification of these specifications and reports to the Code Edition and Addenda cited in the DCD. The NRC's bases for approving the use of Code Case N-782 as a proposed alternative to the requirements of Section III Subsection NCA-1140 under 10 CFR 50.55a(a)(3) for ESBWR are described in Section 5.2.1.1.3 of the FSER.

The purpose of Section VI is to identify the scope of issues that would be resolved by the Commission in this rulemaking and, therefore, are “matters resolved” within the meaning and intent of 10 CFR 52.63(a)(5). The section is divided into five parts: paragraph A identifies the Commission's safety findings in adopting this appendix, paragraph B identifies the scope and nature of issues which are resolved by this rulemaking, paragraph C identifies issues which are not resolved by this rulemaking, paragraph D identifies the backfit restrictions applicable to the Commission with respect to this appendix, and paragraph E identifies the availability of secondary references.

Paragraph VI.A would describe the nature of the Commission's findings in general terms and make the findings required by 10 CFR 52.54 for the Commission's approval of this DCR. Furthermore, paragraph VI.A would explicitly state the Commission's determination that this design provides adequate protection of the public health and safety.

Paragraph VI.B would set forth the scope of issues that may not be challenged as a matter of right in subsequent proceedings. The introductory phrase of paragraph VI.B clarifies that issue resolution as described in the remainder of the paragraph extends to the delineated NRC proceedings referencing this appendix. The remainder of paragraph VI.B describes the categories of information for which there is issue resolution. Specifically, paragraph VI.B.1 would provide that all nuclear safety issues arising from the Atomic Energy Act of 1954, as amended, that are associated with the information in the NRC staff's FSER (NUREG-XXXX), the Tier 1 and Tier 2 information (including the availability controls in Appendix 19ACM of the generic DCD), and the rulemaking record for this appendix are resolved within the meaning of 10 CFR 52.63(a)(5). These resolved 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, but does not include the HFE processes for procedure development and training program development identified in Sections 18.9 and 18.10 of the generic DCD.

Paragraph VI.B.2 would provide for issue preclusion of SUNSI (including proprietary information) and SGI. Paragraphs VI.B.3, VI.B.4, VI.B.5, and VI.B.6 would clarify that approved changes to and departures from the DCD, which are accomplished in compliance with the relevant procedures and criteria in Section VIII, continue to be matters resolved in connection with this rulemaking. Paragraphs VI.B.4, VI.B.5, and VI.B.6, which would characterize the scope of issue resolution in three situations, use the phrase “but only for that plant.” Paragraph VI.B.4 would describe how issues associated with a design certification rule are resolved when an exemption has been granted for a plant referencing the design certification rule. Paragraph VI.B.5 would describe how issues are resolved when a plant referencing the DC rule obtains a license amendment for a departure from Tier 2 information. Paragraph VI.B.6 would describe how issues are resolved when the applicant or licensee departs from the Tier 2 information on the basis of paragraph VIII.B.5, which would waive the requirement for NRC approval. In all three situations, after a matter ( e.g., an exemption in the case of paragraph VI.B.4) is addressed for a specific plant referencing a design certification rule, the adequacy of that matter for that plant is resolved and would constitute part of the licensing basis for that plant. Therefore, that matter would not ordinarily be subject to challenge in any subsequent proceeding or action for that plant ( e.g., an enforcement action) listed in the introductory portion of paragraph IV.B. By contrast, there would be no legally binding issue resolution on that subject matter for any other plant, or in a subsequent rulemaking amending the applicable design certification rule. However, the NRC's consideration of the safety, regulatory or policy issues necessary to the determination of the exemption or license amendment may, in appropriate circumstances, be relied upon as part of the basis for NRC action in other licensing proceedings or rulemaking.

Paragraph VI.B.7 would provide that, for those plants located on sites whose site characteristics fall within the site parameters assumed in the GEH evaluation of SAMDAs, all issues with respect to SAMDAs arising under the National Environmental Policy Act of 1969, as amended (NEPA), associated with the information in the EA for this design and the information regarding SAMDAs in NEDO-33306, Revision 4, “ESBWR Severe Accident Mitigation Design Alternatives” are also resolved within the meaning and intent of 10 CFR 52.63(a)(5). If a deviation from a site parameter is granted, the deviation applicant has the initial burden of demonstrating that the original SAMDA analysis still applies to the actual site characteristics; but, if the deviation is approved, requests for litigation at the COL stage must meet the requirements of 10 CFR 2.309 and present sufficient information to create a genuine controversy in order to obtain a hearing on the site parameter deviation.

Paragraph VI.C would reserve the right of the Commission to impose operational requirements on applicants that reference this appendix. This provision would reflect the fact that only some operational requirements, including portions of the generic TS in Chapter 16 of the DCD, and no operational programs, such as operational QA, were completely or comprehensively reviewed by the NRC in this design certification rulemaking proceeding. Therefore, the special backfit and finality provisions of 10 CFR 52.63 would apply only to those operational requirements that either the NRC completely reviewed and approved, or formed the basis for an NRC safety finding of the adequacy of the ESBWR, as documented in the NRC's safety evaluation report for the ESBWR. This is consistent with the currently approved design certifications in 10 CFR part 52, Appendices A through D. Although information on operational matters is included in the DCDs of each of these currently approved designs, for the most part these design certifications do not provide approval for operational information, and none provide approval for operational “programs” ( e.g., emergency preparedness programs, operational quality assurance programs). Most operational information in the DCD simply serves as “contextual information” ( i.e., information necessary to understand the design of certain SSCs and how they would be used in the overall context of the facility). The NRC did not use contextual information to support the NRC's safety conclusions, and such information does not constitute the underlying safety bases for the adequacy of those SSCs. Thus, contextual operational information on any particular topic would not constitute one of the “matters resolved” under paragraph VI.B.

The NRC notes that operational requirements may be imposed on licensees referencing this design certification through the inclusion of license conditions in the license, or inclusion of a description of the operational requirement in the plant-specific FSAR. 2 The NRC's choice of the regulatory vehicle for imposing the operational requirements will depend upon, among other things: (1) Whether the development and/or implementation of these requirements must occur prior to either the issuance of the COL or the Commission finding under 10 CFR 52.103(g), and (2) the nature of the change controls which the NRC believes are appropriate given the regulatory, safety, and security significance of each operational requirement.

Paragraph VI.C would allow the NRC to impose future operational requirements (distinct from design matters) on applicants who reference this design certification. Also, license conditions for portions of the plant within the scope of this design certification ( e.g., start-up and power ascension testing), are not restricted by 10 CFR 52.63. The requirement to perform these testing programs is contained in Tier 1 information. However, ITAAC cannot be specified for these subjects because the matters to be addressed in these license conditions cannot be verified prior to fuel load and operation, when the ITAAC are satisfied. Therefore, another regulatory vehicle is necessary to ensure that licensees comply with the matters contained in the license conditions. License conditions for these areas cannot be developed now because this requires the type of detailed design information that will be developed during a COL review. In the absence of detailed design information to evaluate the need for and develop specific post-fuel load verifications for these matters, the Commission is reserving in this rule the right to impose, at the time of COL issuance, license conditions addressing post-fuel load verification activities for portions of the plant within the scope of this design certification.

Paragraph VI.D would reiterate the restrictions (contained in Section VIII) placed upon the Commission when ordering generic or plant-specific modifications, changes or additions to structures, systems, or components, design features, design criteria, and ITAAC (paragraph VI.D.3 would address ITAAC) within the scope of the certified design.

Paragraph VI.E would provide that the NRC will specify at an appropriate time the procedures for interested persons to obtain access to proprietary information, SUNSI, and SGI information for the ESBWR design certification rule. Access to such information would be for the sole purpose of requesting or participating in certain specified hearings, such as (1) the hearing required by 10 CFR 52.85 where the underlying application references this appendix; (2) any hearing provided under 10 CFR 52.103 where the underlying COL references this appendix; and (3) 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 [EFFECTIVE DATE OF FINAL RULE], the Commission's order governing access to SUNSI and SGI shall be used to govern access to proprietary information, SUNSI, and SGI within the scope of the rulemaking. For proceedings in which the notice of hearing or opportunity for hearing is published after [EFFECTIVE DATE OF FINAL RULE], paragraph VI.E applies and governs access to proprietary information, SUNSI, and SGI. For these proceedings, as stated in paragraph VI.E, the NRC will specify the access procedures at an appropriate time.

For both a hearing required by 10 CFR 52.85 where the underlying application references this appendix, and in any hearing on ITAAC completion under 10 CFR 52.103, the NRC expects to follow its current practice of establishing the procedures by order at the time that the notice of hearing is published in the Federal Register . See, for example, 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 SUNSI 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 SUNSI and Safeguards Information for Contention Preparation; In the Matter of AREVA Enrichment Services, LLC (Eagle Rock Enrichment Facility) (74 FR 38052; July 30, 2009).

The purpose of Section VII would be, in part, to specify the period during which this design certification may be referenced by an applicant for a COL, under 10 CFR 52.55. This section would also state that the design certification would remain valid for an applicant or licensee that references the design certification until the application is withdrawn or the license expires. Therefore, if an application references this design certification during the 15-year period, then the design certification would be effective until the application is withdrawn or the license issued on that application expires. Also, the design certification would be effective for the referencing licensee if the license is renewed. The Commission intends for this appendix to remain valid for the life of the plant that references the design certification to achieve the benefits of standardization and licensing stability. This means that changes to, or plant-specific departures from, information in the plant-specific DCD must be made under the change processes in Section VIII for the life of the plant.

The purpose of Section VIII would be to set forth the processes for generic changes to, or plant-specific departures (including exemptions) from, the DCD. The Commission adopted this restrictive change process in order to achieve a more stable licensing process for applicants and licensees that reference this DCR. Section VIII is divided into three paragraphs, which correspond to Tier 1, Tier 2, and operational requirements. The language of Section VIII distinguishes between generic changes to the DCD versus plant-specific departures from the DCD. Generic changes must be accomplished by rulemaking because the intended subject of the change is this DCR itself, as is contemplated by 10 CFR 52.63(a)(1). Consistent with 10 CFR 52.63(a)(3), any generic rulemaking changes are applicable to all plants, absent circumstances which render the change [“modification” in the language of 10 CFR 52.63(a)(3)] “technically irrelevant.” By contrast, plant-specific departures could be either a Commission-issued order to one or more applicants or licensees; or an applicant or licensee-initiated departure applicable only to that applicant's or licensee's plant(s), similar to a 10 CFR 50.59 departure or an exemption. Because these plant-specific departures will result in a DCD that is unique for that plant, Section X would require an applicant or licensee to maintain a plant-specific DCD. For purposes of brevity, this discussion refers to both generic changes and plant-specific departures as “change processes.”

Section VIII refers to an exemption from one or more requirements of this appendix and the criteria for granting an exemption. The Commission cautions that when the exemption involves an underlying substantive requirement (applicable regulation), then the applicant or licensee requesting the exemption must also show that an exemption from the underlying applicable requirement meets the criteria of 10 CFR 52.7.

The change processes for Tier 1 information would be covered in paragraph VIII.A. Generic changes to Tier 1 are accomplished by rulemakings that amend the generic DCD and are governed by the standards in 10 CFR 52.63(a)(1) and 10 CFR 52.63(a)(2). No matter who proposes it, a generic change under 10 CFR 52.63(a)(1) will not be made to a certified design while it is in effect unless the change: (1) Is necessary for compliance with Commission regulations applicable and in effect at the time the certification was issued; (2) is necessary to provide adequate protection of the public health and safety or common defense and security; (3) reduces unnecessary regulatory burden and maintains protection to public health and safety and common defense and security; (4) provides the detailed design information necessary to resolve selected design acceptance criteria; (5) corrects material errors in the certification information; (6) substantially increases overall safety, reliability, or security of a facility and the costs of the change are justified; or (7) contributes to increased standardization of the certification information. The rulemakings must provide for notice and opportunity for public comment on the proposed change, as required by 10 CFR 52.63(a)(2). The Commission will give consideration to whether the benefits justify the costs for plants that are already licensed or for which an application for a permit or license is under consideration.

Departures from Tier 1 may occur in two ways: (1) the Commission may order a licensee to depart from Tier 1, as provided in paragraph VIII.A.3; or (2) an applicant or licensee may request an exemption from Tier 1, as provided in paragraph VIII.A.4. If the Commission seeks to order a licensee to depart from Tier 1, paragraph VIII.A.3 would require that the Commission find both that the departure is necessary for adequate protection or for compliance and that special circumstances are present. Paragraph VIII.A.4 would provide that exemptions from Tier 1 requested by an applicant or licensee are governed by the requirements of 10 CFR 52.63(b)(1) and 52.98(f), which provide an opportunity for a hearing. In addition, the Commission would not grant requests for exemptions that may result in a significant decrease in the level of safety otherwise provided by the design.

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, would be set forth in paragraph VIII.B. The change process for Tier 2 has the same elements as the Tier 1 change process, but some of the standards for plant-specific orders and exemptions would be different.

The process for generic Tier 2 changes (including changes to Tier 2* and Tier 2* with a time of expiration) tracks the process for generic Tier 1 changes. As set forth in paragraph VIII.B.1, generic Tier 2 changes would be accomplished by rulemaking amending the generic DCD and would be governed by the standards in 10 CFR 52.63(a)(1). No matter who proposes it, a generic change under 10 CFR 52 52.63(a)(1) will not be made to a certified design while it is in effect unless the change: (1) Is necessary for compliance with Commission regulations applicable and in effect at the time the certification was issued; (2) is necessary to provide adequate protection of the public health and safety or common defense and security; (3) reduces unnecessary regulatory burden and maintains protection to public health and safety and common defense and security; (4) provides the detailed design information necessary to resolve selected design acceptance criteria; (5) corrects material errors in the certification information; (6) substantially increases overall safety, reliability, or security of a facility and the costs of the change are justified; or (7) contributes to increased standardization of the certification information. If a generic change is made to Tier 2* information, then the category and expiration, if necessary, of the new information would also be determined in the rulemaking and the appropriate change process for that new information would apply.

Departures from Tier 2 would occur in five ways: (1) The Commission may order a plant-specific departure, as set forth in paragraph VIII.B.3; (2) an applicant or licensee may request an exemption from a Tier 2 requirement as set forth in paragraph VIII.B.4; (3) a licensee may make a departure without prior NRC approval under paragraph VIII.B.5; (4) the licensee may request NRC approval for proposed departures which do not meet the requirements in paragraph VIII.B.5 as provided in paragraph VIII.B.5.d; and (5) the licensee may request NRC approval for a departure from Tier 2* information under paragraph VIII.B.6.

Similar to Commission-ordered Tier 1 departures and generic Tier 2 changes, Commission-ordered Tier 2 departures could not be imposed except when necessary either to bring the certification into compliance with the Commission's regulations applicable and in effect at the time of approval of the design certification or to ensure adequate protection of the public health and safety or common defense and security, as set forth in paragraph VIII.B.3. However, the special circumstances for the Commission-ordered Tier 2 departures would not have to outweigh any decrease in safety that may result from the reduction in standardization caused by the plant-specific order, as required by 10 CFR 52.63(a)(4). The Commission determined that it was not necessary to impose an additional limitation similar to that imposed on Tier 1 departures by 10 CFR 52.63(a)(4) and (b)(1). This type of additional limitation for standardization would unnecessarily restrict the flexibility of applicants and licensees with respect to Tier 2 information.

An applicant or licensee would be permitted to request an exemption from Tier 2 information as set forth in paragraph VIII.B.4. The applicant or licensee would have to demonstrate that the exemption complies with one of the special circumstances in 10 CFR 50.12(a). In addition, the Commission would not grant requests for exemptions that may result in a significant decrease in the level of safety otherwise provided by the design. However, the special circumstances for the exemption do not have to outweigh any decrease in safety that may result from the reduction in standardization caused by the exemption. If the exemption is requested by an applicant for a license, the exemption would be subject to litigation in the same manner as other issues in the license hearing, consistent with 10 CFR 52.63(b)(1). If the exemption is requested by a licensee, then the exemption would be subject to litigation in the same manner as a license amendment.

Paragraph VIII.B.5 would allow an applicant or licensee to depart from Tier 2 information, without prior NRC approval, if the proposed departure does not involve a change to, or departure from, Tier 1 or Tier 2* information, TS, or does not require a license amendment under paragraphs VIII.B.5.b or VIII.B.5.c. The TS referred to in VIII.B.5.a of this paragraph are the TS in Chapter 16 of the generic DCD, including bases, for departures made prior to issuance of the COL. After issuance of the COL, the plant-specific TS would be controlling under paragraph VIII.B.5. The bases for the plant-specific TS would be controlled by the bases control program, which is specified in the plant-specific TS administrative controls section. The requirement for a license amendment in paragraph VIII.B.5.b would be similar to the requirement in 10 CFR 50.59 and apply to all information in Tier 2 except for the information that resolves the severe accident issues.

The Commission believes that the resolution of ex-vessel severe accident design features should be preserved and maintained in the same fashion as all other safety issues that were resolved during the design certification review (refer to SRM on SECY-90-377, “Requirements for Design Certification Under 10 CFR Part 52,” dated February 15, 1991, ADAMS Accession No. ML003707892). However, because of the increased uncertainty in ex-vessel severe accident issue resolutions, the Commission has proposed separate criteria in paragraph VIII.B.5.c for determining if a departure from information that resolves ex-vessel severe accident design features would require a license amendment. For purposes of applying the special criteria in paragraph VIII.B.5.c, ex-vessel severe accident resolutions would be limited to design features where the intended function of the design feature is relied upon to resolve postulated accidents when the reactor core has melted and exited the reactor vessel, and the containment is being challenged. These design features are identified in Sections 19.2.3, 19.3.2, 19.3.3, 19.3.4, and Appendices 19A and 19B of the DCD, with other issues, and are described in other sections of the DCD. Therefore, the location of design information in the DCD is not important to the application of this special procedure for ex-vessel severe accident design features. However, the special procedure in paragraph VIII.B.5.c would not apply to design features that resolve so-called “beyond design-basis accidents” or other low-probability events. The important aspect of this special procedure is that it would be limited to ex-vessel severe accident design features, as defined above. Some design features may have intended functions to meet “design basis” requirements and to resolve “severe accidents.” If these design features are reviewed under paragraph VIII.B.5, then the appropriate criteria from either paragraphs VIII.B.5.b or VIII.B.5.c would be selected depending upon the function being changed.

An applicant or licensee that plans to depart from Tier 2 information, under paragraph VIII.B.5, would be required to prepare an evaluation which provides the bases for the determination that the proposed change does not require a license amendment or involve a change to Tier 1 or Tier 2* information, or a change to the TS, as explained above. In order to achieve the Commission's goals for design certification, the evaluation would need to consider all of the matters that were resolved in the DCD, such as generic issue resolutions that are relevant to the proposed departure. The benefits of the early resolution of safety issues would be lost if departures from the DCD were made that violated these resolutions without appropriate review.

The evaluation of the relevant matters would need to consider the proposed departure over the full range of power operation from startup to shutdown, as it relates to anticipated operational occurrences, transients, design-basis accidents, and severe accidents. The evaluation would also have to include a review of all relevant secondary references from the DCD because Tier 2 information, which is intended to be treated as a requirement, would be contained in the secondary references. The evaluation should consider Tables 14.3-1a through 14.3-1c and 19.2-3 of the generic DCD to ensure that the proposed change does not impact Tier 1 information. These tables contain cross-references from the safety analyses and probabilistic risk assessment in Tier 2 to the important parameters that were included in Tier 1.

Paragraph VIII.B.5.d addresses information described in the DCD to address aircraft impacts, in accordance with 10 CFR 52.47(a)(28). Under 10 CFR 52.47(a)(28), applicants are required to include the information required by 10 CFR 50.150(b) in their DCD. Under 10 CFR 50.150(b), applications for standard design certifications are required to include:

1. A description of the design features and functional capabilities identified as a result of the aircraft impact assessment required by 10 CFR 50.150(a)(1); and

2. A description of how such design features and functional capabilities meet the assessment requirements in 10 CFR 50.150(a)(1).

An applicant or licensee who changes this information is required to consider the effect of the changed design feature or functional capability on the original aircraft impact assessment required by 10 CFR 50.150(a). The applicant or licensee is also required to describe in the plant-specific DCD how the modified design features and functional capabilities continue to meet the assessment requirements in 10 CFR 50.150(a)(1). Submittal of this updated information is governed by the reporting requirements in Section X.B.

In an adjudicatory proceeding ( e.g., for issuance of a COL) a person who believes that an applicant or licensee has not complied with paragraph VIII.B.5 when departing from Tier 2 information, would be permitted to petition to admit such a contention into the proceeding under paragraph VIII.B.5.f. This provision has been proposed because an incorrect departure from the requirements of this appendix essentially would place the departure outside of the scope of the Commission's safety finding in the design certification rulemaking. Therefore, it follows that properly founded contentions alleging such incorrectly implemented departures cannot be considered “resolved” by this rulemaking. As set forth in paragraph VIII.B.5.f, the petition would have to comply with the requirements of 10 CFR 2.309 and show that the departure does not comply with paragraph VIII.B.5. Other persons would be allowed to file a response to the petition under 10 CFR 2.309. If on the basis of the petition and any responses, the presiding officer in the proceeding determines that the required showing has been made, the matter would be certified to the Commission for its final determination. In the absence of a proceeding, petitions alleging nonconformance with paragraph VIII.B.5 requirements applicable to Tier 2 departures would be treated as petitions for enforcement action under 10 CFR 2.206.

Paragraph VIII.B.6 would provide a process for departing from Tier 2* information. The creation of and restrictions on changing Tier 2* information resulted from the development of the Tier 1 information for the ABWR design certification (Appendix A to 10 CFR part 52) and the System 80+ design certification (Appendix B to 10 CFR part 52). During this development process, these applicants requested that the amount of information in Tier 1 be minimized to provide additional flexibility for an applicant or licensee who references these appendices. Also, many codes, standards, and design processes, which would not be specified in Tier 1 that are acceptable for meeting ITAAC, were specified in Tier 2. The result of these departures would be that certain significant information only exists in Tier 2 and the Commission would not want this significant information to be changed without prior NRC approval. This Tier 2* information would be identified in the generic DCD with italicized text and brackets ( See Table 1D-1 in Appendix 1D of the ESBWR DCD).

Although the Tier 2* designation was originally intended to last for the lifetime of the facility, like Tier 1 information, the NRC determined that some of the Tier 2* information could expire when the plant first achieves full (100 percent) power, after the finding required by 10 CFR 52.103(g), while other Tier 2* information must remain in effect throughout the life of the facility. The factors determining whether Tier 2* information could expire after full power is first achieved (first full power) were whether the Tier 1 information would govern these areas after first full power and the NRC's determination that prior approval was required before implementation of the change due to the significance of the information. Therefore, certain Tier 2* information listed in paragraph VIII.B.6.c would cease to retain its Tier 2* designation after full-power operation is first achieved following the Commission finding under 10 CFR 52.103(g). Thereafter, that information would be deemed to be Tier 2 information that would be subject to the departure requirements in paragraph VIII.B.5. By contrast, the Tier 2* information identified in paragraph VIII.B.6.b would retain its Tier 2* designation throughout the duration of the license, including any period of license renewal.

Certain preoperational tests in paragraph VIII.B.6.c would be designated to be performed only for the first plant that references this appendix. The GEH's basis for performing these “first-plant-only” preoperational tests is provided in Section 14.2.8 of the DCD. The NRC found GEH's basis for performing these tests and its justification for only performing the tests on the first plant acceptable. The NRC's decision was based on the need to verify that plant-specific manufacturing and/or construction variations do not adversely impact the predicted performance of certain passive safety systems, while recognizing that these special tests would result in significant thermal transients being applied to critical plant components. The NRC believes that the range of manufacturing or construction variations that could adversely affect the relevant passive safety systems would be adequately disclosed after performing the designated tests on the first plant. The Tier 2* designation for these tests would expire after the first completes these tests, as indicated in paragraph VIII.B.6.c.

If Tier 2* information is changed in a generic rulemaking, the designation of the new information (Tier 1, 2*, or 2) would also be determined in the rulemaking and the appropriate process for future changes would apply. If a plant-specific departure is made from Tier 2* information, then the new designation would apply only to that plant. If an applicant who references this design certification makes a departure from Tier 2* information, the new information would be subject to litigation in the same manner as other plant-specific issues in the licensing hearing. If a licensee makes a departure from Tier 2* information, it would be treated as a license amendment under 10 CFR 50.90 and the finality would be determined under paragraph VI.B.5. Any requests for departures from Tier 2* information that affects Tier 1 would also have to comply with the requirements in paragraph VIII.A.

The change process for TS and other operational requirements in the DCD would be set forth in paragraph VIII.C. This change process has elements similar to the Tier 1 and Tier 2 change processes in paragraphs VIII.A and VIII.B, but with significantly different change standards. Because of the different finality status for TS and other operational requirements (refer to paragraph V.F of this document), the Commission designated a special category of information, consisting of the TS and other operational requirements, with its own change process in proposed paragraph VIII.C. The key to using the change processes proposed in Section VIII is to determine if the proposed change or departure would require a change to a design feature described in the generic DCD. If a design change is required, then the appropriate change process in paragraph VIII.A or VIII.B would apply. However, if a proposed change to the TS or other operational requirements does not require a change to a design feature in the generic DCD, then paragraph VIII.C would apply. The language in paragraph VIII.C would also distinguish between generic (Chapter 16 of the DCD) and plant-specific TS to account for the different treatment and finality accorded TS before and after a license is issued.

The process in paragraph VIII.C.1 for making generic changes to the generic TS in Chapter 16 of the DCD or other operational requirements in the generic DCD would be accomplished by rulemaking and governed by the backfit standards in 10 CFR 50.109. The determination of whether the generic TS and other operational requirements were completely reviewed and approved in the design certification rulemaking would be based upon the extent to which the NRC reached a safety conclusion in the FSER on this matter. If it cannot be determined, in the absence of a specific statement, that the TS or operational requirement was comprehensively reviewed and finalized in the design certification rulemaking, then there would be no backfit restriction under 10 CFR 50.109 because no prior position, consistent with paragraph VI.B, was taken on this safety matter. Generic changes made under paragraph VIII.C.1 would be applicable to all applicants or licensees (refer to paragraph VIII.C.2), unless the change is irrelevant because of a plant-specific departure.

Some generic TS and availability controls contain values in brackets [ ]. The brackets are placeholders indicating that the NRC's review is not complete, and represent a requirement that the applicant for a COL referencing the ESBWR DCR must replace the values in brackets with final plant-specific values (refer to guidance provided in Interim Staff Guidance DC/COL-ISG-8, “Necessary Content of Plant-Specific Technical Specifications”). The values in brackets are neither part of the design certification rule nor are they binding. Therefore, the replacement of bracketed values with final plant-specific values does not require an exemption from the generic TS or availability controls.

Plant-specific departures may occur by either a Commission order under paragraph VIII.C.3 or an applicant's exemption request under paragraph VIII.C.4. The basis for determining if the TS or operational requirement was completely reviewed and approved for these processes would be the same as for paragraph VIII.C.1 above. If the TS or operational requirement is comprehensively reviewed and finalized in the design certification rulemaking, then the Commission must demonstrate that special circumstances are present before ordering a plant-specific departure. If not, there would be no restriction on plant-specific changes to the TS or operational requirements, prior to the issuance of a license, provided a design change is not required. Although the generic TS were reviewed and approved by the NRC staff in support of the DC review, the Commission intends to consider the lessons learned from subsequent operating experience during its licensing review of the plant-specific TS. The process for petitioning to intervene on a TS or operational requirement contained in paragraph VIII.C.5 would be similar to other issues in a licensing hearing, except that the petitioner must also demonstrate why special circumstances are present pursuant to 10 CFR 2.335.

Finally, the generic TS would have no further effect on the plant-specific TS after the issuance of a license that references this appendix. The bases for the generic TS would be controlled by the change process in paragraph VIII.C. After a license is issued, the bases would be controlled by the bases change provision set forth in the administrative controls section of the plant-specific TS.

This section is reserved for future use.

The purpose of Section X would be to set forth the requirements that would apply to maintaining records of changes to and departures from the generic DCD, which would be reflected in the plant-specific DCD. Section X would also set forth the requirements for submitting reports (including updates to the plant-specific DCD) to the NRC. This section of the appendix would be similar to the requirements for records and reports in 10 CFR part 50, except for minor differences in information collection and reporting requirements.

Paragraph X.A.1 would require that a generic DCD and the SUNSI (including proprietary information) and SGI referenced in the generic DCD be maintained by the applicant for this rule. The generic DCD concept was developed, in part, to meet the OFR requirements for incorporation by reference, including public availability of documents incorporated by reference. However, the SUNSI (including proprietary information) and SGI could not be included in the generic DCD because they are not publicly available. Nonetheless, the SUNSI (including proprietary information) and SGI was reviewed by the NRC and, as stated in paragraph VI.B.2, the NRC would consider the information to be resolved within the meaning of 10 CFR 52.63(a)(5). Because this information is not in the generic DCD, this information, or its equivalent, is required to be provided by an applicant for a license referencing this design certification rule. Paragraph X.A.1 would require the design certification applicant to maintain the SUNSI (including proprietary information) and SGI, which it developed and used to support its design certification application. This would ensure that the referencing applicant has direct access to this information from the design certification applicant, if it has contracted with the applicant to provide the proprietary information and SGI to support its license application. The NRC may also inspect this information if it was not submitted to the NRC ( e.g., the aircraft impact assessment required by 10 CFR 50.150). Only the generic DCD would be identified and incorporated by reference into this rule. The generic DCD and the NRC-approved version of the SUNSI (including proprietary information) and SGI would be maintained for the period of time that this appendix may be referenced.

Paragraphs X.A.2 and X.A.3 would place recordkeeping requirements on the applicant or licensee that references this design certification so that its plant-specific DCD accurately reflects both generic changes to the generic DCD and plant-specific departures made under Section VIII. The term “plant-specific” would be used in paragraph X.A.2 and other sections of this appendix to distinguish between the generic DCD that would be incorporated by reference into this appendix, and the plant-specific DCD that the applicant would be required to submit under paragraph IV.A. The requirement to maintain changes to the generic DCD would be explicitly stated to ensure that these changes are not only reflected in the generic DCD, which would be maintained by the applicant for design certification, but also in the plant-specific DCD. Therefore, records of generic changes to the DCD would be required to be maintained by both entities to ensure that both entities have up-to-date DCDs.

Paragraph X.A.4.a would require the applicant to 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). This proposed 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 proposing new paragraph X.A.4.b that would require an applicant or licensee who references this appendix to 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). 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) will be met.

Paragraph X.A would not place recordkeeping requirements on site-specific information that is outside the scope of this rule. As discussed in paragraph IV.D of this document, the FSAR required by 10 CFR 52.79 would contain the plant-specific DCD and the site-specific information for a facility that references this rule. The phrase “site-specific portion of the final safety analysis report” in paragraph X.B.3.c would refer to the information that is contained in the FSAR for a facility (required by 10 CFR 52.79) but is not part of the plant-specific DCD (required by paragraph IV.A). Therefore, this rule would not require that duplicate documentation be maintained by an applicant or licensee that references this rule, because the plant-specific DCD would be part of the FSAR for the facility.

Paragraph X.B.1 would require applicants or licensees that reference this rule to submit reports, which describe departures from the DCD and include a summary of the written evaluations. The requirement for the written evaluations would be set forth in paragraph X.A.1. The frequency of the report submittals would be set forth in paragraph X.B.3. The requirement for submitting a summary of the evaluations would be similar to the requirement in 10 CFR 50.59(d)(2).

Paragraph X.B.2 would require applicants or licensees that reference this rule to submit updates to the DCD, which include both generic changes and plant-specific departures. The frequency for submitting updates would be set forth in paragraph X.B.3. The requirements in paragraph X.B.3 for submitting the reports and updates would vary according to certain time periods during a facility's lifetime. If a potential applicant for a COL who references this rule decides to depart from the generic DCD prior to submission of the application, then paragraph X.B.3.a would require that the updated DCD be submitted as part of the initial application for a license. Under paragraph X.B.3.b, the applicant may submit any subsequent updates to its plant-specific DCD along with its amendments to the application provided that the submittals are made at least once per year. Because amendments to an application are typically made more frequently than once a year, this should not be an excessive burden on the applicant.

Paragraph X.B.3.b would also require semi-annual submission of the reports required by paragraph X.B.1 throughout the period of application review and construction. The NRC would use the information in the reports to help plan the NRC's inspection and oversight during this phase, when the licensee is conducting detailed design, procurement of components and equipment, construction, and preoperational testing. In addition, the NRC would use the information in making its finding on ITAAC under 10 CFR 52.103(g), as well as any finding on interim operation under section 189.a.(1)(B)(iii) of the AEA. Once a facility begins operation (for a COL under 10 CFR part 52, after the Commission has made a finding under 10 CFR 52.103(g)), the frequency of reporting would be governed by the requirements in paragraph X.B.3.c.

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.

The NRC is making the documents identified below available to interested persons through one or more of the following methods, as indicated.

Public Document Room (PDR). The NRC PDR is located at 11555 Rockville Pike, Rockville, Maryland 20852, e-mail: pdr.resource@nrc.gov.

Regulations.gov (Web). These documents may be viewed and downloaded electronically through the Federal rulemaking Web site, http://www.regulations.gov, by searching under Docket ID NRC-2010-0135.

NRC's Electronic Reading Room (ERR). The NRC's public electronic reading room is located at http://www.nrc.gov/reading-rm.html.

This section contains instructions regarding how interested persons who wish to comment on the proposed design certification may request access to documents containing SUNSI (including proprietary information  4 ), and SGI, in order to prepare their comments. Requirements for access to SGI are primarily set forth in 10 CFR parts 2 and 73. This notice of proposed rulemaking provides information specific to this rulemaking; however, nothing in this notice is intended to conflict with the SGI regulations.

Interested persons who desire access to SUNSI information on the ESBWR design constituting proprietary information should first request access to that information from the design certification applicant. A request for access should be submitted to the NRC if the applicant does not either grant or deny access by the 10-day deadline described below.

Within 10 days after publication of this notice of proposed rulemaking, any individual or entity who, in order to submit comments on the proposed design certification, believes access to information in this rulemaking docket that the NRC has categorized as SUNSI or SGI is necessary may request access to this information. Requests for access to SUNSI or SGI submitted more than 10 days after publication of this notice will not be considered absent a showing of good cause for the late filing explaining why the request could not have been filed earlier.

The individual or entity requesting access to the information (hereinafter, the “requester”) shall submit a letter requesting permission to access SUNSI and/or SGI to the Office of the Secretary, U.S. Nuclear Regulatory Commission, Attention: Rulemakings and Adjudications Staff, Washington, DC 20555-0001. The expedited delivery or courier mail address is: Office of the Secretary, U.S. Nuclear Regulatory Commission, Attention: Rulemakings and Adjudications Staff, 11555 Rockville Pike, Rockville, Maryland 20852. The e-mail address for the Office of the Secretary is rulemaking.comments@nrc.gov. The requester must send a copy of the request to the design certification applicant at the same time as the original transmission to the NRC using the same method of transmission. Requests to the applicant must be sent to Rick E. Kingston, Vice President, ESBWR Licensing, GE-Hitachi Nuclear Energy, 3901 Castle Hayne Road, MC A65, Wilmington, NC 28401, e-mail: rick.kingston@ge.com. For purposes of complying with this requirement, a “request” includes all the information required to be submitted to the NRC as set forth in this section.

The request must include the following information:

1. The name of this design certification—ESBWR Design Certification, the rulemaking identification number RIN 3150-AI85, the rulemaking docket number NRC-2010-0135, and a citation to this Federal Register notice of proposed rulemaking at the top of the first page of the request;

2. The name, address, e-mail or FAX number of the requester. If the requester is an entity, the name of the individual(s) to whom access is to be provided, then the address and e-mail or FAX number for each individual, and a statement of the authority granted by the entity to each individual to review the information and to prepare comments on behalf of the entity must be provided. If the requester is relying upon another individual to evaluate the requested SUNSI and/or SGI and prepare comments, then the name, affiliation, address and e-mail or FAX number for that individual must be provided.

3.(a) If the request is for SUNSI, then the requester's need for the information in order to prepare meaningful comments on the proposed design certification must be demonstrated. Each of the following areas must be addressed with specificity:

(i) The specific issue or subject matter on which the requester wishes to comment;

(ii) An explanation why information which is publicly available, including the publicly available versions of the application and design control document, and information on the NRC's docket for the design certification application is insufficient to provide the basis for developing meaningful comment on the proposed design certification with respect to the issue or subject matter described in paragraph 3.(a)(i) above; and

(iii) Information demonstrating that the individual to whom access is to be provided has the technical competence (demonstrable knowledge, skill, experience, education, training, or certification) to understand and use (or evaluate) the requested information for a meaningful comment on the proposed design certification with respect to the issue or subject matter described in paragraph 3.(a)(i) above.

(b) If the request is for SUNSI constituting proprietary information, then a chronology and discussion of the requester's attempts to obtain the information from the design certification applicant, and the final communication from the requester to the applicant and the applicant's response with respect to the request for access to proprietary information must be submitted.

4.(a) If the request is for SGI, then the requester's “need to know” the SGI as required by 10 CFR 73.2 and 10 CFR 73.22(b)(1) must be demonstrated. Consistent with the definition of “need to know” as stated in 10 CFR 73.2 and 10 CFR 73.22(b)(1), each of the following areas must be addressed with specificity:

(i) The specific issue or subject matter on which the requester wishes to comment;

(ii) An explanation why information which is publicly available, including the publicly available versions of the application and design control document, and information on the NRC's docket for the design certification application is insufficient to provide the basis for developing meaningful comment on the proposed design certification with respect to the issue or subject matter described in paragraph 4.(a)(i) above, and that the SGI requested is indispensible in order to develop meaningful comments;  5 and

(iii) Information demonstrating that the individual to whom access is to be provided has the technical competence (demonstrable knowledge, skill, experience, education, training, or certification) to understand and use (or evaluate) the requested SGI, in order to develop meaningful comments on the proposed design certification with respect to the issue or subject matter described in Paragraph 4.(a)(i) above.

(b) A completed Form SF-85, “Questionnaire for Non-Sensitive Positions,” must be submitted for each individual who would have access to SGI. The completed Form SF-85 will be used by the NRC's Office of Administration to conduct the background check required for access to SGI, as required by 10 CFR part 2, subpart G, and 10 CFR 73.22(b)(2), to determine the requester's trustworthiness and reliability. For security reasons, Form SF-85 can only be submitted electronically through the electronic Questionnaire for Investigations Processing (e-QIP) Web site, a secure Web site that is owned and operated by the Office of Personnel Management. To obtain online access to the form, the requester should contact the NRC's Office of Administration at 301-492-3524. 6

(c) A completed Form FD-258 (fingerprint card), signed in original ink, and submitted under 10 CFR 73.57(d). Copies of Form FD-258 may be obtained by writing the Office of Information Services, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; by calling 301-415-7232 or 301-492-7311; or by e-mail: to Forms.Resource@nrc.gov. The fingerprint card will be used to satisfy the requirements of 10 CFR part 2, 10 CFR 73.22(b)(1), and Section 149 of the Atomic Energy Act (AEA) of 1954, as amended, which mandates that all persons with access to SGI must be fingerprinted for an Federal Bureau of Investigation identification and criminal history records check;

(d) A check or money order in the amount of $200.00  7 payable to the U.S. Nuclear Regulatory Commission for each individual for whom the request for access has been submitted; and

(e) If the requester or any individual who will have access to SGI believes they belong to one or more of the categories of individuals relieved from the criminal history records check and background check requirements, as stated in 10 CFR 73.59, the requester should also provide a statement specifically stating which relief the requester is invoking, and explaining the requester's basis (including supporting documentation) for believing that the relief is applicable. While processing the request, the NRC's Office of Administration, Personnel Security Branch, will make a final determination whether the stated relief applies. Alternatively, the requester may contact the Office of Administration for an evaluation of their status prior to submitting the request. Persons who are not subject to the background check are not required to complete the SF-85 or Form FD-258; however, all other requirements for access to SGI, including the need to know, are still applicable.

Copies of documents and materials required by paragraphs 4(b), (c), (d), and (e), as applicable, of this section of this notice of proposed rulemaking must be sent to the following address: Office of Administration, U.S. Nuclear Regulatory Commission, Personnel Security Branch, Mail Stop TWB-05 B32M, Washington, DC 20555-0012.

These documents and materials should not be included with the request letter to the Office of the Secretary, but the request letter should state that the forms and fees have been submitted as required above.

5. To avoid delays in processing requests for access to SGI, all forms should be reviewed for completeness and accuracy (including legibility) before submitting them to the NRC. The NRC will return incomplete or illegible packages to the sender without processing.

6. Based on an evaluation of the information submitted under paragraphs 3(a) and (b), or 4(a), (b), (c), and (e) above, as applicable, the NRC staff will determine within 10 days of receipt of the written access request whether the requester has established a legitimate need for SUNSI access or need to know the SGI requested.

7. For SUNSI access requests, if the NRC staff determines that the requester has established a legitimate need for access to SUNSI, the NRC staff will notify the requester in writing that access to SUNSI has been granted; provided, however, that if the SUNSI consists of proprietary information ( i.e., trade secrets or confidential or financial information), the NRC staff must first notify the applicant of the staff's determination to grant access to the requester not less than 10 days before informing the requester of the staff's decision. If the applicant wishes to challenge the NRC staff's determination, it must follow the procedures in paragraph 12 below. The NRC staff will not provide the requester access to disputed proprietary information to the requester until the procedures in paragraph 12 are completed.

The written notification to the requester will contain instructions on how the requester may obtain copies of the requested documents, and any other conditions that may apply to access to those documents. These conditions will include, but are not necessarily limited to, the signing of a protective order setting forth terms and conditions to prevent the unauthorized or inadvertent disclosure of SUNSI by each individual who will be granted access to SUNSI. Claims that the provisions of such a protective order have not been complied with may be filed by calling NRC's toll-free safety hotline at 800-695-7403. Please note: Calls to this number are not recorded between the hours of 7 a.m. to 5 p.m. Eastern Time. However, calls received outside these hours are answered by the NRC's Incident Response Operations Center on a recorded line. Claims may also be filed via e-mail sent to NRO_Allegations@nrc.gov, or may be sent in writing to the U.S. Nuclear Regulatory Commission, ATTN: N. Rivera-Feliciano, Mail Stop T7-D24, Washington, DC 20555-0001.

8. For requests for access to SGI, if the NRC staff determines that the requester has established a need to know the SGI, the NRC's Office of Administration will then determine, based upon completion of the background check, whether the proposed recipient is trustworthy and reliable, as required for access to SGI by 10 CFR 73.22(b). If the NRC's Office of Administration determines that the individual or individuals are trustworthy and reliable, the NRC will promptly notify the requester in writing. The notification will provide the names of approved individuals as well as the conditions under which the SGI will be provided. Those conditions will include, but are not necessarily limited to, the signing of a protective order by each individual who will be granted access to SGI. Claims that the provisions of such a protective order have not been complied with may be filed by calling NRC's toll-free safety hotline at 1-800-695-7403. Please note: Calls to this number are not recorded between the hours of 7 a.m. to 5 p.m. Eastern Time. However, calls received outside these hours are answered by the NRC's Incident Response Operations Center on a recorded line. Claims may also be filed via e-mail sent to NRO_Allegations@nrc.gov, or may be sent in writing to the U.S. Nuclear Regulatory Commission, ATTN: N. Rivera-Feliciano, Mail Stop T7-D24, Washington, DC 20555-0001. Because SGI requires special handling, initial filings with the NRC should be free from such specific information. If necessary, the NRC will arrange an appropriate setting for transmitting SGI to the NRC.

9. Release and Storage of SGI. Prior to providing SGI to the requester, the NRC staff will conduct (as necessary) an inspection to confirm that the recipient's information protection system is sufficient to satisfy the requirements of 10 CFR 73.22. Alternatively, recipients may opt to view SGI at an approved SGI storage location rather than establish their own SGI protection program to meet SGI protection requirements.

10. Filing of Comments on the Proposed Design Certification. Any comments in this rulemaking proceeding that are based upon the disclosed SUNSI or SGI information must be filed by the requester no later than 25 days after receipt of (or access to) that information, or the close of the public comment period, whichever is later. The commenter must comply with all NRC requirements regarding the submission of SUNSI and SGI to the NRC when submitting comments to the NRC (including marking and transmission requirements).

11. Review of Denials of Access.

(a) If the request for access to SUNSI or SGI is denied by the NRC staff, the NRC staff shall promptly notify the requester in writing, briefly stating the reason or reasons for the denial.

(b) Before the NRC's Office of Administration makes an adverse determination regarding the trustworthiness and reliability of the proposed recipient(s) of SGI, the NRC's Office of Administration, as specified by 10 CFR 2.705(c)(3)(iii), must provide the proposed recipient(s) any records that were considered in the trustworthiness and reliability determination, including those required to be provided under 10 CFR 73.57(e)(1), so that the proposed recipient is provided an opportunity to correct or explain information.

(c) Appeals from a denial of access must be made to the NRC's Executive Director for Operations (EDO) under 10 CFR 9.29. The decision of the EDO constitutes final agency action under 10 CFR 9.29(d).

12. Predisclosure Procedures for SUNSI Constituting Trade Secrets or Confidential Commercial or Financial Information. The NRC will follow the procedures in 10 CFR 9.28 if the NRC staff determines, under paragraph 7 above, that access to SUNSI constituting trade secrets or confidential commercial or financial information will be provided to the requester. However, any objection filed by the applicant under 10 CFR 9.28(b) must be filed within 15 days of the NRC staff notice in paragraph 7 above rather than the 30-day period provided for under that paragraph. In applying the provisions of 10 CFR 9.28, the applicant for the DCR will be treated as the “submitter.”

The Presidential memorandum “Plain Language in Government Writing” published on June 10, 1998 (63 FR 31883), directed that the Government's documents be in clear and accessible language. The NRC requests comments on the proposed rule specifically with respect to the clarity and effectiveness of the language used. Comments should be sent to the NRC as explained in the ADDRESSES heading of this document.

The National Technology and Transfer Act of 1995 (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 proposed rule, the NRC proposes to approve the ESBWR standard plant design for use in nuclear power plant licensing under 10 CFR part 50 or 52. Design certifications 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 are Commission approvals of specific nuclear power plant designs by rulemaking. Furthermore, design certifications 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 proposed rule.

The NRC has determined under NEPA, and the NRC'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 a proposed design certification rule, if adopted, would not be a major Federal action significantly affecting the quality of the human environment and, therefore, an environmental impact statement (EIS) is not required. The NRC's generic determination in this regard is reflected in 10 CFR 51.32(b)(1). The basis for the NRC's categorical exclusion in this regard, as discussed in the 2007 final rule amending 10 CFR parts 51 and 52 (August 28, 2007; 72 FR 49352-49566), is based upon the following considerations. A design certification rule does not authorize the siting, construction, or operation of a facility referencing any particular using design; it would only codify the ESBWR 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 any particular design certification rule.

In addition, consistent with 10 CFR 51.30(d) and 10 CFR 51.32(b), the NRC has prepared a draft EA for the ESBWR design addressing various design alternatives to prevent and mitigate severe accidents. The EA is based, in part, upon the NRC's review of GEH's evaluation of various design alternatives to prevent and mitigate severe accidents in NEDO-33306, Revision 4, “ESBWR Severe Accident Mitigation Design Alternatives.” Based upon review of GEH's evaluation, the Commission concludes that: (1) GEH identified a reasonably complete set of potential design alternatives to prevent and mitigate severe accidents for the ESBWR design; (2) none of the potential design alternatives are justified on the basis of cost-benefit considerations; and (3) it is unlikely that other design changes would be identified and justified during the term of the design certification on the basis of cost-benefit considerations, because the estimated core damage frequencies for the ESBWR are very low on an absolute scale. These issues are considered resolved for the ESBWR design.

The Commission is requesting comment on the draft EA. As provided in 10 CFR 51.31(b), comments on the draft EA will be limited to the consideration of SAMDAs as required by 10 CFR 51.30(d). The Commission will prepare a final EA following the close of the comment period for the proposed standard design certification. If a final rule is issued, all environmental issues concerning SAMDAs associated with the information in the final EA and NEDO-33306 will be considered resolved for facility applications referencing the ESBWR design if the site characteristics at the site proposed in the facility application fall within the site parameters specified in NEDO-33306.

The draft EA, upon which the Commission's finding of no significant impact is based, and the ESBWR DCD are available for examination and copying at the NRC's Public Document Room, One White Flint North, Room O-1 F21, 11555 Rockville Pike, Rockville, Maryland 20852.

This proposed 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. ). This rule has been submitted to the Office of Management and Budget (OMB) for approval of the information collection requirements.

Type of submission, new or revision: Revision.

The title of the information collection: Appendix E to 10 CFR Part 52, ESBWR Design Certification, Proposed Rule.

Current OMB Approval Number: 3150-0151.

The form number if applicable: Not applicable.

How often the collection is required: Semi-annually.

Who will be required or asked to report: Applicant for a combined license or a design certification amendment.

An estimate of the number of annual responses: 3 (1 response plus 2 recordkeepers).

The estimated number of annual respondents: 2.

An estimate of the total number of hours needed annually to complete the requirement or request: Approximately 45 additional burden hours (5 hours reporting plus 40 hours recordkeeping).

Abstract: The NRC proposes to amend its regulations to certify the ESBWR standard plant design under Subpart B of 10 CFR part 52. This action is necessary so that applicants or licensees intending to construct and operate an ESBWR design may do so by referencing this DCR. The applicant for certification of the ESBWR design is GE-Hitachi Nuclear Energy.

The NRC is seeking public comment on the potential impact of the information collections contained in this proposed rule and on the following issues:

1. Is the proposed information collection necessary for the proper performance of the functions of the NRC, including whether the information will have practical utility?

2. Is the estimate of burden accurate?

3. Is there a way to enhance the quality, utility, and clarity of the information to be collected?

4. How can the burden of the information collection be minimized, including the use of automated collection techniques?

A copy of the OMB clearance package may be viewed free of charge at the NRC's Public Document Room, One White Flint North, 11555 Rockville Pike, Room O-1 F21, Rockville, MD 20852. The OMB clearance package and rule are available at the NRC Web site: http://www.nrc.gov/public-involve/doc-comment/omb/index.html for 60 days after the signature date of this notice.

Send comments on any aspect of these proposed information collections, including suggestions for reducing the burden and on the above issues, by April 25, 2011 to the Records and FOIA/Privacy Services Branch (T-5 F52), U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, or by e-mail to INFOCOLLECTS.RESOURCE@NRC.GOV; and to the Desk Officer, Office of Information and Regulatory Affairs, NEOB-10202, (3150-0151), Office of Management and Budget, Washington, DC 20503. Comments on the proposed information collections may also be submitted via the Federal rulemaking Web site, http://www.regulations.gov, Docket ID NRC-2010-0135. Comments received after this date will be considered if it is practical to do so, but assurance of consideration cannot be given to comments received after this date.

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.

The NRC has not prepared a regulatory analysis for this proposed rule. The NRC prepares regulatory analyses for rulemakings that establish generic regulatory requirements applicable to all licensees. Design certifications are not generic rulemakings in the sense that design certifications do not establish standards or requirements with which all licensees must comply. Rather, design certifications 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, 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.

Under the Regulatory Flexibility Act (5 U.S.C. 605(b)), the Commission certifies that this rule would not, if promulgated, have a significant economic impact on a substantial number of small entities. This proposed rule provides for certification of a nuclear power plant design. Neither the design certification applicant, nor prospective nuclear power plant licensees who reference this design certification rule, fall within the scope of the definition of “small entities” set forth in the Regulatory Flexibility Act, or the size standards set established by the NRC (10 CFR 2.810). Thus, this rule does not fall within the purview of the Regulatory Flexibility Act.

The Commission has determined that this proposed rule does not constitute a backfit as defined in the backfit rule (10 CFR 50.109) because this design certification 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 to 10 CFR part 52. Therefore, a backfit analysis was not prepared for this rule.

For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, as amended; and 5 U.S.C. 553; the NRC is proposing to adopt the following amendments to 10 CFR part 52.

A. Discussion

NCUA proposes to amend its regulations to require Federally insured credit unions (FICUs) to have a written policy and an effective program addressing interest rate risk (IRR) as part of their asset liability management (ALM). NCUA believes FICUs need a written policy to explicitly state the credit union's IRR tolerance. An effective IRR program that identifies, measures, monitors, and controls IRR is an essential component of safe and sound credit union operations. In the past, NCUA issued guidance on ALM and IRR management in Letters to Credit Unions and believes FICUs generally are managing IRR adequately. 1 NCUA's IRR questionnaire is also available at the following location http://www.ncua.gov/Resources/ALManagementInvest/Review Procedures.aspx. However, IRR has risen at credit unions due to changes in balance sheet compositions and increased uncertainty in the financial markets. The Board therefore believes it is appropriate to create a regulatory requirement addressing the policy and practice of interest rate risk management at FICUs supported by clear and comprehensive guidance. The Board believes the proposed regulatory requirement and guidance will assist FICUs in understanding and meeting NCUA's expectations regarding IRR policy and implementing an effective program. NCUA anticipates that it would set a compliance date of three months after the rule becomes effective.

The term “interest rate risk” refers to the vulnerability of a credit union's financial condition to adverse movements in market interest rates. Although some IRR is a normal part of financial intermediation, IRR may negatively affect a credit union's earnings, or net economic value, which is the difference between the market value of assets and the market value of liabilities. Changes in interest rates influence a credit union's earnings by altering interest-sensitive income and expenses ( e.g. loan income and share dividends). Changes in interest rates also affect the economic value of a credit union's assets and liabilities, because the present value of future cash flows and, in some cases, the cash flows themselves may change when interest rates change. 2

An effective IRR program allows a credit union to serve member needs without incurring unreasonable levels of risk and make informed decisions about balance sheet composition, growth and product mix, while remaining within its defined tolerance level. An IRR program enables credit unions to meet their liquidity needs and implement flexible pricing strategies in response to changes in market interest rates while maintaining adequate earnings and net economic value.

NCUA recognizes it is impossible to establish specific, regulatory requirements for IRR that would be appropriate for all FICUs. IRR management involves judgment by a FICU based on its own individual mission, structure, and circumstances. Any rule must take into account the diversity of FICUs and avoid a one-size-fits-all approach. Accordingly, FICUs should devise a policy and risk management program appropriate to their own situation.

The guidance in the Appendix does not identify specific metrics because NCUA recognizes IRR programs will differ among credit unions. There are, nevertheless, fundamental elements applicable to all credit unions, as explained in the appendix. Developing a sound IRR program is the responsibility of the board of directors, involving all relevant phases of operation, and NCUA believes the proposed guidance provides a helpful framework for directors. NCUA is presenting guidance in the form of an appendix to the rule to assist FICUs in establishing a written policy and effective program as part of asset liability management.

Section 741.3 generally addresses the criteria NCUA will consider in determining and continuing the insurability of a credit union and paragraph (b) lists various factors and requirements for a credit union's financial condition and its policies. Currently, § 741.3(b) includes requirements, among others, of written lending and investment policies, 12 CFR 741.3(b)(2) and (3), and, therefore, placement of the proposed amendment within this provision is appropriate. The Board proposes to amend § 741.3(b) to add the requirement of a written policy on IRR and an effective program. This is an additional factor to be considered in determining whether a credit union's financial condition and policies are safe and sound. 12 CFR 741.3(b).

The Regulatory Flexibility Act requires NCUA to prepare an analysis to describe any significant economic impact a rule may have on a substantial number of small entities, those credit unions with less than ten million dollars in assets. The proposed rule does not apply to credit unions with less than ten million dollars in assets. Accordingly, the Board determines that this proposed rule will not have a significant economic impact on a substantial number of small credit unions and that a Regulatory Flexibility Analysis is not required.

The Paperwork Reduction Act of 1995 (PRA) applies to rulemakings in which an agency by rule creates a new paperwork burden on regulated entities or modifies an existing burden. 44 U.S.C. 3507(d). For purposes of the PRA, a paperwork burden may take the form of a either a reporting or a recordkeeping requirement, both referred to as information collections. NCUA has determined that the requirement to have a written interest rate policy creates a new information collection requirement. NCUA is applying to the Office of Management and Budget (OMB) for approval of the proposed information collection requirement.

As required by the PRA, NCUA is submitting a copy of this proposed regulation to the OMB for its review and approval. Persons interested in submitting comments with respect to the information collection aspects of the proposed rule should submit them to the OMB at the address noted below.

The proposed rule would require a written interest rate policy and would apply to all Federally insured credit unions (FICUs) as follows. FICUs with assets over $50 million must meet the requirement for a written policy. FICUs with assets $10 million or over and less than or equal to $50 million must meet the requirement for a written policy if the total of first mortgage loans held plus total investments with maturities greater than five years is equal to or greater than 100% of its net worth. FICUs with assets $10 million or over and less than or equal to $50 million are not required to have a written policy if the total of first mortgage loans held plus total investments with maturities greater than five years is less than 100% of its net worth. FICUs less than $10 million in assets are not required by the rule to have a written policy even if the total of first mortgage loans held plus total investments with maturities greater than five years is greater than 100% of its net worth.

A FICU is considered to hold a first mortgage loan for its own portfolio when it has not demonstrated the intent and ability to sell the loan to an independent third party within 120 days. Investments with maturities greater than five years are defined as those reported by the FICU to have maturities of 5-10 years and greater than 10 years in the statement of financial condition of its most recent call report.

For example, Credit Union A has assets of $51 million. The percentage of first mortgage loans held by Credit Union A plus its investments with maturities greater than five years is 75% of its net worth. It is required by the rule to have a written interest rate policy because of its asset size. Credit Union B has $45 million in assets. The percentage of first mortgage loans held by Credit Union B plus its investments with maturities greater than five years is 75% of its net worth. Credit Union B is therefore not required by the rule to have a written interest rate policy since this percentage is less that 100%. Credit Union C has assets of $10 million and the percentage of first mortgage loans held by Credit Union C plus its investments with maturities greater than five years is 125% of its net worth. It is required to have a written interest rate policy because it has assets $10 million or over and less than or equal to $50 million, and the percentage of first mortgage loans held by Credit Union C plus its investments with maturities greater than five years is greater than 100% of its net worth. Credit Union D has assets of $9 million and the percentage of first mortgage loans held by Credit Union D plus its investments with maturities greater than five years is 125% of its net worth. Credit Union D is not required by the rule to have a written interest rate policy because its asset size is below $10 million, even though the percentage of first mortgage loans held by Credit Union D plus its investments with maturities greater than five years is greater than 100% its net worth.

As of December 31, 2010, there were 7339 FICUs, of which 3184 had assets over $50 million, or had assets $10 million or over and less than or equal to $50 million, and total first mortgage loans plus total investments with maturities greater than five years were equal to or greater than 100% of net worth. NCUA estimates, however, that approximately 75% of these credit unions already have interest rate risk policies in place as part of their lending and asset management policies. Therefore, they will not have to undertake any significant additional burden as a result of this rulemaking. NCUA estimates that those credit unions with existing policies will only need to undertake a review of those policies to determine if they are in line with the guidance accompanying this rule change. While minor adjustments to existing policies may be appropriate, NCUA estimates that approximately only 25% of the credit unions will need to prepare a written policy. Therefore, NCUA estimates that approximately 800 credit unions will need to develop a written interest rate risk policy to meet the requirement for a written policy; NCUA notes that periodic review of the policy, while included as part of the guidance, may require no additional paperwork burden or engender very limited additional paperwork.

The proposed rule requiring a written interest rate risk policy is accompanied by guidance on how to establish this policy and the guidance essentially provides a template or list of the eight points the written policy should address. As provided in the guidance, the points to be covered are:

• Identify committees, persons or other parties responsible for review of the credit union's IRR exposure;

• Direct appropriate actions to ensure management takes steps to manage IRR so that IRR exposures are identified, measured, monitored, and controlled;

• State the frequency with which management will report on measurement results to the board to ensure routine review of information that is timely ( e.g. current and at least quarterly) and in sufficient detail to assess the credit union's IRR profile;

• Set risk limits for IRR exposures based on selected measures ( e.g. limits for changes in repricing or duration gaps, income simulation, asset valuation, or net economic value);

• Choose tests, such as interest rate shocks, that the credit union will perform using the selected measures;

• Provide for periodic review of material changes in IRR exposures and compliance with board approved policy and risk limits;

• Provide for assessment of the IRR impact of any new business activities prior to implementation ( e.g. evaluate the IRR profile of introducing a new product or service) ; and

• Provide for annual evaluation of policy to determine whether it is still commensurate with the size, complexity, and risk profile of the credit union.

The actual length of a policy may vary significantly depending on the complexity of the credit union's activities. For example, a credit union that offers basic share accounts, only short-term loans, i.e., no mortgage loans, and makes relatively simple investments should be able to establish a written policy in one to two hours. The policy could establish maturity limits for loans, establish the minimum amount of short-term funds, and basically restrict the types of permissible investments ( e.g. Treasuries). More complex balance sheets, especially those containing mortgage loans and complex investments, may warrant a comprehensive IRR policy due to the uncertainty of cash flows.

While the burden will vary depending on the complexity of credit union activities, for purposes of providing an estimated average, NCUA estimates each of the eight segments of policy will have a burden of an equal weight of two hours. The maximum time for all segments of the policy is therefore sixteen hours. NCUA estimates the burden associated with this collection as follows: 800 × 16 hours = 12,800 hours.

Organizations and individuals that wish to submit comments on this information collection requirement should direct them to the Office of Information and Regulatory Affairs, OMB, Attn: Shagufta Ahmed, Room 10226, New Executive Office Building, Washington, DC 20503, with a copy to Mary Rupp, Secretary of the Board, National Credit Union Administration, 1775 Duke Street, Alexandria, Virginia 22314-3428.

The NCUA considers comments by the public on this proposed collection of information in:

• Evaluating whether the proposed collection of information is necessary for the proper performance of the functions of the NCUA, including whether the information will have a practical use;

• Evaluating the accuracy of the NCUA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;

• Enhancing the quality, usefulness, and clarity of the information to be collected; and

• Minimizing the burden of collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology; e.g., permitting electronic submission of responses.

The Paperwork Reduction Act requires OMB to make a decision concerning the collection of information contained in the proposed regulation between 30 and 60 days after publication of this document in the Federal Register . Therefore, a comment to OMB is best assured of having its full effect if OMB receives it within 30 days of publication. This does not affect the deadline for the public to comment to the NCUA on the proposed regulation.

Executive Order 13132 encourages independent regulatory agencies to consider the impact of their actions on State and local interests. In adherence to fundamental federalism principles, NCUA, an independent regulatory agency as defined in 44 U.S.C. 3502(5), voluntarily complies with the executive order. This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. NCUA has determined that this rule does not constitute a policy that has federalism implications for purposes of the executive order.

The NCUA has determined that this rule will not affect family well-being within the meaning of the Treasury and General Government Appropriations Act, 1999, Public Law 105-277, 112 Stat. 2681 (1998).

NCUA's goal is to promulgate clear and understandable regulations that impose minimal regulatory burden. We request your comments on whether the proposed rule is understandable and minimally intrusive.

For the reasons set forth above, NCUA proposes to amend 12 CFR part 741 as follows:

Comments Invited

We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2011-0258; Directorate Identifier 2010-NM-191-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments.

We will post all comments we receive, without change, to http://www.regulations.gov , including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD.

The Model 737 airplanes cabin altitude warning is an intermittent horn that sounds when cabin altitude exceeds 10,000 feet. The same intermittent warning horn sound is used by the takeoff configuration warning system (TCWS) to warn of an unsafe airplane configuration for takeoff. The TCWS warning functionality is inhibited by air/ground logic when the airplane is in flight. However, the Model 737 airplane's cabin altitude warning system design does not currently incorporate a dedicated means of positively identifying the warning horn as a cabin altitude warning or a takeoff configuration warning. There are approximately 25 known instances where flightcrews misinterpreted a valid cabin altitude warning as a takeoff configuration warning.

Failure of the flightcrew to recognize and react to a valid cabin altitude warning horn could result in incapacitation of the flightcrew due to hypoxia (lack of oxygen in the body), and consequent loss of control of the airplane. To address this unsafe condition, we issued the following ADs.

On July 7, 2003, we issued related AD 2003-14-08, Amendment 39-13227 (68 FR 41519, July 14, 2003). That AD applies to all Boeing Model 737-600, 737-700, 737-700C, 737-800, 737-900, 757, and 767 series airplanes. That AD requires revising the airplane flight manual (AFM) to advise the flightcrew to don oxygen masks as a first and immediate step when a cabin altitude warning occurs.

On June 15, 2006, we issued related AD 2006-13-13, Amendment 39-14666 (71 FR 35781, June 22, 2006). (A correction of that AD was published in the Federal Register on July 3, 2006 (71 FR 37980).) That AD applies to all Model 737 airplanes. That AD requires revising the AFM to advise the flightcrew of improved procedures for pre-flight setup of the cabin pressurization system, as well as improved procedures for interpreting and responding to the cabin altitude/configuration warning horn. That AD resulted from reports that airplanes had failed to pressurize, and that the flightcrews failed to react properly to the cabin altitude warning horn.

On October 24, 2008, we issued related AD 2008-23-07, Amendment 39-15728 (73 FR 66512, November 10, 2008), for all Model 737 airplanes. That AD requires revising the AFM to include a new flightcrew briefing that must be done before the first flight of the day and following any change in flightcrew members, and to advise the flightcrew of this additional briefing. That AD resulted from continuing reports that flightcrews have failed to recognize and react properly to the cabin altitude warning horn.

The preambles to AD 2006-13-13 and AD 2008-23-07 explain that the revisions to the AFM required by those ADs are considered to be interim action. The manufacturer had advised us that it was developing a design change in the cabin altitude warning system that would address the identified unsafe condition(s), and that once this design change was developed, approved, and available, the FAA might consider additional rulemaking. The manufacturer now has developed such a modification, and we have determined that further rulemaking is necessary; this proposed AD follows from that determination. We can better ensure long-term continued operational safety by modifications or design changes to remove the source of the problem, rather than by AFM revisions alone.

We reviewed Boeing Alert Service Bulletin 737-31A1332, Revision 1, dated June 24, 2010. The service information describes procedures for installing two warning level indicator lights on each of the P1-3 and P3-1 instrument panels in the flight compartment. The installation includes installing a new circuit breaker and changing certain wire bundles.

We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

This proposed AD would require accomplishing the actions specified in the service information described previously, except as discussed under “Difference Between the Proposed AD and the Service Information.” The proposed AD would also require revising the Limitations Section of the AFM to remove certain requirements of previous AD actions, and to advise the flightcrew of the following changes: Revised non-normal procedures to use when a cabin altitude warning or rapid depressurization occurs, and revised cabin pressurization procedures for normal operations.

The effectivity in Boeing Alert Service Bulletin 737-31A1332, Revision 1, dated June 24, 2010, identifies Model 737-600, -700, -700C, -800, -900, and -900ER series airplanes; however, it does not include all applicable serial numbers for airplanes that are subject to the identified unsafe condition. The actions for Group 1 airplanes, as specified in this service bulletin, must be done on additional airplanes, as identified in the applicability of this proposed AD.

Groups 8 through 21 airplanes are also included in the effectivity of the service bulletin; however, the actions required by this proposed AD would affect only Groups 1 through 7 airplanes. Therefore, concurrent actions, which specify installing a new P5-16 cabin altitude and rate of climb panel and cabin altitude and differential pressure indicator, would not be required by this proposed AD.

We estimate that this proposed AD would affect 650 airplanes of U.S. registry. The following table provides the estimated costs for U.S. operators to comply with this proposed AD.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify this proposed regulation:

(1) Is not a “significant regulatory action” under Executive Order 12866,

(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),

(3) Will not affect intrastate aviation in Alaska, and

(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

Comments Invited

We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2011-0257; Directorate Identifier 2010-NM-122-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD based on those comments.

We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD.

On September 21, 2007, we issued AD 2007-20-05, Amendment 39-15215 (72 FR 56262, October 3, 2007). That AD required operators of Airbus Model A318, A319, A320, and A321 series airplanes to revise the Airworthiness Limitations Section (ALS) of the Instructions for Continued Airworthiness to incorporate Sub-part 1-2, “Life Limits,” and Sub-part 1-3, “Demonstrated Fatigue Lives,” of Airbus A318/A319/A320/A321 ALS Part 1—Safe Life Airworthiness Limitation Items, dated February 28, 2006, and for certain airplanes, Airbus A318/A319/A320/A321 Airworthiness Limitation Items, Document AI/SE-M4/95A.0252/96, Issue 7, dated December 2005; Issue 08, dated March 2006; or Issue 09, dated November 2006. These actions were intended to address an unsafe condition on the products listed above.

Since we issued AD 2007-20-05, we have determined that more restrictive limitations are necessary. We have also added Model A318-121 and -122 airplanes to the applicability. The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA Airworthiness Directive 2010-0071R1, dated May 28, 2010 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

You may obtain further information by examining the MCAI in the AD docket.

Airbus has issued A318/A319/A320/A321 Airworthiness Limitation Items, Document AI/SE-M4/95A.0252/96, Issue 10, dated October 2009; and A319 Corporate Jet Airworthiness Limitation Items, Document reference AI/SE-M2/95A.1038/99, Issue 02, dated March 2009. A319 Corporate Jet Airworthiness Limitation Items, Document AI/SE-M2/95A.1038/99, Issue 02, dated March 2009, states that the limitations for the Model A319 corporate jets are specified in Airbus A318/A319/A320/A321 Airworthiness Limitation Items, Document AI/SE-M4/95A.0252/96, Issue 10, dated October 2009. The actions described in this service information are intended to correct the unsafe condition identified in the MCAI.

This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.

We have reviewed the MCAI and related service information and, in general, agree with their substance. But we might have found it necessary to use different words from those in the MCAI to ensure the AD is clear for U.S. operators and is enforceable. In making these changes, we do not intend to differ substantively from the information provided in the MCAI and related service information.

We might also have proposed different actions in this AD from those in the MCAI in order to follow FAA policies. Any such differences are highlighted in a NOTE within the proposed AD.

Based on the service information, we estimate that this proposed AD would affect about 729 products of U.S. registry.

The actions that are required by AD 2007-20-05 and retained in this proposed AD take about 1 work-hour per product, at an average labor rate of $85 per work hour. Based on these figures, the estimated cost of the currently required actions is $85 per product.

We estimate that it would take about 1 work-hour per product to comply with the new basic requirements of this proposed AD. The average labor rate is $85 per work-hour. Based on these figures, we estimate the cost of the proposed AD on U.S. operators to be $61,965, or $85 per product.

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed above, I certify this proposed regulation:

(1) Is not a “significant regulatory action” under Executive Order 12866,

(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),

(3) Will not affect intrastate aviation in Alaska, and

(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

On July 21, 2010, President Obama signed the Dodd-Frank Act. 2 Title VII of the Dodd-Frank Act  3 amended the Commodity Exchange Act (CEA)  4 to establish a comprehensive regulatory framework to reduce risk, increase transparency, and promote market integrity within the financial system. Section 725(c) of the Dodd-Frank Act amended Section 5b(c)(2) of the CEA, which sets forth core principles with which a DCO must comply to be registered and to maintain registration as a DCO. 5

On December 16, 2010, the Commission approved for publication in the Federal Register proposed regulations which, among other things, would implement DCO Core Principle D (Risk Management) and would establish a related reporting requirement under Core Principle J (Reporting). More specifically, the Commission proposed § 39.13(g)(8)(i) to establish customer “gross margin” requirements, and proposed § 39.19(c)(1)(iv) to establish related daily reporting requirements. The proposed regulations were published for comment in the January 20, 2011 issue of the Federal Register . 6

The Federal Register preamble explained that proposed § 39.13(g)(8)(i) would require a DCO to collect initial margin on a gross basis for each clearing member's customer account equal to the sum of the initial margin amounts that would be required by the DCO for each individual customer within that account if each individual customer were a clearing member. A DCO would not be permitted to net positions of different customers against one another, but it could collect initial margin for its clearing members' house accounts on a net basis. 7

Related to this customer gross margin requirement, the preamble further explained as follows, that proposed § 39.19(c)(1)(iv) would require DCOs to report end-of-day positions for each clearing member, by customer origin and house origin, and for customer origin, separately, the gross positions of each beneficial owner:

It has come to the attention of the Commission that there was an omission in the Federal Register publication of the proposed rule text setting forth the requirement for end-of-day reporting of customer positions by the gross positions of each beneficial owner. The text of proposed § 39.19(c)(1)(iv), which read “End-of-day positions for each clearing member, by customer origin and house origin” should have read, “End-of-day positions for each clearing member, by customer origin and house origin; and for customer origin, separately, the gross positions of each beneficial owner.”

In order to provide an adequate opportunity for comment on this reporting requirement, the Commission has determined to extend the comment period for proposed § 39.19(c)(1)(iv), as corrected elsewhere in this issue of the Federal Register , until April 25, 2011.

The Postal Service is proposing to provide a new option for mailers to combine Standard Mail flats and Periodicals flats, when bundled and placed on pallets. Mailers using this option may combine different-class mailpieces within the same bundle (comail), or combine separate same-class bundles (of different classes) on the same pallet (copalletize) to maximize presorting or to qualify for deeper destination entry discounts. All mailpieces prepared under this option will be required to be bundled and placed on pallets. Combining mailings enhances operational efficiencies within postal processing by allowing mailers to place mailpieces in bundles on pallets that might have been placed in sacks if prepared separately.

The Postal Service originally provided notice of this new option on February 28, 2011, through a final rule, Federal Register notice (10757-10761). In consideration of concerns expressed by members of the mailing community, the Postal Service has elected to publish this proposed rule in lieu of the February 28, 2011 final rule. Interested individuals are encouraged to provide comments as provided above.

This new option will not change current DMM content and eligibility standards applicable to Periodicals and Standard Mail. Mailers using this option will continue to be required to meet the minimum volume standards for Standard Mail of 200 pieces or 50 pounds. Periodicals publications must be authorized or have a pending authorization to mail at Periodicals prices. The current processes that identify and isolate Periodicals origin mixed area distribution center (OMX) mailpieces, for integration into the First-Class Mail® mailstream, will not be available when combining Standard Mail flats and Periodicals flats on pallets. All mailpieces included in a combined mailing of Standard Mail and Periodicals flats on pallets must be machinable in accordance with DMM 301.3.0.

Mailers wishing to combine Standard Mail and Periodicals flats under this option will be required to submit a request for authorization, in writing, to the Manager, Business Mailer Support ( see DMM 608.8.1 for contact information).

All mailpieces included in a combined mailing of Periodicals flats and Standard Mail flats will be required to meet the standards for a full-service automation mailing. Intelligent Mail® barcodes placed on mailpieces prepared under this program will be required to include Service Type Identifiers appropriate for the class of mail of the individual mailpiece.

Participating mailers will be required to present standardized electronic mailing documentation for each combined mailing, and at the time of mailing, the following additional documentation:

• An edition or version summary for all pieces in the mailing.

• A consolidated postage statement register and postage statement for each Periodicals publication in the combined mailing.

• A consolidated postage statement register and postage statement for each Standard Mail mailing in the combined mailing. Mailers may provide a single consolidated postage statement and postage statement register of all Standard Mail mailings if they are itemized.

• A register of Forms 8125, Plant Verified Drop Shipment (PVDS) Verification and Clearance, (PS 8125C) that consolidates all of the mailings to the destinations where the mail is entered.

When using this option, postage on all Standard Mail pieces must be paid through a permit imprint using a special postage payment system at the Post Office TM serving the mailer.

Postage for Periodicals may be paid through an advance deposit account or through a Centralized Account Payment System (CAPS) account. Participating mailers will be required to apportion the Periodicals bundle charge based on the number of Periodicals copies in the bundles and container charge based on the weight of the Periodicals portion of the container.

Mailers combining Standard Mail flats and Periodicals flats will not have the option to form ADC pallets or to dropship to ADCs. As a result, Periodicals publications included in combined mailings will not have access to DADC prices. Other specific prices for Periodicals flats in a combined mailing will be assessed as follows:

• The bundle prices applicable to the ADC container level will be applied to the ASF/NDC container level.

• The container prices applicable to the ADC pallet level will apply to the ASF/NDC pallet level.

• The bundle price applicable to the ADC bundle placed on the ADC container level will apply to mixed ADC bundles placed on mixed NDC pallets.

• The container price applicable to the ADC pallet level will also apply to the mixed NDC pallet level.

Standard Mail flats and Periodicals flats combined on pallets will be processed as Standard Mail; and the Periodicals mailpieces included within these combined mailings may receive deferred handling. Periodicals mailpieces included within mailings of combined Standard Mail flats and Periodicals flats will be subject to the USPS service standards applicable to Standard Mail. These mailings must also be identified as Standard Mail when scheduling dropship appointments in the Facility Access and Shipment (FAST®) system.

Mailers combining Standard Mail flats and Periodicals flats on pallets must populate field 10, “ Product or Publication Title or Names, ” of PS Form 8125 and/or field 11b, “ Product Name/ID, ” of PS Form 8125C with “MIX COMAIL” when preparing dropship documentation for these mailings.

Any mixed NDC pallets prepared under this program will be required to be entered at the NDC servicing the 3-digit ZIP Code TM of the entry Post Office for the mailer's plant. Mailers combining Standard Mail flats and Periodicals flats on pallets may reallocate bundles under DMM 705.8.11 and 705.8.13.

Each Standard Mail and Periodicals mailpiece prepared under a combined mailing of Standard Mail flats and Periodicals flats will be required to be identified as containing mixed classes through the use of an optional endorsement line (OEL) in accordance with the proposed standards.

Mailers preparing combined mailings of Standard Mail flats and Periodicals flats will be required to provide a written notification to each participating Periodicals publisher that describes the combined mailing process and the potential for pieces to receive deferred USPS handling. These notifications, signed and dated by the Periodicals publisher, will be required to be retained by the mailer and must be available for review by the USPS upon request.

Although we are exempt from the notice and comment requirements of the Administrative Procedure Act [5 U.S.C. 553(b), (c)] regarding proposed rulemaking by 39 U.S.C. 410(a), we invite public comment on the following proposed revisions to Mailing Standards of the United States Postal Service, Domestic Mail Manual (DMM), incorporated by reference in the Code of Federal Regulations. See 39 CFR 111.1.

The Postal Service also proposes to amend 39 CFR 121.2 by adding a new item c to describe the USPS processing of Periodicals mailpieces included in combined mailings of Standard Mail flats and Periodicals flats, and specifying that Periodicals mailpieces included in these mailings will be assigned the service standards applicable to Standard Mail pieces.

Accordingly, 39 CFR part 111 is proposed to be amended as follows:

On April 14, 2009, the State of South Carolina, through SC DHEC, submitted a revision to the South Carolina SIP, which consists of changes to the South Carolina Air Pollution Control Regulations and Standards (hereafter referred to as “South Carolina Regulations”). Specifically, the proposed SIP revision includes changes to South Carolina Regulation 61-62.5, Standard No. 7.1 entitled “Nonattainment New Source Review.” SC DHEC submitted this SIP revision in response to EPA's June 2, 2008 (73 FR 31368), rule which conditionally approved South Carolina's NNSR program.

South Carolina's April 14, 2009, SIP revision also includes the removal of provisions which existed in South Carolina regulations that relate to requirements that were vacated from the Federal program by the United States Court of Appeals for the District of Columbia Circuit (DC Circuit Court) on June 24, 2005. The provisions vacated from the Federal rules pertain to pollution control projects (PCPs) and clean units (CUs). Since these provisions were not approved into South Carolina's SIP, no action is required by EPA. 1 As a result of the removal of the CU and PCP provisions, the SIP revision also includes minor administrative reference changes at Regulation 61-62.5, Standard No. 7—Prevention of Significant Deterioration (PSD) and Standard No. 7.1 Nonattainment New Source Review which are now being proposed for inclusion in the SIP.

In addition to changes to address the conditional approval of South Carolina's NNSR program and the aforementioned administrative changes, South Carolina's April 14, 2009, SIP revision also includes provisions in Regulation 61-62.5, Standards No. 7 and 7.1 to exclude facilities that produce ethanol through a natural fermentation process (hereafter referred to as the “Ethanol Rule”) from the definition of “chemical process plants” in the major NSR permitting program. See 72 FR 24060 (May 1, 2007). At this time, EPA is not proposing to take action on South Carolina's changes to its NSR program to incorporate the provisions of the Ethanol Rule.

South Carolina Regulation 61-62.5, Standard No. 7.1 was submitted to EPA by SC DHEC on July 1, 2005, for inclusion in the South Carolina SIP. This regulation relates to the South Carolina's NNSR permit program. Revisions to Regulation 61-62.5, Standard No. 7.1 became State-effective on June 24, 2005. EPA proposed to conditionally approve South Carolina's NNSR rules on September 12, 2007 (72 FR 52031). EPA did not receive any comments on the proposal. EPA finalized its conditional approval of Regulation 61-62.5, Standards No. 7.1 into the South Carolina SIP on June 2, 2008 (73 FR 31368). As part of the conditional approval, South Carolina had twelve months from the June 2, 2008, final conditional approval to submit changes to its NNSR program as described herein to be consistent with EPA Federal regulations.

On April 14, 2009, SC DHEC submitted a revision to the SIP, incorporating the corrections required by EPA in the conditional approval. Specifically, South Carolina revised Regulation 61-62.5, Standard No. 7.1 to include a methodology for calculating emission reductions to be used as offsets that include a baseline for determining credit for emissions offsets that meet the requirements set out in 40 CFR 51.165(a)(3)(i) and Appendix S, section IV.C. This particular issue was highlighted as a basis for the conditional approval in the June 2, 2008 Federal Register . See 73 FR 31369-31370. The emission offsets provisions also specify that the reductions must be surplus and cannot be used for offsets if they are otherwise required by the South Carolina SIP or other Federal standards, such as New Source Performance Standards and National Emissions Standards for Hazardous Air Pollutants, including the Maximum Achievable Control Technology standards. EPA has determined that South Carolina's April 14, 2009, SIP revision satisfies the conditions listed in EPA's June 2, 2008, conditional approval, and today is proposing to convert its prior conditional approval to full approval. See 73 FR 31368.

EPA is proposing to convert a conditional approval of a July 1, 2005, revision to the South Carolina SIP regarding requirements for the State's NNSR construction permit program to a full approval. South Carolina's April 14, 2009, SIP revision consists of changes to South Carolina Regulation 61-62.5, Standard No. 7.1 entitled “Nonattainment New Source Review.” SC DHEC submitted the April 14, 2009, SIP revision in response to EPA's June 2, 2008 (73 FR 31368), rule, which conditionally approved South Carolina's NNSR program as provided in the State's July 1, 2005, SIP revision. SC DHEC has satisfied the conditions listed in EPA's conditional approval. Therefore, EPA is proposing to convert its conditional approval of South Carolina's July 1, 2005, SIP revision to a full approval. The April 14, 2009, SIP revision satisfies the conditions of EPA's conditional approval of South Carolina's July 1, 2005 SIP revision, and is are consistent with Federal regulations and in accordance with the CAA. In addition, EPA is proposing to approve minor administrative reference changes at South Carolina Regulation 61-62.5 Standards No. 7 and 7.1 as a result of the removal of CU and PCP provisions.

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve State choices, provided that they meet the criteria of the CAA. Accordingly, this proposed action merely approves State law as meeting Federal requirements and does not impose additional requirements beyond those imposed by State law. For that reason, this proposed action:

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq. );

• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. );

• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and

• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

On February 4, 2011 (76 FR 6383), we published a proposed rule to extend the boundary of the endangered CCC coho salmon ESU from its current boundary at the San Lorenzo River southward to include Soquel and Aptos Creeks which are located in Santa Cruz County, CA. The proposed rule also concluded that this redefined ESU continues to be endangered.

We received one request to extend the current public comment period on the rule to accommodate review of the proposed rule and all the supporting documentation. We have considered this request and conclude that a 60-day extension is appropriate and will not delay this rulemaking process. Accordingly, we are extending the public comment period to June 6, 2011, to allow additional time for public comment.

Background: In January 2007, the MSA was reauthorized and included a new provision requiring each FMP to use ACLs to prevent overfishing, including measures to ensure accountability should the ACLs be exceeded. For fishery resources that were determined to be overfished, the reauthorized MSA required that such measures must be implemented by 2010. For fishery resources that were not overfished, the reauthorized MSA required that such measures must be implemented by 2011. Scallop fishery management measures to comply with the reauthorized MSA's ACL and AM requirements were required for 2011 because the scallop resource is not overfished. To meet this requirement, the Council initiated development of Amendment 15 when, on March 5, 2008, it published a Notice of Intent to develop Amendment 15 (73 FR 11888) and prepare and EIS to analyze the impacts of the proposed management alternatives. The Council intended that Amendment 15 would address three goals: (1) Bring the Scallop FMP into compliance with new requirements of the re-authorized MSA; (2) address excess capacity in the limited access scallop fishery; and (3) consider measures to adjust several aspects of the overall program to make the scallop management plan more effective. Following the public comment period that ended on August 23, 2010, the Council adopted Amendment 15 on September 29, 2010. The Council voted to exclude permit stacking and leasing alternatives that were designed to address excess capacity after considering extensive written and oral public comment on the measures. Ultimately the Council rejected these measures due to concerns that the measures would have unacceptable negative economic and social impacts on the scallop fleet and fishing communities. As adopted by the Council, Amendment 15 includes the following measures:

• An acceptable biological catch (ABC) control rule that would set ABC at a level that has a 25-percent probability of exceeding the overfishing limit to account for scientific uncertainty in the assessment of the status of the scallop resource;

• Incidental and Northern Gulf of Maine (NGOM) catch limits;

• Separate scallop ACLs and AMs for the limited access and LAGC fleets;

• An annual catch target for the limited access fleet;

• A “Limited Access Disclaimer” that would retract an impending limited access fleet AM if the fishery has not exceeded the fishing mortality rate associated with ABC, and an associated provision to re-allocate catch to the LAGC fleet if the Disclaimer provision is implemented;

• A sub-ACL for yellowtail flounder coordinated with the Council's Northeast (NE) Multispecies FMP and AMs for the scallop fishery if the scallop fishery's yellowtail flounder sub-ACL is exceeded;

• Modification of the overfishing definition for scallops to make it more compatible with rotational area management and to be consistent with the most recent formal scallop resource stock assessment;

• An increase in the possession limit for limited access general category (LAGC) vessels from 400 to 600 lb per trip;

• An allowance for carryover of unused individual fishing quota (IFQ) for LAGC vessels;

• A provision to enable LAGC vessel owners to permanently transfer all or some IFQ separate from the vessel's LAGC permit;

• Revision of the essential fish habitat (EFH) closures under the Scallop FMP to make them consistent with EFH closed areas under the NE Multispecies FMP;

• Inclusion of third year default management measures under the biennial framework adjustment process;

• Additions to the list of frameworkable measures; and

• Several changes to the scallop research set aside program.

Amendment 15 would establish the mechanism for implementing ACLs and AMs, which would be the basis for scallop fishery specifications, including days-at-sea, access area trip allocations, and IFQs. Amendment 15 does not include actual limits and fishery specifications. These specifications would be established under Framework 22 to the FMP for fishing years 2011, 2012, and 2013. Framework 22 has been adopted and submitted by the Council for NMFS review.

Public comments are being solicited on Amendment 15 and its incorporated documents through the end of the comment period stated in this notice of availability. A proposed rule that would implement Amendment 15 will be published in the Federal Register for public comment. Public comments on the proposed rule must be received by the end of the comment period provided in this notice of availability of Amendment 15 to be considered in the approval/disapproval decision on the amendment. All comments received by May 23, 2011, whether specifically directed to Amendment 15 or the proposed rule for Amendment 15, will be considered in the approval/disapproval decision on Amendment 15. Comments received after that date will not be considered in the decision to approve or disapprove Amendment 15. To be considered, comments must be received by close of business on the last day of the comment period; that does not mean postmarked or otherwise transmitted by that date.