[Federal Register Volume 64, Number 97 (Thursday, May 20, 1999)]
[Proposed Rules]
[Pages 27626-27647]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-12623]



[[Page 27625]]

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Part II





Nuclear Regulatory Commission





_______________________________________________________________________



10 CFR Part 52



AP600 Design Certification; Proposed Rule

  Federal Register / Vol. 64, No. 97 / Thursday, May 20, 1999 / 
Proposed Rules  

[[Page 27626]]



NUCLEAR REGULATORY COMMISSION

10 CFR Part 52

RIN 3150-AG23


AP600 Design Certification

AGENCY: Nuclear Regulatory Commission.

ACTION: Proposed rule.

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SUMMARY: The Nuclear Regulatory Commission (NRC or Commission) proposes 
to amend its regulations to certify the AP600 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 AP600 
design may do so by referencing the AP600 design certification rule 
(DCR). This proposed DCR, set out as Appendix C, is nearly identical to 
the two previously codified DCRs in Appendices A and B of 10 CFR Part 
52. The applicant for certification of the AP600 design is Westinghouse 
Electric Company LLC (hereinafter referred to as Westinghouse).
    The public is invited to submit comments on this proposed DCR and 
the AP600 design control document (DCD) that is incorporated by 
reference into the DCR. In addition, interested parties may request an 
informal hearing before an NRC Atomic Safety and Licensing Board, in 
accordance with 10 CFR 52.51(b), on matters pertaining to this proposed 
DCR. The NRC also invites the public to submit comments on the 
environmental assessment for the AP600 design.

DATES: Submit comments by August 3, 1999. Comments received after this 
date will be considered if it is practical to consider them, but the 
Commission is only able to ensure consideration for comments received 
on or before this date. Requests for an informal hearing must be 
submitted by August 3, 1999.

ADDRESSES: Mail written comments and requests for an informal hearing 
to: Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 
20555-0001, Attention: Rulemakings and Adjudications Staff, Mail Stop 
O-16 C1. Comments may also be delivered to: One White Flint North, 
11555 Rockville Pike, Rockville, Maryland, between 7:30 am and 4:15 pm 
on Federal workdays. Copies of comments received, the DCD, and the 
environmental assessment will be available for examination and copying 
at the NRC Public Document Room at 2120 L Street NW. (Lower Level), 
Washington, DC.
    Electronic comments may be provided via the NRC's interactive 
rulemaking website through the NRC home page [www.nrc.gov]. From the 
home page, select ``Rulemaking'' from the tool bar at the bottom of the 
page. The interactive rulemaking website can then be accessed by 
selecting ``Rulemaking Forum.'' This site provides the ability to 
upload comments as files [any format], if your web browser supports 
that function. Contact Ms. Carol Gallagher by telephone (301) 415-5905 
or e-mail:[email protected] for information about the interactive rulemaking 
website.

FOR FURTHER INFORMATION CONTACT: Jerry N. Wilson, Mail Stop O-12 G15, 
Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory 
Commission, Washington, DC 20555-0001, or telephone (301) 415-3145, or 
e-mail: [email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background.
II. Comments and Hearings in the design certification rulemaking.
    A. Opportunity to submit written and electronic comments.
    B. Opportunity to request hearing.
    C. Hearing process.
    D. Resolution of issues for the final rulemaking.
    E. Access to proprietary information in rulemaking.
    F. Ex parte and separation of functions restrictions.
III. Section-by-section discussion of design certification rule.
    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 
(Section IX).
    J. Records and Reporting (Section X).
IV. Finding of no significant environmental impact: availability
V. Paperwork Reduction Act statement.
VI. Regulatory analysis.
VII. Regulatory Flexibility Act certification.
VIII. Backfit analysis.
IX. Consensus standards.

I. Background

    The NRC added 10 CFR Part 52 to its regulations to provide for the 
issuance of early site permits, standard design certifications, and 
combined licenses for nuclear power reactors. Subpart B of 10 CFR Part 
52 established the process for obtaining design certifications. On June 
26, 1992, Westinghouse tendered its application for certification of 
the AP600 standard plant design with the NRC. Westinghouse submitted 
this application in accordance with Subpart B and Appendix O of 10 CFR 
Part 52. The NRC formally accepted the application as a docketed 
application for design certification (Docket No. 52-003) on December 
31, 1992. Information submitted before that date can be found under 
Project No. 676.
    The NRC staff issued a final safety evaluation report (FSER) 
related to certification of the AP600 standard plant design in 
September 1998 (NUREG-1512). The FSER documents the results of the NRC 
staff's safety review of the AP600 design against the requirements of 
10 CFR Part 52, Subpart B, and delineates the scope of the technical 
details considered in evaluating the design. The FSER provides the 
bases for Commission approval of the AP600 design through design 
certification. A copy of the FSER may be obtained from the 
Superintendent of Documents, U. S. Government Printing Office, P.O. Box 
37082, Washington, DC 20402-9328 or the National Technical Information 
Service, Springfield, VA 22161-0002. The final design approval for the 
AP600 design was issued on September 3, 1998, and published in the 
Federal Register on September 11, 1998 (63 FR 48772).

Rulemaking Procedures

    Subpart B of 10 CFR Part 52 provides for Commission approval of 
standard designs for nuclear power facilities (e.g., design 
certification) through rulemaking. In accordance with the 
Administrative Procedure Act (APA), Part 52 provides the opportunity 
for the public to submit written comments on the proposed design 
certification rule. However, Part 52 goes beyond the requirements of 
the APA by providing the public with an opportunity to request a 
hearing before the Atomic Safety and Licensing Board Panel in a design 
certification rulemaking. While Part 52 describes a general framework 
for conducting a design certification rulemaking, Sec. 52.51(a) states 
that more detailed procedures for the conduct of each design 
certification will be specified by the Commission.
    To assist the Commission in developing the detailed rulemaking 
procedures, the NRC's Office of the General Counsel prepared a paper 
(SECY-92-381, ``Rulemaking Procedures for Design Certification,'' dated 
November 10, 1992), that recommended design certification rulemaking 
procedures. This paper was prepared after consideration of the panel 
discussions at a public workshop and the written comments received 
after the workshop. On April 30, 1993, the Commission issued a 
Memorandum to

[[Page 27627]]

the General Counsel that provided the Commission's determinations with 
respect to the procedural issues raised by the General Counsel's paper. 
Section II describes the procedures to be utilized in this design 
certification rulemaking.

II. Comments and Hearings in the Design Certification Rulemaking

A. Opportunity To Submit Written and Electronic Comments

    Any person may submit written comments on the proposed design 
certification rule to the Commission for its consideration.1 
Commenters have 75 days from the publication of this notice to file 
written comments on the proposed design certification rule. Commenters 
needing access to proprietary or safeguards information in order to 
provide written comments must follow the procedures and filing 
deadlines (including the date for filing written comments) set forth in 
Section E below.
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    \1\ An opportunity for public comment is required by Section 553 
of the Administrative Procedures Act and 10 CFR 52.51(b).
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    Commenters are encouraged to submit, in addition to the original 
paper copy, a copy of the comment letter in electronic format on a 3.5 
inch computer diskette. Text files should be provided in WordPerfect 8 
format or unformatted ASCII code. The format and version should be 
identified on the diskette's external label.

B. Opportunity To Request Hearing

    Any person may request an informal hearing on one or more specific 
matters with respect to the proposed design certification 
rule.2 An informal hearing provides the admitted party with 
an opportunity to provide written and oral presentations on those 
matters to an Atomic Safety and Licensing Board, and to request that 
the licensing board question the applicant on those matters. The 
conduct of an informal hearing is discussed in more detail in Section 
C. below. Under certain circumstances, a party in an informal hearing 
may request that the Commission hold a formal hearing on specific and 
substantial factual disputes necessary to resolve the matters for which 
the party was granted an informal hearing (Section C.11 below).
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    \2\ An opportunity for a hearing is provided by 10 CFR 52.51(b).
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    A person may request an informal hearing even though that person 
has not submitted separate written comments on the design certification 
rule (i.e., is not a commenter). Requests for an informal hearing must 
be received by the Commission no later than 75 days from the 
publication of this notice, and a copy of the request must be sent via 
overnight mail to the design certification applicant at the following 
address: Mr. Brian A. McIntyre, Manager, Advanced Plant Safety and 
Licensing, Westinghouse Electric Company, P.O. Box 355, Pittsburgh, PA 
15230-0355. The information which a person requesting a hearing must 
provide in the hearing request, as well as the procedures and standards 
to be used by the Commission in its determination of the request, are 
discussed in Sections C.1 through C.4 below.
    A person who needs to review proprietary information submitted by 
the design certification applicant in order to prepare a request for an 
informal hearing must follow the procedures and filing schedule set 
forth in Section E. below.
    The Commission is also providing an opportunity for interested 
State, county, and city/municipal and other local Governments, as well 
as Native American tribal governments, to participate as ``interested 
governments'' in any informal hearings which the Commission authorizes, 
similar to their participation as ``interested governments'' in Subpart 
G hearings under 10 CFR 2.715. State, county, city/municipal, local, 
and tribal Governments wishing to participate as an ``interested 
government'' in any design certification rulemaking hearings must file 
their request to participate no later than 75 days from the publication 
of this notice.

C. Hearing Process

1. Filings and Computation of Times
    All notices, papers, or other filings discussed in this section 
must be filed by express mail.3 The time periods specified 
in this section have been established based upon such a filing. The 
express mail filing requirement shall be considered in establishing 
other filing deadlines.
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    \3\ Filings discussed in this section may also be served upon 
the Commission in electronic form in lieu of express mail. However, 
parties must serve copies of their filings on other parties by 
express mail, unless the receiving party agrees to filing in 
electronic form. These filings must be transmitted no later than the 
last day of the time period specified for filing and must be in 
accordance with the requirements specified under Date and Addresses 
in this notice.
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    In computing any period of time, the day of the act, event, or 
default after which the designated period of time begins to run is not 
included. The last day of the period so computed is included, unless it 
is a Saturday, Sunday, or legal holiday at the place where the action 
or event is to occur, in which case the period runs until the next day 
which is neither a Saturday, Sunday, nor holiday.
2. Content of Hearing Request
    The Commission will grant a request for an informal hearing only if 
the hearing request satisfies each of the following two requirements. 
First, the hearing request must include the written presentations that 
the requestor wishes to be included in the record of the hearing. The 
written presentations must:
    (i) Identify the specific portion of the proposed design 
certification rule or supporting bases which are challenged,
    (ii) Describe the reasons why the proposed rule or supporting bases 
are incorrect or insufficient, and
    (iii) Identify the references or sources upon which the person 
requesting the hearing relies.
    If the requestor has submitted written comments in the public 
comment period addressing these three factors for the specific issue 
for which the requestor seeks a hearing, it will be sufficient for the 
requestor to identify the portions of the written comments that the 
requestor intends to submit as a written presentation. Also, the 
hearing request must demonstrate that the requestor (or other persons 
identified in the hearing request who will represent, assist, or speak 
on behalf of the requestor at the hearing) has appropriate knowledge 
and qualifications to enable the requestor to contribute significantly 
to the development of the hearing record on the specific matters at 
issue. The Commission does not intend that the requestor meet a 
judicial ``expert witness'' standard in order to meet the second 
criterion. Nonetheless, given the substantial commitment of time and 
resources associated with any hearing, the Commission believes it to be 
a reasonable prerequisite that the requestor demonstrate that he/she 
(or his/her assistant) has:
    (i) Substantial familiarity with the publicly available docketed 
information relevant to the issue for which a hearing is requested;
    (ii) The requisite technical capability to understand the factual 
matters and develop a record on the issue for which a hearing is 
requested, and
    (iii) An understanding of the NRC's hearing procedures in 10 CFR 
Part 2.4
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    \4\ Requesters will satisfy this requirement by stating that 
they possess and have read a copy of 10 CFR Part 2, Subparts A, G, 
and L.

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[[Page 27628]]

3. Request to Hold Hearing Outside of Washington, DC
    Any hearing(s) which the Commission may authorize ordinarily will 
be conducted in the Washington, DC. metropolitan area. However, the 
Commission at its discretion may schedule hearings outside the 
Washington, DC. metropolitan area in response to requests submitted by 
a person requesting a hearing that all or part of the hearing be held 
elsewhere. These requests must be submitted in conjunction with the 
request for hearing, and must specifically explain the special 
circumstances for holding a hearing outside the Washington, DC. 
metropolitan area.
4. Responses to Hearing Request
    The applicant may file a response to any hearing request within 15 
days of the date of the hearing request. The NRC staff will not provide 
a response to the hearing request unless requested to do so by the 
Commission but may assist the Commission in its ruling on the request.
5. Commission Determination of Hearing Request
    The Commission intends to rule on a hearing request within 20 days 
of the close of the period for requesting a hearing. The Commission's 
determination will be based upon the materials accompanying the hearing 
request and the applicant's response (and the NRC staff's response, if 
requested by the Commission). The hearing request shall be granted if:
    (i) The request is accompanied by a written presentation containing 
the information required by Section C.2. above; and
    (ii) The requestor has the appropriate knowledge and qualifications 
to enable the requestor to contribute significantly to the development 
of the hearing record on the matters sought to be controverted.
    The Commission may consult with the NRC staff before its 
determination of a hearing request. A written decision either granting 
or denying the hearing request will be published by the Commission.
    If a hearing request is granted in whole or in part, the 
Commission's decision will delineate the controverted matter that will 
be the subject of the hearing and whether any issues and/or parties are 
to be consolidated (see Section C.7. below). The Commission's decision 
granting the hearing will direct the establishment of a licensing board 
to preside over the informal hearing. Finally, the Commission's 
decision will specify:
    (i) The date by which any requests for discovery must be filed with 
the licensing board (normally 20 days after the date of the 
Commission's decision), and
    (ii) The date by which any objections to discovery must be filed 
(see Section C.9. below).
    The Commission's decision will be sent to each admitted party by 
overnight mail. Separate hearings may be granted for each controverted 
matter or set of consolidated matters. Thus, if there are three 
different controverted matters, the Commission may establish three 
separate hearings. In this fashion, closing of the hearing record on a 
controverted matter and its referral to the Commission for resolution 
need not await completion of the hearing on the other controverted 
matters. Finally, the Commission's decision will rule on any requests 
for hearings outside of the Washington, DC. metropolitan area (see 
Section C.3 above).
6. Authority of the Licensing Board
    If the Commission authorizes an informal hearing on a controverted 
matter, the licensing board will function as a ``limited magistrate'' 
in that hearing with the authority and responsibility for assuring that 
a sufficient record is developed on those controverted matters which 
the Commission has determined are appropriate for consideration in that 
hearing. The licensing board shall have the following specific 
responsibilities and authority:
    (i) Schedule and expeditiously conduct the informal hearing for 
each admitted controverted matter, consistent with the rights of all 
the parties and with the Commission's Statement of Policy on Conduct of 
Adjudicatory Proceedings 5, CLI-98-12, 48 NRC 18 (1998), (63 
FR 41872, August 5, 1998),
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    \5\ Although the opportunity for an informal hearing provided 
for in Section 52.51(b) and this rulemaking notice is not an 
adjudicatory hearing per se, the underlying principals and goal of 
expeditious and fair conduct of adjudicatory hearings are also 
applicable to informal hearings.
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    (ii) Review all discovery requests against the criteria established 
by the Commission, and refer all appropriate requests to the Commission 
with a decision explaining the licensing board's action,
    (iii) Preside over and resolve any issues regarding the scheduling 
and conduct of any discovery authorized by the Commission,
    (iv) Order such further consolidation of parties and issues as the 
licensing board determines is necessary or desirable,
    (v) Orally examine persons making oral presentations in the 
informal hearing, based in part upon the licensing board's review of 
the parties' proposed oral questions to be asked of persons making oral 
presentations,
    (vi) Request that the NRC staff:
    (A) Answer licensing board questions about the FSER or the proposed 
rule,
    (B) Provide additional information or documentation with respect to 
the design certification, and
    (C) Provide other assistance as the licensing board may request. 
Licensing board requests for NRC staff assistance should be framed such 
that the NRC staff does not assume a role as an adversary party in the 
informal hearing (see Section C.8 below),
    (vii) Review all requests for additional hearing procedures and 
refer all appropriate requests to the Commission with a decision 
explaining the licensing board's action,
    (viii) Certify the hearing record to the Commission, based upon the 
licensing board's determination that the hearing record contains 
sufficient information for the Commission to make a reasoned 
determination on the controverted matter; and
    (ix) Include with its certification any concerns identified by the 
licensing board in the course of the hearing which, although neither 
raised by the parties nor necessary to resolution of the controverted 
hearing matters, are significant enough in the licensing board's view 
to warrant attention by the Commission.
    Licensing board determinations with respect to referral of requests 
to the Commission, as well as licensing board determinations of 
parties' motions, are not appealable to the Commission as an 
interlocutory matter. Instead, any disagreements with the licensing 
board's determinations and a specific discussion of how the hearing 
record is deficient with respect to the contested issue must be set 
forth in the parties' proposed findings of fact which are submitted 
directly to the Commission (see Section C.13 below).
    As suggested by Item (ix) above, the licensing board shall not have 
any ``sua sponte'' authority analogous to 10 CFR 2.760a. The Commission 
believes that in the absence of a request for an informal hearing on a 
matter, the Commission should resolve issues with respect to the design 
certification rule in the same manner as other agency-identified 
rulemaking issues, viz., through NRC staff consideration of the issue 
followed by the Commission's review and its final resolution of the 
matter. However, when it certifies the completed hearing record to the 
Commission (see Section C.12. below), the licensing board should 
identify to the Commission any

[[Page 27629]]

concerns identified during the hearing that are significant enough to 
warrant Commission consideration but that are unnecessary or irrelevant 
to the resolution of the controverted hearing matter.
    The licensing board shall close the hearing and certify the record 
to the Commission only after it determines that the record on the 
controverted matter is sufficiently complete for the Commission to make 
a reasoned determination with respect to that matter. However, the 
licensing board shall not have any responsibility or authority to 
resolve and decide controverted matters in either an informal or a 
formal hearing. Rather, the Commission retains its traditional 
authority in rulemaking proceedings to evaluate and resolve all 
rulemaking issues identified in public comments on a proposed rule. 
Therefore, the Commission will resolve any controverted matters that 
are the subject of a hearing in this design certification rulemaking.
7. Consolidation of Parties and Issues; Joint Hearings on Related 
Issues
    If two or more persons seek an informal hearing on the same or 
similar matters, the Commission may, in its discretion, grant an 
informal hearing and consolidate the matters into a single issue (as 
defined by the Commission). The Commission may also, in its discretion, 
require that the parties be consolidated analogous to the consolidation 
permitted under 10 CFR 2.715a. If the Commission consolidates two or 
more issues into a single consolidated issue but does not consolidate 
parties, each admitted person will be deemed a separate party with an 
individual right to:
    (i) Submit separate written presentations,
    (ii) Submit separate sets of proposed oral questions to be asked by 
the licensing board (see Section C.10 below),
    (iii) Make separate oral presentation, and
    (iv) Submit and separately respond to motions.
    If the Commission also requires that parties be consolidated, the 
consolidated parties must participate jointly, including deciding upon 
written and oral presentations, submitting a single set of written 
questions, submitting motions supported by each of the consolidated 
parties, and responding to motions filed by other parties.
    During the informal hearing, the licensing board may decide that 
further consolidation of issues or parties would simplify the overall 
conduct of informal hearings or materially reduce the time or resources 
devoted to the hearings. In these instances, the licensing board may 
direct such consolidation. The licensing board shall set forth the 
issues and/or parties to be consolidated and the reasons for such 
consolidation in a written order.
8. Status of the Design Certification Applicant, the NRC staff, and 
Requesting Party
    The design certification applicant shall be a party in the informal 
hearing, with the right to submit written and oral presentations, 
propose questions to be asked by the licensing board of oral 
presenters, and file and submit appropriate motions.
    The NRC staff shall not be a party in the informal hearing but 
shall be available in the informal hearing to answer licensing board 
questions about the FSER or the proposed rule, provide additional 
information or documentation with respect to the design certification, 
and provide other assistance that the licensing board may request 
without the NRC staff assuming the role of a party in the informal 
hearing.
    A party whose hearing requests have been granted with respect to a 
particular controverted matter shall not participate with respect to 
any controverted matter on which the party was not granted a hearing. 
For example, if Person 1 has been authorized as a party on Issue A and 
Person 2 has been authorized as a party on Issue B, then Person 1 may 
participate only in the informal hearing on Issue A, and may not 
participate in the informal hearing on Issue B. Conversely, Person 2 
may participate only in the informal hearing on Issue B, and may not 
participate in the informal hearing on Issue A.
9. Requests for Discovery
    Any party may request the opportunity to conduct discovery against 
another party before the oral phase of the informal hearing. The 
request for discovery must:
    (i) Identify the type of discovery permitted under 10 CFR 2.740, 
2.740a, 2.740a(b), 2.741, and 2.742 which the party seeks to use;
    (ii) Identify the subject matter or nature of the information 
sought to be obtained by discovery; and
    (iii) Explain with particularity the relevance of the information 
sought to the controverted matter which is the subject of the hearing 
and why this information is indispensable to the presentation of the 
party's position on the controverted matter. The request shall be filed 
with the licensing board, with copies of the request to be filed with 
the party against which discovery is sought, and the NRC staff. The 
requests must be received no later than the deadline specified by the 
Commission in its decision granting a party's hearing request (see 
Section C.5. above). A party against whom discovery is sought may file 
a response objecting to part or all of the request. Such a response 
must explain with particularity why the discovery request should not be 
granted.
    The licensing board shall review all discovery requests and refer 
to the Commission those requests that it believes should be granted 
within 7 days after the date for receiving a party's objections to a 
discovery request. The licensing board shall issue a written decision 
explaining its basis for either referring the request to the Commission 
or declining to refer it. The written decision shall accompany the 
discovery requests which are referred by the licensing board to the 
Commission.
    The Commission will determine whether to grant any discovery 
requests forwarded to it based upon the licensing board's decision, 
together with the request and the design certification applicant's 
response (and any NRC staff response requested by the licensing board). 
Discovery will be at the discretion of the Commission. In this regard, 
the Commission notes that there are two docket files in which the NRC 
staff has placed information and documents received from the applicant 
for the AP600 design certification review. The application was docketed 
on December 31, 1992 and assigned Docket No. 52-003. Correspondence 
relating to the application prior to this date was addressed to Project 
No. 676. This information includes the AP600 Design Control Document, 
Revision 2 (3/99) and the AP600 Standard Safety Analysis Report, 
Revision 25. Furthermore, the docket files contain NRC staff 
communications and documents, such as written questions and comments 
provided to the design certification applicant, and summaries of 
meetings held between the NRC staff and the design certification 
applicant. The NRC staff's bases for approving the AP600 design are set 
forth in the FSER (NUREG-1512), dated September 1998. The Commission 
also notes that each admitted party has already disclosed a substantial 
amount of information in its hearing request, relating both to bases 
for the party's position with respect to the controverted matter as 
well as information on the qualifications of the party (or its 
representatives and witnesses in the hearing).

[[Page 27630]]

    As discussed above, much of the information documenting the NRC 
staff's review and approval of the design certification application has 
been routinely placed in the docket file. Furthermore, as discussed 
above in Section C.8, the NRC staff is not a party in an informal 
hearing. Therefore, the Commission has decided that in an informal 
hearing, the parties should not be afforded discovery against the NRC 
staff.
10. Conduct of Informal Hearing
    If the Commission authorizes discovery, the licensing board shall 
establish a schedule for the conduct and completion of discovery. 
Normally, the licensing board should not permit more than one round of 
discovery. The Commission will not entertain any interlocutory appeals 
from licensing board orders resolving any discovery disputes or 
otherwise complaining of the scheduling of discovery.
    Following the completion of discovery, the licensing board should 
issue an order setting forth the date of commencement of the oral phase 
of each informal hearing, and the date (no less than 30 days before the 
commencement of the oral phase of the hearing) by which parties must 
submit:
    (i) The identities and curriculum vitae of those persons providing 
oral presentations;
    (ii) The outlines of the oral presentations; and
    (iii) Any questions which a party would like the licensing board to 
ask.
    The licensing board may schedule the oral phases of two or more 
informal hearings to be held during the same session. The licensing 
board shall publish a notice in the Federal Register announcing the 
commencement of the oral phase of the informal hearing(s). The notice 
shall set forth the place and time of the oral hearing session, the 
subject matter(s) of the informal hearing(s), a brief description of 
the informal hearing procedures, and a statement indicating that the 
public may observe the informal hearing.
    Based upon the parties' outlines of the oral presentations and 
proposed questions, the licensing board should determine whether it has 
specific questions of the NRC staff with respect to the staff's review 
of the design certification application. These questions should be 
submitted in writing to the NRC staff no less than 20 days before the 
commencement of the oral phase of the hearing and must specify the date 
by which the NRC staff shall provide its written answers to the 
licensing board. The licensing board shall send copies of the request 
by overnight mail to all parties. The NRC staff shall file its written 
answers with the licensing board and the parties.
    During the oral phase of the hearing, the licensing board shall 
receive into evidence the written presentations of the parties and 
permit each party (or the representatives identified in their hearing 
request) to make oral presentations addressing the controverted matter. 
Normally, the party raising the controverted matter should make their 
presentations, followed by the presentations of the design 
certification applicant. The licensing board may question the persons 
making oral presentations, using its own questions as well as those 
submitted to the licensing board by the other parties. Based upon the 
parties' oral presentations and/or responses to licensing board 
questions, the licensing board also may orally question the NRC staff.
11. Additional Hearing Procedures and Formal Hearings
    After the parties have made their oral presentations and the 
licensing board has concluded its questioning of the presenters (and, 
as applicable, the NRC staff), the licensing board should declare that 
the oral phase of an informal hearing on a controverted matter (or 
consolidated set of controverted matters) is complete.
    No later than 10 days after the licensing board has declared that 
the oral phase of the informal hearing has been completed, parties may 
file with the licensing board (with copies to the applicant and the NRC 
staff) a request that some or all of the procedures described in 10 CFR 
Part 2, Subpart G (e.g., direct and cross-examination by the parties) 
be utilized. The request shall:
    (i) Identify the specific hearing procedures which the party seeks, 
or state that a formal hearing is requested;
    (ii) Identify the specific factual issues for which the additional 
procedures would be utilized;
    (iii) Explain why resolution of these factual disputes are 
necessary to the Commission's decision on the controverted issue;
    (iv) Explain, with specific citations to the hearing record, why 
the record is insufficient on the controverted matter; and
    (v) Identify the nature of the evidence that would be developed 
utilizing the additional procedures requested.
    The design certification applicant may file a response to these 
requests no later than 7 days after the applicant's receipt of a 
request for additional procedures. The NRC staff will not provide a 
response unless specifically requested to do so by the licensing board.
    The licensing board will review all requests for additional hearing 
procedures or a formal hearing and refer those that it believes should 
be granted to the Commission for its determination. The licensing board 
shall issue a written decision explaining its determination whether to 
forward the request to the Commission no later than 7 days after 
receipt of any applicant response to the request. The decision will 
provide the basis for either forwarding the request to the Commission 
or declining to forward it. In the absence of any requests for hearing 
procedures or if the licensing board concludes that none of the 
requests should be referred to the Commission, the licensing board 
should declare that the hearing record is closed (see Section C.12 
below).
    The Commission will determine whether to grant any requests for 
additional procedures or a formal hearing that are forwarded by the 
licensing board. The Commission's determination shall be based upon the 
licensing board's decision along with the request and the design 
certification applicant's response. If the Commission directs that a 
formal hearing be held on a controverted factual matter, the NRC staff 
shall be a party in the formal hearing. Any formal hearing authorized 
by the Commission shall be conducted in accordance with the 
Commission's Statement of Policy on Conduct of Adjudicatory 
Proceedings. As noted in that Policy Statement, the Commission may, in 
individual cases, establish specific milestone schedules for the 
conduct of the formal hearing and require the presiding officer to 
explain and mitigate any significant deviations from that milestone 
schedule. After either the additional hearing procedures authorized by 
the Commission are completed or the formal hearing is concluded on the 
factual dispute, the licensing board should declare the hearing record 
closed (see Section C.12 below).
12. Licensing Board's Certification of Hearing Record to the Commission
    After the oral phase of a hearing is completed and either:
    (i) There are no requests for additional hearing procedures or a 
formal hearing; or
    (ii) The licensing board concludes that none of the requests should 
be referred to the Commission, then the licensing board should declare 
that the hearing record is closed. If the Commission directs that 
additional hearing procedures should be utilized or

[[Page 27631]]

a formal hearing be held on specific factual disputes, the licensing 
board should declare the hearing record closed after completion of the 
additional hearing procedures or the formal hearing. Within 30 days of 
the closing of the hearing record the licensing board should certify 
the hearing record to the Commission on each controverted matter (or 
consolidated set of controverted matters).6
---------------------------------------------------------------------------

    \6\ An informal hearing is deemed to be completed when the 
period for requesting additional procedures or a formal hearing 
expires and no request is received.
---------------------------------------------------------------------------

    The licensing board's certification for each controverted matter 
(or consolidated set of controverted matters) shall contain:
    (i) The hearing record, including a transcript of the oral phase of 
the hearing (and any pre-hearing conferences) and copies of all filings 
by the parties and the licensing board,
    (ii) A list of all documentary evidence admitted by the licensing 
board, including the written presentations of the parties,
    (iii) Copies of the documentary evidence admitted by the licensing 
board,
    (iv) A list of all witnesses who provided oral testimony,
    (v) The NRC staff's written answers to licensing board requests, 
and
    (vi) A licensing board statement that the hearing record contains 
sufficient information for the Commission to make a reasoned 
determination on the controverted matter.
    Finally, as discussed in Section C.6 above, the licensing board 
should identify any issues not raised by the parties or otherwise are 
not relevant to the controverted matters in the hearing, that the 
licensing board believes are significant enough to warrant attention by 
the Commission.
13. Parties' Proposed Findings of Fact and Conclusions
    The applicant must file directly with the Commission proposed 
findings of fact and conclusions for each controverted hearing matter 
(or consolidated set of controverted matters) within 30 days following 
the close of the hearing record on that matter in the form of a 
proposed final rule and statement of considerations with respect to the 
controverted hearing issues.
    Other parties are encouraged, but not required, to file with the 
Commission proposed findings of fact and conclusions limited to those 
issues which a party was afforded a hearing by the Commission (i.e., a 
party may not file proposed findings of fact and conclusions on issues 
which it was not admitted). Any findings that a party wishes the 
Commission to consider must be received by the Commission no later than 
30 days after the licensing board closes the hearing record on that 
issue. Although parties are not required to file proposed findings and 
conclusions, a party who does not file a finding may not, upon appeal, 
claim or otherwise argue that the Commission either misunderstood the 
party's position, or failed to address a specific piece of evidence or 
issue.

D. Resolution of Issues for the Final Rulemaking

1. Absence of Qualifying Hearing Request
    If the Commission does not receive any request for hearing within 
the 75-day period for submitting a request, or does not grant any of 
the requests (see Section B. above), the Commission will determine 
whether the proposed design certification rule meets the applicable 
standards and requirements of the Atomic Energy Act of 1954, as amended 
(AEA), the National Environmental Policy Act of 1969, as amended 
(NEPA), and the Commission's rules and regulations. The Commission's 
determination will be based upon the rulemaking record, which includes: 
the application for design certification, including the AP600 Standard 
Safety Analysis Report (SSAR) and DCD; the applicant's responses to the 
NRC staff's requests for additional information; the NRC staff's FSER 
and any supplements thereto; the report on the application by the ACRS; 
the applicant's evaluation of severe accident mitigation design 
alternatives for purposes of NEPA in Appendix 1B of the SSAR; the NRC 
staff's draft EA and FONSI; the proposed rule, and the public comments 
received on the proposed rule. If the Commission makes an affirmative 
finding, it will issue a standard design certification in the form of a 
rule by adding a new appendix to 10 CFR Part 52, and publish the design 
certification rule and a statement of considerations in the Federal 
Register.
2. Commission Resolution of Issues Where a Hearing is Granted
    All matters related to the proposed design certification rule, 
including those matters for which the Commission authorizes a hearing 
(see Sections B. and C. above), will be resolved by the Commission 
after the licensing board has closed the hearing record and certified 
it to the Commission. The Commission will determine whether the 
proposed design certification rule meets the applicable standards and 
requirements of the AEA, NEPA, and the Commission's rules and 
regulations. The Commission's determination will be based upon the 
rulemaking record as described in Section D.1 above, with the addition 
of the hearing record for controverted matters. If the Commission makes 
an affirmative finding, the Commission will issue a final design 
certification rule as described in Section D.1.

E. Access to Proprietary Information in Rulemaking

1. Access to Proprietary Information for the Preparation of Written 
Comments or Informal Hearing Requests
    Persons who determine that they need to review proprietary 
information submitted by the design certification applicant to the NRC 
in order to submit written comments on the proposed certification or to 
prepare an informal hearing request, may request access to such 
information from the applicant.
    The request shall state with particularity:
    (i) The nature of the proprietary information sought,
    (ii) The reason why the nonproprietary information currently 
available to the public in the NRC's Public Document Room is 
insufficient either to develop public comments or to prepare for the 
hearing,
    (iii) The relevance of the requested information either to the 
issue which the commenter wishes to comment on, and
    (iv) A showing that the person requesting the information has the 
capability to understand and utilize the requested information.
    Requests must be filed with the applicant such that they are 
received by the applicant no later than 45 days after the date that 
this notice of proposed rulemaking is published in the Federal 
Register.
    Within ten (10) days of receiving the request, the applicant must 
send a written response to the person seeking access. The response must 
either provide the documents requested (or state that the document will 
be provided no later than ten days after the date of the response), or 
state that access has been denied. If access is denied, the response 
shall state with particularity the reasons for its refusal. The 
applicant's response must be provided via express mail.
    The person seeking access may then request a Commission hearing for 
the purpose of obtaining a Commission order directing the design 
certification

[[Page 27632]]

applicant to disclose the requested information. The person must 
include copies of the original request (and any subsequent clarifying 
information provided by the person requesting access to the applicant) 
and the applicant's response. The Commission will base its decision 
solely on the person's original request (including any clarifying 
information provided to the applicant by the person requesting access), 
and the applicant's response. Accordingly, a person seeking access to 
proprietary information should ensure that the request sets forth in 
sufficient detail and particularity the information required to be 
included in the request. Similarly, the applicant should ensure that 
its response to any request states with sufficient detail and 
particularity the reasons for its refusal to provide the requested 
information.
    If the Commission orders access in whole or part, the Commission 
will specify the date by which the requesting party must file with the 
Commission written comments and any request for an informal hearing 
before a licensing board as discussed in Section V.C. above. A request 
for an informal hearing must meet the requirements set forth above in 
Section V.C., in particular the requirements governing the content of 
the hearing request, and shall be governed by the procedures and 
standards governing such requests set forth in Section V.C.
2. Access to Proprietary Information in a Hearing
    Parties who are granted a hearing may request access to proprietary 
information. Parties must first request access to proprietary 
information regarding the proposed design certification from the 
applicant. The request shall state with particularity:
    (i) The nature of the proprietary information sought,
    (ii) The reason why the nonproprietary information currently 
available to the public in the NRC's Public Document Room is 
insufficient to prepare for the hearing,
    (iii) The relevance of the requested information to the hearing 
issue(s) for which the party has been admitted, and
    (iv) A showing that the requesting party has the capability to 
understand and utilize the requested information.
    The request must be filed with the applicant no later than the date 
established by the Commission for filing discovery requests with the 
licensing board.
    If the applicant declines to provide the information sought, within 
10 days of receiving the request, the applicant must send a written 
response to the requesting party setting forth with particularity the 
reasons for its refusal. The party may then request the licensing board 
to order disclosure. The party must include copies of the original 
request (and any subsequent clarifying information provided by the 
requesting party to the applicant) and the applicant's response. The 
licensing board shall base its decision solely on the party's original 
request (including any clarifying information provided by the 
requesting party to the applicant), and the applicant's response.
    Accordingly, a party requesting proprietary information from the 
applicant should ensure that its request sets forth in sufficient 
detail and particularity the information required to be included in the 
request. Similarly, the applicant should ensure that its response to 
any request states with sufficient detail and particularity the reasons 
for its refusal to provide the requested information. The licensing 
board may order the applicant to provide access to some or all of the 
requested information, subject to an appropriate non-disclosure 
agreement.

F. Ex Parte and Separation of Functions Restrictions

    Unless the formal procedures of 10 CFR Part 2, Subpart G are 
approved for a formal hearing in the design certification rulemaking 
proceeding, the NRC staff will not be a party in the hearing and 
separation of functions limitations will not apply. The NRC staff may 
assist in the hearing by answering questions about the FSER put to it 
by the licensing board, or to provide additional information, 
documentation, or other assistance as the licensing board may request. 
Furthermore, other than in a formal hearing, the NRC staff shall not be 
subject to discovery by any party, whether by way of interrogatory, 
deposition, or request for production of documents.
    Second, the Commission has determined that once a request for an 
informal or formal hearing is received, certain elements of the ex 
parte restrictions in 10 CFR 2.780(a) will be applicable with respect 
to the subject matter of that hearing request. Under these 
restrictions, the Commission will communicate with interested persons/
parties, the NRC staff, and the licensing board with respect to the 
issues covered by the hearing request only through docketed, publicly-
available written communications and public meetings. Individual 
Commissioners may communicate privately with interested persons and the 
NRC staff; however, the substance of the communication shall be 
memorialized in a document which will be placed in the PDR and 
distributed to the licensing board and relevant parties.

III. Section-By-Section Discussion of Design Certification Rule

    The proposed design certification rule (DCR) for the AP600 standard 
plant design is nearly identical to the two design certification rules 
for the U.S. ABWR and the System 80+ designs, which the NRC previously 
adopted. These DCRs are set forth in 10 CFR Part 52, Appendix A (U.S. 
ABWR, 62 FR 25800, May 12, 1997) and Appendix B (System 80+, 62 FR 
27840, May 21, 1997). The AP600 DCR emulates the U.S. ABWR and System 
80+ DCRs, inasmuch as the three designs were reviewed contemporaneously 
against the same technical requirements. Furthermore, many of the 
procedural issues and their resolutions for the ABWR and the System 80+ 
DCRs (e.g., the two-tier structure, Tier 2*, the scope of issue 
resolution) were developed after extensive discussions with nuclear 
industry representatives, and Westinghouse participated in those 
discussions. It was the NRC's intent (and likely Westinghouse's 
expectation) that the resolutions for these issues in the ABWR and 
System 80+ rulemakings would also be applied to the AP600 rule. 
Accordingly, the NRC has modeled the AP600 DCR on the existing DCRs for 
the ABWR and System 80+, with certain departures. These departures are 
necessary to reflect that Westinghouse is the applicant for the AP600 
DCR, and to account for differences in the AP600 design documentation, 
design features (including the investment protection short-term 
availability controls), and environmental assessment (including severe 
accident mitigation design alternatives).
    The following discussion sets forth the purpose and key aspects of 
each section and paragraph of the proposed AP600 design certification 
rule. All section and paragraph references are to the provisions in the 
proposed Appendix C to 10 CFR Part 52.

A. Introduction

    The purpose of Section I of Appendix C to 10 CFR Part 52 (``this 
appendix'') is to identify the standard plant design that is approved 
by this design certification rule 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 combined license (COL) contracts with

[[Page 27633]]

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 this information, then the 
COL applicant must meet the requirements in 10 CFR 52.63(c). Also, 
X.A.1 of this appendix imposes a requirement on the design 
certification applicant to maintain the generic DCD throughout the time 
period in which this appendix may be referenced.

B. Definitions

    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 staff 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. During consideration of the comments received on Appendices A and B 
to Part 52, the Commission determined that it would be useful to 
distinguish between the ``plant-specific DCD'' and the ``generic DCD,'' 
the latter of which is incorporated by reference into this appendix and 
remains unaffected by plant-specific departures. This distinction is 
necessary in order to clarify the obligations of applicants and 
licensees that reference this appendix. Also, the technical 
specifications that are located in Section 16.1 of the generic DCD are 
designated as ``generic technical specifications'' in order to 
facilitate the special treatment of this information under this 
appendix. Therefore, appropriate definitions for these additional terms 
are included in this appendix.
    The Tier 1 portion of the design-related information contained in 
the DCD is certified by this appendix and, therefore, subject to the 
special backfit provisions in VIII.A of this appendix. An applicant who 
references this appendix is required to incorporate by reference and 
comply with Tier 1, under III.B and IV.A.1 of this appendix. This 
information consists of an introduction to Tier 1, the system based and 
non-system based design descriptions and corresponding inspections, 
tests, analyses, and acceptance criteria (ITAAC), significant interface 
requirements, and significant site parameters for the design. The 
design descriptions, interface requirements, and site parameters in 
Tier 1 were derived entirely 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 
of this appendix.
    The Tier 1 design descriptions serve as design commitments for the 
lifetime of a facility referencing the design certification. The ITAAC 
verify that the as-built facility conforms with the approved design and 
applicable regulations. In accordance with 10 CFR 52.103(g), the 
Commission must find that the acceptance criteria in the ITAAC are met 
before 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 must comply with the design descriptions 
in the plant-specific DCD unless changes are made in accordance with 
the change process in Section VIII of this appendix. 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, which were submitted in response to 10 CFR 
52.47(a)(1)(vii) and must be met by the site-specific design features 
of a facility that references this appendix. The Tier 1 site parameters 
are the most significant site parameters, which were submitted in 
response to 10 CFR 52.47(a)(1)(iii). An application that references 
this appendix must demonstrate that the site parameters (both Tier 1 
and Tier 2) are met at the proposed site (refer to III.D of this SOC).
    Tier 2 is the portion of the design-related information contained 
in the DCD that is approved by this appendix but is not certified. Tier 
2 information is subject to the backfit provisions in VIII.B of this 
appendix. Tier 2 includes the information required by 10 CFR 52.47 
(with the exception of generic technical specifications, conceptual 
design information, and the evaluation of severe accident mitigation 
design alternatives) 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, III.B 
and IV.A.1 of this appendix require an applicant who references this 
appendix to incorporate Tier 2 by reference and to comply with Tier 2, 
except for the COL action items, including the investment protection 
short-term availability controls in Section 16.3 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. The appropriate 
criteria for departing from Tier 2 information are specified in Section 
VIII.B of this appendix. Departures from Tier 2 do not negate the 
requirement in Section III.B to reference Tier 2.
    A definition of ``combined license (COL) action items'' (combined 
license information), which is part of the Tier 2 information, has been 
added to clarify that COL applicants, who reference this appendix, are 
required to address these matters in their license application, but the 
COL action items are not the only acceptable set of information. An 
applicant may depart from or omit these items, provided that the 
departure or omission is identified and justified in the FSAR. After 
issuance of a construction permit or combined license, these items are 
not requirements for the licensee unless such items are restated in its 
FSAR.
    The investment protection short-term availability controls, which 
are set forth in Section 16.3 of the generic DCD, were added to the 
list of information that is part of Tier 2. This set of requirements 
was added to Tier 2 to make it clear that the availability controls are 
not operational requirements for the purposes of VIII.C of this 
appendix. Rather, the availability controls are associated with 
specific design features, and the availability controls may be changed 
if the associated design feature is changed under VIII.B of this 
appendix.
    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 explanation for 
Section VIII.B, a plant-specific departure from Tier 2* information 
requires 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 VIII.B.6 of this appendix. Some Tier 2* 
requirements, concerning special preoperational tests, are designated 
to be performed only for the first plant or first three plants 
referencing the AP600 DCR. The Tier 2* designation for these selected 
tests will expire after the first plant or first three plants complete 
the specified tests. However, a COL action item requires that 
subsequent plants shall also perform the tests or justify

[[Page 27634]]

that the results of the first-plant-only or first-three-plants-only 
tests are applicable to the subsequent plant. The Commission is 
interested in comments addressing whether the first-plant-only or 
first-three-plants-only limitations should be part of the Tier 2* 
information for these specified tests.
    During development of Appendices A and B to Part 52, 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 who 
references this appendix. The generic DCDs (identical to each other) 
would reflect generic changes to the version of the DCD approved in 
this design certification rulemaking. The generic changes would occur 
as the result of generic rulemaking by the Commission (subject to the 
change criteria in Section VIII of this appendix). In addition, the 
Commission understood that each applicant and licensee referencing this 
appendix would be required to submit and maintain a plant-specific DCD. 
This plant-specific DCD would contain (not just 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, any plant-specific 
departures from the generic DCD that the Commission imposed on the 
licensee by order, and any plant-specific departures that the licensee 
chose to make in accordance with the relevant processes in Section VIII 
of this appendix. Thus, the plant-specific DCD would function akin to 
an updated Final Safety Analysis Report, in the sense that it would 
provide the most complete and accurate information on a plant's 
licensing basis for that part of the plant within the scope of this 
appendix. Therefore, this appendix defines both a generic DCD and 
plant-specific DCD. Also, the Commission decided to treat the technical 
specifications in Section 16.1 of the generic DCD as a special category 
of information and to designate them as generic technical 
specifications. A COL applicant must submit plant-specific technical 
specifications that consist of the generic technical specifications, 
which may be modified under VIII.C of this appendix, and the remaining 
plant-specific information needed to complete the technical 
specifications, including bracketed values. The Final Safety Analysis 
Report (FSAR) that is required by Sec. 52.79(b) will consist of the 
plant-specific DCD, the site-specific portion of the FSAR, and the 
plant-specific technical specifications.

C. Scope and Contents

    The purpose of Section III of this appendix 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 A is the required statement of the Office of the 
Federal Register (OFR) for approval of the incorporation by reference 
of Tier 1, Tier 2, and the generic technical specifications into this 
appendix and paragraph B requires COL applicants and licensees to 
comply with the requirements of this appendix. The legal effect of 
incorporation by reference is that the material is treated as if it 
were published in the Federal Register. 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 technical specifications, 
have been combined into a single document called the generic design 
control document, in order to effectively control this information and 
facilitate its incorporation by reference into the rule. The generic 
DCD was prepared to meet the requirements of the OFR for incorporation 
by reference (1 CFR Part 51). One of the requirements of 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, III.A of this appendix identifies a 
representative of Westinghouse who can be contacted to obtain a copy of 
the generic DCD.
    Paragraphs A and B also identify the investment protection short-
term availability controls in Section 16.3 of the generic DCD as part 
of the Tier 2 information. During its review of the AP600 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, Westinghouse developed some 
administrative controls to provide a high level of confidence that 
active systems having a significant safety role are available when 
challenged. Westinghouse named these additional controls ``investment 
protection short-term availability controls,'' and the Commission 
included this statement in Section III to ensure that these 
availability controls are binding on applicants and licensees that 
reference this appendix and will 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 will be 
archived at NRC's central file with a matching copy at OFR. Copies of 
the up-to-date generic DCD will also be available at the NRC's Public 
Document Room. 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 NRC's central file. If a generic 
change (rulemaking) is made to the DCD pursuant to the change process 
in Section VIII of this appendix, then at the completion of the 
rulemaking the NRC will request approval of the Director, OFR for the 
changed incorporation by reference and change its copies of the generic 
DCD and notify the OFR and the design certification applicant to change 
their copies. The Commission is requiring that the design certification 
applicant maintain an up-to-date copy under X.A.1 of this appendix 
because it is likely that most applicants intending to reference the 
standard design will obtain the generic DCD from the design 
certification applicant. Plant-specific changes to and departures from 
the generic DCD will be maintained by the applicant or licensee that 
references this appendix in a plant-specific DCD, under X.A.2 of this 
appendix.
    In addition to requiring compliance with this appendix, paragraph B 
clarifies that the conceptual design information and Westinghouse's 
evaluation of severe accident mitigation design alternatives 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 intermingled throughout Tier 2. As 
provided by 10 CFR 52.47(a)(1)(ix), these conceptual designs are not 
part of this appendix and, therefore, are not applicable to an 
application that references this appendix. Therefore, the applicant 
does not need 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 of Tier 2 
identifies the location of the conceptual design information. 
Westinghouse'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 IV

[[Page 27635]]

of this SOC on environmental impacts. The detailed methodology and 
quantitative portions of the design-specific probabilistic risk 
assessment (PRA), as required by 10 CFR 52.47(a)(1)(v), were not 
included in the generic DCD, as requested by NEI and the applicant for 
design certification. The NRC agreed with the request to delete this 
information because conformance with the deleted portions of the PRA is 
not necessary. Also, the NRC's position is predicated in part upon 
NEI's acceptance, in conceptual form, of a future generic rulemaking 
that will require a COL applicant or licensee to have a plant-specific 
PRA that updates and supersedes the design-specific PRA supporting this 
rulemaking and maintain it throughout the operational life of the 
facility.
    Paragraphs C and D set forth the manner in which potential 
conflicts are to be resolved. Paragraph C establishes the Tier 1 
description in the DCD as controlling in the event of an inconsistency 
between the Tier 1 and Tier 2 information in the DCD. Paragraph D 
establishes the generic DCD as the controlling document in the event of 
an inconsistency between the DCD and either the application for 
certification of the AP600 design (AP600 Standard Safety Analysis 
Report) or the final safety evaluation report for the certified 
standard design.
    Paragraph E makes it clear that design activities that are wholly 
outside the scope of this design certification may be performed using 
site-specific design parameters, provided the design activities do not 
affect Tier 1 or Tier 2, or conflict with the interface requirements in 
the DCD. This provision applies to site-specific portions of the plant, 
such as the administration building. Because this statement is not a 
definition, the Commission decided that the appropriate location is in 
Section III of this appendix.

D. Additional Requirements and Restrictions

    Section IV of this appendix sets forth additional requirements and 
restrictions imposed upon an applicant who references this appendix. 
Paragraph IV.A sets forth the information requirements for these 
applicants. This appendix distinguishes 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 
actually included in the application), thereby reducing the physical 
bulk of the application. Any incorporation by reference in the 
application should be clear and should specify the title, date, 
edition, or version of a document, and the page number(s) and table(s) 
containing the relevant information to be incorporated by reference.
    Paragraph A.1 requires an applicant who references this appendix to 
incorporate by reference this appendix in its application. The legal 
effect of such incorporation by reference is that this appendix is 
legally binding on the applicant or licensee. Paragraph A.2.a is 
intended to make clear that the initial application must include a 
plant-specific DCD. This assures, among other things, that the 
applicant commits to complying with the DCD. This paragraph also 
requires the plant-specific DCD to use the same format as the generic 
DCD and to reflect the applicant's proposed departures and exemptions 
from the generic DCD as of the time of submission of the application. 
The Commission expects that the plant-specific DCD will become the 
plant's final safety analysis report (FSAR), by including within its 
pages, at the appropriate points, information such as site-specific 
information for the portions of the plant outside the scope of the 
referenced design, including related ITAAC, and other matters required 
to be included in an FSAR by 10 CFR 50.34 and 52.79. Integration of the 
plant-specific DCD and remaining site-specific information into the 
plant's FSAR, will result in an application that is easier to use and 
should minimize ``duplicate documentation'' and the attendant 
possibility for confusion. Paragraph A.2.a is also intended to make 
clear that the initial application must include the reports on 
departures and exemptions as of the time of submission of the 
application.
    Paragraph A.2.b requires that the application include the reports 
required by paragraph X.B of this appendix for exemptions and 
departures proposed by the applicant as of the date of submission of 
its application. Paragraph A.2.c requires submission of plant-specific 
technical specifications for the plant that consists of the generic 
technical specifications from Section 16.1 of the DCD, with any changes 
made under Section VIII.C of this appendix, and the technical 
specifications 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 technical specifications, such as 
bracketed values.
    Paragraph A.2.d makes it clear that the applicant must provide 
information demonstrating that the proposed site falls within the site 
parameters for this appendix and that the plant-specific design 
complies with the interface requirements, as required by 10 CFR 
52.79(b). If the proposed site has a characteristic that exceeds one or 
more of the site parameters in the DCD, then the proposed site is 
unacceptable for this design unless the applicant seeks an exemption 
under Section VIII of this appendix and justifies why the certified 
design should be found acceptable on the proposed site. Paragraph A.2.e 
requires submission of information addressing COL Action Items, which 
are identified in the generic DCD as Combined License Information, in 
the application. The Combined License Information identifies matters 
that need to be addressed by an applicant that references this 
appendix, as required by Subpart C of 10 CFR Part 52. An applicant may 
depart from or omit these items, provided that the departure or 
omission is identified and justified in its application (FSAR). 
Paragraph A.2.f requires that the application include the information 
required by 10 CFR 52.47(a) that is not within the scope of this rule, 
such as generic issues that must be addressed, in whole or in part, by 
an applicant that references this rule. Paragraph A.3 requires the 
applicant to physically include, not simply reference, the proprietary 
and safeguards information referenced in the DCD, or its equivalent, to 
assure that the applicant has actual notice of these requirements.
    Paragraph IV.B reserves to the Commission the right to determine in 
what manner this design certification 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 design certifications were not 
implemented in the manner that was originally envisioned at the time 
that 10 CFR Part 52 was created. The Commission's concern is with the 
manner in which ITAAC were developed and the lack of experience with 
design certifications in license proceedings. Therefore, it is 
appropriate to have some uncertainty regarding the manner in which this 
appendix could be referenced in a 10 CFR Part 50 licensing proceeding.

[[Page 27636]]

E. Applicable Regulations

    The purpose of Section V of this appendix is to specify the 
regulations that will be applicable and in effect (if and) when this 
proposed design certification is approved. These regulations will 
consist of the technically relevant regulations identified in paragraph 
A, except for the regulations in paragraph B that will not be 
applicable to this certified design.
    Paragraph A will identify the regulations in 10 CFR Parts 20, 50, 
73, and 100 that are applicable to the AP600 design. The Commission's 
determination of the applicable regulations will be made as of the date 
specified in paragraph V.A of this appendix, which will be the date 
that this appendix is approved by the Commission and signed by the 
Secretary.
    In paragraph V.B of this appendix, the Commission identified the 
regulations that do not apply to the AP600 design. The Commission has 
determined that the AP600 design should be exempt from portions of 10 
CFR 50.34, 50.62, and Appendix A to Part 50, as described in the FSER 
(NUREG-1512) and summarized below:
    (1) Paragraph (a)(1) of 10 CFR 50.34--whole body dose criterion.
    This regulation sets forth dose criteria to be used in siting 
determinations. The NRC staff performed its evaluation of the 
radiological consequences of postulated design basis accidents for the 
AP600 design against the dose criterion specified in 10 CFR 
50.34(a)(1)(ii)(D) because it was the Commission's intent that the new 
dose criterion be used for future nuclear power plants. However, when 
the NRC codified the new reactor site criteria for nuclear power plants 
(61 FR 65157; December 11, 1996), it made an error in the assignment of 
applicants that could use the new dose criterion [25 rem TEDE], versus 
those that must use the whole body criterion. The assignment of 
applicants in 10 CFR 50.34(a)(1), who must use the whole body 
criterion, should not have included applicants for a design 
certification or combined license who applied prior to January 10, 1997 
(refer to 61 FR 65158). The Commission adopted 25 rem TEDE as the new 
dose criterion for future plant evaluation purposes, because this value 
is essentially the same level of risk as the current criterion (61 FR 
65160). Therefore, the Commission has determined that the special 
circumstances described in 10 CFR 50.12(a)(2)(ii) exist in that 
application of the 25 rem whole body criterion is not necessary to 
achieve the underlying purpose of the rule because 25 rem TEDE is 
essentially the same level of risk. On this basis, the Commission 
concludes that the AP600 design review can be performed pursuant to the 
new dose criterion [25 rem TEDE] and an exemption from the requirements 
of 10 CFR 50.34(a)(1) is authorized by law, will not present an undue 
risk to public health and safety, and is consistent with the common 
defense and security.
    (2) Paragraph (f)(2)(iv) of 10 CFR 50.34--Plant Safety Parameter 
Display Console.
    10 CFR 50.34(f)(2)(iv) requires that an application provide a plant 
safety parameter display console that will display to operators a 
minimum set of parameters defining the safety status of the plant, be 
capable of displaying a full range of important plant parameters and 
data trends on demand, and be capable of indicating when process limits 
are being approached or exceeded. Westinghouse answered this 
requirement, in Section 18.8.2 of the DCD, with an integrated design 
rather than a stand-alone, add-on system, as is used at most current 
operating plants. Specifically, Westinghouse integrated the SPDS 
requirements into the design requirements for the alarm and display 
systems. In NUREG-0800, the NRC staff indicated that, for applicants 
who are in the early stages of the control room design, the ``function 
of a separate SPDS may be integrated into the overall control room 
design'' (p. 18.0-1). Therefore, the Commission has determined that the 
special circumstances described in 10 CFR 50.12(a)(2)(ii) exist in that 
the requirement for an SPDS console need not be applied in this 
particular circumstance to achieve the underlying purpose because 
Westinghouse has provided an acceptable alternative that accomplishes 
the intent of the regulation. On this basis, the Commission concludes 
that an exemption from the requirements of 10 CFR 50.34(f)(2)(iv) is 
authorized by law, will not present an undue risk to public health and 
safety, and is consistent with the common defense and security.
    (3) Paragraphs (f)(2)(vii), (viii), (xxvi), and (xxviii) of 10 CFR 
50.34--Accident Source Terms in TID 14844.
    Pursuant to 10 CFR 52.47(a)(ii), an applicant for design 
certification must demonstrate compliance with any technically relevant 
TMI requirements in 10 CFR 50.34(f). The TMI requirements in 10 CFR 
50.34(f)(2)(vii), (viii), (xxvi), and (xxviii) refer to the accident 
source term in TID 14844. Specifically, 10 CFR 50.34(f)(2)(xxviii) 
requires the evaluation of pathways that may lead to control room 
habitability problems ``under accident conditions resulting in a TID 
14844 source term release.'' Similar wording appears in requirements 
(vii), (viii), and (xxvi). Westinghouse has adopted the new source term 
technology summarized in NUREG-1465, ``Accident Source Terms for Light-
Water Nuclear Power Plants,'' dated February 1995, not the old TID 
14844 source term cited in 10 CFR Part 50.34(f). The Commission has 
determined that the special circumstances described in 10 CFR 
50.12(a)(ii) exist in that these regulations need not be applied in 
this particular circumstance to achieve the underlying purpose because 
Westinghouse has adopted acceptable alternatives that accomplish the 
intent of the regulations that specify TID 14844. On this basis, the 
Commission concludes that a partial exemption from the requirements of 
paragraphs (f)(2)(vii), (viii), (xxvi), and (xxviii) of 10 CFR 50.34 is 
authorized by law, will not present an undue risk to public health and 
safety, and is consistent with the common defense and security.
    (4) Paragraph (c)(1) of 10 CFR 50.62--Auxiliary feedwater system.
    The AP600 design relies on the passive residual heat removal system 
(PRHR) in lieu of an auxiliary or emergency feedwater system as its 
safety-related method of removing decay heat. Westinghouse requested an 
exemption from a portion of 10 CFR 50.62(c)(1), which requires 
auxiliary or emergency feedwater as an alternate system for decay heat 
removal during an ATWS event. The NRC staff concluded that Westinghouse 
met the intent of the rule by relying on the PRHR system to remove the 
decay heat and, thereby, met the underlying purpose of the rule. 
Therefore, the Commission has determined that the special circumstances 
described in 10 CFR 50.12(a)(2)(ii) exist in that the requirement for 
an auxiliary or emergency feedwater system is not necessary to achieve 
the underlying purpose of 10 CFR 50.62(c)(1), because Westinghouse has 
adopted acceptable alternatives that accomplish the intent of this 
regulation, and the exemption is authorized by law, will not present an 
undue risk to public health and safety, and is consistent with the 
common defense and security.
    (5) Appendix A to 10 CFR Part 50, GDC 17--Offsite Power Sources.
    Westinghouse requested a partial exemption from the requirement in 
GDC 17 for a second offsite power supply circuit. The AP600 plant 
design supports an exemption to this requirement by providing safety-
related ``passive'' systems. These passive safety-

[[Page 27637]]

related systems only require electric power for valves and the related 
instrumentation. The onsite Class 1E batteries and associated dc and ac 
distribution systems can provide the power for these valves and 
instrumentation. In addition, if no offsite power is available, it is 
expected that the non-safety-related onsite diesel generators would be 
available for important plant functions; however, this non-safety-
related ac power is not relied on to maintain core cooling or 
containment integrity. Therefore, the Commission has determined that 
the special circumstances described in 10 CFR 50.12(a)(2)(ii) exist in 
that the requirement need not be applied in this particular 
circumstance to achieve the underlying purpose of having two offsite 
power sources because the AP600 design includes an acceptable 
alternative approach to accomplish safety functions that does not rely 
on power from the offsite system and, therefore, accomplishes the 
intent of the regulation. On this basis, the Commission concludes that 
a partial exemption from the requirements of GDC 17 is authorized by 
law, will not present an undue risk to public health and safety, and is 
consistent with the common defense and security.
    (6) Appendix A to 10 CFR Part 50, GDC 19--whole body dose 
criterion.
    The NRC staff used a criterion of 5 rem TEDE for evaluating the 
radiological consequences of design basis accidents in the control room 
of the AP600 design, under GDC 19 of Appendix A to 10 CFR Part 50. The 
NRC staff used the 5 rem TEDE criterion to be consistent with the new 
reactor site criteria in 10 CFR 50.34(a)(1) [61 FR 65157], although GDC 
19 specifies . . . ``5 rem whole body, or its equivalent to any part of 
the body''. . . The Commission adopted 25 rem TEDE as the new dose 
criterion for plant evaluation purposes, because this value is 
essentially the same level of risk as the current criteria (61 FR 
65160). Therefore, the Commission has determined that the special 
circumstances described in 10 CFR 50.12(a)(2)(ii) exist in that 
application of the 5 rem whole body criterion is not necessary to 
achieve the underlying purpose of the rule because 5 rem TEDE is 
essentially the same level of risk. On this basis, the Commission 
concludes that a partial exemption from GDC 19 is authorized by law, 
will not present an undue risk to public health and safety, and is 
consistent with the common defense and security.

F. Issue Resolution

    The purpose of Section VI of this appendix is to identify the scope 
of issues that are resolved by the Commission in this rulemaking and; 
therefore, are ``matters resolved'' within the meaning and intent of 10 
CFR 52.63(a)(4). The section is divided into five parts: (A) the 
Commission's safety findings in adopting this appendix, (B) the scope 
and nature of issues which are resolved by this rulemaking, (C) issues 
which are not resolved by this rulemaking, (D) the backfit restrictions 
applicable to the Commission with respect to this appendix, and (E) the 
availability of secondary references.
    Paragraph A describes in general terms the nature of the 
Commission's findings, and makes the finding required by 10 CFR 52.54 
for the Commission's approval of this design certification rule. 
Furthermore, paragraph A explicitly states the Commission's 
determination that this design provides adequate protection of the 
public health and safety.
    Paragraph B sets forth the scope of issues which may not be 
challenged as a matter of right in subsequent proceedings. The 
introductory phrase of paragraph 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 B 
describes the categories of information for which there is issue 
resolution. Specifically, paragraph B.1 provides 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-1512), the Tier 1 and Tier 2 information (including the 
availability controls in Section 16.3 of the generic DCD), and the 
rulemaking record for this appendix are resolved within the meaning of 
Sec. 52.63(a)(4). These issues include the information referenced in 
the DCD that are requirements (i.e., ``secondary references''), as well 
as all issues arising from proprietary and safeguards information which 
are intended to be requirements. Paragraph B.2 provides for issue 
preclusion of proprietary and safeguards information. Paragraphs B.3, 
B.4, B.5, and B.6 clarify that approved changes to and departures from 
the DCD which are accomplished in compliance with the relevant 
procedures and criteria in Section VIII of this appendix continue to be 
matters resolved in connection with this rulemaking. Paragraph B.7 
provides that, for those plants located on sites whose site parameters 
do not exceed those assumed in Westinghouse's evaluation of severe 
accident mitigation design alternatives (SAMDAs), all issues with 
respect to SAMDAs arising under the National Environmental Policy Act 
of 1969 associated with the information in the Environmental Assessment 
for this design and the information regarding SAMDAs in Appendix 1B of 
the generic DCD are also resolved within the meaning and intent of 
Sec. 52.63(a)(4). In the event an exemption from a site parameter is 
granted, the exemption applicant has the initial burden of 
demonstrating that the original SAMDA analysis still applies to the 
actual site parameters but, if the exemption is approved, requests for 
litigation at the COL stage must meet the requirements of Sec. 2.714 
and present sufficient information to create a genuine controversy in 
order to obtain a hearing on the site parameter exemption.
    Paragraph C reserves the right of the Commission to impose 
operational requirements on applicants that reference this appendix. 
This provision reflects the fact that operational requirements, 
including generic technical specifications in Section 16.1 of the DCD, 
were not completely or comprehensively reviewed at the design 
certification stage. Therefore, the special backfit provisions of 
Sec. 52.63 do not apply to operational requirements. However, all 
design changes will be controlled by the appropriate provision in 
Section VIII of this appendix. Although the information in the DCD that 
is related to operational requirements was necessary to support the NRC 
staff's safety review of this design, the review of this information 
was not sufficient to conclude that the operational requirements are 
fully resolved and ready to be assigned finality under Sec. 52.63. As a 
result, if the NRC wanted to change a temperature limit and that 
operational change required a consequential change to a design feature, 
then the temperature limit backfit would be controlled by Section VIII 
(paragraph A or B) of this appendix. However, changes to other 
operational issues, such as in-service testing and in-service 
inspection programs, post-fuel load verification activities, and 
shutdown risk that do not require a design change would not be 
restricted by Sec. 52.63 (see VIII.C of this appendix). Paragraph C 
does 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

[[Page 27638]]

ascension testing, are not restricted by Sec. 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 
after design certification. 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 the 
right to impose license conditions by rule for post-fuel load 
verification activities for portions of the plant within the scope of 
this design certification.
    Paragraph D reiterates the restrictions (contained in Section VIII 
of this appendix) 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 
(VI.D.3 addresses ITAAC) within the scope of the certified design.
    Paragraph E provides the procedure for an interested member of the 
public to obtain access to proprietary or safeguards information for 
the AP600 design, in order to request and participate in proceedings 
identified in VI.B of this appendix, viz., proceedings involving 
licenses and applications which reference this appendix. As set forth 
in paragraph E, access must first be sought from the design 
certification applicant. If Westinghouse refuses to provide the 
information, the person seeking access shall request access from the 
Commission or the presiding officer, as applicable. Access to the 
proprietary or safeguards information may be ordered by the Commission, 
but must be subject to an appropriate non-disclosure agreement.

G. Duration of This Appendix

    The purpose of Section VII of this appendix is in part to specify 
the time period during which this design certification may be 
referenced by an applicant for a combined license, under 10 CFR 52.55. 
This section also states that the design certification remains 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 continues in effect until 
the application is withdrawn or the license issued on that application 
expires. Also, the design certification continues in effect for the 
referencing license 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 pursuant to the change processes in Section VIII of this 
appendix for the life of the plant.

H. Processes for Changes and Departures

    The purpose of Section VIII of this appendix is 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 design 
certification rule. 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 the design certification rule itself, as is contemplated by 
10 CFR 52.63(a)(1). Consistent with 10 CFR 52.63(a)(2), any generic 
rulemaking changes are applicable to all plants, absent circumstances 
which render the change [``modification'' in the language of 
Sec. 52.63(a)(2)] ``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 Sec. 50.59 departure or an exemption. Because these plant-
specific departures will result in a DCD that is unique for that plant, 
Section X of this appendix requires 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.''
    Both Section VIII of this appendix and this SOC refer to an 
``exemption'' from one or more requirements of this appendix and the 
criteria for granting an exemption. The Commission cautions that where 
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 50.12.
Tier 1 Information
    The change processes for Tier 1 information are covered in 
paragraph VIII.A. Generic changes to Tier 1 are accomplished by 
rulemaking that amends the generic DCD and are governed by the 
standards in 10 CFR 52.63(a)(1). This provision provides that the 
Commission may not modify, change, rescind, or impose new requirements 
by rulemaking except where 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. The rulemakings must include an opportunity for hearing 
with respect to the proposed change, as required by 10 CFR 52.63(a)(1), 
and the Commission expects such hearings to be conducted in accordance 
with 10 CFR Part 2, Subpart H. 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 A.3; or (2) an applicant or licensee may request 
an exemption from Tier 1, as provided in paragraph A.4. If the 
Commission seeks to order a licensee to depart from Tier 1, paragraph 
A.3 requires that the Commission find both that the departure is 
necessary for adequate protection or for compliance, and that special 
circumstances are present. Paragraph A.4 provides that exemptions from 
Tier 1 requested by an applicant or licensee are governed by the 
requirements of 10 CFR 52.63(b)(1) and 52.97(b), which provide an 
opportunity for a hearing. In addition, the Commission will not grant 
requests for exemptions that may result in a significant decrease in 
the level of safety otherwise provided by the design.
Tier 2 Information
    The change processes for the three different categories of Tier 2 
information, viz., Tier 2, Tier 2*, and Tier 2* with a time of 
expiration, are 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 are different. 
The Commission adopted a ``50.59-like'' change process for Tier 2 
information,

[[Page 27639]]

in accordance with its SRMs on SECY-90-377 and SECY-92-287A. The 
Commission is currently considering revisions to 10 CFR 50.59. After 
the Section 50.59 rulemaking is complete, the Commission will determine 
whether any comparable revisions should be made to the ``50.59-like'' 
portion of the Tier 2 change process (see Section VIII.B.5 of this 
appendix). As stated at the beginning of Section III, ``Section-by-
section discussion of design certification rule,'' it is the 
Commission's intent that this appendix emulate Appendices A and B to 10 
CFR Part 52, at this time. Therefore, the Commission will consider 
updating 10 CFR Part 52, including the Appendices, in an upcoming Part 
52 rulemaking (see SECY-98-282) and it will also consider any Section 
50.59 revisions, as they may apply to the three design certification 
rules. However, any backfitting implications for Section VIII.B.5 of 
the design certification rules will be covered in the Section 50.59 
rulemaking.
    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 B.1, generic Tier 2 
changes are accomplished by rulemaking amending the generic DCD, and 
are governed by the standards in 10 CFR 52.63(a)(1). This provision 
provides that the Commission may not modify, change, rescind or impose 
new requirements by rulemaking except where 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 assure adequate protection of the public health and 
safety or common defense and security. 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 may occur in five ways: (1) the Commission 
may order a plant-specific departure, as set forth in paragraph B.3; 
(2) an applicant or licensee may request an exemption from a Tier 2 
requirement as set forth in paragraph B.4; (3) a licensee may make a 
departure without prior NRC approval in accordance with paragraph B.5 
[the ``50.59-like'' process]; (4) the licensee may request NRC approval 
for proposed departures which do not meet the requirements in paragraph 
B.5 as provided in paragraph B.5.d; and (5) the licensee may request 
NRC approval for a departure from Tier 2* information under paragraph 
B.6.
    Similar to Commission-ordered Tier 1 departures and generic Tier 2 
changes, Commission-ordered Tier 2 departures cannot be imposed except 
where 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 B.3. However, the special circumstances for the 
Commission-ordered Tier 2 departures do 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)(3). 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)(3) and (b)(1). This type of additional 
limitation for standardization would unnecessarily restrict the 
flexibility of applicants and licensees with respect to Tier 2, which 
by its nature is not as safety significant as Tier 1.
    An applicant or licensee may request an exemption from Tier 2 
information as set forth in paragraph B.4. The applicant or licensee 
must demonstrate that the exemption complies with one of the special 
circumstances in 10 CFR 50.12(a). In addition, the Commission will 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 is 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 is subject to litigation in the same manner as a 
license amendment.
    Paragraph B.5 allows 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, technical specifications, or involves an unreviewed safety 
question (USQ) as defined in B.5.b and B.5.c of this paragraph. The 
technical specifications referred to in B.5.a and B.5.b of this 
paragraph are the technical specifications in Section 16.1 of the 
generic DCD, including bases, for departures made prior to issuance of 
the COL. After issuance of the COL, the plant-specific technical 
specifications are controlling under paragraph B.5. The bases for the 
plant-specific technical specifications will be controlled by the bases 
control procedures for the plant-specific technical specifications 
(analogous to the bases control provision in the Improved Standard 
Technical Specifications). The definition of a USQ in paragraph B.5.b 
is similar to the definition in 10 CFR 50.59 and it applies to all 
information in Tier 2 except for the information that resolves the 
severe accident issues. The process for evaluating proposed tests or 
experiments not described in Tier 2 will be incorporated into the 
change process for the portion of the design that is outside the scope 
of this design certification. Although paragraph B.5 does not 
specifically state, the Commission has determined that departures must 
also comply with all applicable regulations unless an exemption or 
other relief is obtained.
    The Commission believes that it is important to preserve and 
maintain the resolution of severe accident issues just like all other 
safety issues that were resolved during the design certification review 
(refer to SRM on SECY-90-377). However, because of the increased 
uncertainty in severe accident issue resolutions, the Commission has 
adopted separate criteria in B.5.c for determining whether a departure 
from information that resolves severe accident issues constitutes a 
USQ. For purposes of applying the special criteria in B.5.c, severe 
accident resolutions are limited to design features when the intended 
function of the design feature is relied upon to resolve postulated 
accidents where the reactor core has melted and exited the reactor 
vessel and the containment is being challenged (severe accidents). 
These design features are identified in Section 1.9.5 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 severe 
accident issues. However, the special procedure in B.5.c does 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 is limited solely to 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

[[Page 27640]]

design features are reviewed under paragraph VIII.B.5, then the 
appropriate criteria from either B.5.b or B.5.c are selected depending 
upon the function being changed.
    An applicant or licensee that plans to depart from Tier 2 
information, under VIII.B.5, must prepare a safety evaluation which 
provides the bases for the determination that the proposed change does 
not involve an unreviewed safety question, a change to Tier 1 or Tier 
2* information, or a change to the technical specifications, as 
explained above. In order to achieve the Commission's goals for design 
certification, the evaluation needs 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 needs 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 must also include a review of all relevant secondary 
references from the DCD because Tier 2 information intended to be 
treated as requirements is contained in the secondary references. The 
evaluation should consider Tables 14.3-1 through 14.3-8 and 19.59-29 of 
the generic DCD to ensure that the proposed change does not impact Tier 
1. These tables contain various cross-references from the safety 
analyses and probabilistic risk assessment in Tier 2 to the important 
parameters that were included in Tier 1. Although many issues and 
analyses could have been cross-referenced, the listings in these tables 
were developed only for key analyses for the AP600 design. Westinghouse 
provided more detailed cross-references for important analysis 
assumptions that are included in Tier 1 in its revised response to RAI 
640.60 (DCP/NRC 1440--September 15, 1998).
    If a proposed departure from Tier 2 involves a change to or 
departure from Tier 1 or Tier 2* information, technical specifications, 
or otherwise constitutes a USQ, then the applicant or licensee must 
obtain NRC approval through the appropriate process set forth in this 
appendix before implementing the proposed departure. The NRC does not 
endorse NSAC-125, ``Guidelines for 10 CFR 50.59 Safety Evaluations,'' 
for performing safety evaluations required by VIII.B.5 of this 
appendix. However, the NRC will work with industry, if it is desired, 
to develop an appropriate guidance document for processing proposed 
changes under VIII.B of this appendix.
    A party to an adjudicatory proceeding (e.g., for issuance of a 
combined license) who believes that an applicant or licensee has not 
complied with VIII.B.5 when departing from Tier 2 information, may 
petition to admit such a contention into the proceeding under B.5.f. 
This provision was included because an incorrect departure from the 
requirements of this appendix essentially places 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 B.5.f, the 
petition must comply with the requirements of Sec. 2.714(b)(2) and show 
that the departure does not comply with paragraph B.5. Any other party 
may file a response to the petition. 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 shall be certified 
to the Commission for its final determination. In the absence of a 
proceeding, petitions alleging non-conformance with paragraph B.5 
requirements applicable to Tier 2 departures will be treated as 
petitions for enforcement action under 10 CFR 2.206.
    Paragraph B.6 provides 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. During this development process, the applicants for 
design certification requested that the amount of information in Tier 1 
be minimized to provide additional flexibility for an applicant or 
licensee who references this appendix. Also, many codes, standards, and 
design processes, which were not specified in Tier 1, that are 
acceptable for meeting ITAAC were specified in Tier 2. The result of 
these actions is that certain significant information only exists in 
Tier 2 and the Commission does not want this significant information to 
be changed without prior NRC approval. This Tier 2* information is 
identified in the generic DCD with italicized text and brackets.
    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%) 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 determining factors were the 
Tier 1 information that would govern these areas after first full power 
and the NRC's judgement on whether prior approval was required before 
implementation of the change due to the significance of the 
information. Therefore, certain Tier 2* information listed in paragraph 
B.6.c ceases to retain its Tier 2* designation after full power 
operation is first achieved following the Commission finding in 10 CFR 
52.103(g). Thereafter, that information is deemed to be Tier 2 
information that is subject to the departure requirements in paragraph 
B.5. By contrast, the Tier 2* information identified in paragraph B.6.b 
retains its Tier 2* designation throughout the duration of the license, 
including any period of renewal.
    Certain preoperational tests in paragraph B.6.c are designated to 
be performed only for the first plant or first three plants that 
reference this appendix. Westinghouse's basis for performing these 
``first-plant-only'' and ``first-three-plants-only'' preoperational 
tests is provided in Section 14.2.5 of the DCD. The NRC staff found 
Westinghouse's basis for performing these tests and its justification 
for only performing the tests on the first-plant or first-three-plants 
acceptable. The NRC staff'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 will result in 
significant thermal transients being applied to critical plant 
components. The NRC staff believes that the range of manufacturing or 
construction variations that could adversely affect the relevant 
passive safety systems will be adequately disclosed after performing 
the designated tests on the first plant, or the first three plants, as 
applicable. The COL action item in Section 14.4.6 of the DCD states 
that subsequent plants shall either perform these preoperational tests 
or justify that the results of the first-plant-only or first-three-
plant-only tests are applicable to the subsequent plant. The Tier 2* 
designation for these tests will expire after the first plant or first 
three plants complete these tests, as indicated in paragraph 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

[[Page 27641]]

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 is 
subject to litigation in the same manner as other plant-specific issues 
in the licensing hearing. If a licensee makes a departure, it will be 
treated as a license amendment under 10 CFR 50.90 and the finality is 
in accordance with paragraph VI.B.5 of this appendix. Any requests for 
departures from Tier 2* information that affect Tier 1 must also comply 
with the requirements in VIII.A of this appendix.
Operational Requirements
    The change process for technical specifications and other 
operational requirements in the DCD is set forth in paragraph VIII.C. 
This change process has elements similar to the Tier 1 and Tier 2 
change process in paragraphs VIII.A and VIII.B, but with significantly 
different change standards. Because of the different finality status 
for technical specifications and other operational requirements (refer 
to III.F of this SOC), the Commission decided to designate a special 
category of information, consisting of the technical specifications and 
other operational requirements, with its own change process in 
paragraph VIII.C. The key to using the change processes in Section VIII 
is to determine if the proposed change or departure requires 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 applies. However, if a proposed change to the technical 
specifications or other operational requirements does not require a 
change to a design feature in the generic DCD, then paragraph VIII.C 
applies. The language in paragraph VIII.C also distinguishes between 
generic (Section 16.1 of DCD) and plant-specific technical 
specifications to account for the different treatment and finality 
accorded technical specifications before and after a license is issued.
    The process in C.1 for making generic changes to the generic 
technical specifications in Section 16.1 of the DCD or other 
operational requirements in the generic DCD is accomplished by 
rulemaking and governed by the backfit standards in 10 CFR 50.109. The 
determination of whether the generic technical specifications and other 
operational requirements were completely reviewed and approved in the 
design certification rulemaking is based upon the extent to which an 
NRC safety conclusion in the FSER is being modified or changed. If it 
cannot be determined that the technical specification or operational 
requirement was comprehensively reviewed and finalized in the design 
certification rulemaking, then there is no backfit restriction under 10 
CFR 50.109 because no prior position was taken on this safety matter. 
Some generic technical specifications contain bracketed values, which 
clearly indicate that the NRC staff's review was not complete. Generic 
changes made under VIII.C.1 are applicable to all applicants or 
licensees (refer to VIII.C.2), unless the change is irrelevant because 
of a plant-specific departure.
    Plant-specific departures may occur by either a Commission order 
under VIII.C.3 or an applicant's exemption request under VIII.C.4. The 
basis for determining if the technical specification or operational 
requirement was completely reviewed and approved for these processes is 
the same as for VIII.C.1 above. If the technical specification or 
operational requirement was 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 is no restriction on plant-
specific changes to the technical specifications or operational 
requirements, prior to issuance of a license, provided a design change 
is not required. Although the generic technical specifications were 
reviewed by the NRC staff to facilitate the design certification 
review, the Commission intends to consider the lessons learned from 
subsequent operating experience during its licensing review of the 
plant-specific technical specifications. The process for petitioning to 
intervene on a technical specification or operational requirement is 
similar to other issues in a licensing hearing, except that the 
petitioner must also demonstrate why special circumstances are present 
(VIII.C.5).
    Finally, the generic technical specifications will have no further 
effect on the plant-specific technical specifications after the 
issuance of a license that references this appendix. The bases for the 
generic technical specifications will be controlled by the change 
process in Section VIII.C of this appendix. After a license is issued, 
the bases will be controlled by the bases change provision set forth in 
the administrative controls section of the plant-specific technical 
specifications.

I. Inspections, Tests, Analyses, and Acceptance Criteria (ITAAC)

    The purpose of Section IX of this appendix is to set forth how the 
ITAAC in Tier 1 of this design certification rule are to be treated in 
a license proceeding. Paragraph A restates the responsibilities of an 
applicant or licensee for performing and successfully completing ITAAC, 
and notifying the NRC of such completion. Paragraph A.1 makes it clear 
that an applicant may proceed at its own risk with design and 
procurement activities subject to ITAAC, and that a licensee may 
proceed at its own risk with design, procurement, construction, and 
preoperational testing activities subject to an ITAAC, even though the 
NRC may not have found that any particular ITAAC has been successfully 
completed. Paragraph A.2 requires the licensee to notify the NRC that 
the required inspections, tests, and analyses in the ITAAC have been 
completed and that the acceptance criteria have been met.
    Paragraphs B.1 and B.2 essentially reiterate the NRC's 
responsibilities with respect to ITAAC as set forth in 10 CFR 52.99 and 
52.103(g). Finally, paragraph B.3 states that ITAAC do not, by virtue 
of their inclusion in the DCD, constitute regulatory requirements after 
the licensee has received authorization to load fuel or for renewal of 
the license. However, subsequent modifications must comply with the 
design descriptions in the DCD unless the applicable requirements in 10 
CFR 52.97 and Section VIII of this appendix have been complied with. As 
discussed in III.D of this SOC, the Commission will defer a 
determination of the applicability of ITAAC and their effect in terms 
of issue resolution in 10 CFR Part 50 licensing proceedings to such 
time that a Part 50 applicant decides to reference this appendix.

J. Records and Reporting

    The purpose of Section X of this appendix is to set forth the 
requirements for maintaining records of changes to and departures from 
the generic DCD, which are to be reflected in the plant-specific DCD. 
Section X also sets forth the requirements for submitting reports 
(including updates to the plant-specific DCD) to the NRC. This section 
of the appendix is similar to the requirements for records and reports 
in 10 CFR Part 50, except for minor differences in information 
collection and reporting requirements, as discussed in V of this SOC. 
Paragraph X.A.1 of this appendix requires that a generic DCD and the 
proprietary and safeguards information

[[Page 27642]]

referenced in the generic DCD be maintained by the applicant for this 
rule. The generic DCD was developed, in part, to meet the requirements 
for incorporation by reference, including availability requirements. 
Therefore, the proprietary and safeguards information could not be 
included in the generic DCD because it is not publicly available. 
However, the proprietary and safeguards information was reviewed by the 
NRC and, as stated in paragraph VI.B.2 of this appendix, the Commission 
considers the information to be resolved within the meaning of 10 CFR 
52.63(a)(4). Because this information is not in the generic DCD, the 
proprietary and safeguards information, or its equivalent, is required 
to be provided by an applicant for a license. Therefore, to ensure that 
this information will be available, a requirement for the design 
certification applicant to maintain the proprietary and safeguards 
information was added to paragraph X.A.1 of this appendix. The 
acceptable version of the proprietary and safeguards information is 
identified (referenced) in the version of the DCD that is incorporated 
into this rule. The generic DCD and the acceptable version of the 
proprietary and safeguards information must be maintained for the 
period of time that this appendix may be referenced.
    Paragraphs A.2 and A.3 place record-keeping requirements on the 
applicant or licensee that references this design certification to 
maintain its plant-specific DCD to accurately reflect both generic 
changes to the generic DCD and plant-specific departures made pursuant 
to Section VIII of this appendix. The term ``plant-specific'' was added 
to paragraph A.2 and other Sections of this appendix to distinguish 
between the generic DCD that is incorporated by reference into this 
appendix, and the plant-specific DCD that the applicant is required to 
submit under IV.A of this appendix. The requirement to maintain the 
generic changes to the generic DCD is explicitly stated to ensure that 
these changes are not only reflected in the generic DCD, which will be 
maintained by the applicant for design certification, but that the 
changes are also reflected in the plant-specific DCD. Therefore, 
records of generic changes to the DCD will be required to be maintained 
by both entities to ensure that both entities have up-to-date DCDs.
    Section X.A of this appendix does not place record-keeping 
requirements on site-specific information that is outside the scope of 
this rule. As discussed in III.D of this SOC, the final safety analysis 
report required by 10 CFR 52.79 will 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.d of this appendix refers to the 
information that is contained in the final safety analysis report for a 
facility (required by 10 CFR 52.79) but is not part of the plant-
specific DCD (required by IV.A of this appendix). Therefore, this rule 
does not require that duplicate documentation be maintained by an 
applicant or licensee that references this rule, because the plant-
specific DCD is part of the final safety analysis report for the 
facility.
    Paragraphs B.1 and B.2 establish reporting requirements for 
applicants or licensees that reference this rule that are similar to 
the reporting requirements in 10 CFR Part 50. For currently operating 
plants, a licensee is required to maintain records of the basis for any 
design changes to the facility made under 10 CFR 50.59. Section 
50.59(b)(2) requires a licensee to provide a summary report of these 
changes to the NRC annually, or along with updates to the facility 
final safety analysis report under 10 CFR 50.71(e). Section 50.71(e)(4) 
requires that these updates be submitted annually, or 6 months after 
each refueling outage if the interval between successive updates does 
not exceed 24 months.
    The reporting requirements in paragraph B.3 vary according to four 
different time periods during a facilities' lifetime. Paragraph B.3.a 
requires that if an applicant that references this rule decides to make 
departures from the generic DCD, then the departures and any updates to 
the plant-specific DCD must be submitted with the initial application 
for a license. Under B.3.b, the applicant may submit any subsequent 
reports and updates 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 B.3.c requires that summary reports be submitted quarterly 
during the period of facility construction. This increase in frequency 
of summary reports of departures from the plant-specific DCD is in 
response to the Commission's guidance on reporting frequency in its SRM 
on SECY-90-377, dated February 15, 1991.
    Quarterly reporting of design changes during the period of 
construction is necessary to closely monitor the status and progress of 
the construction of the plant. To make its finding under 10 CFR 52.99, 
the NRC must monitor the design changes made in accordance with Section 
VIII of this appendix. The ITAAC verify that the as-built facility 
conforms with the approved design and emphasizes design reconciliation 
and design verification. Quarterly reporting of design changes is 
particularly important in times where the number of design changes 
could be significant, such as during the procurement of components and 
equipment, detailed design of the plant at the start of construction, 
and during preoperational testing. The frequency of updates to the 
plant-specific DCD is not increased during facility construction. After 
the facility begins operation, the frequency of reporting reverts to 
the requirement in X.B.3.d, which is consistent with the requirement 
for plants licensed under 10 CFR Part 50.

IV. Finding of No Significant Environmental Impact: Availability

    The Commission has determined under the National Environmental 
Policy Act of 1969, as amended (NEPA), and the Commission's regulations 
in 10 CFR Part 51, Subpart A, that this 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 basis for 
this determination, as documented in the environmental assessment, is 
that this amendment to 10 CFR Part 52 would not authorize the siting, 
construction, or operation of a facility using the AP600 design; it 
would only codify the AP600 design in a rule. The NRC will evaluate the 
environmental impacts and issue an EIS as appropriate in accordance 
with NEPA as part of the application(s) for the construction and 
operation of a facility.
    In addition, as part of the environmental assessment for the AP600 
design, the NRC reviewed Westinghouse's evaluation of various design 
alternatives to prevent and mitigate severe accidents in Appendix 1B of 
the AP600 Standard Safety Analysis Report (SSAR). The Commission finds 
that Westinghouse's evaluation provides a reasonable assurance that 
certifying the AP600 design will not exclude severe accident mitigation 
design alternatives for a future facility that would prove cost 
beneficial had they been considered as part of the original design 
certification application. These issues are considered resolved for the 
AP600 design.
    The environmental assessment (EA), upon which the Commission's 
finding of no significant impact is based, and AP600 SSAR are available 
for examination and copying at the NRC

[[Page 27643]]

Public Document Room, 2120 L Street, NW. (Lower Level), Washington, DC. 
Single copies of the EA are also available from Jerry N. Wilson, 
Mailstop O-12 G15, Office of Nuclear Reactor Regulation, U.S. Nuclear 
Regulatory Commission, Washington, DC 20555.

V. Paperwork Reduction Act Statement

    This proposed rule amends 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 for review and approval of the information collection 
requirements.
    The public reporting burden for this information collection is 
estimated to average 8 person-hours per response, including the time 
for reviewing instructions, searching existing data sources, gathering 
and maintaining the data needed, and completing and reviewing the 
information collection. The NRC is seeking public comment on the 
potential impact of the information collections contained in the 
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?
    Send comments on any aspect of this proposed information 
collection, including suggestions for reducing the burden, to the 
Records Management Branch (T-6 E6), U.S. Nuclear Regulatory Commission, 
Washington, DC 20555-0001, or by Internet electronic mail at 
[email protected]; and to the Desk Officer, Office of Information and 
Regulatory Affairs, NEOB-10202, (3150-0151), Office of Management and 
Budget, Washington, DC 20503.
    Comments to OMB on the information collections or on the above 
issues should be submitted by June 21, 1999. 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.

Public Protection Notification

    If a means used to impose an information collection does not 
display a currently valid OMB control number, the NRC may not conduct 
or sponsor, and a person is not required to respond to, the information 
collection.

VI. Regulatory Analysis

    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. 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.

VII. Regulatory Flexibility Act Certification

    In accordance with the Regulatory Flexibility Act of 1980, 5 U.S.C. 
605(b), the Commission certifies that this proposed rulemaking will not 
have a significant economic impact upon 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, 15 U.S.C. 632, 
or the Small Business Size Standards set out in regulations issued by 
the Small Business Administration in 13 CFR Part 121. Thus, this rule 
does not fall within the purview of the act.

VIII. Backfit Analysis

    The Commission has determined that the backfit rule, 10 CFR 50.109, 
does not apply to this proposed rule because this amendment does not 
impose new or changed requirements on existing 10 CFR Part 50 
licensees. Therefore, a backfit analysis was not prepared for this 
rule.

IX. Consensus Standards

    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 
the use of such a standard is inconsistent with applicable law or 
otherwise impractical. This proposed rule provides for certification of 
a nuclear power plant design. 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. Furthermore, design certification 
rulemakings are initiated by an applicant for a design certification, 
rather than the NRC. For these reasons, the Commission concludes that 
the Act does not apply to this proposed rule.

List of Subjects in 10 CFR Part 52

    Administrative practice and procedure, Antitrust, Backfitting, 
Combined license, Early site permit, Emergency planning, Fees, 
Incorporation by reference, Inspection, Limited work authorization, 
Nuclear power plants and reactors, Probabilistic risk assessment, 
Prototype, Reactor siting criteria, Redress of site, Reporting and 
record keeping requirements, Standard design, Standard design 
certification.
    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 amendment to 10 CFR Part 52.

PART 52--EARLY SITE PERMITS; STANDARD DESIGN CERTIFICATIONS; AND 
COMBINED LICENSES FOR NUCLEAR POWER PLANTS

    1. The authority citation for 10 CFR Part 52 continues to read as 
follows:

    Authority: Secs. 103, 104, 161, 182, 183, 186, 189, 68 Stat. 
936, 948, 953, 954, 955, 956, as amended, sec. 234, 83 Stat. 1244, 
as amended (42 U.S.C. 2133, 2201, 2232, 2233, 2236, 2239, 2282); 
secs. 201, 202, 206, 88 Stat. 1243, 1244, 1246, 1246 as amended (42 
U.S.C. 5841, 5842, 5846).

    2. In Sec. 52.8, paragraph (b) is revised to read as follows:


Sec. 52.8  Information collection requirements: OMB approval.

* * * * *
    (b) The approved information collection requirements contained in 
this part appear in Secs. 52.15, 52.17, 52.29, 52.35, 52.45, 52.47, 
52.51, 52.57, 52.63, 52.75, 52.77, 52.78, 52.79, 52.89, 52.91, 52.99, 
and appendices A, B, and C.

[[Page 27644]]

    3. A new Appendix C to 10 CFR Part 52 is added to read as follows:

Appendix C To Part 52--Design Certification Rule for the AP600 
Design

I. Introduction

    Appendix C constitutes the standard design certification for the 
AP600 1 design, in accordance with 10 CFR Part 52, 
Subpart B. The applicant for certification of the AP600 design is 
Westinghouse Electric Company LLC.
---------------------------------------------------------------------------

    \1\ AP600 is a trademark of Westinghouse Electric Company LLC
---------------------------------------------------------------------------

II. Definitions

    A. Generic design control document (generic DCD) means the 
document containing the Tier 1 and Tier 2 information and generic 
technical specifications that is incorporated by reference into this 
appendix.
    B. Generic technical specifications means the information, 
required by 10 CFR 50.36 and 50.36a, for the portion of the plant 
that is within the scope of this appendix.
    C. Plant-specific DCD means the document, maintained by an 
applicant or licensee who references this appendix, consisting of 
the information in the generic DCD, as modified and supplemented by 
the plant-specific departures and exemptions made under Section VIII 
of this appendix.
    D. Tier 1 means the portion of the design-related information 
contained in the generic DCD that is approved and certified by this 
appendix (hereinafter Tier 1 information). The design descriptions, 
interface requirements, and site parameters are derived from Tier 2 
information. Tier 1 information includes:
    1. Definitions and general provisions;
    2. Design descriptions;
    3. Inspections, tests, analyses, and acceptance criteria 
(ITAAC);
    4. Significant site parameters; and
    5. Significant interface requirements.
    E. Tier 2 means the portion of the design-related information 
contained in the generic DCD that is approved but not certified by 
this appendix (hereinafter Tier 2 information). Compliance with Tier 
2 is required, but generic changes to and plant-specific departures 
from Tier 2 are governed by Section VIII of this appendix. 
Compliance with Tier 2 provides a sufficient, but not the only 
acceptable, method for complying with Tier 1. Compliance methods 
differing from Tier 2 must satisfy the change process in Section 
VIII of this appendix. Regardless of these differences, an applicant 
or licensee must meet the requirement in Section III.B to reference 
Tier 2 when referencing Tier 1. Tier 2 information includes:
    1. Information required by 10 CFR 52.47, with the exception of 
generic technical specifications and conceptual design information;
    2. Information required for a final safety analysis report under 
10 CFR 50.34;
    3. Supporting information on the inspections, tests, and 
analyses that will be performed to demonstrate that the acceptance 
criteria in the ITAAC have been met; and
    4. Combined license (COL) action items (combined license 
information), which identify certain matters that shall be addressed 
in the site-specific portion of the final safety analysis report 
(FSAR) by an applicant who references this appendix. These items 
constitute information requirements but are not the only acceptable 
set of information in the FSAR. An applicant may depart from or omit 
these items, provided that the departure or omission is identified 
and justified in the FSAR. After issuance of a construction permit 
or COL, these items are not requirements for the licensee unless 
such items are restated in the FSAR.
    5. The investment protection short-term availability controls in 
Section 16.3 of the DCD.
    F. Tier 2 * means the portion of the Tier 2 information, 
designated as such in the generic DCD, which is subject to the 
change process in VIII.B.6 of this appendix. This designation 
expires for some Tier 2* information under VIII.B.6.
    G. All other terms in this appendix have the meaning set out in 
10 CFR 50.2, 10 CFR 52.3, or Section 11 of the Atomic Energy Act of 
1954, as amended, as applicable.

III. Scope and Contents

    A. Tier 1, Tier 2 (including the investment protection short-
term availability controls in Section 16.3), and the generic 
technical specifications in the AP600 DCD, Revision 2 (3/99), are 
approved for incorporation by reference by the Director of the 
Office of the Federal Register on [Insert date of approval] in 
accordance with 5 U.S.C. 552(a) and 1 CFR Part 51. Copies of the 
generic DCD may be obtained from Mr. Brian A. McIntyre, Manager, 
Advanced Plant Safety and Licensing, Westinghouse Electric Company, 
P.O. Box 355, Pittsburgh, PA 15230-0355. A copy is also available 
for examination and copying at the NRC Public Document Room, 2120 L 
Street NW. (Lower Level), Washington, DC 20555-0001.
    B. An applicant or licensee referencing this appendix, in 
accordance with Section IV of this appendix, shall incorporate by 
reference and comply with the requirements of this appendix, 
including Tier 1, Tier 2 (including the investment protection short-
term availability controls in Section 16.3), and the generic 
technical specifications except as otherwise provided in this 
appendix. Conceptual design information in the generic DCD and the 
evaluation of severe accident mitigation design alternatives in 
Appendix 1B of the generic DCD are not part of this appendix.
    C. If there is a conflict between Tier 1 and Tier 2 of the DCD, 
then Tier 1 controls.
    D. If there is a conflict between the generic DCD and either the 
application for design certification of the AP600 design or NUREG-
1512, ``Final Safety Evaluation Report Related to Certification of 
the AP600 Standard Design,'' (FSER), then the generic DCD controls.
    E. Design activities for structures, systems, and components 
that are wholly outside the scope of this appendix may be performed 
using site-specific design parameters, provided the design 
activities do not affect the DCD or conflict with the interface 
requirements.

IV. Additional Requirements and Restrictions

    A. An applicant for a license that wishes to reference this 
appendix shall, in addition to complying with the requirements of 10 
CFR 52.77, 52.78, and 52.79, comply with the following requirements:
    1. Incorporate by reference, as part of its application, this 
appendix.
    2. Include, as part of its application:
    a. A plant-specific DCD containing the same information and 
utilizing the same organization and numbering as the AP600 DCD, as 
modified and supplemented by the applicant's exemptions and 
departures;
    b. The reports on departures from and updates to the plant-
specific DCD required by X.B of this appendix;
    c. Plant-specific technical specifications, consisting of the 
generic and site-specific technical specifications, that are 
required by 10 CFR 50.36 and 50.36a;
    d. Information demonstrating compliance with the site parameters 
and interface requirements;
    e. Information that addresses the COL action items; and
    f. Information required by 10 CFR 52.47(a) that is not within 
the scope of this appendix.
    3. Physically include, in the plant-specific DCD, the 
proprietary and safeguards information referenced in the AP600 DCD.
    B. The Commission reserves the right to determine in what manner 
this appendix may be referenced by an applicant for a construction 
permit or operating license under Part 50.

V. Applicable Regulations

    A. Except as indicated in paragraph B of this section, the 
regulations that apply to the AP600 design are in 10 CFR Parts 20, 
50, 73, and 100, codified as of [insert date final rule signed], 
that are applicable and technically relevant, as described in the 
FSER (NUREG-1512).
    B. The AP600 design is exempt from portions of the following 
regulations:
    1. Paragraph (a)(1) of 10 CFR 50.34--whole body dose criterion;
    2. Paragraph (f)(2)(iv) of 10 CFR 50.34--Plant Safety Parameter 
Display Console;
    3. Paragraphs (f)(2)(vii), (viii), (xxvi), and (xxviii) of 10 
CFR 50.34--Accident Source Term in TID 14844;
    4. Paragraph (c)(1) of 10 CFR 50.62--Auxiliary (or emergency) 
feedwater system;
    5. Appendix A to 10 CFR Part 50, GDC 17--Offsite Power Sources; 
and
    6. Appendix A to 10 CFR Part 50, GDC 19--whole body dose 
criterion.

VI. Issue Resolution

    A. The Commission has determined that the structures, systems, 
components, and design features of the AP600 design comply with the 
provisions of the Atomic Energy Act of 1954, as amended, and the 
applicable regulations identified in Section V of this appendix; and 
therefore, provide adequate protection to the health and safety of 
the public. A conclusion that a matter is resolved includes the 
finding that additional or alternative structures, systems, 
components, design features, design criteria, testing, analyses, 
acceptance criteria, or justifications are not necessary for the 
AP600 design.

[[Page 27645]]

    B. The Commission considers the following matters resolved 
within the meaning of 10 CFR 52.63(a)(4) in subsequent proceedings 
for issuance of a combined license, amendment of a combined license, 
or renewal of a combined license, proceedings held pursuant to 10 
CFR 52.103, and enforcement proceedings involving plants referencing 
this appendix:
    1. All nuclear safety issues, except for the generic technical 
specifications and other operational requirements, associated with 
the information in the FSER, Tier 1, Tier 2 (including referenced 
information, which the context indicates is intended as 
requirements, and the investment protection short-term availability 
controls in Section 16.3), and the rulemaking record for 
certification of the AP600 design;
    2. All nuclear safety and safeguards issues associated with the 
information in proprietary and safeguards documents, referenced and 
in context, are intended as requirements in the generic DCD for the 
AP600 design;
    3. All generic changes to the DCD pursuant to and in compliance 
with the change processes in Sections VIII.A.1 and VIII.B.1 of this 
appendix;
    4. All exemptions from the DCD pursuant to and in compliance 
with the change processes in Sections VIII.A.4 and VIII.B.4 of this 
appendix, but only for that proceeding;
    5. All departures from the DCD that are approved by license 
amendment, but only for that proceeding;
    6. Except as provided in VIII.B.5.f of this appendix, all 
departures from Tier 2 pursuant to and in compliance with the change 
processes in VIII.B.5 of this appendix that do not require prior NRC 
approval;
    7. All environmental issues concerning severe accident 
mitigation design alternatives (SAMDAs) associated with the 
information in the NRC's environmental assessment for the AP600 
design and Appendix 1B of the generic DCD, for plants referencing 
this appendix whose site parameters are within those specified in 
the SAMDA evaluation.
    C. The Commission does not consider operational requirements for 
an applicant or licensee who references this appendix to be matters 
resolved within the meaning of 10 CFR 52.63(a)(4). The Commission 
reserves the right to require operational requirements for an 
applicant or licensee who references this appendix by rule, 
regulation, order, or license condition.
    D. Except in accordance with the change processes in Section 
VIII of this appendix, the Commission may not require an applicant 
or licensee who references this appendix to:
    1. Modify structures, systems, components, or design features as 
described in the generic DCD;
    2. Provide additional or alternative structures, systems, 
components, or design features not discussed in the generic DCD; or
    3. Provide additional or alternative design criteria, testing, 
analyses, acceptance criteria, or justification for structures, 
systems, components, or design features discussed in the generic 
DCD.
    E.1. Persons who wish to review proprietary and safeguards 
information or other secondary references in the AP600 DCD, in order 
to request or participate in the hearing required by 10 CFR 52.85 or 
the hearing provided under 10 CFR 52.103, or to request or 
participate in any other hearing relating to this appendix in which 
interested persons have adjudicatory hearing rights, shall first 
request access to such information from Westinghouse. The request 
must state with particularity:
    a. The nature of the proprietary or other information sought;
    b. The reason why the information currently available to the 
public in the NRC's public document room is insufficient;
    c. The relevance of the requested information to the hearing 
issue(s) which the person proposes to raise; and
    d. A showing that the requesting person has the capability to 
understand and utilize the requested information.
    2. If a person claims that the information is necessary to 
prepare a request for hearing, the request must be filed no later 
than 15 days after publication in the Federal Register of the notice 
required either by 10 CFR 52.85 or 10 CFR 52.103. If Westinghouse 
declines to provide the information sought, Westinghouse shall send 
a written response within ten (10) days of receiving the request to 
the requesting person setting forth with particularity the reasons 
for its refusal. The person may then request the Commission (or 
presiding officer, if a proceeding has been established) to order 
disclosure. The person shall include copies of the original request 
(and any subsequent clarifying information provided by the 
requesting party to the applicant) and the applicant's response. The 
Commission and presiding officer shall base their decisions solely 
on the person's original request (including any clarifying 
information provided by the requesting person to Westinghouse), and 
Westinghouse's response. The Commission and presiding officer may 
order Westinghouse to provide access to some or all of the requested 
information, subject to an appropriate non-disclosure agreement.

VII. Duration of This Appendix

    This appendix may be referenced for a period of 15 years from 
[Insert date 30 days after publication of the final rule in the 
Federal Register], except as provided for in 10 CFR 52.55(b) and 
52.57(b). This appendix remains valid for an applicant or licensee 
who references this appendix until the application is withdrawn or 
the license expires, including any period of extended operation 
under a renewed license.

VIII. Processes for Changes and Departures

A. Tier 1 Information

    1. Generic changes to Tier 1 information are governed by the 
requirements in 10 CFR 52.63(a)(1).
    2. Generic changes to Tier 1 information are applicable to all 
applicants or licensees who reference this appendix, except those 
for which the change has been rendered technically irrelevant by 
action taken under paragraphs A.3 or A.4 of this section.
    3. Departures from Tier 1 information that are required by the 
Commission through plant-specific orders are governed by the 
requirements in 10 CFR 52.63(a)(3).
    4. Exemptions from Tier 1 information are governed by the 
requirements in 10 CFR 52.63(b)(1) and Sec. 52.97(b). The Commission 
will deny a request for an exemption from Tier 1, if it finds that 
the design change will result in a significant decrease in the level 
of safety otherwise provided by the design.

B. Tier 2 Information

    1. Generic changes to Tier 2 information are governed by the 
requirements in 10 CFR 52.63(a)(1).
    2. Generic changes to Tier 2 information are applicable to all 
applicants or licensees who reference this appendix, except those 
for which the change has been rendered technically irrelevant by 
action taken under paragraphs B.3, B.4, B.5, or B.6 of this section.
    3. The Commission may not require new requirements on Tier 2 
information by plant-specific order while this appendix is in effect 
under Secs. 52.55 or 52.61, unless:
    a. A modification is necessary to secure compliance with the 
Commission's regulations applicable and in effect at the time this 
appendix was approved, as set forth in Section V of this appendix, 
or to assure adequate protection of the public health and safety or 
the common defense and security; and
    b. Special circumstances as defined in 10 CFR 50.12(a) are 
present.
    4. An applicant or licensee who references this appendix may 
request an exemption from Tier 2 information. The Commission may 
grant such a request only if it determines that the exemption will 
comply with the requirements of 10 CFR 50.12(a). The Commission will 
deny a request for an exemption from Tier 2, if it finds that the 
design change will result in a significant decrease in the level of 
safety otherwise provided by the design. The grant of an exemption 
to an applicant must be subject to litigation in the same manner as 
other issues material to the license hearing. The grant of an 
exemption to a licensee must be subject to an opportunity for a 
hearing in the same manner as license amendments.
    5.a. An applicant or licensee who references this appendix may 
depart from Tier 2 information, without prior NRC approval, unless 
the proposed departure involves a change to or departure from Tier 1 
information, Tier 2* information, or the technical specifications, 
or involves an unreviewed safety question as defined in paragraphs 
B.5.b and B.5.c of this section. When evaluating the proposed 
departure, an applicant or licensee shall consider all matters 
described in the plant-specific DCD.
    b. A proposed departure from Tier 2, other than one affecting 
resolution of a severe accident issue identified in the plant-
specific DCD, involves an unreviewed safety question if--
    (1) The probability of occurrence or the consequences of an 
accident or malfunction of equipment important to safety previously 
evaluated in the plant-specific DCD may be increased;
    (2) A possibility for an accident or malfunction of a different 
type than any evaluated previously in the plant-specific DCD may be 
created; or

[[Page 27646]]

    (3) The margin of safety as defined in the basis for any 
technical specification is reduced.
    c. A proposed departure from Tier 2 affecting resolution of a 
severe accident issue identified in the plant-specific DCD, involves 
an unreviewed safety question if--
    (1) There is a substantial increase in the probability of a 
severe accident such that a particular severe accident previously 
reviewed and determined to be not credible could become credible; or
    (2) There is a substantial increase in the consequences to the 
public of a particular severe accident previously reviewed.
    d. If a departure involves an unreviewed safety question as 
defined in paragraph B.5 of this section, it is governed by 10 CFR 
50.90.
    e. A departure from Tier 2 information that is made under 
paragraph B.5 of this section does not require an exemption from 
this appendix.
    f. A party to an adjudicatory proceeding for either the 
issuance, amendment, or renewal of a license or for operation under 
10 CFR 52.103(a), who believes that an applicant or licensee who 
references this appendix has not complied with VIII.B.5 of this 
appendix when departing from Tier 2 information, may petition to 
admit into the proceeding such a contention. In addition to 
compliance with the general requirements of 10 CFR 2.714(b)(2), the 
petition must demonstrate that the departure does not comply with 
VIII.B.5 of this appendix. Further, the petition must demonstrate 
that the change bears on an asserted noncompliance with an ITAAC 
acceptance criterion in the case of a 10 CFR 52.103 preoperational 
hearing, or that the change bears directly on the amendment request 
in the case of a hearing on a license amendment. Any other party may 
file a response. If, on the basis of the petition and any response, 
the presiding officer determines that a sufficient showing has been 
made, the presiding officer shall certify the matter directly to the 
Commission for determination of the admissibility of the contention. 
The Commission may admit such a contention if it determines the 
petition raises a genuine issue of fact regarding compliance with 
VIII.B.5 of this appendix.
    6.a. An applicant who references this appendix may not depart 
from Tier 2* information, which is designated with italicized text 
or brackets and an asterisk in the generic DCD, without NRC 
approval. The departure will not be considered a resolved issue, 
within the meaning of Section VI of this appendix and 10 CFR 
52.63(a)(4).
    b. A licensee who references this appendix may not depart from 
the following Tier 2* matters without prior NRC approval. A request 
for a departure will be treated as a request for a license amendment 
under 10 CFR 50.90.
    (1) Maximum fuel rod average burn-up.
    (2) Fuel principal design requirements.
    (3) Fuel criteria evaluation process.
    (4) Fire areas.
    (5) Human factors engineering.
    c. A licensee who references this appendix may not, before the 
plant first achieves full power following the finding required by 10 
CFR 52.103(g), depart from the following Tier 2* matters except in 
accordance with paragraph B.6.b of this section. After the plant 
first achieves full power, the following Tier 2* matters revert to 
Tier 2 status and are thereafter subject to the departure provisions 
in paragraph B.5 of this section.
    (1) Nuclear Island structural dimensions.
    (2) ASME Boiler & Pressure Vessel Code, Section III, and Code 
Case N-284.
    (3) Design Summary of Critical Sections.
    (4) ACI 318, ACI 349, and ANSI/AISC-690.
    (5) Definition of critical locations and thicknesses.
    (6) Seismic qualification methods and standards.
    (7) Nuclear design of fuel and reactivity control system, except 
burn-up limit.
    (8) Motor-operated and power-operated valves.
    (9) Instrumentation & control system design processes, methods, 
and standards.
    (10) PRHR natural circulation test (first plant only).
    (11) ADS and CMT verification tests (first three plants only).
    d. Departures from Tier 2* information that are made under 
paragraph B.6 of this section do not require an exemption from this 
appendix.

C. Operational requirements

    1. Generic changes to generic technical specifications and other 
operational requirements that were completely reviewed and approved 
in the design certification rulemaking and do not require a change 
to a design feature in the generic DCD are governed by the 
requirements in 10 CFR 50.109. Generic changes that do require a 
change to a design feature in the generic DCD are governed by the 
requirements in paragraphs A or B of this section.
    2. Generic changes to generic technical specifications and other 
operational requirements are applicable to all applicants or 
licensees who reference this appendix, except those for which the 
change has been rendered technically irrelevant by action taken 
under paragraph C.3 or C.4 of this section.
    3. The Commission may require plant-specific departures on 
generic technical specifications and other operational requirements 
that were completely reviewed and approved, provided a change to a 
design feature in the generic DCD is not required and special 
circumstances as defined in 10 CFR 2.758(b) are present. The 
Commission may modify or supplement generic technical specifications 
and other operational requirements that were not completely reviewed 
and approved or require additional technical specifications and 
other operational requirements on a plant-specific basis, provided a 
change to a design feature in the generic DCD is not required.
    4. An applicant who references this appendix may request an 
exemption from the generic technical specifications or other 
operational requirements. The Commission may grant such a request 
only if it determines that the exemption will comply with the 
requirements of 10 CFR 50.12(a). The grant of an exemption must be 
subject to litigation in the same manner as other issues material to 
the license hearing.
    5. A party to an adjudicatory proceeding for either the 
issuance, amendment, or renewal of a license or for operation under 
10 CFR 52.103(a), who believes that an operational requirement 
approved in the DCD or a technical specification derived from the 
generic technical specifications must be changed may petition to 
admit into the proceeding such a contention. Such petition must 
comply with the general requirements of 10 CFR 2.714(b)(2) and must 
demonstrate why special circumstances as defined in 10 CFR 2.758(b) 
are present, or for compliance with the Commission's regulations in 
effect at the time this appendix was approved, as set forth in 
Section V of this appendix. Any other party may file a response 
thereto. If, on the basis of the petition and any response, the 
presiding officer determines that a sufficient showing has been 
made, the presiding officer shall certify the matter directly to the 
Commission for determination of the admissibility of the contention. 
All other issues with respect to the plant-specific technical 
specifications or other operational requirements are subject to a 
hearing as part of the license proceeding.
    6. After issuance of a license, the generic technical 
specifications have no further effect on the plant-specific 
technical specifications and changes to the plant-specific technical 
specifications will be treated as license amendments under 10 CFR 
50.90.

IX. Inspections, Tests, Analyses, and Acceptance Criteria (ITAAC)

    A.1 An applicant or licensee who references this appendix shall 
perform and demonstrate conformance with the ITAAC before fuel load. 
With respect to activities subject to an ITAAC, an applicant for a 
license may proceed at its own risk with design and procurement 
activities, and a licensee may proceed at its own risk with design, 
procurement, construction, and preoperational activities, even 
though the NRC may not have found that any particular ITAAC has been 
satisfied.
    2. The licensee who references this appendix shall notify the 
NRC that the required inspections, tests, and analyses in the ITAAC 
have been successfully completed and that the corresponding 
acceptance criteria have been met.
    3. In the event that an activity is subject to an ITAAC, and the 
applicant or licensee who references this appendix has not 
demonstrated that the ITAAC has been satisfied, the applicant or 
licensee may either take corrective actions to successfully complete 
that ITAAC, request an exemption from the ITAAC in accordance with 
Section VIII of this appendix and 10 CFR 52.97(b), or petition for 
rulemaking to amend this appendix by changing the requirements of 
the ITAAC, under 10 CFR 2.802 and 52.97(b). Such rulemaking changes 
to the ITAAC must meet the requirements of paragraph VIII.A.1 of 
this appendix.
    B.1 The NRC shall ensure that the required inspections, tests, 
and analyses in the ITAAC are performed. The NRC shall verify that 
the inspections, tests, and analyses referenced by the licensee have 
been successfully completed and, based solely thereon, find the 
prescribed acceptance criteria have been met.

[[Page 27647]]

At appropriate intervals during construction, the NRC shall publish 
notices of the successful completion of ITAAC in the Federal 
Register.
    2. In accordance with 10 CFR 52.99 and 52.103(g), the Commission 
shall find that the acceptance criteria in the ITAAC for the license 
are met before fuel load.
    3. After the Commission has made the finding required by 10 CFR 
52.103(g), the ITAAC do not, by virtue of their inclusion within the 
DCD, constitute regulatory requirements either for licensees or for 
renewal of the license; except for specific ITAAC, which are the 
subject of a Section 103(a) hearing, their expiration will occur 
upon final Commission action in such proceeding. However, subsequent 
modifications must comply with the Tier 1 and Tier 2 design 
descriptions in the plant-specific DCD unless the licensee has 
complied with the applicable requirements of 10 CFR 52.97 and 
Section VIII of this appendix.

X. Records and Reporting

A. Records

    1. The applicant for this appendix shall maintain a copy of the 
generic DCD that includes all generic changes to Tier 1 and Tier 2. 
The applicant shall maintain the proprietary and safeguards 
information referenced in the generic DCD for the period that this 
appendix may be referenced, as specified in Section VII of this 
appendix.
    2. An applicant or licensee who references this appendix shall 
maintain the plant-specific DCD to accurately reflect both generic 
changes to the generic DCD and plant-specific departures made 
pursuant to Section VIII of this appendix throughout the period of 
application and for the term of the license (including any period of 
renewal).
    3. An applicant or licensee who references this appendix shall 
prepare and maintain written safety evaluations which provide the 
bases for the determinations required by Section VIII of this 
appendix. These evaluations must be retained throughout the period 
of application and for the term of the license (including any period 
of renewal).

B. Reporting

    1. An applicant or licensee who references this appendix shall 
submit a report to the NRC containing a brief description of any 
departures from the plant-specific DCD, including a summary of the 
safety evaluation of each. This report must be filed in accordance 
with the filing requirements applicable to reports in 10 CFR 50.4.
    2. An applicant or licensee who references this appendix shall 
submit updates to its plant-specific DCD, which reflect the generic 
changes to the generic DCD and the plant-specific departures made 
pursuant to Section VIII of this appendix. These updates shall be 
filed in accordance with the filing requirements applicable to final 
safety analysis report updates in 10 CFR 50.4 and 50.71(e).
    3. The reports and updates required by paragraphs B.1 and B.2 of 
this section must be submitted as follows:
    a. On the date that an application for a license referencing 
this appendix is submitted, the application shall include the report 
and any updates to the plant-specific DCD.
    b. During the interval from the date of application to the date 
of issuance of a license, the report and any updates to the plant-
specific DCD must be submitted annually and may be submitted along 
with amendments to the application.
    c. During the interval from the date of issuance of a license to 
the date the Commission makes its findings under 10 CFR 52.103(g), 
the report must be submitted quarterly. Updates to the plant-
specific DCD must be submitted annually.
    d. After the Commission has made its finding under 10 CFR 
52.103(g), reports and updates to the plant-specific DCD may be 
submitted annually or along with updates to the site-specific 
portion of the final safety analysis report for the facility at the 
intervals required by 10 CFR 50.71(e), or at shorter intervals as 
specified in the license.

    Dated at Rockville, Maryland, this 13th day of May, 1999.

    For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. 99-12623 Filed 5-19-99; 8:45 am]
BILLING CODE 7590-01-P