[Federal Register Volume 70, Number 73 (Monday, April 18, 2005)]
[Proposed Rules]
[Pages 20062-20080]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-7658]


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NUCLEAR REGULATORY COMMISSION

10 CFR Part 52

RIN 3150-AH56


AP1000 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 AP1000 standard plant design. 
This action is necessary so that applicants or licensees intending to 
construct and operate an AP1000 design may do so by referencing the 
AP1000

[[Page 20063]]

design certification rule (DCR). This proposed DCR is nearly identical 
to the AP600 DCR in the current regulations. The applicant for 
certification of the AP1000 design is Westinghouse Electric Company LLC 
(Westinghouse). The public is invited to submit comments on this 
proposed DCR and the AP1000 design control document (DCD) that would be 
incorporated by reference into the DCR. The NRC also invites the public 
to submit comments on the environmental assessment for the AP1000 
design.

DATES: Submit comments on the rule by July 5, 2005. Submit comments 
specific to the information collections aspects of this rule by May 18, 
2005. Comments received after the above dates will be considered if it 
is practical to do so, but assurance of consideration cannot be given 
to comments received after these dates.

ADDRESSES: You may submit comments by any one of the following methods. 
Please include the following number (RIN 3150-AH56) in the subject line 
of your comments. Comments on rulemakings submitted in writing or in 
electronic form will be made available for public inspection. Because 
your comments will not be edited to remove any identifying or contact 
information, the NRC cautions you against including personal 
information such as social security numbers and birth dates in your 
submission.
    Mail comments to: Secretary, U.S. Nuclear Regulatory Commission, 
Washington, DC 20555-0001, Attn: Rulemakings and Adjudications Staff.
    E-mail comments to: [email protected]. If you do not receive a reply e-
mail confirming that we have received your comments, contact us 
directly at (301) 415-1966. You may also submit comments via the NRC's 
rulemaking Web site at http://ruleforum.llnl.gov. Address questions 
about our rulemaking Web site to Carol Gallagher (301) 415-5905; e-mail 
[email protected]. Comments can also be submitted via the Federal eRulemaking 
Portal http://www.regulations.gov.
    Hand deliver comments to: 11555 Rockville Pike, Rockville, Maryland 
20852, between the hours of 7:30 a.m. and 4:15 p.m. Federal workdays 
(telephone (301) 415-1966).
    Fax comments to: Secretary, U.S. Nuclear Regulatory Commission at 
(301) 415-1101.
    Publicly available documents related to this rulemaking may be 
viewed electronically on the public computers located at the NRC's 
Public Document Room (PDR), O1 F21, One White Flint North, 11555 
Rockville Pike, Rockville, Maryland. The PDR reproduction contractor 
will copy documents for a fee. Selected documents, including comments, 
can be viewed and downloaded electronically via the NRC rulemaking Web 
site at http://ruleforum.llnl.gov.
    Publicly available documents created or received at the NRC after 
November 1, 1999, are available electronically at the NRC's Electronic 
Reading Room at http://www.nrc.gov/NRC/ADAMS/index.html. From this 
site, the public can gain entry into the NRC's Agencywide Document 
Access and Management System (ADAMS), which provides text and image 
files of NRC's public documents. If you do not have access to ADAMS or 
if there are problems in accessing the documents located in ADAMS, 
contact the NRC PDR Reference staff at 1-800-397-4209, (301) 415-4737, 
or by e-mail to [email protected].
    You may submit comments on the information collections by the 
methods indicated in the Paperwork Reduction Act Statement.

FOR FURTHER INFORMATION CONTACT: Lauren Quinones-Navarro or Jerry N. 
Wilson, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory 
Commission, Washington, DC 20555-0001; telephone (301) 415-2007 or 
(301) 415-3145; e-mail: [email protected] or [email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background
II. Technical Evaluation of the AP1000 Design
III. Section-by-Section Discussion
    A. Introduction (Section I)
    B. Definitions (Section II)
    C. Scope and Contents (Section III)
    D. Additional Requirements and Restrictions (Section IV)
    E. Applicable Regulations (Section V)
    F. Issue Resolution (Section VI)
    G. Duration of this Appendix (Section VII)
    H. Processes for Changes and Departures (Section VIII)
    I. Inspections, Tests, Analyses, and Acceptance Criteria (ITAAC) 
(Section IX)
    J. Records and Reporting (Section X)
IV. Availability of Documents
V. Plain Language
VI. Voluntary Consensus Standards
VII. Finding of No Significant Environmental Impact: Availability
VIII. Paperwork Reduction Act Statement
IX. Regulatory Analysis
X. Regulatory Flexibility Certification
XI. Backfit Analysis
List of Subjects in 10 CFR Part 52

I. Background

    The NRC added 10 CFR part 52 to its regulations to provide for the 
issuance of early site permits (ESPs), standard design certifications, 
and combined licenses (COLs) for nuclear power plants. Subpart B of 10 
CFR part 52 established the process for obtaining design 
certifications. On March 28, 2002 (67 FR 20845), Westinghouse tendered 
its application for certification of the AP1000 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. 52-006) on June 25, 2002 (67 FR 43690). The 
pre-application information submitted before the NRC formally accepted 
the application can be found under Project No. 711.

II. Technical Evaluation of the AP1000 Design

    As stated above, the procedure for certifying a standard design is 
performed under 10 CFR part 52, subpart B, and is carried out in two 
stages (technical and administrative). The technical review stage is 
initiated by an application filed in accordance with the requirements 
of 10 CFR 52.45, ``Filing of Applications.'' This stage continues with 
reviews by the NRC staff and the Advisory Committee on Reactor 
Safeguards and ends with the issuance of a final safety evaluation 
report (FSER) that discusses the staff's conclusions related to the 
acceptability of the AP1000 design. The NRC staff issued the AP1000 
FSER in September 2004 (NUREG-1793). The FSER provides the bases for 
issuance of a final design approval under appendix O to part 52, which 
is a prerequisite to a design certification. The final design approval 
for the AP1000 design was issued on September 13, 2004, and published 
in the Federal Register on September 17, 2004 (69 FR 56101).
    The administrative review stage begins with the publication of a 
Federal Register notice that initiates rulemaking, in accordance with 
10 CFR 52.51, ``Administrative Review of Applications,'' and includes a 
proposed design certification rule. The rulemaking culminates with the 
denial of the application or the issuance of a design certification 
rule.

III. Section-By-Section Discussion

    The following discussion sets forth the purpose and key aspects of 
each section and paragraph of the proposed AP1000 DCR. All section and 
paragraph references are to the provisions in the proposed appendix D 
to 10 CFR part 52. The proposed DCR for the AP1000 standard plant 
design is nearly identical to the AP600 DCR, which the NRC

[[Page 20064]]

previously codified in 10 CFR part 52, appendix C (Design Certification 
Rule for the AP600 Design, 64 FR 72015, December 23, 1999). Many of the 
procedural issues and their resolutions for the AP600 DCR (e.g., the 
two-tier structure, Tier 2*, the scope of issue resolution) were 
developed after extensive discussions with public stakeholders, 
including Westinghouse. Also, Westinghouse requested that policy 
resolutions for the AP600 design review be applied to the AP1000. 
Accordingly, the NRC has modeled the AP1000 DCR on the existing DCRs, 
with certain departures. These departures are necessary to account for 
differences in the AP1000 design documentation, design features, and 
environmental assessment (including severe accident mitigation design 
alternatives).

A. Introduction

    The purpose of Section I of proposed appendix D to 10 CFR part 52 
(this appendix) would be to identify the standard plant design that is 
approved by this DCR and the applicant for certification of the 
standard design. Identification of the design certification applicant 
is necessary to implement this appendix, for two reasons. First, the 
implementation of 10 CFR 52.63(c) depends on whether an applicant for a 
COL contracts with the design certification applicant to provide the 
generic design control document (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 would 
impose 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

    During development of the first two design certification rules, 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 reference the appendix. This distinction is necessary in 
order to specify the plant-specific requirements applicable to 
applicants and licensees referencing the appendix. The generic DCDs 
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, in accordance 
with 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 
chooses to make in accordance with the relevant processes in section 
VIII of this appendix. Thus, the plant-specific DCD would function like 
an updated Final Safety Analysis Report (FSAR) because 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 would define both a generic DCD and a plant-
specific DCD.
    Also, the Commission decided to treat the technical specifications 
(TS) in section 16.1 of the generic DCD as a special category of 
information and to designate them as generic TS in order to facilitate 
the special treatment of this information under this appendix. A COL 
applicant must submit plant-specific TS that consist of the generic TS, 
which may be modified under paragraph VIII.C of this appendix, and the 
remaining plant-specific information needed to complete the TS. The 
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 TS.
    The terms Tier 1, Tier 2, Tier 2*, and COL action items (license 
information) are defined in this appendix because these concepts were 
not envisioned when 10 CFR part 52 was developed. The design 
certification applicants and the NRC used these terms in implementing 
the two-tiered rule structure that was proposed by representatives of 
the nuclear industry after issuance of 10 CFR part 52. Therefore, 
appropriate definitions for these additional terms are included in this 
appendix. The nuclear industry representatives requested a two-tiered 
structure for the design certification rules to achieve issue 
preclusion for a greater amount of information than was originally 
planned for the design certification rules, while retaining flexibility 
for design implementation. The Commission approved the use of a two-
tiered rule structure in its staff requirements memorandum (SRM), dated 
February 14, 1991, on SECY-90-377, ``Requirements for Design 
Certification Under 10 CFR Part 52,'' dated November 8, 1990. This 
document and others are available in the Regulatory History of Design 
Certification (see section IV, Availability of Documents).
    The Tier 1 portion of the design-related information contained in 
the DCD would be certified by this appendix and, therefore, be subject 
to the special backfit provisions in paragraph VIII.A of this appendix. 
An applicant who references this appendix would be required to 
incorporate by reference and comply with Tier 1, under paragraphs 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 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 commitments for the 
lifetime of a facility referencing the design certification. The ITAAC 
verifies that the as-built facility conforms with the approved design 
and applicable regulations. Under 10 CFR 52.103(g), the Commission must 
find that the acceptance criteria in the ITAAC are met before 
authorizing operation. After the Commission has made the finding 
required by 10 CFR 52.103(g), the ITAAC do not constitute regulatory 
requirements for licensees or for renewal of the COL. However, 
subsequent modifications to the facility must comply with the design 
descriptions in the plant-specific DCD unless changes are under 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. Tier 1 interface requirements 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,

[[Page 20065]]

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 paragraph III.D of this statement of consideration [SOC]).
    Tier 2 is the portion of the design-related information contained 
in the DCD that would be approved by this appendix but not certified. 
Tier 2 information would be subject to the backfit provisions in 
paragraph VIII.B of this appendix. Tier 2 includes the information 
required by 10 CFR 52.47 (with the exception of generic TS, 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, 
paragraphs III.B and IV.A.1 of this appendix would 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 would be 
specified in paragraph VIII.B of this appendix. Departures from Tier 2 
would not negate the requirement in paragraph III.B to reference Tier 
2.
    A definition of ``combined license action items'' (COL 
information), which is part of the Tier 2 information, would be added 
to clarify that COL applicants who reference this appendix are required 
to address COL action items in their license application. However, the 
COL action items are not the only acceptable set of information. An 
applicant may depart from or omit COL action items, provided that the 
departure or omission is identified and justified in the FSAR. After 
issuance of a construction permit or COL, these items would not be 
requirements for the licensee unless they are restated in the FSAR. For 
additional discussion, see section D.
    The investment protection short-term availability controls, which 
are set forth in section 16.3 of the generic DCD, would be added to the 
information that is part of Tier 2. These requirements were added to 
Tier 2 to make it clear that the availability controls are not 
operational requirements for the purposes of paragraph VIII.C of this 
appendix. Rather, the availability controls are associated with 
specific design features. The availability controls may be changed if 
the associated design feature is changed under paragraph VIII.B of this 
appendix. For additional discussion, see section C.
    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 H, a plant-specific departure from Tier 2* information would 
require prior NRC approval. However, the Tier 2* designation expires 
for some of this information when the facility first achieves full 
power after the finding required by 10 CFR 52.103(g). The process for 
changing Tier 2* information and the time at which its status as Tier 
2* expires is set forth in paragraph VIII.B.6 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 AP1000 DCR. The Tier 2* designation for these 
selected tests would expire after the first plant or first three plants 
complete the specified tests. However, a COL action item requires that 
subsequent plants shall also perform the tests or justify that the 
results of the first-plant-only or first-three-plants-only tests are 
applicable to the subsequent plant.
    In an earlier rulemaking (64 FR 53582; October 4, 1999), the 
Commission revised 10 CFR Sec.  50.59 to incorporate new thresholds for 
permitting changes to a plant as described in the FSAR without NRC 
approval. For consistency and clarity, the Commission proposes to use 
these new thresholds in the proposed AP1000 DCR. Inasmuch as Sec.  
50.59 is the primary change mechanism for operating nuclear plants, the 
Commission believes that future plants referencing the AP1000 DCR 
should utilize thresholds as close to Sec.  50.59 as is practicable and 
appropriate. Because of some differences in how the change control 
requirements are structured in the DCRs, certain definitions contained 
in Sec.  50.59 are not applicable to 10 CFR part 52 and are not being 
included in this proposed rule. One definition that the Commission is 
including is the definition from the new Sec.  50.59 for a ``departure 
from a method of evaluation,'' (paragraph II.G), which is appropriate 
to include in this rulemaking so that the eight criteria in paragraph 
VIII.B.5.b of the proposed rule will be implemented as intended.

C. Scope and Contents

    The purpose of section III of this DCR would be 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 TS into this appendix. 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 incorporated material has the same legal status as if it were 
published in the Code of Federal Regulations. This material, like any 
other properly-issued regulation, has the force and effect of law. Tier 
1 and Tier 2 information, as well as the generic TS, have been combined 
into a single document called the generic DCD, in order to effectively 
control this information and facilitate its incorporation by reference 
into the rule. The generic DCD was prepared to meet the requirements of 
the OFR for incorporation by reference (10 CFR part 51). One of the 
requirements of the OFR for incorporation by reference is that the 
design certification applicant must make the generic DCD available upon 
request after the final rule becomes effective. Therefore, paragraph 
III.A of this appendix would identify a Westinghouse representative to 
be contacted in order to obtain a copy of the generic DCD.
    Paragraphs A and B would 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 AP1000 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 
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.'' The Commission included 
this characterization 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

[[Page 20066]]

evaluation of the availability controls is provided in chapter 22 of 
the FSER.
    The generic DCD (master copy) for this design certification will be 
accessible electronically in ADAMS and at the OFR. Copies of the 
generic DCD will also be available at the NRC's PDR. Questions 
concerning the accuracy of information in an application that 
references this appendix will be resolved by checking the master copy 
of the generic DCD in ADAMS. If a generic change (rulemaking) is made 
to the DCD by the change process provided in section VIII of this 
appendix, then at the completion of the rulemaking the NRC would 
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 would require that the design certification applicant 
maintain an up-to-date copy under paragraph X.A.1 of this appendix 
because it is likely that most applicants intending to reference the 
standard design would obtain the generic DCD from the design 
certification applicant. Plant-specific changes to and departures from 
the generic DCD would be maintained by the applicant or licensee that 
references this appendix in a plant-specific DCD under paragraph X.A.2 
of this appendix.
    In addition to requiring compliance with this appendix, paragraph B 
would clarify 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 contained in Tier 2 information. 
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 is 
not required to conform with the conceptual design information that was 
provided by the design certification applicant. The conceptual design 
information, which consists of site-specific design features, was 
required to facilitate the design certification review. Conceptual 
design information is neither Tier 1 nor Tier 2. Section 1.8 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 VII 
of this SOC on environmental impacts.
    Paragraphs C and D would set forth the manner in which potential 
conflicts would 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 would 
establish the generic DCD as the controlling document in the event of 
an inconsistency between the DCD and the FSER for the certified 
standard design.
    Paragraph E would clarify 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 would apply to site-specific portions of the 
plant, such as the administration building. Because this statement is 
not a definition, this provision has been located in section III of 
this appendix.

D. Additional Requirements and Restrictions

    Section IV of this appendix would set forth additional requirements 
and restrictions imposed upon an applicant who references this 
appendix. Paragraph IV.A would set forth the information requirements 
for these applicants. This appendix would distinguish between 
information and/or documents which must actually be included in the 
application or the DCD, versus those which may be incorporated by 
reference (i.e., referenced in the application as if the information or 
documents were included in the application). Any incorporation by 
reference in the application should be clear and should specify the 
title, date, edition, or version of a document, the page number(s), and 
table(s) containing the relevant information to be incorporated.
    Paragraph A.1 would require an applicant who references this 
proposed DCR to incorporate by reference this DCR in its application. 
The legal effect of such an incorporation by reference is that this 
appendix would be legally binding on the applicant or licensee. 
Paragraph A.2.a would require that a plant-specific DCD be included in 
the initial application. This would ensure that the applicant commits 
to complying with the DCD. This paragraph also would require that the 
plant-specific DCD uses the same format as the generic DCD and reflects 
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 would become the plant's FSAR, by including 
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, would result in an 
application that is easier to use and should minimize ``duplicate 
documentation'' and the attendant possibility for confusion. Paragraph 
A.2.a would also require that the initial application include the 
reports on departures and exemptions as of the time of submission of 
the application.
    Paragraph A.2.b would require that an application referencing this 
proposed DCR 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 would 
require submission of plant-specific TS for the plant that consists of 
the generic TS from section 16.1 of the DCD, with any changes made 
under paragraph VIII.C of this appendix, and the TS for the site-
specific portions of the plant that are either partially or wholly 
outside the scope of this design certification. The applicant must also 
provide the plant-specific information designated in the generic TS, 
such as bracketed values.
    Paragraph A.2.d would require the applicant referencing this 
proposed DCR to 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 it 
would be unacceptable for this design unless the applicant seeks an 
exemption under section VIII of this appendix and provides adequate 
justification for locating the certified design on the proposed site. 
Paragraph A.2.e would require submission of information addressing COL 
action items, identified in the generic DCD as COL information in the 
application. The COL information identifies matters that need to be 
addressed by an applicant who references this appendix, as required by 
subpart C of 10 CFR part 52. An applicant may depart from or omit these 
items, provided that the departure or omission is identified and 
justified in its application (FSAR). Paragraph A.2.f would require that 
the application include the information specified by 10 CFR 52.47(a) 
that is not within the

[[Page 20067]]

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

E. Applicable Regulations

    The purpose of section V of this appendix is to specify the 
regulations that would be applicable and in effect if this proposed 
design certification is approved. These regulations would consist of 
the technically relevant regulations identified in paragraph A, except 
for the regulations in paragraph B that would not be applicable to this 
certified design.
    Paragraph A would identify the regulations in 10 CFR parts 20, 50, 
73, and 100 that are applicable to the AP1000 design. The Commission's 
determination of the applicable regulations would be made as of the 
date specified in paragraph V.A of this appendix, which would 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 would identify 
the regulations that do not apply to the AP1000 design. The Commission 
has determined that the AP1000 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-1793) and/or summarized below:
    (1) Paragraph (f)(2)(iv) of 10 CFR 50.34--Plant Safety Parameter 
Display Console.
    Under 10 CFR 52.47(a)(ii), an applicant for design certification 
must demonstrate compliance with any technically relevant Three Mile 
Island (TMI) requirements in 10 CFR 50.34(f). The requirement in 10 CFR 
50.34(f)(2)(iv) states that an application must provide a plant safety 
parameter display console that will display 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 addresses 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 safety parameter display system (SPDS) 
requirements into the design requirements for the alarm and display 
systems. The NRC staff has determined that the function of a separate 
SPDS may be integrated into the overall control room design. Therefore, 
the Commission has determined that the special circumstances for 
allowing an exemption as described in 10 CFR 50.12(a)(2)(ii) exist 
because 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.
    (2) Paragraph (c)(1) of 10 CFR 50.62--Auxiliary feedwater system.
    The AP1000 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 anticipated transient without scram (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 for allowing 
an exemption described in 10 CFR 50.12(a)(2)(ii) exist because the 
requirement for an auxiliary or emergency feedwater system is not 
necessary to achieve the underlying purpose of 10 CFR 50.62(c)(1). This 
is 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.
    (3) Appendix A to 10 CFR part 50, GDC 17--Offsite Power Sources.
    Westinghouse requested a partial exemption from the requirement in 
General Design Criteria (GDC) 17 for a second offsite power supply 
circuit. The AP1000 plant design supports an exemption to this 
requirement by providing safety-related ``passive'' systems. These 
passive safety-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 for allowing an exemption as 
described in 10 CFR 50.12(a)(2)(ii) exist because the requirement need 
not be applied in this particular circumstance to achieve the 
underlying purpose of having two offsite power sources. This is because 
the AP1000 design includes an acceptable alternative approach to 
accomplish safety functions that do 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.

F. Issue Resolution

    The purpose of section VI of this appendix would be 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)

[[Page 20068]]

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 would describe the nature of the Commission's findings 
in general terms and make the finding required by 10 CFR 52.54 for the 
Commission's approval of this DCR. Furthermore, paragraph A would 
explicitly state the Commission's determination that this design 
provides adequate protection of the public health and safety.
    Paragraph B would set forth the scope of issues that may not be 
challenged as a matter of right in subsequent proceedings. The 
introductory phrase of paragraph 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 would provide that all nuclear 
safety issues arising from the Atomic Energy Act of 1954, as amended, 
that are associated with the information in the NRC staff's FSER 
(NUREG-1793), 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 would provide for issue preclusion of proprietary and 
safeguards information. Paragraphs B.3, B.4, B.5, and B.6 would clarify 
that approved changes to and departures from the DCD which are 
accomplished in compliance with the relevant procedures and criteria in 
section VIII of this appendix continue to be matters resolved in 
connection with this rulemaking. Paragraphs B.4, B.5, and B.6, which 
would characterize the scope of issue resolution in three situations, 
use the phrase ``but only for that plant'' (emphasis added). Paragraph 
B.4 would describe how issues associated with a design certification 
rule are resolved when an exemption has been granted for a plant 
referencing the design certification rule. Paragraph B.5 would describe 
how issues are resolved when a plant referencing the design 
certification rule obtains a license amendment for a departure from 
Tier 2 information.
    Paragraph B.6 would describe how issues are resolved when the 
applicant or licensee departs from the Tier 2 information on the basis 
of paragraph VIII.B.5, which would waive the requirement to get NRC 
approval. In all three situations, after a matter (e.g., an exemption 
in the case of paragraph B.4) is addressed for a specific plant 
referencing a design certification rule, the adequacy of that matter 
for that plant would not ordinarily be subject to challenge in any 
subsequent proceeding or action for that plant (such as an enforcement 
action) listed in the introductory portion of paragraph IV.B. There 
would not, by contrast, be any issue resolution on that subject matter 
for any other plant.
    Paragraph B.7 would provide 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.  2.309 and present sufficient information to create a genuine 
controversy in order to obtain a hearing on the site parameter 
exemption.
    Paragraph C would reserve the right of the Commission to impose 
operational requirements on applicants that reference this appendix. 
This provision would reflect that operational requirements, including 
generic TS 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 would 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'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 would allow the NRC to impose future operational 
requirements (distinct from design matters) on applicants who reference 
this design certification. Also, license conditions for portions of the 
plant within the scope of this design certification, e.g., start-up and 
power ascension testing, are not restricted by 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 during a combined license review. In the absence of 
detailed design information to evaluate the need for and develop 
specific post-fuel load verifications for these matters, the Commission 
is reserving 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 would reiterate 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 would address ITAAC) within the scope of the certified design.
    Paragraph E would provide the procedure for an interested member of 
the public to obtain access to proprietary or safeguards information 
for the AP1000 design, in order to request and participate in 
proceedings identified in paragraph VI.B of this appendix, viz., 
proceedings involving licenses and applications which reference this 
appendix. Paragraph E,

[[Page 20069]]

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

H. Processes for Changes and Departures

    The purpose of section VIII of this appendix would be to set forth 
the processes for generic changes to or plant-specific departures 
(including exemptions) from the DCD. The Commission adopted this 
restrictive change process in order to achieve a more stable licensing 
process for applicants and licensees that reference this 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 would require an applicant or 
licensee to maintain a plant-specific DCD. For purposes of brevity, 
this discussion refers to both generic changes and plant-specific 
departures as ``change processes.''
    Section VIII of this appendix and section XI of 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 when 
the exemption involves an underlying substantive requirement 
(applicable regulation), then the applicant or licensee requesting the 
exemption must also show that an exemption from the underlying 
applicable requirement meets the criteria of 10 CFR 50.12.
Tier 1 Information
    The change processes for Tier 1 information would be 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 when necessary either to bring the certification 
into compliance with the Commission's regulations applicable and in 
effect at the time of approval of the design certification or to ensure 
adequate protection of the public health and safety or common defense 
and security. The rulemakings must provide for notice and opportunity 
for public comment on the proposed change, as required by 10 CFR 
52.63(a)(1). 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 would require 
that the Commission find both that the departure is necessary for 
adequate protection or for compliance, and that special circumstances 
are present. Paragraph A.4 would provide that exemptions from Tier 1 
requested by an applicant or licensee are governed by the requirements 
of 10 CFR 52.63(b)(1) and 52.97(b), which provide an opportunity for a 
hearing. In addition, the Commission would not grant requests for 
exemptions that may result in a significant decrease in the level of 
safety otherwise provided by the design.
Tier 2 Information
    The change processes for the three different categories of Tier 2 
information, namely, Tier 2, Tier 2*, and Tier 2* with a time of 
expiration, would be set forth in paragraph VIII.B. The change process 
for Tier 2 has the same elements as the Tier 1 change process, but some 
of the standards for plant-specific orders and exemptions would be 
different. As stated in section III of this preamble, it is the 
Commission's intent that this appendix would emulate appendix C to 10 
CFR part 52. However, the Commission has revised the Sec.  50.59-like 
change process in paragraph VIII.B.5 of this appendix to be 
commensurate with the new 10 CFR 50.59 (64 FR 53613, October 4, 1994).
    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 would be accomplished by rulemaking amending the generic DCD 
and would be governed by the standards in 10 CFR 52.63(a)(1). This 
provision would provide that the Commission may not modify, change, 
rescind, or impose new requirements by rulemaking except when 
necessary, either to bring the certification into compliance with the 
Commission's regulations applicable and in effect at the time of 
approval of the design certification or to ensure adequate protection 
of the public health and safety or common defense and security. If a 
generic change is made to Tier 2* information, then the category and 
expiration, if necessary, of the new information would also be 
determined in the rulemaking and the appropriate change process for 
that new information would apply.
    Departures from Tier 2 would occur in five ways: (1) The Commission 
may order a plant-specific departure, as set forth in paragraph 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 under paragraph B.5 [the ``Sec.  
50.59-like'' process]; (4) the licensee may request NRC approval for 
proposed departures which do not meet the requirements in

[[Page 20070]]

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 could not be imposed 
except when necessary either to bring the certification into compliance 
with the Commission's regulations applicable and in effect at the time 
of approval of the design certification or to ensure adequate 
protection of the public health and safety or common defense and 
security, as set forth in paragraph B.3. However, the special 
circumstances for the Commission-ordered Tier 2 departures would not 
have to outweigh any decrease in safety that may result from the 
reduction in standardization caused by the plant-specific order, as 
required by 10 CFR 52.63(a)(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 information.
    An applicant or licensee would be permitted to request an exemption 
from Tier 2 information as set forth in proposed paragraph B.4. The 
applicant or licensee would have to demonstrate that the exemption 
complies with one of the special circumstances in 10 CFR 50.12(a). In 
addition, the Commission would not grant requests for exemptions that 
may result in a significant decrease in the level of safety otherwise 
provided by the design. However, the special circumstances for the 
exemption do not have to outweigh any decrease in safety that may 
result from the reduction in standardization caused by the exemption. 
If the exemption is requested by an applicant for a license, the 
exemption would be subject to litigation in the same manner as other 
issues in the license hearing, consistent with 10 CFR 52.63(b)(1). If 
the exemption is requested by a licensee, then the exemption would be 
subject to litigation in the same manner as a license amendment.
    For plant-specific Tier 2 information, the change process in the 
existing DCRs would be commensurate with the change process in the 
former 10 CFR 50.59. The proposed rule would revise paragraph VIII.B.5 
to conform the terminology in the Sec.  50.59-like change process to 
that used in the revised Sec.  50.59. This amendment would delete 
references to unreviewed safety question and safety evaluation, and 
would conform to the evaluation criteria concerning when prior NRC 
approval is needed. Also, a definition would be added (paragraph II.G) 
for ``departure from a method of evaluation'' to support the evaluation 
criterion in paragraph VIII.B.5.b(8).
    Paragraph B.5 would allow an applicant or licensee to depart from 
Tier 2 information, without prior NRC approval, if the proposed 
departure does not involve a change to, or departure from, Tier 1 or 
Tier 2* information, TS, or does not require a license amendment under 
paragraphs B.5.b or B.5.c. The TS referred to in B.5.a of this 
paragraph are the TS 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 TS would be controlling under paragraph 
B.5. The bases for the plant-specific TS would be controlled by the 
bases control procedures for the plant-specific TS (analogous to the 
bases control provision in the Improved Standard Technical 
Specifications). The requirement for a license amendment in paragraph 
B.5.b would be similar to the definition in the new 10 CFR 50.59 and 
apply to all information in Tier 2 except for the information that 
resolves the severe accident issues.
    The Commission believes that the resolution of severe accident 
issues should be preserved and maintained in the same fashion as all 
other safety issues that were resolved during the design certification 
review (refer to SRM on SECY-90-377). However, because of the increased 
uncertainty in severe accident issue resolutions, the Commission has 
proposed separate criteria in paragraph B.5.c for determining if a 
departure from information that resolves severe accident issues would 
require a license amendment. For purposes of applying the special 
criteria in paragraph B.5.c, severe accident resolutions would be 
limited to design features when the intended function of the design 
feature is relied upon to resolve postulated accidents when the reactor 
core has melted and exited the reactor vessel, and the containment is 
being challenged. These design features are identified in section 1.9.5 
and appendix 19B of the DCD, with other issues, and are described in 
other sections of the DCD. Therefore, the location of design 
information in the DCD is not important to the application of this 
special procedure for severe accident issues. However, the special 
procedure in paragraph B.5.c would not apply to design features that 
resolve so-called ``beyond design basis accidents'' or other low 
probability events. The important aspect of this special procedure is 
that it would be limited to severe accident design features, as defined 
above. Some design features may have intended functions to meet 
``design basis'' requirements and to resolve ``severe accidents.'' If 
these design features are reviewed under paragraph VIII.B.5, then the 
appropriate criteria from either paragraphs B.5.b or B.5.c would be 
selected depending upon the function being changed.
    An applicant or licensee that plans to depart from Tier 2 
information, under paragraph VIII.B.5, would be required to prepare an 
evaluation which provides the bases for the determination that the 
proposed change does not require a license amendment or involve a 
change to Tier 1 or Tier 2* information, or a change to the TS, as 
explained above. In order to achieve the Commission's goals for design 
certification, the evaluation would need to consider all of the matters 
that were resolved in the DCD, such as generic issue resolutions that 
are relevant to the proposed departure. The benefits of the early 
resolution of safety issues would be lost if departures from the DCD 
were made that violated these resolutions without appropriate review.
    The evaluation of the relevant matters would need to consider the 
proposed departure over the full range of power operation from startup 
to shutdown, as it relates to anticipated operational occurrences, 
transients, design-basis accidents, and severe accidents. The 
evaluation would also have to include a review of all relevant 
secondary references from the DCD because Tier 2 information, which is 
intended to be treated as a requirement, would be contained in the 
secondary references. The evaluation would consider Tables 14.3-1 
through 14.3-8 and 19.59-18 of the generic DCD to ensure that the 
proposed change does not impact Tier 1 information. These tables 
contain cross-references from the safety analyses and probabilistic 
risk assessment in Tier 2 to the important parameters that were 
included in Tier 1. Although many issues and analyses could have been 
cross-referenced, the listings in these tables were developed only for 
key analyses for the AP1000 design.
    A party to an adjudicatory proceeding (e.g., for issuance of a COL) 
who believes that an applicant or licensee has not complied with 
paragraph VIII.B.5 when departing from Tier 2 information, would be 
permitted to petition to admit such a contention into the proceeding 
under paragraph B.5.f. This provision has been proposed because an 
incorrect departure from the requirements of this appendix

[[Page 20071]]

essentially would place the departure outside of the scope of the 
Commission's safety finding in the design certification rulemaking. 
Therefore, it follows that properly founded contentions alleging such 
incorrectly implemented departures could not be considered ``resolved'' 
by this rulemaking. As set forth in paragraph B.5.f, the petition would 
have to comply with the requirements of 10 CFR 2.309 and show that the 
departure does not comply with paragraph B.5. Any other party would be 
allowed to 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 would be 
certified to the Commission for its final determination. In the absence 
of a proceeding, petitions alleging nonconformance with paragraph B.5 
requirements applicable to Tier 2 departures would be treated as 
petitions for enforcement action under 10 CFR 2.206.
    Paragraph B.6 would provide a process for departing from Tier 2* 
information. The creation of and restrictions on changing Tier 2* 
information resulted from the development of the Tier 1 information for 
ABWR design certification (appendix A to part 52) and the ABB-CE System 
80+ design certification (appendix B to part 52). During this 
development process, these applicants requested that the amount of 
information in Tier 1 be minimized to provide additional flexibility 
for an applicant or licensee who references these appendices. Also, 
many codes, standards, and design processes, which would not be 
specified in Tier 1 that are acceptable for meeting ITAAC, were 
specified in Tier 2. The result of these actions would be that certain 
significant information only exists in Tier 2 and the Commission would 
not want this significant information to be changed without prior NRC 
approval. This Tier 2* information would be identified in the generic 
DCD with italicized text and brackets (See Table 1-1 of AP1000 DCD 
Introduction).
    Although the Tier 2* designation was originally intended to last 
for the lifetime of the facility, like Tier 1 information, the NRC 
determined that some of the Tier 2* information could expire when the 
plant first achieves full (100 percent) power, after the finding 
required by 10 CFR 52.103(g), while other Tier 2* information must 
remain in effect throughout the life of the facility. The factors 
determining whether Tier 2* information could expire after the first 
full power was achieved were whether the Tier 1 information would 
govern these areas after first full power and the NRC's determination 
that prior approval was required before implementation of the change 
due to the significance of the information. Therefore, certain Tier 2* 
information listed in paragraph B.6.c would cease to retain its Tier 2* 
designation after full-power operation is first achieved following the 
Commission finding under 10 CFR 52.103(g). Thereafter, that information 
would be deemed to be Tier 2 information that would be subject to the 
departure requirements in paragraph B.5. By contrast, the Tier 2* 
information identified in paragraph B.6.b would retain its Tier 2* 
designation throughout the duration of the license, including any 
period of license renewal.
    Certain preoperational tests in paragraph B.6.c would be 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 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's decision was based on the need to verify that 
plant-specific manufacturing and/or construction variations do not 
adversely impact the predicted performance of certain passive safety 
systems, while recognizing that these special tests would result in 
significant thermal transients being applied to critical plant 
components. The NRC believes that the range of manufacturing or 
construction variations that could adversely affect the relevant 
passive safety systems would be adequately disclosed after performing 
the designated tests on the first plant, 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 would 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 for future 
changes would apply. If a plant-specific departure is made from Tier 2* 
information, then the new designation would apply only to that plant. 
If an applicant who references this design certification makes a 
departure from Tier 2* information, the new information would be 
subject to litigation in the same manner as other plant-specific issues 
in the licensing hearing. If a licensee makes a departure from Tier 2* 
information, it would be treated as a license amendment under 10 CFR 
50.90 and the finality would be determined in accordance with paragraph 
VI.B.5 of this appendix. Any requests for departures from Tier 2* 
information that affects Tier 1 would also have to comply with the 
requirements in paragraph VIII.A of this appendix.
Operational Requirements
    The change process for TS and other operational requirements in the 
DCD would be set forth in paragraph VIII.C. This change process has 
elements similar to the Tier 1 and Tier 2 change process in paragraphs 
VIII.A and VIII.B, but with significantly different change standards. 
Because of the different finality status for TS and other operational 
requirements (refer to paragraph III.F of this SOC), the Commission 
decided to designate a special category of information, consisting of 
the TS and other operational requirements, with its own change process 
in proposed paragraph VIII.C. The key to using the change processes 
proposed in section VIII is to determine if the proposed change or 
departure would require a change to a design feature described in the 
generic DCD. If a design change is required, then the appropriate 
change process in paragraph VIII.A or VIII.B would apply. However, if a 
proposed change to the TS or other operational requirements does not 
require a change to a design feature in the generic DCD, then paragraph 
VIII.C would apply. The language in paragraph VIII.C would also 
distinguish between generic (Section 16.1 of DCD) and plant-specific TS 
to account for the different treatment and finality accorded TS before 
and after a license is issued.
    The process in proposed paragraph C.1 for making generic changes to 
the generic TS in section 16.1 of the DCD or other operational 
requirements in the generic DCD would be accomplished by rulemaking and 
governed by the backfit standards in 10 CFR 50.109. The determination 
of whether the generic TS and other operational requirements were 
completely reviewed and approved in the design certification rulemaking 
would be based upon the extent to which an NRC safety conclusion in the 
FSER is being modified or changed. If it cannot be determined that the 
TS or operational requirement was comprehensively

[[Page 20072]]

reviewed and finalized in the design certification rulemaking, then 
there would be no backfit restriction under 10 CFR 50.109 because no 
prior position was taken on this safety matter. Generic changes made 
under proposed paragraph VIII.C.1 would be applicable to all applicants 
or licensees (refer to paragraph VIII.C.2), unless the change is 
irrelevant because of a plant-specific departure.
    Some generic TS contain values in brackets [ ]. The brackets are 
placeholders indicating that the NRC's review is not complete, and 
represent a requirement that the applicant for a combined license 
referencing the AP1000 DCR must replace the values in brackets with 
final plant-specific values. The values in brackets are neither part of 
the design certification rule nor are they binding. Therefore, the 
replacement of bracketed values with final plant-specific values does 
not require an exemption from the generic TS.
    Plant-specific departures may occur by either a Commission order 
under proposed paragraph VIII.C.3 or an applicant's exemption request 
under paragraph VIII.C.4. The basis for determining if the TS or 
operational requirement was completely reviewed and approved for these 
processes would be the same as for proposed paragraph VIII.C.1 above. 
If the TS or operational requirement is comprehensively reviewed and 
finalized in the design certification rulemaking, then the Commission 
must demonstrate that special circumstances are present before ordering 
a plant-specific departure. If not, there would be no restriction on 
plant-specific changes to the TS or operational requirements, prior to 
the issuance of a license, provided a design change is not required. 
Although the generic TS were reviewed 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 TS. The process for petitioning 
to intervene on a TS or operational requirement would be similar to 
other issues in a licensing hearing, except that the petitioner must 
also demonstrate why special circumstances are present (paragraph 
VIII.C.5).
    Finally, the generic TS would have no further effect on the plant-
specific TS after the issuance of a license that references this 
appendix. The bases for the generic TS would be controlled by the 
change process in paragraph VIII.C of this appendix. After a license is 
issued, the bases would be controlled by the bases change provision set 
forth in the administrative controls section of the plant-specific TS.

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

    The purpose of section IX of this appendix would be to set forth 
how the ITAAC in Tier 1 of this design certification rule would be 
treated in a license proceeding. Paragraph A would restate the 
responsibilities of an applicant or licensee for performing and 
successfully completing ITAAC, and notifying the NRC of such 
completion. Paragraph A.1 would clarify 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 would 
require 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 would reiterate the NRC's responsibilities 
with respect to ITAAC as set forth in 10 CFR 52.99 and 52.103(g).\1\ 
Finally, paragraph B.3 would state 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 has been 
granted a renewal of its license. However, subsequent modifications to 
the terms of the COL would have to 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 met. As discussed in paragraph 
III.D of this SOC, the Commission would defer a determination of the 
applicability of ITAAC and its 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.
---------------------------------------------------------------------------

    \1\ For discussion of the verification of ITAAC, see SECY-00-
0092, ``Combined License Review Process,'' dated April 20, 2000.
---------------------------------------------------------------------------

J. Records and Reporting

    The purpose of section X of this appendix would be to set forth the 
requirements that would apply to maintaining records of changes to and 
departures from the generic DCD, which would be reflected in the plant-
specific DCD. Section X also would set forth the requirements for 
submitting reports (including updates to the plant-specific DCD) to the 
NRC. This section of the appendix would be similar to the requirements 
for records and reports in 10 CFR part 50, except for minor differences 
in information collection and reporting requirements.
    Paragraph X.A.1 of this appendix would require that a generic DCD 
and the proprietary and safeguards information 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 they are not publicly available. However, the 
proprietary and safeguards information was reviewed by the NRC and, as 
stated in proposed paragraph VI.B.2 of this appendix, the Commission 
would consider 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, would be 
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 proposed paragraph X.A.1 of this 
appendix. The acceptable version of the proprietary and safeguards 
information would be identified (referenced) in the version of the DCD 
that would be incorporated into this rule. The generic DCD and the 
acceptable version of the proprietary and safeguards information would 
be maintained for the period of time that this appendix may be 
referenced.
    Paragraphs A.2 and A.3 would place recordkeeping requirements on 
the applicant or licensee that references this design certification so 
that its plant-specific DCD accurately reflects both generic changes to 
the generic DCD and plant-specific departures made under proposed 
section VIII of this appendix. The term ``plant-specific'' would be 
added to paragraph A.2 and other sections of this appendix to 
distinguish between the generic DCD that would be incorporated by 
reference into this appendix, and the plant-specific DCD that the 
applicant would be required to submit under proposed paragraph IV.A of 
this appendix. The requirement to maintain the generic changes to the 
generic DCD would be explicitly stated to ensure that these changes are 
not only reflected in the generic DCD, which would be maintained by the 
applicant for design certification, but that the

[[Page 20073]]

changes would also be reflected in the plant-specific DCD. Therefore, 
records of generic changes to the DCD would be required to be 
maintained by both entities to ensure that both entities have up-to-
date DCDs.
    Paragraph X.A of this appendix would not place recordkeeping 
requirements on site-specific information that is outside the scope of 
this rule. As discussed in paragraph III.D of this SOC, the FSAR 
required by 10 CFR 52.79 would contain the plant-specific DCD and the 
site-specific information for a facility that references this rule. The 
phrase ``site-specific portion of the final safety analysis report'' in 
paragraph X.B.3.c of this appendix would refer to the information that 
is contained in the FSAR for a facility (required by 10 CFR 52.79) but 
is not part of the plant-specific DCD (required by proposed paragraph 
IV.A of this appendix). Therefore, this rule would not require that 
duplicate documentation be maintained by an applicant or licensee that 
references this rule, because the plant-specific DCD would be part of 
the FSAR for the facility.
    Paragraph X.B.1 would require applicants or licensees that 
reference this rule to submit reports, which describe departures from 
the DCD and include a summary of the written evaluations. The 
requirement for the written evaluations would be set forth in paragraph 
X.A.1. The frequency of the report submittals would be set forth in 
paragraph X.B.3. The requirement for submitting a summary of the 
evaluations would be similar to the requirement in 10 CFR 50.59(d)(2).
    Paragraph X.B.2 would require applicants or licensees that 
reference this rule to submit updates to the DCD, which include both 
generic changes and plant-specific departures. The frequency for 
submitting updates would be set forth in paragraph X.B.3. The 
requirements in paragraph X.B.3 for submitting the reports and updates 
would vary according to certain time periods during a facility's 
lifetime. If a potential applicant for a combined license who 
references this rule decides to depart from the generic DCD prior to 
submission of the application, then paragraph B.3.a would require that 
the updated DCD be submitted as part of the initial application for a 
license. Under proposed paragraph B.3.b, the applicant may submit any 
subsequent updates to its plant-specific DCD along with its amendments 
to the application provided that the submittals are made at least once 
per year. Because amendments to an application are typically made more 
frequently than once a year, this should not be an excessive burden on 
the applicant.
    Paragraph B.3.b would also require that the reports required by 
paragraph X.B.1 be submitted semi-annually. This increase in reporting 
frequency during the period of construction and application review is 
consistent with Commission guidance. Also, more frequent reporting of 
design changes during the period of detailed design and construction is 
necessary to closely monitor the status and progress of the facility. 
In order to make the finding under 10 CFR 52.103(g), the NRC must 
monitor the design changes made under proposed section VIII of this 
appendix. Frequent reporting of design changes would be particularly 
important in times when the number of design changes could be 
significant, such as during the procurement of components and 
equipment, detailed design of the plant before and during construction, 
and during preoperational testing. After the facility begins operation, 
the frequency of reporting would revert to the requirement in paragraph 
B.3.c, which is consistent with the requirements for plants licensed 
under 10 CFR 50.57.

IV. Availability of Documents

    The NRC is making the documents identified below available to 
interested persons through one or more of the following:
    Public Document Room (PDR). The NRC's Public Document Room is 
located at 11555 Rockville Pike, Public File Area O-1 F21, Rockville, 
MD 20082. Copies of publicly available documents related to this 
rulemaking can be viewed electronically on public computers in the PDR. 
The PDR reproduction contractor will make copies of documents for a 
fee.
    Rulemaking Web Site (Web). The NRC's interactive rulemaking Web 
site is located at http://ruleforum.llnl.gov. Selected documents may be 
viewed and downloaded electronically via this Web site.
    Public Electronic Reading Room (ADAMS). The NRC's public Electronic 
Reading Room is located at http://www.nrc.gov/reading-rm/adams.html. 
Through this site, the public can gain access to ADAMS, which provides 
text and image files of NRC's public documents.

------------------------------------------------------------------------
          Document                PDR         Web            ADAMS
------------------------------------------------------------------------
AP1000 Design Certification           x           x   ML043230006
 Proposed Rule SECY paper.
AP1000 Environmental                  x           x   ML043230023
 Assessment.
AP1000 Design Control                 x   ..........  ML050750293
 Document.
NUREG-1793, ``AP1000 Final            x   ..........  ML043570339
 Safety Evaluation Report''.
SECY-99-268, ``Final Rule--           x   ..........  ML003708259
 AP600 Design
 Certification''.
Regulatory History of Design          x   ..........  ML003761550
 Certification.
------------------------------------------------------------------------

V. Plain Language

    The Presidential memorandum entitled ``Plain Language in Government 
Writing'' (63 FR 31883; June 10, 1998), directed that the Government's 
writing be in plain language. The NRC requests comments on the proposed 
rule specifically with respect to the clarity and effectiveness of the 
language used. Comments should be submitted using one of the methods 
detailed under the ADDRESSES heading of the preamble to this proposed 
rule.

VI. Voluntary 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 
using such a standard is inconsistent with applicable law or is 
otherwise impractical. In this proposed rule, the NRC proposes to 
approve the AP1000 standard plant design for use in a combined license 
(COL) application under 10 CFR part 52 or possibly for a construction 
permit (CP) application under 10 CFR part 50. Design certifications \2\ 
are not generic rulemakings establishing a generally applicable 
standard with which all parts

[[Page 20074]]

50 and 52 nuclear power plant licensees must comply. Design 
certifications are Commission approvals of specific nuclear power plant 
designs by rulemaking. Furthermore, design certification rulemakings 
are initiated by an applicant for rulemaking, rather than by the NRC. 
For these reasons, the NRC concludes that the act does not apply to 
this proposed rule.
---------------------------------------------------------------------------

    \2\ The regulatory history of the NRC's design certification 
reviews is a package of 100 documents that is available in NRC's 
(PERR) and in the PDR. This history spans a 15-year period during 
which the NRC simultaneously developed the regulatory standards for 
reviewing these designs and the form and content of the rules that 
certified the designs. estimated core damage frequencies for the 
AP1000 are very low on an absolute scale. These issues are 
considered resolved for the AP1000 design.
---------------------------------------------------------------------------

VII. 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 AP1000 design; it 
would only codify the AP1000 design in a rule. The NRC will evaluate 
the environmental impacts and issue an EIS as appropriate under 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 AP1000 
design, the NRC reviewed Westinghouse's evaluation of various design 
alternatives to prevent and mitigate severe accidents in appendix 1B of 
the AP1000 DCD Tier 2. Based upon review of Westinghouse's evaluation, 
the Commission finds that: (1) Westinghouse identified a reasonably 
complete set of potential design alternatives to prevent and mitigate 
severe accidents for the AP1000 design; (2) none of the potential 
design alternatives are justified on the basis of cost-benefit 
considerations; and (3) it is unlikely that other design changes would 
be identified and justified in the future on the basis of cost-benefit 
considerations, because the estimated core damage frequencies for the 
AP1000 are very low on an absolute scale. These issues are considered 
resolved for the AP1000 design.
    The environmental assessment (EA), upon which the Commission's 
finding of no significant impact is based, and the AP1000 DCD are 
available for examination and copying at the NRC Public Document Room, 
One White Flint North, 11555 Rockville Pike, Rockville, Maryland. The 
NRC has sent a copy of the EA and this proposed rule to every State 
Liaison Officer and requests their comments on the EA. Single copies of 
the EA are also available from Lauren M. Quinones-Navarro, Mailstop O-
4D9A, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory 
Commission, Washington, DC 20555.

VIII. Paperwork Reduction Act Statement

    This proposed rule contains amended information collection 
requirements that are subject to the Paperwork Reduction Act of 1995 
(44 U.S.C. 3501 et seq). This rule has been submitted to the Office of 
Management and Budget for review and approval of the information 
collection requirements.
    Type of Submission, New or Revision: Revision.
    The Title of the Information Collection: Appendix D to 10 CFR part 
52, AP1000 Design Certification, Proposed Rule.
    Current OMB Approval Number: 3150-0151.
    The Form Number if Applicable: Not applicable.
    How Often the Collection is Required: Semi-annually.
    Who Will be Required or Asked to Report: Applicant for a combined 
license.
    An Estimate of the Number of Annual Responses: 2 (1 response plus 1 
recordkeeper).
    The Estimated Number of Annual Respondents: 1.
    An estimate of the total number of hours needed annually to 
complete the requirement or request: Approximately 39 additional burden 
hours (5 hours reporting plus 34 hours recordkeeping).
    Abstract: The NRC is proposing to amend its regulations to certify 
the AP1000 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 AP1000 design may do so by referencing the 
AP1000 design certification rule (DCR). This proposed DCR, as set out 
in appendix D, is nearly identical to the AP600 DCR in appendix C of 10 
CFR part 52. The information collection requirements for part 52 were 
based largely on the requirements for licensing nuclear facilities 
under 10 CFR part 50. The applicant for certification of the AP1000 
design is Westinghouse Electric Company LLC.
    The U.S. Nuclear Regulatory Commission is seeking public comment on 
the potential impact of the information collection contained in this 
proposed rule and on the following issues:
    1. Is the proposed information collection necessary for the proper 
performance of the functions of the NRC, including whether the 
information will have practical utility?
    2. Is the estimate of burden accurate?
    3. Is there a way to enhance the quality, utility, and clarity of 
the information to be collected?
    4. How can the burden of the information collection be minimized, 
including the use of automated collection techniques?
    A copy of the OMB clearance package may be viewed free of charge at 
the NRC Public Document Room, One White Flint North, 11555 Rockville 
Pike, Room O-1 F21, Rockville, MD 20852. The OMB clearance package and 
rule are available at the NRC worldwide Web site: http://www.nrc.gov/public-involve/doc-comment/omb/index.html for 60 days after the 
signature date of this notice and are also available at the rule forum 
site, http://ruleforum.llnl.gov.
    Send comments on any aspect of these proposed information 
collections, including suggestions for reducing the burden and on the 
above issues, by May 18, 2005 to the Records and FOIA/Privacy Services 
Branch (T-5 F52), U.S. Nuclear Regulatory Commission, Washington, DC 
20555-0001, or by Internet electronic mail to [email protected] and 
to the Desk Officer, John A. Asalone, Office of Information and 
Regulatory Affairs, NEOB-10202, (3150-0151), Office of Management and 
Budget, Washington, DC 20503. 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. You may also e-
mail comments to [email protected] or comment by telephone 
at (202) 395-4650.

Public Protection Notification

    The NRC may not conduct or sponsor, and a person is not required to 
respond to, a request for information or an information collection 
requirement unless the requesting document displays a currently valid 
OMB control number.

IX. 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

[[Page 20075]]

certifications are Commission approvals of specific nuclear power plant 
designs by rulemaking, which then may be voluntarily referenced by 
applicants for COLs. Furthermore, design certification rulemakings are 
initiated by an applicant for a design certification, rather than the 
NRC. Preparation of a regulatory analysis in this circumstance would 
not be useful because the design to be certified is proposed by the 
applicant rather than the NRC. For these reasons, the Commission 
concludes that preparation of a regulatory analysis is neither required 
nor appropriate.

X. Regulatory Flexibility Certification

    Under 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, 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.

XI. Backfit Analysis

    The Commission has determined that this proposed rule does not 
constitute a backfitting as defined in the backfit rule, 10 CFR 50.109 
because this design certification does not impose new or changed 
requirements on existing 10 CFR part 50 licensees, nor does it impose 
new or change requirements on existing DCRs in appendices A-C of part 
52. Therefore, a backfit analysis was not prepared for this 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. 444, as 
amended (42 U.S.C. 2133, 2201, 2232, 2233, 2236, 2239, 2282); secs. 
201, 202, 206, 88 Stat. 1242, 1244, 1246, as amended (42 U.S.C. 
5841, 5842, 5846); sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note).

    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 Sec. Sec.  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, C, and D to this point.
    3. A new appendix D to 10 CFR part 52 is added to read as follows:

Appendix D To Part 52--Design Certification Rule for the AP1000 Design

I. Introduction

    Appendix D constitutes the standard design certification for the 
AP1000 \3\ design, in accordance with 10 CFR part 52, subpart B. The 
applicant for certification of the AP1000 design is Westinghouse 
Electric Company LLC.
---------------------------------------------------------------------------

    \3\ AP1000 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 TS 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 (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 (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 Paragraph 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 TS 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. COL action items (COL information), which identify certain 
matters that shall be addressed in the site-specific portion of the 
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 
paragraph VIII.B.6 of this appendix. This designation

[[Page 20076]]

expires for some Tier 2* information under paragraph VIII.B.6.
    G. Departure from a method of evaluation described in the plant-
specific DCD used in establishing the design bases or in the safety 
analyses means:
    1. Changing any of the elements of the method described in the 
plant-specific DCD unless the results of the analysis are conservative 
or essentially the same; or
    2. Changing from a method described in the plant-specific DCD to 
another method unless that method has been approved by the NRC for the 
intended application.
    H. 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 TS in the 
AP1000 DCD (Revision 14) are approved for incorporation by reference by 
the Director of the Office of the Federal Register on [date of 
approval] under 5 U.S.C. 552(a) and 1 CFR part 51. Copies of the 
generic DCD may be obtained from Ronald P. Vijuk, Manager, Passive 
Plant Engineering, Westinghouse Electric Company, P.O. Box 355, 
Pittsburgh, PA 15230-0355. A copy of the generic DCD is also available 
for examination and copying at the NRC Public Document Room, One White 
Flint North, 11555 Rockville Pike, Rockville, Maryland. Copies are 
available for examination at the NRC Library, 11545 Rockville, 
Maryland, telephone (301) 415-5610, e-mail [email protected] or at the 
National Archives and Records Administration (NARA). For information on 
the availability of this material at NARA, call (202) 741-6030 or go to 
http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.
    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 of the DCD), and the generic TS 
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 AP1000 design or NUREG-
1793, ``Final Safety Evaluation Report Related to Certification of the 
AP1000 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 AP1000 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 paragraph X.B of this appendix;
    c. Plant-specific TS, consisting of the generic and site-specific 
TS 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 AP1000 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 AP1000 design are in 10 CFR parts 20, 50, 
73, and 100, codified as of [date final rule signed], that are 
applicable and technically relevant, as described in the FSER (NUREG-
1793).
    B. The AP1000 design is exempt from portions of the following 
regulations:
    1. 10 CFR 50.34(f)(2)(iv)--Plant Safety Parameter Display Console;
    2. 10 CFR 50.62(c)(1)--Auxiliary (or emergency) feedwater system; 
and
    3. 10 CFR part 50, appendix A, GDC 17--Offsite Power Sources.

VI. Issue Resolution

    A. The Commission has determined that the structures, systems, 
components, and design features of the AP1000 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 AP1000 design.
    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 COL, amendment of a COL, or renewal of a COL, proceedings 
held under to 10 CFR 52.103, and enforcement proceedings involving 
plants referencing this appendix:
    1. All nuclear safety issues, except for the generic TS 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 of the DCD), and the 
rulemaking record for certification of the AP1000 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 AP1000 
design;
    3. All generic changes to the DCD under and in compliance with the 
change processes in sections VIII.A.1 and VIII.B.1 of this appendix;
    4. All exemptions from the DCD under and in compliance with the 
change processes in sections VIII.A.4 and VIII.B.4 of this appendix, 
but only for that plant;
    5. All departures from the DCD that are approved by license 
amendment, but only for that plant;
    6. Except as provided in paragraph VIII.B.5.f of this appendix, all

[[Page 20077]]

departures from Tier 2 under and in compliance with the change 
processes in paragraph VIII.B.5 of this appendix that do not require 
prior NRC approval, but only for that plant;
    7. All environmental issues concerning severe accident mitigation 
design alternatives (SAMDAs) associated with the information in the 
NRC's EA for the AP1000 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 under 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 AP1000 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 [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 Sec. Sec.  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 ensure 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 TS, or requires a license 
amendment under paragraphs B.5.b or 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

[[Page 20078]]

severe accident issue identified in the plant-specific DCD, requires a 
license amendment if it would:
    (1) Result in more than a minimal increase in the frequency of 
occurrence of an accident previously evaluated in the plant-specific 
DCD;
    (2) Result in more than a minimal increase in the likelihood of 
occurrence of a malfunction of a structure, system, or component (SSC) 
important to safety and previously evaluated in the plant-specific DCD;
    (3) Result in more than a minimal increase in the consequences of 
an accident previously evaluated in the plant-specific DCD;
    (4) Result in more than a minimal increase in the consequences of a 
malfunction of an SSC important to safety previously evaluated in the 
plant-specific DCD;
    (5) Create a possibility for an accident of a different type than 
any evaluated previously in the plant-specific DCD;
    (6) Create a possibility for a malfunction of an SSC important to 
safety with a different result than any evaluated previously in the 
plant-specific DCD;
    (7) Result in a design basis limit for a fission product barrier as 
described in the plant-specific DCD being exceeded or altered; or
    (8) Result in a departure from a method of evaluation described in 
the plant-specific DCD used in establishing the design bases or in the 
safety analyses.
    c. A proposed departure from Tier 2 affecting resolution of a 
severe accident issue identified in the plant-specific DCD, requires a 
license amendment 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 requires a license amendment under paragraph 
B.5.b or B.5.c 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 paragraph 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 2.309, the petition must demonstrate 
that the departure does not comply with paragraph 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 material fact regarding compliance with paragraph 
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.
    (6) Small-break loss-of-coolant (LOCA) Analysis Methodology.
    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 under 
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 
subject to the departure provisions in paragraph B.5 of this section.
    (1) Nuclear Island structural dimensions.
    (2) American Society of Mechanical Engineers Boiler & Pressure 
Vessel Code (ASME Code), Section III, and Code Case-284.
    (3) Design Summary of Critical Sections.
    (4) American Concrete Institute (ACI) 318, ACI 349, American 
National Standards Institute/American Institute of Steel Construction 
(ANSI/AISC)-690, and American Iron and Steel Institute (AISI), 
``Specification for the Design of Cold Formed Steel Structural Members, 
Part 1 and 2,'' 1996 Edition and 2000 Supplement.
    (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 and control system design processes, methods, 
and standards.
    (10) Passive residual heat removal (PRHR) natural circulation test 
(first plant only).
    (11) Automatic depressurization system (ADS) and core make-up tank 
(CMT) verification tests (first three plants only).
    (12) Polar Crane Parked Orientation.
    (13) Piping design acceptance criteria.
    (14) Containment Vessel Design Parameters.
    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 TS 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 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 TS 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 paragraphs C.3 or C.4 of 
this section.
    3. The Commission may require plant-specific departures on generic 
TS and other operational requirements that were completely reviewed and 
approved, provided a change to a design feature in the generic DCD is 
not

[[Page 20079]]

required and special circumstances as defined in 10 CFR 2.335 are 
present. The Commission may modify or supplement generic TS and other 
operational requirements that were not completely reviewed and approved 
or require additional TS 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 TS 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 TS derived from the generic TS must be changed may petition to 
admit such a contention into the proceeding. The petition must comply 
with the general requirements of 10 CFR 2.309 and must demonstrate why 
special circumstances as defined in 10 CFR 2.335 are present, or 
demonstrate 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 to the petition. 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 TS or other operational requirements 
are subject to a hearing as part of the license proceeding.
    6. After issuance of a license, the generic TS have no further 
effect on the plant-specific TS. Changes to the plant-specific TS 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. A licensee may also 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. If 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 under 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 find that the prescribed acceptance criteria 
have been met. At appropriate intervals during construction, the NRC 
shall publish notices of the successful completion of ITAAC in the 
Federal Register.
    2. Under 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 a 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 under 
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 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 
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 DCD, which reflect the generic changes to and 
plant-specific departures from the generic DCD made under section VIII 
of this appendix. These updates shall be filed under 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 X.B.1 and X.B.2 
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 generic DCD.
    b. During the interval from the date of application for a license 
to the date the Commission makes its findings under 10 CFR 52.103(g), 
the report must be submitted semi-annually. Updates to the plant-
specific DCD must be submitted annually and may be submitted along with 
amendments to the application.
    c. After the Commission has made its finding under 10 CFR 
52.103(g), the reports and updates to the plant-specific DCD must be 
submitted, along with updates to the site-specific portion of the final 
safety analysis report for the facility, at the intervals required by 
10 CFR 50.59(d)(2) and 50.71(e)(4), respectively, or at shorter 
intervals as specified in the license.


[[Page 20080]]


    Dated at Rockville, Maryland, this 12th day of April, 2005.
    For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. 05-7658 Filed 4-15-05; 8:45 am]
BILLING CODE 7590-01-P