[Federal Register Volume 71, Number 18 (Friday, January 27, 2006)]
[Rules and Regulations]
[Pages 4464-4482]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-788]


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NUCLEAR REGULATORY COMMISSION

10 CFR Part 52

RIN 3150-AH56


AP1000 Design Certification

AGENCY: Nuclear Regulatory Commission.

ACTION: Final rule.

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SUMMARY: The Nuclear Regulatory Commission (NRC or Commission) is 
amending 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 this 
regulation [AP1000 design certification rule (DCR)]. The applicant for 
certification of the AP1000 design was Westinghouse Electric Company, 
LLC (Westinghouse).

DATES: Effective Date: The effective date of this rule is February 27, 
2006. The incorporation by reference of certain material specified in 
this regulation is approved by the Director of the Office of the 
Federal Register as of February 27, 2006.

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:

I. Background.
II. Comment Analysis
    A. Design Control Document
    B. Design Certification Rule
III. Section-by-Section Analysis
    A. Introduction (Section I)
    B. Definitions (Section II)
    C. Scope and Contents (Section III)
    D. Additional Requirements and Restrictions (Section IV)
    E. Applicable Regulations (Section V)
    F. Issue Resolution (Section VI)
    G. Duration of this Appendix (Section VII)
    H. Processes for Changes and Departures (Section VIII)
    I. Inspections, Tests, Analyses, and Acceptance Criteria 
(Section IX)
    J. Records and Reporting (Section X)
IV. Availability of Documents
V. Voluntary Consensus Standards
VI. Finding of No Significant Environmental Impact: Availability
VII. Paperwork Reduction Act Statement
VIII. Regulatory Analysis
IX. Regulatory Flexibility Certification
X. Backfit Analysis
XI. Congressional Review Act

I. Background

    Subpart B of 10 CFR part 52 sets forth the process for obtaining 
standard design certifications. On March 28, 2002 (67 FR 20845; April 
26, 2002), 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; June 28, 2002). The pre-application information 
submitted before the NRC formally accepted the application can be found 
in the NRC's Agencywide Documents Access and Management System (ADAMS) 
under Docket Number PROJ0711 (Project No. 711).
    The NRC staff issued a final safety evaluation report (FSER) for 
the AP1000 design in September 2004 (NUREG-1793). The FSER provides the 
bases for issuance of a final design approval (FDA) under appendix O to 
part 52, which is a prerequisite to a design certification. The FDA for 
the AP1000 design was issued on September 13, 2004, and published in 
the Federal Register on September 17, 2004 (69 FR 56101). A proposed 
rule to certify the AP1000 was published on April 18, 2005 (70 FR 
20062).
    Subsequently, Westinghouse submitted editorial and minor technical 
changes and clarifications to the inspections, tests, analyses, and 
acceptance criteria (ITAAC) in revision 15 to the design control 
document (DCD). The NRC staff evaluated these changes in a supplement 
to the FSER (NUREG-1793, Supplement No. 1). Supplement No. 1 is being 
made available to the public as part of this rulemaking. The FSER and 
Supplement No. 1 provide the bases for the Commission's approval of the 
AP1000 standard plant design. An FDA, which incorporates the changes to 
the DCD, will be issued to supersede the current FDA after issuance of 
this final design certification rule.

II. Comment Analysis

    The period for submitting comments on the proposed DCR, AP1000 DCD, 
or draft environmental assessment (EA) expired on July 5, 2005. The NRC 
received three letters from two private citizens and one letter from 
the Nuclear Energy Institute (NEI). The comments addressed three 
categories of information: Environmental Assessment (EA), Design 
Control Document, and Design Certification Rule. The responses to the 
comments on the EA are discussed in section 7.0 of the EA 
(ML053630176). Responses to the comments in the second and third 
categories are discussed below.

A. Design Control Document (DCD)

    Comment summary. There is an over-reliance on passive systems in 
the AP1000.
    Response. The NRC disagrees with this comment. The NRC required 
tests of the new passive safety systems to demonstrate that they will 
perform as predicted in the safety analysis (see Chapter 21 of the 
AP1000 FSER). The NRC also required higher availability for certain 
active backup systems to compensate for any remaining uncertainties in 
the performance of the passive safety systems (see Chapter 22 of the 
AP1000 FSER). As a result of these reviews, the NRC concluded that the 
use of passive safety systems in the AP1000 design is acceptable.
    Comment Summary. The AP1000 is an unnecessary and unsafe variation 
on AP600.
    Response. The NRC disagrees with the comment. The NRC has 
determined that the AP1000 design can be built and operated safely (see 
AP1000 FSER). The

[[Page 4465]]

NRC does not determine which designs are necessary for future 
deployment.
    Comment Summary. The AP1000 DCD referenced in the proposed rule 
does not meet the requirement of 10 CFR part 52 that the plant design 
be complete except for site-specific elements and other specific 
exemptions.
    Response. The NRC disagrees with this comment. The requirement for 
a complete scope of design [10 CFR 52.47(b)(2)(i)(A)(4)] was met by the 
applicant (see discussion in section 1.2.1 of AP1000 FSER). The comment 
appears to be directed at the requirement for an application to contain 
a sufficient level of design information for the Commission to reach a 
conclusion on all safety questions associated with the design [10 CFR 
52.47(a)(2)], which was also met by the applicant (see discussion in 
section 1.5 of AP1000 FSER).
    Comment Summary. The appropriateness of the process used to derive 
the AP1000 design from the AP600 design has not been given sufficient 
attention in the NRC's review.
    Response. The NRC disagrees with this comment, which appears to 
apply to the NRC's review of the applicant's quality assurance (QA) 
program. In its application for design certification of the AP1000 
plant, Westinghouse stated that a continuous QA program spanning the 
AP600 design and the AP1000 design has been used. Since March 31, 1996, 
activities affecting the quality of items and services for the AP1000 
project during design, procurement, fabrication, inspection, and/or 
testing have been performed under the quality plan described in 
``Westinghouse Energy Systems Business Unit--Quality Management 
System.'' The Quality Management System (QMS) establishes design 
control measures for preparing, reviewing, and approving design 
documentation for safety-related structures, systems, and components 
(SSCs). As documented in an NRC evaluation letter, dated February 23, 
1996, from S. Black (NRC) to N.J. Liparulo, the Westinghouse QMS was 
reviewed by the NRC and found to meet the requirements of 10 CFR part 
50, appendix B. Subsequent revisions to the QMS have also been reviewed 
by the NRC and found to be acceptable. To provide additional assurance 
that Westinghouse implemented the measures described in the QMS, the 
NRC staff performed a QA implementation inspection at the Westinghouse 
engineering offices in Monroeville, Pennsylvania, which was documented 
in NRC Inspection Report No. 99900404/03-01, dated November 4, 2003 
(ADAMS Accession No. ML033090510). Therefore, the NRC concludes that 
the applicant's QA program for the AP1000 design was acceptable.
    Comment Summary. The decision by the NRC not to require 
Westinghouse to build and test a prototype for the automatic 
depressurization system (ADS) 4th stage squib valve was made under 
pressure of the accelerated AP1000 schedule.
    Response. The NRC disagrees that the AP1000 schedule affected the 
decision not to require Westinghouse to build and test a prototype for 
the ADS 4th stage squib valve. The need for a prototype test was 
evaluated by the NRC staff during the AP1000 design review. Also, the 
ability to design and build the ADS valve for AP1000 was discussed with 
the Advisory Committee on Reactor Safeguards (ACRS) at its future plant 
subcommittee meeting on July 17-18, 2003. In addition, in a letter to 
ACRS dated May 18, 2004, the NRC staff stated that the ADS-4 squib 
valves will be designed, constructed, and tested under Section III of 
the Boiler and Pressure Vessel Code promulgated by the American Society 
of Mechanical Engineers and are actuated by redundant and diverse 
instrumentation and control systems. The staff also performed a 
sensitivity study by increasing the failure probability and the common-
cause failure probability of the ADS-4 squib valves by an order of 
magnitude. This sensitivity study indicated that the CDF increased by 
only a factor of three (to 6 x 10-7/year)and was not large 
enough to impact the probabilistic risk assessment (PRA) conclusions 
and insights about the AP1000 design.
    Comment Summary. The effect of heat of solar radiation on the 
performance of the AP1000 passive containment cooling system (PCS) has 
not been resolved, and geographical latitude ought to be a site 
parameter, unless it can be shown that the PCS is effective at all 
geographical latitudes, even when heat of solar radiation is taken into 
account.
    Response. The NRC disagrees with these comments. The site 
parameters for the AP1000 design include minimum and maximum air 
temperatures (see DCD Table 2-1). The safety maximum temperature is 115 
[deg]F, which is based on historical site data and excludes peaks of 
less than 2-hour durations.
    The operational limits for the AP1000 containment include a 
technical specification (TS) limit on the temperature of the air inside 
containment, TS 3.6.5, ``Containment Air Temperature,'' of less than or 
equal to 120 [deg]F. In addition, there is a limit on the water 
temperature in the PCS storage tank specified in TS 3.6.6, ``Passive 
Containment Cooling System--Operating,'' of greater than or equal to -
40 [deg]F and less than or equal to 120 [deg]F. If the water 
temperature is at or below 50 [deg]F, or at or above 100 [deg]F, the 
surveillance frequency to check the temperature is reduced from 7 days 
to 24 hours. The operational limits and the site parameters provide 
reasonable assurance that the AP1000 can be operated without undue risk 
to the public health and safety. Conservative evaluations of the 
potential effect of solar radiation on the operation and performance of 
the AP1000 PCS show that the AP1000 TS provide reasonable assurance 
that off-normal conditions can be detected and appropriate actions 
taken to preclude operations outside the current design-base 
assumptions. Based on the estimated time needed to exceed the current 
operational temperature limits (10 days of uninterrupted extreme 
environmental conditions), it is reasonable to conclude that the AP1000 
operational limits will not be exceeded even for sites with high solar 
radiation. In the unlikely event that the shield building might heat 
up, a containment response analysis showed the pressure increase to be 
small, 0.75 pounds per square inch (psi), and based on the current 
margin of 1.2 psi (DCD Table 6.2.1.1-1), the design pressure limit of 
73.7 pounds per square inch absolute (psia) would not be exceeded. 
Therefore, the effect of heat of solar radiation on the performance of 
the PCS has been resolved.
    Comment Summary. The accelerated schedule for the AP1000 led to 
cutting regulatory corners and was further accelerated by granting the 
FDA before the FSER was made available to the public.
    Response. The NRC disagrees with this comment. In a letter to Mr. 
W.E. Cummins (Westinghouse), dated July 12, 2002, it is true that the 
NRC provided an expected schedule for the AP1000 review, which was 
significantly shorter than previous DCRs. However, the shorter schedule 
was due to efficiencies that the NRC expected to achieve as a result of 
the similarities between the previously-approved AP600 design and the 
AP1000 design. Also, the AP1000 FSER was made available to the public 
on September 20, 2004, the same day that the FDA was made available to 
the public.

B. Design Certification Rule

    It is the Commission's goal to maintain as much consistency as 
possible in the rule language for all of the DCRs. Many of the 
following

[[Page 4466]]

comments from NEI appear to be applicable to all of the DCRs but some 
repeat comments NEI submitted previously during the 2003 proposed rule 
to amend 10 CFR part 52 (68 FR 40025; July 3, 2003).
    Comment Summary. NEI recommends that Section III.B of the 
Supplementary Information (70 FR 20064) be revised to delete the phrase 
``not just incorporate by reference.''
    Response. The NRC disagrees with this request. The NRC does agree 
that the plant-specific DCD should be part of the final safety analysis 
report (FSAR) for a combined license (COL) application. The NRC 
believes that the generic DCD should also be part of the FSAR, not just 
incorporated by reference, in order to facilitate the NRC staff's 
review of any departures or exemptions. However, any changes made to 
existing DCRs if part 52 is revised would also be made to the AP1000 
DCR.
    Comment Summary. NEI recommends clarification of the review status 
of ``operational requirements'' in Section III.F of the Supplementary 
Information (70 FR 20067).
    Response. The NRC agrees that the special backfit provisions of 10 
CFR 52.63 do not apply to operational requirements in the DCD. However, 
the NRC believes that the discussion in Section III.F of the 
Supplementary Information section of the proposed rule document 
accurately states the review status of operational requirements and 
does not need to be revised.
    Comment Summary. NEI recommends modification of the definition of 
generic TS in section II.B of the AP1000 DCR.
    Response. The NRC disagrees with this comment. The NRC stated in 
the Supplementary Information (70 FR 20063) that the values in brackets 
are neither part of the AP1000 DCR nor are they binding. The NRC 
believes that amending the definition of generic TS is not necessary 
and also wants to maintain consistent rule language for all DCRs.
    Comment Summary. NEI recommends replacement of the term 
``investment protection'' in section II.E of the AP1000 DCR and 
elsewhere in the DCD by the term ``non-safety-related severe accident 
equipment.'' In addition, NEI recommends that the AP1000 DCR and 
Supplementary Information be revised so that bracketed information in 
the investment protection short-term availability controls will be 
treated like bracketed information in generic TS.
    Response. The NRC disagrees with NEI's request to change this 
terminology. Use of the term ``investment protection short-term 
availability controls'' was requested by the applicant (Westinghouse 
Electric Company, LLC) and was also used in the AP600 DCR. Furthermore, 
the origin of investment protection short-term availability controls 
comes from implementing the regulatory treatment of non-safety systems 
process, which typically results in requirements to achieve higher 
reliability for certain active, non-safety systems. These systems are 
not limited to severe accident design features. Therefore, even if the 
NRC agreed to a generic change to the term ``investment protection,'' 
the proposed term ``non-safety-related severe accident equipment'' 
would not be an acceptable replacement.
    The NRC agrees that the bracketed values in the investment 
protection short-term availability controls have the same status as the 
bracketed values in the generic TS. As a result, the NRC refers to the 
availability controls in section III.H of the Supplementary Information 
in this Federal Register notice.
    Comment Summary. NEI recommends that the phrase ``or licensees'' be 
deleted from the rule language in section VIII.C.2 of the AP1000 DCR.
    Response. The NRC agrees with this comment and section VIII.C.2 of 
the AP1000 DCR has been amended as suggested by NEI. The Commission may 
consider amending the DCRs to adopt the language recommended by NEI if 
10 CFR part 52 is revised.
    Comment Summary. NEI recommends amending the rule language in 
section VIII.C.6 of the AP1000 DCR to delete the requirement that 
changes to the plant-specific TS be treated as license amendments.
    Response. The NRC disagrees with this request. The requirement that 
changes to the plant-specific TS be treated as license amendments is 
correct. If the Commission decides to clarify this issue for the DCRs 
in any potential revision to 10 CFR part 52, the NRC will also clarify 
the AP1000 DCR accordingly as part of that rulemaking.
    Comment Summary. NEI recommends amending the rule language in 
section IX.B.1 of the AP1000 DCR to restore the phrase ``based solely 
thereon.''
    Response. The NRC agrees to amend section IX.B.1 of the AP1000 DCR, 
in order to make all of the DCRs consistent. However, the NRC notes 
that inclusion of the phrase ``based solely thereon,'' does not change 
the meaning of section IX.B.1. The determination of inspection, test, 
analysis, and acceptance criteria (ITAAC) completion will always be 
based on information that is material to the acceptance criteria.
    Comment Summary. NEI recommends amending the rule language in 
section X.A.1 of the AP1000 DCR to require the design certification 
applicant to include all generic changes to the generic TS and other 
operational requirements in the generic DCD.
    Response. The NRC agrees with this comment, section X.A.1 of the 
AP1000 DCR has been amended as suggested by NEI. The Commission may 
consider amending the DCRs to adopt the language recommended by NEI if 
10 CFR part 52 is revised.
    Comment Summary. NEI recommends that sections IV.A.2 and IV.A.3 of 
the AP1000 DCR be amended to be consistent with respect to inclusion of 
information in the plant-specific DCD or explain the difference between 
the terms ``include'' and ``physically include'' in section IV.A (70 FR 
20076).
    Response. The NRC agrees that use of the terms ``include'' and 
``physically include'' in section IV.A of the AP1000 DCR should be 
clarified. The Commission may consider amending all of the DCRs to 
clarify this issue if 10 CFR part 52 is revised.
    Comment Summary. NEI recommends amending the definition of Tier 2 
in section II.E.1 of the AP1000 DCR to exclude the design-specific PRA 
and the evaluation of SAMDAs.
    Response. The NRC agrees with this comment, section II.E.1 of the 
AP1000 DCR has been amended as suggested by NEI. The NRC notes that NEI 
submitted the same comment during the 2003 proposed rule to amend 10 
CFR part 52. The Commission may consider amending the DCRs to adopt the 
language recommended by NEI if 10 CFR part 52 is revised.
    Comment Summary. NEI recommends amending the rule language in 
section III.E of the AP1000 DCR to use the terminology for ``site 
characteristics'' consistently.
    Response. The NRC agrees with this comment, section III.E of the 
AP1000 DCR has been amended to be consistent with the other DCRs in the 
proposed part 52 rule. The NRC notes that NEI submitted the same 
comment during the 2003 proposed rule to amend 10 CFR part 52.
    Comment Summary. NEI recommends clarifying the rule language in 
section IV.A.2 of the AP1000 DCR regarding ``same'' information and 
``generic DCD.''
    Response. The NRC agrees with this comment, section IV.A.2 of the 
AP1000 DCR has been amended to be consistent with the other DCRs in the 
proposed part 52 rule. The NRC notes that NEI submitted the same 
comment during the 2003 proposed rule to amend 10 CFR part 52.

[[Page 4467]]

    Comment Summary. NEI recommends amending section VIII.B.6.a of the 
AP1000 DCR to be consistent with section VI.B.5 regarding plant-
specific departures.
    Response. The NRC disagrees with this request. It was determined 
during the first two DCRs that departures from Tier 2* information 
would not receive finality or be treated as a resolved issue within the 
meaning of section VI of the DCR. The NRC notes that NEI submitted the 
same comment during the 2003 proposed rule to amend 10 CFR part 52. If 
the Commission decides to adopt NEI's proposed language for the DCRs in 
any potential revision to 10 CFR part 52, the NRC will also amend the 
AP1000 DCR accordingly as part of that rulemaking.
    Comment Summary. NEI recommends amending section VIII.C.3 of the 
AP1000 DCR to require the NRC to meet the backfit requirements of 10 
CFR 50.109 in addition to the special circumstances in 10 CFR 2.758(b) 
for plant-specific departures from operational requirements.
    Response. The NRC disagrees with this request. In the first two 
DCRs, the Commission decided on different standards for changes made 
under section VIII.C of the DCRs (see the discussion at 62 FR 25800; 
May 12, 1997). The NRC notes that NEI submitted the same comment during 
the 2003 proposed rule to amend 10 CFR part 52. If the Commission 
decides to adopt NEI's proposed language for the DCRs in any potential 
revision to 10 CFR part 52, the NRC will also amend the AP1000 DCR 
accordingly as part of that rulemaking.
    Comment Summary. NEI recommends amending section VIII.C.4 of the 
AP1000 DCR to revise the standards for making changes to operational 
requirements.
    Response. The NRC disagrees with this request. In the first two 
DCRs, the Commission decided on different standards for changes made 
under section VIII.C of the DCRs (see the discussion at 62 FR 25800; 
May 12, 1997). In addition, the Commission determined that exemptions 
from operational requirements would not receive finality or be treated 
as a resolved issue within the meaning of section VI of the DCR. The 
NRC notes that NEI submitted the same comment during the 2003 proposed 
rule to amend 10 CFR part 52. If the Commission decides to adopt NEI's 
proposed language for the DCRs in any potential revision to 10 CFR part 
52, the NRC will also amend the AP1000 DCR accordingly as part of that 
rulemaking.
    Comment Summary. NEI recommends amending section IX.B.1 of the 
AP1000 DCR to specify the type of action to be performed by the NRC 
staff regarding ITAAC.
    Response. The NRC disagrees with this request. Individual DCRs 
should not address the scope of the NRC staff's activities with respect 
to ITAAC verification. This is a generic matter that, if it is to be 
addressed in a rulemaking, is more appropriate for inclusion in subpart 
C of part 52 dealing generally with combined licenses.
    The NRC notes that NEI submitted the same comment during the 2003 
proposed rule to amend 10 CFR part 52. If the Commission decides to 
adopt NEI's proposed language for the DCRs in any potential revision to 
10 CFR part 52, the NRC will also amend the AP1000 DCR accordingly as 
part of that rulemaking.
    Comment Summary. NEI recommends amending section IX.B.3 of the 
AP1000 DCR to clarify the rule language.
    Response. The NRC disagrees with this editorial request and has 
decided to maintain the original rule language for this provision. The 
NRC notes that NEI submitted the same comment during the 2003 proposed 
rule to amend 10 CFR part 52. If the Commission decides to adopt NEI's 
proposed language for the DCRs in any potential revision to 10 CFR part 
52, the NRC will also amend the AP1000 DCR accordingly as part of that 
rulemaking.
    Comment Summary. NEI recommends amending sections X.B.1 and X.B.3 
of the AP1000 DCR to clarify the rule language regarding DCDs.
    Response. The NRC agrees with this comment and section X.B of the 
AP1000 DCR has been amended to clarify the language. The NRC notes that 
NEI submitted the same comment during the 2003 proposed rule to amend 
10 CFR part 52. The Commission may consider amending the existing DCRs 
in any potential revision to 10 CFR part 52.

III. Section-by-Section Analysis

    The following discussion sets forth the purpose and key aspects of 
each section and paragraph of the final AP1000 DCR. All section and 
paragraph references are to the provisions in appendix D to 10 CFR part 
52. The final DCR for the AP1000 standard plant design is nearly 
identical to the AP600 DCR, which the NRC 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, as well as the initial two DCRs for the 
ABWR and ABB-CE System 80+, (e.g., the two-tier structure, Tier 2*, the 
scope of issue resolution) were developed after extensive public 
discussions with 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 where 
necessary, to account for differences in the AP1000 design 
documentation, design features, and environmental assessment (including 
severe accident mitigation design alternatives (SAMDAs).

A. Introduction

    The purpose of section I of appendix D to 10 CFR part 52 (this 
appendix) is 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 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, 
paragraph X.A.1 of this appendix requires the design certification 
applicant to maintain the generic DCD throughout the time this appendix 
may be referenced.

B. Definitions

    During development of the first two DCRs, the Commission decided 
that there would be both generic (master) DCDs maintained by the NRC 
and the design certification applicant, as well as individual plant-
specific DCDs maintained by each applicant and licensee that reference 
this appendix. This distinction is necessary in order to specify the 
relevant plant-specific requirements to applicants and licensees 
referencing the appendix. The master DCDs would include generic changes 
to the version of the DCD approved in this design certification 
rulemaking. These changes would occur as the result of generic 
rulemaking by the Commission, under the change criteria in section VIII 
of this appendix. The Commission also requires each applicant and 
licensee referencing this appendix 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

[[Page 4468]]

updated as necessary to reflect the generic changes to the DCD that the 
Commission may adopt through rulemaking, plant-specific departures from 
the generic DCD that the Commission imposed on the licensee by order, 
and any plant-specific departures that the licensee chooses to make in 
accordance with the relevant processes in section VIII of this 
appendix. Thus, the plant-specific DCD would function like an updated 
FSAR because it would provide the most complete and accurate 
information on a plant's 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 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 10 
CFR 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 DCRs to achieve issue preclusion for a greater amount 
of information than was originally planned for the DCRs, while 
retaining flexibility for design implementation. The Commission 
approved the use of a two-tiered rule structure in its 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, of this Statement of Consideration (SOC)).
    The Tier 1 portion of the design-related information contained in 
the DCD is certified by this appendix and, therefore, is subject to the 
special backfit provisions in paragraph VIII.A of this appendix. An 
applicant who references this appendix is 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 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 made 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. 
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 SOC).
    Tier 2 is the portion of the design-related information contained 
in the DCD that is approved by this appendix but not certified. Tier 2 
information is 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 SAMDAs) 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 require an applicant 
who references this appendix to incorporate Tier 2 by reference and to 
comply with Tier 2, except for the COL action items, including the 
investment protection short-term availability controls in section 16.3 
of the generic DCD. The definition of Tier 2 makes clear that Tier 2 
information has been determined by the Commission, by virtue of its 
inclusion in this appendix and its designation as Tier 2 information, 
to be an approved sufficient method for meeting Tier 1 requirements. 
However, there may be other acceptable ways of complying with Tier 1. 
The appropriate criteria for departing from Tier 2 information are 
specified in paragraph VIII.B of this appendix. Departures from Tier 2 
do 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, has been 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 are not 
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, were added to the 
information that is part of 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 III.C of this SOC.
    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 requires 
prior NRC approval. However, the Tier 2* designation expires for some 
of this

[[Page 4469]]

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 pre-operational 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 will expire after 
the first plant or first three plants complete the specified tests. 
However, a COL action item requires that subsequent plants also perform 
the tests or justify that the results of the first-plant-only or first-
three-plants-only tests are applicable to the subsequent plant.
    In an earlier rulemaking (64 FR 53582; October 4, 1999), the 
Commission revised 10 CFR 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 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 final rule will be implemented as intended.

C. Scope and Contents

    The purpose of section III of this appendix is to describe and 
define the scope and contents of this design certification and to set 
forth how documentation discrepancies or inconsistencies are to be 
resolved. Paragraph III.A is the required statement of the Office of 
the Federal Register (OFR) for approval of the incorporation by 
reference of Tier 1, Tier 2, and the generic TS into this appendix. 
Paragraph III.B requires COL applicants and licensees to comply with 
the requirements of this appendix. The legal effect of incorporation by 
reference is that the incorporated material has the same legal status 
as if it were published in the Code of Federal Regulations. This 
material, like any other properly-issued regulation, has the force and 
effect of law. Tier 1 and Tier 2 information, as well as the generic 
TS, have been combined into a single document called the generic DCD, 
in order to effectively control this information and facilitate its 
incorporation by reference into the rule. The generic DCD was prepared 
to meet the requirements of the OFR for incorporation by reference (1 
CFR part 51). One of the requirements of the OFR for incorporation by 
reference is that the design certification applicant must make the 
generic DCD available upon request after the final rule becomes 
effective. Therefore, paragraph III.A of this appendix identifies a 
Westinghouse representative to be contacted in order to obtain a copy 
of the generic DCD.
    Paragraphs III.A and III.B also identify the investment protection 
short-term availability controls in section 16.3 of the generic DCD as 
part of the Tier 2 information. During its review of the 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 of this appendix to ensure that 
these availability controls are binding on applicants and licensees 
that reference this appendix and will be enforceable by the NRC. The 
NRC's evaluation of the availability controls is provided in Chapter 22 
of the FSER.
    The generic DCD (master copy) for this design certification will be 
electronically accessible in NRC's Agencywide Documents Access and 
Management System (ADAMS) and at the OFR. Copies of the generic DCD 
will also be available at the NRC's Public Document Room (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 is requiring 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 will obtain the generic DCD from the design 
certification applicant. Plant-specific changes to and departures from 
the generic DCD will be maintained by the applicant or licensee that 
references this appendix in a plant-specific DCD under paragraph X.A.2 
of this appendix.
    In addition to requiring compliance with this appendix, paragraph 
III.B clarifies that the conceptual design information and 
Westinghouse's evaluation of SAMDAs are not considered to be part of 
this appendix. The conceptual design information is for those portions 
of the plant that are outside the scope of the standard design and are 
contained in Tier 2 information. As provided by 10 CFR 52.47(a)(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 III.C and III.D set forth the way potential conflicts 
are to be resolved. Paragraph III.C establishes the Tier 1 description 
in the DCD as controlling in the event of an inconsistency between the 
Tier 1 and Tier 2 information in the DCD. Paragraph III.D establishes 
the generic DCD as the controlling document in the event of an 
inconsistency between the DCD and the FSER for the certified standard 
design.
    Paragraph III.E makes it clear that design activities that are 
wholly outside the scope of this design certification may be performed 
using site-specific design parameters, provided the design activities 
do not affect Tier 1 or Tier 2, or conflict with the interface 
requirements in the DCD. This provision applies to site-specific 
portions of the

[[Page 4470]]

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 sets forth additional requirements and 
restrictions imposed upon an applicant who references this appendix. 
Paragraph IV.A sets forth the information requirements for these 
applicants. This paragraph distinguishes between information and/or 
documents which must actually be included in the application or the 
DCD, versus those which may be incorporated by reference (i.e., 
referenced in the application as if the information or documents were 
included in the application). Any incorporation by reference in the 
application should be clear and should specify the title, date, 
edition, or version of a document, the page number(s), and table(s) 
containing the relevant information to be incorporated.
    Paragraph IV.A.1 requires an applicant who references this appendix 
to incorporate by reference this appendix in its application. The legal 
effect of such an incorporation by reference is that this appendix is 
legally binding on the applicant or licensee. Paragraph IV.A.2.a 
requires that a plant-specific DCD be included in the initial 
application to ensure that the applicant commits to complying with the 
DCD. This paragraph also requires the plant-specific DCD to use the 
same format as the generic DCD and reflect the applicant's proposed 
departures and exemptions from the generic DCD as of the time of 
submission of the application. The Commission expects that the plant-
specific DCD will become the plant's FSAR, by including information, 
i.e., site-specific information, for the portions of the plant outside 
the scope of the referenced design, including related ITAAC, and other 
matters required to be included in an FSAR by 10 CFR 50.34 and 52.79. 
Integration of the plant-specific DCD and remaining site-specific 
information into the plant's FSAR, will result in an application that 
is easier to use and should minimize ``duplicate documentation'' and 
the attendant possibility for confusion. Paragraph IV.A.2.a also 
requires that the initial application include the reports on departures 
and exemptions as of the time of submission of the application.
    Paragraph IV.A.2.b requires that an application referencing this 
appendix 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 IV.A.2.c requires 
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 IV.A.2.d requires the applicant referencing this appendix 
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 the 
proposed site is 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 IV.A.2.e requires 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 IV.A.2.f 
requires that the application include the information specified by 10 
CFR 52.47(a) that is not within the scope of this rule, such as generic 
issues that must be addressed, in whole or in part, by an applicant 
that references this rule. Paragraph IV.A.3 requires 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 reserves to the Commission the right to determine 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 appendix 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 were applicable and in effect at the time this design 
certification was approved. These regulations consist of the 
technically relevant regulations identified in paragraph V.A, except 
for the regulations in paragraph V.B that are not applicable to this 
certified design.
    Paragraph V.A identifies the regulations in 10 CFR parts 20, 50, 
73, and 100 that are applicable to the AP1000 design. After the NRC 
staff issued its FSER for the AP1000 design (NUREG-1793, September 
2004), the Commission amended several existing regulations and adopted 
new regulations. The Commission reviewed these regulations to determine 
if they are applicable to this design and, if so, to determine if the 
design meets these regulations. The Commission finds that none of these 
new regulations are applicable to the AP1000 design. The Commission's 
determination of the applicable regulations was made as of the date 
specified in paragraph V.A of this appendix, which is the date that 
this appendix was approved by the Commission and signed by the 
Secretary of the Commission.
    In paragraph V.B of this appendix, the Commission identifies 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 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

[[Page 4471]]

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--Second Offsite Power 
Supply Circuit. 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 is to identify the scope 
of issues that are resolved by the Commission in this rulemaking and; 
therefore, are ``matters resolved'' within the meaning and intent of 10 
CFR 52.63(a)(4). The section is divided into five parts: (A) The 
Commission's safety findings in adopting this appendix, (B) the scope 
and nature of issues which are resolved by this rulemaking, (C) issues 
which are not resolved by this rulemaking, (D) the backfit restrictions 
applicable to the Commission with respect to this appendix, and (E) the 
availability of secondary references.
    Paragraph VI.A describes the nature of the Commission's findings in 
general terms and makes the finding required by 10 CFR 52.54 for the 
Commission's approval of this DCR. Furthermore, paragraph VI.A 
explicitly states the Commission's determination that this design 
provides adequate protection of the public health and safety.
    Paragraph VI.B sets forth the scope of issues that may not be 
challenged as a matter of right in subsequent proceedings. The 
introductory phrase of paragraph VI.B clarifies that issue resolution 
as described in the remainder of the paragraph extends to the 
delineated NRC proceedings referencing this appendix. The remainder of 
paragraph VI.B describes the categories of information for which there 
is issue resolution. Specifically, paragraph VI.B.1 provides that all 
nuclear safety issues arising from the Atomic Energy Act of 1954, as 
amended, that are associated with the information in the NRC staff's 
FSER (NUREG-1793) and Supplement No. 1, 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 10 CFR 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 VI.B.2 provides for issue preclusion of proprietary and 
safeguards information. Paragraphs VI.B.3, VI.B.4, VI.B.5, and VI.B.6 
clarify that approved changes to and departures from the DCD which are 
accomplished in compliance with the relevant procedures and criteria in 
section VIII of this appendix continue to be matters resolved in 
connection with this rulemaking. Paragraphs VI.B.4, VI.B.5, and VI.B.6, 
which characterize the scope of issue resolution in three situations, 
use the phrase ``but only for that plant.'' Paragraph VI.B.4 describes 
how issues associated with a design certification rule are resolved 
when an exemption has been granted for a plant referencing the design 
certification rule. Paragraph VI.B.5 describes how issues are resolved 
when a plant referencing the design certification rule obtains a 
license amendment for a departure from Tier 2 information.
    Paragraph VI.B.6 describes how issues are resolved when the 
applicant or licensee departs from the Tier 2 information on the basis 
of paragraph VIII.B.5, which will waive the requirement for NRC 
approval. In all three situations, after a matter (e.g., an exemption 
in the case of paragraph VI.B.4) is addressed for a specific plant 
referencing a design certification rule, the adequacy of that matter 
for that plant will not ordinarily be subject to challenge in any 
subsequent proceeding or action for that plant (e.g., an enforcement 
action) listed in the

[[Page 4472]]

introductory portion of paragraph IV.B. There will not, by contrast, be 
any issue resolution on that subject matter for any other plant.
    Paragraph VI.B.7 provides that, for those plants located on sites 
whose site parameters do not exceed those assumed in Westinghouse's 
evaluation of SAMDAs, all issues with respect to SAMDAs arising under 
the National Environmental Policy Act of 1969, as amended (NEPA), 
associated with the information in the 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 10 CFR 
52.63(a)(4). If 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 10 CFR 2.309 and present sufficient 
information to create a genuine controversy in order to obtain a 
hearing on the site parameter exemption.
    Paragraph VI.C reserves the right of the Commission to impose 
operational requirements on applicants that reference this appendix. 
This provision reflects the fact that operational requirements, 
including generic 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 10 CFR 52.63 do not apply to 
operational requirements. However, all design changes will be 
controlled by the appropriate provision in section VIII of this 
appendix. Although the information in the DCD that is related to 
operational requirements is 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 10 CFR 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 paragraph 
VIII.A or VIII.B of this appendix. However, changes to other 
operational requirements, such as inservice testing and inservice 
inspection programs, post-fuel load verification activities, and 
requirements governing shutdown risk that do not require a design 
change would not be restricted by 10 CFR 52.63 (see paragraph VIII.C of 
this appendix).
    Paragraph VI.C allows the NRC to impose future operational 
requirements (distinct from design matters) on applicants who reference 
this design certification. Also, license conditions for portions of the 
plant within the scope of this design certification, e.g., start-up and 
power ascension testing, are not restricted by 10 CFR 52.63. The 
requirement to perform these testing programs is contained in Tier 1 
information. However, ITAAC cannot be specified for these subjects 
because the matters to be addressed in these license conditions cannot 
be verified prior to fuel load and operation, when the ITAAC are 
satisfied. Therefore, another regulatory vehicle is necessary to ensure 
that licensees comply with the matters contained in the license 
conditions. License conditions for these areas cannot be developed now 
because this requires the type of detailed design information that will 
be developed during a 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 VI.D reiterates the restrictions (contained in section 
VIII of this appendix) placed upon the Commission when ordering generic 
or plant-specific modifications, changes or additions to structures, 
systems, or components, design features, design criteria, and ITAAC 
(paragraph VI.D.3 would address ITAAC) within the scope of the 
certified design.
    Paragraph VI.E provides 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 VI.E specifies 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 is 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 also states 
that the design certification remains valid for an applicant or 
licensee that references the design certification until the application 
is withdrawn or the license expires. Therefore, if an application 
references this design certification during the 15-year period, then 
the design certification will be effective until the application is 
withdrawn or the license issued on that application expires. Also, the 
design certification will 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 is to set forth the 
processes for generic changes to or plant-specific departures 
(including exemptions) from the DCD. The Commission adopted this 
restrictive change process in order to achieve a more stable licensing 
process for applicants and licensees that reference this DCR. Section 
VIII is divided into three paragraphs, which correspond to Tier 1, Tier 
2, and operational requirements. The language of section VIII of this 
appendix distinguishes between generic changes to the DCD versus plant-
specific departures from the DCD. Generic changes must be accomplished 
by rulemaking because the intended subject of the change is this DCR 
itself, as is contemplated by 10 CFR 52.63(a)(1). Consistent with 10 
CFR 52.63(a)(2), any generic rulemaking changes are applicable to all 
plants, absent circumstances which render the change [``modification'' 
in the language of 10 CFR 52.63(a)(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 10 CFR 50.59 departure or an 
exemption. Because these plant-specific departures will result in a DCD 
that is unique for that plant, section X of this appendix requires an 
applicant or licensee to maintain a plant-specific DCD. For

[[Page 4473]]

purposes of brevity, this discussion refers to both generic changes and 
plant-specific departures as ``change processes.''
    Section VIII of this appendix refers to an exemption from one or 
more requirements of this appendix and the criteria for granting an 
exemption. The Commission cautions that when the exemption involves an 
underlying substantive requirement (applicable regulation), then the 
applicant or licensee requesting the exemption must also show that an 
exemption from the underlying applicable requirement meets the criteria 
of 10 CFR 50.12.
Tier 1 information
    The change processes for Tier 1 information are covered in 
paragraph VIII.A. Generic changes to Tier 1 are accomplished by 
rulemakings that amend 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 VIII.A.3; or (2) an applicant or licensee may request an 
exemption from Tier 1, as provided in paragraph VIII.A.4. If the 
Commission seeks to order a licensee to depart from Tier 1, paragraph 
VIII.A.3 requires that the Commission find both that the departure is 
necessary for adequate protection or for compliance, and that special 
circumstances are present. Paragraph VIII.A.4 provides that exemptions 
from Tier 1 requested by an applicant or licensee are governed by the 
requirements of 10 CFR 52.63(b)(1) and 52.97(b), which provide an 
opportunity for a hearing. In addition, the Commission will not grant 
requests for exemptions that may result in a significant decrease in 
the level of safety otherwise provided by the design.
Tier 2 information
    The change processes for the three different categories of Tier 2 
information, namely, Tier 2, Tier 2*, and Tier 2* with a time of 
expiration, are set forth in paragraph VIII.B. The change process for 
Tier 2 has the same elements as the Tier 1 change process, but some of 
the standards for plant-specific orders and exemptions are different. 
As stated in section III, of this SOC, it is the Commission's intent 
that this appendix emulates Appendix C to 10 CFR part 52. However, the 
Commission has revised the 10 CFR 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, 1999).
    The process for generic Tier 2 changes (including changes to Tier 
2* and Tier 2* with a time of expiration) tracks the process for 
generic Tier 1 changes. As set forth in paragraph VIII.B.1, generic 
Tier 2 changes are accomplished by rulemaking amending the generic DCD 
and are governed by the standards in 10 CFR 52.63(a)(1). This provision 
provides that the Commission may not modify, change, rescind, or impose 
new requirements by rulemaking except 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 may occur in five ways: (1) The Commission 
may order a plant-specific departure, as set forth in paragraph 
VIII.B.3; (2) an applicant or licensee may request an exemption from a 
Tier 2 requirement as set forth in paragraph VIII.B.4; (3) a licensee 
may make a departure without prior NRC approval under paragraph 
VIII.B.5 [similar to the process in 10 CFR 50.59]; (4) the licensee may 
request NRC approval for proposed departures which do not meet the 
requirements in paragraph VIII.B.5 as provided in paragraph VIII.B.5.d; 
and (5) the licensee may request NRC approval for a departure from Tier 
2* information under paragraph VIII.B.6.
    Similar to Commission-ordered Tier 1 departures and generic Tier 2 
changes, Commission-ordered Tier 2 departures cannot be imposed except 
when necessary either to bring the certification into compliance with 
the Commission's regulations applicable and in effect at the time of 
approval of the design certification or to ensure adequate protection 
of the public health and safety or common defense and security, as set 
forth in paragraph VIII.B.3. However, the special circumstances for the 
Commission-ordered Tier 2 departures do not have to outweigh any 
decrease in safety that may result from the reduction in 
standardization caused by the plant-specific order, as required by 10 
CFR 52.63(a)(3). The Commission determined that it was not necessary to 
impose an additional limitation similar to that imposed on Tier 1 
departures by 10 CFR 52.63(a)(3) and (b)(1). This type of additional 
limitation for standardization would unnecessarily restrict the 
flexibility of applicants and licensees with respect to Tier 2 
information.
    An applicant or licensee may request an exemption from Tier 2 
information as set forth in paragraph VIII.B.4. The applicant or 
licensee must demonstrate that the exemption complies with one of the 
special circumstances in 10 CFR 50.12(a). In addition, the Commission 
will not grant requests for exemptions that may result in a significant 
decrease in the level of safety otherwise provided by the design. 
However, the special circumstances for the exemption do not have to 
outweigh any decrease in safety that may result from the reduction in 
standardization caused by the exemption. If the exemption is requested 
by an applicant for a license, the exemption is subject to litigation 
in the same manner as other issues in the license hearing, consistent 
with 10 CFR 52.63(b)(1). If the exemption is requested by a licensee, 
then the exemption is subject to litigation in the same manner as a 
license amendment.
    Paragraph VIII.B.5 allows an applicant or licensee to depart from 
Tier 2 information, without prior NRC approval, if the proposed 
departure does not involve a change to, or departure from, Tier 1 or 
Tier 2* information, TS, or does not require a license amendment under 
paragraphs VIII.B.5.b or VIII.B.5.c. The TS referred to in VIII.B.5.a 
of this paragraph are the TS in 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 are controlling under 
paragraph VIII.B.5. The bases for the plant-specific TS will 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 VIII.B.5.b will 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.

[[Page 4474]]

    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 
adopted separate criteria in paragraph VIII.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 VIII.B.5.c, severe accident resolutions are 
limited to design features where the intended function of the design 
feature is relied upon to resolve postulated accidents when the reactor 
core has melted and exited the reactor vessel, and the containment is 
being challenged. These design features are identified in 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 VIII.B.5.c does not apply to design features 
that resolve so-called ``beyond design-basis accidents'' or other low-
probability events. The important aspect of this special procedure is 
that it is limited 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 VIII.B.5.b or VIII.B.5.c 
are selected depending upon the function being changed.
    An applicant or licensee that plans to depart from Tier 2 
information, under paragraph VIII.B.5, is 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 needs to consider all of the matters that 
were resolved in the DCD, such as generic issue resolutions that are 
relevant to the proposed departure. The benefits of the early 
resolution of safety issues would be lost if departures from the DCD 
were made that violated these resolutions without appropriate review.
    The evaluation of the relevant matters needs to consider the 
proposed departure over the full range of power operation from startup 
to shutdown, as it relates to anticipated operational occurrences, 
transients, design-basis accidents, and severe accidents. The 
evaluation must also include a review of all relevant secondary 
references from the DCD because Tier 2 information, which is intended 
to be treated as a requirement, is contained in the secondary 
references. The evaluation should 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.
    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, is permitted 
to petition to admit such a contention into the proceeding under 
paragraph VIII.B.5.f. This provision was included because an incorrect 
departure from the requirements of this appendix essentially places the 
departure outside of the scope of the Commission's safety finding in 
the design certification rulemaking. Therefore, it follows that 
properly founded contentions alleging such incorrectly implemented 
departures cannot be considered ``resolved'' by this rulemaking. As set 
forth in paragraph VIII.B.5.f, the petition must comply with the 
requirements of 10 CFR 2.309 and show that the departure does not 
comply with paragraph VIII.B.5. Any other party may file a response to 
the petition. If on the basis of the petition and any responses, the 
presiding officer in the proceeding determines that the required 
showing has been made, the matter shall be certified to the Commission 
for its final determination. In the absence of a proceeding, petitions 
alleging nonconformance with paragraph VIII.B.5 requirements applicable 
to Tier 2 departures will be treated as petitions for enforcement 
action under 10 CFR 2.206.
    Paragraph VIII.B.6 provides a process for departing from Tier 2* 
information. The creation of and restrictions on changing Tier 2* 
information resulted from the development of the Tier 1 information for 
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 were not specified 
in Tier 1 that are acceptable for meeting ITAAC, were specified in Tier 
2. The result of these actions is that certain significant information 
only exists in Tier 2 and the Commission does not want this significant 
information to be changed without prior NRC approval. This Tier 2* 
information is identified in the generic DCD with italicized text and 
brackets (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 VIII.B.6.c ceases 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 
is deemed to be Tier 2 information that is subject to the departure 
requirements in paragraph VIII.B.5. By contrast, the Tier 2* 
information identified in paragraph VIII.B.6.b retains its Tier 2* 
designation throughout the duration of the license, including any 
period of license renewal.
    Certain preoperational tests in paragraph VIII.B.6.c are designated 
to be performed only for the first plant or first three plants that 
reference this appendix. Westinghouse's basis for performing these 
``first-plant-only'' and ``first-three-plants-only'' preoperational 
tests is provided in section 14.2.5 of the DCD. The NRC 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 will result in 
significant thermal transients being applied to critical plant

[[Page 4475]]

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 will expire after the first plant or first 
three plants complete these tests, as indicated in paragraph 
VIII.B.6.c.
    If Tier 2* information is changed in a generic rulemaking, the 
designation of the new information (Tier 1, 2*, or 2) would also be 
determined in the rulemaking and the appropriate process for future 
changes would apply. If a plant-specific departure is made from Tier 2* 
information, then the new designation would apply only to that plant. 
If an applicant who references this design certification makes a 
departure from Tier 2* information, the new information is 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 will be treated as a license amendment under 10 CFR 
50.90 and the finality will be determined under paragraph VI.B.5 of 
this appendix. Any requests for departures from Tier 2* information 
that affects Tier 1 must also 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 is set forth in paragraph VIII.C. This change process has elements 
similar to the Tier 1 and Tier 2 change process in paragraphs VIII.A 
and VIII.B, but with significantly different change standards. Because 
of the different finality status for TS and other operational 
requirements (refer to paragraph III.F of this SOC), the Commission 
designated a special category of information, consisting of the TS and 
other operational requirements, with its own change process in proposed 
paragraph VIII.C. The key to using the change processes proposed in 
section VIII is to determine if the proposed change or departure 
requires a change to a design feature described in the generic DCD. If 
a design change is required, then the appropriate change process in 
paragraph VIII.A or VIII.B applies. However, if a proposed change to 
the TS or other operational requirements does not require a change to a 
design feature in the generic DCD, then paragraph VIII.C applies. The 
language in paragraph VIII.C also distinguishes between generic 
(section 16.1 of DCD) and plant-specific TS to account for the 
different treatment and finality accorded TS before and after a license 
is issued.
    The process in paragraph VIII.C.1 for making generic changes to the 
generic TS in section 16.1 of the DCD or other operational requirements 
in the generic DCD is accomplished by rulemaking and governed by the 
backfit standards in 10 CFR 50.109. The determination of whether the 
generic TS and other operational requirements were completely reviewed 
and approved in the design certification rulemaking is based upon the 
extent to which an NRC safety conclusion in the FSER is being modified 
or changed. If it cannot be determined that the TS or operational 
requirement was comprehensively reviewed and finalized in the design 
certification rulemaking, then there is no backfit restriction under 10 
CFR 50.109 because no prior position was taken on this safety matter. 
Generic changes made under proposed paragraph VIII.C.1 are applicable 
to all applicants or licensees (refer to paragraph VIII.C.2), unless 
the change is irrelevant because of a plant-specific departure.
    Some generic TS and investment protection short-term availability 
controls contain values in brackets []. The brackets are placeholders 
indicating that the NRC's review is not complete, and represent a 
requirement that the applicant for a 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 or investment protection short-term 
availability controls.
    Plant-specific departures may occur by either a Commission order 
under paragraph VIII.C.3 or an applicant's exemption request under 
paragraph VIII.C.4. The basis for determining if the TS or operational 
requirement was completely reviewed and approved for these processes is 
the same as for paragraph VIII.C.1 above. If the TS or operational 
requirement is comprehensively reviewed and finalized in the design 
certification rulemaking, then the Commission must demonstrate that 
special circumstances are present before ordering a plant-specific 
departure. If not, there is no restriction on plant-specific changes to 
the TS or operational requirements, prior to the issuance of a license, 
provided a design change is not required. Although the generic TS were 
reviewed and approved by the NRC staff in support of the 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 contained in paragraph 
VIII.C.5 is similar to other issues in a licensing hearing, except that 
the petitioner must also demonstrate why special circumstances are 
present.
    Finally, the generic TS will 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 will be controlled by the change 
process in paragraph VIII.C of this appendix. After a license is 
issued, the bases will be controlled by the bases change provision set 
forth in the administrative controls section of the plant-specific TS.

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

    The purpose of section IX of this appendix is to set forth how the 
ITAAC in Tier 1 of this design certification rule are to be treated in 
a license proceeding. Paragraph IX.A restates the responsibilities of 
an applicant or licensee for performing and successfully completing 
ITAAC, and notifying the NRC of such completion. Paragraph IX.A.1 
clarifies 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 IX.A.2 requires the licensee to notify the NRC 
that the required inspections, tests, and analyses in the ITAAC have 
been completed and that the acceptance criteria have been met.
    Paragraphs IX.B.1 and IX.B.2 reiterate the NRC's responsibilities 
with respect to ITAAC as set forth in 10 CFR 52.99 and 52.103(g).\1\ 
Finally, paragraph IX.B.3 states that ITAAC do not, by virtue of their 
inclusion in the DCD, constitute regulatory requirements after the 
licensee has received authorization to load fuel or has been granted a

[[Page 4476]]

renewal of its license. However, subsequent modifications to the terms 
of the COL must comply with the design descriptions in the DCD unless 
the applicable requirements in 10 CFR 52.97 and section VIII of this 
appendix have been met. As discussed in paragraph III.D of this SOC, 
the Commission will defer a determination of the applicability of ITAAC 
and its effect in terms of issue resolution in 10 CFR part 50 licensing 
proceedings until a part 50 applicant decides to reference this 
appendix.
---------------------------------------------------------------------------

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

J. Records and Reporting

    The purpose of section X of this appendix is to set forth the 
requirements that will apply to maintaining records of changes to and 
departures from the generic DCD, which are to be reflected in the 
plant-specific DCD. Section X also sets forth the requirements for 
submitting reports (including updates to the plant-specific DCD) to the 
NRC. This section of the appendix is similar to the requirements for 
records and reports in 10 CFR part 50, except for minor differences in 
information collection and reporting requirements.
    Paragraph X.A.1 of this appendix requires 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 paragraph VI.B.2 of this appendix, the Commission considers 
the information resolved within the meaning of 10 CFR 52.63(a)(4). 
Because this information is not in the generic DCD, the proprietary and 
safeguards information, or its equivalent, is required to be provided 
by an applicant for a license. Therefore, to ensure that this 
information will be available, a requirement for the design 
certification applicant to maintain the proprietary and safeguards 
information was added to proposed paragraph X.A.1 of this appendix. The 
acceptable version of the proprietary and safeguards information is 
identified (referenced) in the version of the DCD that is incorporated 
into this rule. The generic DCD and the acceptable version of the 
proprietary and safeguards information must be maintained for the 
period of time that this appendix may be referenced.
    Paragraphs X.A.2 and X.A.3 place recordkeeping requirements on the 
applicant or licensee that references this design certification so that 
its plant-specific DCD accurately reflects both generic changes to the 
generic DCD and plant-specific departures made under Section VIII of 
this appendix. The term ``plant-specific'' was added to paragraph X.A.2 
and other sections of this appendix to distinguish between the generic 
DCD that is incorporated by reference into this appendix, and the 
plant-specific DCD that the applicant is required to submit under 
paragraph IV.A of this appendix. The requirement to maintain changes to 
the generic DCD is explicitly stated to ensure that these changes are 
not only reflected in the generic DCD, which will be maintained by the 
applicant for design certification, but also in the plant-specific DCD. 
Therefore, records of generic changes to the DCD will be required to be 
maintained by both entities to ensure that both entities have up-to-
date DCDs.
    Paragraph X.A of this appendix does 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 will contain the plant-specific DCD and the 
site-specific information for a facility that references this rule. The 
phrase ``site-specific portion of the final safety analysis report'' in 
paragraph X.B.3.c of this appendix refers to the information that is 
contained in the FSAR for a facility (required by 10 CFR 52.79) but is 
not part of the plant-specific DCD (required by paragraph IV.A of this 
appendix). Therefore, this rule does not require that duplicate 
documentation be maintained by an applicant or licensee that references 
this rule, because the plant-specific DCD is part of the FSAR for the 
facility.
    Paragraph X.B.1 requires 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 requirements for the 
written evaluations are set forth in paragraph X.A.1. The frequency of 
the report submittals is set forth in paragraph X.B.3. The requirement 
for submitting a summary of the evaluations is similar to the 
requirement in 10 CFR 50.59(d)(2).
    Paragraph X.B.2 requires 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 is set forth in paragraph X.B.3. The requirements in paragraph 
X.B.3 for submitting the reports and updates will 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 X.B.3.a will require that the updated DCD be submitted 
as part of the initial application for a license. Under paragraph 
X.B.3.b, the applicant may submit any subsequent updates to its plant-
specific DCD along with its amendments to the application provided that 
the submittals are made at least once per year. Because amendments to 
an application are typically made more frequently than once a year, 
this should not be an excessive burden on the applicant.
    Paragraph X.B.3.b also requires 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 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 will revert to the requirement in paragraph X.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, 
Maryland 20852. 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

[[Page 4477]]

downloaded electronically via this Web site.
    Public Electronic Reading Room (ADAMS). The NRC's Public Electronic 
Reading Room (PERR) 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.
---------------------------------------------------------------------------

    \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.

------------------------------------------------------------------------
           Document                PDR         Web           ADAMS
------------------------------------------------------------------------
AP1000 Design Control                  X   ..........  ML053460400
 Document, Revision 15.
AP1000 Final Environmental             X   ..........  ML053630176
 Assessment.
AP1000 Final Safety                    X   ..........  ML043570339
 Evaluation Report [NUREG-
 1793].
NUREG-1793, Supplement 1,              X   ..........  ML053410203
 AP1000 FSER.
SECY-05-0227, Final Rule--             X           X   ML053250288
 AP1000 Design Certification.
Regulatory History of Design           X   ..........  ML003761550
 Certification \2\.
------------------------------------------------------------------------

V. Voluntary Consensus Standards

    The National Technology Transfer and Advancement 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 final rule, the NRC 
is approving the AP1000 standard plant design for use in nuclear power 
plant licensing under 10 CFR parts 50 or 52. Design certifications are 
not generic rulemakings establishing a generally applicable standard 
with which all parts 50 and 52 nuclear power plant licensees must 
comply. Design certifications are Commission approvals of specific 
nuclear power plant designs by rulemaking. Furthermore, design 
certifications are initiated by an applicant for rulemaking, rather 
than by the NRC. For these reasons, the NRC concludes that the Act does 
not apply to this final rule.

VI. Finding of No Significant Environmental Impact: Availability

    The Commission has determined under NEPA, and the Commission's 
regulations in 10 CFR part 51, subpart A, that this design 
certification rule is not a major Federal action significantly 
affecting the quality of the human environment and, therefore, an 
Environmental Impact Statement (EIS) is not required. The basis for 
this determination, as documented in the environmental assessment (EA), 
is that this amendment to 10 CFR part 52 does not authorize the siting, 
construction, or operation of a facility using the AP1000 design; it 
only codifies 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 referencing the AP1000 design certification rule.
    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 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 20852. The NRC sent a copy of the 
EA and proposed rule to every State Liaison Officer and no comments 
were received. 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.

VII. Paperwork Reduction Act Statement

    This final rule contains new or amended information collection 
requirements that are subject to the Paperwork Reduction Act of 1995 
(44 U.S.C. 3501 et seq.). These requirements were approved by the 
Office of Management and Budget, approval number 3150-0151.
    The burden to the public for these information collections is 
estimated to average 8 hours per response, including the time for 
reviewing instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
information collection. Send comments on any aspect of these 
information collections, including suggestions for reducing the burden, 
to the Records and FOIA/Privacy Services Branch (T5 F52), U.S. Nuclear 
Regulatory Commission, Washington, DC 20555-0001, or by Internet 
electronic mail to [email protected]; and to the Desk Officer, 
Office of Information and Regulatory Affairs, NEOB-10202, (3150-0151), 
Office of Management and Budget, Washington, DC 20503.

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.

VIII. Regulatory Analysis

    The NRC has not prepared a regulatory analysis for this final rule. 
The NRC prepares regulatory analyses for rulemakings that establish 
generic regulatory requirements applicable to all licensees. Design 
certifications are not generic rulemakings in the sense that design 
certifications do not establish standards or requirements with which 
all licensees must comply. Rather, design certifications are Commission 
approvals of specific nuclear power plant designs by rulemaking, which 
then may be voluntarily referenced by applicants for COLs. Furthermore, 
design certification rulemakings are initiated by an applicant for a 
design certification, rather than the NRC. Preparation of a regulatory 
analysis in

[[Page 4478]]

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.

IX. Regulatory Flexibility Certification

    Under the Regulatory Flexibility Act of 1980, 5 U.S.C. 605(b), the 
Commission certifies that this final rule will not have a significant 
economic impact upon a substantial number of small entities. The final 
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 Regulatory Flexibility Act.

X. Backfit Analysis

    The Commission has determined that this final rule does not 
constitute a backfit as defined in the backfit rule (10 CFR 50.109), 
because this design certification does not impose new or changed 
requirements on existing 10 CFR part 50 licensees, nor does it impose 
new or change requirements on existing DCRs in appendices A-C of part 
52. Therefore, a backfit analysis was not prepared for this rule.

XI. Congressional Review Act

    In accordance with the Congressional Review Act of 1996, the NRC 
has determined that this action is not a major rule and has verified 
this determination with the Office of Information and Regulatory 
Affairs of OMB.

List of Subjects in 10 CFR Part 52

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


0
For the reasons set out in this SOC 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. 552 and 553; the NRC is adopting the 
following amendments to 10 CFR part 52.

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

0
1. The authority citation for 10 CFR part 52 continues to read as 
follows:

    Authority: Secs. 103, 104, 161, 182, 183, 186, 189, 68 Stat. 
936, 948, 953, 954, 955, 956, as amended, sec. 234, 83 Stat. 444, as 
amended (42 U.S.C. 2133, 2201, 2232, 2233, 2236, 2239, 2282); secs. 
201, 202, 206, 88 Stat. 1242, 1244, 1246, as amended (42 U.S.C. 
5841, 5842, 5846); sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note).


0
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 part.

0
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 
technical specifications that is incorporated by reference into this 
appendix.
    B. Generic technical specifications means the information 
required by 10 CFR 50.36 and 50.36a for the portion of the plant 
that is within the scope of this appendix.
    C. Plant-specific DCD means the document maintained by an 
applicant or licensee who references this appendix consisting of the 
information in the generic DCD as modified and supplemented by the 
plant-specific departures and exemptions made under section VIII of 
this appendix.
    D. Tier 1 means the portion of the design-related information 
contained in the generic DCD that is approved and certified by this 
appendix (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, the design-specific PRA, the evaluation of SAMDAs, 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 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.

[[Page 4479]]

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 15, dated December 8, 2005) are approved 
for incorporation by reference by the Director of the Office of the 
Federal Register on February 27, 2006 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, Pennsylvania 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, 20852. Copies are available for 
examination at the NRC Library, Two White Flint North, 11545 
Rockville Pike, 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 SAMDAs 
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) and Supplement No. 1, 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 characteristics, 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 type of information 
and using the same organization and numbering as the generic DCD for 
the AP1000 design, 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 of this chapter.

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 January 23, 2006, that are 
applicable and technically relevant, as described in the FSER 
(NUREG-1793) and Supplement No. 1.
    B. The AP1000 design is exempt from portions of the following 
regulations:
    1. Paragraph (f)(2)(iv) of 10 CFR 50.34--Plant Safety Parameter 
Display Console;
    2. Paragraph (c)(1) of 10 CFR 50.62--Auxiliary (or emergency) 
feedwater system; and
    3. Appendix A to 10 CFR part 50, GDC 17--Second offsite power 
supply circuit.

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 and Supplement No. 1, 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 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 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

[[Page 4480]]

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 
February 27, 2006, 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 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 10 CFR 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 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 accident (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.

[[Page 4481]]

    (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 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 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, based solely thereon, 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, Tier 2, and 
the generic TS and other operational requirements. 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 
plant-specific departures from the 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

[[Page 4482]]

submitted, the application must 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.

    Dated at Rockville, Maryland, this 23rd day of January 2006.

    For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. 06-788 Filed 1-26-06; 8:45 am]
BILLING CODE 7590-01-P