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Federal Register / Vol. 86, No. 124 / Thursday, July 1, 2021 / Proposed Rules
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appendices, but it is not certified and licensees who reference the design can change this information using the process outlined in Section VIII of the appendices. This change process is similar to that in 50.59 and is generally referred to as the 50.59-like process. If the criteria in Section VIII are met, a licensee can change Tier 2
information without prior NRC
approval.
As mentioned in the previous paragraph, the NRC has used a third category, Tier 2, in other design certification rules. This third category was created to address industry requests to minimize the scope of Tier 1
information and provide greater flexibility for making changes. Unlike Tier 2 information, all changes to Tier 2 information require a license amendment, but unlike Tier 1
information, no exemption is required.
In those rules, Tier 2 information has the same safety significance as Tier 1
information but is part of the Tier 2
section of the DCD to afford more flexibility for licensees to change this type of information.
The applicant did not designate or categorize any Tier 2 information in the NuScale DCA. The NRC evaluated the Tier 2 information to determine whether any of that information should require NRC approval before it is changed. If the NRC had identified any such information in Tier 2, then the NRC would have requested that the applicant revise the application to categorize that information as Tier 1 or Tier 2. The NRC did not identify any information in Tier 2 that should be categorized as Tier 2. Because neither the applicant nor the NRC have designated any information in the DCD
as Tier 2, that designation and related requirements are not being used in this design certification rule.
Tier 1 Information Paragraph A of Section VIII describes the change process for changes to Tier 1 information that are accomplished by rulemakings that amend the generic DCD and are governed by the standards in 52.63a1. A generic change under 52.63a1 will not be made to a certified design while it is in effect unless the change: 1 Is necessary for compliance with NRC regulations applicable and in effect at the time the certification was issued; 2 is necessary to provide adequate protection of the public health and safety or common defense and security; 3 reduces unnecessary regulatory burden and maintains protection to public health and safety and common defense and security; 4 provides the detailed
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design information necessary to resolve select design acceptance criteria; 5
corrects material errors in the certification information; 6
substantially increases overall safety, reliability, or security of a facility and the costs of the change are justified; or 7 contributes to increased standardization of the certification information. The rulemakings must provide for notice and opportunity for public comment on the proposed change under 52.63a2. The NRC
will give consideration as to whether the benefits justify the costs for plants that are already licensed or for which an application for a permit or license is under consideration.
Departures from Tier 1 may occur in two ways: 1 The NRC 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 addressed in paragraph VIII.A.4. If the NRC seeks to order a licensee to depart from Tier 1, paragraph VIII.A.3 would require that the NRC find both that the departure is necessary for adequate protection or for compliance and that special circumstances are present. Paragraph VIII.A.4 would provide that exemptions from Tier 1 requested by an applicant or licensee are governed by the requirements of 52.63b1 and 52.98f, which provide an opportunity for a hearing. In addition, the NRC
would not grant requests for exemptions that may result in a significant decrease in the level of safety otherwise provided by the design.
Tier 2 Information Paragraph B of Section VIII describes the change processes for the Tier 2
information; which have the same elements as the Tier 1 change process, but some of the standards for plantspecific orders and exemptions would be different. Generic Tier 2 changes would be accomplished by rulemaking that would amend the generic DCD and would be governed by the standards in 52.63a1. A generic change under 52.63a1 would not be made to a certified design while it is in effect unless the change: 1 Is necessary for compliance with NRC regulations that were applicable and in effect at the time the certification was issued; 2 is necessary to provide adequate protection of the public health and safety or common defense and security;
3 reduces unnecessary regulatory burden and maintains protection to public health and safety and common defense and security; 4 provides the detailed design information necessary to resolve select design acceptance criteria;

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5 corrects material errors in the certification information; 6
substantially increases overall safety, reliability, or security of a facility and the costs of the change are justified; or 7 contributes to increased standardization of the certification information.
Departures from Tier 2 would occur in four ways: 1 The NRC 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; or 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.e.
Similar to ordered Tier 1 departures and generic Tier 2 changes, ordered Tier 2 departures could not be imposed except when necessary, either to bring the certification into compliance with the NRCs 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, unlike Tier 1
departures, the Commission would not have to consider whether the special circumstances for the Tier 2 departures would outweigh any decrease in safety that may result from the reduction in standardization caused by the plantspecific order, as required by 52.63a4. The NRC has determined that it is not necessary to impose an additional limitation for standardization similar to that imposed on Tier 1
departures by 52.63a4 and b1
because it would unnecessarily restrict the flexibility of applicants and licensees with respect to Tier 2
information.
An applicant or licensee would be permitted to request an exemption from Tier 2 information as set forth in paragraph VIII.B.4. The applicant or licensee would have to demonstrate that the exemption complies with one of the special circumstances in regulations governing specific exemptions in 50.12a. In addition, the NRC would not grant requests for exemptions that may result in a significant decrease in the level of safety otherwise provided by the design. However, unlike Tier 1
changes, 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
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