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Federal Register / Vol. 86, No. 124 / Thursday, July 1, 2021 / Rules and Regulations
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DCD. For purposes of brevity, the following discussion refers to the processes for both generic changes and plant-specific departures as change processes. Section VIII refers to an exemption from one or more requirements of this appendix and addresses the criteria for granting an exemption. The NRC cautions that when the exemption involves an underlying substantive requirement i.e., a requirement outside this appendix, then the applicant or licensee requesting the exemption must demonstrate that an exemption from the underlying applicable requirement meets the criteria of 52.7, Specific exemptions, or 50.12, Specific exemptions.
Tier 1 information is the portion of design-related information in the generic DCD that the NRC approves in the 10 CFR part 52 design certification appendices. Tier 1 information can only be changed with NRC approval by rulemaking, approval of an exemption from the certified design rule, or required by the Commission through a plant-specific order. Tier 2 information also is approved by the NRC in the 10
CFR part 52 design certification rule 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 50.59like process. If the criteria in Section VIII are met, a licensee can change Tier 2 information without prior NRC
approval. The NRC created a third category, Tier 2, to address industry requests to minimize the scope of Tier 1 information and provide greater flexibility for making changes. Tier 2
information is included in Tier 2 and has the same safety significance as Tier 1 information, but the NRC decided to provide more flexibility for licensees to change this type of information. Tier 2
is significant information that cannot be changed without prior NRC approval of a license amendment requesting the change. Paragraph VIII.B.6 of appendix A to 10 CFR part 52 sets forth the process for changing Tier 2
information.
Tier 1 Information Paragraph VIII.A 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
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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 the 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; 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 except for those changes that are necessary to provide adequate protection of the public health and safety or the common defense and security.
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 either to assure adequate protection of the public health and safety or the common defense and security or to bring the certification into compliance with the NRCs regulations applicable and in effect at the time of approval of the DC and that special circumstances are present, taking into consideration whether the special circumstances outweigh any decrease in safety that may result from the reduction in standardization caused by the plant-specific order. Paragraph VIII.A.4 provides 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 will result in a significant decrease in the level of safety otherwise provided by the design.
Tier 2 Information Paragraph VIII.B describes the change processes for the Tier 2 information;
which have the same elements as the
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Tier 1 change process, but some of the standards for plant-specific 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 the common defense and security; 3 reduces unnecessary regulatory burden and maintains protection to public health and safety and the common defense and security;
4 provides the detailed 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.
Departures from Tier 2 would occur in five ways: 1 The Commission may order a plant-specific departure, as set forth in paragraph VIII.B.3; 2 an applicant or licensee may request an exemption from a Tier 2 requirement as set forth in paragraph VIII.B.4; 3 a licensee may make a departure without prior NRC approval under paragraph VIII.B.5; 4 the licensee may request NRC approval for proposed departures which do not meet the requirements in paragraph VIII.B.5 as provided in paragraph VIII.B.5.e; 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 NRCs regulations applicable and in effect at the time of approval of the DC
or to ensure adequate protection of the public health and safety or the common defense and security, provided that special circumstances are present as set forth in paragraph VIII.B.3. However, unlike in the case of 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
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