[Federal Register Volume 87, Number 7 (Tuesday, January 11, 2022)]
[Rules and Regulations]
[Pages 1490-1520]
[FR Doc No: 2021-27736]

Vol. 87

Tuesday,

No. 7

January 11, 2022

Part II

 Department of Energy

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Federal Energy Regulatory Commission

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18 CFR Part 12

Safety of Water Power Projects and Project Works; Final Rule

Federal Register / Vol. 87 , No. 7 / Tuesday, January 11, 2022 /
Rules and Regulations

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Part 12

[Docket No. RM20-9-000; Order No. 880]

Safety of Water Power Projects and Project Works

AGENCY: Federal Energy Regulatory Commission.

ACTION: Final rule.

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SUMMARY: In this final rule, the Federal Energy Regulatory Commission
(Commission) is amending its regulations governing the safety of
hydroelectric projects licensed by the Commission under the Federal
Power Act. These regulations will promote the safe operation, effective
maintenance, and efficient repair of licensed hydroelectric projects
and project works to ensure the protection of life, health, and
property in surrounding communities. Specifically, the Commission is
revising its regulations to: incorporate two tiers of project safety
inspections by independent consultants, codify existing guidance
requiring certain licensees to develop an owner's dam safety program
and a public safety plan, update existing regulations related to public
safety incident reporting, and make various minor revisions.

DATES: The rule is effective April 11, 2022.

FOR FURTHER INFORMATION CONTACT:

Ken Fearon (Technical Information), Office of Energy Projects, Federal
Energy Regulatory Commission, 888 First Street NE, Washington, DC
20426,<PHONE_NUMBER>, [email protected]
Doug Boyer (Technical Information), Office of Energy Projects, Federal
Energy Regulatory Commission, 805 SW Broadway, Suite 550, Portland, OR
97205,<PHONE_NUMBER>, [email protected]
Tara DiJohn (Legal Information), Office of the General Counsel, Federal
Energy Regulatory Commission, 888 First Street NE, Washington, DC
20426,<PHONE_NUMBER>, [email protected]

SUPPLEMENTARY INFORMATION:

Table of Contents

                                                              Paragraph
                                                                 Nos.

I. Background..............................................            4
II. Notice of Proposed Rulemaking..........................           14
III. Engineering Guidelines................................           15
IV. Discussion.............................................           16
    A. Review, Inspection, and Assessment by Independent              23
     Consultants...........................................
    B. Owner's Dam Safety Program..........................          100
    C. Public Safety and Miscellaneous Updates.............          119
V. Regulatory Requirements.................................          143
    A. Information Collection Statement....................          143
    B. Environmental Analysis..............................          184
    C. Regulatory Flexibility Act..........................          185
    D. Document Availability...............................          194
    E. Effective Date and Congressional Notification.......          197

Order No. 880

Final Rule

(Issued December 16, 2021)

    1. The Federal Energy Regulatory Commission (Commission or FERC),
under Part I of the Federal Power Act (FPA), licenses hydroelectric
projects that are developed by non-Federal entities including
individuals, private entities, Indian Tribes, states, municipalities,
electric cooperatives, and others. Under section 10(c) of the FPA, the
licensee of any hydroelectric project under the jurisdiction of the
Commission must conform to ``such rules and regulations as the
Commission may from time to time prescribe for the protection of life,
health, and property.'' \1\
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    \1\ 16 U.S.C. 803(c).
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    2. Since early 2017, the Commission has solicited, received, and
reviewed expert opinions on the structure and implementation of the
Commission's dam safety program, particularly the provisions for
independent consultants' safety inspections required under part 12,
subpart D of the Commission's regulations.\2\ These independent
consultant safety inspections, commonly referred to as part 12
inspections, are facilitated by licensees and are in addition to the
dam safety inspections conducted by Commission staff.
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    \2\ 18 CFR pt. 12 (2021).
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    3. To address expert recommendations on the part 12 inspection
process, and to codify guidance issued by the Commission's Office of
Energy Projects, Division of Dam Safety and Inspections (D2SI) over the
past several years, the Commission is revising its dam safety
regulations found in Title 18, part 12 of the Code of Federal
Regulations. In this final rule, the Commission is revising part 12 by
replacing subpart D in its entirety, adding new subpart F, and making
minor revisions to subparts A, B, C, and E, as further described below.

I. Background

    4. Section 10(c) of the FPA requires licensees, in pertinent part,
to ``maintain the project works in a condition of repair adequate . . .
for the efficient operation of said works in the development and
transmission of power,'' to ``make all necessary renewals and
replacements,'' and to ``conform to such rules and regulations as the
Commission may from time to time prescribe for the protection of life,
health, and property.'' \3\
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    \3\ 16 U.S.C. 803(c).
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    5. Pursuant to FPA section 10(c), on December 27, 1965, the
Commission's predecessor agency, the Federal Power Commission (FPC), in
Order No. 315, promulgated regulations that require licensees to
provide complete safety inspections of licensed water power project
works by independent consultants at five-year intervals, or more
frequently if necessary.\4\ Order No. 315 was intended to supplement
D2SI staff's inspections of project works with detailed periodic
inspections overseen by an independent consultant.\5\
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    \4\ Hydroelectric Licensed Projects--Inspections to Insure Safe
Operation, Order No. 315, 34 FPC 1551 (1965).
    \5\ Id.
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    6. On January 21, 1981, the Commission issued Order No. 122 to
consolidate the Commission's orders, regulations, and practices
relating to

project safety under part 12 of the Commission's rules and to revise
the existing project safety inspection regulations.\6\ The Commission's
rules related to independent consultant safety inspections have not
been substantially revised or amended since 1981.
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    \6\ Water Power Projects and Project Works Safety, Order No.
122, 46 FR 9029 (Jan. 28, 1981), FERC Stats. & Regs. ] 30,225 (1981)
(cross-referenced at 14 FERC ] 61,041).
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    7. To ensure that the Commission's dam safety program remains
current with the evolving nature of the dam safety field, D2SI staff
issues, and periodically updates, Engineering Guidelines for the
Evaluation of Hydropower Projects (Engineering Guidelines).\7\ D2SI
staff has also augmented the part 12 inspection process over the years
by adding additional inspection components (e.g., the Potential Failure
Mode Analysis, the Supporting Technical Information Document, and the
Dam Safety Surveillance and Monitoring Program and Report).
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    \7\ D2SI's Engineering Guidelines are available on the
Commission's website at https://www.ferc.gov/industries-data/hydropower/dam-safety-and-inspections/eng-guidelines.
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    8. In June 2002, D2SI began a licensee pilot program for conducting
a Potential Failure Mode Analysis \8\ as a component of a part 12
inspection and issued for comment a draft Chapter 14 of the Engineering
Guidelines, which would guide licensees in performing this type of dam
safety analysis. In April 2003, D2SI issued a final Chapter 14 of the
Engineering Guidelines and required a Potential Failure Mode Analysis
to be performed during all part 12 inspections. Consistent with this
requirement, licensees have conducted over a thousand Potential Failure
Mode Analyses. The Commission is codifying the Potential Failure Mode
Analysis as part of the scope of a part 12 inspection, specifically
during a comprehensive assessment and typically at a 10-year interval.
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    \8\ A Potential Failure Mode Analysis is a method to evaluate
the various ways a dam and its components could possibly fail.
Generally, this involves identifying possible failure scenarios and
evaluating those factors that could make the failure mode scenario
more or less likely to occur. Next, the significance of each
potential failure mode is determined and a prioritized plan is
developed to address the most significant potential failure modes.
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    9. On December 14, 2005, the upper reservoir of the Taum Sauk
Hydroelectric Project No. 2277, a pumped storage project, was
overtopped during the final pumping cycle, causing a breach of the
upper reservoir which released over 1 billion gallons of water,
resulting in personal injury and significant environmental and property
damage.\9\ Following the December 2005 failure of Taum Sauk Dam, D2SI
began requiring licensees to develop and maintain an Owner's Dam Safety
Program, with the goal of ensuring that licensees have a robust and
focused dam safety program to protect public safety, the environment,
and project facilities. In August 2012, D2SI staff required all owners
of high and significant hazard potential dams \10\ to submit an Owner's
Dam Safety Program.\11\ The Commission is codifying this requirement by
adding a new subpart F to the Commission's part 12 regulations.
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    \9\ More information about the Taum Sauk Dam Breach Incident can
be found on the Commission's website at https://www.ferc.gov/industries-data/hydropower/dam-safety-and-inspections/taum-sauk-pumped-storage-project-p-2277-dam.
    \10\ Hazard potential is a classification based on the potential
consequences in the event of failure or misoperation of the dam,
canal, or water conveyance, and is subdivided into categories (e.g.,
Low, Significant, High). High hazard potential generally indicates
that failure or misoperation of the project work will probably cause
loss of human life. Significant hazard potential and low hazard
potential generally indicate that failure or misoperation will
probably not cause loss of human life but may have some amount of
economic, environmental, or other consequences. Hazard
classifications are based solely on the consequences of dam failure
and do not in any way reflect the condition of the rated dams.
    \11\ See Commission staff's August 15, 2012 letter to owners of
high and significant hazard potential dams, https://www.ferc.gov/sites/default/files/2020-04/letter-submit-odsp.pdf.
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    10. On February 7, 2017, high flows in the Feather River basin
caused the water level in the Feather River Hydroelectric Project No.
2100 reservoir to rise at Oroville Dam and, for the first time in
project history, flow down the emergency spillway, resulting in
extensive erosion and damage to Oroville Dam's main spillway and
emergency spillway area.\12\ This event precipitated the evacuation of
nearly 188,000 residents from the town of Oroville and from other
downstream communities north of Sacramento, California. Following the
February 2017 Oroville Dam spillway incident, the Commission required
the project licensee, California Department of Water Resources
(California DWR), to convene a team of independent, third-party
consultants to complete a forensic analysis to determine the cause of
the incident.\13\ The Oroville Independent Forensic Team Report
documented the team's findings, conclusions, and recommendations.\14\
Several of the Oroville Independent Forensic Team's observations
related to potential areas for improvement in the Commission's dam
safety program, particularly the part 12 inspection process.
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    \12\ More information about the Oroville Dam spillway incident
can be found on the Commission's website at https://cms.ferc.gov/industries-data/hydropower/dam-safety-and-inspections/oroville-dam-service-spillway-p-2100.
    \13\ See Commission staff's letter to California DWR regarding
the emergency repair and board of consultants for Oroville Dam
spillway, Project No. 2100 (Feb. 13, 2017), https://cms.ferc.gov/sites/default/files/2020-04/Orovilledam.pdf.
    \14\ Independent Forensic Team Report, Oroville Dam Spillway
Incident (Jan. 5, 2018), https://damsafety.org/content/oroville-independent-forensic-team-releases-final-investigative-report.
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    11. Separately, the Commission convened a FERC After Action Panel
to review and evaluate the Commission's dam safety program in the
months following the Oroville Dam spillway incident. The D2SI
Director's mandate to the FERC After Action Panel was to: ``review
project documents and history for Oroville Dam . . . .;'' ``review the
performance of the FERC dam safety program at the Oroville Dam Project,
which includes both work and actions by FERC staff, and the program
requirements on the dam owner, such as the [p]art 12 process, the
[Potential Failure Mode Analyses] process, the Instrumentation and
Monitoring Program, and Owners Dam Safety Program . . . .;'' ``make
conclusions regarding any shortcomings in the FERC dam safety program
implementation at Oroville Dam;'' and if shortcomings are identified,
recommend ``improvement or changes to the FERC dam safety program to
ensure that future incidents like Oroville can be avoided.'' \15\
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    \15\ See FERC After Action Panel Assessment of Oroville Spillway
Incident Causes and Recommendations to Improve Effectiveness of the
FERC Dam Safety Program (Nov. 23, 2018), https://www.ferc.gov/sites/default/files/2020-04/reportdamsafety.pdf.
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    12. The FERC After Action Panel Report documented several
shortcomings of the Commission's dam safety program with respect to its
implementation at the Oroville Dam Project, and recommended several
improvements to the part 12 inspection process that could increase the
likelihood that design and operational deficiencies are detected in
advance of a major incident.
    13. In light of the Oroville Independent Forensic Team Report and
the FERC After Action Panel Report findings, the desire to codify
existing dam safety guidance, and the Commission's authority under FPA
section 10(c) to promulgate rules protecting life, health, and
property, the Commission is revising its part 12 dam safety
regulations, as discussed further below.\16\
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    \16\ The May 2020 failures of the Edenville and Sanford Dams in
Michigan have resulted in substantial hardship and economic damage.
A forensic investigation is being undertaken to understand the root
causes of those failures. The NOPR was substantially complete prior
to the Michigan dam failures and was not intended to address any
findings or recommendations that may result from the forensic
investigation. The Commission will review the findings once the
investigation is complete.

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II. Notice of Proposed Rulemaking

    14. On July 16, 2020, the Commission issued a Notice of Proposed
Rulemaking proposing to revise its part 12 regulations to incorporate
two tiers of independent consultant safety inspections, codify existing
guidance on developing owner's dam safety programs and public safety
plans, modify public safety incident reporting requirements, and make
various minor revisions throughout part 12.\17\ The Commission received
16 comment letters in response to the NOPR.\18\ Comments were submitted
by licensees and individuals, some as part of submissions from trade
associations, including the National Hydropower Association (NHA) and
the Dam Safety Interest Group of CEATI International (CEATI).\19\ The
Commission has considered all comments in formulating the final rule.
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    \17\ Safety of Water Power Projects and Project Works, 85 FR
45,032 (July 24, 2020), 172 FERC ] 61,061 (2020) (NOPR).
    \18\ The following entities filed comments on the NOPR: Central
Nebraska Public Power and Irrigation District; Wisconsin Power and
Light Company; Alaska Electric Light and Power Company; Copper
Valley Electric Association; City of North Little Rock Electric;
Alaska Power Association; National Hydropower Association; United
States Society on Dams; CEATI International, Dam Safety Interest
Group; American Association for Laboratory Accreditation; Hydropower
Reform Coalition; Sierra Club; Michigan Department of Environment,
Great Lakes, and Energy; Schnabel Engineering, Inc.; David L.
Mathews; and U.S. Senator Lisa Murkowski. Some of these comments,
such as those filed by American Association for Laboratory
Accreditation, Hydropower Reform Coalition, and Sierra Club, raise
issues that are outside the scope of this rulemaking proceeding and
are not addressed further in this final rule.
    \19\ NHA and NextEra Energy Resources, LLC, each filed motions
to intervene in Docket No. RM20-9-000. Intervention is not necessary
in order to request rehearing of a rulemaking. See, e.g., Limiting
Authorizations to Proceed with Construction Activities Pending
Rehearing, Order No. 871-B, 86 FR 26150 (May 13, 2021), 175 FERC ]
61,098, at n.14 (2021). Accordingly, these motions are unnecessary.
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III. Engineering Guidelines

    15. The Commission is also in the process of updating its
Engineering Guidelines by adding new Chapters 15 through 18. On July
16, 2020, concurrently with issuance of the NOPR, the Commission
solicited public review and comment by issuing the new guidelines in
draft format in four separate advisory dockets accessible on the
Commission's eLibrary website. Chapter 15, in Docket No. AD20-20-000,
provides licensee guidance for developing and maintaining a Supporting
Technical Information Document.\20\ Chapter 16, in Docket No. AD20-21-
000, provides licensee guidance on the scope of the part 12D
independent consultant inspection program. Chapter 17, in Docket No.
AD20-22-000, provides licensee guidance for conducting a Potential
Failure Mode Analysis. Chapter 18, in Docket No. AD20-23-000, provides
licensee guidance for conducting a Level 2 Risk Analysis. Entities that
filed comments on the draft chapters included: Licensees, consultants,
and other individuals through trade and other professional societies
including the United States Society on Dams, NHA, and CEATI. The U.S.
Army Corps of Engineers (Corps) also submitted comments. The Commission
has considered all comments in finalizing Chapters 15 through 18 of the
Engineering Guidelines. The final versions of these chapters are
available on the FERC Division of Dam Safety and Inspections
website.\21\
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    \20\ As explained in Chapter 15 of the Engineering Guidelines,
the Supporting Technical Information Document is a ``living''
document that serves as a compendium of existing project
information, including information about a project's design,
construction history, operating procedures, and engineering
analyses.
    \21\ Available at https://www.ferc.gov/industries-data/hydropower/dam-safety-and-inspections/eng-guidelines.
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IV. Discussion

    16. As explained in the NOPR, the Commission evaluated potential
revisions to its part 12 regulations by considering the findings of the
Oroville Independent Forensic Team and FERC After Action Panel;
reviewing the inspection practices of other Federal agencies
responsible for ensuring the safety of a large number of dams,
including those of the Bureau of Reclamation (Reclamation) \22\ and the
Corps; \23\ and reviewing the Federal Emergency Management Agency's
(FEMA) Federal Guidelines for Dam Safety.\24\
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    \22\ Reclamation, Review/Examination Program for High and
Significant Hazard Dams (Sept. 2018), https://www.usbr.gov/recman/fac/fac01-07.pdf.
    \23\ Corps, Safety of Dams--Policy and Procedures (Mar. 2014),
https://www.publications.usace.army.mil/Portals/76/Publications/EngineerRegulations/ER_1110-2-1156.pdf.
    \24\ FEMA, Federal Guidelines for Dam Safety (Apr. 2004),
https://www.fema.gov/sites/default/files/2020-08/fema_dam-safety_P-93.pdf (FEMA Dam Safety Guidelines).
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    17. In addition to making various minor revisions and updates to
our part 12 regulations, this final rule accomplishes four overarching
objectives that are integral to strengthening the Commission's dam
safety program and addressing shortcomings identified by the forensic
investigations that followed the Oroville Dam spillway incident. First,
the final rule implements two tiers of part 12 independent consultant
safety inspections, in addition to Commission staff's regular
inspections. The two-tier structure includes two types of inspections:
a comprehensive assessment and a periodic inspection. Each type of
inspection will be performed at a 10-year interval, with the periodic
inspection occurring midway between comprehensive assessments. The two-
tier inspection structure retains the current five-year interval
between part 12 inspections and mirrors FEMA's recommendation that
formal inspections be conducted at intervals not to exceed five
years.\25\ The alternating two-tier structure is similar to those used
by Reclamation and the Corps. Because the existing five-year interval
between part 12 inspections remains the same, the revised regulations
do not increase the likelihood that undiscovered safety issues will
persist for longer periods of time. The comprehensive assessment
requires a more in-depth review than the current part 12 inspection,
formally incorporates the existing Potential Failure Mode Analysis
process, and requires a semi-quantitative risk analysis, as recommended
by the Oroville Independent Forensic Team and FERC After Action Panel.
The periodic inspection is narrower in scope than the current part 12
inspection and focuses primarily on the performance of project works
between comprehensive assessments.
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    \25\ Id. at 42.
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    18. Second, the final rule changes the process by which D2SI
reviews and evaluates the qualifications of independent consultants
that conduct part 12 inspections. Currently, Sec.  12.34 of the
Commission's regulations requires the licensee to submit to the
Director of D2SI for approval a resume describing the independent
consultant's experience.\26\ FEMA recommends that ``the inspection team
should be chosen on a site-specific basis considering the nature and
type of dam . . . [and] should comprise individuals having appropriate
specialized knowledge in structural, mechanical, electrical, hydraulic,
and embankment design; geology; concrete materials; and construction
procedures.'' \27\
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    \26\ 18 CFR 12.34.
    \27\ FEMA Dam Safety Guidelines at 42.
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    19. Accordingly, the process adopted in the final rule requires
licensees to submit to the Director of D2SI an independent consultant
team proposal,

comprising one or more independent consultants and additional
engineering or scientific personnel, as needed, which must demonstrate
that the members of that team possess an appropriate level of expertise
for the specific project under consideration. This change reflects the
reality that, for many of the projects under the Commission's
jurisdiction, a single independent consultant will not possess the
appropriate degree and diversity of technical proficiency necessary to
evaluate all aspects of the project. The current requirement that an
independent consultant be a licensed professional engineer with a
minimum of 10 years' experience in ``dam design and construction and in
the investigation of the safety of existing dams'' is retained, but
will apply only to the designated independent consultants, and not to
other supporting members of the independent consultant team.\28\
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    \28\ 18 CFR 12.31(a).
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    20. Third, the final rule codifies existing guidance related to the
Owner's Dam Safety Program. Currently, the Commission's part 12
regulations do not explicitly require a licensee to develop an Owner's
Dam Safety Program. However, Sec.  12.4 of our existing regulations
provides that the Commission may require an applicant or licensee to
submit reports or information on any condition affecting the safety of
the project.\29\ Since the initial request for an Owner's Dam Safety
Program in August 2012,\30\ approximately 250 have been developed by
licensees and submitted to the Commission. This final rule codifies the
requirement that licensees of one or more high or significant hazard
potential dams \31\ must prepare, maintain, file with the Commission,
and periodically review and update an Owner's Dam Safety Program.
Licensees must designate a person responsible for overseeing day-to-day
implementation of the dam safety program.
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    \29\ 18 CFR 12.4(b)(2)(ii)(B).
    \30\ See supra P 9.
    \31\ See supra note 10 (defining high hazard and significant
hazard potentials).
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    21. Fourth, the final rule modifies licensee reporting and
preparedness requirements related to public safety at or near
hydroelectric projects. Currently, licensees are required to install
and maintain public safety devices and to report deaths or serious
injuries at their projects.\32\ The final rule revises the definition
of a ``project-related'' incident to clarify that licensees are
required to report those public safety incidents that are related to
project operation; to report rescues in addition to deaths and serious
injuries; and to prepare, maintain, and submit a public safety plan to
D2SI, which is the current practice required by existing D2SI guidance.
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    \32\ See 18 CFR 12.10(b) (death or serious injury reporting) and
12.42 (warning and safety devices).
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    22. A section-by-section analysis, describing the proposal set
forth in the NOPR, the comments received on the NOPR, and the
Commission's determinations, follows.

A. Review, Inspection, and Assessment by Independent Consultants

    23. In response to the findings and recommendations in the Oroville
Independent Forensic Team Report and FERC After Action Panel Report,
the Commission is revising its regulations under 18 CFR part 12,
subpart D, to enhance the program for independent consultant
inspections. The regulations adopted here will replace existing subpart
D in its entirety. Due to the final rule's implementation of two tiers
of part 12 inspections (periodic inspections and comprehensive
assessments), subpart D will now include Sec. Sec.  12.30 through
12.42, which results in changes to the numbering of subpart E (existing
Sec. Sec.  12.40 through 12.44 will become Sec. Sec.  12.50 through
12.54).
1. Section 12.30--Applicability
    24. Section 12.30 establishes the applicability of subpart D's
independent consultant inspection requirement and identifies three
conditions that result in a project being subject to the provisions of
subpart D. Subpart D currently applies to any project development that
has a dam: (1) Greater than a specified height; (2) with an impoundment
exceeding a specific gross storage capacity; or (3) that has a high
hazard potential and is determined by the Regional Engineer to require
inspection by an independent consultant. Although the subpart D
regulations could be interpreted as only applying to dams, D2SI has in
practice applied the requirements of this subpart to those portions of
canals and penstocks judged to have a high hazard potential and this
rule adopts that interpretation.
    25. The NOPR proposed revisions to Sec.  12.30 to align subpart D's
applicability with existing D2SI practices and to make clear that the
provisions of subpart D apply to project works other than dams and
could apply to projects that do not have a dam. Specifically, the
Commission proposed revisions to Sec.  12.30 to clarify that while the
existing height and storage thresholds apply only to project
developments with a dam, the high hazard potential criterion applies to
all project works (i.e., if any portion of a project work has a high
hazard potential, the project development would be subject to subpart
D). Additionally, as revised, subpart D would apply to a project
development if the Regional Engineer or other Commission representative
determines that an inspection is required for reasons not listed. For
example, the Regional Engineer may conclude that an independent
consultant inspection is warranted for a project that is otherwise not
subject to subpart D where the dam or other project work poses
significant safety concerns.
    26. Certain commenters suggested that further distinction should be
made to distinguish the requirements for low hazard potential works and
high hazard potential works within a licensed project development that
is subject to part 12.\33\ NHA also suggested that recreational access
to project lands should be excluded from the consideration of the
hazard potential or that the applicability of this revision should be
narrowed.\34\ CEATI asked for clarity regarding who is considered an
``other authorized Commission representative'' as that term is used in
Sec.  12.30(c).\35\
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    \33\ See, e.g., CEATI's September 9, 2021 Comments at 5 (CEATI
Comments); NHA's September 22, 2021 Comments at 4 (NHA Comments).
    \34\ See NHA Comments at 4.
    \35\ CEATI Comments at 5.
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    27. All project works function as a system. Even low hazard
potential project works have the potential to adversely impact high
hazard potential works; therefore, as has been D2SI's current practice,
low hazard potential works of projects meeting the applicability
provisions of Sec.  12.30 must also meet the requirements of subpart D.
This is not a change from the interpretation of the existing
regulations, but rather a clarification. Regarding the second comment,
as is current practice in evaluating downstream hazard potential, high
usage areas of any type, including recreational areas, should be
considered in determining hazard potential.\36\ Last, Sec.  12.30(c)'s
use of the term ``other authorized Commission representative'' is
consistent with Sec.  12.3(b)(3), which defines ``authorized Commission
representative'' as the Director of the Office of Energy Projects, the
Director of D2SI, the Regional Engineer, or any

other member of the Commission staff whom the Commission may
specifically designate. Apart from updating cross references within
part 12 and a minor clarifying edit, no substantive revisions were made
to this section following the NOPR.
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    \36\ See FEMA Dam Safety Guidelines supra note 24. Consistent
with FEMA guidance, high usage areas of any type should be
considered appropriately in evaluating hazard potential and it has
been D2SI's practice to consider the implications of recreation use
on hazard potential.
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2. Section 12.31--Definitions
    28. Current Sec.  12.31 defines ``independent consultant,'' ``high
hazard potential,'' ``height above streambed,'' and ``gross storage
capacity'' for the purposes of the provisions of subpart D. Section
12.31 also provides the D2SI Director the authority to grant a waiver
from the 10-year experience requirement in the definition of
independent consultant.
    29. The NOPR proposed revisions to Sec.  12.31 to update the
definition of an ``independent consultant'' and to add definitions for
the terms ``independent consultant team,'' ``periodic inspection,'' and
``comprehensive assessment.''
    30. Our regulations currently define ``independent consultant'' as
a licensed professional engineer, with at least ten years of experience
and expertise related to dams, who is not, and has not been within two
years, an employee of the licensee or its affiliates or an agent acting
on behalf of the licensee. As proposed in the NOPR, the revised
definition of ``independent consultant'' would retain the licensure and
10-year experience requirements. However, the restrictions regarding
the professional relationship between the independent consultant and
licensee would be separated into three separate elements, requiring
that an independent consultant: (1) Is not an employee of the licensee
or its affiliates; (2) has not been an employee of the licensee or its
affiliates within two years prior to performing a periodic inspection
or comprehensive assessment; and (3) has not been an agent acting on
behalf of the licensee or its affiliates before performing services
under this part.\37\ The NOPR explained that the Commission intends to
narrowly apply this restriction, with a primary goal of ensuring that
independent consultants are not responsible for reviewing work to which
they contributed substantially.
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    \37\ Because the circumstances will vary and require evaluation
by Commission staff on a case-by-case basis, the definition proposed
in the NOPR and adopted in this final rule does not attempt to set
specific thresholds for scope or duration of services. Chapter 16 of
the guidelines provides examples of the type of information
Commission staff will consider when making these determinations.
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    31. The NOPR also proposed to define ``independent consultant
team'' as comprising one or more independent consultants and additional
engineering and scientific personnel, as needed. Collectively, the
independent consultant team must have expertise commensurate with the
scale, complexity, and relevant technical disciplines of the project
and type of review being performed (periodic inspection or
comprehensive assessment). As the NOPR explained, this approach ensures
that each inspection and review is conducted by qualified personnel
such that the Commission can reasonably expect that potential issues
relating to project safety or stability will be identified. The
Commission intends to place greater emphasis on the qualifications of
the personnel on an independent consultant team, and their collective
experience and expertise, for comprehensive assessments compared to
periodic inspections; projects with higher consequences or total
project risk; projects with a greater number of, or more technically
diverse or challenging, project works; and projects with a history of
unusual or adverse performance. Currently, Sec.  12.34 requires
licensees to submit resumes for independent consultants for Commission
approval. As further discussed below, the final rule revises Sec.
12.34 to require licensees to submit an independent consultant team
proposal for the Director of D2SI's approval.
    32. Commenters requested clarification of the definition of an
independent consultant team and asked that the 10-year experience
requirement be limited to just the independent consultant and not the
entire team.\38\ Some commenters expressed general concern about the
relatively limited pool of qualified independent consultants,\39\ and
that the provisions on independence might disqualify those who have
performed prior work on the project.\40\ CEATI recommended that the
reference to qualified dam design and construction personnel should be
broadened to include other critical project works such as penstocks,
gates, and other structures.\41\
---------------------------------------------------------------------------

    \38\ See, e.g., NHA Comments at 4; CEATI Comments at 6; Central
Nebraska Public Power and Irrigation District's September 22, 2020
Comments at 1-2 (Central Nebraska Comments).
    \39\ See, e.g., NHA Comments at 4; CEATI Comments at 6; Central
Nebraska Comments at 1-2; Wisconsin Power and Light Company's
September 18, 2020 Comments at 5-7 (Wisconsin Power Comments).
    \40\ See, e.g., NHA Comments at 4; CEATI Comments at 6;
Wisconsin Power Comments at 6.
    \41\ See CEATI Comments at 7.
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    33. Based on the comments received, we revised the definition of
independent consultant team to clarify that the ten-year experience
requirement applies only to the independent consultant and does not
apply to the additional independent consultant team members. The final
rule requires that an independent consultant team must include at least
one independent consultant, as defined in paragraph (a) of this
section, and that supporting team members must meet the requirements of
paragraphs (a)(3) through (a)(5) of this section regarding the
professional relationship between the team member and the licensee. In
addition, former paragraph (i) regarding the granting of a waiver of
the 10-year requirement was relocated to Sec.  12.34 for clarity.
    34. In response to the general concerns about the limited pool of
qualified independent consultants or team members, the restrictions
listed in paragraphs (a)(3) through (a)(5) are designed to ensure that
independent consultants and team members are not responsible for
reviewing work to which they substantially contributed. This limiting
provision is essential in ensuring independence of the independent
consultant and independent consultant teams.\42\ Examples of what
constitutes independence is provided in Chapter 16 of the Engineering
Guidelines.\43\ This provision clarifies previous guidance and practice
and in staff's opinion will not reduce the pool of independent
consultants performing this work. On the contrary, the inclusion of
independent consultant team members provides more opportunity to
develop the experience of more junior professionals to be qualified as
future independent consultants. ``Appurtenances'' has been added to the
required expertise of the independent

consultant team to broaden the experience of the team beyond that of
just the dam.
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    \42\ CEATI asks whether a licensee may appeal a determination
under Sec.  12.31(a)(5) of a possible conflict of interest based on
an independent consultant's prior work on a project. CEATI Comments
at 6. As explained in Chapter 16 of the Engineering Guidelines, if
there is a situation that could disqualify an independent consultant
or team member under Sec.  12.31(a)(5), it is the licensee's
responsibility to demonstrate in the inspection plan that any
potential conflict of interest will be avoided. In any event, any
staff action is subject to a request for rehearing, see 18 CFR
385.1902(a), although it is unclear to what extent we would
entertain such an interlocutory matter.
    \43\ With respect to the limitation in Sec.  12.31(a)(5) that an
independent consultant has not been ``an agent acting on behalf of
the licensee or its affiliates,'' we do not find it necessary to
define the term ``agent'' as some commenters suggest. See NHA
Comments at 5; CEATI Comments at 6. The term agent is commonly used
to refer to a person with authority to act on another's behalf. As
we have explained, the purpose of the limitation is to ensure the
independent consultant's independence. Chapter 16 of the Engineering
Guidelines provides example scenarios and guidance to help licensees
navigate the independent consultant approval process.
---------------------------------------------------------------------------

    35. The NOPR proposed and the final rule updates the definition of
``hazard potential'' to ensure consistency with FEMA's Hazard Potential
Classification System for Dams,\44\ and relocates the definition of
``high hazard potential'' to Sec.  12.3(b)(13)(i).\45\ The updated
definition applies to dams, canals, and other water conveyances, or any
portion thereof. The final rule further defines ``significant hazard
potential'' and ``low hazard potential classifications'' in Sec. Sec.
12.3(b)(ii) and (iii).
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    \44\ See FEMA, Federal Guidelines for Dam Safety: Hazard
Potential Classification System for Dams (Apr. 2004), https://www.ferc.gov/sites/default/files/2020-04/fema-333.pdf (FEMA Hazard
Potential Classification System).
    \45\ See infra P 123.
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    36. The NOPR also proposed and the final rule in Sec.  12.31
includes definitions for ``periodic inspection'' and ``comprehensive
assessment.'' No further revisions were made to this section following
the NOPR.
3. Section 12.32--General Inspection Requirement
    37. Existing Sec.  12.32 requires that an independent consultant
perform a periodic inspection of the project works of each
development,\46\ subject to the provisions of subpart D.
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    \46\ Development means that part of a project comprising an
impoundment and its associated dams, forebays, water conveyance
facilities, power plants, and other appurtenant facilities. A
project may comprise one or more developments. 18 CFR 12.3(b)(7).
---------------------------------------------------------------------------

    38. The NOPR proposed to retain the general requirement that an
independent consultant inspection be performed, to revise Sec.  12.32
to incorporate the terms ``periodic inspection'' and ``comprehensive
assessment,'' and to require the filing of a report following each type
of inspection. The NOPR also proposed to relocate the general
requirement to file an inspection report from existing Sec.  12.37 to
revised Sec.  12.32.
    39. Commenters requested that ``generating equipment'' be added to
the list of project works excluded from inspections and further clarity
be provided to distinguish between the inspection requirements for high
hazard potential and low hazard potential project works.\47\ Generating
equipment is a critical element in the passage and discharge of water
through a powerhouse. Because the failure of generating equipment to
pass discharge can result in operational and life safety concerns, it
is imperative that generating equipment be inspected for mechanical
reliability and operational concerns. Therefore, we decline to revise
Sec.  12.32 to add generating equipment to the list of project works
excluded from inspections. The subject of inspection requirements for
high and low hazard potential project works is discussed in Sec.  12.30
above. No revisions to the section were made based on this comment. The
final rule eliminates two general references to the Engineering
Guidelines from this section and adds a sentence to clarify that the
licensee must ensure that the independent consultant team's report
complies with all the requirements set forth in subpart D.
---------------------------------------------------------------------------

    \47\ See NHA Comments at 5-6.
---------------------------------------------------------------------------

4. Section 12.33--Exemption
    40. Existing Sec.  12.33 grants the Director of D2SI the authority
to exempt projects from the provisions of subpart D for good cause and
provides an example of what may constitute good cause. At the Director
of D2SI's discretion, the exemption may be granted in perpetuity or may
require periodic reevaluation of the exemption justification (e.g., by
reviewing and confirming that the project has a low hazard potential).
    41. The NOPR, which in Sec.  12.33(a) retained the Director of
D2SI's authority to exempt projects from subpart D, proposed revisions
to Sec.  12.33(b) to update the example of good cause to include canals
and other water conveyances. In addition, the NOPR proposed in Sec.
12.33(c) to rescind any exemption from subpart D that was issued prior
to the effective date of this rule. Existing subpart D exemptions have
been granted over several decades and, as the state of the practice of
dam safety has evolved, have not been reconsidered consistently. For
this reason, the NOPR contemplated that an entity desiring a continued
exemption would be required to reapply to ensure that any justification
for a subpart D exemption is reviewed based on the current state of the
practice, considering potential failure modes, consequences, and total
project risk.
    42. NHA requested that the Commission reconsider rescinding all
previously approved exemptions from the requirements of subpart D.\48\
---------------------------------------------------------------------------

    \48\ NHA Comments at 6.
---------------------------------------------------------------------------

    43. Based on the comments received and after further consideration,
the blanket rescission of all previously approved exemptions has been
removed from the regulations. Instead, we have revised Sec.  12.33 to
clarify that the Director of D2SI, for good cause shown, may rescind a
previously approved exemption from the requirements of subpart D. This
determination will be made on a case-by-case basis. In addition, for
future exemption requests, the Director of D2SI may require the
licensee to complete a comprehensive assessment prior to considering
the exemption request.
5. Section 12.34--Approval of Independent Consultant Team
    44. Prior to performing an inspection, existing Sec.  12.34
requires a licensee to submit for the Director of the Office of Energy
Projects' approval a detailed resume for an independent consultant. In
the NOPR, the Commission proposed several revisions to Sec.  12.34 to
address concerns raised in the Oroville Independent Forensic Team
report, the FERC After Action Panel Report, and issues related to
implementation of the existing rule over the past several years.\49\
---------------------------------------------------------------------------

    \49\ In particular, the improvements to the independent
consultant team approval process include: broadening the composition
of independent consultant team members to include representation
from varied technical disciplines; ensuring thorough review of
project works by qualified individuals with the appropriate
technical disciplines; and performing comprehensive reviews of the
original project design, construction, and subsequent performance.
---------------------------------------------------------------------------

    45. In Sec.  12.34(a), the NOPR proposed to require licensees to
obtain written approval of the independent consultant team, from the
Director of D2SI instead of the Director of the Office of Energy
Projects, prior to performing a periodic inspection or comprehensive
assessment. While in practice D2SI has granted approval of independent
consultants prior to inspections, the regulation as currently written
does not stipulate that D2SI approval must be obtained.
    46. As proposed in the NOPR, Sec.  12.34(b) would require licensees
to submit a detailed independent consultant team proposal to the
Director of D2SI at least 180 days prior to performing a periodic
inspection or comprehensive assessment. This involves two primary
changes. As we explained in the NOPR, while the current text of Sec.
12.34(b) requires licensees to submit an independent consultant's
detailed resume 60 days in advance, increasing the submittal time to
180 days in advance does not represent a change in practice. D2SI staff
routinely issues reminder letters to licensees approximately 18 months
in advance of any inspection required under subpart D, and for several
years has requested that independent consultants' resumes be submitted
six months in advance to ensure that all parties are aware of their
roles and responsibilities, and have sufficient time to prepare for the
inspection. The

final rule codifies D2SI's current practice.
    47. Second, existing Sec.  12.34 requires that resumes be submitted
only for any independent consultant, to demonstrate that they meet the
requirements provided in Sec.  12.31. In the NOPR, we proposed
revisions to Sec.  12.34(b) directing licensees to submit documentation
of the experience and qualifications for all members of the independent
consultant team, including one or more independent consultants and
additional contributing members, as needed. This change will allow
Commission staff to more fully evaluate the independent consultant
team's experience and ensure it is commensurate to the scale,
complexity, and technical disciplines of the project and type of review
being performed. The Commission intends to require a higher level of
experience and expertise for a comprehensive assessment than a periodic
inspection, due to the broader scope of the comprehensive assessment.
    48. The NOPR proposed changes to Sec.  12.34(c) that would permit
the Director of D2SI to disapprove of an independent consultant team
member, regardless of demonstrated experience and qualifications, for
good cause, such as having a report rejected by the Commission within
the preceding five years. This provision allows the Commission to
ensure that independent consultants' inspections are performed by
qualified parties.
    49. In response to the NOPR, commenters requested further clarity
on: (1) The independent consultant team proposal information that
should be provided in the inspection plan; (2) grounds for disapproval
of an independent consultant; and (3) the timing for submitting the
inspection plan.\50\
---------------------------------------------------------------------------

    \50\ See, e.g., NHA Comments at 7; CEATI Comments at 8-9.
---------------------------------------------------------------------------

    50. Based on comments received, the final rule further revises
Sec.  12.34 to:

     Clarify that the independent consultant team proposal
must identify the technical disciplines and level of expertise
required to perform the inspection and show that each member of the
independent consultant team who is not designated as an independent
consultant meets the requirements of Sec.  12.31(a)(3) through (5);
     clarify that the D2SI Director may disapprove an
individual who is identified as the independent consultant in the
independent consultant team proposal, and that grounds for
disapproval may include rejection by the Commission of one or more
reports on an inspection under this subpart within the preceding
five years;
     clarify that the 180-day timing is measured from the
scheduled date of the field inspection or other designated activity
such as a Potential Failure Mode Analysis or risk analysis;
     add a requirement that the independent consultant team
proposal clearly delineate team members' roles and responsibilities
to ensure no team member will be responsible for reviewing and
evaluating their own previous work on the project;
     add a requirement that if required information about
any supporting team member is not available at the time of the
independent consultant team proposal, the missing information must
be included in the preliminary report required by Sec.  12.42;
     clarify that written approval of the facilitator(s) of
the Potential Failure Mode Analysis or risk analysis must also be
obtained; and
     relocate information on granting of a waiver of the 10-
year requirement from Sec.  12.32 to Sec.  12.34 for clarity.
6. Section 12.35--Periodic Inspection
    51. Existing Sec.  12.35 establishes the scope of the independent
consultant's inspection. In the NOPR, the Commission proposed to revise
Sec.  12.35 in its entirety such that it establishes the scope of a
periodic inspection, the less intensive of the two tiers of part 12
inspections.
    52. The final rule adopts this change. As revised, Sec.  12.35
establishes the scope of a periodic inspection, which includes review
of prior reports, a field inspection, review of the surveillance and
monitoring plan and data, and review of dam and public safety programs.
A periodic inspection has a reduced scope compared to the existing
independent consultant's inspection.
    53. In response to the NOPR, commenters recommended: broadening the
scope of the periodic inspection to include a review of the Supporting
Technical Information Document; \51\ adding a review of security
protocols of the operating system to the inspection; \52\ eliminating
the requirement that the independent consultant team must have a full
understanding of all the project works; \53\ and deleting the
requirement for the team to inspect all accessible project works with
no consideration for the risk/hazard potential of the project work.\54\
---------------------------------------------------------------------------

    \51\ See NHA Comments at 7.
    \52\ See CEATI Comments at 10.
    \53\ See id.
    \54\ See NHA Comments at 7.
---------------------------------------------------------------------------

    54. Adding a review of the Supporting Technical Information
Document would provide little benefit to the periodic inspection and
would result in increased burden and cost. Adding a review of the
security protocols is outside the scope of a periodic inspection and
would be best handled separately by others with specialized experience.
For these reasons, neither recommendation was incorporated into the
scope of a periodic inspection.
    55. Eliminating the requirement for the independent consultant team
to have a full understanding of the project works would negate the
team's ability to adequately understand the technical and operational
aspects of the project and therefore be unable to provide meaningful
observations, conclusions, and recommendations from the inspection.
Limiting the inspection to only those project works that are considered
high risk or high hazard would be subjective, could overlook project
works whose potential hazard or risk could change over time, and would
result in an incomplete inspection and assessment of the project works.
The final rule adds a sentence to Sec.  12.35(a) to clarify that it is
the licensee's responsibility to provide to the independent consultant
team all information and reports necessary to fulfill the requirements
of this section. In addition, a few minor revisions for clarity were
made to this proposed section following the NOPR.\55\
---------------------------------------------------------------------------

    \55\ Section 12.35(a), which requires the independent consultant
team to review prior reports ``to have, at the time of the periodic
inspection, a full understanding of the . . . downstream hazard . .
. of the project works'' was revised to add ``upstream and
downstream hazard.'' Section 12.35(d)(3), addressing review of dam
and public safety programs, was revised to specify review of
``public access restrictions.''
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7. Section 12.36--Report on Periodic Inspection
    56. Existing Sec.  12.36 deals with emergency corrective measures.
As discussed further below,\56\ the NOPR proposed to combine the
requirements for emergency corrective measures contained in existing
Sec.  12.36 and the requirements for corrective measures after the
report as outlined in existing Sec.  12.39 under a single ``corrective
measures'' heading in Sec.  12.41.
---------------------------------------------------------------------------

    \56\ See infra PP 93-96.
---------------------------------------------------------------------------

    57. As proposed in the NOPR, new Sec.  12.36 establishes the
requirements for the periodic inspection report, which serves a similar
purpose to existing Sec.  12.37 (report of the independent consultant)
with several notable changes. Existing Sec.  12.37(b) currently
requires initial reports filed under subpart D to include general
project information (e.g., project descriptions, maps, design summary
information, geologic information) and allows licensees to incorporate
by reference existing information and analyses contained in previously-
prepared independent consultant reports (existing Sec.  12.37(b)(2)).
The final rule eliminates

the practice of differentiating between initial and subsequent reports
and will require every periodic inspection report to meet the same
standard, without relying on the practice of incorporating by reference
information or analyses contained in earlier reports.
    58. Section 12.36(b) of the final rule lists specific evaluations
that must be documented in a periodic inspection report. These pertain
to the surveillance, monitoring, and performance of the project, with a
focus on whether any potential failure modes, previously identified or
not, are active, developing, or warrant further evaluation at the time
of the periodic inspection.
    59. As proposed in the NOPR, the final rule eliminates the
provisions that previously allowed independent consultants to
incorporate the previous independent consultant's report by reference
and document only information that has changed since the previous
report. Section 12.36(c) provides a list of items which require a
status update and an evaluation of any changes since the previous
inspection.
    60. Existing provisions in Sec. Sec.  12.37(c)(4) through (8) are
retained in Sec. Sec.  12.36(d) through (h) with minor changes to
ensure consistency with other revisions.
    61. In response to the NOPR, commenters sought clarity on the
independent consultant team's review and assessment of previous
engineering analyses and reports.\57\ Specifically, commenters
questioned whether independent consultants may, after reviewing
previous reports, conclude that they concur with the analyses and
results and that the content of the previous reports need not be
recreated. In addition, certain commenters, such as CEATI and Central
Nebraska, advocated for the removal of paragraph (b)(5)(iii), which
would require the independent consultant team to review the adequacy of
the Owner's Dam Safety Program.\58\ Central Nebraska and NHA reiterated
similar concerns with respect to the independent consultant team's
review of the Public Safety Plan, noting that the review should be
limited to the licensee's compliance with the plan rather than a review
of the plan's adequacy.\59\
---------------------------------------------------------------------------

    \57\ See, e.g., CEATI Comments at 10; Central Nebraska Comments
at 2.
    \58\ See CEATI Comments at 11; Central Nebraska Comments at 2;
see also NHA Comments at 7 (expressing concern that the scope of the
periodic inspection includes review of the Owner's Dam Safety Plan
and Public Safety Plan).
    \59\ See Central Nebraska Comments at 2; NHA Comments at 7.
---------------------------------------------------------------------------

    62. In reviewing and assessing previous engineering analyses and
reports, the independent consultant team's summary must not simply
state that the team agrees with the report findings, but instead must
provide a clear rationale or basis for why the team agrees with the
report findings. The independent consultant team's review of the
Owner's Dam Safety Program, a required component of the periodic
inspection (as well as the comprehensive assessment) is not the same as
the external audit of the Owner's Dam Safety Program described in Sec.
12.65.\60\ For the purposes of the periodic inspection or comprehensive
assessment, the Owner's Dam Safety Program review is intended to
provide the independent consultant team an opportunity to provide their
observations and findings from their interactions with the licensee
staff (e.g., managers, dam safety engineers, and operators) related to
the licensee's implementation of and compliance with its Owner's Dam
Safety Program at the particular project being inspected.\61\ The same
is true of the independent consultant team's review of the Public
Safety Plan. The final rule revises this section to specify that the
report must be sealed with a professional engineer's seal (Sec.
12.36(h)), to delete informational references to the Engineering
Guidelines, and to incorporate other minor edits. No other substantive
revisions were made to this proposed section following the NOPR.
---------------------------------------------------------------------------

    \60\ The purpose of the external audit or peer review is to
provide a holistic review of the Owner's Dam Safety Program by
evaluating its efficacy across the owner's portfolio of projects to
which the program applies. This review is to be conducted every five
years and should focus on the owner's corporate program for dam
safety, including, but not limited to, communication, training, and
organizational structure and risk reduction strategies intended to
foster a strong dam safety culture within the owner's organization
as a whole.
    \61\ NHA suggests that requiring review of the Owner's Dam
Safety Program as part of the periodic inspection ``could create
significant exposure to liability for an [independent consultant]
who is highly qualified with respect to the technical and
operational aspects of the project, but not with respect to
evaluating organizational programs and effectiveness.'' NHA Comments
at 7. However, in Commission staff's experience this has not been an
issue.
---------------------------------------------------------------------------

8. Section 12.37--Comprehensive Assessment
    63. Existing Sec.  12.37 establishes requirements for independent
consultant-prepared reports. As discussed elsewhere in this final rule,
the revisions to Sec. Sec.  12.36 and 12.38 incorporate this
information for reports on periodic inspections and comprehensive
assessments, respectively.
    64. Section 12.37 of the final rule establishes the scope of a
comprehensive assessment, the more intensive of the two tiers of part
12 inspection. As many components of the comprehensive assessment are
identical to or build upon the periodic inspection, several paragraphs
of this section cross-reference the corresponding periodic inspection
requirements in Sec.  12.35.
    65. In addition to those elements required for a periodic
inspection set forth in Sec.  12.35, a comprehensive assessment must
include a review of prior reports and analyses of record, a review of
the Supporting Technical Information Document, a Potential Failure Mode
Analysis, and a risk analysis. A comprehensive assessment has an
expanded scope compared to the existing independent consultant's
inspection. Section 12.37(a)(2) requires the independent consultant
team to perform a more detailed review of existing documentation,
including as-built drawings, monitoring data, and analyses of record,
than required by the current independent consultant's inspection.
    66. Section 12.37(f) requires a comprehensive assessment to include
a Potential Failure Mode Analysis, which is already standard practice
for part 12 inspections. D2SI has developed draft Chapter 17 of the
Engineering Guidelines, which describes how to conduct a Potential
Failure Mode Analysis. As discussed above, the Commission has solicited
and received public comments on draft Chapter 17 in Docket No. AD20-22-
00.\62\ The final version of Chapter 17 is available on the FERC
Division of Dam Safety and Inspections website.\63\
---------------------------------------------------------------------------

    \62\ See supra P 15.
    \63\ See supra note 21.
---------------------------------------------------------------------------

    67. Section 12.37(g) incorporates a semi-quantitative risk analysis
as part of the scope of a comprehensive assessment. Other Federal
agencies, including Reclamation, the Corps, and the Tennessee Valley
Authority, have incorporated this type of analysis into their
systematic comprehensive dam safety reviews. FEMA also provides
recommendations and guidance for the performance of semi-quantitative
risk analysis.\64\ D2SI developed draft Chapter 18 of the Engineering
Guidelines to provide guidance describing the process of, and
procedures for performing, a semi-quantitative risk analysis. As
discussed above, the Commission has solicited

and received public comments on draft Chapter 18 in Docket No. AD20-23-
00.\65\ The final version of Chapter 18 is available on the FERC
Division of Dam Safety and Inspections website.\66\
---------------------------------------------------------------------------

    \64\ FEMA, Federal Guidelines for Dam Safety Risk Management
(Jan. 2015), https://www.fema.gov/sites/default/files/2020-08/fema_dam-safety_risk-management_P-1025.pdf.
    \65\ See supra P 15.
    \66\ See supra note 21.
---------------------------------------------------------------------------

    68. Section 12.37(g) permits the Regional Engineer to waive the
requirement that a comprehensive assessment must include performance of
a risk analysis. This waiver provision allows the Commission to focus
its efforts on projects that present greater risk to life, health, and
property, and provides flexibility for D2SI staff to gradually phase in
the risk analysis component of a comprehensive assessment, allowing
sufficient time for D2SI staff to develop and deliver training on the
risk analysis procedures to D2SI staff, licensees, and consultants. It
also can provide regulatory relief to licensees, where appropriate.
    69. In response to the NOPR, commenters requested clarity on
performing a Potential Failure Mode Analysis,\67\ questioned the
appropriateness of requiring a risk analysis as part of a comprehensive
assessment for owners with a small number of dams,\68\ and commented on
the scope and cost to perform a risk analysis.\69\
---------------------------------------------------------------------------

    \67\ See, e.g., NHA Comments at 10; CEATI Comments at 11.
    \68\ See CEATI Comments at 11.
    \69\ See, e.g., NHA Comments at 10; CEATI Comments at 11.
---------------------------------------------------------------------------

    70. As more fully described in the Engineering Guidelines, the
Potential Failure Mode Analysis is a process used to identify,
describe, and evaluate the credibility and significance of potential
failure modes.\70\ A Potential Failure Mode Analysis is the first step
in conducting a risk analysis, which evaluates significance from a risk
perspective by categorizing potential failure modes by likelihood and
consequence in an effort to prioritize dam safety activities. Chapters
17 and 18 of the Engineering Guidelines provide procedural guidance for
performing a Potential Failure Mode Analysis and a risk analysis for a
comprehensive assessment, respectively.
---------------------------------------------------------------------------

    \70\ Chapter 17 of the Engineering Guidelines explains that a
potential failure mode is a way that failure could occur and defines
failure, for the purposes of the potential failure mode analysis, as
an uncontrolled release of the reservoir, in whole or in part; the
inability of project works or components to perform their intended
function; or project works or components performing in an impaired
or compromised fashion; any of which results in an adverse
consequence.
---------------------------------------------------------------------------

    71. As to concerns about requiring a risk analysis as part of a
comprehensive assessment for owners with a small portfolio of dams,
risk is not a function of the number of dams an entity owns. Moreover,
the scope of the risk analysis has been designed so that it may be
tailored to specific project conditions. The guidance in Chapter 18 of
the Engineering Guidelines provides for a scalable approach to
performing the risk analysis depending on the type, complexity, and
size of the project works. Larger and more complex project works will
generally take more effort to analyze than projects with smaller and
less complex works. The appropriate scope of a risk analysis, as well
as associated costs for performing such analysis, have been carefully
considered to provide only that level of effort needed to obtain the
information necessary to prioritize risk measures. The final rule adds
a sentence to Sec.  12.37(a) to clarify that it is the licensee's
responsibility to provide to the independent consultant team all
information, reports, and analyses of record necessary to fulfill the
requirements of this section and deletes informational references to
the Engineering Guidelines. No other substantive revisions were made to
proposed Sec.  12.37 following the NOPR.
9. Section 12.38--Report on Comprehensive Assessment
    72. Existing Sec.  12.38 describes the timeline for submitting
reports on an independent consultant's inspection. These requirements
are relocated to Sec.  12.40, discussed below.
    73. As proposed in the NOPR, Sec.  12.38 of the final rule
establishes the requirements for the report on a comprehensive
assessment. As with the corresponding section regarding a report on a
periodic inspection, the Commission is eliminating the difference
between initial and subsequent reports and will require every
comprehensive assessment report to meet the same standard.
    74. Section 12.38(b) references Sec.  12.36(b) and identifies
additional items that require specific evaluation in the comprehensive
assessment report. In addition to those elements required for a
periodic inspection, a comprehensive assessment report must include an
evaluation of: Spillway adequacy; the potential for internal erosion
and/or piping of embankments, foundations, and abutments; structural
integrity and stability of all structures under credible loading
conditions; any other analyses of record pertaining to geology,
seismicity, hydrology, hydraulics, or project safety; and the
Supporting Technical Information Document, Potential Failure Mode
Analysis, and risk analysis. An evaluation of an analysis of record
must include an evaluation of the accuracy, relevance, and consistency
with the current state of the practice of dam engineering, and the
comprehensive assessment report must include clear documentation of the
independent consultant team's rationale. If the independent consultant
team is unable to review any analysis of record or disagrees with the
analysis of record in any way, the independent consultant must
recommend new analyses.
    75. In the NOPR, the Commission also proposed to eliminate
provisions that allow independent consultants to incorporate the
previous independent consultant's report by reference and document only
that information that has changed since the previous report. By
referencing the periodic inspection report requirements (Sec.
12.36(c)) (i.e., report on periodic inspection), Sec.  12.38(c)
requires the independent consultant to provide, across seven
categories, a status update and evaluation of any changes since the
previous inspection.
    76. The existing provisions in Sec. Sec.  12.37(c)(4) through (8)
are retained in Sec. Sec.  12.38(d) through (h) of the final rule with
minor changes to ensure consistency with other revisions adopted
herein.
    77. In response to the NOPR, commenters requested clarity on
appropriate actions to take when the analyses of record are
unavailable.\71\
---------------------------------------------------------------------------

    \71\ See, e.g., NHA Comments at 10; CEATI Comments at 12.
---------------------------------------------------------------------------

    78. Section 12.38(c)(3) requires the independent consultant to
provide recommendations to perform new analyses if the analyses of
record are not available to be reviewed. It is incumbent on licensees
to either locate the analysis of record or provide a plan and schedule
to complete a new analysis. Additional guidance on reviewing and
evaluating the analyses of record and how that information should be
documented and classified is provided in Chapter 16 of the Engineering
Guidelines. As discussed above, the Commission has solicited and
received public comments on draft Chapter 16 in Docket No. AD20-21-
00.\72\ The final version of Chapter 16 is available on the FERC
Division of Dam Safety and Inspections website.\73\ Apart from
eliminating informational references to the Engineering Guidelines, no
substantive revisions were made to proposed Sec.  12.38 following the
NOPR.
---------------------------------------------------------------------------

    \72\ See supra P 15.
    \73\ See supra note 21.

---------------------------------------------------------------------------

10. Section 12.39--Evaluation of Spillway Adequacy
    79. Existing Sec.  12.39 describes the process for taking
corrective measures after the independent consultant's report is filed
with the Regional Engineer. As proposed in the NOPR, this procedure is
relocated to Sec.  12.41, discussed below. The requirement to evaluate
spillway adequacy is an existing component of the part 12 inspection
and is currently found in Sec.  12.35(b) of our regulations. However,
providing this information in a standalone section will highlight the
importance of evaluating spillway adequacy. Accordingly, the final rule
relocates the requirement to evaluate spillway adequacy to Sec.  12.39.
    80. As proposed in the NOPR, Sec.  12.39 of the final rule would
expand the existing requirements for evaluating spillway adequacy to
address scenarios similar to the 2017 Oroville Dam spillway incident.
When assessing spillway adequacy, independent consultants must evaluate
the potential for misoperation of, failure to operate, blockage of, or
debilitating damage to, a spillway, and the resulting effects on the
maximum reservoir level and the potential for overtopping.
    81. In response to the NOPR, NHA requested clarity on how the
hydraulic adequacy evaluations will be consistently implemented and
whether the credible loading conditions are standards based or risk
based.\74\ Central Nebraska expressed concerns that Sec.  12.39 could
result in ``efforts that could be overly broad and lead[] to the review
or assumption of unreasonable levels of unlikelihood,'' and suggested
instead that spillway performance be evaluated through the Potential
Failure Mode Analysis process.\75\
---------------------------------------------------------------------------

    \74\ See NHA Comments at 10-11.
    \75\ Central Nebraska Comments at 2.
---------------------------------------------------------------------------

    82. The evaluation of spillway adequacy has been a longstanding
assessment requirement of subpart D independent consultant inspections.
The final rule requires the independent consultant as part of the
spillway adequacy assessment to consider specific conditions that could
limit or impact spillway discharge. Commission staff will monitor and
review how these conditions are assessed and provide additional
guidance on the assessment process, if needed, on a case-by-case basis.
In response to NHA's question about appropriate flood loading
conditions, paragraph (a) has been revised to clarify that floods up to
and including the probable maximum flood must be considered in the
evaluation. In addition, we have deleted the word ``structural'' from
paragraphs (a) and (b) to clarify that failures could be more than
structural failures and eliminated from this section an informational
reference to the Engineering Guidelines.
11. Section 12.40--Time for Inspections and Reports
    83. This final rule relocates the provisions regarding timelines
for performing independent consultant inspections and submitting
inspection reports, previously found in Sec.  12.38, to revised Sec.
12.40. Our existing rules maintain a five-year cycle for inspections
and include provisions for initial inspections of existing licensed
projects, projects licensed but not yet constructed, and all other
projects; include a separate set of provisions related to projects
inspected by an independent consultant prior to March 1, 1981; and
authorize the Regional Engineer to grant extensions of time to file an
independent consultant's inspection report.
    84. Section 12.40 revises the timeline for submitting reports on
inspections by independent consultants. While the current five-year
interval between inspections and reports is maintained, the inspections
will alternate between periodic inspections and comprehensive
assessments; thus, there is a ten-year interval between any pair of
consecutive comprehensive assessments or periodic inspections, but a
significant project review every five years.
    85. Section 12.40(a) consolidates the timing of inspections and
reports for projects previously inspected by an independent consultant.
Section 12.40(a)(1) maintains the five-year cycle for an independent
consultant's inspection of each project development. Section
12.40(a)(2) grants the Regional Engineer the authority to require that
any report due 18 months after the effective date of the final rule be
either a comprehensive assessment or periodic inspection, enabling D2SI
to balance the number of comprehensive assessments due each year over
the 10-year cycle. Section 12.40(a)(3) requires that the first
comprehensive assessment be completed, and the report on it filed, by
December 31, 2038.\76\
---------------------------------------------------------------------------

    \76\ This date is based on an anticipated final rule effective
date in early 2022 with a corresponding first report due 18 months
later in late 2023. A four-year phased implementation period (2024
through 2027) is assumed to attain full annual implementation. Full
implementation should be complete after a full 10-year cycle (2027-
2036). An additional two years (2037 and 2038) are provided for
possible extension of time requests and any other reports that may
have been delayed from the phased implementation period.
---------------------------------------------------------------------------

    86. Section 12.40(b) retains and updates the terminology related to
existing provisions for existing licensed projects previously
inspected, projects licensed but not yet constructed, and other
projects.
    87. Section 12.40(c) establishes the ten-year interval between
comprehensive assessments and requires that a periodic inspection be
performed within five years following a comprehensive assessment.
    88. Sections 12.40(d) and 12.40(e) allow the Regional Engineer to
extend the time to file an independent consultant's report, for good
cause shown, and to require that any inspection scheduled to be
performed be a periodic inspection or comprehensive assessment. For
example, where a project is scheduled for a periodic inspection but a
dam safety incident, extreme loading condition (e.g., unprecedented
flood, large earthquake, etc.), or other significant change in
condition has occurred since the previous comprehensive assessment, the
Regional Engineer may require that the project undergo a comprehensive
assessment rather than a periodic inspection. Alternatively, for
projects that have no life safety consequences and a low total project
risk, the Regional Engineer may allow comprehensive assessments to be
performed at an interval greater than every 10 years.
    89. In response to the NOPR, commenters recommend changing the
effective date to 18 months following the date of the final rule,\77\
extending the due date for projects not previously inspected under Part
12 from two years to three years,\78\ limiting the Regional Engineer's
ability to unilaterally change the type of report to be filed,\79\ and
further clarifying the purpose of the preliminary report.\80\
---------------------------------------------------------------------------

    \77\ See CEATI Comments at 13.
    \78\ See id.
    \79\ See, e.g., NHA Comments at 11; CEATI Comments at 13.
    \80\ See, e.g., NHA Comments at 11; CEATI Comments at 13.
---------------------------------------------------------------------------

    90. Section 12.40(a)(2) has been revised to reflect that the date
for a report to be filed under this subpart will be 18 months after the
effective date of the final rule. Commission staff has evaluated the
scope of the effort required to complete a comprehensive assessment and
is confident that two years is sufficient time to complete this work
and file a report. Extending this work effort over a three-year
duration would provide no benefits and could negatively impact the
process by extending the time between the review

of project information; conducting the inspections and performing
Potential Failure Mode Analysis and semi-quantitative risk analysis
meetings; and preparing the report, thus prolonging the period before
corrective action could be identified and implemented. Section 12.40(e)
was revised to include ``for good cause'' for the Regional Engineer to
change the type of report due.
    91. The purpose of the preliminary report is to demonstrate whether
the independent consultant team has adequately prepared for their
inspection, including the review of background material and
instrumentation data. This requirement is intended to help the
independent consultant team identify areas in the field that may
require additional attention or effort.
    92. In the NOPR, the Commission proposed to include information
about the preliminary report in Sec.  12.40(f). However, because that
section covers different material, the final rule relocates the
preliminary report requirement to Sec.  12.42, which is a new,
standalone section.
12. Section 12.41--Corrective Measures
    93. The procedures for addressing items identified during a part 12
inspection that require corrective measures are currently set forth in
Sec.  12.39. This final rule relocates these corrective measure
procedures to new Sec.  12.41. Currently, licensees are required to
submit to the Regional Engineer a plan and schedule within 60 days of
filing an independent consultant's report with the Commission, and to
complete all corrective measures in accordance with the plan and
schedule as approved or modified by the Regional Engineer. Under the
existing regulations, the Regional Engineer may extend the time for
filing the plan and schedule. The final rule does not modify or
eliminate these requirements.
    94. Section 12.41 of the final rule incorporates the requirements
of existing Sec.  12.36 (emergency corrective measures) and Sec.  12.39
(post-inspection corrective measures) into a single section titled
``corrective measures.'' The revisions in Sec.  12.41(a)(1)(i) clarify
that the licensee's plan and schedule must address the recommendations
of the independent consultant and include investigation as an option
for the licensee to implement. Section 12.41(b)(2) is added to ensure
that emergency corrective measures are documented in the corrective
plan and schedule required by Sec.  12.41(a)(1).
    95. In response to the NOPR, CEATI recommends limiting the
corrective plan to only those items that relate to a potential failure
mode or will improve or change the understanding of risk associated
with the project works.\81\ Commenters further recommend eliminating
the requirement to submit an annual status report,\82\ and creating an
appeals board to offer technical guidance to the Part 12 process.\83\
---------------------------------------------------------------------------

    \81\ See CEATI Comments at 14.
    \82\ See, e.g., NHA Comments at 12; CEATI Comments at 14.
    \83\ See NHA Comments at 12.
---------------------------------------------------------------------------

    96. Section 12.41(a)(1)(ii) already includes provisions for taking
no action for recommended corrective measures in those cases where it
is justifiable. The annual status report provides an opportunity to
periodically review and update the status (e.g., completed, in
progress, outstanding, etc.) of previously-identified corrective
measures and provides an opportunity to revisit the priority and status
of the measures to ensure that they are acted upon. We do not consider
an annual status update to be too frequent. Commission staff has access
to other resources for technical advice and review and therefore there
is no need to create a separate appeals board or board of consultants.
Based on a comment received from CEATI on Chapter 16 of the Engineering
Guidelines,\84\ Sec.  12.41(b) was revised to reference Sec.
12.3(b)(4) of this part, which defines a condition affecting the safety
of a project or project works, to demonstrate conditions that would be
considered appropriate for the reporting of an emergency corrective
measure. In addition, the final rule revises the first sentence of
Sec.  12.41(b) to emphasize that it is the licensee's responsibility to
ensure that the independent consultant complies with the notification
requirements of this paragraph. No other substantive revisions were
made to proposed Sec.  12.41 following the NOPR.
---------------------------------------------------------------------------

    \84\ See CEATI's September 15, 2020 Comments on Chapter 16 of
the Engineering Guidelines at 28 (filed in Docket No. AD20-21-000).
---------------------------------------------------------------------------

13. Section 12.42--Preliminary Reports
    97. As discussed above, the final rule relocates requirements
regarding preliminary reports that the NOPR had proposed for inclusion
in Sec.  12.40(f) to a new section of subpart D, Sec.  12.42.\85\ This
section requires the independent consultant team, at least 30 days
before performing a periodic inspection or comprehensive assessment, to
prepare and file a preliminary report. The purpose of the preliminary
report is two-fold: (1) It documents the independent consultant team's
initial findings after reviewing the project information; and (2) it
demonstrates the team's preparation for conducting the site inspection.
If the preliminary report does not clearly demonstrate that the
independent consultant team is adequately prepared for the inspection,
the Regional Engineer may require the inspection be postponed.
---------------------------------------------------------------------------

    \85\ See supra P 92.
---------------------------------------------------------------------------

14. Alaska-Specific Concerns
    98. A few commenters asserted that in broadening the scope of
independent consultant dam safety inspections, the NOPR takes a one-
size-fits-all approach that will place an unfair burden on Alaska's
smaller, less complex projects.\86\ The Alaska commenters further
suggest that the NOPR underestimated the costs to small projects of the
proposed changes to independent consultant inspections, particularly by
failing to consider the costs associated with a larger inspection team
traveling to project sites in Alaska, including the cost of remote
travel.\87\
---------------------------------------------------------------------------

    \86\ See, e.g., Alaska Power Association's September 18, 2020
Comments (Alaska Power Comments); Cooper Valley Electric's September
14, 2020 Comments (Cooper Valley Comments); Alaska Electric Light &
Power Company's September 18, 2020 Comments (Alaska Electric
Comments); see also U.S. Senator Lisa Murkowski's November 5, 2020
letter (supporting Alaska Power Association's comments).
    \87\ See, e.g., Alaska Power Comments at 3.
---------------------------------------------------------------------------

    99. The Commission did not take a one-size-fits-all approach to the
changes to the project safety inspection program proposed in the NOPR
and adopted, with modifications, in this final rule. As explained
above, the revised inspection approach provides for a two-tier
inspection structure, consisting of a periodic inspection (Sec.  12.35)
and a more robust comprehensive assessment (Sec.  12.37). The size of
the inspection team is dependent on the project so that it is
``commensurate with the scale, complexity, and relevant technical
disciplines of the project and type of review, inspection, and
assessment being performed.'' \88\ Moreover, Sec.  12.31(b) of the
final rule defines an independent consultant team as consisting of one
or more people. For less complex projects, one individual may be able
to satisfy the requirements of an independent consultant team. Finally,
the final rule incorporates provisions to allow less complex project
licensees to seek an exemption from the requirements of subpart D
(Sec.  12.33(a)), a waiver of the 10-year requirement to perform a
comprehensive assessment (Sec.  12.34), or a waiver of the requirement
to perform a risk analysis as part of the comprehensive assessment
(Sec.  12.37(g)). Each of these provisions is designed to allow
independent consultant

inspections to be tailored to the unique circumstances and safety
issues of each project and, if circumstances warrant, to eliminate or
reduce the frequency of certain subpart D requirements. Comments
specific to burden and costs estimates for the information collection
activities associated with this final rule are addressed below.\89\
---------------------------------------------------------------------------

    \88\ 18 CFR 12.31(b)(3).
    \89\ See discussion infra Part V.A.
---------------------------------------------------------------------------

B. Owner's Dam Safety Program

    100. As the NOPR explained, the Commission began developing its
Owner's Dam Safety Program guidance following the December 2005 failure
of Taum Sauk Dam, in an effort to encourage licensees to foster and
prioritize a strong dam safety culture among their organizations and to
help decrease the likelihood of preventable dam safety incidents. In
August 2012, the Director of D2SI issued letters to all owners of high
or significant hazard potential dams requiring them to develop and
submit an Owner's Dam Safety Program.\90\ Additional information and
guidance on the development of an Owner's Dam Safety Program has been
available on the Commission's website since this time. New subpart F
consolidates and codifies that guidance.
---------------------------------------------------------------------------

    \90\ Letter to All Licensees and Exemptees of High and
Significant Hazard Potential Dams Requiring Submittal of an Owner's
Dam Safety Program, August 2012, https://www.ferc.gov/sites/default/files/2020-04/letter-submit-odsp.pdf.
---------------------------------------------------------------------------

1. Section 12.60--Applicability
    101. Section 12.60 specifies that an Owner's Dam Safety Program
must be submitted by any licensee that has a dam or other project work
with a high or significant hazard potential. This does not represent a
change from existing practice.
    102. No comments were received on this section. Following the NOPR,
the cross-reference to the definitions of high or significant hazard
potential was updated based on the revised definitions contained in
Sec.  12.3(b)(13)(i) and (ii). No other revisions were made to proposed
Sec.  12.60 following the NOPR.
2. Section 12.61--Definitions
    103. Section 12.61 defines the terms ``Chief Dam Safety Engineer''
and ``Chief Dam Safety Coordinator,'' as used in subpart F. The Chief
Dam Safety Engineer or Chief Dam Safety Coordinator is defined as the
person who oversees the implementation of the Owner's Dam Safety
Program and has primary responsibility for ensuring the safety of the
licensee's dams and other project works. The only difference between
the definitions is that a Chief Dam Safety Engineer must be a licensed
professional engineer.
    104. In response to the NOPR, commenters requested clarification of
professional engineer licensure,\91\ and suggested that flexibility
should be built in to allow licensees to use different terms than those
provided in this section.\92\
---------------------------------------------------------------------------

    \91\ CEATI Comments at 14-15.
    \92\ Id. at 15.
---------------------------------------------------------------------------

    105. Individual states determine the requirements for the licensure
of professional engineers. Those performing professional engineering
services are responsible for following applicable state regulations.
The final rule revises Sec.  12.61(a) to indicate that the Chief Dam
Safety Engineer must be a licensed professional engineer with
experience in dam safety. For consistency, the final rule also revises
Sec.  12.61(b) to clarify that the Chief Dam Safety Coordinator in ``is
not required to be a licensed professional engineer.'' The terms Chief
Dam Safety Engineer and Chief Dam Safety Coordinator should be used
consistently in documentation and correspondence with the Commission.
No other substantive revisions were made to proposed Sec.  12.61
following the NOPR.
3. Section 12.62--General Requirements
    106. Section 12.62 establishes three general requirements for an
Owner's Dam Safety Program. Section 12.62(a) requires an Owner's Dam
Safety Program to designate either a Chief Dam Safety Engineer or a
Chief Dam Safety Coordinator. Any Owner's Dam Safety Program that
applies to one or more dams or other project works with a high hazard
potential must designate a Chief Dam Safety Engineer. Section 12.62(b)
requires the Owner's Dam Safety Program to be signed by the owner and
the Chief Dam Safety Engineer or Chief Dam Safety Coordinator, as
applicable. Section 12.62(c) requires the Owner's Dam Safety Program to
be reviewed and updated on a periodic basis. Although Sec.  12.62(d)
permits the owner to designate outside parties, such as consultants, to
serve as Chief Dam Safety Engineer or Chief Dam Safety Coordinator, the
owner retains ultimate responsibility for the safety and day-to-day
implementation of the projects.
    107. Commenters on the NOPR requested clarity as to who from the
owner's organization should sign the Owner's Dam Safety Program,\93\
recommended adding a requirement to provide formal documentation of any
agreement delegating an individual outside the owner's organization to
serve as a Chief Dam Safety Engineer or Chief Dam Safety
Coordinator,\94\ and stated that the dam safety industry might not have
sufficiently qualified individuals to perform the requirements.\95\
---------------------------------------------------------------------------

    \93\ Id.
    \94\ Id.
    \95\ NHA Comments at 12.
---------------------------------------------------------------------------

    108. Owner's organizations vary widely in type and size, from sole
proprietorships to corporations to municipalities. The requirement in
Sec.  12.62(b) that the owner, along with the Chief Dam Safety Engineer
or Chief Dam Safety Coordinator, sign the Owner's Dam Safety Program
ensures that the legal entity responsible for the dam(s) or other
project works accepts the program that is established to promote dam
safety within their organization in order to help decrease the
likelihood of preventable dam safety incidents. It is up to each
organization to determine the appropriate signatory for signing the
Owner's Dam Safety Program.
    109. The final rule revises Sec.  12.62 to include a statement that
any delegation of authority made in accordance with the requirements of
this section must be documented in the Owner's Dam Safety Program and
to clarify that the responsibilities that may be delegated include
program implementation. In response to commenters' concerns about a
lack of qualified individuals, provisions for developing and
implementing an Owner's Dam Safety Program have been in place as
guidance for many years and industry has been able to provide adequate
resources and training to satisfy the requirements of this section.
Moreover, it is crucial that licensees accept responsibility for, and
take all reasonable steps to implement, an effective safety program.
The cross-reference to the definition of high hazard potential was
updated based on the revised definition contained in Sec.
12.3(b)(13)(i). No other substantive revisions were made to proposed
Sec.  12.62 following the NOPR.
4. Section 12.63--Contents of Owner's Dam Safety Program
    110. Section 12.63 establishes the minimum contents of an Owner's
Dam Safety Program. Sections 12.63(a)-(f) each correspond to a topic
area that should be addressed in an Owner's Dam Safety Program document
and identified in the document's table of contents, as provided in
current D2SI guidance available on the Commission's website.\96\ Under
Sec.  12.63(g), the NOPR

also proposed that the Owner's Dam Safety Program should include any
additional information that may be recommended by the Engineering
Guidelines, a draft chapter of which is in development and will be
provided at a later date for public review and comment.
---------------------------------------------------------------------------

    \96\ FERC, Outline for Owner's Dam Safety Program--Table of
Contents, https://www.ferc.gov/sites/default/files/2020-04/outline-with-discussion.pdf.
---------------------------------------------------------------------------

    111. In response to the NOPR, commenters recommended minor
editorial changes and requested clarification of what is meant by
``other information described by the Guidelines'' in Sec.
12.63(g).\97\ Existing guidance pertaining to the content of an Owner's
Dam Safety Program is available on the Commission's website. To
eliminate any confusion, the final rule deletes the references to the
Engineering Guidelines. No other substantive revisions were made to
proposed Sec.  12.63 following the NOPR.
---------------------------------------------------------------------------

    \97\ See, e.g., CEATI Comments at 16; NHA Comments at 12.
---------------------------------------------------------------------------

5. Section 12.64--Annual Review and Update
    112. Section 12.64 requires licensees to review and update an
Owner's Dam Safety Program. This section specifies that any Owner's Dam
Safety Program must be reviewed by the licensee's dam safety staff and
discussed with senior management on an annual basis, and that any
findings, analysis, corrective measures, or revisions be submitted to
the Regional Engineer.
    113. In response to the NOPR, commenters recommended deleting the
entire section as it appears to duplicate submittal of this information
elsewhere,\98\ requested clarification as to whether the annual review
of the Owner's Dam Safety Program will take the place of the existing
annual internal audit,\99\ and requested clarification as to which
Regional Engineer the Owner's Dam Safety Program should be submitted
for owners with dams in more than one Regional Office's territory.\100\
---------------------------------------------------------------------------

    \98\ See, e.g., NHA Comments at 12-13.
    \99\ Id. at 13.
    \100\ CEATI Comments at 16.
---------------------------------------------------------------------------

    114. The annual review and update will replace what commenters,
such as NHA, refer to as the existing annual internal audit. Further,
the report on the annual review of the Owner's Dam Safety Program
should not be conflated with the Owner's Inspection Preparation
Form.\101\ These are not duplicative efforts. The Owner's Inspection
Preparation Form is an optional form that an owner may choose to
complete to help their staff prepare for a field inspection conducted
by D2SI staff. This form is not typically submitted to the Commission.
Clarification of the annual review process and how Owner's Dam Safety
Programs should be filed for owners with dams in multiple Regional
Offices will be provided in future Commission guidance. No revisions
were made to proposed Sec.  12.64 following the NOPR.
---------------------------------------------------------------------------

    \101\ The Owner's Inspection Preparation Form is an outline of
specific items related to the Owner's Dam Safety Program to be
discussed during a field inspection conducted by D2SI staff. This
form is available on the Commission's website at https://www.ferc.gov/sites/default/files/2020-04/what-do-we-see.pdf.
---------------------------------------------------------------------------

6. Section 12.65--Independent External Audit and Peer Review
    115. Section 12.65 describes the requirements for independent
external audits and peer reviews, which must be completed at least once
every five years for any Owner's Dam Safety Program that applies to one
or more dams or other project works having a high hazard potential
classification. The qualifications of the review team must be submitted
to the Regional Engineer in advance, and the Regional Engineer's
acceptance must be obtained prior to performing the audit or peer
review. The Commission will review the qualifications to ensure that
the review team has sufficient expertise and a defined plan to review
the Owner's Dam Safety Program. The findings of the external audit or
peer review team must be documented in a report to be reviewed by
licensee staff, including senior management, and submitted to the
Regional Engineer.
    116. In response to the NOPR, NHA requested that the external audit
of the Owner's Dam Safety Program remain separate from the periodic
inspection and comprehensive assessment,\102\ and CEATI recommended
identifying a baseline date to be used for the first audit from which
the deadlines for all subsequent audits could be determined.\103\
Commenters also asked about the difference between an independent
external audit and a peer review,\104\ and suggested adding information
for terms which ensure the independence of the proposed auditor or peer
review team.\105\
---------------------------------------------------------------------------

    \102\ NHA Comments at 13.
    \103\ CEATI Comments at 16.
    \104\ Id.
    \105\ Id. at 17.
---------------------------------------------------------------------------

    117. As explained above, the external audit of the Owner's Dam
Safety Program is distinct from the independent consultant team's
review of the Owner's Dam Safety Program during the periodic inspection
(Sec.  12.35(d)(4)) and comprehensive assessment (Sec.  12.37(d)).\106\
Per existing practice, the date of the initial external audit report of
the Owner's Dam Safety Program establishes the date of the subsequent
five-year audit reports. Generally, an external audit would be more
limited in scope and the minimum level of effort compared to the peer
review process. A licensee may elect to complete a more detailed peer
review performed by a team of at least three reviewers. If necessary,
the difference between an external audit and a peer review will be
further clarified in future Commission guidance. The final rule revises
Sec.  12.65(b) to include a requirement that the statement of
qualifications for the proposed auditor must also demonstrate the
independence of the auditor or peer review team from the licensee and
its affiliates.
---------------------------------------------------------------------------

    \106\ See supra P 62.
---------------------------------------------------------------------------

    118. Finally, the final rule updates an internal cross-reference to
the definition of hazard potential and removes the statement that
additional guidance is provided in the guidelines. No other substantive
revisions were made to Sec.  12.65 following the NOPR.

C. Public Safety and Miscellaneous Updates

    119. In the NOPR, the Commission proposed several changes to
subparts A, B, C, and E of 18 CFR part 12, most of which are minor in
nature and necessary to ensure consistency with the replaced subpart D
and new subpart F. The two most notable changes relate to the reporting
of public safety incidents and the development and submittal of public
safety plans.
1. Subpart A--General Provisions
    120. Subpart A describes the general provisions and definitions
that apply under part 12 of the regulations. The NOPR proposed to
update or add several definitions and make other minor changes to
ensure consistency with replaced subpart D and new subpart F. Section
12.3(b)(4) provides a list of conditions affecting the safety of
project works. The NOPR proposed to update two of these conditions to
ensure their definitions are consistent as applied in current practice.
In addition, the NOPR proposed to add ``overtopping of any dam,
abutment, canal, or water conveyance'' to the list of conditions that
could affect project safety and new definitions for ``Water
Conveyance,'' ``Engineering Guidelines,'' and ``Owner's Dam Safety
Program.'' The NOPR proposed additional minor revisions in subpart A to
ensure

consistent terminology and to update internal cross-references.
    121. In addition, the Commission proposed to add Sec.  12.4(d) to
make clear that licensee non-compliance with any dam safety directive
issued by the Commission, a Regional Engineer, or other authorized
Commission representative could result in sanctions such as the
Commission issuing a cease generation order, assessing civil penalties,
or revoking a project's license pursuant to section 31 of the FPA.\107\
---------------------------------------------------------------------------

    \107\ See NOPR, 172 FERC ] 61,061 at P 78; 16 U.S.C. 823b, 825h.
In response to a request to clarify Sec.  12.4(c)-(d)'s use of the
phrase ``any order or directive,'' see NHA Comments at 3, we note
that by adding new Sec.  12.4(d), the final rule does not create new
penalty authority. Rather, this addition simply serves as a reminder
that the Commission's existing penalty authority, derived from FPA
section 31, applies to the requirements of part 12 of the
Commission's regulations.
---------------------------------------------------------------------------

    122. In response to the NOPR, NHA recommended that the Commission
further clarify the definitions of significant and low hazard potential
and asked why the phrase ``including recreation'' was added to Sec.
12.3(b)(4)'s definition of ``condition affecting the safety of a
project or project works.'' \108\ CEATI recommended defining the terms
``Project,'' ``Project Works,'' ``Dam,'' and ``Development'' and
suggested that the Commission develop a different hazard potential
scheme for canals and water conveyance facilities.\109\
---------------------------------------------------------------------------

    \108\ NHA Comments at 3.
    \109\ CEATI Comments at 3-4.
---------------------------------------------------------------------------

    123. Section 12.3(b)(13) of the final rule adds separate
definitions for ``Significant hazard potential'' (Sec.
12.3(b)(13)(ii)) and ``Low hazard potential'' (Sec.  12.3(b)(13)(iii)).
Adding the phrase ``including recreation'' clarifies Sec.  12.3(b)(4)'s
definition of ``Condition affecting the safety of a project or project
works'' by providing a statutorily-defined example of ``other
beneficial public uses.'' \110\ This addition does not expand the
original definition nor does it represent a departure from D2SI's
current practice. The terms ``Dam'' and ``Development'' are defined in
Sec. Sec.  12.3(b)(6) and 12.3(b)(7), respectively. The terms
``Project'' and ``Project Works'' are defined in section 3 of the
FPA,\111\ as stated in Sec.  12.3(a). For consistency with the
statute's terminology, the final rule eliminates references in proposed
Sec.  12.3 to ``project feature'' by substituting in its place the term
``project work.'' \112\ For the purposes of defining hazard potential,
the Commission believes it is appropriate to extend the current
approach used to define hazard potential for dams to canals and other
water conveyances. The emphasis on the definition of hazard potential
is based on the resulting consequences should the structure fail and
not on the structure itself. Therefore, the Commission does not agree
with the recommendation to develop a different hazard potential
definition or approach for canals and water conveyance structures.
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    \110\ As revised, the first sentence of 12.4(b) clarifies that
the definition of Condition affecting the safety of a project or
project works includes any condition, event, or action at the
project which might compromise the ability of any project work to
function safely for its intended purposes, including other
beneficial public uses such as recreation.
    \111\ 16 U.S.C. 796.
    \112\ To ensure consistent use of the terms ``project works'' or
``project work'' (if referring to a singular structure), the final
rule makes similar revisions in Sec. Sec.  12.30, 12.35, 12.60,
12.61, 12.62, and 12.65.
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    124. The final rule deletes the definition of and an additional
reference to the ``Guidelines.'' The Engineering Guidelines remain
available on the Commission's website.
    125. The term ``canal'' is deleted in Sec. Sec.  12.3(b)(4)(xiii)
and 12.3(b)(13) as its usage is redundant with the term ``water
conveyance'' also used in each paragraph. For clarity, one of the
conditions affecting safety, found in Sec.  12.3(b)(4)(xi), was revised
from ``Significant instances of vandalism or sabotage'' to read
``Security incidents (physical and/or cyber).'' No other substantive
changes were made to subpart A following the NOPR.
2. Subpart B--Reports and Records
    126. Subpart B describes the requirements for reporting, verifying,
and providing records to the Commission regarding dam safety-related
matters, including public safety incidents. The NOPR proposed minor
revisions to ensure consistency with other sections of the regulations
and the dam safety program as implemented. In addition, the NOPR
proposed additional reporting of public safety-related incidents that
involve deaths, serious injuries, or rescues.
    127. Revised Sec.  12.10(a)(1) expresses the Commission's
preference that initial reports of conditions affecting the safety of a
project or its works are made within 72 hours of discovery of the
condition. The reporting of an incident to the Commission must not in
any way inhibit an emergency response to that incident.
    128. Revised Sec.  12.10(b) requires licensees to report rescues in
addition to deaths and serious injuries, and clarifies the definition
of ``project-related'' for the purpose of complying with the mandatory
reporting of deaths, serious injuries, and rescues that are considered
or alleged to be project-related. For precision and to use terminology
that is generally accepted in the dam safety community, the NOPR
proposed to replace the term ``project-related accident'' with
``project-related incident.''
    129. Currently, Sec.  12.10(b)(4) defines ``project-related,'' as
``any deaths or serious injuries involving a dam, spillway, intake, or
power line, or which take place at or immediately above or below a
dam.'' \113\ In D2SI staff's experience, the final clause of the
definition has been the most problematic for licensees to apply, often
leading licensees to report as project-related those deaths or serious
injuries that occur near a dam but are wholly unrelated to the project
or its operation. The NOPR proposed to revise the definition of
``project-related'' to make clear that an incident is project-related
only if it occurs at project works, involves changes in water levels
resulting from operations of project works, or is otherwise
attributable to the project or its operation.
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    \113\ 18 CFR 12.10(b)(4) (emphasis added).
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    130. In response to the NOPR, CEATI suggested that a threshold for
reporting rescues and serious injuries should be established by
excluding minor incidents not requiring treatment at a medical
facility.\114\ NHA requested clarification of the reporting
requirements for safety related incidents and clarification of safety
related incidents related to changes in water levels or flows.\115\
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    \114\ CEATI Comments at 4-5.
    \115\ NHA Comments at 3-4.
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    131. For clarity, the final rule revises the general structure of
Sec.  12.10(b) to follow Sec.  12.10(a). Section 12.10(b)(1) provides
the reporting requirements for initial reports of deaths, serious
injuries, or rescues. The initial report can be made by email or
telephone. This is a change from the initial written reporting
requirements proposed in the NOPR. For consistency, the final rule
applies this same change to Sec.  12.10(a)'s reporting requirements for
initial reports of conditions affecting the safety of a project or its
works to make clear that initial reports can be made by email or
telephone. Accordingly, the final rule deletes from Sec.  12.10(a) all
references to ``oral reports'' and adds in its place ``initial
reports.''
    132. Section 12.10(b)(2) provides the requirements for written
reports by outlining three categories of incidents and indicating
whether a written report is required: (i) Any death, serious injury, or
rescue that is considered or alleged to be project-related (written

report required); (ii) any death that is not project-related (copy of
media article or law enforcement report accepted); and (iii) any
serious injury or rescue that is not project-related (no written report
required). This structure should clarify the written reporting
requirements for each type of incident.
    133. In addition, proposed Sec.  12.10(b)(3) from the NOPR was
deleted, as it provided an outdated form of hard copy submittal
(newspaper clipping); proposed Sec.  12.10(b)(4) was relocated to Sec.
12.10(b)(3) of the final rule. The final rule further revises Sec.
12.10(b)(3)(iii) to clarify that the definition of ``project-related''
also includes any deaths, serious injuries, or rescues that involve a
licensee employee, contractor, or other person performing work at a
licensed project facility and are related in whole or in part to the
work being performed. The final rule also adds new Sec.  12.10(b)(4) to
clarify that, for incident reporting purposes, a serious injury
includes any injury that results in treatment at a medical facility or
a response by licensee staff or another trained professional.
    134. Finally, the NOPR proposed and the final rule adopts two
changes to existing requirements concerning the maintenance of records.
First, the final rule revises Sec.  12.12(b)(3) to permit storage media
other than microform, consistent with part 125 of the Commission's
regulations. Second, the final rule adds Sec.  12.12(d) to require the
licensee to provide, to the Regional Engineer, physical and electronic
records necessary to ensure the safety of project works, for all
projects subject to subpart D or as otherwise requested by the Regional
Engineer. Under Sec.  12.12(b)(2)(ii)(A) of our existing regulations,
which remains unchanged, the Regional Engineer has the authority to
require an applicant or licensee to submit such reports or information.
NHA suggests that there is no need to require physical records in
addition to electronic copies and recommends deleting the reference to
``physical'' in Sec.  12.12(d).\116\ We decline to adopt NHA's
recommendation because hard copies of certain records are necessary in
case of a power outage or for those instances when electronic files
might not be available. No changes were made to proposed Sec.  12.12
following the NOPR.
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    \116\ NHA Comments at 4.
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3. Subpart C--Emergency Action Plans
    135. Emergency action plans, which must be developed in
consultation with federal, state, and local public health and safety
officials, are designed to provide early warning to upstream and
downstream inhabitants, property owners, operators of water-related
facilities, recreational users, and others in the vicinity who might be
affected in the event of a project emergency.\117\ Subpart C describes
the general requirement that applicants and licensees develop and
submit emergency action plans, explains when an exemption from this
requirement may be warranted, identifies the required contents of the
plans, and describes the timing for plan filing and regular updating.
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    \117\ 18 CFR 12.20(b).
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    136. In the NOPR, the Commission proposed only minor revisions to
Sec. Sec.  12.20, 12.22, and 12.24 to ensure consistency with the
filing guidelines available on the Commission's website and to update
terminology with respect to the Engineering Guidelines.
    137. The Commission received no comments on its proposed revisions
to subpart C. The final rule deletes from Sec.  12.22 two references to
the Engineering Guidelines. No other revisions were made to proposed
subpart C following the NOPR.
4. Subpart E--Other Responsibilities of Applicant or Licensee
    138. Subpart E describes other applicant and licensee
responsibilities, including the requirement to install warning and
public safety devices, and test spillway gates. In the NOPR, the
Commission proposed to replace one section and update another to codify
a function of the dam safety program as currently implemented and to
ensure the use of consistent terminology in conjunction with the
proposed replacement of subpart D. The Commission further explained
that subpart E would be renumbered to now include Sec. Sec.  12.50 to
12.54 to accommodate the proposed inclusion of additional sections in
subpart D, and that the proposed revisions to subpart E would not
represent a change in practice.
    139. The revisions to Sec.  12.52 (warning and safety devices,
previously Sec.  12.42) preserve the current regulatory requirement
that licensees must install, operate, and maintain warning and safety
devices to protect the public, with a minor revision to ensure
consistency with the rest of part 12. Revised Sec.  12.52(b) codifies
existing D2SI guidance that the Commission may require a licensee to
submit a public safety plan that documents the installation, operation,
and maintenance of public safety devices.\118\
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    \118\ FERC, Guidelines for Public Safety at Hydropower Projects
(Mar. 1992), https://www.ferc.gov/sites/default/files/2020-04/public-safety.pdf.
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    140. Finally, the NOPR proposed to revise Sec.  12.54 (testing
spillway gates, currently Sec.  12.44) to replace the term ``periodic
inspection'' with the more generic term ``an inspection.'' This
terminology change ensures that Commission staff can continue to verify
the operability of spillway gates during their routine inspections, and
is intended to prevent this section from being misconstrued as applying
only to a periodic inspection as it is defined and described in subpart
D of this final rule.
    141. In response to the NOPR, NHA asks whether the public safety
plan is required to be developed in accordance with the Commission's
Guidelines for Public Safety.\119\ Other commenters suggested minor
revisions to the text of Sec.  12.52(a) related to protecting the
public from project operations.\120\
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    \119\ NHA Comments at 12.
    \120\ See, e.g., CEATI Comments at 14.
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    142. Section 12.52(b) provides the provision that the Regional
Engineer may require a licensee to file a public safety plan. The
Guidelines for Public Safety at Hydropower Projects, available on the
Commission's website, provide helpful guidance for developing and
submitting public safety plans. The last sentence in Sec.  12.52(b) was
deleted to remove the reference to the guidelines. No changes to Sec.
12.52(a) are necessary as the existing text (formerly located in Sec.
12.42) is sufficient to ensure that licensees take appropriate warning
and safety measures to protect the public from changes in flow due to
project operations.\121\ No substantive revisions were made to subpart
E following the NOPR.
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    \121\ The existing text, which this final rule relocates to
Sec.  12.52(a), requires licensees to install, operate, and maintain
safety devices to warn the public of fluctuations in flow from the
project.
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V. Regulatory Requirements

A. Information Collection Statement

    143. The Paperwork Reduction Act \122\ requires each federal agency
to seek and obtain the Office of Management and Budget's (OMB) approval
before undertaking a collection of information (including reporting,
record keeping, and public disclosure requirements) directed to ten or
more persons or contained in a rule of general applicability. OMB
regulations require approval of certain information collection
requirements contained in

final rules published in the Federal Register (including deletion,
revision, or implementation of new requirements).\123\ Upon approval of
a collection of information, OMB will assign an OMB control number and
an expiration date. Respondents subject to the filing requirements of a
rule will not be penalized for failing to respond to the collection of
information unless the collection of information displays a valid OMB
control number.
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    \122\ 44 U.S.C. 3501-3521.
    \123\ See 5 CFR 1320.12.
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    144. The following discussion describes and analyzes the
collections of information modified by this final rule.
    145. The Commission solicited comments on the Commission's need for
the proposed information collection in the NOPR and in draft Chapters
15 through 18 of the Engineering Guidelines,\124\ whether the
information will have practical utility, the accuracy of the burden
estimates, ways to enhance the quality, utility, and clarity of the
information to be collected or retained, and any suggested methods for
minimizing respondents' burden, including the use of automated
information techniques. All burden estimates for all information
collection activities (including those in Chapters 15 through 18 of the
Engineering Guidelines) are discussed in this final rule and in the
Paperwork Reduction Act supporting statement.
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    \124\ Concurrently with issuance of the NOPR, the Commission
issued for public comment the draft chapters of the Engineering
Guidelines in Docket Nos. AD20-20-000 (Chapter 15--Supporting
Technical Information Document), AD20-21-000 (Chapter 16--Part 12D