Program), AD20-22-000 (Chapter 17--Potential Failure Mode Analysis),
and AD20-23-000 (Chapter 18--Level 2 Risk Analysis).
---------------------------------------------------------------------------

    146. Public Reporting Burden: In this final rule, the Commission
establishes two tiers of independent consultant safety inspection
reports, codifies existing guidance related to the Owner's Dam Safety
Program, and requires reporting of rescues that occur at hydroelectric
projects. The final rule, in conjunction with the corresponding updates
to the Engineering Guidelines, revises and adds information collection
activities in 18 CFR part 12.
1. Subpart D: Independent Consultant Inspections
    147. The revisions to 18 CFR part 12, subpart D do not affect the
current five-year filing cycle for independent consultant's safety
inspection reports. However, they do modify the scope of reports on an
alternating cycle, such that the reports alternate between a periodic
inspection (a reduction in scope compared to the previous inspection
requirement) and a comprehensive assessment (an increase in scope
compared to the previous inspection requirement). The hydroelectric
facilities regulated by the Commission vary greatly in size and
complexity, and there is no single representative project. To evaluate
the burden associated with the revisions to independent consultant
safety inspection reports, Commission staff developed separate cost
estimates for ``Simple'' and ``Complex'' hydroelectric facilities,
which are listed in the tables below. Commission staff recognizes that
there are projects with annualized costs less than the ``Simple''
estimate or greater than the ``Complex'' estimate, but Commission staff
believes the values presented are appropriately representative when
averaged across the total inventory of hydroelectric projects and
respondents. The assumption underlying these burden estimates is that
one-half of licensed projects can be represented by each category.\125\
---------------------------------------------------------------------------

    \125\ The cost data presented in the tables reflect the change
in annualized cost based on the changes described in the final rule.
The annualized costs are based on the total cost, in 2021 dollars,
over the typical 10-year Part 12D inspection cycle, which comprises
one Comprehensive Assessment and one Periodic Inspection, and the
associated activities. The scope of each inspection and associated
reporting requirements are defined in the final rule.
---------------------------------------------------------------------------

    148. The Commission received comments on some of the information
collection activities proposed for subpart D. A few commenters raised
general concerns about the cost estimates provided for independent
consultant inspections and reports, suggesting that the Commission's
estimates underestimate the costs to small, less complex projects
located in Alaska.\126\ The Commission recognizes the unique challenges
faced by Alaska licensees, but continues to find that the cost
estimates provided represent average values that are appropriately
representative when averaged across the total inventory of
hydroelectric projects and respondents. As described above, the final
rule includes several provisions that will allow the project safety
inspection requirements to be tailored to the unique needs and safety
considerations of individual projects.\127\ CEATI comments that the
cost for performing a risk analysis can exceed the estimates provided
in the NOPR and notes that cost estimates of $83 per hour are not
representative of consulting engineers' fees, which can exceed $150 per
hour.\128\ Commission staff remains confident that the burden and cost
estimates presented in the NOPR are representative of the
implementation efforts described in the final rule. To date, Commission
staff has performed nearly 30 pilot risk analyses alongside licensees.
This experience has confirmed that the effort required to complete risk
analyses closely aligns with the estimates included in the NOPR and
updated in this final rule. We agree with CEATI that the $83 per hour
rate is not representative of consulting engineers' fees.\129\ In fact,
Commission staff's detailed cost breakdowns, which informed the burden
and cost estimates for professional services contracting costs (see
Table 2 below), used a range of unit rates up to and including $300 per
hour for consulting engineers.
---------------------------------------------------------------------------

    \126\ See Alaska Power Comments; Cooper Valley Comments; Alaska
Electric Comments; see also U.S. Senator Lisa Murkowski's November
5, 2020 letter (supporting Alaska Power Association's comments).
    \127\ See supra P 99.
    \128\ See CEATI Comments at 2, 3.
    \129\ The $83 per hour figure ($87 per hour in 2021 dollars)
represents direct costs (generally labor costs) associated with
licensee staff's performance of efforts related to the changes
contemplated in the NOPR and adopted in this final rule. These costs
do not include costs for professional services, such as consulting
engineers' fees, aside from the costs associated with the licensee's
administration and execution of contracts for professional services.
Burden and cost estimates for professional services contracting are
provided in Table 2.
---------------------------------------------------------------------------

    149. Some commenters requested that ``generating equipment'' be
added to the list of project works excluded from inspections at 18 CFR
12.32. As discussed above, the Commission is not adopting this
requested modification because generating equipment is a critical
element in the passage and discharge of water through a powerhouse and
the failure of such equipment can result in operational and life safety
concerns.
    150. Some commenters requested further clarity in subpart D to
distinguish between the inspection requirements for high hazard
potential and low hazard potential project works. Because the
inspection requirements for high and low hazard potential project works
are discussed in Sec.  12.30, no revisions to 18 CFR 12.32 were made
based on this comment.
    151. A commenter requested that the Commission reconsider the
proposal to revise 18 CFR 12.33 by rescinding all previously approved
exemptions from the requirements of subpart D. The final rule does not
retain the blanket rescission of all previously approved exemptions and
instead provides that the Director of D2SI on a case-by-cases basis may
rescind a previously approved exemption for good cause shown. 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.

    152. With regard to the revised information collection activities
in 18 CFR 12.40, some commenters recommend changing the effective date
to 18 months following the date of the final rule, extending the due
date for projects not previously inspected under Part 12 from two years
to three years, limiting the Regional Engineer's ability to
unilaterally change the type of report to be filed, and further
clarifying the purpose of the preliminary report. In response to these
comments, the final rule revises Sec.  12.40(a)(2) so that the date for
a report to be filed under this subpart will be 18 months after the
rule's effective date. The final rule does not, however, change the
frequency of the required reports. As noted above, Commission staff is
confident that two years is sufficient time to complete a comprehensive
assessment and a file a report. Any potential benefits of extending
this work over a three-year period would be outweighed by the negative
impacts that would result if too much time elapses between reviewing
the project information, conducting the inspection and performing the
Potential Failure Mode Analysis and semi-quantitative risk analysis,
and preparing the report.
    153. In response to comments, the final rule revises Sec.  12.40(e)
to include a required finding of ``good cause'' for the Regional
Engineer to change the type of report due.
    154. In response to requests for further clarity regarding
preliminary reports, the Commission explains above that the preliminary
report's purpose 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 helps
the independent consultant team identify areas in the field that may
require additional attention or effort. In the NOPR, the Commission
proposed to include information about the preliminary report in Sec.
12.40(f). However, because it covers different material, the final rule
relocates the preliminary report requirement to Sec.  12.42, which is a
new, standalone section.
2. Subpart F: Owner's Dam Safety Program
    155. The addition of 18 CFR part 12, subpart F codifies existing
requirements for the preparation or collection of information. As we
explained in the NOPR, those licensees who are required to prepare an
Owner's Dam Safety Program, due to the hazard potential classification
of their licensed project(s), have already done so. When a new license
is issued for a non-constructed or previously unlicensed project, the
Commission includes a license article requiring an Owner's Dam Safety
Program if warranted. There may be situations in which a project's
hazard potential classification increases from low to either
significant or high (e.g., due to new housing development within the
hypothetical inundation area). In that case, if that licensee has no
other projects classified as significant or high (i.e., does not have
an Owner's Dam Safety Program), then the licensee would be required to
prepare a new Owner's Dam Safety Program. However, this is not expected
to occur frequently or with any regularity.
    156. The Commission received comments on 18 CFR 12.62 (General
Requirements for Owner's Dam Safety Program), including:
     Requests to clarify who from the owner's organization
should sign the Owner's Dam Safety Program;
     Recommendations to require formal documentation of any
agreement delegating the position of Chief Dam Safety Engineer or Chief
Dam Safety Coordinator to an individual outside the owner's
organization; and
     Statements that the dam safety industry may lack
sufficiently qualified individuals to perform the requirements of
subpart F.
    157. As explained above, because dam owner's organizations vary
widely in type and size, from sole proprietorships to corporations to
municipalities, it is up to each organization to determine the
appropriate signatory for the Owner's Dam Safety Program. As to
delegating the role of Chief Dam Safety Engineer or Chief Dam Safety
Coordinator to an outside party, the final rule revises Sec.  12.62(d)
to require that any such delegation of authority be documented in the
Owner's Dam Safety Program. 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, as we explain above, it is crucial that licensees accept
responsibility for, and take all reasonable steps to implement, an
effective safety program.
    158. Other comments on subpart F asked about the difference between
a review of an Owner's Dam Safety Program performed during an
independent consultant inspection and an independent external audit of
the Owner's Dam Safety Program and suggested adding provisions to
ensure the independence of the proposed auditor or peer review team.
    159. As explained above, the external audit of the Owner's Dam
Safety Program, described in 18 CFR 12.65, is distinct from the review
of the Owner's Dam Safety Program performed as part of the periodic
inspection and comprehensive assessment described in subpart D. 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. As explained above, an external audit would
generally 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 independent external
audit and a peer review of the Owner's Dam Safety Program 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 must demonstrate the independence of the auditor or peer
review team from the licensee and its affiliates.
    160. The Commission also received comments on 18 CFR 12.64 (Annual
Review and Update of the Owner's Dam Safety Program), including:
     A recommendation that the entire section be deleted, since
it appears to duplicate other information collection activities;
     A request to clarify whether the annual review of the
Owner's Dam Safety Program will take the place of the existing annual
internal audit; and
     A request to clarify to which Regional Engineer the
Owner's Dam Safety Program should be submitted for owners with dams
located in more than one Regional Office's territory.
    161. As explained above, the report on the annual review of the
Owner's Dam Safety Program should not be conflated with the Owner's
Inspection Preparation Form. The Owner's Inspection Preparation Form is
an optional form that can be completed by the owner to help their staff
prepare for a field inspection; 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.
    162. As stated above, subpart F codifies previous existing
requirements for the preparation or collection of Owner's Dam Safety
Program

information. Licensees who are required to prepare an Owner's Dam
Safety Program, due to the hazard potential classification of their
licensed project(s), have already done so. For this reason, we
estimated in the NOPR that no incremental burden or cost would result
from the proposed addition of subpart F.
    163. However, for informational purposes, this final rule now
provides burden and cost estimates for the information collection
activities associated with the Owner's Dam Safety Program. The
Commission recognizes that licensee dam safety programs vary widely
from large utilities with tens or hundreds of dams to small programs
with only a single dam. Therefore, to evaluate the burden and cost
estimates for the Owner's Dam Safety Program and to capture differences
between large and small programs, Commission staff developed separate
estimates for ``Small Programs'' and ``Large Programs,'' reflected in
Tables 1 through 3 below. The ``Small Programs'' category is intended
to represent licensees with smaller dam safety programs based on the
number of dams in their inventory (i.e., less than three high or
significant hazard potential dams). The Commission estimates that
approximately 80% of licensee dam safety programs are considered Small
Programs.
3. Subpart B: Reports and Records
    164. The minor revisions to 18 CFR part 12, subpart B require
licensees to report the rescue of any person that occurs at
hydroelectric facilities, which is in addition to the previous
requirements that licensees report public safety incidents that result
in the death or serious injury of any person.
    165. With respect to changes to subpart B's information collection
requirements, the Commission received the following comments on 18 CFR
12.10:
     A suggestion that a threshold for reporting rescues and
serious injuries should be established by excluding minor incidents not
requiring treatment at a medical facility; and
     A request to clarify the reporting requirements for safety
related incidents, including those related to changes in water levels
or flows.
    166. In response to the suggestion regarding a threshold for
reporting rescues and serious injuries, the final rule adds new Sec.
12.10(b)(4) to clarify that a serious injury includes any injury that
results in treatment at a medical facility or an on-site response by
licensee staff or another trained professional.
    167. To clarify the reporting of safety-related incidents, the
Commission explains that Sec.  12.10(b)(1) provides that an initial
report must be made promptly following any drowning or other incident
resulting in death, serious injury, or rescue that occurs at the
project works or involves project operations. The initial report can be
made by email or telephone. This is a change from the initial written
reporting requirements included in the NOPR. For consistency, the final
rule applies this same change to the reporting requirements for initial
reports of conditions affecting the safety of a project or its works,
found in Sec.  12.10(a) to make clear that initial reports can be made
by email or telephone. 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). The revisions to Sec.  12.10(b) should clarify the
reporting requirements for each type of incident. In addition, the
final rule deletes Sec.  12.10(b)(3) from the NOPR as it provided an
outdated form of hard copy submittal (newspaper clipping). The final
rule also revises Sec.  12.10(b)(3)(iii) to include in the definition
of ``project-related,'' any deaths, serious injuries, or rescues that
``involve of 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.''
4. Engineering Guidelines
    168. The Commission also received comments on the four draft
chapters of the Engineering Guidelines (Chapters 15-18) that were
issued concurrently with the NOPR. Some of these comments were similar
to those received on the NOPR and have been addressed above (e.g.,
additional cost and effort related to new requirements for preparing
preliminary reports, conducting a comprehensive assessment review
meeting, and reviewing and providing supplemental record analyses
included in draft Chapter 16 of the Engineering Guidelines). A few
commenters stated that the scope of the Potential Failure Mode Analysis
in draft Chapter 17 of the Engineering Guidelines is too encompassing
and the risk analysis process described in draft Chapter 18 of the
Engineering Guidelines goes beyond what should be required for a risk
analysis at this level of study and that both will increase costs for
licensees.
    169. Regarding the scope of the Potential Failure Mode Analysis,
the Commission carefully evaluated specific weaknesses in the current
Potential Failure Mode Analysis process identified by the Oroville
Forensic Team and their recommendations for improvements to the
process.\130\ The improvements to the Potential Failure Mode Analysis
process, described in Chapter 17 of the Engineering Guidelines, are
necessary to reduce identified shortcomings in the existing process and
to provide a comprehensive and systematic approach to identifying and
evaluating potential failure modes to discover and mitigate future dam
safety concerns and incidents.
---------------------------------------------------------------------------

    \130\ See supra note 14.
---------------------------------------------------------------------------

    170. In response to the comment that the risk analysis process
described in Chapter 18 of the Engineering Guidelines goes beyond what
should be required for a risk analysis at this level, the Commission
has reviewed risk analysis approaches and procedures used by other
federal agencies for conducting risk analysis for similar levels of
studies. The Commission has modeled the scope and detail of the Level 2
risk analysis process in Chapter 18 of the Engineering Guidelines after
the Corps and Reclamation's semi-quantitative risk analysis process
documented in their Best Practices in Dam and Levee Safety Risk
Analysis document.\131\ The scope and detail of the Level 2 risk
analysis process also closely follows the periodic risk analysis
described in FEMA's Federal Guidelines for Dam Safety Risk
Management.\132\
---------------------------------------------------------------------------

    \131\ Reclamation and the Corps, Chapter A-04 Semi-Quantitative
Risk Analysis, Best Practices in Dam and Levee Safety Risk Analysis
(July 2019). https://www.iwrlibrary.us/#/series/Best%20Practices-Manual.
    \132\ See supra note 24.
---------------------------------------------------------------------------

5. Annual Burden and Cost Estimates
    171. The Commission has considered all comments on the NOPR and the
four draft chapters of the Engineering Guidelines in estimating the
incremental burden and cost associated with the revised regulations
adopted in this final rule. Aside from adding the burden and cost
estimates associated with subpart F's Owner's Dam Safety Program for
informational purposes and updating the cost estimates to reflect 2021
dollars, no revisions were made to the burden and cost estimates
provided in the NOPR.

    172. Table 1 itemizes the estimated annual burden \133\ and direct
cost \134\ of the changes resulting from this final rule. Record
keeping requirements are included in the burden and cost estimates for
the development and collection of the data and reports. The final
rule's direct cost estimates have been updated to reflect 2021 dollars.
---------------------------------------------------------------------------

    \133\ ``Burden'' is the total time, effort, or financial
resources expended by persons to generate, maintain, retain, or
disclose or provide information to or for a Federal agency. For
further explanation of what is included in the information
collection burden, refer to Title 5 Code of Federal Regulations
1320.3.
    \134\ Direct costs are those costs (generally labor costs)
associated with the applicant's or licensee's staff in the
performance of the efforts related to the final rule. These do not
include the costs for professional services, although the direct
costs do include the costs associated with the applicant's or
licensee's administration and execution of contracts for
professional services.
---------------------------------------------------------------------------

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

    \135\ Commission staff believes that, in terms of cost for wages
and benefits, industry is similarly situated to Commission staff.
Therefore, we are using the FERC 2021 average cost (for wages plus
benefits) for one FERC full-time equivalent (FTE) of $180,703 (or
$87.00 per hour). We note that the NOPR provided cost estimates in
2020 dollars.
    \136\ As defined by 18 CFR 12.1(a)(2).
    \137\ As defined by 18 CFR 12.1(a)(1) and (a)(3).
    \138\ Revisions of 18 CFR 12.10(b)(1), 12.10(b)(2), and
12.10(b)(4) for written reports of project-related deaths, serious
injuries, or rescues at project works or involving project
operations.
    \139\ Commission staff assumes the average number of respondents
who will file a 12.10(b) public safety incident report documenting a
rescue at a hydroelectric project will equal the average number of
respondents who filed a 12.10(b) public safety incident report
documenting a death or serious injury over the 10-year period from
January 1, 2009 through December 31, 2018.
    \140\ Commission staff assumes the average number of 12.10(b)
public safety incident reports documenting rescues at hydroelectric
projects will equal the average number of 12.10(b) reports for
deaths and serious injuries over the 10-year period from January 1,
2009 through December 31, 2018.
    \141\ Commission staff estimates no incremental change in direct
costs due to the final rule change as compared to the current burden
and costs.
    \142\ Includes direct costs associated with the preparation and
submittal of Independent Consultant Team Proposals (18 CFR 12.34)
and Reports for Periodic Inspections and Comprehensive Assessments
(18 CFR 12.36 and 12.38).
    \143\ Approximately 750 project developments licensed by the
Commission will be subject to the reporting requirement changes
resulting from this final rule. This table defines a single response
as the consolidated filings associated with the typical 10-year
cycle for Independent Consultant's Safety Inspections, which would
take effect following implementation of a final rule. A single
response includes one each of the reports and other filings required
under the scope of a Periodic Inspection and a Comprehensive
Assessment. Thus, the total number of responses over a 10-year
period will be the number of projects (750), divided equally between
the ``Simple'' and ``Complex'' categories of hydroelectric
facilities.
    \144\ As previously noted, this table defines a single response
as the consolidated filings associated with the typical 10-year
cycle for Independent Consultant's Safety Inspections. Therefore,
the number of annual responses is averaged over the 10-year period,
or 0.1 responses on average per year.
    \145\ See supra note 141.
    \146\ Burden costs include hourly wages estimated based on
complexity of project, scope of inspection, experience and number of
assigned staff, and were compared to industry estimates provided by
fewer than nine industry representatives who were contacted by
Commission staff.
    \147\ 18 CFR 12.33(a) includes a provision for licensees to
submit a written request to be excluded from the requirements of
Subpart D.
    \148\ A small program is a licensee with less than three high or
significant hazard potential dams or other project works.
    \149\ Commission staff assumes the number of respondents who
will file an Owner's Dam Safety Program document will equal the
number of respondents who filed an original Owner's Dam Safety
Program document over the period from January 1, 2013, through
December 31, 2019. Commission staff estimates that 80% of the
respondents are from small programs. Thus, the total number of
responses (225) times 0.8 is the number of responses from licensees
from small programs.
    \150\ The number of annual responses is averaged over the five-
year period, or 0.2 responses on average per year.
    \151\ Burden costs include hourly wages estimated based on
complexity of project, size of program, and scope based on
Commission staff estimate.
    \152\ A large program is a licensee with three or more high or
significant hazard potential dams or other project works.
    \153\ Commission staff assumes the number of respondents who
will file an Owner's Dam Safety Program document will equal the
number of respondents who filed an original Owner's Dam Safety
Program document over the period from January 1, 2013, through
December 31, 2019. Commission staff estimates that 20% of the
respondents are from large programs. Thus, the total number of
responses (225) times 0.2 is the number of responses from licensees
from large programs.
    \154\ See supra note 149.
    \155\ See supra note 150.
    \156\ Commission staff assumes the number of respondents who
will file an Owner's Dam Safety Program document will equal the
number of respondents that filed an original Owner's Dam Safety
Program document over the period from January 1, 2013, through
December 31, 2019.
    \157\ Commission staff assumes the number of respondents who
will file an Owner's Dam Safety statement of qualification for
external audit or peer review will equal the total number of
respondents that filed an original statement of qualification for
external audit or peer review over the period from January 1, 2013,
through December 31, 2019.
    \158\ See supra note 149.
    \159\ Commission staff assumes the number of respondents that
will file an Owner's Dam Safety report of external audit or peer
review will equal the number of respondents that filed an original
Owner's Dam Safety Program report of external audit or peer review
over the period from January 1, 2013, through December 31, 2019.
Commission staff estimates that 80% of the respondents are from
small programs. Thus, the total number of responses (225) times 0.8
is the number of responses from licensees from small programs.
    \160\ Commission staff assumes the number of respondents that
will file an Owner's Dam Safety report of external audit or peer
review will equal the number of respondents that filed an original
Owner's Dam Safety Program report of external audit or peer review
over the period from January 1, 2013, through December 31, 2019.
Commission staff estimates that 20% of the respondents are from
large programs. Thus, the total number of responses (225) times 0.2
is the number of responses from licensees from large programs.
    \161\ Commission staff assumes the average number of respondents
that will file a request for an extension of time to file an Owner's
Dam Safety Program submittal will equal the average number of
respondents that filed such a request from January 1, 2013, through
December 31, 2019.

                                      Table 1--Annual Burden and Direct Cost Changes Resulting From the Final Rule
                                                             in Docket No. RM20-9-000 \135\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                       Average number                        Total number of
                                                          Number of       of annual       Average annual    annual responses   Total annual burden hours
       Type of respondent           Type of response     respondents    responses per    burden hours and    (Col. C x Col.   and cost (Col. E x Col. F)
                                                                         respondent     cost per response          D)
A.                                B..................              C.              D.  E..................                F.  G.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Applicant \136\ or Licensee       Reports of Project-        \139\ 65      \140\ 2.14  2 hrs.; $174.......               139  278 hrs.; $24,186.
 \137\.                            Related Deaths,
                                   Serious Injuries,
                                   or Rescues\138\.
Licensee of Simple Hydro          Ind. Cons. Team           \143\ 375       \144\ 0.1  0 hrs.; $0.........              37.5  0 hrs.; $0.
 Facility \141\.                   Proposals and
                                   Reports on PIs and
                                   CAs \142\.
Licensee of Complex Hydro         Ind. Cons. Team                 375             0.1  \146\ 0.6 hrs.;                  37.5  22.5 hrs.; $1,957.50.
 Facility.                         Proposals and                                        $52.20.
                                   Reports on PIs and
                                   CAs \145\.
Licensee........................  Exemption Requests               10               1  2 hrs.; $174.......                10  20 hrs.; $1,740.
                                   \147\.
Licensee of a Small Program       Owner's Dam Safety        \149\ 180       \150\ 0.2  \151\ 60 hrs.;                     36  2160 hrs.; $187,920.
 \148\ with a High or              Program (ODSP)                                       $5,220.
 Significant Hazard Potential      Document.
 Dam or Other Project Work.

Licensee of a Large Program       ODSP Document......        \153\ 45       \154\ 0.2  \155\ 120 hrs.;                     9  1080 hrs.; $93,960.
 \152\ with a High or                                                                   $10,440.
 Significant Hazard Potential
 Dam or Other Project Work.
Licensee with a High or           ODSP Document             \156\ 225               1  6 hrs.; $522.......               225  1350 hrs.; $117,450.
 Significant Hazard Potential      Revisions.
 Dam or Other Project Work.
Licensee with a High or           ODSP External Audit       \157\ 225       \158\ 0.2  2 hrs.; $174.......                45  90 hrs.; $7,830.
 Significant Hazard Potential      or Peer Review
 Dam or Other Project Work.        Qualification
                                   Statement.
Licensee of Small Program with a  ODSP External             \159\ 180             0.2  2 hrs.; $174.......                36  72 hrs.; $6,264.
 High or Significant Hazard        Audits or Peer
 Potential Dam or Other Project    Review Report.
 Work.
Licensee of Large Program with a  ODSP External              \160\ 45             0.2  2 hrs.; $174.......                 9  18 hrs.; $1,566.
 High or Significant Hazard        Audits or Peer
 Potential Dam or Other Project    Review Report.
 Work.
Licensee with a High or           ODSP Extension of           \161\ 5               1  4 hrs.; $348.......                 5  20 hrs.; $1,740.
 Significant Hazard Potential      Time Request.
 Dam or Other Project Work.
                                                      --------------------------------------------------------------------------------------------------
    Totals......................  ...................           1,730  ..............  ...................               589  5,110.5 hrs.; $444,613.50.
--------------------------------------------------------------------------------------------------------------------------------------------------------

    173. Table 2 itemizes the estimated annual burden and annual
contracting costs for professional services \162\ of the information
collections that are affected by this final rule. Record keeping
requirements are included in the burden and cost estimates for the
development and collection of the data and reports. The final rule's
cost estimates for professional services have been updated to reflect
2021 dollars.
---------------------------------------------------------------------------

    \162\ Contracting costs include costs for professional services,
including labor, travel and subsistence, and other indirect costs
incurred by the contractor or consultant. Contracting costs do not
include direct costs incurred by the applicant or licensee in the
administration or execution of the contract for professional
services; those are included in the previous table, as applicable.
    \163\ As defined by 18 CFR 12.1(a)(2).
    \164\ As defined by 18 CFR 12.1(a)(1) and (a)(3).
    \165\ Revisions of 18 CFR 12.10(b)(1), (b)(2), and (b)(4) for
written reports of project-related deaths, serious injuries, or
rescues at project works or involving project operations.
    \166\ Includes contracting costs for professional services
associated with the preparation and submittal of Independent
Consultant Team Proposals (18 CFR 12.34) and Reports for Periodic
Inspections and Comprehensive Assessments (18 CFR 12.36 and 12.38).
    \167\ Approximately 750 project developments licensed by the
Commission will be subject to the reporting requirement changes
resulting from this final rule. This table defines a single response
as the consolidated filings associated with the typical 10-year
cycle for Independent Consultant's Safety Inspections, which would
take effect following implementation of a final rule. A single
response includes one each of the reports and other filings required
under the scope of a Periodic Inspection and a Comprehensive
Assessment. Thus, the total number of responses over a 10-year
period will be the number of projects (750), divided equally between
the ``Simple'' and ``Complex'' categories of hydroelectric
facilities.
    \168\ As previously noted, this table defines a single response
as the consolidated filings associated with the typical 10-year
cycle for Independent Consultant's Safety Inspections. Therefore,
the number of annual responses is averaged over the 10-year period,
or 0.1 responses on average per year.
    \169\ Burden costs include hourly wages estimated based on
complexity of project, scope of inspection, experience and number of
assigned staff, and were compared to industry estimates provided by
fewer than nine industry representatives. 2020 cost information
escalated by five percent to 2021 costs.
    \170\ See supra note 165.
    \171\ See supra note 168.
    \172\ 18 CFR 12.33(a) includes a provision for licensees to
submit a written request to be excluded from the requirements of
subpart D.
    \173\ Commission staff assumes the number of respondents that
will file an Owner's Dam Safety Program statement of qualification
for external audit or peer review will equal the number of
respondents that filed an original statement of qualification for
external audit or peer review over the period from January 1, 2013,
through December 31, 2019.
    \174\ The number of annual responses is averaged over the five-
year period, or 0.2 responses on average per year.
    \175\ Commission staff assumes the number of respondents that
will file an Owner's Dam Safety report of audit or peer review will
equal the number of respondents who filed an original Owner's Dam
Safety Program report of audit or peer review over the period from
January 1, 2013, through December 31, 2019. Commission staff
estimates that 80% of the respondents are from small programs. Thus,
the total number of responses (225) times 0.8 is the number of
responses from licensees from small programs.
    \176\ Burden costs include hourly wages estimated based on
complexity of project, size of program, and scope based on
Commission staff estimate.
    \177\ Commission staff assumes the number of respondents who
will file an Owner's Dam Safety report of external audit or peer
review will equal the number of respondents that filed an original
Owner's Dam Safety Program report of external audit or peer review
over the period from January 1, 2013, through December 31, 2019.
Commission staff estimates that 20% of the respondents are from
large programs. Thus, the total number of responses (225) times 0.2
is the number of responses from licensees from large programs.

          Table 2--Annual Burden and Contracting Cost for Professional Services Changes Resulting From the Final Rule in Docket No. RM20-9-000
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                       Average number                        Total number of
                                                          Number of       of annual       Average annual    annual responses   Total annual burden hours
       Type of respondent           Type of response     respondents    responses per    burden hours and    (Col. C x Col.   and cost (Col. E x Col. F)
                                                                         respondent     cost per response          D)
A.                                B..................              C.              D.  E..................                F.  G.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Applicant \163\ or Licensee       Reports of Project-   There are no anticipated costs for contracted professional services affected by this final rule.
 \164\.                            Related Deaths,
                                   Serious Injuries,
                                   or Rescues \165\.
                                                      --------------------------------------------------------------------------------------------------
Licensee of Simple Hydro          Ind. Cons. Team           \167\ 375       \168\ 0.1  12 hrs.; \169\                   37.5  450 hrs.; $99,412.50.
 Facility.                         Proposals and                                        $2,651.
                                   Reports on PIs and
                                   CAs \166\.
Licensee of Complex Hydro         Ind. Cons. Team                 375             0.1  32 hrs.; \171\                   37.5  1,200 hrs.; $274,837.50.
 Facility.                         Proposals and                                        $7,329.
                                   Reports on PIs and
                                   CAs \170\.
Licensee........................  Exemption Requests    There are no anticipated costs for contracted professional services affected by this final rule.
                                   \172\.
                                                      --------------------------------------------------------------------------------------------------
Licensee of a Small Program with  ODSP Document......   There are no anticipated costs for contracted professional services affected by this final rule
 a High or Significant Hazard                                                                       change.
 Potential Dam or Other Project
 Work.
                                                      --------------------------------------------------------------------------------------------------
Licensee of a Large Program with  ODSP Document......   There are no anticipated costs for contracted professional services affected by this final rule
 a High or Significant Hazard                                                                       change.
 Potential Dam or Other Project
 Work.
                                                      --------------------------------------------------------------------------------------------------
Licensee with a High or           ODSP Document         There are no anticipated costs for contracted professional services affected by this final rule
 Significant Hazard Potential      Revisions.                                                       change.
 Dam or Other Project Work.
                                                      --------------------------------------------------------------------------------------------------
Licensee with a High or           ODSP External Audit       \173\ 225       \174\ 0.2  6 hrs; $522........                45  270 hrs; $23,490.
 Significant Hazard Potential      or Peer Review
 Dam or Other Project Work.        Qualification
                                   Statement.
Licensee of a Small Program with  ODSP External Audit       \175\ 180             0.2  60 \176\ hrs;                      36  2160 hrs; $567,000.
 a High or Significant Hazard      or Peer Review                                       $15,750.
 Potential Dam or Other Project    Report.
 Work.
Licensee of a Large Program with  ODSP External              \177\ 45             0.2  240 hrs; $75,600...                 9  2160 hrs; $680,400.
 a High or Significant Hazard      Audits or Peer
 Potential Dam or Other Project    Review Report.
 Work.
                                                      --------------------------------------------------------------------------------------------------
Licensee with a High or           ODSP Extension of     There are no anticipated costs for contracted professional services affected by this final rule
 Significant Hazard Potential      Time Request.                                                    change.
 Dam or Other Project Work.
                                                      --------------------------------------------------------------------------------------------------
    Totals......................  ...................            1200  ..............  ...................               165  6,240 hrs.; $1,645,140
--------------------------------------------------------------------------------------------------------------------------------------------------------

    174. Table 3 itemizes the estimated annual burden and total cost
(direct costs [from Table 1] and costs for contracted professional
services [from Table 2]), of the changes due to this final rule. Record
keeping requirements are included in the burden and cost estimates for
the development and collection of the data and reports.

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

    \178\ As defined by 18 CFR 12.1(a)(2).
    \179\ As defined by 18 CFR 12.1(a)(1) and (a)(3).
    \180\ Revisions of 18 CFR 12.10(b)(1), (b)(2), and (b)(4) for
written reports of project-related deaths, serious injuries, or
rescues at project works or involving project operations.
    \181\ Includes direct and contracting burden and cost.
    \182\ Includes direct costs associated with the preparation and
submittal of Independent Consultant Team Proposals (18 CFR 12.34)
and Reports for Periodic Inspections and Comprehensive Assessments
(18 CFR 12.36 and 12.38).
    \183\ Includes direct and contracting burden and cost.
    \184\ 18 CFR 12.33(a) includes a provision for Licensees to
submit a written request to be excluded from the requirements of
subpart D.
    \185\ Includes direct and contracting burden and cost.
    \186\ Includes direct and contracting burden and cost.
    \187\ Includes direct and contracting burden and cost.

                          Table 3--Total Annual Burden and Cost Changes Resulting From the Final Rule in Docket No. RM20-9-000
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                       Average number                        Total number of
                                                          Number of       of annual       Average annual    annual responses   Total annual burden hours
       Type of respondent           Type of response     respondents    responses per    burden hours and    (Col. C x Col.   and cost (Col. E x Col. F)
                                                                         respondent     cost per response          D)
A.                                B..................              C.              D.  E..................                F.  G.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Applicant \178\ or Licensee       Reports of Project-              65            2.14  2 hrs.; $174.......               139  278 hrs.; $24,186.
 \179\.                            Related Deaths,
                                   Serious Injuries,
                                   or Rescues \180\.
Licensee of Simple Hydro          Ind. Cons. Team                 375             0.1  12 hrs.; $2,651....              37.5  450 hrs.; $99,412.50.
 Facility \181\.                   Proposals and
                                   Reports on PIs and
                                   CAs \182\.
Licensee of Complex Hydro         Ind. Cons. Team                 375             0.1  32.6 hrs.;                       37.5  1,222.5 hrs.; $276,795.
 Facility \183\.                   Proposals and                                        $7,381.20.
                                   Reports on PIs and
                                   CAs.
Licensee........................  Exemption Requests               10               1  2 hrs.; $174.......                10  20 hrs.; $1,740.
                                   \184\.

Licensee of a Small Program with  ODSP Document......             180             0.2  60 hrs.; $5,220....                36  2160 hrs.; $187,920.
 a High or Significant Hazard
 Potential Dam or Other Project
 Work.
Licensee of a Large Program with  ODSP Document......              45             0.2  120 hrs.; $10,440..                 9  1080 hrs.; $93,960.
 a High or Significant Hazard
 Potential Dam or Other Project
 Work.
Licensee with a High or           ODSP Document                   225               1  6 hrs.; $522.......               225  1350 hrs.; $117,450.
 Significant Hazard Potential      Revisions.
 Dam or Other Project Work.
Licensee with a High or           ODSP External Audit             225             0.2  8 hrs.; $696.......                45  360 hrs; $31,320.
 Significant Hazard Potential      or Peer Review
 Dam or Other Project Work \185\.  Qualification
                                   Statement.
Licensee of a Small Program with  ODSP External                   180             0.2  62 hrs.; $15,924...                36  2232 hrs.; $573,264.
 a High or Significant Hazard      Audits or Peer
 Potential Dam or Other Project    Review Report.
 Work \186\.
Licensee of a Large Program with  ODSP External Audit              45             0.2  242 hrs.; $75,774..                 9  2178 hrs.; $681,966.
 a High or Significant Hazard      or Peer Review
 Potential Dam or Other Project    Report.
 Work \187\.
Licensee with a High or           ODSP Extension of                 5               1  4 hrs.; $348.......                 5  20 hrs.; $1,740.
 Significant Hazard Potential      Time Request.
 Dam or Other Project Work.
                                                      --------------------------------------------------------------------------------------------------
    Total Direct Costs &          ...................            1730  ..............  ...................               589  11,350.5 hrs.;
     Contracting Costs due to                                                                                $2,089,753.50.
     Final Rule in RM20-9-000 &
     AD20-20, -21, -22, & -23.
--------------------------------------------------------------------------------------------------------------------------------------------------------

    175. Title: FERC-517, Safety of Water Power Projects and Project
Works.
    176. Action: Revision to the scope of independent consultant safety
inspections and reports, codification of the Owner's Dam Safety
Program, and addition of reporting requirements related to public
safety incidents at hydroelectric projects.
    177. OMB Control No.: 1902-TBD.
    178. Respondents: Hydroelectric licensees (and applicants, as
applicable), including municipalities, businesses, private citizens,
and for-profit and not-for-profit institutions.
    179. Frequency of Information: On occasion, except for reports on
periodic inspections and comprehensive assessment, which must be
submitted under 18 CFR 12.40:
     For any project that was inspected in accordance with 18
CFR part 12 prior to January 1, 2022, a periodic inspection or
comprehensive assessment must be completed, and a report on it filed,
within five years of the due date of the most recent report. In
addition, the first comprehensive assessment must be completed, and the
report on it filed, by December 31, 2038.
     A licensed project development is subject to a different
set of deadlines if the development was not inspected in accordance
with 18 CFR part 12 prior to January 1, 2022, under the Commission's
rules in effect on January 1, 2020. In these circumstances, the first
comprehensive assessment and the report on it are due:
    [cir] Not later than two years after the date of issuance of the
order licensing a development or amending a license to include that
development, if the development meets the criteria specified in
Sec. Sec.  12.30(a)(1) or 12.30(a)(2), and was constructed before the
date of issuance of such order.
    [cir] Not later than five years after the date of issuance of the
order licensing that development, or amending a license to include that
development, if the development was constructed after the date of
issuance of such order.
    [cir] No later than two years after a date specified by the
Regional Engineer, for other developments that were not inspected prior
to January 1, 2022, under the Commission's rules in effect on January
1, 2020.
    180. Necessity of Information: The revisions in this final rule are
necessary to enhance the ability of Commission staff to protect the
safety of dams and the public; to reduce the risk to life, health, and
property associated with hydroelectric projects; and to comply with
guidance from FEMA's Interagency Committee on Dam Safety.
    181. Internal Review: The Commission has reviewed the revisions and
has determined that they are necessary. These requirements conform to
the Commission's need for efficient information collection,
communication, and management within the energy industry. The
Commission has specific, objective support for the burden estimates
associated with the information collection requirements.\188\
---------------------------------------------------------------------------

    \188\ Commission staff contacted fewer than nine parties to
obtain supporting information in order to benchmark burden
estimates.
---------------------------------------------------------------------------

    182. Interested persons may obtain information on the reporting
requirements by contacting the Federal Energy Regulatory Commission at
one of the following methods:
     USPS: Federal Energy Regulatory Commission, Ellen Brown,
Office of the Executive Director, 888 First Street NE, Washington, DC
20426.
     Hard copy communication other than USPS: Federal Energy
Regulatory Commission, Ellen Brown, Office of the Executive Director,
12225 Wilkins Avenue, Rockville, Maryland 20852.
     Email: [email protected].
     Phone:<PHONE_NUMBER>, or by fax:<PHONE_NUMBER>.
    183. Please send comments concerning the collection of information
and the associated burden estimates to: Office of Information and
Regulatory Affairs, Office of Management and Budget [Attention: Federal
Energy Regulatory Commission Desk Officer]. Due to security concerns,
comments should be sent directly to

www.reginfo.gov/public/do/PRAMain. Comments submitted to OMB should be
sent within 30 days of publication of this notice in the Federal
Register and refer to FERC-517 and OMB Control No. 1902-TBD.

B. Environmental Analysis

    184. The Commission is required to prepare an environmental
assessment or an environmental impact statement for any action that may
have a significant effect on the human environment.\189\ Excluded from
this requirement are rules that are clarifying, corrective, or
procedural, or that do not substantially change the effect of
legislation or the regulations being amended.\190\ This final rule
revises the Commission's dam safety regulations by incorporating a two-
tier structure for independent consultant safety inspections, codifying
guidance requiring licensees to develop an owner's dam safety program
and a public safety plan; expanding the scope of public safety incident
reporting; and incorporating various minor revisions. Because this
final rule does not substantially change the effect of the Commission's
part 12 regulations, preparation of an environmental assessment or
environmental impact statement is not required.
---------------------------------------------------------------------------

    \189\ Regulations Implementing the National Environmental Policy
Act of 1969, Order No. 486, 52 FR 47897 (Dec. 17, 1987), FERC Stats.
& Regs. ] 30,783 (1987) (cross-referenced at 41 FERC ] 61,284).
    \190\ 18 CFR 380.4(a)(2)(ii) (2021).
---------------------------------------------------------------------------

C. Regulatory Flexibility Act

    185. The Regulatory Flexibility Act of 1980 (RFA) \191\ generally
requires a description and analysis of final rules that will have
significant economic impact on a substantial number of small entities.
The RFA mandates consideration of regulatory alternatives that
accomplish the stated objectives of a final rule and minimize any
significant economic impact on a substantial number of small
entities.\192\ In lieu of preparing a regulatory flexibility analysis,
an agency may certify that a final rule will not have a significant
economic impact on a substantial number of small entities.\193\
---------------------------------------------------------------------------

    \191\ 5 U.S.C. 601-612.
    \192\ Id. 603(c).
    \193\ Id. 605(b).
---------------------------------------------------------------------------

    186. The Small Business Administration's (SBA) Office of Size
Standards develops the numerical definition of a small business.\194\
The SBA size standard for electric utilities is based on the number of
employees, including affiliates.\195\ Under SBA's current size
standards, a hydroelectric power generator (NAICS code 221111) \196\ is
small if, including its affiliates, it employs 500 or fewer
people.\197\
---------------------------------------------------------------------------

    \194\ 13 CFR 121.101 (2021).
    \195\ Id. 121.201.
    \196\ The North American Industry Classification System (NAICS)
is an industry classification system that Federal statistical
agencies use to categorize businesses for the purpose of collecting,
analyzing, and publishing statistical data related to the U.S.
economy. United States Census Bureau, North American Industry
Classification System, https://www.census.gov/eos/www/naics/.
    \197\ 13 CFR 121.201 (Sector 22--Utilities).
---------------------------------------------------------------------------

    187. The final rule's revisions to part 12, subpart D would
directly affect all licensees that are currently required to file
independent consultant safety inspection reports. Since the number of
licensed projects per respondent varies from one to more than 50, the
number of respondents does not correlate directly to the number of
responses. Based on data over the preceding 10-year-period, Commission
staff estimated the expected number of responses from entities that
qualify as small. In total, approximately 132 entities qualify as small
and would be expected to file approximately 225 responses (30%) with
the Commission over the 10-year cycle. The remaining 525 responses
(70%) would be filed by 106 entities that do not qualify as small.
    188. The Commission notes that the projects owned by entities that
qualify as small entities are typically smaller and/or less complex
than those owned by large entities. Thus, the annual incremental cost
to small entities would likely skew towards the ``Simple Hydroelectric
Facility'' category presented in the burden estimates provided above in
the Information Collection Statement section.\198\ In addition, this
final rule incorporates provisions that grant Commission staff the
authority, upon demonstration by the licensee and Commission review and
acceptance of appropriate justification, to waive or reduce the scope
of specific components of an independent consultant safety inspection
(e.g., waiving the requirement to perform a Potential Failure Mode
Analysis or risk analysis) or to change the type of inspection report
(e.g., by allowing an inspection scheduled as a comprehensive
assessment to be performed instead as a periodic inspection). The
Commission has included these provisions to focus effort on those
projects that present greater risk to life, health, and property, and
to alleviate the potential economic impact on licensees of simple
projects that present less risk. Since the burden estimates include all
components of an independent consultant safety inspection, utilization
of these provisions may result in a lower incremental cost for small
entities.
---------------------------------------------------------------------------

    \198\ See discussion and accompanying tables supra Part V.A.
---------------------------------------------------------------------------

    189. The addition of part 12, subpart F, which codifies the Owner's
Dam Safety Program, would apply only to entities that are responsible
for one or more projects classified as having a high hazard potential.
The Commission expects the Owner's Dam Safety Program to improve
communication and understanding within licensee organizations as to
their responsibilities for ensuring dam safety and protection of the
public, and may contribute to an increased likelihood that preventable
dam safety issues are caught and addressed before they present an
imminent danger to life safety or property. Because those licensees
required to prepare an Owner's Dam Safety Program due to their
project's hazard potential classification have already done so,\199\
the Commission does not anticipate that the addition of subpart F will
be unduly burdensome on licensees, regardless of their status as a
small or large entity.
---------------------------------------------------------------------------

    \199\ See supra P 155.
---------------------------------------------------------------------------

    190. With respect to the filing of public safety incidents
involving the rescue of any person at a hydroelectric facility, the
Commission estimates that most affected entities qualify as small
entities. But, as reflected in the burden and cost estimates provided
above, the Commission expects an additional two burden hours (and
corresponding $166, an amount that would not be considered significant)
for licensees or applicants, regardless of their status as small or
large.
    191. While the revisions to subpart D may have some increased
economic impact on a limited number of small entities, these
improvements to the independent consultant safety inspection process
are necessary, and the associated costs justified, by the Commission's
Congressionally-mandated mission to ensure the protection of life,
health, and property from risks associated with licensed hydroelectric
facilities. In addition, the revisions to subpart D are intended to
help prevent future dam safety incidents that could potentially result
in significant economic impacts on small entities (e.g., financial
costs associated with causing life loss or property damage, major
project repairs, lost revenue due to the inability to operate the
project, etc.).
    192. In summary, based on the estimated costs included in Table 3
above, the estimated economic impacts on small entities as a result of
the final

rule could range from approximately $174 (for the submittal of a one-
time request for an exemption from part 12, subpart D) to over $7,380
per year for each complex project. A representative cost for a typical
small entity with one or more simple projects would be approximately
$2,650 per year per project subject to part 12, subpart D.\200\
Commission staff estimates that over 80% of the small entities have two
or fewer projects subject to subpart D. The above estimates do not
include the burden and cost associated with the Owner's Dam Safety
Program as those licensees required to prepare an Owner's Dam Safety
Program have already done so. Generally, however, the estimated costs
associated with the Owner's Dam Safety Program for small entities could
range from approximately $3,850 per year for a small program to
approximately $15,825 per year for a large program. Commission staff
estimates that ninety percent of the small entities have small
programs.
---------------------------------------------------------------------------

    \200\ Commission staff estimates that more than half of the 132
small entities have one or more simple projects and no complex
projects.
---------------------------------------------------------------------------

    193. Accordingly, pursuant to section 605(b) of the RFA, the
Commission certifies that this final rule will not have a significant
economic impact on a substantial number of small entities.

D. Document Availability

    194. In addition to publishing the full text of this document in
the Federal Register, the Commission provides all interested persons an
opportunity to view and print the contents of this document via the
internet through the Commission's Home Page (http://www.ferc.gov). At
this time, the Commission has suspended access to the Commission's
Public Reference Room due to the President's March 13, 2020
proclamation declaring a National Emergency concerning the Novel
Coronavirus Disease (COVID-19).
    195. From the Commission's Home Page on the internet, this
information is available on eLibrary. The full text of this document is
available on eLibrary in PDF and Microsoft Word format for viewing,
printing, and/or downloading. To access this document in eLibrary, type
the docket number excluding the last three digits of this document in
the docket number field.
    196. User assistance is available for eLibrary and the Commission's
website during normal business hours from the Commission's Online
Support at<PHONE_NUMBER> (toll free at 1-866-208-3676) or email at
[email protected], or the Public Reference Room at (202) 502-
8371, TTY<PHONE_NUMBER>. Email the Public Reference Room at
[email protected].

E. Effective Date and Congressional Notification

    197. These regulations are effective April 11, 2022. The Commission
has determined, with the concurrence of the Administrator of the Office
of Information and Regulatory Affairs of OMB, that this rule is not a
major rule as defined in section 251 of the Small Business Regulatory
Enforcement Fairness Act of 1996.\201\ This rule is being submitted to
the Senate, House, Government Accountability Office, and Small Business
Administration.
---------------------------------------------------------------------------

    \201\ 5 U.S.C. 804(2).
---------------------------------------------------------------------------

List of Subjects in 18 CFR Part 12

    Electric power, Reporting and recordkeeping requirements, Safety.

    By direction of the Commission. Commissioner Phillips is not
participating.

    Issued: December 16, 2021.
Debbie-Anne A. Reese,
Deputy Secretary.

    In consideration of the foregoing, the Federal Energy Regulatory
Commission amends part 12, chapter I, title 18, Code of Federal
Regulations, as follows:

PART 12--SAFETY OF WATER POWER PROJECTS AND PROJECT WORKS

0
1. The authority citation for part 12 is revised to read as follows:

    Authority:  16 U.S.C. 791a-825r; 42 U.S.C. 7101-7352.

Subpart A--General Provisions

0
2. Amend Sec.  12.3 by:
0
a. Revising paragraphs (b)(3), (b)(4) introductory text, and
(b)(4)(ii), (v), and (xi);
0
b. Redesignating paragraph (b)(4)(xiii) as (b)(4)(xix);
0
c. Adding a new paragraph (b)(4)(xiii);
0
d. Redesignating paragraph (b)(11) as (b)(14);
0
e. Adding new paragraph (b)(11), (12) and (13).
    The revisions and additions read as follows:

Sec.  12.3   Definitions.

* * * * *
    (b) * * *
    (3) Authorized Commission representative means the Director of the
Office of Energy Projects, the Director of the Division of Dam Safety
and Inspections, the Regional Engineer, or any other member of the
Commission staff whom the Commission may specifically designate.
    (4) Condition affecting the safety of a project or project works
means any condition, event, or action at the project which might
compromise the safety, stability, or integrity of any project work or
the ability of any project work to function safely for its intended
purposes, including navigation, water power development, or other
beneficial public uses, including recreation; or which might otherwise
adversely affect life, health, or property. Conditions affecting the
safety of a project or project works include, but are not limited to:
* * * * *
    (ii) Failure of, misoperation of, or failure to operate when
attempted any facility that controls the release or storage of
impounded water, such as a gate or a valve;
* * * * *
    (v) Internal erosion, piping, slides, or settlements of materials
in any dam, foundation, abutment, dike, or embankment;
* * * * *
    (xi) Security incidents (physical and/or cyber);
* * * * *
    (xiii) Overtopping of any dam, abutment, or water conveyance;
* * * * *
    (11) Water conveyance means any canal, penstock, tunnel, flowline,
flume, siphon, or other project work, constructed or natural, which
facilitates the movement of water for the generation of hydropower,
environmental benefit, or other purpose required by the project
license.
    (12) Owner's Dam Safety Program means the written document that
formalizes a licensee's dam safety program, including, but not limited
to, the licensee's dam safety policies; objectives; expectations;
responsibilities; training program; communication, coordination, and
reporting; record keeping; succession planning; continuous improvement;
and audits and assessments.
    (13) Hazard potential for any dam or water conveyance is a
classification based on the potential consequences in the event of
failure or misoperation of the dam or water conveyance, and is
subdivided into categories (e.g., Low, Significant, High).
    (i) High hazard potential generally indicates that failure or
misoperation will probably cause loss of human life.
    (ii) Significant hazard potential generally indicates that failure
or misoperation will probably not cause loss of human life but may have
some amount of economic, environmental, or other consequences.

    (iii) Low hazard potential generally indicates that failure or
misoperation will probably not cause loss of human life but may have
some amount of economic, environmental, or other consequences,
typically limited to project facilities.
* * * * *

0
3. Amend Sec.  12.4 by:
0
a. Revising paragraphs (b)(1)(i), (b)(2)(ii)(B), and (b)(2)(iii)(A) and
(B);
0
b. Adding paragraphs (b)(2)(iii)(C) and (D);
0
c. Adding paragraphs (b)(2)(iii)(C) and (D);
0
d. Revising paragraphs (c)(1), (c)(2) introductory text, and (c)(3);
and
0
e. Adding paragraph (d).
    The revisions and addition read as follows:

Sec.  12.4   Staff administrative responsibility and supervisory
authority.

* * * * *
    (b) * * *
    (1) * * *
    (i) Achieving or protecting the safety, stability, security, and
integrity of the project works or the ability of any project work to
function safely for its intended purposes, including navigation, water
power development, or other beneficial public uses; or
    (ii) * * *
    (2) * * *
    (ii) * * *
    (B) Any condition affecting the safety of a project or project
works or any death, serious injuries, or rescues that occur at, or
might be attributable to, the water power project;
    (iii) * * *
    (A) Any emergency action plan filed under subpart C of this part;
    (B) Any Owner's Dam Safety Program filed under subpart F of this
part;
    (C) Any plan of corrective measures, including related schedules,
submitted after the report of an independent consultant pursuant to
Sec.  12.36 or Sec.  12.38 or any other inspection report; or
    (D) Any public safety plan filed under Sec.  12.52(b).
* * * * *
    (c) * * *
    (1) Any order or directive issued under this part by a Regional
Engineer or other authorized Commission representative may be appealed
to the Commission under Sec.  385.207 of this chapter.
    (2) Any order or directive issued under this part by a Regional
Engineer or other authorized Commission representative is immediately
effective and remains in effect until:
* * * * *
    (3) An appeal or motion for rescission, amendment, or stay of any
order or directive issued under this part must contain a full
explanation of why granting the appeal or the request for rescission or
amendment of the order or directive, or for stay for the period
requested, will not endanger life, health, or property.
    (d) Failure to comply. If a licensee fails to comply with any order
or directive issued under this part by the Commission, a Regional
Engineer, or other authorized Commission representative, the licensee
may be subject to sanctions, including, but not limited to, civil
penalties, orders to cease generation, or license revocation.

Subpart B--Reports and Records

0
4. Amend Sec.  12.10 by revising paragraph (a)(1), the first sentence
of paragraph (a)(2), and paragraph (b) to read as follows:

Sec.  12.10   Reporting safety-related incidents.

    (1) * * * Initial reports. An applicant or licensee must report by
email or telephone to the Regional Engineer any condition affecting the
safety of a project or projects works, as defined in Sec.  12.3(b)(4).
The initial report must be made as soon as practicable after that
condition is discovered, preferably within 72 hours, without unduly
interfering with any necessary or appropriate emergency repair, alarm,
or other emergency action procedure.
    (2) * * * Following the initial report required in paragraph
(a)(1), the applicant or licensee must submit to the Regional Engineer
a written report on the condition affecting the safety of the project
or project works verified in accordance with Sec.  12.13. * * *
* * * * *
    (b) Deaths, serious injuries, or rescues. (1) Initial reports. An
applicant or licensee must report to the Regional Engineer any drowning
or other incident resulting in death, serious injury, or rescue that
occurs at the project works or involves project operation. The initial
report must be made promptly after the incident is discovered, may be
provided via email or telephone, and must include a description of the
cause and location of the incident.
    (2) Written reports. Following the initial report required in
paragraph (b)(1), the applicant or licensee must submit to the Regional
Engineer a written report.
    (i) For any death, serious injury, or rescue that is considered or
alleged to be project-related, or occurs at the project works, the
applicant or licensee must submit to the Regional Engineer a written
report that describes any remedial actions taken or proposed to avoid
or reduce the chance of similar occurrences in the future. The written
report must be verified in accordance with Sec.  12.13.
    (ii) For any death that is not project-related, the applicant or
licensee may report the death by providing a copy of an article from
print or electronic media or a report from a law enforcement agency, if
available.
    (iii) Serious injuries and rescues that are not project-related do
not require a written report.
    (3) For the purposes of this paragraph (b), project-related
includes any deaths, serious injuries, or rescues that:
    (i) Involve a project dam, spillway, intake, outlet works,
tailrace, power canal, powerhouse, powerline, other water conveyance,
or other appurtenances;
    (ii) Involve changes in water levels or flows caused by generating
units, project gates, or other flow regulating equipment;
    (iii) 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; or
    (iv) Are otherwise attributable to project works and/or project
operations.
    (5) For the purposes of this paragraph (b), serious injury includes
any injury that results in treatment at a medical facility or a
response by licensee staff or another trained professional.

0
5. Amend Sec.  12.12 by revising paragraphs (a)(1)(ii) and (b)(3) and
adding paragraph (d) to read as follows:

Sec.  12.12   Maintenance of records.

    (a) * * *
    (1) * * *
    (ii) Instrumentation observations and data collected during
construction, operation, or maintenance of the project, including
continuously maintained tabular records and graphs illustrating the
data collected pursuant to Sec.  12.51; and
* * * * *
    (b) * * *
    (3) In accordance with the provisions of part 125 of this chapter,
the applicant or licensee may select its own storage media to maintain
original records or record copies at the project site, provided that
appropriate equipment is available to view the records.
* * * * *
    (d) Provision of records. If the project is subject to subpart D of
this part, or if requested by the Regional Engineer, the applicant or
licensee must provide to the Regional Engineer physical and electronic
copies of the documents

listed in paragraph (a)(1) of this section, except as provided in
paragraph (a)(2) of this section.

Subpart C--Emergency Action Plans

Sec.  12.20  [Amended]

0
6. Amend Sec.  12.20 in paragraph (a) by removing the words ``three
copies of''.

Sec.  12.22  [Amended]

0
7. Amend Sec.  12.22 as follows:
0
a. In paragraph (a)(1) introductory text, remove the phrase ``conform
with the guidelines established, and from time to time revised, by the
Director of the Office of Energy Projects (available from the division
of Inspections or the Regional Engineer) to''; and
0
b. In paragraph (a)(2) introductory text, remove ``conforming with the
guidelines established by the Director of the Office of Energy
Projects''.

Sec.  12.24  [Amended]

0
8. Amend Sec.  12.24 in paragraph (c)(3) by removing the words ``three
copies of''.

0
9. Revise subpart D to read as follows:
Subpart D--Review, Inspection, and Assessment by Independent Consultant
Sec.
12.30 Applicability.
12.31 Definitions.
12.32 General inspection requirement.
12.33 Exemption.
12.34 Approval of independent consultant team.
12.35 Periodic inspection.
12.36 Report on a period inspection.
12.37 Comprehensive assessment.
12.38 Report on a comprehensive assessment.
12.39 Evaluation of spillway adequacy.
12.40 Time for inspections and reports.
12.41 Corrective measures.
12.42 Preliminary reports.

Subpart D--Review, Inspection, and Assessment by Independent
Consultant

Sec.  12.30   Applicability.

    This subpart D applies to any licensed project development that:
    (a) Has a dam
    (1) That is more than 32.8 feet (10 meters) in height above
streambed, as defined in Sec.  12.31(c); or
    (2) With an impoundment gross storage capacity of more than 2,000
acre-feet (2.5 million cubic meters), as defined in Sec.  12.31(d);
    (b) Has a project work (dam or water conveyance) or any portion
thereof that has a high hazard potential, as defined in Sec.
12.3(b)(13)(i); or
    (c) Is determined by the Regional Engineer or other authorized
Commission representative to require inspection by an independent
consultant under this subpart D.

Sec.  12.31   Definitions.

    For purposes of this subpart D:
    (a) Independent consultant means any person who:
    (1) Is a licensed professional engineer;
    (2) Has at least 10 years of experience and expertise in dam design
and construction and in the investigation of the safety of existing
dams;
    (3) Is not an employee of the licensee or its affiliates;
    (4) Has not been an employee of the licensee or its affiliates
within two years prior to performing engineering and/or scientific
services for an inspection or assessment under this subpart D; and
    (5) Has not been an agent acting on behalf of the licensee or its
affiliates, prior to performing engineering and/or scientific services
for an inspection or assessment under this subpart D.
    (b) An independent consultant team means a group of one or more
people that:
    (1) Includes at least one independent consultant, as defined in
paragraph (a) of this section;
    (2) Includes additional qualified engineering and scientific
professionals as supporting team members, as needed, who meet the
requirements of paragraphs (a)(3) through (5) of this section;
    (3) Has demonstrable experience and expertise in dam design,
construction, and the evaluation and assessment of the safety of
existing dams and their appurtenances, commensurate with the scale,
complexity, and relevant technical disciplines of the project and type
of review, inspection, and assessment being performed (periodic
inspection or comprehensive assessment, as defined in this section).
    (c) Height above streambed means:
    (1) For a dam with a spillway, the vertical distance from the
lowest elevation of the natural streambed at the downstream toe of the
dam to the maximum water storage elevation possible without any
discharge from the spillway. The maximum water storage elevation is:
    (i) For gated spillways, the elevation of the tops of the gates;
and
    (ii) For ungated spillways, the elevation of the spillway crest or
the top of any flashboards, whichever is higher.
    (2) For a dam without a spillway, the vertical distance from the
lowest elevation of the natural streambed at the downstream tow of the
dam to the lowest point on the crest of the dam.
    (d) Gross storage capacity means the maximum possible volume of
water impounded by a dam with zero spill, that is, without the
discharge of water over the dam or a spillway.
    (e) Periodic inspection means an inspection that meets the
requirements of Sec.  12.35 and is performed by an independent
consultant team.
    (f) Comprehensive assessment means a project review, inspection,
and assessment that meets the requirements of Sec.  12.37 and is
performed by an independent consultant team.
    (g) Previous Part 12D Inspection means the most recent inspection
performed in accordance with the provisions of this subpart D (a
periodic inspection, comprehensive assessment, or an inspection
performed in accordance with the rules established by Order 122).
    (h) Previous Part 12D Report means the report on the Previous Part
12D Inspection.

Sec.  12.32   General inspection requirement.

    The project works of each development to which this subpart
applies, excluding transmission and transformation facilities, must be
inspected on a periodic basis by an independent consultant team to
identify any actual or potential deficiencies that might endanger life,
health, or property, including deficiencies that may be in the
condition of those project works or in the quality or adequacy of
project maintenance, safety, methods of operation, analyses, and other
conditions. A report must be prepared by the independent consultant
team, by or under the direction of at least one independent consultant,
who may be a member of a consulting firm, to document the findings and
evaluations made during their inspection. The inspection must be
performed by the independent consultant team, and the report must be
filed by the licensee, in accordance with the procedures in this
subpart D. The licensee must ensure that the independent consultant
team's report meets all of the requirements set forth in this subpart
D.

Sec.  12.33   Exemption.

    (a) Upon written request from the licensee, the Director of the
Division of Dam Safety and Inspections may grant an exemption from the
requirements of this subpart D in circumstances that clearly establish
good cause for exemption.
    (b) Good cause for exemption may include the finding that the
development in question has no dam, canal, or other water conveyance
except those that meet the criteria for low hazard potential as defined
in Sec.  12.3(b)(13)(iii).

    (c) The Director of the Division of Dam Safety and Inspections, for
good cause shown, may rescind any exemption from this subpart D granted
by the Director, and may require that a comprehensive assessment be
completed prior to considering a subsequent request for exemption from
the licensee.

Sec.  12.34   Approval of independent consultant team.

    (a) The licensee must obtain written approval of the independent
consultant team, and the facilitator(s) for a potential failure mode
analysis or risk analysis, from the Director of the Division of Dam
Safety and Inspections, prior to the performance of a periodic
inspection or comprehensive assessment under this subpart D.
    (b) At least 180 days prior to performing a periodic inspection or
comprehensive assessment under this subpart D, the licensee must submit
to the Director of the Division of Dam Safety and Inspections, with a
copy to the Regional Engineer, a detailed part 12D inspection plan that
includes an independent consultant team proposal that describes the
technical disciplines and level of expertise required to perform the
inspection.
    (1) If the independent consultant team comprises one person, the
detailed independent consultant team proposal must:
    (i) Describe the experience of the independent consultant; and
    (ii) Show that the independent consultant meets the requirements as
defined in Sec. Sec.  12.31(a) and 12.31(b)(3).
    (2) If the independent consultant team comprises more than one
person, the detailed independent consultant team proposal must:
    (i) Designate one or more persons to serve as independent
consultant(s);
    (ii) Describe the experience of each member of the independent
consultant team;
    (iii) Show that each independent consultant meets the requirements
as defined in Sec.  12.31(a);
    (iv) Show that each member of the independent consultant team who
is not designated as an independent consultant meets the requirements
as defined in Sec.  12.31(a)(3) through (5); and
    (v) Show that the independent consultant team meets the
requirements as defined in Sec.  12.31(b)(3).
    (3) If any member of the independent consultant team has performed
or substantially contributed to any previous investigation, analysis,
or other work product that is required to be reviewed and evaluated by
the independent consultant team as part of the inspection being
performed, the independent consultant team proposal must include a
clear delineation of roles and responsibilities that ensures no team
member will be responsible for reviewing and evaluating their own
previous work.
    (4) If required information about any supporting team member(s) is
not available at the time the independent consultant team proposal is
submitted to the Director of the Division of Dam Safety and
Inspections, the independent consultant team proposal must state that
the information will be provided in the preliminary report required by
Sec.  12.42.
    (5) The 180-day period in paragraph (b) is measured from the
scheduled date of the physical field inspection, potential failure mode
analysis, or risk analysis, whichever occurs first.
    (c) Regardless of experience and qualifications, any independent
consultant may be disapproved by the Director of the Division of Dam
Safety and Inspections for good cause, such as having had one or more
reports on an inspection under this subpart D rejected by the
Commission within the preceding five years.
    (d) The Director of the Division of Dam Safety and Inspections may,
for good cause shown, grant a waiver of the 10-year requirement in
Sec.  12.31(a)(2). Any petition for waiver under this paragraph must be
filed in accordance with Sec.  385.207 of this chapter.

Sec.  12.35   Periodic inspection.

    A periodic inspection must include:
    (a) Review of prior reports. The independent consultant team must
review and consider all relevant reports on the safety of the
development made by or written under the direction of Federal or state
agencies, submitted under Commission regulations, or made by other
consultants. The licensee must provide to the independent consultant
team all information and reports necessary to fulfill the requirements
of this section. The independent consultant team must perform
sufficient review to have, at the time of the periodic inspection, a
full understanding of the design, construction, performance, condition,
upstream and downstream hazard, monitoring, operation, and potential
failure modes of the project works.
    (b) Physical field inspection. The independent consultant team must
perform a physical field inspection of accessible project works,
including galleries, adits, vaults, conduits, earthen and concrete-
lined spillway chutes, the exterior of water conveyances, and other
non-submerged project works that may require specialized access to
facilitate inspection. The inspection shall include review and
assessment of all relevant data concerning:
    (1) Settlement;
    (2) Movement;
    (3) Erosion;
    (4) Seepage;
    (5) Leakage;
    (6) Cracking;
    (7) Deterioration;
    (8) Hydraulics;
    (9) Hydrology;
    (10) Seismicity;
    (11) Internal stress and hydrostatic pressures in project
structures and their foundations and abutments;
    (12) The condition and performance of foundation drains, dam body
drains, relief wells, and other pressure-relief systems;
    (13) The condition and performance of any post-tensioned anchors
installed, and other major modifications completed, to improve the
stability of project works;
    (14) The stability of critical slopes adjacent to a reservoir or
project works; and
    (15) Regional and site geological conditions.
    (c) Review of surveillance and monitoring plan and data. The
independent consultant team must:
    (1) Review the surveillance procedures, instrumentation layout,
installation details, monitoring frequency, performance history, data
history and trends, and relevance to potential failure modes; and
    (2) Review the frequency and scope of other surveillance
activities.
    (d) Review of dam and public safety programs. The independent
consultant team must review the programs specified in this paragraph.
    (1) Hazard potential. The independent consultant team must review
the potential inundation area and document any significant changes in
the magnitude and location of the population at risk since the previous
inspection under this subpart D.
    (2) Emergency Action Plan. If the project development is subject to
subpart C of this part, the independent consultant team must review the
emergency action plan, including the emergency action plan document
itself, the licensee's training program, and any related time-
sensitivity assessment(s).
    (3) Public Safety Program. The independent consultant team must
review the public access restrictions and public safety warning signs
and devices near the project works pursuant to Sec.  12.52.
    (4) Owner's Dam Safety Program. If the project is subject to
subpart F of this part, the independent consultant team

must review the implementation of the licensee's Owner's Dam Safety
Program with respect to the project development being inspected under
this subpart D.

Sec.  12.36   Report on a periodic inspection.

    (a) Scope. The report must include documentation of all the items
listed in Sec.  12.35.
    (b) Specific evaluation. The report must include specific
evaluation of:
    (1) The history of performance of the project works through visual
observations, analysis of data from monitoring instruments, and
previous inspections;
    (2) The quality and adequacy of maintenance, surveillance, methods
of project operations, and risk reduction measures for the protection
of public safety and continued project operation;
    (3) Potential failure modes, including:
    (i) Each identified potential failure mode associated with the
project works and whether any potential failure mode is active or
developing; and
    (ii) Whether any inspection observations or other conditions
indicate that an unidentified potential failure mode is active,
developing, or is of sufficient concern to warrant development through
a supplemental potential failure mode analysis;
    (4) Whether any observed conditions warrant reconsideration of the
current hazard potential classification; and
    (5) The adequacy of the project's:
    (i) Emergency action plan;
    (ii) Public safety program; and
    (iii) Implementation of the Owner's Dam Safety Program with respect
to the project development being inspected under this subpart D.
    (c) Changes since the previous inspection. The report must include
a status update and evaluation of any changes since the Previous Part
12D Inspection concerning:
    (1) Hydrology. Identify any events that may affect the conclusions
of the hydrologic or hydraulic analyses of record and evaluate the
effect on the safety and stability of project works.
    (2) Seismicity. Identify any seismic events that may affect the
conclusions of the seismicity analyses of record and evaluate the
effect on the safety and stability of project works.
    (3) Modifications to project works. Identify any modifications made
to project works and evaluate the performance thereof with respect to
the design intent.
    (4) Methods of operation. Describe any changes to standard
operating procedures, equipment available for project operation, and
evaluate the effect on the safety and stability of project works.
    (5) Results of special inspections. Summarize the findings of any
special inspections (dive inspection, rope-access gate inspection, toe
drain inspection, etc.), if any.
    (6) Previous recommendations. List and document the status of
recommendations made by the independent consultant(s) in the Previous
Part 12D Report, and any earlier recommendations that remained
incomplete at the time of the Previous Part 12D Report.
    (7) Outstanding studies and studies completed since the previous
inspection. List and document the status of any studies completed since
the Previous Part 12D Inspection and those that remain outstanding at
the time of the periodic inspection.
    (d) Recommendations. Based on the independent consultant team's
field observations, evaluations of the project works, and the
maintenance, surveillance, and methods of operation of the development,
the report must contain recommendations by the independent
consultant(s) regarding:
    (1) Any corrective measures, described in Sec.  12.41, necessary
for the structures, maintenance or surveillance procedures, or methods
of operation of the project works;
    (2) A reasonable time to carry out each corrective measure; and
    (3) Any new or additional monitoring instruments, periodic
observations, special inspections, or other methods of monitoring
project works or conditions that may be required.
    (e) Dissenting views. If the inspection and report were conducted
and prepared by more than one independent consultant, the report must
clearly identify and describe any dissenting views concerning the
evaluations or recommendations of the report that might be held by any
individual consultant.
    (f) List of participants. The report must identify all professional
personnel who have participated in the inspection of the project or in
preparation of the report and the independent consultant(s) who
directed those activities.
    (g) Statement of independence. Each independent consultant
responsible for the report must declare that all conclusions and
recommendations in the report are made independently of the licensee,
its employees, and its representatives.
    (h) Signature. The report must be signed and sealed, with a
professional engineer's seal, by each independent consultant
responsible for the report.

Sec.  12.37   Comprehensive assessment.

    A comprehensive assessment must include:
    (a) Review of prior reports and analyses of record. The independent
consultant team must review and consider all relevant reports on the
safety of the development made by or written under the direction of
Federal or state agencies, submitted under Commission regulations, or
made by other consultants. The licensee must provide to the independent
consultant team all information, reports, and analyses of record
necessary to fulfill the requirements of this section.
    (1) In addition to the requirements of Sec.  12.35(a), the
independent consultant team must have a full understanding of the risk
associated with the project works.
    (2) The independent consultant team shall perform a detailed review
of the as-built drawings; monitoring data; and the methods,
assumptions, calculations, results, and conclusions of the analyses of
record pertaining to:
    (i) Geology and seismicity;
    (ii) Hydrology and hydraulics;
    (iii) Stability and structural integrity of project works; and
    (iv) Any other analyses relevant to the safety, stability, and
operation of project works.
    (b) Physical field inspection. The independent consultant team must
perform a physical field inspection that complies with Sec.  12.35(b).
    (c) Review of surveillance and monitoring plan and data. The
independent consultant team must perform a review of surveillance and
monitoring plan and data that complies with Sec.  12.35(c).
    (d) Review of dam and public safety programs. The independent
consultant team must perform a review of dam and public safety programs
that complies with Sec.  12.35(d).
    (e) Supporting Technical Information Document. The comprehensive
assessment shall include a review of the Supporting Technical
Information Document.
    (f) Potential failure mode analysis. The comprehensive assessment
shall include a potential failure mode analysis.
    (g) Risk analysis. The comprehensive assessment shall include a
risk analysis. The Regional Engineer may, for good cause shown, grant a
waiver of the requirement to complete a risk analysis. Any petition for
waiver under this paragraph must be filed in accordance with Sec.
385.207 of this chapter.

Sec.  12.38   Report on a comprehensive assessment.

    (a) Scope. The comprehensive assessment report must include
documentation of all the items listed in Sec.  12.37.
    (b) Specific evaluation. In addition to the items listed in Sec.
12.36(b)(1) through Sec.  12.36(b)(5), the comprehensive assessment
report must evaluate:
    (1) The adequacy of spillways, including the effects of overtopping
of nonoverflow structures, as described in Sec.  12.39;
    (2) The structural adequacy and stability of structures under all
credible loading conditions;
    (3) The potential for internal erosion and/or piping of
embankments, foundations, and abutments;
    (4) The design and construction practices used during original
construction and subsequent modifications, in comparison with the
industry best practices in use at the time of the inspection under this
subpart D;
    (5) The adequacy of the Supporting Technical Information Document
and the attached electronic records; and
    (6) The adequacy and findings of the potential failure mode
analysis and risk analysis report(s).
    (c) Analyses of record. The comprehensive assessment report must
include the independent consultant team's evaluation of the
assumptions, methods, calculations, results, and conclusions of the
items listed in Sec.  12.37(a)(2)(i) through (iv). The evaluation must:
    (1) Address the accuracy, relevance, and consistency with the
current state of the practice of dam engineering;
    (2) Be accompanied by sufficient documentation of the independent
consultant team's rationale, including, as needed, new calculations by
the independent consultant team to verify that the assumptions,
methods, calculations, results, and conclusions in the analyses of
record are correct; and
    (3) If the independent consultant team is unable to review the
analyses of record for any of the items listed in Sec.  12.37(a)(2)(i)
through (iv); or if the independent consultant team disagrees with the
assumptions, methods, calculations, results, or conclusions therein;
the independent consultant(s) must recommend that the licensee complete
new analyses to address the identified concerns.
    (d) Changes since the previous inspection. The requirements of this
section are the same as described in Sec.  12.36(c).
    (e) Recommendations. The requirements of this section are the same
as described in Sec.  12.36(d).
    (f) Dissenting views. The requirements of this section are the same
as described in Sec.  12.36(e).
    (g) List of participants. The requirements of this section are the
same as described in Sec.  12.36(f).
    (h) Statement of independence. The requirements of this section are
the same as described in Sec.  12.36(g).
    (i) Signature. The requirements of this section are the same as
described in Sec.  12.36(h).

Sec.  12.39   Evaluation of spillway adequacy.

    The adequacy of any spillway must be evaluated, as part of a
comprehensive assessment or as otherwise requested by the Regional
Engineer, by considering hazard potential which would result from
failure of the project works during normal and flood flows.
    (a) If failure would present a hazard to human life or cause
significant property damage, the independent consultant team must
evaluate the following for floods up to and including the probable
maximum flood:
    (1) The ability of project works to withstand the loading or
overtopping which may occur during floods;
    (2) The capacity of spillways to prevent the reservoir from rising
to an elevation that would endanger the project works; and
    (3) The potential for misoperation of; failure to operate; blockage
of; or debilitating damage to a spillway and its appurtenances
(including but not limited to structural, mechanical, and electrical
components of gates, valves, chutes, and training walls); and the
effect thereof on the maximum reservoir level and potential for
surcharged loading or overtopping to occur during floods.
    (b) If failure would not present a hazard to human life or cause
significant property damage, spillway adequacy may be evaluated by
means of a design flood of lesser magnitude than the probable maximum
flood provided that the most recent comprehensive assessment report
required by Sec.  12.38 provides a detailed explanation of and
rationale for the finding that structural failure would not present a
hazard to human life or cause significant property damage.

Sec.  12.40   Time for inspections and reports.

    (a) Projects previously inspected by independent consultant. For
any project that was inspected under this subpart D prior to April 11,
2022, under the Commission's rules in effect on January 1, 2022:
    (1) A periodic inspection or comprehensive assessment must be
completed, and the report on it filed, within five years of the due
date of the Previous Part 12D Report.
    (2) For any report due to be filed under this subpart D after
October 11, 2023, the Regional Engineer may require that it be a report
on a comprehensive assessment or a report on a periodic inspection.
    (3) The first comprehensive assessment under this subpart must be
completed, and the report on it filed, by December 31, 2038.
    (b) Projects not previously inspected by independent consultant.
For any project that was not inspected under this subpart D prior to
April 11, 2022, under the Commission's rules in effect on January 1,
2022:
    (1) For any development that meets the criteria specified in Sec.
12.30(a)(1) or Sec.  12.30(a)(2), and was constructed before the date
of issuance of the order licensing that development, or amending a
license to include that development, the first comprehensive assessment
under this subpart D must be completed, and the report on it filed, not
later than two years after the date of issuance of the order licensing
that development or amending the license to include that development.
    (2) For any development that was constructed after the date of
issuance of the order licensing that development, or amending a license
to include that development, the first comprehensive assessment under
this subpart D must be completed, and the report on it filed, not later
than five years after the date of issuance of the order licensing that
development or amending the license to include that development.
    (3) For any development not set forth in either paragraph (b)(1) or
(b)(2) of this section, the first comprehensive assessment under this
subpart D must be completed, and the report on it filed, by a date
specified by the Regional Engineer. The filing date must not be more
than two years after the date of notification that a comprehensive
assessment and report under this subpart D are required.
    (c) Subsequent inspections and reports. For subsequent reports
filed under this subpart D:
    (1) A comprehensive assessment must be completed, and the report on
it filed, within 10 years of the date the previous comprehensive
assessment report was due to be filed.
    (2) A periodic inspection must be completed, and the report on it
filed, within five years of the date the previous comprehensive
assessment report was due to be filed.
    (d) Extension of time. For good cause shown, the Regional Engineer
may extend the time for filing the report on

a comprehensive assessment or periodic inspection under this subpart D.
    (e) Type of Report. For good cause, the Regional Engineer may
require that any report due to be filed under this subpart D be a
report on a comprehensive assessment or a report on a periodic
inspection, notwithstanding the type of review (periodic inspection or
comprehensive assessment) scheduled to be performed under paragraphs
(c)(1) and (c)(2) of this section.

Sec.  12.41  Corrective measures.

    (a) Corrective measures. For items identified during a periodic
inspection or comprehensive assessment as requiring corrective action,
the following conditions apply:
    (1) Corrective plan and schedule. (i) Not later than 60 days after
a report on a periodic inspection or comprehensive assessment is filed
with the Regional Engineer, the licensee must submit to the Regional
Engineer a plan and schedule for addressing the recommendations of the
independent consultant(s) and for investigating, designing, and
carrying out any corrective measures that the licensee proposes to
implement.
    (ii) The plan and schedule may include any proposal, including
taking no action, that the licensee considers a preferable alternative
to any corrective measure recommended in the report of the independent
consultant(s). Any proposed alternative must be accompanied by the
licensee's complete justification and detailed analysis and evaluation
in support of that alternative.
    (2) Carrying out the plan. The licensee must complete all
corrective measures in accordance with the plan and schedule submitted
to, and approved or modified by, the Regional Engineer, and on an
annual basis must submit a status report on the corrective measures
until all have been completed.
    (3) Extension of time. For good cause shown, the Regional Engineer
may extend the time for filing the plan and schedule required by this
section.
    (b) Emergency corrective measures. The licensee must provide that
if, in the course of a periodic inspection or comprehensive assessment
conducted under this subpart D, an independent consultant discovers any
condition for which emergency corrective measures are advisable, such
as a condition affecting the safety of a project or project works as
defined in Sec.  12.3(b)(4) of this part, the independent consultant
must immediately notify the licensee and the licensee must report that
condition to the Regional Engineer pursuant to Sec.  12.10(a) of this
part. Emergency corrective measures must be included in the corrective
plan and schedule required by paragraph (a)(1) of this section, and are
also subject to paragraphs (a)(2) and (a)(3) of this section.

Sec.  12.42  Preliminary reports.

    At least 30 days prior to the performance of a periodic inspection
or comprehensive assessment, a preliminary report prepared by the
independent consultant team must be filed by the licensee with the
Regional Engineer to document the initial findings, understanding, and
preparation of the independent consultant team.
    (a) For any periodic inspection, the 30-day period is measured from
the scheduled date of the physical field inspection.
    (b) For any comprehensive assessment, the 30-day period is measured
from the scheduled date of the physical field inspection, potential
failure mode analysis, or risk analysis, whichever occurs first.
    (c) If the Regional Engineer determines that 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 to be postponed. Any such postponement shall not
constitute good cause for an extension of time under Sec.  12.40(d).
    (d) If any required supporting team member information was not
provided with the independent consultant team proposal required by
Sec.  12.34(b), it must be provided with the preliminary report.

Subpart E--Other Responsibilities of Applicant or Licensee

Sec.  Sec.  12.40 through 12.44  [Redesignated as Sec. Sec.  12.50
through 12.54]

0
10. Redesignate Sec. Sec.  12.40 through 12.44 as Sec. Sec.  12.50
through 12.54, respectively.

Sec.  Sec.  12.55 through 12.59  [Reserved]

0
11. Add reserved Sec. Sec.  12.55 through 12.59.

0
12. Amend newly designated Sec.  12.50 in paragraph (a) by removing
``Sec.  12.39'' and adding in its place ``Sec.  12.41''.

0
13. Revise newly redesignated Sec.  12.52 to read as follows:

Sec.  12.52  Warning and safety devices.

    (a) To the satisfaction of, and within a time specified by the
Regional Engineer, an applicant or licensee must install, operate, and
maintain any signs, lights, sirens, barriers, or other safety devices
that may reasonably be necessary or desirable to warn the public of
fluctuations in flow from the project or otherwise to protect the
public in the use of project lands and waters.
    (b) The Regional Engineer may require the applicant or licensee to
prepare, periodically update, and file with the Commission a public
safety plan that formalizes the installation, operation, and
maintenance of all necessary public safety devices.

 Sec.  12.54  [Amended]

0
14. Amend newly redesignated Sec.  12.54 as follows:
0
a. In paragraph (b)(2), remove ``the periodic'' and add in its place
``an'' and add ``gate'' directly following the second appearance of the
word ``spillway''; and
0
b. In paragraph (c)(2), remove ``the periodic'' and add in its place
``an''.

0
15. Add subpart F, consisting of Sec. Sec.  12.60 through 12.65, to
read as follows:

Subpart F--Owner's Dam Safety Program

Sec.
12.60 Applicability.
12.61 Definitions.
12.62 General requirements.
12.63 Contents of Owner's Dam Safety Program.
12.64 Annual review and update of Owner's Dam Safety Program.
12.65 Independent external audit and peer review.

Sec.  12.60   Applicability.

    The licensee of any dam or other project work classified as having
a high or significant hazard potential, as defined in Sec.
12.3(b)(13)(i) and (ii), is required to submit an Owner's Dam Safety
Program to the Regional Engineer.

Sec.  12.61  Definitions.

    For purposes of this subpart F:
    (a) Chief Dam Safety Engineer means the designated individual, who
is a licensed professional engineer with experience in dam safety, who
oversees the implementation of the Owner's Dam Safety Program and has
primary responsibility for ensuring the safety of the licensee's dam(s)
and other project works.
    (b) Chief Dam Safety Coordinator means the designated individual,
who is not required to be a licensed professional engineer, who
oversees the implementation of the Owner's Dam Safety Program and has
primary responsibility for ensuring the safety of the licensee's dam(s)
and other project works.

Sec.  12.62  General requirements.

    (a) The Owner's Dam Safety Program shall designate either a Chief
Dam Safety Engineer or Chief Dam Safety Coordinator, as defined in
Sec.  12.61. Any Owner's Dam Safety Program that includes one or more
dams or other project works classified as having a high hazard
potential, as defined in Sec.  12.3(b)(13)(i), shall designate a Chief
Dam Safety Engineer.
    (b) The Owner's Dam Safety Program must be signed by the Owner and,
as applicable, the Chief Dam Safety Engineer or the Chief Dam Safety
Coordinator.
    (c) The Owner's Dam Safety Program must be reviewed and updated on
a periodic basis as described in Sec.  12.64 and, if applicable, must
undergo an independent external audit or peer review as described in
Sec.  12.65.
    (d) The Owner may delegate to others, such as consultants, the work
of establishing and implementing the Owner's Dam Safety Program and the
role of Chief Dam Safety Engineer or Chief Dam Safety Coordinator, as
applicable.
    (1) If the role of Chief Dam Safety Engineer or Chief Dam Safety
Coordinator is delegated to an outside party who does not oversee the
day-to-day implementation of the Owner's Dam Safety Program, the Owner
must designate an individual responsible for overseeing the day-to-day
implementation.
    (2) Any delegation made in accordance with paragraph (d) of this
section must be documented in the Owner's Dam Safety Program.
    (3) The Owner retains ultimate responsibility for the safety of the
dam(s) and other project works covered by the Owner's Dam Safety
Program.

Sec.  12.63  Contents of Owner's Dam Safety Program.

    The Owner's Dam Safety Program shall contain, at a minimum, the
following sections:
    (a) Dam safety policy, objectives, and expectations;
    (b) Responsibilities for dam safety;
    (c) Dam safety training program;
    (d) Communication, coordination, reporting, and reports;
    (e) Record keeping and databases; and
    (f) Continuous improvement.

Sec.  12.64  Annual review and update of Owner's Dam Safety Program.

    The Owner's Dam Safety Program, and the implementation thereof,
shall be reviewed at least once annually by the licensee's dam safety
staff and discussed with senior management of the Owner's organization.
The licensee shall submit the results of the annual review, including
findings, analysis, corrective measures, and/or revisions to the
Owner's Dam Safety Program, to the Regional Engineer.

Sec.  12.65  Independent external audit and peer review.

    (a) Applicability. For licensees of one or more dams or other
project works classified as having a high hazard potential, as defined
in Sec.  12.3(b)(13)(i), an independent external audit or peer review
of the Owner's Dam Safety Program, and the implementation thereof,
shall be performed at an interval not to exceed five years.
    (b) Qualifications. A statement of qualifications for the proposed
auditor(s) or peer review team that demonstrates independence from the
licensee and its affiliates shall be submitted to the Regional Engineer
for review, and written acceptance thereof must be obtained from the
Regional Engineer prior to performing the audit or peer review.
    (c) Reporting. (1) The auditor(s) or peer review team shall
document their findings in a report.
    (2) The report on the audit or peer review shall be reviewed by the
Owner, Chief Dam Safety Engineer or Chief Dam Safety Coordinator, and
management having responsibility in the area(s) audited or reviewed.
    (3) The report on the audit or peer review shall be submitted to
the Regional Engineer.

[FR Doc. 2021-27736 Filed 1-10-22; 8:45 am]
BILLING CODE 6717-01-P