AGENCY:

Federal Energy Regulatory Commission.

ACTION:

Notice of proposed rulemaking.

SUMMARY:

The Commission is proposing to amend its regulations governing the safety of hydropower projects licensed by the Commission under the Federal Power Act. These regulations are intended to promote the safe operation, effective maintenance, and efficient repair of licensed hydropower projects and project works to ensure the protection of life, health, and property in surrounding communities. Specifically, the Commission proposes to revise its regulations to: Incorporate two tiers of project safety inspections by independent consultants, codify existing guidance requiring certain licensees to develop an owner's dam safety program and a public safety plan, update existing regulations related to public safety incident reporting, and make various minor revisions.

DATES:

Comments are due September 22, 2020.

ADDRESSES:

You may send comments, identified by RM20-9-000, by either of the following methods:

• Agency Website: Electronic Filing through http://www.ferc.gov. Documents created electronically using word processing software should be filed in native applications or print-to-PDF format and not in a scanned format.
• Mail: Those unable to file electronically may mail comments to: Federal Energy Regulatory Commission, Secretary of the Commission, 888 First Street NE, Washington, DC 20426. Hand-delivered comments should be delivered to Health and Human Services, 12225 Wilkins Avenue, Rockville, Maryland 20852.

Instructions: For detailed instructions on submitting comments and additional information on the rulemaking process, see the Comment Procedures section of this document.

FOR FURTHER INFORMATION CONTACT:

Ken Fearon (Technical Information), Office of Energy Projects, Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, (202) 502-6015, kenneth.fearon@ferc.gov

Doug Boyer (Technical Information), Office of Energy Projects, Federal Energy Regulatory Commission, 805 SW Broadway, Suite 550, Portland, OR 97205, (503) 552-2709, douglas.boyer@ferc.gov

Tara DiJohn (Legal Information), Office of the General Counsel, Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, (202) 502-8671, tara.dijohn@ferc.gov

SUPPLEMENTARY INFORMATION:

Table of Contents

1. The Federal Energy Regulatory Commission (Commission or FERC), under Part I of the Federal Power Act (FPA), licenses hydropower projects that are developed by non-Federal entities including individuals, private entities, states, municipalities, electric cooperatives, and others. Under section 10(c) of the FPA, the licensee of any hydropower project under the jurisdiction of the Commission must conform to “such rules and regulations as the Commission may from time to time prescribe for the protection of life, health, and property.” ^[1]

2. Since early 2017, the Commission has solicited, received, and reviewed expert opinions on the structure and implementation of the Commission's dam safety program, particularly the provisions for independent consultants' safety inspections required under part 12, subpart D of the Commission's regulations.^[2] These independent consultant safety inspections, commonly referred to as part 12 inspections, are facilitated by licensees and are in addition to the dam safety inspections conducted by Commission staff.

3. To address expert recommendations on the part 12 inspection process, and to codify guidance issued by the Commission's Office of Energy Projects, Division of Dam Safety and Inspections (D2SI) over the past several years, the Commission proposes to revise its rules in Title 18, part 12 of the Code of Federal Regulations. Under this proposal to revise the Commission's part 12 regulations, the entirety of subpart D will be replaced, a new subpart F will be added, and minor revisions will be made to subparts A, B, C, and E.

I. Background

4. Section 10(c) of the FPA requires licensees, in pertinent part, to “maintain the project works in a condition of repair adequate . . . for the efficient operation of said works in the development and transmission of power,” to “make all necessary renewals and replacements,” and to “conform to such rules and regulations as the Commission may from time to time prescribe for the protection of life, health, and property.” ^[3]

5. Pursuant to FPA section 10(c), on December 27, 1965, the Commission's predecessor agency, the Federal Power Commission (FPC), in Order No. 315, promulgated regulations that require licensees to provide complete safety inspections of licensed water power project works by independent consultants at five-year intervals, or more frequently if necessary.^[4] Order No. 315 was intended to supplement D2SI staff's inspections of project works with detailed periodic inspections overseen by an independent consultant.^[5]

6. On January 21, 1981, the Commission issued Order No. 122 to consolidate the Commission's orders, regulations, and practices relating to project safety under part 12 of the Commission's rules and to revise the existing project safety inspection regulations.^[6] The Commission's rules related to independent consultant safety inspections have not been substantially revised or amended since 1981.

7. To ensure that the Commission's dam safety program remains current with the evolving nature of the dam safety field, D2SI staff issues, and periodically updates, Engineering Guidelines for the Evaluation of Hydropower Projects (Engineering Guidelines).^[7] D2SI staff has also augmented the part 12 inspection process over the years by adding additional inspection components (e.g., the Potential Failure Mode Analysis, the Supporting Technical Information Document, and the Dam Safety Surveillance and Monitoring Program and Report).

8. In June 2002, D2SI began a licensee pilot program for conducting a Potential Failure Mode Analysis ^[8] as a component of a part 12 inspection and issued for comment a draft Chapter 14 of the Engineering Guidelines, which would guide licensees in performing this type of dam safety analysis. In April 2003, D2SI issued a final Chapter 14 of the Engineering Guidelines and required a Potential Failure Mode Analysis to be performed during all part 12 inspections. Consistent with this requirement, licensees have conducted over a thousand Potential Failure Mode Analyses. The Commission proposes to codify the Potential Failure Mode Analysis as part of the scope of a part 12 inspection, specifically during a comprehensive assessment and typically at a ten-year interval.

9. On December 14, 2005, the upper reservoir of the Taum Sauk Hydroelectric Project No. 2277, a pumped storage project, was overtopped during the final pumping cycle, causing a breach of the upper reservoir which released over 1 billion gallons of water, resulting in personal injury and significant environmental and property damage.^[9] Following the December 2005 failure of Taum Sauk Dam, D2SI began requiring licensees to develop and maintain an Owner's Dam Safety Program, with the goal of ensuring that licensees have a robust and focused dam safety program to protect public safety, the environment, and project facilities. In August 2012, D2SI staff required all owners of high and significant hazard potential dams ^[10] to submit an Owner's Dam Safety Program.^[11] The Commission proposes to codify this requirement by adding a new subpart F to the Commission's part 12 regulations.

10. On February 7, 2017, high flows in the Feather River basin caused the water level in the Feather River Hydroelectric Project No. 2100 reservoir to rise at Oroville Dam and, for the first time in project history, flow down the emergency spillway, resulting in extensive erosion and damage to Oroville Dam's main spillway and emergency spillway area.^[12] This event precipitated the evacuation of nearly 188,000 residents from the town of Oroville and from other downstream communities north of Sacramento, California. Following the February 2017 Oroville Dam spillway incident, the Commission required the project licensee, California Department of Water Resources (CA DWR), to convene a team of independent, third-party consultants to complete a forensic analysis to determine the cause of the incident.^[13] The Oroville Independent Forensic Team Report documented the team's findings, conclusions, and recommendations.^[14] Several of the Oroville Independent Forensic Team's observations related to potential areas for improvement in the Commission's dam safety program, particularly the part 12 inspection process.

11. Separately, the Commission convened a FERC After Action Panel to review and evaluate the Commission's dam safety program in the months following the Oroville Dam spillway incident. The D2SI Director's mandate to the FERC After Action Panel was to: “Review project documents and history for Oroville Dam . . . . ;” “review the performance of the FERC dam safety program at the Oroville Dam Project, which includes both work and actions by FERC staff, and the program requirements on the dam owner, such as the [p]art 12 process, the [Potential Failure Mode Analyses] process, the Instrumentation and Monitoring Program, and Owners Dam Safety Program . . . . ;” “make conclusions regarding any shortcomings in the FERC dam safety program implementation at Oroville Dam;” and if shortcomings are identified, recommend “improvement or changes to the FERC dam safety program to ensure that future incidents like Oroville can be avoided.” ^[15]

12. The FERC After Action Panel Report documented several shortcomings of the Commission's dam safety program with respect to its implementation at the Oroville Dam Project, and provided several recommendations for improvements to the part 12 inspection process that could increase the likelihood that design and operational deficiencies are detected in advance of a major incident.

13. In light of the Oroville Independent Forensic Team Report and the FERC After Action Panel Report findings, the desire to codify existing dam safety guidance, and the Commission's authority under FPA section 10(c) to promulgate rules protecting life, health, and property, the Commission proposes to revise its part 12 regulations as discussed further below.^[16]

II. Discussion

14. In evaluating potential revisions to its part 12 regulations, the Commission considered the findings of the Oroville Independent Forensic Team and FERC After Action Panel; reviewed the inspection practices of other Federal agencies responsible for ensuring the safety of a large number of dams, including those of the Bureau of Reclamation (Reclamation) ^[17] and the US Army Corps of Engineers (Army Corps); ^[18] and reviewed the Federal Emergency Management Agency's (FEMA) Federal Guidelines for Dam Safety.^[19]

15. First, the Commission proposes to implement two tiers of part 12 inspections, in addition to staff's regular inspections. The two-tier structure would include two types of inspections: A comprehensive assessment and a periodic inspection. Each type of inspection would be performed at a ten-year interval, with the periodic inspection occurring midway between comprehensive assessments. The proposed structure would maintain the current five-year interval between part 12 inspections (alternating between a comprehensive assessment and a periodic inspection) and would mirror FEMA's recommendation that formal inspections be conducted at an interval not to exceed five years.^[20] The proposed alternating two-tier structure is similar to those used by Reclamation and Army Corps. Because the existing five-year interval between part 12 inspections remains the same, the proposed regulations will not increase the likelihood that undiscovered safety issues will persist for longer periods of time between inspections. The comprehensive assessment would require a more in-depth review than the current part 12 inspection, would formally incorporate the existing potential failure modes analysis (PFMA) process, and would require a semi-quantitative risk analysis, as recommended by the Oroville Independent Forensic Team and FERC After Action Panel. The periodic inspection would have a narrower scope than the current part 12 inspection and focus primarily on the performance of project works between comprehensive assessments.

16. Second, the Commission proposes to change the process by which D2SI reviews and evaluates the qualifications of independent consultants that conduct part 12 inspections. Currently, § 12.34 of the Commission's regulations require the licensee to submit to the Director of D2SI for approval a resume describing the independent consultant's experience.^[21] FEMA recommends that “the inspection team should be chosen on a site-specific basis considering the nature and type of dam . . . [and] should comprise individuals having appropriate specialized knowledge in structural, mechanical, electrical, hydraulic, and embankment design; geology; concrete materials; and construction procedures.” ^[22]

17. The proposed process would require the licensee to submit to the Director of D2SI an independent consultant team proposal, comprising one or more independent consultants and additional engineering or scientific personnel, as needed, which must demonstrate that the members of that team possess an appropriate level of expertise for the specific project under consideration. This proposed change reflects the reality that, for many of the hydropower projects under the Commission's jurisdiction, a single independent consultant will not possess the appropriate degree and diversity of technical proficiency necessary to evaluate all aspects of the project. The current requirement that an independent consultant be a licensed professional engineer with a minimum of ten years' experience in “dam design and construction and in the investigation of the safety of existing dams” would remain.^[23] However, as proposed, this requirement would apply only to the designated independent consultants, and not to other supporting members of the independent consultant team.

18. Third, the Commission proposes to codify existing guidance related to the Owner's Dam Safety Program. Currently, the Commission's part 12 regulations do not explicitly require a licensee to develop an Owner's Dam Safety Program. However, pursuant to 18 CFR 12.4(b)(2)(ii)(B), the Commission has the authority to require licensees to submit reports or information on any condition affecting the safety of the project. Since the initial request for an Owner's Dam Safety Program in August 2012,^[24] approximately 250 have been developed by licensees and submitted to the Commission. This Notice of Proposed Rulemaking (NOPR) proposes to codify the requirement that licensees of one or more high or significant hazard potential dams ^[25] must prepare, maintain, file with the Commission, and periodically review and update an Owner's Dam Safety Program. Licensees would be required to designate a person responsible for overseeing day-to-day implementation of the dam safety program.

19. The Commission also proposes to update its regulations related to public safety at or near hydropower projects. Currently, licensees are required to install and maintain public safety devices and to report deaths or serious injuries at their projects.^[26] The NOPR proposes to revise the definition of a “project-related” incident to clarify that licensees are required to report those public safety incidents that are related to the operation of hydropower projects; to report rescues in addition to deaths and serious injuries; and to prepare, maintain, and submit a public safety plan to D2SI, which is the current practice required by existing D2SI guidance.

20. Finally, the Commission plans to update the Engineering Guidelines by adding new Chapters 15 through 18. Concurrently with the issuance of this NOPR, the Commission will solicit public review and comment on these guidelines, which will be issued in draft format in four separate advisory dockets accessible on the Commission's eLibrary website. Chapter 15, available for review and comment in Docket No. AD20-20-000, will provide licensee guidance for developing and maintaining a Supporting Technical Information Document.^[27] Chapter 16, available for review and comment in Docket No. AD20-21-000, will provide licensee guidance on the scope of the part 12D independent consultant inspection program. Chapter 17, available for review and comment in Docket No. AD20-22-000, will provide licensee guidance for conducting a Potential Failure Mode Analysis. Chapter 18, available for review and comment in Docket No. AD20-23-000, will provide licensee guidance for conducting a Level 2 Risk Analysis. Comments on draft Chapters 15 through 18 of the Engineering Guidelines should be filed in the corresponding docket numbers listed above.

A. Review, Inspection, and Assessment by Independent Consultants

21. In response to the findings and recommendations in the Oroville Independent Forensic Team Report and FERC After Action Panel Report, the Commission is proposing to revise its regulations under 18 CFR part 12, subpart D, to enhance the program for inspections by independent consultants. The proposed regulations, if enacted, would replace the existing subpart D in its entirety. Due to the proposed implementation of two tiers of part 12 inspections (periodic inspections and comprehensive assessments), subpart D would include §§ 12.30 through 12.41, which results in changes to the numbering of subpart E (existing § 12.40 becomes § 12.50).

1. Section 12.30—Applicability

22. Section 12.30 establishes the applicability of subpart D's independent consultant inspection requirement and identifies three conditions that result in a project being subject to its provisions. As § 12.30 is currently written, subpart D applies to any project development that has a dam (1) greater than a specified height; (2) with an impoundment exceeding a specific gross storage capacity; or (3) that has a high hazard potential and is determined by the Regional Engineer to require inspection by an independent consultant. Although the subpart D regulations could be interpreted as only applying to dams, this subpart has in practice also been applied to those portions of canals and penstocks judged to have a high hazard potential.

23. The proposed revisions to § 12.30 are intended to clarify that the provisions of subpart D may apply to projects that do not have a dam. The proposed revisions maintain the existing height and storage thresholds but clarify that they are applicable only to dams. The revisions also clarify that the high hazard potential consideration is applicable to all project features; the project development would be subject to subpart D if any portion of a project feature has a high hazard potential. Additionally, subpart D would apply to a project development if the Regional Engineer or other Commission representative determines that an inspection is required for reasons not listed. The proposed revisions to § 12.30 are consistent with existing D2SI practice.

2. Section 12.31—Definitions

24. Section 12.31 defines independent consultant, high hazard potential, height above streambed, and gross storage capacity for the purposes of the provisions of subpart D. Section 12.31 also provides the D2SI Director the authority to grant a waiver from the ten-year experience requirement in the definition of independent consultant.

25. The proposed revisions to § 12.31 update the existing definitions of an independent consultant and hazard potential, and provide new definitions for independent consultant team, periodic inspection, and comprehensive assessment.

26. The existing definition of an independent consultant is a licensed professional engineer, with at least ten years of experience and expertise related to dams, and is not, and has not been within two years, an employee of the licensee or its affiliates or an agent acting on behalf of the licensee. The proposed definition maintains the licensure and experience requirements. But, rather than one requirement regarding the professional relationship between the independent consultant and licensee, the proposed definition divides the requirement into three separate requirements. First, the independent consultation is not an employee of the licensee or its affiliates. Second, the independent consultant has not been an employee of the licensee or its affiliates within two years prior to performing the inspection under this subpart. The third restriction is that the independent consultant has not been an agent acting on behalf of the licensee or its affiliates before performing services under this part, for a manner and time period defined in the Engineering Guidelines. The guidelines provide examples of the type of information Commission staff will consider when making this determination. The circumstances of each case will differ and require evaluation by Commission staff; therefore, specific thresholds for scope or duration of services are not established in the proposed definition. The Commission intends to apply this restriction narrowly, with the primary goal of ensuring that independent consultants are not responsible for reviewing work products to which they contributed substantially.

27. The Commission proposes to adopt a definition of an independent consultant team as comprising one or more independent consultants and additional engineering and scientific personnel, as needed.

28. The Commission proposes to require that collectively the independent consultant team has expertise commensurate with the scale, complexity, and relevant technical disciplines of the project and type of review being performed (periodic inspection or comprehensive assessment). This approach will ensure that each review is conducted by qualified personnel such that the Commission can reasonably expect that potential issues relating to project safety or stability can be identified. The Commission intends to place higher expectations on the qualifications of the personnel on an independent consultant team, and their collective experience and expertise, for comprehensive assessments compared to periodic inspections; projects with higher consequences or total project risk; projects with a greater number of, or more technically diverse or challenging, project features; and projects with a history of unusual or adverse performance. As further discussed below, the proposed regulations in § 12.34 also require that the licensee obtain approval of the independent consultant team from the Director of D2SI. Currently, § 12.34 only requires that resumes be submitted for any independent consultants.

29. The existing definition of hazard potential, which refers to an outdated source, is updated to ensure that it is consistent with FEMA's Hazard Potential Classification System for Dams.^[28] The proposed definition also ensures that it is applicable to dams, canals, and other water conveyances, or any portion thereof, and refers to the Engineering Guidelines for specific criteria that result in a classification of low, significant, or high hazard potential.

30. Definitions for periodic inspection and comprehensive assessment are proposed for inclusion in § 12.31. The definitions of “height above streambed” and “gross storage capacity” would remain unchanged.

3. Section 12.32—General Inspection Requirement

31. Existing § 12.32 establishes the requirement for periodic inspection, by an independent consultant, of the project works of each development ^[29] subject to the provisions of subpart D.

32. The proposed revisions to § 12.32 incorporate the terms “periodic inspection” and “comprehensive assessment” and require that a report be filed following each type of inspection. There are no substantive changes to the general requirement that an independent consultant's inspection be performed. The general requirement to file a report following an inspection would be relocated from existing § 12.37 to proposed § 12.32.

4. Section 12.33—Exemption

33. Existing § 12.33 grants the Director of D2SI the authority to exempt projects from the provisions of subpart D for good cause and provides an example of what may constitute good cause. At the Director of D2SI's discretion, the exemption may be granted in perpetuity or may require periodic reevaluation of the exemption justification (e.g., by reviewing and confirming that the project has a low hazard potential). The Director of D2SI's authority to exempt projects from subpart D is retained in proposed § 12.33(a).

34. The proposed revisions to § 12.33(b) update the example of good cause to include canals and other water conveyances and refer to the Engineering Guidelines for what constitutes a low hazard potential.

35. Proposed § 12.33(c) rescinds any exemption from subpart D that was issued prior to the effective date of this proposed rule. Existing subpart D exemptions have been granted over several decades and, as the state of the practice of dam safety has evolved, have not been reconsidered consistently. Accordingly, an entity desiring an exemption will be required to reapply for one to ensure that any justification for a subpart D exemption is reviewed based on the current state of the practice, considering potential failure modes, consequences, and total project risk.

5. Section 12.34—Approval of Independent Consultant Team

36. Prior to performing an inspection, existing § 12.34 requires a licensee to submit to the Director of the Office of Energy Projects, for approval, a detailed resume for an independent consultant. The Commission proposes several revisions to § 12.34 to address concerns raised in the Oroville Independent Forensic Team report, the FERC After Action Panel report, and issues related to implementation of the existing rule over the past several years.^[30]

37. Proposed § 12.34(a) requires that the licensee obtain written approval of the independent consultant team, from the Director of D2SI instead of the Director of the Office of Energy Projects, prior to performing a periodic inspection or comprehensive assessment. While in practice D2SI has granted approval of independent consultants prior to inspections, the regulation as currently written does not stipulate that D2SI approval must be obtained.

38. Proposed § 12.34(b), which requires that the licensee submit a detailed independent consultant team proposal to the Director of D2SI at least 180 days prior to performing a periodic inspection or comprehensive assessment, includes two major changes. First, the existing regulations require the detailed resume to be submitted 60 days in advance. The proposed increase in the time period from 60 days to 180 days does not represent a change in practice. D2SI staff routinely issue reminder letters to licensees approximately 18 months in advance of any inspection required under subpart D, and for several years have requested that independent consultants' resumes be submitted six months in advance to ensure that all parties are aware of their roles and responsibilities, and have sufficient time to prepare for the inspection. The proposed regulation codifies D2SI's current practice.

39. Second, existing § 12.34 requires that resumes be submitted only for any independent consultant, to demonstrate that they meet the requirements provided in § 12.31. Proposed § 12.34(b) requires that the licensee submit documentation of the experience and qualifications for all members of the independent consultant team, including one or more independent consultants and additional contributing members, as needed. The regulation includes separate paragraphs that apply depending on whether the independent consultant team comprises one or multiple persons. This change will allow Commission staff to evaluate the breadth and depth of the team's experience and ensure that it is commensurate with the scale, complexity, and technical disciplines of the project and type of review being performed. The Commission intends for a comprehensive assessment to require a higher level of experience and expertise than a periodic inspection, due to the broader scope of the comprehensive assessment.

40. Proposed § 12.34(c) grants the Director of D2SI the authority to disapprove of an independent consultant team member, regardless of demonstrated experience and qualifications, for good cause, such as having a report rejected by the Commission within the preceding five years. This provision will allow the Commission to ensure that independent consultants' inspections are performed by qualified parties.

6. Section 12.35—Periodic Inspection

41. Existing § 12.35 establishes the scope of the independent consultant's inspection. The Commission proposes to replace § 12.35 in its entirety such that it establishes the scope of a periodic inspection, the less intensive of the two proposed tiers of part 12 inspections.

42. Proposed § 12.35 establishes the scope of a periodic inspection, which includes review of prior reports, a physical field inspection, review of the surveillance and monitoring plan and data, and review of dam and public safety programs. A periodic inspection has a reduced scope compared to the existing independent consultant's inspection.

7. Section 12.36—Report on Periodic Inspection

43. Existing § 12.36 is related to emergency corrective measures. We propose to combine existing §§ 12.36 and 12.39 under a single “corrective measures” heading in § 12.41, as discussed subsequently in this NOPR.

44. Proposed § 12.36 establishes the requirements for the periodic inspection report and is intended to serve a purpose similar to existing § 12.37 (report of the independent consultant) with several notable changes. Existing § 12.37(b) includes provisions specific to initial reports filed under subpart D, which currently requires the initial report to include general project information (project descriptions, maps, design summary information, geologic information, etc.) and allows licensees to incorporate by reference existing information and analyses contained in previously-prepared independent consultant reports (existing § 12.37(b)(2)). The Commission proposes to eliminate the differentiation between initial and subsequent reports and to require every periodic inspection report to meet the same standard, without relying on the practice of incorporating by reference information or analyses contained in earlier reports.

45. Proposed § 12.36(b) provides a list of items that require specific evaluation in the periodic inspection report. These items pertain to the surveillance, monitoring, and performance of the project, with a focus on whether any potential failure modes, whether previously identified or not, are active, developing, or warrant further evaluation at the time of the periodic inspection.

46. The Commission proposes to eliminate the provisions that allow independent consultants to incorporate the previous independent consultant's report by reference and document only that information that has changed since the previous report. Proposed § 12.36(c) provides a list of items which require a status update and evaluation of any changes since the previous inspection.

47. Existing provisions in §§ 12.37(c)(4) through (8) are retained as proposed §§ 12.36(d) through (h) with minor changes to ensure consistency with other proposed revisions. Section 12.36(i) is added to refer to the Engineering Guidelines, which contain additional guidance regarding the format and contents of the information discussed above.

8. Section 12.37—Comprehensive Assessment

48. Existing § 12.37 establishes requirements for the report of the independent consultant. As discussed elsewhere in this NOPR, the proposed revisions to §§ 12.36 and 12.38 incorporate this information for reports on periodic inspections and comprehensive assessments, respectively.

49. Proposed § 12.37 establishes the scope of a comprehensive assessment, the more intensive of the two proposed tiers of part 12 inspection. As many components of the comprehensive assessment are identical to or build upon the periodic inspection, several paragraphs of the proposed regulations reference their corresponding paragraphs in § 12.35. Below, we discuss the aspects of a comprehensive assessment that are not required for a periodic inspection.

50. In addition to those elements required for a periodic inspection set forth in proposed § 12.35, a comprehensive assessment includes review of prior reports and analyses of record, review of the supporting technical information document, performance of a potential failure modes analysis, and performance of a risk analysis. A comprehensive assessment has an expanded scope compared to the existing independent consultant's inspection. Proposed § 12.37(a)(2) requires the independent consultant team to perform a more detailed review of existing documentation, including as-built drawings, monitoring data, and analyses of record, than required by the current independent consultant's inspection.

51. Proposed § 12.37(f) requires a comprehensive assessment to include a potential failure mode analysis, which is already standard practice for current part 12 inspections. D2SI has developed draft Chapter 17 of the Engineering Guidelines, which describes how to conduct a potential failure mode analysis. As discussed above, the Commission is soliciting public comments on draft Chapter 17 in Docket No. AD20-22-00.^[31]

52. Proposed § 12.37(g) incorporates a semi-quantitative risk analysis as part of the scope of a comprehensive assessment. Other Federal agencies, including Reclamation, Army Corps, and the Tennessee Valley Authority, have incorporated semi-quantitative risk analyses into their systematic comprehensive dam safety reviews. FEMA also provides recommendations and guidance for the performance of semi-quantitative risk analysis in their guidelines.^[32] D2SI has developed draft Chapter 18 of the Engineering Guidelines, which describes the process of, and procedures for performing, a semi-quantitative risk analysis. As discussed above, the Commission is soliciting public comments on draft Chapter 18 in Docket No. AD20-23-00.^[33]

53. Proposed § 12.37(g) grants the D2SI Regional Engineer the authority to waive the requirement to complete a risk analysis during a comprehensive assessment. This allows the Commission to focus efforts on those projects that present greater risk to life, health, and property, and provides flexibility for D2SI staff to gradually phase in the risk analysis component of a comprehensive assessment, allowing sufficient time for D2SI staff to develop and deliver training on the proposed risk analysis procedures to D2SI staff, licensee staff, and consultants.

9. Section 12.38—Report on Comprehensive Assessment

54. Existing § 12.38 is related to the timeline for submitting reports on an independent consultant's inspection. This information would be relocated to proposed § 12.40, discussed subsequently in this NOPR.

55. Proposed § 12.38 establishes the requirements for the report on a comprehensive assessment. As with the corresponding section regarding a report on a periodic inspection, the Commission proposes to eliminate the difference between initial and subsequent reports and to require every comprehensive assessment report to meet the same standard.

56. Proposed § 12.38(b) references § 12.36(b) and provides a list of items that require specific evaluation in the comprehensive assessment report. In addition to those elements required for a periodic inspection, a comprehensive assessment report must include an evaluation of spillway adequacy; the potential for internal erosion and/or piping of embankments, foundations, and abutments; structural integrity and stability of all structures under credible loading conditions; any other analyses of record pertaining to geology, seismicity, hydrology, hydraulics, or project safety; and the supporting technical information document, potential failure modes analysis, and risk analysis. An evaluation of an analysis of record must include an evaluation of the accuracy, relevance, and consistency with the current state of the practice of dam engineering, and the comprehensive assessment report must include clear documentation of the independent consultant team's rationale. If the independent consultant team is unable to review any analysis of record or disagrees with the analysis of record in any way, the independent consultant must recommend new analyses.

57. The Commission also proposes to eliminate the provisions that allow independent consultants to incorporate the previous independent consultant's report by reference and document only that information that has changed since the previous report. By referencing the periodic inspection report requirements (§ 12.36(c)) (i.e., report on periodic inspection), proposed § 12.38(c) requires the independent consultant to provide, across seven categories, a status update and evaluation of any changes since the previous inspection, which are the same required for a periodic inspection.

58. The existing provisions in §§ 12.37(c)(4) through (8) are retained as proposed §§ 12.38(d) through (h) with minor changes to ensure consistency with other proposed revisions. Proposed § 12.38(j) is added to refer to the Engineering Guidelines, which contain additional details regarding the format and contents of the information discussed above.

10. Section 12.39—Evaluation of Spillway Adequacy

59. Existing § 12.39 relates to taking corrective measures after the report; this information is relocated to § 12.41, discussed subsequently in this NOPR. Currently, the requirement to evaluate spillway adequacy is a required component of the part 12 inspection and is found in § 12.35(b) of our regulations. However, providing this information in a standalone section will highlight the importance of evaluating spillway adequacy. Accordingly, we propose to relocate this requirement to proposed § 12.39.

60. Proposed § 12.39 expands the existing requirements for evaluating spillway adequacy. These additional requirements are intended to address scenarios similar to the 2017 Oroville Dam spillway incident, and would require the independent consultant to evaluate the potential for misoperation of, failure to operate, blockage of, or debilitating damage to a spillway, and the resulting effects on the maximum reservoir level and the potential for overtopping.

11. Section 12.40—Time for Inspections and Reports

61. The timelines for performing independent consultant inspections and submitting inspection reports, currently found in existing § 12.38, would be relocated to proposed § 12.40. The existing rules establishes a five-year cycle between inspections and includes provisions for initial inspections of existing licensed projects, projects licensed but not yet constructed, and all other projects; includes a separate set of provisions related to projects inspected by an independent consultant prior to March 1, 1981; and authorizes the D2SI Regional Engineer to grant extensions of time to file an independent consultant's inspection report.

62. Proposed § 12.40 revises the timeline for submitting reports on inspections by independent consultants. While the current five-year interval between inspections and reports is maintained, the inspections will alternate between periodic inspections and comprehensive assessments; thus, there is a ten-year interval between any pair of consecutive comprehensive assessments or periodic inspections.

63. Proposed § 12.40(a) consolidates the timing of inspections and reports for projects previously inspected by an independent consultant. Section 12.40(a)(1) maintains the five-year cycle for an independent consultant's inspection of each project development. Section 12.40(a)(2) grants the D2SI Regional Engineer the authority to require that the initial report due to be filed after January 1, 2021, be either a comprehensive assessment or periodic inspection, enabling D2SI to balance the number of comprehensive assessments due each year over the ten-year cycle. Section 12.40(a)(3) requires that the first comprehensive assessment be completed, and the report on it filed, by December 31, 2034.

64. Proposed § 12.40(b) retains and updates the terminology related to existing provisions for existing licensed projects previously inspected, projects licensed but not yet constructed, and other projects.

65. Proposed § 12.40(c) establishes the ten-year interval between comprehensive assessments and requires that a periodic inspection be performed within five years following a comprehensive assessment.

66. Proposed §§ 12.40(d) and 12.40(e) authorize the D2SI Regional Engineer to extend the time to file an independent consultant's report, for good cause shown, and may require that any inspection scheduled to be performed be a periodic inspection or comprehensive assessment. For example, where a project is scheduled for a periodic inspection but a dam safety incident, extreme loading condition (e.g., unprecedented flood, large earthquake, etc.), or other significant change in condition has occurred since the previous comprehensive assessment, the D2SI Regional Engineer may require that the project undergo a comprehensive assessment rather than a periodic inspection. Alternatively, for projects that have no life safety consequences and a low total project risk, the D2SI Regional Engineer may allow comprehensive assessments to be performed at an interval greater than every ten years.

12. Section 12.41—Corrective Measures

67. The procedures for addressing items identified during a part 12 inspection that require corrective measures are currently set forth in existing § 12.39. In this proposed rule, these procedures would be relocated to proposed § 12.41. The existing regulations require licensees to: Submit to the D2SI Regional Engineer a plan and schedule within 60 days of filing an independent consultant's report with the Commission, and complete all corrective measures in accordance with the plan and schedule approved or modified by the D2SI Regional Engineer. Under the existing regulations, the D2SI Regional Engineer may extend the time for filing the plan and schedule. This NOPR does not propose to modify or eliminate these requirements.

68. Proposed § 12.41 incorporates the requirements of existing § 12.36 (emergency corrective measures) and § 12.39 (post-inspection corrective measures) into a single section titled “corrective measures.” The proposed revisions in § 12.41(a)(1)(i) clarify that the licensee's plan and schedule must address the recommendations of the independent consultant and include investigation as an option for the licensee to implement. Proposed § 12.41(b)(2) would be added to ensure that emergency corrective measures are documented in the corrective plan and schedule required by § 12.41(a)(1).

B. Owner's Dam Safety Program

69. The Commission began developing the Owner's Dam Safety Program guidance following the December 2005 failure of Taum Sauk Dam. The lack of a strong dam safety culture in the licensee's organization was a major contributing factor to that incident, as well as to several dam safety incidents that preceded and followed it. In August 2012, the Director of D2SI issued letters to all owners of high or significant hazard potential dams requiring them to submit an Owner's Dam Safety Program.^[34] Additional information and guidance on the development of an Owner's Dam Safety Program development has been available on the Commission's website since this time. Proposed subpart F consolidates and codifies that guidance, as discussed further below.

1. Section 12.60—Applicability

70. Proposed § 12.60 specifies that an Owner's Dam Safety Program must be submitted by any licensee that has a dam or other project feature with a high or significant hazard potential. This does not represent a change from existing practice.

2. Section 12.61—Definitions

71. Proposed § 12.61 defines the terms “Chief Dam Safety Engineer” and “Chief Dam Safety Coordinator,” as used in subpart F. The Chief Dam Safety Engineer or Chief Dam Safety Coordinator is defined as the person who oversees the implementation of the Owner's Dam Safety Program and has primary responsibility for ensuring the safety of the licensee's dams and other project features. The only difference between the definitions is that a Chief Dam Safety Engineer must be a licensed professional engineer.

3. Section 12.62—General Requirements

72. Proposed § 12.62 establishes three general requirements for an Owner's Dam Safety Program. Section 12.62(a) requires an Owner's Dam Safety Program to designate either a Chief Dam Safety Engineer or a Chief Dam Safety Coordinator. Any Owner's Dam Safety Program that applies to one or more dams or other project features with a high hazard potential must designate a Chief Dam Safety Engineer. Section 12.62(b) requires the Owner's Dam Safety Program to be signed by the owner and the Chief Dam Safety Engineer or Chief Dam Safety Coordinator, as applicable. Section 12.62(c) requires the Owner's Dam Safety Program to be reviewed and updated on a periodic basis. Section 12.62(d) permits the Owner to designate outside parties, such as consultants, to serve as Chief Dam Safety Engineer or Chief Dam Safety Coordinator, though the owner retains ultimate responsibility for the safety and day-to-day implementation of their projects.

4. Section 12.63—Contents of Owner's Dam Safety Program

73. Proposed § 12.63 establishes the minimum contents of an Owner's Dam Safety Program. Sections 12.63(a)-(f) each correspond to a topic area that should be addressed in an Owner's Dam Safety Program document and reflected in the document's table of contents, as provided in current D2SI guidance available on the Commission's website.^[35] Under § 12.63(g), the Owner's Dam Safety Program should also include any additional information that may be prescribed by the Engineering Guidelines, a draft chapter of which is in development and will be provided at a later date for public review and comment.

5. Section 12.64—Annual Review and Update

74. Proposed § 12.64 describes the requirements for reviewing and updating an Owner's Dam Safety Program. Section 12.64 specifies that any Owner's Dam Safety Program must be reviewed by the licensee's dam safety staff and discussed with senior management on an annual basis, and that any findings, analysis, corrective measures, or revisions be submitted to the D2SI Regional Engineer.

6. Section 12.65—Independent External Audit and Peer Review

75. Section 12.65 describes the requirements of independent external audits and peer reviews, which must be completed at least once every five years for any Owner's Dam Safety Program that applies to one or more dams or other project features having a high hazard potential classification. The qualifications of the review team must be submitted to the D2SI Regional Engineer in advance, and the Regional Engineer's acceptance must be obtained prior to performing the audit or peer review. The Commission will review the qualifications to ensure that the review team has sufficient expertise and a defined plan to review the Owner's Dam Safety Program. The findings of the external audit or peer review team must be documented in a report to be reviewed by licensee staff, including senior management, and submitted to the Regional Engineer.

C. Public Safety and Miscellaneous Updates

76. This NOPR also proposes several changes to subparts A, B, C, and E of 18 CFR part 12, most of which are minor in nature and necessary to ensure consistency with the replaced subpart D and new subpart F. The two notable proposed revisions relate to the reporting of public safety incidents and the development of public safety plans and their submittal to the Commission.

1. Subpart A—General Provisions

77. Subpart A sets forth general provisions and definitions that apply to 18 CFR part 12. The proposed rule would update or add several definitions and make other minor changes to ensure consistency with replaced subpart D and new subpart F. Section 12.3(b)(4) provides a list of conditions affecting the safety of project works. Two of these conditions would be updated to ensure their definitions are consistent as applied in current practice. In addition, “overtopping of any dam, abutment, canal, or water conveyance” would be added to the list of conditions that could affect project safety. New definitions for “water conveyance,” “Engineering Guidelines,” and “Owner's Dam Safety Program” would also be added. All other revisions in subpart A are proposed to ensure consistent terminology and to update internal references.

78. Section 309 of the FPA authorizes the Commission “to perform any and all acts, and to . . . issue . . . such orders, rules, and regulations as it may find necessary or appropriate to carry out the provisions of the [FPA],” and FPA section 31 gives the Commission authority to enforce legal and regulatory requirements. Non-compliance with dam safety directives could result in the Commission taking actions such as issuing a cease generation order, assessing civil penalties, or revoking the project's license pursuant to section 31 of the FPA. Accordingly, the proposed addition of § 12.4(d) makes clear that a licensee's failure to comply with any order or directive issued under part 12 by the Commission, a Regional Engineer, or other authorized Commission representative may result in sanctions as noted above.

2. Subpart B—Reports and Records

79. Subpart B sets forth requirements for reporting, verifying, and providing records to the Commission regarding dam safety-related matters, including public safety incidents. The Commission proposes minor revisions to ensure consistency with other sections of the regulations and the dam safety program as implemented. In addition, the proposed rule would require additional reporting of public safety-related incidents that involve deaths, serious injuries, or rescues.

80. The proposed revisions to § 12.10(a)(1) express the Commission's preference that oral reports of conditions affecting the safety of a project or its works are made within 72 hours of discovery of the condition. The reporting of an incident to the Commission must not in any way inhibit an emergency response to that incident.

81. The proposed revisions to § 12.10(b) would require the reporting of rescues in addition to deaths and serious injuries, as well as clarify what constitutes a project-related incident. For precision and to use terminology that is generally accepted in the dam safety community, we propose to replace the term “project-related accident” with “project-related incident.” Currently, § 12.10(b)(4) defines “project-related,” as “any deaths or serious injuries involving a dam, spillway, intake, or power line, or which take place at or immediately above or below a dam.” ^[36] In our experience, the final clause of the definition has been the most problematic for licensees to apply, often leading licensees to report as project-related those deaths or serious injuries that occur near a dam but are wholly unrelated to the project or its operation. By revising the definition of “project-related,” we intend to make clear that an incident is project-related only if it occurs at project works, involves changes in water levels resulting from operations of project works, or is otherwise attributable to the project or its operation.

82. The proposed revisions to § 12.12(b)(3) permit storage media other than microform, which is consistent with part 125 of the Commission's regulations. Section 12.12(d) is added to require the licensee to provide physical and electronic records to the D2SI Regional Engineer for all projects subject to subpart D, or as requested by the D2SI Regional Engineer, for which the information is necessary for the Commission to ensure the safety of the project works. The existing § 12.12(b)(2)(ii)(A) already grants the Regional Engineer the authority to require that an applicant or licensee submit such reports or information and is unchanged; this provision has historically been applied to all projects subject to subpart D through the requirement to develop, maintain, and submit a Supporting Technical Information Document, which is described in the Engineering Guidelines. Neither of these requirements represent a change in D2SI practice.

3. Subpart C—Emergency Action Plans

83. Subpart C sets forth requirements related to emergency action plans. The Commission proposes only minor revisions to §§ 12.20, 12.22, and 12.24 to ensure consistency with the hydropower filing guidelines available on the Commission's website, terminology with respect to the Engineering Guidelines, and to update cross-references to other sections in this part.

4. Subpart E—Other Responsibilities of Applicant or Licensee

84. Subpart E sets forth other applicant and licensee responsibilities, including the requirement to install warning and public safety devices, and test spillway gates. The Commission proposes to replace one section and update another to codify a function of the dam safety program as currently implemented and to ensure the use of consistent terminology in conjunction with the proposed replacement of subpart D. Subpart E will be redesignated as §§ 12.50 to 12.54 to accommodate the proposed inclusion of additional sections in subpart D. These proposed revisions to subpart E do not represent a change in practice.

85. The proposed revisions to § 12.52 (warning and safety devices; currently § 12.42) preserve the current regulatory requirement that licensees must install, operate, and maintain warning and safety devices to protect the public, with a minor revision to ensure consistency with the rest of part 12. Proposed § 12.52(b) codifies existing D2SI guidance that the Commission may require a licensee to submit a public safety plan that documents the installation, operation, and maintenance of public safety devices.^[37]

86. Finally, we propose to revise § 12.54 (testing spillway gates; currently § 12.44) to replace the term “periodic inspection” with the more generic term “an inspection.” This change in terminology will ensure that Commission staff can continue to verify the operability of spillway gates during their routine inspections, and will prevent this section from being misconstrued as applying only to a periodic inspection as it is proposed to be defined and described in subpart D of this NOPR.

III. Regulatory Requirements

A. Information Collection Statement

87. The Paperwork Reduction Act ^[38] requires each federal agency to seek and obtain the Office of Management and Budget's (OMB) approval before undertaking a collection of information (including reporting, record keeping, and public disclosure requirements) directed to ten or more persons or contained in a rule of general applicability. OMB regulations require approval of certain information collection requirements contemplated by proposed rules (including deletion, revision, or implementation of new requirements).^[39] Upon approval of a collection of information, OMB will assign an OMB control number and an expiration date. Respondents subject to the filing requirements of this proposed rule will not be penalized for failing to respond to the collection of information unless the collection of information displays a valid OMB control number.

88. The following discussion describes and analyzes the collections of information modified by this proposed rule.

89. The Commission solicits comments on the Commission's need for the proposed information collection in this NOPR and in draft Chapters 15 through 18 of the Engineering Guidelines,^[40] whether the information will have practical utility, the accuracy of the burden estimates, ways to enhance the quality, utility, and clarity of the information to be collected or retained, and any suggested methods for minimizing respondents' burden, including the use of automated information techniques. All burden estimates for all proposed information collection activities (including those in draft Chapters 15 through 18 of the Engineering Guidelines) are discussed in this NOPR and in the Paperwork Reduction Act supporting statement.

90. Interested persons may submit questions about the information collection activities by contacting Ellen Brown, Office of the Executive Director, at DataClearance@ferc.gov, or (202) 502-8663. 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 60 days of publication of this notice in the Federal Register and refer to FERC-517 and OMB Control No. 1902-TBD.

91. Please submit to the Commission copies of comments concerning the collection of information and the associated burden estimates (identified by Docket No. RM20-9-000) by either of the following methods:

• Electronic Filing through the Commission's website: https://www.ferconline.ferc.gov/​eFiling.aspx;​ or
• Mail/Express Services: Persons unable to file electronically may mail similar pleadings to the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426. Hand-delivered submissions in docketed proceedings should be delivered to Health and Human Services, 12225 Wilkins Avenue, Rockville, Maryland 20852.

92. Public Reporting Burden: In this NOPR, the Commission proposes to establish two tiers of Independent Consultant's Safety Inspection Reports, further develop the Owner's Dam Safety Program, and require reporting of rescues that occur at hydroelectric projects. The NOPR, in conjunction with the corresponding updates to the Engineering Guidelines, would revise and add some information collection activities in 18 CFR part 12.

93. The proposed revisions to 18 CFR part 12, subpart D (independent consultant inspections), if adopted, would not affect the current five-year filing cycle for Independent Consultant's Safety Inspection Reports; however, they would modify the scope of reports on an alternating cycle, such that the reports would alternate between a periodic inspection (a reduction in scope compared to current inspection requirement) and a comprehensive assessment (an increase in scope compared to current 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 proposed revisions to Independent Consultant's Safety Inspection Reports, Commission staff developed separate cost estimates for “Simple” and “Complex” hydroelectric facilities, which are listed in the table below. Commission staff recognizes that there will be projects with annualized costs less than the “Simple” estimate or greater than the “Complex” estimate, but Commission staff believe 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.^[41]

94. The proposed addition of 18 CFR part 12, subpart F (Owner's Dam Safety Program) would codify existing requirements for the preparation or collection of information. 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). 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. Thus, Commission staff estimates no added incremental burden or cost from the proposed addition of subpart F.

95. The proposed minor revisions to 18 CFR part 12, subpart B would require licensees to report the rescue of any person that occurs at hydroelectric facilities, which is in addition to existing requirements that licensees report public safety incidents that result in the death or serious injury of any person.

96. Table 1 itemizes the estimated annual burden ^[42] and direct cost ^[43] of the proposed changes due to this NOPR. Record keeping requirements are included in the burden and cost estimates for the development and collection of the data and reports.

97. Table 2 itemizes the estimated annual burden and annual contracting costs for professional services ^[58] of the information collections that would be affected by this NOPR. Record keeping requirements are included in the burden and cost estimates for the development and collection of the data and reports.

98. 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 proposed changes due to this NOPR. Record keeping requirements are included in the burden and cost estimates for the development and collection of the data and reports.

99. Title: FERC-517, Safety of Water Power Projects and Project Works.

100. Action: Revision to the scope of Independent Consultant's Safety Inspection Reports, Owner's Dam Safety Program, and addition of reporting requirements related to public safety incidents at hydropower projects.

101. OMB Control No.: 1902-TBD.

102. Respondents: Hydropower licensees (and applicants, as applicable), including municipalities, businesses, private citizens, and for-profit and not-for-profit institutions.

103. Frequency of Information: On occasion, except for reports on periodic inspections and comprehensive assessment, which must be submitted as proposed under 18 CFR 12.40:

• For any project that was inspected in accordance with 18 CFR part 12 prior to January 1, 2021, 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, 2034.
• 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, 2021, 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:

○ 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 §§ 12.30(a)(1) or 12.30(a)(2), and was constructed before the date of issuance of such order.

○ 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.

○ No later than two years after a date specified by the Regional Engineer, for other developments that were not inspected prior to January 1, 2021, under the Commission's rules in effect on January 1, 2020.

104. Necessity of Information: The Commission proposes the changes in this NOPR in order 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 hydropower projects; and to comply with guidance from FEMA's Interagency Committee on Dam Safety.

105. Internal Review: The Commission has reviewed the proposed changes and has determined that such changes 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.^[78]

106. Interested persons may obtain information on the reporting requirements by contacting the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426 [Attention: Ellen Brown, Office of the Executive Director], by email to DataClearance@ferc.gov, or by phone (202) 502-8663.

B. Environmental Analysis

107. 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.^[79] 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.^[80] This proposed rule proposes to revise 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 proposed 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.

C. Regulatory Flexibility Act

108. The Regulatory Flexibility Act of 1980 (RFA) ^[81] generally requires a description and analysis of proposed 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 proposed rule and minimize any significant economic impact on a substantial number of small entities.^[82] In lieu of preparing a regulatory flexibility analysis, an agency may certify that a proposed rule will not have a significant economic impact on a substantial number of small entities.^[83]

109. The Small Business Administration's (SBA) Office of Size Standards develops the numerical definition of a small business.^[84] The SBA size standard for electric utilities is based on the number of employees, including affiliates.^[85] Under SBA's current size standards, a hydroelectric power generator (NAICS code 221111) ^[86] is small if, including its affiliates, it employs 500 or fewer people.^[87]

110. If enacted, the proposed revisions to part 12, subpart D would directly affect all hydropower licensees that are currently required to file Independent Consultant's 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 ten-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 ten-year cycle. The remaining 525 responses (70%) would be filed by 106 entities that do not qualify as small.

111. 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. In addition, the proposed 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's Safety Inspection (e.g., waiving the requirement to perform a PFMA 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's Safety Inspection, utilization of these provisions may result in a lower incremental cost for small entities.

112. The proposed addition of part 12, subpart F, which would codify the Owner's Dam Safety Program, would only apply 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 potential dam safety issues are caught and addressed before they present an imminent danger to life safety or property.

113. Because those licensees required to prepare an Owner's Dam Safety Program due to their project's hazard potential classification have already done so,^[88] the Commission does not anticipate that the proposed codification of subpart F will impose any additional burden or cost on licensees, regardless of their status as a small or large entity.

114. 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.

115. While the proposed 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 proposed 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.).

116. In summary, based on the estimated costs included in Table 3 above, the estimated economic impacts on small entities as a result of the proposed rule could range from approximately $166 (for the submittal of a one-time request for an exemption from part 12, subpart D) to over $7,000 per year for each complex project. A representative cost for a typical small entity with one or more simple projects would be approximately $2,500 per year per project subject to part 12, subpart D.^[89] Currently, Commission staff estimates that over eighty percent of the small entities have two or fewer projects subject to subpart D.

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

D. Comment Procedures

118. The Commission invites interested persons to submit comments on the matters and issues proposed in this notice to be adopted, including any related matters or alternative proposals that commenters may wish to discuss. Comments are due September 22, 2020. Comments must refer to Docket No. RM20-9-000, and must include the commenter's name, the organization they represent, if applicable, and their address.

119. The Commission encourages comments to be filed electronically via the eFiling link on the Commission's website at http://www.ferc.gov. The Commission accepts most standard word processing formats. Documents created electronically using word processing software should be filed in native applications or print-to-PDF format and not in a scanned format. Commenters filing electronically do not need to make a paper filing.

120. Commenters that are not able to file comments electronically must send an original of their comments to: Federal Energy Regulatory Commission, Secretary of the Commission, 888 First Street NE, Washington, DC 20426.

121. All comments will be placed in the Commission's public files and may be viewed, printed, or downloaded remotely as described in the Document Availability section below. Commenters on this proposal are not required to serve copies of their comments on other commenters.

E. Document Availability

122. 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).

123. 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.

124. User assistance is available for eLibrary and the Commission's website during normal business hours from the Commission's Online Support at (202) 502-6652 (toll free at 1-866-208-3676) or email at ferconlinesupport@ferc.gov, or the Public Reference Room at (202) 502-8371, TTY (202) 502-8659. Email the Public Reference Room at public.referenceroom@ferc.gov.

List of Subjects in 18 CFR Part 12

• Electric power
• Reporting and recordkeeping requirements
• Safety

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

PART 12—SAFETY OF WATER POWER PROJECTS AND PROJECT WORKS

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

2. Amend § 12.3 by:

a. Revising paragraphs (b)(3), (b)(4) introductory text, and (b)(4)(ii) and (v);

b. Redesignating paragraph (b)(4)(xiii) as (b)(4)(xix);

c. Adding a new paragraph (b)(4)(xiii);

d. Redesignating paragraph (b)(11) as (b)(15);

e. Adding new paragraph (b)(11); and

f. Adding paragraphs (b)(12 through (14).

The revisions and addition read as follows:

3. Amend § 12.4 by:

a. Revising paragraphs (b)(2)(ii)(B) and (b)(2)(iii)(A) and (B);

b. Adding paragraphs (b)(2)(iii)(C) and (D);

c. Revising paragraph (c)(1), (c)(2) introductory text, and (c)(3); and

d. Adding paragraph (d).

The revisions and addition read as follows:

Subpart B—Reports and Records

4. Amend § 12.10 by revising the second sentence of paragraph (a)(1) and by revising paragraph (b) to read as follows:

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

Subpart C—Emergency Action Plans

6. Amend § 12.20 in paragraph (a) by removing the words “three copies of”.

7. Amend § 12.22 as follows:

a. In paragraph (a)(1) introductory text, remove “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)” and add in its place “the Guidelines”; and

b. In paragraph (a)(2) introductory text, remove “the guidelines established by the Director of the Office of Energy Projects” and add in its place “the Guidelines”.

8. Amend 12.24 in paragraph (c)(3) by removing the words “three copies of”.

9. Revise subpart D to read as follows:

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

Subpart E—Other Responsibilities of Applicant or Licensee

10. Redesignate §§ 12.40 through 12.44 as §§ 12.50 through 12.54, respectively.

11. Add reserved § § 12.55 through 12.59.

12. Revise newly redesignated § 12.52 to read as follows:

13. Amend newly redesignated § 12.54 as follows:

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

b. In paragraph (c)(2), remove “the periodic” and add in its place “an”.

14. Add subpart F, consisting of §§ 12.60 through 12.65, to read as follows:

Subpart F—Owner's Dam Safety Program

Footnotes