AUTHORITY: Federal Power Act, as amended, 16 U.S.C. § § 792-828c (1982); Department of Energy Organization Act, 42 U.S.C. § § 7101-7352 (1982); Executive Order No. 12009, 3 C.F.R. 142 (1978).

SOURCE: The provisions of Part 12 are contained in 46 F.R. 9029, January 28, 1981, effective March 1, 1981, unless otherwise noted.

Subpart A-General Provisions

§ 12.1 Applicability.

[¶ 12,551]

(a) Except as otherwise provided in this part or ordered by the Commission or its authorized representative, the provisions of this part apply

to:

(1) Any project licensed under Part I of the Federal Power Act;

(2) Any unlicensed constructed project for which the Commission has determined that an application for license must be filed under Part I of the Act; and

(3) Any project exempted from licensing under Part I of the Federal Power Act, pursuant to Subparts J or K of Part 4 of this chapter, to the extent that the Commission has conditioned the exemption on compliance with any particular provisions of this part.

(b) The provisions of this part apply to a project that uses a Government dam only with respect to those project works, lands, and waters specifically licenses by the Commission.

.01 46 F.R. 9029 (January 28, 1981).

.05 Historical record.-Section 12.1 read as follows prior to amendment in 46 F.R. 9029 (1/28/81), effective 3/1/81:

Unless otherwise ordered by the Commission, the provisions of this part shall

§ 12.2 Rules of construction.

apply with respect to projects licensed under Part I of the Federal Power Act having a dam exceeding 35 feet in height above stream bed or having a gross storage capacity in excess of 2000 acre feet.

[¶ 12,552]

(a) If any term, condition, article, or other provision in a project license is similar to any provision of this part, the licensee must comply with the relevant provision of this part, unless the Commission or the Director of the Office of Hydropower Licensing determines that compliance with the relevant provision of the license will better protect life, health, or property.

(b) A licensee may request from the Director of the Office of Hydropower Licensing a ruling on the applicability to its actions of any provision of its license that is similar to a provision of this part. A ruling by the Director may be appealed under § 385.207 of this chapter.

.01 49 F.R. 29369 (July 20, 1984). .05 Historical record.-Section 12.2 read as follows prior to its amendment in 46 F.R. 9029 (1/28/81), effective 3/1/81: § 12.2 Periodic inspections.

Notwithstanding any other terms and conditions of the license, the licensee shall cause a complete inspection of the projects works, excluding transmission lines and generating equipment, to be made at least every 5 years, in order to determine whether there are any deficiencies or potential deficiencies in the condition of project

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Regulations

involve the use of special equipment, instrumentation, procedures and inspection staff. In the planning of the inspection and the preparation of the reports required by § 12.5, the licensee and the consultant responsible under § 12.4 shall give due consideration to pertinent reports made by or under the direction of Federal or State agencies, prior reports submitted under this regulation, and reports made by other consultants.

Subsection a, appearing in 46 F.R. 9029 (1/28/81), effective 3/1/81, was amended in 49 F.R. 29369 (7/20/84), effective 7/13/84, by substituting "Director of the Office of

§ 12.3 Definitions.

136 7-24-84

Hydropower Licensing" for "Director of the Office of Electric Power Regulation".

Subsection (b), appearing in 46 F.R. 9029 (1/28/81), effective 3/1/81, was amended in 47 F.R. 19014 (5/3/82), effective 8/26/82, by removing "§1.7" and adding in lieu thereof "§ 385.207".

Subsection b, appearing in 47 F.R. 19014 (5/3/82), effective 8/26/82, was amended in 49 F.R. 29369 (7/20/84), effective 7/13/84, by substituting "Director of the Office of Hydropower Licensing" for "Director of the Office of Electric Power Regulation".

[¶ 12,553]

(a) General rule. For purposes of this part, terms defined in section 3 of the Federal Power Act, 16 U.S.C. 796, have the same meaning as they have under the Act.

(b) Definitions. The following definitions apply for the purposes of this part:

(1) "Applicant" means any person, state, or municipality that has applied for a license for an unlicensed, constructed project and any owner of an unlicensed, constructed project for which the Commission has determined that an application for license must be filed.

(2) "Owner" means any person, state, or municipality, or combination thereof, that has a real property interest in a water power project sufficient to operate and maintain the project works.

(3) "Authorized Commission representative" means the Director of the Office of Hydropower Licensing, the Director of the Division of Inspections, the Regional Engineer, or any other member of the Commission staff who 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; 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:

(i) Unscheduled rapid draw-down of impounded water;

(ii) Failure of any facility that controls the release or storage of impounded water, such as a gate or a valve;

(iii) Failure or unusual movement, subsidence, or settlement of any part of a project work;

(iv) Unusual concrete deterioration or cracking, including development of new cracks or the lengthening or widening of existing cracks;

¶ 12,552 § 12.2

Federal Energy Guidelines

(v) Piping, slides, or settlements of materials in any dam, abutment, dike, or embankment;

(vi) Significant slides or settlements of materials in areas adjacent to reservoirs;

(vii) Significant damage to slop protection;

(viii) Unusual instrumentation readings;

(ix) New seepage or leakage or significant gradual increase in preexisting seepage or leakage;

(x) Sinkholes;

(xi) Significant instances of vandalism or sabotage;

(xii) Natural disasters, such as floods, earthquakes, or volcanic activity;

(xiii) Any other signs of instability of any project work.

(5) "Constructed project" means any project with an existing dam. (6) "Dam" means any structure for impounding or diverting water. (7) "Development" means that part of a project comprising an impoundment and its associated dams, forebays, water conveyance facilities, power plants, and other appurtenant facilities. A project may comprise one or more developments.

(8) "Modification" means any activity, including repair or reconstruction, that in any way changes the physical features of the project from the state reflected in the plans or drawings or other documents filed with the Commission.

(9) "Project emergency" means an impending or actual sudden release of water at the project caused by natural disaster, accident, or failure of project. works.

(10) "Regional Engineer" means that person in charge of the Commission's regional office for the region (Atlanta, Chicago, Fort Worth, New York, or San Francisco) where a particular project is located.

(11) “Act” means the Federal Power Act.

.01 Subsections (a)(b)(2), 46 F.R. 9029 (January 28, 1981); subsection (b)(3), 49 F.R. 29369 (July 20, 1984); subsections (b)(4)-(11), 46 F.R. 9029 (January 28, 1981).

.05 Historical record.-Section 12.3 read as follows until its amendment in 46 F.R. 9029 (1/28/81), effective 3/1/81: § 12.3 Additional inspections.

When an inspection by the licensee or the Commission's staff reveals conditions of concern regarding the safety of any project structure or the operation of the project structure or the operation of the project works, the licensee shall cause such additional

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inspection and investigation to be made as may be found by the Commission to be warranted under the circumstances.

Subsection (b)(3), appearing in 46 F.R. 9029 (1/28/81), effective 3/1/81, read as follows until its amendment in 49 F.R. 29369 (7/20/84), effective 7/13/84:

(3) "Authorized Commission representative" means the Director of the Office of Electric Power Regulation, the Director of the Division of Hydropower Licensing, the Regional Engineer, or any other member of the Commission staff who the Commission may specifically designate.

§ 12.3 12,553