Revisions to Form, Procedures, and Criteria for Certification of Qualifying Facility Status for a Small Power Production or Cogeneration Facility, 15950-15986 [2010-6769]
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Federal Register / Vol. 75, No. 60 / Tuesday, March 30, 2010 / Rules and Regulations
DEPARTMENT OF ENERGY
Federal Energy Regulatory
Commission
18 CFR Parts 131 and 292
[Docket No. RM09–23–000; Order No. 732]
Revisions to Form, Procedures, and
Criteria for Certification of Qualifying
Facility Status for a Small Power
Production or Cogeneration Facility
Issued March 19, 2010.
AGENCY: Federal Energy Regulatory
Commission.
ACTION: Final rule.
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SUMMARY: The Federal Energy
Regulatory Commission (Commission) is
revising its regulations, which prior to
this Final Rule provided the FERC Form
No. 556 that is used in the certification
of qualifying status for an existing or
proposed small power production or
cogeneration facility. The adopted
revisions remove the contents of the
Form No. 556 from the regulations, and,
in their place, provide that an applicant
seeking to certify qualifying facility (QF)
status of a small power production or
cogeneration facility must complete,
and electronically file, the Form No. 556
that is in effect at the time of filing. We
also revise and reformat the Form No.
556 to clarify the content of the form
and to take advantage of newer
technologies that will reduce both the
filing burden for applicants and the
processing burden for the Commission.
We also adopt an exemption, for
generating facilities with net power
production capacities of 1 MW or less,
from the requirement that a generating
facility, to be a QF, file either a notice
of self-certification or an application for
Commission certification, and codify
the Commission’s authority to waive the
QF certification requirement for good
cause. Finally, we clarify, simplify or
correct certain sections of the
regulations relating to certifying QF
status.
DATES: Effective Date: This rule will
become effective June 1, 2010.
FOR FURTHER INFORMATION CONTACT:
Kenneth Thomas (Technical
Information), Division of Tariffs and
Market Development—Central Office
of Energy Market Regulation, Federal
Energy Regulatory Commission, 888
First Street, NE., Washington, DC
20426, Telephone: (202) 502–8698, email: kenneth.thomas@ferc.gov.
Paul Singh (Technical Information),
Division of Tariffs and Market
Development—Central Office of
Energy Market Regulation, Federal
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Energy Regulatory Commission, 888
First Street, NE., Washington, DC
20426, Telephone: (202) 502–8576, email: paul.singh@ferc.gov.
S.L. Higginbottom (Legal Information),
Office of the General Counsel, Federal
Energy Regulatory Commission, 888
First Street, NE, Washington, DC
20426, Telephone: (202) 502–8561, email: samuel.higginbottom@ferc.gov.
SUPPLEMENTARY INFORMATION:
Before Commissioners: Jon Wellinghoff,
Chairman; Marc Spitzer, Philip D. Moeller,
and John R. Norris.
I. Introduction
1. In this Final Rule, the Commission
is removing from § 131.80 of its
regulations 1 the contents and general
instructions of the Form No. 556 used
in the certification of qualifying status
for an existing or proposed small power
production or cogeneration facility, and,
in their place, providing that an
applicant seeking to certify qualifying
facility (QF) status of a small power
production or cogeneration facility must
complete and file the Form No. 556 that
is in effect at the time of filing (which
will be made available for download
from the Commission’s QF Web site).2
The Commission also is requiring that
the Form No. 556 be submitted to the
Commission electronically.
2. The Commission also is revising
and reformatting the Form No. 556 to
clarify the content of the form and to
take advantage of newer technologies to
reduce both the filing burden for
applicants and the processing burden
for the Commission.
3. Additionally, the Commission is
revising the procedures, standards and
criteria for QF status provided in Part
292 of its regulations to accomplish the
following: (1) Exemption of generating
facilities with net power production
capacities of 1 MW or less from the
requirement that a generating facility, to
be a QF, must file either a notice of selfcertification or an application for
Commission certification; (2)
codification of the Commission’s
authority to waive the QF certification
requirement for good cause; (3)
extension to all applicants for QF
certification the requirement (currently
applicable only to applicants for selfcertification of QF status) to serve a
copy of a filed Form No. 556 on the
affected utilities and state regulatory
authorities; (4) elimination of the
requirement for applicants to provide a
draft notice suitable for publication in
the Federal Register; and (5)
1 18
CFR 131.80.
2 https://www.ferc.gov/QF.
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clarification, simplification or
correction of certain sections of the
regulations.3
4. Finally, the Commission is
changing the exemption of QFs from the
Federal Power Act,4 and to the
exemption of QFs from the Public
Utility Holding Company Act of 2005
(PUHCA) and certain State laws and
regulations 5 to make clear that certain
small power production facilities that
satisfy the criteria of section 3(17)(E) of
the Federal Power Act qualify for those
exemptions.
5. The Commission is adopting the
revisions described above, as they will:
(1) Make the Form No. 556 easier and
less time consuming to complete and
submit; (2) decrease opportunities for
confusion and error in completing the
form; (3) improve consistency and
quality of the data collected by the form;
(4) decrease Commission resources
dedicated to managing errors and
omissions in submitted forms; and (5)
clarify and correct the regulations
governing the requirements for
obtaining and maintaining QF status.
6. The revisions to the Form No. 556
and the procedures for filing the Form
No. 556 are informed by the
Commission’s experience both with
administering the Form No. 556 and
with new technologies for electronic
data collection that have become
available since the Form No. 556 was
first established by Order No. 575 in
1995.6 The changes will increase the
effectiveness of the Commission’s
policies encouraging cogeneration and
small power production, as required by
section 210 of the Public Utility
Regulatory Policies Act of 1978
(PURPA).7
II. Background
7. When the Commission first
implemented section 201 of PURPA, it
provided two paths to QF status: Self
certification (which, as discussed below,
required no filing with the Commission)
and Commission certification.8 The
procedures for self-certification are
contained in § 292.207(a) of the
3 18
CFR Part 292.
CFR 292.601.
5 18 CFR 292.602.
6 Streamlining of Regulations Pertaining to Parts
II and III of the Federal Power Act and the Public
Utility Regulatory Policies Act of 1978, Order No.
575, 60 FR 4831 (Jan. 25, 1995), FERC Stats. & Regs.
¶ 31,014, order on reh’g, Order No. 575–A, 71 FERC
¶ 61,121 (1995).
7 16 U.S.C. 824a–3.
8 There is no fee for self-certification; there is,
however, a fee for Commission certification. 18 CFR
381.505. The Commission will not process an
application for Commission certification without
receipt of the applicable fee.
4 18
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Federal Register / Vol. 75, No. 60 / Tuesday, March 30, 2010 / Rules and Regulations
Commission’s regulations.9 When a
small power production facility or
cogeneration facility self-certifies (or
self-recertifies),10 it certifies that it
satisfies the requirements for QF status.
The Commission does not formally
review the self-certification. Instead, the
self-certification is assigned a docket
number, and Commission staff looks at
the filing to determine that the selfcertifier has provided the information
required by the regulations.
8. Self-certification was an essential
part of the Commission’s
implementation of PURPA, and was
intended, in part, to make the
certification process quick and not
unduly burdensome. Thus, when the
Commission first implemented section
201 of PURPA in Order No. 70,11 the
Commission rejected a proposal to
adopt a case-by-case Commission
certification requirement for all QFs, but
instead provided that facilities that met
the requirements for QF status need
only furnish notice to the Commission
of QF status.12 This notice (the selfcertification) was purely for
informational purposes and to help the
Commission monitor the market
penetration of QFs. QF status, however,
was established by meeting the
requirements for such status and did not
depend on the filing. Indeed, the
Commission noted that QFs and
purchasing utilities could agree that a
generating facility met the requirements
for QF status, and the facility would
qualify for the benefits of PURPA
without making any filing with the
Commission.
9. The Commission recognized,
however, that the self-certification
process would not always satisfy all
those interested in a particular facility’s
status. Accordingly, the Commission
also established, in § 292.207(b) of the
regulations,13 an ‘‘optional procedure’’
9 18
CFR 292.207(a).
recertification is a type of certification,
policies applicable to self-certification and
application for Commission certification also apply
to self-recertification and application for
Commission recertification.
11 Small Power Production and Cogeneration
Facilities—Qualifying Status, Order No. 70, FERC
Stats. & Regs., Regulations Preambles 1977–1981
¶ 30,134 (1980), order on reh’g, Order Nos. 69–A
and 70–A, FERC Stats. & Regs., Regulations
Preambles 1977–1981 ¶ 30,160 (1980), aff’d in part
and vacated in part, American Electric Power
Service Corp. v. FERC, 675 F.2d 1226 (D.C. Cir.
1982), rev’d in part, American Paper Institute, Inc.
v. American Electric Power Service Corp., 461 U.S.
402 (1983).
12 Order No. 70, FERC Stats. & Regs. ¶ 30,134 at
30,954. As discussed below, the Commission, in
2005, added a requirement that a cogeneration
facility or small power production facility either
self-certify or receive Commission certification to
have QF status. See 18 CFR 292.203(a)(3), (b)(2).
13 18 CFR 292.207(b).
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10 Because
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for QF status. Under this optional
procedure, an entity may file an
application for a determination by the
Commission that a facility meets the
requirements for QF status. Such an
application requires a filing fee.14 After
receiving an application for Commission
certification and the required fee, the
Commission assigns the filing a docket
number and notices the filing in the
Federal Register, providing an
opportunity for interventions and
protests. The Commission’s regulations
provide that it will act on an application
within 90 days of the filing (or of its
supplement or amendment). The
process gives those that need assurance
of a facility’s QF status (or lack of such
status) a Commission order certifying
(or denying) QF status. This optional
procedure is commonly known as an
application for Commission
certification. In its original regulations,
the Commission also provided that,
once a facility was certified by the
Commission, its qualifying status could
be revoked by the Commission, upon
the Commission’s own motion, or upon
the motion of any person.15 This
combination of encouraging selfcertifications, while providing for both
Commission-certification and an
opportunity to seek revocation of QF
status, would assure, the Commission
believed, that only those generation
facilities that meet the criteria for QF
status would receive and retain that
status.
10. As noted above, the Commission,
when it first enacted its regulations, had
hoped that self-certifications would be
the primary means for obtaining QF
status, but recognized that there would
be instances in which a Commission
ruling on QF status would be desirable.
While the Commission later, in Order
No. 575, required QFs to provide more
detailed information about selfcertifying QFs, through Form No. 556,
the Commission continued to encourage
self-certification, but also recognized
that there would be reasons that a QF
may want or need Commission
certification (including the requirement
of some lenders, electric utilities, or
14 18
CFR 381.505.
18 CFR 292.207(d)(ii). A similar
opportunity for the Commission to revoke the QF
status of a self-certified facility on the
Commission’s own motion, or on the motion of
another party, was not expressly provided in the
regulations; the Commission, however, allowed
others to seek the revocation of a self-certified QF
by filing a petition for declaratory order. In Order
No. 671, infra note 17, the right to file a motion
seeking revocation of a self-certification was added
to the Commission’s regulations. A motion seeking
revocation requires a filing fee as a declaratory
order. Chugach Electric Association, Inc., 121 FERC
¶ 61,287, at P 51–54 (2007). The filing fee for a
declaratory order is provided in 18 CFR 381.302.
15 See
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state regulators that a generator seeking
QF status and the benefits of PURPA be
Commission-certified). The Commission
thus sought to make the selfcertification process more informative
about the nature of the self-certified QFs
while keeping the process relatively
simple.
11. Following the enactment of the
Energy Policy Act of 2005 (EPAct 2005),
which imposed new requirements for
QF status for ‘‘new’’ cogeneration
facilities,16 the Commission issued
Order No. 671,17 which implemented
those new requirements. As part of that
implementation, for the first time,
notices of self-certifications for new
cogeneration facilities were required to
be published in the Federal Register;
self-certifications, other than for new
cogeneration facilities, are not
published in the Federal Register. In
addition, as noted above, for the first
time, the Commission required the filing
of a notice of self-certification or an
application for Commission certification
as a requirement for QF status.18
III. Revisions to Regulations
A. General
NOPR Proposal
12. The Commission proposed in the
NOPR 19 to revise its regulations and the
Form No. 556 to improve and simplify
the QF certification process. In
particular, the Commission proposed to
remove the contents of the Form No.
556 from the regulations, and, in their
place, to provide that an applicant
seeking to certify QF status of a small
power production or cogeneration
facility must complete, and
electronically file, the Form No. 556 that
is in effect at the time of filing. The
Commission also proposed to revise and
reformat the Form No. 556 to clarify the
content of the form and to take
advantage of newer technologies that
will reduce both the filing burden for
16 A ‘‘new’’ cogeneration facility is defined as any
cogeneration facility that was either not a qualifying
cogeneration facility on or before August 8, 2005,
or that had not filed a notice of self-certification,
self-recertification or an application for
Commission certification or Commission
recertification as a qualifying cogeneration facility
prior to February 2, 2006. 16 U.S.C. 824a–3(n)(2)(B);
18 CFR 292.205(d).
17 Revised Regulations Governing Small Power
Production and Cogeneration Facilities, Order No.
671, 71 FR 7852 (Feb. 15, 2006), FERC Stats. & Regs.
¶ 31,203 (2006), order on reh’g, Order No. 671–A,
71 FR 30585 (May 30, 2006), FERC Stats. & Regs.
¶ 31,219 (2006).
18 See 18 CFR 292.203(a)(3), (b)(2).
19 Revisions to Form, Procedures, and Criteria for
Certification of Qualifying Facility Status for a
Small Power Production or Cogeneration Facility,
Notice of Proposed Rulemaking (NOPR). 74 FR
54,503 (Oct. 22, 2009), FERC Stats. & Regs. ¶ 32,648
(2009).
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Federal Register / Vol. 75, No. 60 / Tuesday, March 30, 2010 / Rules and Regulations
applicants and the processing burden
for the Commission. The Commission
also proposed to exempt generating
facilities with net power production
capacities of 1 MW or less from the QF
certification requirement, and to codify
the Commission’s authority to waive the
QF certification requirement for good
cause. Finally, the Commission
proposed to clarify, simplify or correct
certain sections of the regulations.
Comments
13. Seven parties filed comments in
response to the NOPR.20 The following
sections provide a detailed discussion of
the parties’ comments, however,
commenters generally express support
for the Commission’s proposals
regarding the Form No. 556 and to
clarify, simplify or correct certain
sections of the regulations. In particular,
most of the commenters support the
Commission’s proposal to remove the
contents of the Form No. 556 from the
regulations and require applicants to
electronically file the Form No. 556 that
is in effect at the time of filing, with the
exception of certain concerns expressed
by Interstate Renewable and objections
raised by Southern. Commenters also
generally support the Commission’s
proposal to revise and reformat the
Form No. 556 to clarify the content of
the form and to take advantage of newer
technologies.
14. The issue most-discussed in
parties’ comments is the proposed
exemption of generating facilities with a
net power production capacity of 1 MW
or less from the requirement to file a
Form No. 556 in order to be a QF. Most
of the commenters agree in concept with
the Commission’s proposal to establish
a threshold at or below which
generating facilities would be exempt
from the requirement to make a filing in
order to be a QF. However, the parties
differ on the appropriate size of such a
threshold.
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Commission Determination
15. The Commission adopts the NOPR
proposals to: (1) Remove the contents of
the Form No. 556 from the regulations,
and, in their place, to provide that an
applicant seeking to certify the QF
status of a small power production or
cogeneration facility must complete,
and electronically file, the Form No. 556
20 Interstate Renewable Energy Council and
SolarCity (Interstate Renewable); Sun Edison LLC
(Sun Edison); The National Rural Electric
Cooperative Association (NRECA); Edison Electric
Institute (EEI); U.S. Clean Heat & Power Association
(U.S. Clean Heat & Power); Southern Company, Inc.
(Southern); and Tayrn Rucinski (an individual).
Southern filed on behalf of Alabama Power
Company, Georgia Power Company, Gulf Power
Company, and Mississippi Power Company.
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that is in effect at the time of filing; (2)
revise and reformat the Form No. 556 to
clarify the content of the form and to
take advantage of newer technologies;
(3) exempt generating facilities with net
power production capacities of 1 MW or
less from the QF certification
requirement; (4) codify the
Commission’s authority to waive the QF
certification requirement for good cause;
(5) extend to all applicants for QF
certification the requirement (currently
applicable only to applicants for selfcertification of QF status) to serve a
copy of a filed Form No. 556 on the
affected utilities and state regulatory
authorities; (6) eliminate the
requirement for applicants to provide a
draft notice suitable for publication in
the Federal Register; (7) clarify,
simplify or correct certain sections of
the regulations; and (8) change to the
exemption of QFs from the Federal
Power Act,21 and to the exemption of
QFs from the Public Utility Holding
Company Act of 2005 (PUHCA) and
certain State laws and regulations 22 to
make clear that certain small power
production facilities that satisfy the
criteria of section 3(17)(E) of the Federal
Power Act qualify for those exemptions.
16. The revisions to the Form No. 556
and the procedures for filing the Form
No. 556 are informed by the
Commission’s experience both with
administering the Form No. 556 and
with new technologies for electronic
data collection that have become
available since the Form No. 556 was
first established by Order No. 575 in
1995.23 The changes will increase the
effectiveness of the Commission’s
policies encouraging cogeneration and
small power production, as required by
section 210 of the Public Utility
Regulatory Policies Act of 1978
(PURPA).24
B. Revisions to 18 CFR 131.80
NOPR Proposal
17. Currently, § 131.80 of the
Commission regulations contains the
text of Form No. 556 as well as
instructions on how to complete the
form. In the NOPR, the Commission
proposed that § 131.80 of the
Commission’s regulations will no longer
contain Form No. 556. In place of the
current language, we proposed to
require in § 131.80(a) that any person
21 18
CFR 292.601.
CFR 292.602.
23 Streamlining of Regulations Pertaining to Parts
II and III of the Federal Power Act and the Public
Utility Regulatory Policies Act of 1978, Order No.
575, 60 FR 4831 (Jan. 25, 1995), FERC Stats. & Regs.
¶ 31,014, order on reh’g, Order No. 575–A, 71 FERC
¶ 61,121 (1995).
24 16 U.S.C. 824a–3.
22 18
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seeking to certify a facility as a QF must
complete and electronically file the
Form No. 556 then in effect and in
accordance with the instructions then
incorporated in that form.
18. The Commission also proposed to
require, through proposed § 131.80(c),
that applicants submit their QF
applications (whether initial
certifications or recertifications, and
whether self-certifications or
applications for Commission
certification) electronically via the
Commission’s eFiling Web site.
Comments
19. Most commenters support the
Commission’s proposal to remove the
contents of the Form No. 556 from the
regulations and to require applicants to
electronically file the Form No. 556 that
is in effect at the time of filing.
20. Interstate Renewable supports the
proposal that future changes to the form
not require a rulemaking, but would be
reviewed by the Office of Management
and Budget following a solicitation of
comments from the public on any
proposed changes, but requests
assurance that the parties interested in
commenting on future proposed
changes to Form No. 556 would receive
the same notice and opportunity to
comment that they would have under a
formal rulemaking. Southern requests
the Commission not make future
changes to Form No. 556 without a
formal rulemaking proceeding, arguing
that if Form No. 556 can be revised
without a formal rulemaking it could
harm QFs and applicants by creating
confusion.
Commission Determination
21. The Commission adopts its
proposal to remove the contents of the
Form No. 556 from its regulations, and,
in their place, to provide that an
applicant seeking to certify QF status of
a small power production or
cogeneration facility must complete,
and electronically file, the Form No. 556
that is in effect at the time of filing.
Revising § 131.80, as proposed, will
make it easier to clarify and correct the
form, should such changes prove
necessary or appropriate in the future.
Future changes to the form would be
reviewed by the Office of Management
and Budget following a solicitation of
comments from the public on proposed
changes, but would not require a formal
rulemaking. This treatment is consistent
with how a number of other
Commission information collections are
managed, including FERC Form Nos. 1,
1–F, 3–Q, 60, 80, 714, and 715, as well
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as the FERC Form No. 580
Interrogatory.25
22. An electronic filing process will
be faster, easier, less costly and less
resource-intensive than hardcopy filing.
An applicant filing electronically will
receive an acknowledgement that the
Commission has received the
application and a docket number for the
submittal much more quickly than it
would by filing in hardcopy format.
Also, electronic filing will allow the
Commission to electronically process
QF applications, dramatically reducing
required staff resources and human
error, and allowing the Commission to
identify patterns of reporting errors and
noncompliance that would be difficult
to detect through manual processing.
Finally, electronic filing of QF
applications will facilitate the
compilation of QF data that could be
made available to the public. Each year
Commission staff fields a number of
requests for QF certification data from
private organizations, researchers and
other government agencies. Requiring
applicants to file in electronic format
will make it possible to respond to
many more such requests, and/or to
publish compiled QF data on the
Commission’s Web site.
23. In response to Interstate
Renewable’s comments, we note that
parties will have an opportunity in
response to a solicitation for comments
under the Paperwork Reduction Act to
comment on any future proposed
revisions to the Form No. 556. We note
that this is similar to the comment
procedures currently provided under
the Commission’s rulemaking process.
For this reason, we also deny Southern’s
request to maintain the Form No. 556 in
the regulations and to continue to
require a Commission rulemaking for
any changes to the form.
C. Revisions to 18 CFR 292.203
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NOPR Proposal
24. Section 292.203 of our
regulations 26 lists the general
requirements for QF status. For a
qualifying small power production
facility, those requirements currently
state that the facility must meet the
maximum size criteria specified in
§ 292.204(a), meet the fuel use criteria
specified in § 292.204(b), and must have
filed a notice of self-certification or an
application for Commission certification
that has been granted. For a qualifying
cogeneration facility, those
requirements currently state that the
facility must meet any applicable
operating and efficiency standards
provided in § 292.205(a) and (b), and
that the facility must have filed a notice
of self-certification or an application for
Commission certification that has been
granted.
25. In the NOPR, the Commission
proposed to correct an inadvertent error
in § 292.203(b)(1) of our regulations.27
Order No. 671 implemented additional
technical requirements for certain
cogeneration facilities in § 292.205(d),
but § 292.203(b)(1) was not updated to
reflect that a facility must comply with
these new requirements (if applicable)
in order to be a qualifying cogeneration
facility. The Commission proposed to
add the reference to § 292.205(d) in
§ 292.203(b). Because the technical
requirements of § 292.205(d) are not
‘‘operating and efficiency standards,’’ the
Commission proposed to amend
§ 292.203(b) to delete the phrase
‘‘operating and efficiency standards’’ and
to replace it with the phrase ‘‘standards
and criteria.’’
26. Finally, the Commission sought
comments on whether to add a
§ 292.203(d) which would (1) exempt
certain small facilities from the
requirement to make a filing for
qualifying status, and (2) would make
explicit the Commission’s authority to
grant waiver of the filing requirement
upon a showing of good cause.28
27. The Commission also proposed a
Form No. 556 exemption with a 1 MW
threshold. The Commission explained
that, while electronic filing of QF
certifications has many benefits, some of
the parties submitting applications for
certification of QF status are small
entities that consider the cost of legal
representation to be burdensome and/or
that lack access to the computer
facilities necessary to make an
electronic filing. To address this
concern, the Commission proposed to
amend § 292.203 to exempt the
applicants with a net power production
capacity of 1 MW or less, from the
requirement to make any filing with the
Commission in order to be a QF.
Comments
28. No commenters oppose codifying
the Commission’s authority to waive the
QF certification requirement for good
cause.
29. Commenters generally agree in
concept with the Commission’s
proposal to establish a net power
production capacity threshold at or
below which generating facilities would
27 18
CFR 292.203(b)(1).
Ashland Windfarm, LLC, 124 FERC
¶ 61,068 (2008) (Commission granted waiver of the
filing requirement for QF status).
28 Citing
25 18
26 18
CFR 366.23.
CFR 292.203.
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15953
be exempt from a filing requirement in
order to be a QF. However, they differ
on what threshold the Commission
should establish. NRECA agrees with
the proposal to set a threshold of 1 MW
for solar, wind, and hydropower
facilities. However, NRECA requests the
Commission establish a 50 kW
threshold for facilities relying on other
resources that are subject to significant
requirements covering the type of fuel
used as a primary energy source, fuel
efficiency, and/or the fundamental use
of the energy produced. Sun Edison and
Interstate Renewables request a higher
threshold of 2 MW to (among other
things) conform with the Commission’s
Small Generator Interconnection
Procedures (SGIP) ‘‘Fast Track’’
threshold, and, according to Sun Edison
to cover all retail solar installations.
Also, Interstate Renewables seeks
clarification that the Commission will
allow small power production facilities
to file an application for Commission
certification notwithstanding the
proposed exemption.
30. EEI and Southern request the
Commission to establish the threshold
at 100 kW. EEI argues that the 1 MW
threshold is too high and does not
accurately reflect the typical production
capacity of the small residential
generation technologies the Commission
appears to be targeting. EEI suggests onsite residential power generation
technologies (such as solar panels) are
typically on the order of 5 kW output.
Southern argues that most residential
generators (e.g., solar panels on houses),
for which this exemption may be
appropriate, have a nameplate capacity
of 10 kW or less and that an exemption
up to 1 MW could allow many
businesses which should have access to
the legal representation and computer
facilities needed to electronically file a
Form No. 556 to avoid the QF
certification process. Taryn Rucinski
also requests that the Commission
significantly decrease the proposed 1
MW threshold, if the Commission’s
intention is to exempt residential or
truly small facilities.
31. Southern requests the following
clarifications: (1) QFs that are exempt
from filing a Form No. 556 may still be
required to provide notice or attestation
to the relevant electric utilities that the
facility is in fact a QF; (2) a utility may
rely upon such a notice or attestation;
and (3) an exempt QF should be
required to provide important
information to the electric utility,
including principal components of the
facility (electric generators,
transformers, switchyard equipment),
fuel type, maximum gross and net
output, expected installation and
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operation dates as required to determine
the impact of the QF on the safety and
reliability of the electric system.
32. EEI also requests clarification on
a number of matters related to an
exemption threshold. Specifically, EEI
requests the Commission also provide
the following: (1) Clarification that
utilities and/or state commissions may
require proof that a facility meets the
requirements to become a QF and may
still require the facility to provide
‘‘necessary technical design
information’’ through ‘‘another form of
attestation’’ that the facility meets the
eligibility requirements to be a QF; (2)
clarification that disputes regarding the
QF eligibility of facilities that are not
required to submit filings may be
brought to the Commission for
resolution; (3) clarification that a utility
may terminate or otherwise abrogate the
QF contract of a facility that is exempt
from filing requirements if it finds that
the facility in fact does not meet the
criteria to be considered a QF, or the
facility owner made fraudulent or false
representations regarding its satisfaction
of QF eligibility criteria; (4) that any
increase in power production capacity
requires a new Interconnection Request
and that certain changes other than
power production capacity increase also
may trigger the Material Modification
provisions of the Commission’s
Interconnection Procedures; (5) revision
to § 292.310 of the Commission’s
regulations to require a utility that is
seeking relief from PURPA mandatory
purchase obligations to provide only the
name and address of any QF that is
exempt from filing with the Commission
to obtain QF status.29
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Commission Determination
33. The Commission adopts the NOPR
proposal to update § 292.203(b) to
reflect that a qualifying cogeneration
facility must comply with any
applicable requirements in § 292.205(d),
and to make explicit the Commission’s
authority to grant waiver of the filing
requirement upon a showing of good
cause.
34. The Commission also adopts the
NOPR proposal to add a § 292.203(d) to
exempt facilities with a net power
production capacity of 1 MW or less
from the requirement to make a filing
with the Commission in order to be a
QF. The Commission notes that, until
the effective date of Order No. 671, no
filing, either of a self-certification or an
application for Commission
29 EEI notes that § 292.310 information collection
is the subject of the Commission’s current request
for OMB renewal of FERC–912 in Docket IC09–912–
000.
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certification, was needed for a facility to
claim QF status.30 In instituting a filing
requirement for QF status in Order
No. 671, the Commission, among other
things, explained that requiring a filing
would help ensure that a ‘‘new’’
cogeneration facility would not be able
to claim QF status without making a
filing; 31 the Commission believed that
the Congressional mandate to tighten
the standards for cogeneration facilities
required that a filing, either a selfcertification or an application for
Commission certification, be made by
an entity claiming QF status.32
However, for facilities that are
comparatively small, such as solar
generation facilities installed at
residences or other relatively small
electric consumers such as retail stores,
hospitals, or schools (and, in fact, many
of the filings received in recent years
involve just such small solar and windpowered facilities), there may not be as
compelling a need for filings with the
Commission for QF status.
35. The Commission adopts the
originally-proposed 1 MW filing
threshold for exemption from the
requirement to make a filing for QF
status. We find that a 1 MW threshold,
consistent with PURPA’s mandate,33
encourages QFs—both cogeneration and
small power production—by
eliminating the burden of filing. And a
1 MW threshold appropriately balances
the competing claims of those seeking a
lower threshold and those seeking a
higher threshold. A lower threshold,
while perhaps exempting facilities
installed at residences, would
nevertheless continue to impose a
requirement to file on facilities, such as
facilities installed at retail stores,
hospitals, or schools, that are among the
small facilities that PURPA was equally
intended to promote. Facilities larger
than 1 MW, however, represent a
significant departure from the smallest
generation (residential, retail, hospitals,
schools, etc.) and such larger facilities
should not find the filing requirement
30 While not required, a facility seeking to claim
QF status had the option of filing a self-certification
or an application for Commission certification, and
many facilities chose to do so. Here, as we explain
below, we are adopting an exemption from the
requirement to file for facilities with a net power
production capacity of 1 MW or less. As before,
though, while not required, a facility with a net
power production capacity of 1 MW or less seeking
to claim QF status has the option of filing a selfcertification or an application for Commission
certification should it choose to do so.
31 As noted below, over the last five years, the
percentage of facilities that are cogeneration
facilities 1 MW or smaller filing for QF status has
proven to be comparatively small.
32 Order No. 671, FERC Stats. & Regs. ¶ 31,203 at
P 81.
33 See 16 U.S.C. 824a–3(a).
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for QF status to represent an undue
burden. Facilities over 1 MW would
typically require a significant capital
outlay, on the order of hundreds of
thousands or millions of dollars, and the
additional burden, both financial and
otherwise, of filing with the
Commission will be comparatively
minimal. Moreover, looking at QF
filings for the last five years, we see that
a substantial portion of such QF filings
are from smaller facilities. QF
certification filings from facilities 1 MW
or smaller represented approximately 48
percent of all QF filings. The filings
from these facilities, however,
represented only a small percentage of
the total capacity being certified as QFs;
filings from facilities 1 MW or smaller
represented only approximately one half
of one percent of QF capacity certified.
Given these figures, the need for filings
from such facilities is equally small;
such facilities, whether or not they are
required to file a Form 556, would
rarely, if ever, not be in compliance
with the standards and criteria for QF
status.
36. We see no significant benefit to
NRECA’s suggestion that we adopt a 1
MW threshold for facilities fueled by
renewable resources but a separate,
lower threshold for facilities fueled by
other resources. In this regard we note
that from 2006 to date there were 2,142
Form 556 filings made by facilities 1
MW and smaller. Of those, only three
percent were made by cogeneration
facilities, with the rest being small
power production facilities, and 90
percent were made by solar-powered
and wind-powered small power
production facilities (the rest were made
by other small power production
facilities). Thus, the vast majority of the
1 MW and smaller QFs are the solarpowered and wind-powered facilities
that NRECA agrees should have a 1 MW
threshold. To the extent that NRECA
and others believe that small facilities
fueled by other resources should be
subject to the higher level of scrutiny
that a Form 556 filing enables, we
discuss below means to monitor
compliance with the criteria for QF
status that are available to purchasing
utilities.
37. In exempting smaller generating
facilities from the requirement to file a
Form 556 in order to obtain QF status,
the Commission is simply reverting, for
these 1 MW and below facilities only,
back to the policy that existed prior to
Order No. 671, where QF status did not
depend on such a filing. At that time, a
facility’s QF status was dependent only
on whether the facility met the technical
criteria for QF status, and was not
dependent upon the applicant having
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made a certification filing with the
Commission.
38. A transacting utility, of course,
needs necessary technical information
from a QF in order to safely and reliably
interconnect and transact with the QF,
and we would expect a QF to provide
such information.34 And a purchasing
electric utility currently may contest a
facility’s QF status if it does not agree
with the facility’s claim to that status.
Thus, utilities currently may file a
petition for revocation of QF status for
any facility that holds itself out as a QF
but which the utility reasonably
believes does not meet the requirements
for QF status,35 just as they could prior
to Order No. 671. The Commission has
not proposed to change these
regulations in this proceeding.
39. Electric utilities, however, may
not refuse to purchase electric energy
from a QF that is exempt from the
requirement that it file a Form 556, or
unilaterally terminate or otherwise
abrogate a legally enforceable obligation
or a contract with a QF that is exempt
from the requirement that it file a Form
556, absent a favorable finding by the
Commission in response to a petition for
revocation of QF status.
40. The Commission agrees with
Interstate Renewables that facilities
exempt from the QF filing requirement
for QF status may (at their option) file
a self-certification or an application for
Commission certification
notwithstanding the exemption.
41. The Commission declines to
address, as beyond the scope of this
proceeding, EEI’s requests (1) to modify
18 CFR 292.310 to require a utility that
is seeking relief from PURPA mandatory
purchase obligations to provide only the
name and address of any QF that is
exempt from filing with the Commission
to obtain QF status,36 and (2) for the
Commission to remind QFs that ‘‘any
34 Such information would include principal
components of the facility (electric generators,
transformers, switchyard equipment), fuel type,
maximum gross and net output, expected
installation and operation dates as required to
determine the impact of the QF on the safety and
reliability of the electric system. A purchasing
utility may also ask a QF that has not filed a Form
556 to provide the utility an attestation that the QF
meets the requirements for QF status.
35 18 CFR 292.207(d).
36 We note, however, that the Commission does
not expect a utility to provide, in a PURPA section
210(m) filing, a QF docket number for a potentiallyaffected QF that has not filed, or not yet filed, for
QF status. Similarly, in a PURPA section 210(m)
filing, where the potentially affected QF’s plans are
not sufficiently definite such that the QF does not,
in fact, know the information required for the filing
so that a filing utility does not have information
required by section 292.310 of our regulations, the
filing utility may state that it does not have the
information and state why the information is not
available.
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increase in MW requires a new
Interconnection Request and that certain
changes other than MW increase also
may trigger the Material Modification
provisions of the Commission’s
Interconnection Procedures.’’
D. Revisions to 18 CFR 292.204
NOPR Proposal
42. Section 3(17)(E) of the Federal
Power Act provides that an ‘‘eligible
solar, wind, waste or geothermal
facility’’ is a facility which produces
electric energy solely by the use, as a
primary energy source, of solar energy,
wind energy, waste resources or
geothermal resources, but only if such
facility meets certain criteria for dates of
certification and construction. Section
3(17)(A) of the Federal Power Act
provides that any eligible solar, wind,
waste, or geothermal facility is a small
power production facility, regardless of
its size. The Commission implemented
these sections of the Federal Power Act
in § 292.204(a), including the statement
that there are no size limitations for
‘‘eligible’’ solar, wind or waste
facilities,37 as defined by section
3(17)(E) of the Federal Power Act. The
regulation then states that, for ‘‘a noneligible facility,’’ the size limitation for
a qualifying small power production
facility is 80 MW.
43. In the NOPR, the Commission
explained that the wording of
§ 292.204(a) has created confusion for
many applicants. Applicants not
familiar with section 3(17)(A) or (E) of
the Federal Power Act frequently
confuse the statutory concept of
‘‘eligibility’’ with more general questions
of whether a facility is eligible for QF
status. They often assume that an
‘‘eligible facility’’ is any facility that is
eligible for qualifying status. In an
attempt to reduce such confusion, the
Commission proposed to revise
§ 292.204(a) to be more clear (avoiding
using the term ‘‘eligible’’) while
achieving the same regulatory outcome
as the current § 292.204(a).
Comments
44. No comments were received on
the Commission’s proposal to clarify the
wording of § 292.204(a). However, EEI
requests that the Commission revisit the
‘‘one-mile rule’’ used to determine
whether two facilities are part of the
same QF for purposes of § 292.204(a),
and asks that the Commission adopt a
rebuttable presumption that facilities on
37 The Commission pointed out in the NOPR that
‘‘geothermal’’ was inadvertently omitted when the
regulation was written. However, the Commission
explained that the proposed changes obviate the
need to correct this omission.
PO 00000
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15955
sites located more than one mile apart
are independent for purposes of QF
certification, but that utilities would be
allowed to rebut this presumption upon
a showing that the facilities, although
located more than a mile apart, are ‘‘part
of a common enterprise’’ and should
thus be considered as a single entity, not
entitled to more separate certifications
of QF status.
Commission Determination
45. The Commission adopts the NOPR
proposal to revise § 292.204(a) to be
more clear (avoiding using the term
‘‘eligible’’) while achieving the same
regulatory outcome. The Commission
declines, as beyond the scope of this
proceeding, the request by EEI to adopt
a presumption that facilities on sites
located more than one mile apart are
independent for purposes of QF
certification, and that such presumption
be rebuttable based on considerations
EEI enumerates.38
E. Revisions to 18 CFR 292.205
NOPR Proposal
46. In the NOPR, the Commission
explained that the text of § 292.205(d) of
the Commission’s regulations 39
contains an error in the description of
the new cogeneration facilities that are
subject to the requirements of
§§ 292.205(d)(1) and (2). Section
292.205(d) provides that the following
facilities are subject to these
requirements:
any cogeneration facility that was either
not certified as a qualifying cogeneration
facility on or before August 8, 2005, or that
had not filed a notice of self-certification,
self-recertification or an application for
Commission certification or Commission
recertification as a qualifying cogeneration
facility under § 292.207 of this chapter prior
to February 2, 2006, and which is seeking to
sell electric energy pursuant to section 210 of
the Public Utility Regulatory Policies Act of
1978, 16 U.S.C. 824a–1.40
47. From this language, the criteria for
QF status include whether or not a
cogeneration facility was ‘‘certified as’’ a
qualifying cogeneration facility by
August 8, 2005.41 However, the text of
section 210(n)(2) of PURPA states that
the Commission’s prior cogeneration
requirements shall continue to apply to
any facility that ‘‘was a qualifying
cogeneration facility on [August 8,
38 We note that the one-mile rule has been part
of the Commission’s regulations since the initial
implementation of PURPA.
39 18 CFR 292.205(d).
40 Id. (emphasis added).
41 The significance of August 8, 2005 is that it is
the date on which the Energy Policy Act of 2005
was signed into law.
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2005].’’ 42 Furthermore, at the time of
enactment of EPAct 2005, the
Commission’s regulations did not
require that a facility that complied with
the requirements for QF status be self or
Commission certified in order to be a
QF.43 As such, there were many
facilities that were QFs on August 8,
2005, even though they were not self or
Commission certified as QFs by that
date. To correct this error, the
Commission proposed to strike the
words ‘‘certified as’’ from the first
sentence of § 292.205(d).
48. Section 210(n)(2) of PURPA also
states that the Commission’s prior
cogeneration requirements will continue
to apply to any facility that ‘‘had filed
with the Commission a notice of selfcertification, self recertification or an
application for Commission certification
under 18 CFR 292.207 prior to [February
2, 2006].’’ 44 The Commission
implemented this provision in
§ 292.205(d) by not applying the new
cogeneration requirements to any
cogeneration facility that had filed ‘‘a
notice of self-certification, selfrecertification or an application for
Commission certification or
Commission recertification as a
qualifying cogeneration facility under
§ 292.207 of this chapter prior to
February 2, 2006.’’ Because any facility
that had recertified (either by selfrecertification or application for
Commission recertification) prior to
February 2, 2006 must necessarily have
made its original certification prior to
February 2, 2006, the Commission
proposed in the NOPR that the
inclusion of ‘‘self-recertification’’ and
‘‘application for Commission
recertification’’ in this provision is
unnecessary. The Commission proposed
to simplify § 292.205(d) to state that the
new cogeneration requirements will not
apply to any facility that had filed ‘‘a
notice of self-certification or an
application for Commission certification
as a qualifying cogeneration facility
under § 292.207 of this chapter prior to
February 2, 2006.’’
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Comments
49. No comments were filed on this
proposal.
Commission Determination
50. The Commission adopts the NOPR
proposals to strike the words ‘‘certified
as’’ from the first sentence of
§ 292.205(d) and to simplify
§ 292.205(d) to state that the new
42 16
U.S.C. 824a–3(n)(2)(A) (emphasis added).
43 See Order No. 671, FERC Stats. & Regs. ¶
31,203 at P 81.
44 16 U.S.C. 824a–3(n)(2)(B).
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cogeneration requirements will not
apply to any facility that had filed ‘‘a
notice of self-certification or an
application for Commission certification
as a qualifying cogeneration facility
under § 292.207 of this chapter prior to
February 2, 2006.’’ The proposed
revisions achieve the intended
regulatory result of the existing
regulatory text while decreasing the
complexity of the regulatory text, and
thus the opportunities for confusion.
F. Revisions to 18 CFR 292.207
1. Elimination of Pre-Authorized
Commission Recertification
NOPR Proposal
51. In the NOPR, the Commission
proposed to eliminate the procedure for
pre-authorized Commission
recertification contained in
§ 292.207(a)(2).45 That procedure was
established to give applicants for
facilities that have been certified under
the procedures for Commission
certification in § 292.207(b) a list of
insubstantial alterations and
modifications that would not result in
the revocation of QF status previously
granted by the Commission. Section
292.207(a)(2)(ii) also requires those
making the changes listed in
§ 292.207(a)(2)(i) to notify the
Commission and each affected utility
and State regulatory authority of each
such change.
52. The Commission explained in the
NOPR that the pre-authorized
Commission recertification process did
not require the use of Form No. 556, and
that historically the very few applicants
that filed pre-authorized Commission
recertifications did so in the form of a
letter describing the changes to their
facilities. The Commission further
explained that, in this rulemaking, we
were implementing procedures to
require that self-certifications or
applications for Commission
certification be made through the
electronic submission of a Form No.
556, and that removing the preauthorized recertification option
ensures that all QF certification filings
will be made electronically using a
Form No. 556. The Commission
explained that it could opt to revise the
procedure for the pre-authorized
Commission recertification to require
such filings to be made electronically
using a Form No. 556, but that such a
revised procedure would be essentially
identical to the procedure for selfcertification. The Commission
explained that having such a
duplicative procedure appeared
45 18
PO 00000
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unjustified, particularly given the
increase in complexity to the Form No.
556 and the Commission’s regulations
that would result from such a
procedure.
53. The Commission further noted
that the types of changes listed in
§ 292.207(a)(2)(i) were somewhat
misleading, as a strict reading of that list
implied that almost any change to a QF,
no matter how small, would require
notice to the Commission and to the
affected utilities and State regulatory
authorities. In reality, the Commission
explained, changes falling below a
certain level of importance were not
significant enough to justify the burden
on the applicant of the recertification
requirement.
Comments
54. EEI and Southern support the
proposal to eliminate the procedure for
pre-approved Commission
reauthorization.
55. Sun Edison, on the other hand,
requests that the Commission retain a
list of pre-approved QF changes that
would not require QF recertification,
and otherwise clarify the trigger
threshold for recertification. In this
regard, Sun Edison requests clarification
of what the Commission meant in the
NOPR by its statement that ‘‘changes
falling below a certain level of
importance are not significant enough to
justify the burden on the applicant of
the recertification requirement.’’ 46 In
particular, Sun Edison argues that
changes in ownership should not trigger
a re-filing requirement. Sun Edison
suggests that, if the Commission does
not eliminate the reporting requirement
for ownership information as requested
by Sun Edison and addressed below, the
Commission consider requiring that the
applicant only provide ownership
information once in Form No. 556 and
that no subsequent change in QF
ownership require a refiling of Form No.
556, or that, for subsequent change in
QF ownership, the applicant only
provide the Commission with a list of
affected QF dockets, rather than submit
an entire new Form No. 556 for each QF
in which it owns an interest. Finally,
Sun Edison requests that for all or some
small power QFs, especially those
without fuel or size limitations, the
Commission grant a ‘‘continued
presumption’’ of QF status as long as
such facilities continue to comply with
the criteria for QF status (other than the
46 NOPR Revision to Form, Procedures, and
Criteria for Certification of Qualifying Facility
Status for a Small Power Production or
Cogeneration Facility, 74 FR 54503 (Oct. 22, 2009),
FERC Stats. & Regs. ¶ 32,648 at P 28.
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filing requirements) and do not change
their essential nature.
Commission Determination
56. The Commission will adopt the
proposal to eliminate pre-authorized
Commission certification. The
procedure was little used. Moreover,
because pre-authorized recertifications
were usually filed in letter format, and
the Commission is in this rulemaking
requiring that all self-certifications and
Commission certifications be made
through an electronic submission of a
Form No. 556, removal of the preauthorized recertification option
ensures that all QF certification filings
will be made electronically using a
Form No. 556.
57. The Commission declines Sun
Edison’s request to include a list in the
regulations of specific changes that
would not require QF recertification.
Section 292.207(d) of the Commission’s
regulations provides that ‘‘if a qualifying
facility fails to conform with any
material facts or representations
presented by the cogenerator or small
power producer in its submittals to the
Commission, the [applicant’s
certification] may no longer be relied
upon.’’ This standard will continue to
provide the basis for when
recertification of facilities is necessary,
i.e., when facilities fail to conform with
any material facts or representations
presented in an applicant’s previous
certification.47 This standard has been
in place for decades and, in our
experience, has provided the guidance
needed to QFs to decide whether to
make a recertification filing; in the
absence of any evidence that the process
requires modification, we decline to do
so at this time.48
58. The Commission also denies Sun
Edison’s request that the Commission
consider requiring that applicants need
only provide ownership information in
the initial certification filing, and that
no subsequent changes in QF ownership
need be reported. The Commission
notes that the Commission determined
in Order No. 671 that, despite the
elimination in EPAct 2005 of the
ownership restrictions, ownership
information assists the Commission in
monitoring potential discrimination in
the provision of service to customers
and assists the Commission in
reviewing the extent to which various
QFs should continue to be exempt from
various provisions of the FPA and state
laws.49 Although the revised Form No.
556 adopted in this Final Rule relaxes,
to some extent, when a QF is required
to disclose its owners,50 the
Commission’s finding in Order No. 671
about the usefulness of ownership
information continues to be true today.
Thus, we will continue the QF
ownership reporting requirement,
including the requirement that any
change in material facts and
representations triggers a recertification
requirement. We clarify, however, that
the Commission will not consider a
change in ownership to be a change in
material facts and representations made
in the previous filing if no owner
increases their equity interest by at least
10 percent from the equity interest
previously reported.51
59. We also decline Sun Edison’s
request that applicants be allowed, in
recertifications reporting ownership
changes, to only provide the
Commission with a list of affected QF
dockets rather than submit a new Form
No. 556 for each QF in which it owns
a reportable interest. The Commission
may, however, on a case-by-case basis,
choose to waive requirement to file
Form No. 556.
2. Elimination of Procedures for
Referring to Information From Previous
Certifications
NOPR Proposal
60. Section 292.207(a)(1)(iii) provides
that subsequent notices of selfrecertification for the same facility may
reference prior self-certifications or
prior Commission certifications, and
need only refer to changes which have
occurred with respect to the facility
since the prior notice or the prior
Commission certification. In the NOPR,
the Commission proposed to delete this
provision, and, as a result, to change the
Commission’s policy so that applicants
are required to provide all of the
information for their facility in each
Form No. 556 they submit with a selfrecertification or an application for
Commission recertification.
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49 Order
47 In
response to Sun Edison’s request, we clarify
that this standard also establishes the ‘‘certain level
of importance’’ (referred to in P 28 of the NOPR) of
a change below which the burden on the applicant
of the recertification requirement is not justified.
NOPR at P 28.
48 We note that Commission staff may be
contacted by QFs for informal guidance whether a
particular change to a QF may require a
recertification.
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No. 671 at P 110.
the Commission found that utility
owners should be disclosed, see id., the Form No.
556 adopted in this Final Rule does not require
disclosure of any owners with less than a 10
percent equity interest in the facility.
51 To avoid any confusion, we note that the
addition of an owner not previously reported and
that holds an equity interest of 10 percent or more
would be a material change that would require
recertification.
50 While
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Comments
61. EEI concurs with the
Commission’s proposal to delete
§ 292.207(a)(1)(iii) and suggests the
Commission also require all currentlycertified QFs to re-file their information
electronically within two years after a
final rule becomes effective.
62. On the other hand, U.S. Clean
Heat & Power disagrees with the NOPR
proposal, and requests that the
Commission retain the ability to
reference prior notices or prior
Commission certifications and to refer
only to changes which have occurred
with respect to the facility since the
prior notice or certification. U.S. Clean
Heat & Power argues that, although the
Commission characterizes the
submission of all of the required
information as a ‘‘small, one-time
burden,’’ for many applicants compiling
such information would require a
significant amount of time.
Commission Determination
63. The Commission adopts the NOPR
proposal to require applicants to
provide all of the information for their
facility in each Form No. 556 they
submit with a self-recertification or an
application for Commission
recertification. The Commission adopts
the NOPR proposal to delete the
provision in § 292.207(a)(1)(iii) that
provides that subsequent notices of selfrecertification for the same facility may
reference prior self-certifications or
prior Commission certifications, and
need only refer to changes which have
occurred with respect to the facility
since the prior notice or the prior
Commission certification.
64. This proposed change will result
in greater transparency: During the
processing of routine QF petitions and
periodic compliance reviews of selfcertifications, the Commission
frequently finds that the original
certification data for some facilities
(particularly facilities originally
certified in the 1980s) can be difficult to
obtain. Notwithstanding U.S. Clean Heat
& Power’s claim, requiring the provision
of full data in a recertification would be
a small, one-time burden for applicants,
because applicants may, after their first
recertification subsequent to a Final
Rule implementing this proposal,
simply download their previous
electronically-filed Form No. 556 from
eLibrary and update the relevant
responses to generate their new Form
No. 556. Given the significant benefit
and the small, one-time burden,
deletion of § 292.207(a)(1)(iii) is
appropriate.
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65. We disagree with U.S. Clean Heat
& Power’s assessment of the time
requirements associated with adopting
this proposal, and find that, for most
facilities that are properly monitoring
their compliance with the relevant QF
standards, the burden even of recreating
the most complex cogeneration portions
of the Form No. 556 is not
unreasonable.52 Qualifying cogeneration
facilities are, after all, required to
comply with operating and efficiency
standards for both the 12-month period
beginning with the date the facility first
produces electric energy, and any
calendar year subsequent to the year in
which the facility first produces electric
energy.53 Applicants properly
monitoring compliance with the QF
requirements should have the data
necessary to complete the Form No. 556
reasonably accessible. We clarify, to the
extent necessary, that applicants which
have archived their original filings need
not necessarily undertake extensive
searches for those original filings, or
undertake extensive efforts to recreate
the data in those original filings. Rather,
current operating data can (and should)
be used when recertifying a facility,
particularly if any material changes
have been made to the operation of the
facility.
66. For small power production
facilities the burden on applicants
should be minimal, and we note that no
parties representing the interests of
small power production facilities have
objected to this proposal.
67. We will not, however, impose the
requirement, suggested by EEI, that
existing QFs not seeking recertification
nevertheless be required to file a new
Form 556 within two years of the
issuance of the Final Rule; where
recertification is neither necessary nor
sought, the burden of such a filing is
unjustified.
3. Elimination of Requirement To
Provide a Draft Notice Suitable for
Publication in the Federal Register
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NOPR Proposal
68. Section 292.207(a)(1)(iv) of our
regulations 54 currently requires that
notices of self-certifications and selfrecertifications for new cogeneration
facilities be published in the Federal
Register. Similarly, § 292.207(b)(4) of
our regulations 55 requires that notices
52 U.S. Clean Heat & Power, representing the
interests of combined heat and power facilities, is
presumably concerned with the relatively complex
operating and efficiency data that must be reported
for qualifying cogeneration facilities.
53 18 CFR 292.205(a)(1), (a)(2) and (b); Order No.
671 at P 51.
54 18 CFR 292.207(a)(1)(iv).
55 18 CFR 292.207(b)(4).
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of applications for Commission
certification or recertification be
published in the Federal Register. For
these applications that require
publication of notices in the Federal
Register, §§ 292.207(a)(1)(iv) and (b)(4)
require that applicants provide with
their filing a draft notice suitable for
publication in the Federal Register on
electronic media.
69. In the NOPR, the Commission
proposed to continue to publish notices
of self-certification and selfrecertification for new cogeneration
facilities and applications for
Commission certification and
recertification in the Federal Register,
and included that requirement in the
proposed § 292.207(c). However, the
Commission proposed to delete
§§ 292.207(a)(1)(iv) and (b)(4) in order to
eliminate the requirement that
applicants for those types of filings
provide a draft notice suitable for
publication in the Federal Register.
Comments
70. No comments were received on
this issue.
Commission Determination
71. The Commission adopts the NOPR
proposal to delete §§ 292.207(a)(1)(iv)
and (b)(4) in order to eliminate the
requirement that applicants for those
types of filings provide a draft notice
suitable for publication in the Federal
Register. The Commission will be able
to automatically generate Federal
Register notices directly from the
electronic Form No. 556 data, without
requiring a draft notice be submitted by
the applicant.
4. Requirement To Serve a Copy of a
Form No. 556 on Affected Utilities and
State Commissions
NOPR Proposal
72. Currently applicants for selfcertification are required to serve a copy
of their QF self-certification filings on
each electric utility with which they
expect to interconnect, transmit or sell
electric energy to, or purchase
supplementary, standby, back-up and
maintenance power from, and the State
regulatory authority of each state where
the facilities and each affected electric
utility is located.56 No such requirement
currently exists for applications for
Commission certification.
73. In the NOPR, the Commission
proposed to amend the regulations to
require that any applicant filing a selfcertification, self-recertification,
application for Commission certification
or application for Commission
56 18
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recertification must serve a copy of its
filing on each affected electric utility
and State regulatory authority.
Comments
74. Interstate Renewables suggests
exempting small QFs that will be
exempt under proposed § 202.203(d)(1)
from the requirement to file a Form 556
from the notice requirements contained
in proposed § 292.207(c)(2).
75. Interstate Renewables also
requests that proposed § 292.207(c)(2)
be modified to provide that a utility is
not required to purchase electric energy
from a facility until 5 days (rather than
90 days) after the facility meets the
notice requirements in section (c)(1) of
this section.
Commission Determination
76. The Commission adopts the
proposal to require that any applicant
filing an application for Commission
certification, or an application for
Commission recertification, in addition
to those filing for self-certification or
self-recertification, must serve a copy of
its filing on each affected electric utility
and State regulatory authority. We see
no justification for those filing an
application for Commission certification
or Commission certification to be
exempt from this requirement.
77. The Commission denies Interstate
Renewables’s request to decrease the
time provided in § 292.207(c)(2) for an
electric utility to begin purchasing
electric energy from 90 days to 5 days;
90 days has long been part of the
Commission’s regulations and we are
not persuaded to change it. However,
we instead adopt in § 292.207(c)(2) the
regulatory text more closely aligned
with that § 292.207(c), so that
§ 292.207(c)(2) will read as follows:
(2) Facilities of 500 kW or more. An electric
utility is not required to purchase electric
energy from a facility with a net power
production capacity of 500 kW or more until
90 days after the facility notifies the utility
that it is a qualifying facility, or 90 days after
the facility meets the notice requirements in
paragraph (c)(1) of this section.
As a result of adopting this language,
§ 292.207(c)(2) will maintain the current
policy that the 90-day requirement can
be satisfied with notification to the
utility, instead of tying it to a filing with
the Commission. In light of this change,
we also decline Interstate Renewables’
proposal to begin § 292.207(c)(2) with
the phrase ‘‘Except for a facility exempt
under § 202.203(d)(1).’’ Because, as
explained above, a facility will be able
to notify the electric utility without
necessarily having to make a Form No.
556 filing with the Commission, we see
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applicable to other small power
production facilities, does not apply to
‘‘eligible facilities.’’ 60
no reason to modify this 500 kW
threshold.
5. Other Proposed Changes
NOPR Proposal
78. In the NOPR, the Commission
proposed to remove reference to ‘‘preauthorized Commission recertification’’
in the title of § 292.207(a) and in the text
of § 292.207(d)(1)(i). The Commission
also proposed to delete the current
§ 292.207(a)(1), and to replace it, in
§ 292.207(a), with a procedure for selfcertification that incorporates clear
reference to proposed § 131.80 and to
the notice requirements in § 292.207(c).
IV. Proposed Revisions to the Form No.
556
Comments
NOPR Proposal
88. In the NOPR, the Commission
proposed to make a number of changes
to the content and organization of the
Form No. 556. The proposed revised
Form No. 556 was made available for
download from the Commission’s QF
Web site, and was published in the
Federal Register.61 As discussed above,
the Commission did not propose to
include the content of the Form No. 556
in the Commission’s regulations. Rather,
the Commission proposed that the
changed Form No. 556, once approved,
will become ‘‘the Form No. 556 then in
effect’’ for purposes of proposed
§ 131.80. The Commission therefore
gave notice of its proposed changes to
Form No. 556, and explained that it
intended to submit the revised Form No.
556 for OMB approval pursuant to the
provisions of the Paperwork Reduction
Act,62 after receiving and considering
comments on those changes.
89. In addition to the structure of the
proposed Form No. 556, the
Commission proposed to include in the
Final Rule version of the form data
controls, automatic calculations, error
handling and other programmatic
features to assist applicants and
maintain data quality.
90. The Commission explained that
most of the proposed changes to the
Form No. 556 were intended to make
use of new electronic data structuring.
The Commission further explained that
while, in most cases, it proposed to
collect the same data that is currently
collected in the Form No. 556, the new
form would allow the Commission to
more efficiently administer the QF
program. The Commission explained
that staff spends a significant amount of
time working with applicants that either
misunderstand the current form, pay
insufficient attention to the
informational requirements on the
current form, or both. The Commission
explained that, by making Form No. 556
easier to understand, it would make the
submission of Form No. 556 less
burdensome to applicants.
91. The Commission further
explained that its experience had been
that the open-ended nature of the
current Form No. 556 data collection—
where applicants are able to type any
answer or no answer in response to an
82. No comments were filed on this
proposal.
Commission Determination
Commission Determination
80. The Commission adopts the NOPR
proposal to remove reference to ‘‘preauthorized Commission recertification’’
in the title of § 292.207(a) and in the
body text of § 292.207(d)(1)(i). The
Commission also adopts the NOPR
proposal to delete the current
§ 292.207(a)(1), and to replace it, in
§ 292.207(a), with a procedure for selfcertification that incorporates clear
reference to proposed § 131.80 and to
the notice requirements in § 292.207(c).
83. The Commission adopts the NOPR
proposal to amend § 292.601(a) of its
regulations to make clear the exemption
from the specified Federal Power Act
sections is applicable to any facility that
meets the definition of an ‘‘eligible solar,
wind, waste or geothermal facility’’
under section 3(17)(E) of the Federal
Power Act.
84. We note that, because § 292.602(a)
states that the exemption from the
PUHCA and State laws and regulations
provided by that section applies to any
QF described in § 292.601(a), and
because the QFs described by
§ 292.601(a) include all QFs other than
those described by § 292.601(b), the
Incentives Act’s exemption of ‘‘eligible
facilities’’ from the size limitation
contained in § 292.601(b) also has the
effect of making such facilities eligible
for the exemptions from PUHCA and
State laws and regulations.
G. Revisions to 18 CFR 292.601
H. Revisions to 18 CFR 292.602
NOPR Proposal
81. In the NOPR, the Commission
proposed to amend § 292.601(a) of its
regulations 58 to make clear the
exemption from the specified Federal
Power Act sections is applicable to any
facility that meets the definition of an
‘‘eligible solar, wind, waste or
geothermal facility’’ under section
3(17)(E) of the Federal Power Act.
Section 4 of the Solar, Wind, Waste, and
Geothermal Power Production
Incentives Act of 1990 (Incentives
Act) 59 provides that ‘‘eligible facilities’’
shall not be subject to the size
limitations contained in § 292.601(b) of
the Commission’s regulations, unless
the Commission otherwise specifies.
The Commission there explained that it
had found that the size limitation for
eligibility for the exemptions contained
in §§ 292.601 and 292.602, otherwise
NOPR Proposal
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Comments
79. No comments were received on
this issue.57
57 Sun Edison did file comments, summarized
and discussed above, opposing the elimination of
the pre-authorized Commission recertification
procedure from the regulations; however, in the
current section the Commission addresses only the
editorial revisions to the regulations to
accommodate the policy determinations made by
the Commission above.
58 18 CFR 292.601(a).
59 Pub. L. 101–575, 104 Stat. 2834 (1990), as
amended by Pub. L. 102–46, 105 Stat. 249 (1991).
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85. In the NOPR, the Commission
proposed to amend § 292.602(c)(1) to
clarify that it is only the QFs described
in paragraph (a) of that section that may
take advantage of the exemptions
provided in § 292.602, and to correct a
typographical error. Finally, the
Commission proposed to correct a
typographical error in the title of
§ 292.602.
Comments
86. No comments were filed on this
proposal.
Commission Determination
87. The Commission adopts the NOPR
proposal to amend § 292.602(c)(1) to
clarify that it is only the QFs described
in paragraph (a) of that section that may
take advantage of the exemptions
provided in § 292.602, and to correct a
typographical error. The Commission
also adopts the NOPR proposal to
correct a typographical error in the title
of § 292.602.
60 Cambria Cogen Co., 53 FERC ¶ 61,459, at
62,619 (1990).
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A. General
61 https://www.ferc.gov/QF. The revised Form No.
556, as adopted, will not be attached to the
Microsoft Word version of this Final Rule, but will
be published in the Federal Register.
62 44 U.S.C. 3507(d).
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item—often resulted in applicants
incorrectly answering or skipping items
or portions of items that they mistakenly
feel do not apply to them. The
Commission proposed to implement
improved instructions, use a greater
number of questions which are
individually narrower in scope, and use
certain electronic data controls and
validation options, such as checkboxes
and data entry fields that only accept
data formatted in the appropriate way to
minimize these problems.
Comments
92. No comments were filed on this
proposal.
Commission Determination
93. We will adopt the new revised
Form No. 556, as proposed in the NOPR,
with minor clarifications and
corrections. As explained in the NOPR,
we expect that the revised form both
will be less burdensome to those filling
out the form and will provide the
Commission with information that is
more accurate and readily accessible.
B. Name of Form
NOPR Proposal
94. In Order No. 575, the Commission
adopted San Diego Gas and Electric
Company’s suggestion to title the Form
No. 556 to make clear that it applies to
proposed as well as to existing
facilities.63 In the NOPR, the
Commission did not propose to change
the applicability of the form to proposed
and existing facilities; however, as part
of its attempt to make the Form No. 556
as simple and clear as possible, the
Commission proposed to shorten the
name of the form to ‘‘Certification of
Qualifying Facility (QF) Status for a
Small Power Production or
Cogeneration Facility.’’
Comments
95. No comments were filed on this
proposal.
Commission Determination
96. The Commission adopts the NOPR
proposal to shorten the name of the
Form No. 556 to ‘‘Certification of
Qualifying Facility (QF) Status for a
Small Power Production or
Cogeneration Facility.’’
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C. Geographic Coordinates
NOPR Proposal
97. In the NOPR, the Commission
explained that, over the years, it had
received a number of inquiries from the
public seeking certain information about
63 Order No. 575, 60 FR 4831 (Jan. 13, 1995),
FERC Stats. & Regs. ¶ 31,014, at 31,282 and 31,285.
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QFs. Many of these inquiries were from
academics, research organizations or
other government entities performing
studies of the effectiveness of PURPA
and the Commission’s regulations
implementing PURPA. Often such
inquiries have involved the locations of
the QFs. The Commission explained
that, currently, location information is
collected only through the street address
of the facility, even though some
facilities in rural or wilderness areas do
not have a street address.
98. The Commission explained that it
may be useful to researchers (as well as
the public in general, and affected
electric utilities and State regulatory
authorities in particular) to have
specific locational data for QFs, even for
facilities that do not have street
addresses. The Commission explained
that, in addition to having value for
researchers, such specific locational
data would also provide a transparent
means of determining compliance with
the size requirement for small power
production facilities, which is based in
part on the distance between adjacent
generating facilities. As such, the
Commission proposed to include a new
line 3c that will require applicants for
facilities without a street address to
provide the geographic coordinates
(latitude and longitude) of their
facilities.
Comments
99. Southern supported this proposal.
No other comments were filed on this
proposal.
Commission Determination
100. The Commission adopts the
NOPR proposal to include a new line 3c
that will require applicants for facilities
without a street address to provide the
geographic coordinates (latitude and
longitude) of their facilities. The text of
line 3c directs applicants to the
Geographic Coordinates section of the
instructions on page 4 which discusses
several different ways through which
applicants might obtain the geographic
coordinates of their facilities: Through
certain free online map services (with
links available through the
Commission’s QF Web site); a GPS
device; Google Earth; a property survey;
various engineering or construction
drawings; a property deed; or a
municipal or county map showing
property lines. Applicants are directed
in line 3c to provide their geographic
coordinates to three decimal places, and
are given a simple formula for how to
convert degrees, minutes and seconds to
decimal degrees.
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D. Ownership
NOPR Proposal
101. In Order No. 671, the
Commission eliminated the limitation
on electric utility and electric utility
holding company ownership of QFs, but
maintained the requirement that
applicants provide ownership
information in the Form No. 556.64
102. In the NOPR, the Commission
explained that the wording of item 1c of
the current Form No. 556 has proven
confusing with respect to the collection
of ownership information. In particular,
the Commission explained that item 1c
did not specify the amount of equity
interest in the facility above which the
applicant is required to identify the
owner. For facilities with many owners,
this can prove burdensome, particularly
if the ownership changes frequently.
103. The Commission also explained
that experience had shown that the
current wording of item 1c proves
confusing to applicants with respect to
which types of owners (direct or
upstream) they are supposed to identify.
104. The Commission proposed to
clarify both the level of ownership
above which applicants are required to
identify owners, and which information
must be provided for direct and
upstream owners. First, while
maintaining the current requirement
that applicants indicate the percentage
of direct ownership held by any electric
utility 65 or holding company,66 the
Commission proposed to clarify in line
5a of the proposed Form No. 556 that an
applicant need only provide
information for direct owners that hold
at least 10 percent equity interest in the
facility.67 Second, the Commission
proposed to require in line 5b that
applicants identify all upstream owners
that both (1) hold at least a 10 percent
equity interest in the facility and (2) are
electric utilities or holding companies.
Comments
105. EEI and Southern support the
Commission’s clarification of level of
ownership. As discussed above, Sun
Edison requests the Commission
64 Order No. 671, FERC Stats. & Regs. ¶ 31,203 at
P 110.
65 As defined in section 3(22) of the Federal
Power Act. 16 U.S.C. 796(22).
66 As defined in section 1262(8) of the Public
Utility Holding Company Act of 2005. 42 U.S.C
16451(8).
67 The Commission explained in the NOPR that
the 10 percent ownership threshold was proposed
to be consistent with the 10 percent ownership
thresholds used in the definition of a ‘‘holding
company’’ in section 1262(8) of the Public Utility
Holding Company Act of 2005, 42 U.S.C. 16451(8),
and in the definition of ‘‘affiliate’’ in 18 CFR
35.36(a)(9).
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consider the legal basis for requiring
that ownership be tracked by the
Commission and asks that changes in
ownership not trigger a re-filing
requirement, or that the Commission
consider requiring that the QF owner
only provide ownership information
once in the original Form No. 556 and
that no subsequent change in QF
ownership require a refiling of Form No.
556, or that, for a subsequent change in
QF ownership, the QF owner only
provide the Commission with a list of
affected QF dockets, rather than submit
an entire new Form No. 556 for each QF
in which it owns an interest.
Commission Determination
106. The Commission adopts the
NOPR proposal to clarify the level of
ownership above which applicants are
required to identify owners, and which
information must be provided for direct
and upstream owners. Specifically, the
Commission, while maintaining the
requirement that applicants indicate the
percentage of direct ownership held by
any electric utility 68 or holding
company,69 the Commission adopts the
NOPR proposal to clarify in line 5a of
Form No. 556 that an applicant need
only provide information for direct
owners that hold at least 10 percent
equity interest in the facility. Also, the
Commission adopts the NOPR proposal
to require in line 5b that applicants
identify all upstream owners that both
(1) hold at least a 10 percent equity
interest in the facility and (2) are
electric utilities or holding companies.
107. We deny Sun Edison’s requests
that we either not collect this
information, or collect it only in
connection with the original Form No.
556, or otherwise narrow the collection
of this information, for the reasons
stated earlier in this Final Rule.
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E. Fuel Use for Small Power Production
Facilities
NOPR Proposal
108. Section 292.204(b) of the
Commission’s regulations 70 allows
small power production facilities to use
oil, natural gas or coal in amounts up to
and including 25 percent of the total
energy input to the facility as calculated
during the 12-month period beginning
with the date the facility first produces
electric energy and any calendar year
subsequent to the year in which the
facility first produces electric energy.
68 As defined in section 3(22) of the Federal
Power Act. 16 U.S.C. 796(22).
69 As defined in section 1262(8) of the Public
Utility Holding Company Act of 2005. 42 U.S.C
16451(8).
70 18 CFR 292.204(b).
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Such use of oil, natural gas or coal is
limited to certain purposes specified in
section 3(17)(B) of the Federal Power
Act as implemented in § 292.204(b)(2) of
the Commission’s regulations.71
109. Item 7 of the current Form No.
556 requires applicants to describe ‘‘how
fossil fuel use will not exceed 25
percent of the total annual energy input
limit,’’ and ‘‘how the use of fossil fuel
will be limited to the following
purposes to conform to Federal Power
Act section 3(17)(B): Ignition, start-up,
flame stabilization, control use, and
minimal amounts of fuel required to
alleviate or prevent unanticipated
equipment outages and emergencies
directly affecting the public.’’ In the
NOPR, the Commission explained that
experience with this item had indicated
two problems. First, because applicants
have significant latitude in how they
respond in the current Form No. 556,
they often make statements which do
not, on their face, commit themselves to
fuel use that would meet the
Commission’s requirements for
qualifying small power production
facilities. While these responses are
unlikely to represent an intentional
attempt on the part of applicants to
circumvent the Commission’s
regulations for fuel use, the statements
could make enforcement of the
Commission’s regulations more
difficult.
110. On the other hand, the
Commission explained, applicants who
were very specific in their response to
item 7 may have felt that they have
committed themselves to only engage in
the particular uses they specified in
their Form No. 556, despite the fact that
the Commission’s regulations may
permit more flexibility in the use of
fossil fuel.
111. The Commission thus proposed
a simpler method of certifying
compliance with the Commission’s fuel
use requirements for small power
production facilities, one intended to
avoid these problems. Rather than
requiring applicants to describe how
they will comply, the Commission
proposed to simply state what the fuel
use requirements are, and to require the
applicant to certify, by checking a box
next to each requirement, that they will
comply. The Commission explained that
this proposal will obligate the applicant
to comply with the stated requirements,
while not creating an impression that
the applicant must limit its fuel use to
some standard which is more stringent
than that established in the
Commission’s regulations.
71 18
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Comments
112. No comments were received on
this issue.
Commission Determination
113. Rather than continuing to require
applicants to describe how they will
comply with the fuel use, the
Commission adopts the NOPR proposal
that Form No. 556 will simply state
what the fuel use requirements are, and
require the applicant to certify, by
checking a box next to each
requirement, that they will comply.
F. Mass and Heat Balance Diagrams for
Cogeneration Facilities
NOPR Proposal
114. Item 10 of the current Form No.
556 requires applicants for qualifying
cogeneration facility status to provide a
mass and heat balance diagram
depicting average annual hourly
operating conditions. As part of item 10,
applicants are required to provide the
following on their mass and heat
balance diagrams: All fuel flow inputs
in Btu/hr. specified using lower heating
value, separately indicating fuel inputs
for supplementary firing; average net
electric output in kW or MW; average
net mechanical output in horsepower;
number of hours of operation used to
determine the average annual hourly
facility inputs and outputs; and working
fluid flow conditions at input and
output of prime mover(s) and at delivery
to and return from each useful thermal
application. Working fluid flow
conditions required to be provided
include the following: Flow rates in
lbs./hr.; temperature in °F; pressure in
psia; and enthalpy in Btu/lb.
115. In the NOPR, the Commission
explained that some applicants had
complained that, for relatively simple
cogeneration facilities, some of the
information required is meaningless or
not known. For example, small diesel
generators utilizing jacket water cooling
systems to capture waste heat were
often certified as qualifying
cogeneration facilities. Such systems
typically have no steam at any point in
the system, and instead use pressurized
water or an antifreeze solution to
recover the waste heat and transport it
to the useful thermal application. For
such systems, applicants had
complained that specifying pressure has
no significance, since the effect of
pressure on enthalpy (a measure of
thermal energy content) is negligible for
liquids at standard conditions.
Likewise, applicants had complained
that, since pressure in all-liquid systems
is not an important design variable, it
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was often not known to any degree of
accuracy in such systems.
116. The Commission also explained
that some applicants had pointed out
that, in systems which were all liquid
water, the extra effort required to
determine and specify enthalpy was not
necessary. Since enthalpy in liquid
water is a nearly linear function of
temperature (because the specific heat
of water does not vary significantly
under standard conditions),
specification of temperature at each
required location and a specification of
the specific heat of the working fluid
(usually water) is all that is necessary to
describe the energy balance of the
cogeneration facility.
117. Agreeing with these points, the
Commission proposed in the NOPR to
include language in new line 10b of the
Form No. 556 indicating that, for
systems where the working fluid is
liquid only (no vapor at any point in the
cycle) and where the type of liquid and
specific heat of that liquid is clearly
indicated on the diagram or in the
Miscellaneous section of the Form No.
556, only mass flow rate and
temperature (not pressure and enthalpy)
need be specified.
118. The Commission explained that
its experience had shown that a
relatively high level of deficiency and
rejection letters for QF applications
were a result of noncompliance with the
requirements for the mass and heat
balance diagram. The Commission
stated that this was likely due to a
combination of the fact the requirements
for the mass and heat balance diagram
were long, technical and not always
clear, and the fact that some applicants
did not put sufficient effort and
attention into ensuring compliance. To
improve reporting and to decrease
future noncompliance, the Commission
proposed to require applicants for
qualifying cogeneration facility status to
certify compliance with each of the
requirements for the mass and heat
balance diagram by checking a box next
to each written requirement. The
Commission expected that, by requiring
applicants to proceed box by box
through the individual requirements,
which would be stated more clearly
than in the current Form No. 556,
reporting would improve and
noncompliance would drop
dramatically.
Comments
119. No comments were filed on this
proposal.
Commission Determination
120. The Commission adopts the
NOPR proposal to include language in
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new line 10b of the Form No. 556
indicating that, for systems where the
working fluid is liquid only (no vapor
at any point in the cycle) and where the
type of liquid and specific heat of that
liquid is clearly indicated on the
diagram or in the Miscellaneous section
of the Form No. 556, only mass flow rate
and temperature (not pressure and
enthalpy) need be specified.
121. The Commission also adopts the
NOPR proposal to require applicants for
qualifying cogeneration facility status to
certify compliance with each of the
requirements for the mass and heat
balance diagram by checking a box next
to each written requirement. This
should improve reporting and decrease
noncompliance.
G. EPAct 2005 Cogeneration Facilities
NOPR Proposal
122. In response to EPAct 2005, the
Commission implemented in Order No.
671 additional requirements for new
cogeneration facilities selling power
pursuant to section 210 of PURPA.72
The Commission implemented the
‘‘productive and beneficial’’ and
‘‘fundamental use’’ requirements of
EPAct 2005 through the inclusion of a
new section in the Form No. 556 that
required applicants to respond to the
text of the statute, providing applicants
space to demonstrate compliance with
EPAct 2005’s requirements. In the
NOPR, the Commission explained that,
in practice, Form No. 556 had not
provided sufficient guidance to
applicants whether their facilities enjoy
a presumption of compliance under
§ 292.205(d)(4) of the Commission’s
regulations, or whether such facilities
fall within the safe harbor established
by the ‘‘fundamental use test’’ in
§ 292.205(d)(3).
123. The Commission noted in the
NOPR that, in implementing the
‘‘productive and beneficial’’ requirement
of EPAct 2005, the Commission
essentially maintained its long-standing
‘‘usefulness’’ standard, except that what
it deemed as presumptively useful was
now rebuttable.73 The Commission
explained that the current Form No. 556
requirement that applicants demonstrate
compliance both with the ‘‘productive
72 Congress in EPAct 2005, and the Commission
in implementing EPAct 2005, referred to the
facilities subject to the EPAct 2005 requirements as
‘‘new’’ cogeneration facilities. 16 U.S.C. 824a–3(n);
18 CFR 292.205(d). To avoid confusion that this
‘‘new’’ label will create as time passes and such
facilities are not ‘‘new’’ anymore (except with
respect to the date of the implementation of EPAct
2005), we will refer in the Form No. 556 to such
facilities as ‘‘EPAct 2005 cogeneration facilities.’’
73 Order No. 671, FERC Stats. & Regs. ¶ 31,203 at
P 17.
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Fmt 4701
Sfmt 4700
and beneficial’’ standard (in item 15)
and the ‘‘useful’’ standard (in items 12,
13 and/or 14) could be condensed and
streamlined without degrading the
information provided or the level of
Commission and public oversight of the
QF program. The Commission proposed
to consolidate these requirements into
the portion of the proposed Form No.
556 where applicants demonstrate the
‘‘usefulness’’ of the thermal output (lines
12a, 12b, 14a, and 14b of the proposed
form).
124. The Commission explained that
the ‘‘fundamental use’’ requirement for
EPAct 2005 cogeneration facilities, on
the other hand, involved data collection
that was specific to EPAct 2005
facilities. As such, the Commission
proposes to implement a new section of
the Form No. 556 entitled ‘‘EPAct 2005
Requirements for Fundamental Use of
Energy Output from Cogeneration
Facilities.’’ This section would replace
the current ‘‘For New Cogeneration
Facilities’’ section. The Commission
proposed this new section to facilitate
an applicant’s determination, in
accordance with the applicable
regulations (1) whether the EPAct 2005
cogeneration requirements apply to its
facility, given the date on which the
facility was originally a QF or originally
filed for QF certification; (2) whether (if
applicable) its pre-EPAct 2005 facility is
subject to EPAct 2005 by virtue of
changes to the facility which essentially
make it a ‘‘new’’ EPAct 2005 facility; (3)
whether its facility is excluded from the
‘‘fundamental use’’ requirement by
virtue of the fact that power will not be
sold from the facility pursuant to
section 210 of PURPA; (4) whether its
facility enjoys a rebuttable presumption
of compliance with the ‘‘fundamental
use’’ requirement by virtue of its small
electric output; and/or (5) whether its
facility complies with the fundamental
use requirement by virtue of meeting the
fundamental use test established in
§ 292.205(d)(3) of the Commission’s
regulations. If an applicant’s facility is
found to be subject to the EPAct 2005
requirements, but to fail the
fundamental use test, then the applicant
is instructed by line 11d of the proposed
Form No. 556 to provide a narrative
explanation of and support for why its
facility meets the requirement that the
electrical, thermal, chemical and
mechanical output of an EPAct 2005
cogeneration facility is used
fundamentally for industrial,
commercial, residential or institutional
purposes and is not intended
fundamentally for sale to an electric
utility, taking into account
technological, efficiency, economic, and
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variable thermal energy requirements, as
well as state laws applicable to sales of
electric energy from a QF to its host
facility.
125. Additionally, in proposed line
11c, applicants are required to provide
information to be used in determining
whether a modification to a pre-EPAct
2005 cogeneration facility might be so
significant that the facility should be
considered a new facility that would be
subject to the additional requirements
(if applicable) for EPAct 2005
cogeneration facilities. In Order No. 671,
the Commission established a rebuttable
presumption that a pre-EPAct 2005
cogeneration facility does not become
an EPAct 2005 cogeneration facility
merely because it files for
recertification; however, the
Commission cautioned that ‘‘changes to
an existing cogeneration facility could
be so great (such as an increase in
capacity from 50 MW to 350 MW) that
what an applicant is claiming to be an
existing facility should, in fact, be
considered a ‘new’ cogeneration facility
at the same site.’’ 74 The Commission
explained in the NOPR that it will
continue this rebuttable presumption,
but also that it was proposing to require
that an applicant filing a selfrecertification or an application for
Commission recertification for a preEPAct 2005 cogeneration facility
provide sufficient information about any
changes to the facility to evaluate
whether in fact the changes are so
significant that the facility should be
considered an EPAct 2005 cogeneration
facility.
126. Thus, under the Commission’s
proposal, an applicant for recertification
of a pre-EPAct 2005 cogeneration
facility which intends to rely upon the
rebuttable presumption that
recertification of its existing facility
does not make the facility subject to
EPAct 2005’s requirements must
provide a description of the relevant
changes to the facility, including the
purpose of the changes, and an
explanation why the facility should not
be considered an EPAct 2005
cogeneration facility.
Comments
127. EEI requests clarifications
regarding the threshold above which
changes to a facility would be deemed
significant enough to render a facility
‘‘new’’ for the purposes of the new
cogeneration requirements. Specifically,
EEI requests that a facility be found to
be ‘‘new’’ if (1) there has been a material
change in the electrical characteristics
(such as size and/or number of
74 Id.
P 115.
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generators), or (2) there has been a
material change in the utilization of
thermal energy (such as reduction in
useful thermal output). EEI recommends
that the Commission consider
establishing a rebuttable presumption
that a 20 percent or greater sustained
change in electrical or thermal output of
a QF is a material change that would
render it an EPAct 2005 cogeneration
facility, but that an existing certified
cogeneration facility would have the
opportunity to provide evidence to
rebut this presumption.
Commission Determination
128. The Commission adopts the
NOPR proposal to consolidate the
requirements for the ‘‘productive and
beneficial’’ use of thermal output into
that portion of the proposed Form No.
556 where applicants demonstrate the
‘‘usefulness’’ of the thermal output (lines
12a, 12b, 14a, and 14b of the form).
129. The Commission also adopts the
NOPR proposal to implement a new
section of the Form No. 556, entitled
‘‘EPAct 2005 Requirements for
Fundamental Use of Energy Output
from Cogeneration Facilities.’’ However,
we reject requests to specify exactly
what types of changes would make an
existing facility a ‘‘new’’ facility for the
purposes of the additional EPAct 2005
requirements in § 292.205(d). The
Commission finds EEI’s requests for
clarifications and EEI’s related
proposals with respect to the threshold
above which changes to a facility would
render a facility ‘‘new’’ for the purposes
of the § 292.205(d) requirements to be
beyond the scope of this rulemaking.
130. The Commission, in its NOPR
proposal, intended only to ensure that
adequate information is being sought to
make an informed decision regarding a
QF’s status as a new or existing
cogeneration facility. The Commission
did not propose to modify, and does not
modify here, the standard for making
that determination. The Commission
indicated in Order No. 671 that such
determinations would be made on a
case-by-case basis, considering the
extent of each individual change. There
will be cases where the correct
determination is not obvious, and hence
a case-by-case approach will continue to
be used. However, we note that, in the
four years that Order No. 671 has been
in effect, the current standards have not
presented a problem with respect to the
determination of whether an existing
cogeneration facility has been so
substantially changed that it now
constitutes a ‘‘new cogeneration
facility.’’
131. If an applicant’s facility is found
to be subject to the EPAct 2005
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Fmt 4701
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15963
requirements, but to fail the
fundamental use test, then the applicant
is instructed by line 11d of the Form No.
556 to provide a narrative explanation
of and support for why its facility meets
the requirement that the electrical,
thermal, chemical and mechanical
output of an EPAct 2005 cogeneration
facility is used fundamentally for
industrial, commercial, residential or
institutional purposes and is not
intended fundamentally for sale to an
electric utility, taking into account
technological, efficiency, economic, and
variable thermal energy requirements, as
well as state laws applicable to sales of
electric energy from a QF to its host
facility.
132. The Commission adopts the
NOPR proposal to continue the
rebuttable presumption that a pre-EPAct
2005 cogeneration facility does not
become an EPAct 2005 cogeneration
facility merely because it files for
recertification, but also to require that
an applicant filing a self-recertification
or an application for Commission
recertification for a pre-EPAct 2005
cogeneration facility provide sufficient
information about any changes to the
facility to evaluate whether in fact the
changes are so significant that the
facility should be considered an EPAct
2005 cogeneration facility. Going
forward, an applicant for recertification
of a pre-EPAct 2005 cogeneration
facility which intends to rely upon the
rebuttable presumption that
recertification of its existing facility
does not make the facility subject to the
EPAct 2005 requirements must provide
a description of the relevant changes to
the facility, including the purpose of the
changes, and an explanation why the
facility should not be considered an
EPAct 2005 cogeneration facility. We
stress that not every facility that has
undergone a change should be
considered an EPAct 2005 cogeneration
facility; however, an applicant filing a
self-recertification or an application for
Commission recertification for a preEPAct 2005 cogeneration facility must
provide enough information about any
changes to the facility to allow the
Commission and the public to evaluate
the changes. The Commission finds
EEI’s requests for clarifications and
EEI’s related proposals to be beyond the
scope of this rulemaking, concerning the
threshold above which changes to a
facility would be deemed significant
enough to render a facility ‘‘new’’ for the
purposes of the new cogeneration
requirements.
V. Information Collection Statement
133. The collection of information
contained in this Final Rule has been
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submitted to the Office of Management
and Budget for review under section
3507(d) of the Paperwork Reduction
Act.75 The Commission solicited
comments on the Commission’s need for
this information, 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.
Estimated Annual Burden
134. The Commission has previously
broken down its estimated annual
burden for completing the Form No. 556
by filing type (self-certification or
Number of
respondents
Facility type
Filing type
cogeneration facility > 1 MW ..........................
cogeneration facility > 1 MW ..........................
small power production facility > 1 MW ..........
small power production facility > 1 MW ..........
srobinson on DSKHWCL6B1PROD with RULES4
Commission certification). We believe
that breaking down the filings by facility
type (small power production facility or
cogeneration facility) in addition to
filing type will result in a significantly
improved burden estimate. Using this
method, the total estimated annual time
for the collection of information
associated with the Form No. 556 is
2,156 hours, calculated as follows:
self-certification ..............................................
application for Commission certification ........
self-certification ..............................................
application for Commission certification ........
Information Collection Costs: In
response to the NOPR, the Commission
received no comments concerning its
estimates for burden and costs and will
use those estimates here in the Final
Rule. As almost all of the regulation
changes are intended to make seeking
certification easier, and because we are
exempting applicants for facilities not
greater than 1 MW from the certification
requirement, the Commission estimates
that the collection costs associated with
the new form will be less burdensome
than with the existing form. Although
the length of the form has increased,
this is a result of the proposal to change
the form to more effectively ‘‘walk’’
applicants through the certification and
compliance determinations that they
currently have to research and process
on their own.
135. Title: FERC Form No. 556,
‘‘Certification of qualifying facility (QF)
status for small power production or
cogeneration facility.’’
Action: Information collection.
OMB Control No. 1902–0075.
Respondents: Residences, businesses
or other for profit entities, and
government agencies.
Frequency of responses: On occasion.
Necessity of the information: The
Form No. 556 was originally established
in Order No. 575 to allow an applicant
to self-certify that or to request the
Commission to determine that a facility
meets the criteria for qualifying small
power production or cogeneration status
under the Commission’s regulations,
and thus whether the applicant is
eligible to receive the benefits available
to it under PURPA.
Internal review: The Commission has
reviewed its proposed changes to the
requirements pertaining to the
certification of qualifying small power
75 44
U.S.C. 3507(d).
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16:50 Mar 29, 2010
production and cogeneration facilities
and determined the proposed changes
appear to decrease the existing burden
on applicants. These proposed
requirements conform to the
Commission’s plan for efficient
information collection, communication
and management within the energy
industry.
136. Interested persons may obtain
information on the reporting
requirements by contacting: Federal
Energy Regulatory Commission, 888
First Street, NE., Washington, DC 20426
[Attention: Ellen Brown, Office of the
Deputy Chief Information Officer,
phone: (202) 502–8663, fax: (202) 273–
0873, e-mail: DataClearance@ferc.gov].
Comments concerning the collection of
information and the associated burden
estimates, should be sent to the contact
listed above and to the Office of
Management and Budget, Office of
Information and Regulatory Affairs,
Washington, DC 20503 [Attention: Desk
Officer for the Federal Energy
Regulatory Commission, phone: (202)
395–4638; fax: (202) 395–7285].
VI. Environmental Analysis
137. The Commission is required to
prepare an Environmental Assessment
or an Environmental Impact Statement
for any action that may have a
significant adverse effect on the human
environment.76 No environmental
consideration is needed for the
promulgation of a rule that addresses
information gathering, analysis, and
dissemination.77 This Final Rule
involves information gathering,
analysis, and dissemination.
Consequently, neither an Environmental
Impact Statement nor Environmental
Assessment is required.
76 See Regulations Implementing the National
Environmental Policy Act of 1969, Order No. 486,
FERC Stats. & Regs. ¶ 30,783 (1987).
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Hours per
respondent
100
3
400
1
Total annual
hours
8
50
3
6
800
150
1,200
6
VII. Regulatory Flexibility Act
138. The Regulatory Flexibility Act of
1980 (RFA) 78 requires rulemakings to
contain either a description or analysis
of the effect that the rule will have on
small entities or a certification that the
rule will not have a significant
economic impact on a substantial
number of small entities. In this Final
Rule, we implement three different
types of regulatory changes, and we
address each in turn.
139. First, we clarify and streamline
the Form No. 556. These changes make
the form easier for applicants, whether
large or small, to complete, because the
new form leads applicants step-by-step
through the compliance determinations.
140. Second, we require certain
limited additional disclosures of
information. In particular, we
implement (1) collection of the
geographic coordinates of facilities that
do not have a street address, and (2)
collection of certain information used to
determine applicability of the EPAct
2005 cogeneration requirements that
was not previously explicitly required
to be included in Form No. 556.
141. The requirement to report in line
3g geographic coordinates is applicable
only to those facilities that do not have
a street address and is therefore not
generally applicable to all applicants.
Moreover, in most cases, geographic
coordinates can be obtained from a
simple web search (with help provided
by the instructions and the
Commission’s Web site); a GPS device
(including some cellular phones); the
use of free computer programs (such as
Google Earth); or the review of certain
documents, such as a property survey,
various engineering or construction
drawings, a property deed, or a
77 See
78 5
18 CFR 380.4(a)(5).
U.S.C. 601–12.
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municipal or county map showing
property lines.
142. The new information to be
collected from applicants for
cogeneration facilities serves to guide
the applicants through the
determination whether the EPAct 2005
cogeneration requirements apply to
their facilities. The process of
completing lines 11a through 11f
replicates, but in a clearer and more
concise manner, the process that such
applicants already have to go through in
completing the current form.
Completing lines 11a through 11f
should substantially decrease the
burden of complying with the EPAct
2005 cogeneration requirements for
most or all applicants for cogeneration
facilities. In the absence of this step-bystep guide adopted in lines 11a through
11f, applicants (particularly small
applicants) must independently
research the requirements and
determine compliance with the
relatively complex EPAct 2005
cogeneration requirements.
143. Third, we require applicants for
certification of QF status to submit their
Forms No. 556 electronically, via the
Commission’s eFiling Web site.
However, we also exempt applicants for
facilities with net power production
capacities of 1 MW and smaller from
any filing requirement. Thus, the
electronic filing requirement does not
apply to applicants for relatively small
QFs. We believe that any applicant for
a facility larger than 1 MW should have
access to the resources needed to make
an electronic filing.
VIII. Document Availability
144. 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/or print the contents of this
document via the Internet through the
Commission’s home page (https://
www.ferc.gov) and in the Commission’s
Public Reference Room during normal
business hours (8:30 a.m. to 5 p.m.
Eastern time) at 888 First Street, NE.,
Room 2A, Washington, DC 20426.
145. From the Commission’s home
page on the Internet, this information is
available in the Commission’s document
management system, 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.
146. User assistance is available for
eLibrary and the Commission’s Web site
during normal business hours. For
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16:50 Mar 29, 2010
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assistance, please contact FERC Online
Support at 1–866–208–3676 (toll free) or
202–502–6652 or e-mail at
ferconlinesupport@ferc.gov, or the
Public Reference Room at (202) 502–
8371, TTY (202) 502–8659. Email at
public.referenceroom@ferc.gov.
IX. Effective Date
147. These regulations are effective
June 1, 2010. The Commission has
determined, with the concurrence of the
Adminstrator 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. The Commission
will submit the Final Rule to both
houses of Congress and the General
Accounting Office.
15965
accordance with the instructions
incorporated in that form.
(b) Availability of FERC Form No. 556.
The currently effective FERC Form No.
556 shall be made available for
download from the Commission’s Web
site.
(c) How to file a FERC Form No. 556.
All applicants must file their FERC
Forms No. 556 electronically via the
Commission’s eFiling Web site.
Subchapter K—Regulations Under the
Public Utility Regulatory Policies Act of
1978
PART 292—REGULATIONS UNDER
SECTIONS 201 AND 210 OF THE
PUBLIC UTILITY REGULATORY
POLICIES ACT OF 1978 WITH REGARD
TO SMALL POWER PRODUCTION AND
COGENERATION
List of Subjects
■
18 CFR Part 131
Electric power, Natural gas, Reporting
and recordkeeping requirements.
Authority: 16 U.S.C. 791a–825r, 2601–
2645; 31 U.S.C. 9701; 42 U.S.C. 7101–7352.
18 CFR Part 292
Electric power, Electric power plants,
Electric utilities.
By the Commission.
Nathaniel J. Davis, Sr.,
Deputy Secretary.
In consideration of the foregoing, the
Commission amends parts 131 and 292
of Title 18 of the Code of Federal
Regulations, as set forth below:
■
Subchapter D—Approved Forms, Federal
Power Act and Public Utility Regulatory
Policies Act of 1978
PART 131—FORMS
1. The authority citation for part 131
continues to read as follows:
■
Authority: 16 U.S.C. 791a–825r, 2601–
2645; 31 U.S.C. 9701; 42 U.S.C. 7101–7352.
2. Section 131.80 is revised to read as
follows:
■
§ 131.80 FERC Form No. 556, Certification
of qualifying facility (QF) status for a small
power production or cogeneration facility.
(a) Who must file. Any person seeking
to certify a facility as a qualifying
facility pursuant to sections 3(17) or
3(18) of the Federal Power Act, 16
U.S.C. 796(3)(17), (3)(18), unless
otherwise exempted or granted a waiver
by Commission rule or order pursuant
to § 292.203(d), must complete and file
the Form of Certification of Qualifying
Facility (QF) Status for a Small Power
Production or Cogeneration Facility,
FERC Form No. 556. Every Form of
Certification of Qualifying Status must
be submitted on the FERC Form No. 556
then in effect and must be prepared in
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1. The authority citation for part 292
continues to read as follows:
2. Section 292.203 is revised to read
as follows:
■
§ 292.203 General requirements for
qualification.
(a) Small power production facilities.
Except as provided in paragraph (c) of
this section, a small power production
facility is a qualifying facility if it:
(1) Meets the maximum size criteria
specified in § 292.204(a);
(2) Meets the fuel use criteria
specified in § 292.204(b); and
(3) Unless exempted by paragraph (d),
has filed with the Commission a notice
of self-certification, pursuant to
§ 292.207(a); or has filed with the
Commission an application for
Commission certification, pursuant to
§ 292.207(b)(1), that has been granted.
(b) Cogeneration facilities. A
cogeneration facility, including any
diesel and dual-fuel cogeneration
facility, is a qualifying facility if it:
(1) Meets any applicable standards
and criteria specified in §§ 292.205(a),
(b) and (d); and
(2) Unless exempted by paragraph (d),
has filed with the Commission a notice
of self-certification, pursuant to
§ 292.207(a); or has filed with the
Commission an application for
Commission certification, pursuant to
§ 292.207(b)(1), that has been granted.
(c) Hydroelectric small power
production facilities located at a new
dam or diversion. (1) A hydroelectric
small power production facility that
impounds or diverts the water of a
natural watercourse by means of a new
dam or diversion (as that term is defined
in § 292.202(p)) is a qualifying facility if
it meets the requirements of:
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(i) Paragraph (a) of this section; and
(ii) Section 292.208.
(2) [Reserved]
(d) Exemptions and waivers from
filing requirement. (1) Any facility with
a net power production capacity of 1
MW or less is exempt from the filing
requirements of paragraphs (a)(3) and
(b)(2) of this section.
(2) The Commission may waive the
requirement of paragraphs (a)(3) and
(b)(2) of this section for good cause. Any
applicant seeking waiver of paragraphs
(a)(3) and (b)(2) of this section must file
a petition for declaratory order
describing in detail the reasons waiver
is being sought.
■ 3. In § 292.204, paragraph (a)(1) is
revised and paragraph (a)(4) is added to
read as follows:
§ 292.204 Criteria for qualifying small
power production facilities.
(a) Size of the facility—(1) Maximum
size. Except as provided in paragraph
(a)(4) of this section, the power
production capacity of a facility for
which qualification is sought, together
with the power production capacity of
any other small power production
facilities that use the same energy
resource, are owned by the same
person(s) or its affiliates, and are located
at the same site, may not exceed 80
megawatts.
*
*
*
*
*
(4) Exception. Facilities meeting the
criteria in section 3(17)(E) of the Federal
Power Act (16 U.S.C. 796(17)(E)) have
no maximum size, and the power
production capacity of such facilities
shall be excluded from consideration
when determining the maximum size of
other small power production facilities
within one mile of such facilities.
*
*
*
*
*
■ 4. In § 292.205, paragraph (d) is
revised to read as follows:
§ 292.205 Criteria for qualifying
cogeneration facilities.
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*
*
*
*
*
(d) Criteria for new cogeneration
facilities. Notwithstanding paragraphs
(a) and (b) of this section, any
cogeneration facility that was either not
a qualifying cogeneration facility on or
before August 8, 2005, or that had not
filed a notice of self-certification or an
application for Commission certification
as a qualifying cogeneration facility
under § 292.207 of this chapter prior to
February 2, 2006, and which is seeking
to sell electric energy pursuant to
section 210 of the Public Utility
Regulatory Policies Act of 1978, 16
U.S.C. 824a–1, must also show:
*
*
*
*
*
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5. In § 292.207, paragraphs (a) through
(d)(1)(i) are revised to read as follows:
■
§ 292.207 Procedures for obtaining
qualifying status.
(a) Self-certification. The qualifying
facility status of an existing or a
proposed facility that meets the
requirements of § 292.203 may be selfcertified by the owner or operator of the
facility or its representative by properly
completing a Form No. 556 and filing
that form with the Commission,
pursuant to § 131.80 of this chapter, and
complying with paragraph (c) of this
section.
(b) Optional procedure—(1)
Application for Commission
certification. In lieu of the selfcertification procedures in paragraph (a)
of this section, an owner or operator of
an existing or a proposed facility, or its
representative, may file with the
Commission an application for
Commission certification that the
facility is a qualifying facility. The
application must be accompanied by the
fee prescribed by part 381 of this
chapter, and the applicant for
Commission certification must comply
with paragraph (c) of this section.
(2) General contents of application.
The application must include a properly
completed Form No. 556 pursuant to
§ 131.80 of this chapter.
(3) Commission action. (i) Within 90
days of the later of the filing of an
application or the filing of a
supplement, amendment or other
change to the application, the
Commission will either: Inform the
applicant that the application is
deficient; or issue an order granting or
denying the application; or toll the time
for issuance of an order. Any order
denying certification shall identify the
specific requirements which were not
met. If the Commission does not act
within 90 days of the date of the latest
filing, the application shall be deemed
to have been granted.
(ii) For purposes of paragraph (b) of
this section, the date an application is
filed is the date by which the Office of
the Secretary has received all of the
information and the appropriate filing
fee necessary to comply with the
requirements of this Part.
(c) Notice requirements—(1) General.
An applicant filing a self-certification,
self-recertification, application for
Commission certification or application
for Commission recertification of the
qualifying status of its facility must
concurrently serve a copy of such filing
on each electric utility with which it
expects to interconnect, transmit or sell
electric energy to, or purchase
supplementary, standby, back-up or
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maintenance power from, and the State
regulatory authority of each state where
the facility and each affected electric
utility is located. The Commission will
publish a notice in the Federal Register
for each application for Commission
certification and for each selfcertification of a cogeneration facility
that is subject to the requirements of
§ 292.205(d).
(2) Facilities of 500 kW or more. An
electric utility is not required to
purchase electric energy from a facility
with a net power production capacity of
500 kW or more until 90 days after the
facility notifies the facility that it is a
qualifying facility or 90 days after the
utility meets the notice requirements in
paragraph (c)(1) of this section.
(d) Revocation of qualifying status.
(1)(i) If a qualifying facility fails to
conform with any material facts or
representations presented by the
cogenerator or small power producer in
its submittals to the Commission, the
notice of self-certification or
Commission order certifying the
qualifying status of the facility may no
longer be relied upon. At that point, if
the facility continues to conform to the
Commission’s qualifying criteria under
this part, the cogenerator or small power
producer may file either a notice of selfrecertification of qualifying status
pursuant to the requirements of
paragraph (a) of this section, or an
application for Commission
recertification pursuant to the
requirements of paragraph (b) of this
section, as appropriate.
*
*
*
*
*
6. In § 292.601, paragraph (a) is
revised to read as follows:
■
§ 292.601 Exemption to qualifying facilities
from the Federal Power Act.
(a) Applicability. This section applies
to qualifying facilities, other than those
described in paragraph (b) of this
section. This section also applies to
qualifying facilities that meet the
criteria of section 3(17)(E) of the Federal
Power Act (16 U.S.C. 796(17)(E)),
notwithstanding paragraph (b).
*
*
*
*
*
7. In § 292.602, the title and paragraph
(c)(1) are revised to read as follows:
■
§ 292.602 Exemption to qualifying facilities
from the Public Utility Holding Company
Act of 2005 and certain State laws and
regulations.
*
*
*
*
*
(c) Exemption from certain State laws
and regulations. (1) Any qualifying
facility described in paragraph (a) of this
section shall be exempted (except as
provided in paragraph (c)(2) of this
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section) from State laws or regulations
respecting:
*
*
*
*
*
Note: The following Appendix will not be
published in the Code of Federal
Regulations.
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556
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[FR Doc. 2010–6769 Filed 3–29–10; 8:45 am]
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]]>Agencies
[Federal Register Volume 75, Number 60 (Tuesday, March 30, 2010)]
[Rules and Regulations]
[Pages 15950-15986]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-6769]
[[Page 15949]]
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Part IV
Department of Energy
-----------------------------------------------------------------------
Federal Energy Regulatory Commission
-----------------------------------------------------------------------
18 CFR Parts 131 and 292
Revisions to Form, Procedures, and Criteria for Certification of
Qualifying Facility Status for a Small Power Production or Cogeneration
Facility; Final Rule
Federal Register / Vol. 75, No. 60 / Tuesday, March 30, 2010 / Rules
and Regulations
[[Page 15950]]
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DEPARTMENT OF ENERGY
Federal Energy Regulatory Commission
18 CFR Parts 131 and 292
[Docket No. RM09-23-000; Order No. 732]
Revisions to Form, Procedures, and Criteria for Certification of
Qualifying Facility Status for a Small Power Production or Cogeneration
Facility
Issued March 19, 2010.
AGENCY: Federal Energy Regulatory Commission.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Federal Energy Regulatory Commission (Commission) is
revising its regulations, which prior to this Final Rule provided the
FERC Form No. 556 that is used in the certification of qualifying
status for an existing or proposed small power production or
cogeneration facility. The adopted revisions remove the contents of the
Form No. 556 from the regulations, and, in their place, provide that an
applicant seeking to certify qualifying facility (QF) status of a small
power production or cogeneration facility must complete, and
electronically file, the Form No. 556 that is in effect at the time of
filing. We also revise and reformat the Form No. 556 to clarify the
content of the form and to take advantage of newer technologies that
will reduce both the filing burden for applicants and the processing
burden for the Commission. We also adopt an exemption, for generating
facilities with net power production capacities of 1 MW or less, from
the requirement that a generating facility, to be a QF, file either a
notice of self-certification or an application for Commission
certification, and codify the Commission's authority to waive the QF
certification requirement for good cause. Finally, we clarify, simplify
or correct certain sections of the regulations relating to certifying
QF status.
DATES: Effective Date: This rule will become effective June 1, 2010.
FOR FURTHER INFORMATION CONTACT:
Kenneth Thomas (Technical Information), Division of Tariffs and Market
Development--Central Office of Energy Market Regulation, Federal Energy
Regulatory Commission, 888 First Street, NE., Washington, DC 20426,
Telephone: (202) 502-8698, e-mail: kenneth.thomas@ferc.gov.
Paul Singh (Technical Information), Division of Tariffs and Market
Development--Central Office of Energy Market Regulation, Federal Energy
Regulatory Commission, 888 First Street, NE., Washington, DC 20426,
Telephone: (202) 502-8576, e-mail: paul.singh@ferc.gov.
S.L. Higginbottom (Legal Information), Office of the General Counsel,
Federal Energy Regulatory Commission, 888 First Street, NE, Washington,
DC 20426, Telephone: (202) 502-8561, e-mail:
samuel.higginbottom@ferc.gov.
SUPPLEMENTARY INFORMATION:
Before Commissioners: Jon Wellinghoff, Chairman; Marc Spitzer,
Philip D. Moeller, and John R. Norris.
I. Introduction
1. In this Final Rule, the Commission is removing from Sec. 131.80
of its regulations \1\ the contents and general instructions of the
Form No. 556 used in the certification of qualifying status for an
existing or proposed small power production or cogeneration facility,
and, in their place, providing that an applicant seeking to certify
qualifying facility (QF) status of a small power production or
cogeneration facility must complete and file the Form No. 556 that is
in effect at the time of filing (which will be made available for
download from the Commission's QF Web site).\2\ The Commission also is
requiring that the Form No. 556 be submitted to the Commission
electronically.
---------------------------------------------------------------------------
\1\ 18 CFR 131.80.
\2\ https://www.ferc.gov/QF.
---------------------------------------------------------------------------
2. The Commission also is revising and reformatting the Form No.
556 to clarify the content of the form and to take advantage of newer
technologies to reduce both the filing burden for applicants and the
processing burden for the Commission.
3. Additionally, the Commission is revising the procedures,
standards and criteria for QF status provided in Part 292 of its
regulations to accomplish the following: (1) Exemption of generating
facilities with net power production capacities of 1 MW or less from
the requirement that a generating facility, to be a QF, must file
either a notice of self-certification or an application for Commission
certification; (2) codification of the Commission's authority to waive
the QF certification requirement for good cause; (3) extension to all
applicants for QF certification the requirement (currently applicable
only to applicants for self-certification of QF status) to serve a copy
of a filed Form No. 556 on the affected utilities and state regulatory
authorities; (4) elimination of the requirement for applicants to
provide a draft notice suitable for publication in the Federal
Register; and (5) clarification, simplification or correction of
certain sections of the regulations.\3\
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\3\ 18 CFR Part 292.
---------------------------------------------------------------------------
4. Finally, the Commission is changing the exemption of QFs from
the Federal Power Act,\4\ and to the exemption of QFs from the Public
Utility Holding Company Act of 2005 (PUHCA) and certain State laws and
regulations \5\ to make clear that certain small power production
facilities that satisfy the criteria of section 3(17)(E) of the Federal
Power Act qualify for those exemptions.
---------------------------------------------------------------------------
\4\ 18 CFR 292.601.
\5\ 18 CFR 292.602.
---------------------------------------------------------------------------
5. The Commission is adopting the revisions described above, as
they will: (1) Make the Form No. 556 easier and less time consuming to
complete and submit; (2) decrease opportunities for confusion and error
in completing the form; (3) improve consistency and quality of the data
collected by the form; (4) decrease Commission resources dedicated to
managing errors and omissions in submitted forms; and (5) clarify and
correct the regulations governing the requirements for obtaining and
maintaining QF status.
6. The revisions to the Form No. 556 and the procedures for filing
the Form No. 556 are informed by the Commission's experience both with
administering the Form No. 556 and with new technologies for electronic
data collection that have become available since the Form No. 556 was
first established by Order No. 575 in 1995.\6\ The changes will
increase the effectiveness of the Commission's policies encouraging
cogeneration and small power production, as required by section 210 of
the Public Utility Regulatory Policies Act of 1978 (PURPA).\7\
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\6\ Streamlining of Regulations Pertaining to Parts II and III
of the Federal Power Act and the Public Utility Regulatory Policies
Act of 1978, Order No. 575, 60 FR 4831 (Jan. 25, 1995), FERC Stats.
& Regs. ] 31,014, order on reh'g, Order No. 575-A, 71 FERC ] 61,121
(1995).
\7\ 16 U.S.C. 824a-3.
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II. Background
7. When the Commission first implemented section 201 of PURPA, it
provided two paths to QF status: Self certification (which, as
discussed below, required no filing with the Commission) and Commission
certification.\8\ The procedures for self-certification are contained
in Sec. 292.207(a) of the
[[Page 15951]]
Commission's regulations.\9\ When a small power production facility or
cogeneration facility self-certifies (or self-recertifies),\10\ it
certifies that it satisfies the requirements for QF status. The
Commission does not formally review the self-certification. Instead,
the self-certification is assigned a docket number, and Commission
staff looks at the filing to determine that the self-certifier has
provided the information required by the regulations.
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\8\ There is no fee for self-certification; there is, however, a
fee for Commission certification. 18 CFR 381.505. The Commission
will not process an application for Commission certification without
receipt of the applicable fee.
\9\ 18 CFR 292.207(a).
\10\ Because recertification is a type of certification,
policies applicable to self-certification and application for
Commission certification also apply to self-recertification and
application for Commission recertification.
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8. Self-certification was an essential part of the Commission's
implementation of PURPA, and was intended, in part, to make the
certification process quick and not unduly burdensome. Thus, when the
Commission first implemented section 201 of PURPA in Order No. 70,\11\
the Commission rejected a proposal to adopt a case-by-case Commission
certification requirement for all QFs, but instead provided that
facilities that met the requirements for QF status need only furnish
notice to the Commission of QF status.\12\ This notice (the self-
certification) was purely for informational purposes and to help the
Commission monitor the market penetration of QFs. QF status, however,
was established by meeting the requirements for such status and did not
depend on the filing. Indeed, the Commission noted that QFs and
purchasing utilities could agree that a generating facility met the
requirements for QF status, and the facility would qualify for the
benefits of PURPA without making any filing with the Commission.
---------------------------------------------------------------------------
\11\ Small Power Production and Cogeneration Facilities--
Qualifying Status, Order No. 70, FERC Stats. & Regs., Regulations
Preambles 1977-1981 ] 30,134 (1980), order on reh'g, Order Nos. 69-A
and 70-A, FERC Stats. & Regs., Regulations Preambles 1977-1981 ]
30,160 (1980), aff'd in part and vacated in part, American Electric
Power Service Corp. v. FERC, 675 F.2d 1226 (D.C. Cir. 1982), rev'd
in part, American Paper Institute, Inc. v. American Electric Power
Service Corp., 461 U.S. 402 (1983).
\12\ Order No. 70, FERC Stats. & Regs. ] 30,134 at 30,954. As
discussed below, the Commission, in 2005, added a requirement that a
cogeneration facility or small power production facility either
self-certify or receive Commission certification to have QF status.
See 18 CFR 292.203(a)(3), (b)(2).
---------------------------------------------------------------------------
9. The Commission recognized, however, that the self-certification
process would not always satisfy all those interested in a particular
facility's status. Accordingly, the Commission also established, in
Sec. 292.207(b) of the regulations,\13\ an ``optional procedure'' for
QF status. Under this optional procedure, an entity may file an
application for a determination by the Commission that a facility meets
the requirements for QF status. Such an application requires a filing
fee.\14\ After receiving an application for Commission certification
and the required fee, the Commission assigns the filing a docket number
and notices the filing in the Federal Register, providing an
opportunity for interventions and protests. The Commission's
regulations provide that it will act on an application within 90 days
of the filing (or of its supplement or amendment). The process gives
those that need assurance of a facility's QF status (or lack of such
status) a Commission order certifying (or denying) QF status. This
optional procedure is commonly known as an application for Commission
certification. In its original regulations, the Commission also
provided that, once a facility was certified by the Commission, its
qualifying status could be revoked by the Commission, upon the
Commission's own motion, or upon the motion of any person.\15\ This
combination of encouraging self-certifications, while providing for
both Commission-certification and an opportunity to seek revocation of
QF status, would assure, the Commission believed, that only those
generation facilities that meet the criteria for QF status would
receive and retain that status.
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\13\ 18 CFR 292.207(b).
\14\ 18 CFR 381.505.
\15\ See 18 CFR 292.207(d)(ii). A similar opportunity for the
Commission to revoke the QF status of a self-certified facility on
the Commission's own motion, or on the motion of another party, was
not expressly provided in the regulations; the Commission, however,
allowed others to seek the revocation of a self-certified QF by
filing a petition for declaratory order. In Order No. 671, infra
note 17, the right to file a motion seeking revocation of a self-
certification was added to the Commission's regulations. A motion
seeking revocation requires a filing fee as a declaratory order.
Chugach Electric Association, Inc., 121 FERC ] 61,287, at P 51-54
(2007). The filing fee for a declaratory order is provided in 18 CFR
381.302.
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10. As noted above, the Commission, when it first enacted its
regulations, had hoped that self-certifications would be the primary
means for obtaining QF status, but recognized that there would be
instances in which a Commission ruling on QF status would be desirable.
While the Commission later, in Order No. 575, required QFs to provide
more detailed information about self-certifying QFs, through Form No.
556, the Commission continued to encourage self-certification, but also
recognized that there would be reasons that a QF may want or need
Commission certification (including the requirement of some lenders,
electric utilities, or state regulators that a generator seeking QF
status and the benefits of PURPA be Commission-certified). The
Commission thus sought to make the self-certification process more
informative about the nature of the self-certified QFs while keeping
the process relatively simple.
11. Following the enactment of the Energy Policy Act of 2005 (EPAct
2005), which imposed new requirements for QF status for ``new''
cogeneration facilities,\16\ the Commission issued Order No. 671,\17\
which implemented those new requirements. As part of that
implementation, for the first time, notices of self-certifications for
new cogeneration facilities were required to be published in the
Federal Register; self-certifications, other than for new cogeneration
facilities, are not published in the Federal Register. In addition, as
noted above, for the first time, the Commission required the filing of
a notice of self-certification or an application for Commission
certification as a requirement for QF status.\18\
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\16\ A ``new'' cogeneration facility is defined as any
cogeneration facility that was either not a qualifying cogeneration
facility on or before August 8, 2005, or that had not filed a notice
of self-certification, self-recertification or an application for
Commission certification or Commission recertification as a
qualifying cogeneration facility prior to February 2, 2006. 16
U.S.C. 824a-3(n)(2)(B); 18 CFR 292.205(d).
\17\ Revised Regulations Governing Small Power Production and
Cogeneration Facilities, Order No. 671, 71 FR 7852 (Feb. 15, 2006),
FERC Stats. & Regs. ] 31,203 (2006), order on reh'g, Order No. 671-
A, 71 FR 30585 (May 30, 2006), FERC Stats. & Regs. ] 31,219 (2006).
\18\ See 18 CFR 292.203(a)(3), (b)(2).
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III. Revisions to Regulations
A. General
NOPR Proposal
12. The Commission proposed in the NOPR \19\ to revise its
regulations and the Form No. 556 to improve and simplify the QF
certification process. In particular, the Commission proposed to remove
the contents of the Form No. 556 from the regulations, and, in their
place, to provide that an applicant seeking to certify QF status of a
small power production or cogeneration facility must complete, and
electronically file, the Form No. 556 that is in effect at the time of
filing. The Commission also proposed to revise and reformat the Form
No. 556 to clarify the content of the form and to take advantage of
newer technologies that will reduce both the filing burden for
[[Page 15952]]
applicants and the processing burden for the Commission. The Commission
also proposed to exempt generating facilities with net power production
capacities of 1 MW or less from the QF certification requirement, and
to codify the Commission's authority to waive the QF certification
requirement for good cause. Finally, the Commission proposed to
clarify, simplify or correct certain sections of the regulations.
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\19\ Revisions to Form, Procedures, and Criteria for
Certification of Qualifying Facility Status for a Small Power
Production or Cogeneration Facility, Notice of Proposed Rulemaking
(NOPR). 74 FR 54,503 (Oct. 22, 2009), FERC Stats. & Regs. ] 32,648
(2009).
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Comments
13. Seven parties filed comments in response to the NOPR.\20\ The
following sections provide a detailed discussion of the parties'
comments, however, commenters generally express support for the
Commission's proposals regarding the Form No. 556 and to clarify,
simplify or correct certain sections of the regulations. In particular,
most of the commenters support the Commission's proposal to remove the
contents of the Form No. 556 from the regulations and require
applicants to electronically file the Form No. 556 that is in effect at
the time of filing, with the exception of certain concerns expressed by
Interstate Renewable and objections raised by Southern. Commenters also
generally support the Commission's proposal to revise and reformat the
Form No. 556 to clarify the content of the form and to take advantage
of newer technologies.
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\20\ Interstate Renewable Energy Council and SolarCity
(Interstate Renewable); Sun Edison LLC (Sun Edison); The National
Rural Electric Cooperative Association (NRECA); Edison Electric
Institute (EEI); U.S. Clean Heat & Power Association (U.S. Clean
Heat & Power); Southern Company, Inc. (Southern); and Tayrn Rucinski
(an individual). Southern filed on behalf of Alabama Power Company,
Georgia Power Company, Gulf Power Company, and Mississippi Power
Company.
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14. The issue most-discussed in parties' comments is the proposed
exemption of generating facilities with a net power production capacity
of 1 MW or less from the requirement to file a Form No. 556 in order to
be a QF. Most of the commenters agree in concept with the Commission's
proposal to establish a threshold at or below which generating
facilities would be exempt from the requirement to make a filing in
order to be a QF. However, the parties differ on the appropriate size
of such a threshold.
Commission Determination
15. The Commission adopts the NOPR proposals to: (1) Remove the
contents of the Form No. 556 from the regulations, and, in their place,
to provide that an applicant seeking to certify the QF status of a
small power production or cogeneration facility must complete, and
electronically file, the Form No. 556 that is in effect at the time of
filing; (2) revise and reformat the Form No. 556 to clarify the content
of the form and to take advantage of newer technologies; (3) exempt
generating facilities with net power production capacities of 1 MW or
less from the QF certification requirement; (4) codify the Commission's
authority to waive the QF certification requirement for good cause; (5)
extend to all applicants for QF certification the requirement
(currently applicable only to applicants for self-certification of QF
status) to serve a copy of a filed Form No. 556 on the affected
utilities and state regulatory authorities; (6) eliminate the
requirement for applicants to provide a draft notice suitable for
publication in the Federal Register; (7) clarify, simplify or correct
certain sections of the regulations; and (8) change to the exemption of
QFs from the Federal Power Act,\21\ and to the exemption of QFs from
the Public Utility Holding Company Act of 2005 (PUHCA) and certain
State laws and regulations \22\ to make clear that certain small power
production facilities that satisfy the criteria of section 3(17)(E) of
the Federal Power Act qualify for those exemptions.
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\21\ 18 CFR 292.601.
\22\ 18 CFR 292.602.
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16. The revisions to the Form No. 556 and the procedures for filing
the Form No. 556 are informed by the Commission's experience both with
administering the Form No. 556 and with new technologies for electronic
data collection that have become available since the Form No. 556 was
first established by Order No. 575 in 1995.\23\ The changes will
increase the effectiveness of the Commission's policies encouraging
cogeneration and small power production, as required by section 210 of
the Public Utility Regulatory Policies Act of 1978 (PURPA).\24\
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\23\ Streamlining of Regulations Pertaining to Parts II and III
of the Federal Power Act and the Public Utility Regulatory Policies
Act of 1978, Order No. 575, 60 FR 4831 (Jan. 25, 1995), FERC Stats.
& Regs. ] 31,014, order on reh'g, Order No. 575-A, 71 FERC ] 61,121
(1995).
\24\ 16 U.S.C. 824a-3.
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B. Revisions to 18 CFR 131.80
NOPR Proposal
17. Currently, Sec. 131.80 of the Commission regulations contains
the text of Form No. 556 as well as instructions on how to complete the
form. In the NOPR, the Commission proposed that Sec. 131.80 of the
Commission's regulations will no longer contain Form No. 556. In place
of the current language, we proposed to require in Sec. 131.80(a) that
any person seeking to certify a facility as a QF must complete and
electronically file the Form No. 556 then in effect and in accordance
with the instructions then incorporated in that form.
18. The Commission also proposed to require, through proposed Sec.
131.80(c), that applicants submit their QF applications (whether
initial certifications or recertifications, and whether self-
certifications or applications for Commission certification)
electronically via the Commission's eFiling Web site.
Comments
19. Most commenters support the Commission's proposal to remove the
contents of the Form No. 556 from the regulations and to require
applicants to electronically file the Form No. 556 that is in effect at
the time of filing.
20. Interstate Renewable supports the proposal that future changes
to the form not require a rulemaking, but would be reviewed by the
Office of Management and Budget following a solicitation of comments
from the public on any proposed changes, but requests assurance that
the parties interested in commenting on future proposed changes to Form
No. 556 would receive the same notice and opportunity to comment that
they would have under a formal rulemaking. Southern requests the
Commission not make future changes to Form No. 556 without a formal
rulemaking proceeding, arguing that if Form No. 556 can be revised
without a formal rulemaking it could harm QFs and applicants by
creating confusion.
Commission Determination
21. The Commission adopts its proposal to remove the contents of
the Form No. 556 from its regulations, and, in their place, to provide
that an applicant seeking to certify QF status of a small power
production or cogeneration facility must complete, and electronically
file, the Form No. 556 that is in effect at the time of filing.
Revising Sec. 131.80, as proposed, will make it easier to clarify and
correct the form, should such changes prove necessary or appropriate in
the future. Future changes to the form would be reviewed by the Office
of Management and Budget following a solicitation of comments from the
public on proposed changes, but would not require a formal rulemaking.
This treatment is consistent with how a number of other Commission
information collections are managed, including FERC Form Nos. 1, 1-F,
3-Q, 60, 80, 714, and 715, as well
[[Page 15953]]
as the FERC Form No. 580 Interrogatory.\25\
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\25\ 18 CFR 366.23.
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22. An electronic filing process will be faster, easier, less
costly and less resource-intensive than hardcopy filing. An applicant
filing electronically will receive an acknowledgement that the
Commission has received the application and a docket number for the
submittal much more quickly than it would by filing in hardcopy format.
Also, electronic filing will allow the Commission to electronically
process QF applications, dramatically reducing required staff resources
and human error, and allowing the Commission to identify patterns of
reporting errors and noncompliance that would be difficult to detect
through manual processing. Finally, electronic filing of QF
applications will facilitate the compilation of QF data that could be
made available to the public. Each year Commission staff fields a
number of requests for QF certification data from private
organizations, researchers and other government agencies. Requiring
applicants to file in electronic format will make it possible to
respond to many more such requests, and/or to publish compiled QF data
on the Commission's Web site.
23. In response to Interstate Renewable's comments, we note that
parties will have an opportunity in response to a solicitation for
comments under the Paperwork Reduction Act to comment on any future
proposed revisions to the Form No. 556. We note that this is similar to
the comment procedures currently provided under the Commission's
rulemaking process. For this reason, we also deny Southern's request to
maintain the Form No. 556 in the regulations and to continue to require
a Commission rulemaking for any changes to the form.
C. Revisions to 18 CFR 292.203
NOPR Proposal
24. Section 292.203 of our regulations \26\ lists the general
requirements for QF status. For a qualifying small power production
facility, those requirements currently state that the facility must
meet the maximum size criteria specified in Sec. 292.204(a), meet the
fuel use criteria specified in Sec. 292.204(b), and must have filed a
notice of self-certification or an application for Commission
certification that has been granted. For a qualifying cogeneration
facility, those requirements currently state that the facility must
meet any applicable operating and efficiency standards provided in
Sec. 292.205(a) and (b), and that the facility must have filed a
notice of self-certification or an application for Commission
certification that has been granted.
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\26\ 18 CFR 292.203.
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25. In the NOPR, the Commission proposed to correct an inadvertent
error in Sec. 292.203(b)(1) of our regulations.\27\ Order No. 671
implemented additional technical requirements for certain cogeneration
facilities in Sec. 292.205(d), but Sec. 292.203(b)(1) was not updated
to reflect that a facility must comply with these new requirements (if
applicable) in order to be a qualifying cogeneration facility. The
Commission proposed to add the reference to Sec. 292.205(d) in Sec.
292.203(b). Because the technical requirements of Sec. 292.205(d) are
not ``operating and efficiency standards,'' the Commission proposed to
amend Sec. 292.203(b) to delete the phrase ``operating and efficiency
standards'' and to replace it with the phrase ``standards and
criteria.''
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\27\ 18 CFR 292.203(b)(1).
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26. Finally, the Commission sought comments on whether to add a
Sec. 292.203(d) which would (1) exempt certain small facilities from
the requirement to make a filing for qualifying status, and (2) would
make explicit the Commission's authority to grant waiver of the filing
requirement upon a showing of good cause.\28\
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\28\ Citing Ashland Windfarm, LLC, 124 FERC ] 61,068 (2008)
(Commission granted waiver of the filing requirement for QF status).
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27. The Commission also proposed a Form No. 556 exemption with a 1
MW threshold. The Commission explained that, while electronic filing of
QF certifications has many benefits, some of the parties submitting
applications for certification of QF status are small entities that
consider the cost of legal representation to be burdensome and/or that
lack access to the computer facilities necessary to make an electronic
filing. To address this concern, the Commission proposed to amend Sec.
292.203 to exempt the applicants with a net power production capacity
of 1 MW or less, from the requirement to make any filing with the
Commission in order to be a QF.
Comments
28. No commenters oppose codifying the Commission's authority to
waive the QF certification requirement for good cause.
29. Commenters generally agree in concept with the Commission's
proposal to establish a net power production capacity threshold at or
below which generating facilities would be exempt from a filing
requirement in order to be a QF. However, they differ on what threshold
the Commission should establish. NRECA agrees with the proposal to set
a threshold of 1 MW for solar, wind, and hydropower facilities.
However, NRECA requests the Commission establish a 50 kW threshold for
facilities relying on other resources that are subject to significant
requirements covering the type of fuel used as a primary energy source,
fuel efficiency, and/or the fundamental use of the energy produced. Sun
Edison and Interstate Renewables request a higher threshold of 2 MW to
(among other things) conform with the Commission's Small Generator
Interconnection Procedures (SGIP) ``Fast Track'' threshold, and,
according to Sun Edison to cover all retail solar installations. Also,
Interstate Renewables seeks clarification that the Commission will
allow small power production facilities to file an application for
Commission certification notwithstanding the proposed exemption.
30. EEI and Southern request the Commission to establish the
threshold at 100 kW. EEI argues that the 1 MW threshold is too high and
does not accurately reflect the typical production capacity of the
small residential generation technologies the Commission appears to be
targeting. EEI suggests on-site residential power generation
technologies (such as solar panels) are typically on the order of 5 kW
output. Southern argues that most residential generators (e.g., solar
panels on houses), for which this exemption may be appropriate, have a
nameplate capacity of 10 kW or less and that an exemption up to 1 MW
could allow many businesses which should have access to the legal
representation and computer facilities needed to electronically file a
Form No. 556 to avoid the QF certification process. Taryn Rucinski also
requests that the Commission significantly decrease the proposed 1 MW
threshold, if the Commission's intention is to exempt residential or
truly small facilities.
31. Southern requests the following clarifications: (1) QFs that
are exempt from filing a Form No. 556 may still be required to provide
notice or attestation to the relevant electric utilities that the
facility is in fact a QF; (2) a utility may rely upon such a notice or
attestation; and (3) an exempt QF should be required to provide
important information to the electric utility, including principal
components of the facility (electric generators, transformers,
switchyard equipment), fuel type, maximum gross and net output,
expected installation and
[[Page 15954]]
operation dates as required to determine the impact of the QF on the
safety and reliability of the electric system.
32. EEI also requests clarification on a number of matters related
to an exemption threshold. Specifically, EEI requests the Commission
also provide the following: (1) Clarification that utilities and/or
state commissions may require proof that a facility meets the
requirements to become a QF and may still require the facility to
provide ``necessary technical design information'' through ``another
form of attestation'' that the facility meets the eligibility
requirements to be a QF; (2) clarification that disputes regarding the
QF eligibility of facilities that are not required to submit filings
may be brought to the Commission for resolution; (3) clarification that
a utility may terminate or otherwise abrogate the QF contract of a
facility that is exempt from filing requirements if it finds that the
facility in fact does not meet the criteria to be considered a QF, or
the facility owner made fraudulent or false representations regarding
its satisfaction of QF eligibility criteria; (4) that any increase in
power production capacity requires a new Interconnection Request and
that certain changes other than power production capacity increase also
may trigger the Material Modification provisions of the Commission's
Interconnection Procedures; (5) revision to Sec. 292.310 of the
Commission's regulations to require a utility that is seeking relief
from PURPA mandatory purchase obligations to provide only the name and
address of any QF that is exempt from filing with the Commission to
obtain QF status.\29\
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\29\ EEI notes that Sec. 292.310 information collection is the
subject of the Commission's current request for OMB renewal of FERC-
912 in Docket IC09-912-000.
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Commission Determination
33. The Commission adopts the NOPR proposal to update Sec.
292.203(b) to reflect that a qualifying cogeneration facility must
comply with any applicable requirements in Sec. 292.205(d), and to
make explicit the Commission's authority to grant waiver of the filing
requirement upon a showing of good cause.
34. The Commission also adopts the NOPR proposal to add a Sec.
292.203(d) to exempt facilities with a net power production capacity of
1 MW or less from the requirement to make a filing with the Commission
in order to be a QF. The Commission notes that, until the effective
date of Order No. 671, no filing, either of a self-certification or an
application for Commission certification, was needed for a facility to
claim QF status.\30\ In instituting a filing requirement for QF status
in Order No. 671, the Commission, among other things, explained that
requiring a filing would help ensure that a ``new'' cogeneration
facility would not be able to claim QF status without making a filing;
\31\ the Commission believed that the Congressional mandate to tighten
the standards for cogeneration facilities required that a filing,
either a self-certification or an application for Commission
certification, be made by an entity claiming QF status.\32\ However,
for facilities that are comparatively small, such as solar generation
facilities installed at residences or other relatively small electric
consumers such as retail stores, hospitals, or schools (and, in fact,
many of the filings received in recent years involve just such small
solar and wind-powered facilities), there may not be as compelling a
need for filings with the Commission for QF status.
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\30\ While not required, a facility seeking to claim QF status
had the option of filing a self-certification or an application for
Commission certification, and many facilities chose to do so. Here,
as we explain below, we are adopting an exemption from the
requirement to file for facilities with a net power production
capacity of 1 MW or less. As before, though, while not required, a
facility with a net power production capacity of 1 MW or less
seeking to claim QF status has the option of filing a self-
certification or an application for Commission certification should
it choose to do so.
\31\ As noted below, over the last five years, the percentage of
facilities that are cogeneration facilities 1 MW or smaller filing
for QF status has proven to be comparatively small.
\32\ Order No. 671, FERC Stats. & Regs. ] 31,203 at P 81.
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35. The Commission adopts the originally-proposed 1 MW filing
threshold for exemption from the requirement to make a filing for QF
status. We find that a 1 MW threshold, consistent with PURPA's
mandate,\33\ encourages QFs--both cogeneration and small power
production--by eliminating the burden of filing. And a 1 MW threshold
appropriately balances the competing claims of those seeking a lower
threshold and those seeking a higher threshold. A lower threshold,
while perhaps exempting facilities installed at residences, would
nevertheless continue to impose a requirement to file on facilities,
such as facilities installed at retail stores, hospitals, or schools,
that are among the small facilities that PURPA was equally intended to
promote. Facilities larger than 1 MW, however, represent a significant
departure from the smallest generation (residential, retail, hospitals,
schools, etc.) and such larger facilities should not find the filing
requirement for QF status to represent an undue burden. Facilities over
1 MW would typically require a significant capital outlay, on the order
of hundreds of thousands or millions of dollars, and the additional
burden, both financial and otherwise, of filing with the Commission
will be comparatively minimal. Moreover, looking at QF filings for the
last five years, we see that a substantial portion of such QF filings
are from smaller facilities. QF certification filings from facilities 1
MW or smaller represented approximately 48 percent of all QF filings.
The filings from these facilities, however, represented only a small
percentage of the total capacity being certified as QFs; filings from
facilities 1 MW or smaller represented only approximately one half of
one percent of QF capacity certified. Given these figures, the need for
filings from such facilities is equally small; such facilities, whether
or not they are required to file a Form 556, would rarely, if ever, not
be in compliance with the standards and criteria for QF status.
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\33\ See 16 U.S.C. 824a-3(a).
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36. We see no significant benefit to NRECA's suggestion that we
adopt a 1 MW threshold for facilities fueled by renewable resources but
a separate, lower threshold for facilities fueled by other resources.
In this regard we note that from 2006 to date there were 2,142 Form 556
filings made by facilities 1 MW and smaller. Of those, only three
percent were made by cogeneration facilities, with the rest being small
power production facilities, and 90 percent were made by solar-powered
and wind-powered small power production facilities (the rest were made
by other small power production facilities). Thus, the vast majority of
the 1 MW and smaller QFs are the solar-powered and wind-powered
facilities that NRECA agrees should have a 1 MW threshold. To the
extent that NRECA and others believe that small facilities fueled by
other resources should be subject to the higher level of scrutiny that
a Form 556 filing enables, we discuss below means to monitor compliance
with the criteria for QF status that are available to purchasing
utilities.
37. In exempting smaller generating facilities from the requirement
to file a Form 556 in order to obtain QF status, the Commission is
simply reverting, for these 1 MW and below facilities only, back to the
policy that existed prior to Order No. 671, where QF status did not
depend on such a filing. At that time, a facility's QF status was
dependent only on whether the facility met the technical criteria for
QF status, and was not dependent upon the applicant having
[[Page 15955]]
made a certification filing with the Commission.
38. A transacting utility, of course, needs necessary technical
information from a QF in order to safely and reliably interconnect and
transact with the QF, and we would expect a QF to provide such
information.\34\ And a purchasing electric utility currently may
contest a facility's QF status if it does not agree with the facility's
claim to that status. Thus, utilities currently may file a petition for
revocation of QF status for any facility that holds itself out as a QF
but which the utility reasonably believes does not meet the
requirements for QF status,\35\ just as they could prior to Order No.
671. The Commission has not proposed to change these regulations in
this proceeding.
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\34\ Such information would include principal components of the
facility (electric generators, transformers, switchyard equipment),
fuel type, maximum gross and net output, expected installation and
operation dates as required to determine the impact of the QF on the
safety and reliability of the electric system. A purchasing utility
may also ask a QF that has not filed a Form 556 to provide the
utility an attestation that the QF meets the requirements for QF
status.
\35\ 18 CFR 292.207(d).
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39. Electric utilities, however, may not refuse to purchase
electric energy from a QF that is exempt from the requirement that it
file a Form 556, or unilaterally terminate or otherwise abrogate a
legally enforceable obligation or a contract with a QF that is exempt
from the requirement that it file a Form 556, absent a favorable
finding by the Commission in response to a petition for revocation of
QF status.
40. The Commission agrees with Interstate Renewables that
facilities exempt from the QF filing requirement for QF status may (at
their option) file a self-certification or an application for
Commission certification notwithstanding the exemption.
41. The Commission declines to address, as beyond the scope of this
proceeding, EEI's requests (1) to modify 18 CFR 292.310 to require a
utility that is seeking relief from PURPA mandatory purchase
obligations to provide only the name and address of any QF that is
exempt from filing with the Commission to obtain QF status,\36\ and (2)
for the Commission to remind QFs that ``any increase in MW requires a
new Interconnection Request and that certain changes other than MW
increase also may trigger the Material Modification provisions of the
Commission's Interconnection Procedures.''
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\36\ We note, however, that the Commission does not expect a
utility to provide, in a PURPA section 210(m) filing, a QF docket
number for a potentially-affected QF that has not filed, or not yet
filed, for QF status. Similarly, in a PURPA section 210(m) filing,
where the potentially affected QF's plans are not sufficiently
definite such that the QF does not, in fact, know the information
required for the filing so that a filing utility does not have
information required by section 292.310 of our regulations, the
filing utility may state that it does not have the information and
state why the information is not available.
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D. Revisions to 18 CFR 292.204
NOPR Proposal
42. Section 3(17)(E) of the Federal Power Act provides that an
``eligible solar, wind, waste or geothermal facility'' is a facility
which produces electric energy solely by the use, as a primary energy
source, of solar energy, wind energy, waste resources or geothermal
resources, but only if such facility meets certain criteria for dates
of certification and construction. Section 3(17)(A) of the Federal
Power Act provides that any eligible solar, wind, waste, or geothermal
facility is a small power production facility, regardless of its size.
The Commission implemented these sections of the Federal Power Act in
Sec. 292.204(a), including the statement that there are no size
limitations for ``eligible'' solar, wind or waste facilities,\37\ as
defined by section 3(17)(E) of the Federal Power Act. The regulation
then states that, for ``a non-eligible facility,'' the size limitation
for a qualifying small power production facility is 80 MW.
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\37\ The Commission pointed out in the NOPR that ``geothermal''
was inadvertently omitted when the regulation was written. However,
the Commission explained that the proposed changes obviate the need
to correct this omission.
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43. In the NOPR, the Commission explained that the wording of Sec.
292.204(a) has created confusion for many applicants. Applicants not
familiar with section 3(17)(A) or (E) of the Federal Power Act
frequently confuse the statutory concept of ``eligibility'' with more
general questions of whether a facility is eligible for QF status. They
often assume that an ``eligible facility'' is any facility that is
eligible for qualifying status. In an attempt to reduce such confusion,
the Commission proposed to revise Sec. 292.204(a) to be more clear
(avoiding using the term ``eligible'') while achieving the same
regulatory outcome as the current Sec. 292.204(a).
Comments
44. No comments were received on the Commission's proposal to
clarify the wording of Sec. 292.204(a). However, EEI requests that the
Commission revisit the ``one-mile rule'' used to determine whether two
facilities are part of the same QF for purposes of Sec. 292.204(a),
and asks that the Commission adopt a rebuttable presumption that
facilities on sites located more than one mile apart are independent
for purposes of QF certification, but that utilities would be allowed
to rebut this presumption upon a showing that the facilities, although
located more than a mile apart, are ``part of a common enterprise'' and
should thus be considered as a single entity, not entitled to more
separate certifications of QF status.
Commission Determination
45. The Commission adopts the NOPR proposal to revise Sec.
292.204(a) to be more clear (avoiding using the term ``eligible'')
while achieving the same regulatory outcome. The Commission declines,
as beyond the scope of this proceeding, the request by EEI to adopt a
presumption that facilities on sites located more than one mile apart
are independent for purposes of QF certification, and that such
presumption be rebuttable based on considerations EEI enumerates.\38\
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\38\ We note that the one-mile rule has been part of the
Commission's regulations since the initial implementation of PURPA.
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E. Revisions to 18 CFR 292.205
NOPR Proposal
46. In the NOPR, the Commission explained that the text of Sec.
292.205(d) of the Commission's regulations \39\ contains an error in
the description of the new cogeneration facilities that are subject to
the requirements of Sec. Sec. 292.205(d)(1) and (2). Section
292.205(d) provides that the following facilities are subject to these
requirements:
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\39\ 18 CFR 292.205(d).
any cogeneration facility that was either not certified as a
qualifying cogeneration facility on or before August 8, 2005, or
that had not filed a notice of self-certification, self-
recertification or an application for Commission certification or
Commission recertification as a qualifying cogeneration facility
under Sec. 292.207 of this chapter prior to February 2, 2006, and
which is seeking to sell electric energy pursuant to section 210 of
the Public Utility Regulatory Policies Act of 1978, 16 U.S.C. 824a-
1.\40\
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\40\ Id. (emphasis added).
47. From this language, the criteria for QF status include whether
or not a cogeneration facility was ``certified as'' a qualifying
cogeneration facility by August 8, 2005.\41\ However, the text of
section 210(n)(2) of PURPA states that the Commission's prior
cogeneration requirements shall continue to apply to any facility that
``was a qualifying cogeneration facility on [August 8,
[[Page 15956]]
2005].'' \42\ Furthermore, at the time of enactment of EPAct 2005, the
Commission's regulations did not require that a facility that complied
with the requirements for QF status be self or Commission certified in
order to be a QF.\43\ As such, there were many facilities that were QFs
on August 8, 2005, even though they were not self or Commission
certified as QFs by that date. To correct this error, the Commission
proposed to strike the words ``certified as'' from the first sentence
of Sec. 292.205(d).
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\41\ The significance of August 8, 2005 is that it is the date
on which the Energy Policy Act of 2005 was signed into law.
\42\ 16 U.S.C. 824a-3(n)(2)(A) (emphasis added).
\43\ See Order No. 671, FERC Stats. & Regs. ] 31,203 at P 81.
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48. Section 210(n)(2) of PURPA also states that the Commission's
prior cogeneration requirements will continue to apply to any facility
that ``had filed with the Commission a notice of self-certification,
self recertification or an application for Commission certification
under 18 CFR 292.207 prior to [February 2, 2006].'' \44\ The Commission
implemented this provision in Sec. 292.205(d) by not applying the new
cogeneration requirements to any cogeneration facility that had filed
``a notice of self-certification, self-recertification or an
application for Commission certification or Commission recertification
as a qualifying cogeneration facility under Sec. 292.207 of this
chapter prior to February 2, 2006.'' Because any facility that had
recertified (either by self-recertification or application for
Commission recertification) prior to February 2, 2006 must necessarily
have made its original certification prior to February 2, 2006, the
Commission proposed in the NOPR that the inclusion of ``self-
recertification'' and ``application for Commission recertification'' in
this provision is unnecessary. The Commission proposed to simplify
Sec. 292.205(d) to state that the new cogeneration requirements will
not apply to any facility that had filed ``a notice of self-
certification or an application for Commission certification as a
qualifying cogeneration facility under Sec. 292.207 of this chapter
prior to February 2, 2006.''
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\44\ 16 U.S.C. 824a-3(n)(2)(B).
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Comments
49. No comments were filed on this proposal.
Commission Determination
50. The Commission adopts the NOPR proposals to strike the words
``certified as'' from the first sentence of Sec. 292.205(d) and to
simplify Sec. 292.205(d) to state that the new cogeneration
requirements will not apply to any facility that had filed ``a notice
of self-certification or an application for Commission certification as
a qualifying cogeneration facility under Sec. 292.207 of this chapter
prior to February 2, 2006.'' The proposed revisions achieve the
intended regulatory result of the existing regulatory text while
decreasing the complexity of the regulatory text, and thus the
opportunities for confusion.
F. Revisions to 18 CFR 292.207
1. Elimination of Pre-Authorized Commission Recertification
NOPR Proposal
51. In the NOPR, the Commission proposed to eliminate the procedure
for pre-authorized Commission recertification contained in Sec.
292.207(a)(2).\45\ That procedure was established to give applicants
for facilities that have been certified under the procedures for
Commission certification in Sec. 292.207(b) a list of insubstantial
alterations and modifications that would not result in the revocation
of QF status previously granted by the Commission. Section
292.207(a)(2)(ii) also requires those making the changes listed in
Sec. 292.207(a)(2)(i) to notify the Commission and each affected
utility and State regulatory authority of each such change.
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\45\ 18 CFR 292.207(a)(2).
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52. The Commission explained in the NOPR that the pre-authorized
Commission recertification process did not require the use of Form No.
556, and that historically the very few applicants that filed pre-
authorized Commission recertifications did so in the form of a letter
describing the changes to their facilities. The Commission further
explained that, in this rulemaking, we were implementing procedures to
require that self-certifications or applications for Commission
certification be made through the electronic submission of a Form No.
556, and that removing the pre-authorized recertification option
ensures that all QF certification filings will be made electronically
using a Form No. 556. The Commission explained that it could opt to
revise the procedure for the pre-authorized Commission recertification
to require such filings to be made electronically using a Form No. 556,
but that such a revised procedure would be essentially identical to the
procedure for self-certification. The Commission explained that having
such a duplicative procedure appeared unjustified, particularly given
the increase in complexity to the Form No. 556 and the Commission's
regulations that would result from such a procedure.
53. The Commission further noted that the types of changes listed
in Sec. 292.207(a)(2)(i) were somewhat misleading, as a strict reading
of that list implied that almost any change to a QF, no matter how
small, would require notice to the Commission and to the affected
utilities and State regulatory authorities. In reality, the Commission
explained, changes falling below a certain level of importance were not
significant enough to justify the burden on the applicant of the
recertification requirement.
Comments
54. EEI and Southern support the proposal to eliminate the
procedure for pre-approved Commission reauthorization.
55. Sun Edison, on the other hand, requests that the Commission
retain a list of pre-approved QF changes that would not require QF
recertification, and otherwise clarify the trigger threshold for
recertification. In this regard, Sun Edison requests clarification of
what the Commission meant in the NOPR by its statement that ``changes
falling below a certain level of importance are not significant enough
to justify the burden on the applicant of the recertification
requirement.'' \46\ In particular, Sun Edison argues that changes in
ownership should not trigger a re-filing requirement. Sun Edison
suggests that, if the Commission does not eliminate the reporting
requirement for ownership information as requested by Sun Edison and
addressed below, the Commission consider requiring that the applicant
only provide ownership information once in Form No. 556 and that no
subsequent change in QF ownership require a refiling of Form No. 556,
or that, for subsequent change in QF ownership, the applicant only
provide the Commission with a list of affected QF dockets, rather than
submit an entire new Form No. 556 for each QF in which it owns an
interest. Finally, Sun Edison requests that for all or some small power
QFs, especially those without fuel or size limitations, the Commission
grant a ``continued presumption'' of QF status as long as such
facilities continue to comply with the criteria for QF status (other
than the
[[Page 15957]]
filing requirements) and do not change their essential nature.
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\46\ NOPR Revision to Form, Procedures, and Criteria for
Certification of Qualifying Facility Status for a Small Power
Production or Cogeneration Facility, 74 FR 54503 (Oct. 22, 2009),
FERC Stats. & Regs. ] 32,648 at P 28.
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Commission Determination
56. The Commission will adopt the proposal to eliminate pre-
authorized Commission certification. The procedure was little used.
Moreover, because pre-authorized recertifications were usually filed in
letter format, and the Commission is in this rulemaking requiring that
all self-certifications and Commission certifications be made through
an electronic submission of a Form No. 556, removal of the pre-
authorized recertification option ensures that all QF certification
filings will be made electronically using a Form No. 556.
57. The Commission declines Sun Edison's request to include a list
in the regulations of specific changes that would not require QF
recertification. Section 292.207(d) of the Commission's regulations
provides that ``if a qualifying facility fails to conform with any
material facts or representations presented by the cogenerator or small
power producer in its submittals to the Commission, the [applicant's
certification] may no longer be relied upon.'' This standard will
continue to provide the basis for when recertification of facilities is
necessary, i.e., when facilities fail to conform with any material
facts or representations presented in an applicant's previous
certification.\47\ This standard has been in place for decades and, in
our experience, has provided the guidance needed to QFs to decide
whether to make a recertification filing; in the absence of any
evidence that the process requires modification, we decline to do so at
this time.\48\
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\47\ In response to Sun Edison's request, we clarify that this
standard also establishes the ``certain level of importance''
(referred to in P 28 of the NOPR) of a change below which the burden
on the applicant of the recertification requirement is not
justified. NOPR at P 28.
\48\ We note that Commission staff may be contacted by QFs for
informal guidance whether a particular change to a QF may require a
recertification.
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58. The Commission also denies Sun Edison's request that the
Commission consider requiring that applicants need only provide
ownership information in the initial certification filing, and that no
subsequent changes in QF ownership need be reported. The Commission
notes that the Commission determined in Order No. 671 that, despite the
elimination in EPAct 2005 of the ownership restrictions, ownership
information assists the Commission in monitoring potential
discrimination in the provision of service to customers and assists the
Commission in reviewing the extent to which various QFs should continue
to be exempt from various provisions of the FPA and state laws.\49\
Although the revised Form No. 556 adopted in this Final Rule relaxes,
to some extent, when a QF is required to disclose its owners,\50\ the
Commission's finding in Order No. 671 about the usefulness of ownership
information continues to be true today. Thus, we will continue the QF
ownership reporting requirement, including the requirement that any
change in material facts and representations triggers a recertification
requirement. We clarify, however, that the Commission will not consider
a change in ownership to be a change in material facts and
representations made in the previous filing if no owner increases their
equity interest by at least 10 percent from the equity interest
previously reported.\51\
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\49\ Order No. 671 at P 110.
\50\ While the Commission found that utility owners should be
disclosed, see id., the Form No. 556 adopted in this Final Rule does
not require disclosure of any owners with less than a 10 percent
equity interest in the facility.
\51\ To avoid any confusion, we note that the addition of an
owner not previously reported and that holds an equity interest of
10 percent or more would be a material change that would require
recertification.
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59. We also decline Sun Edison's request that applicants be
allowed, in recertifications reporting ownership changes, to only
provide the Commission with a list of affected QF dockets rather than
submit a new Form No. 556 for each QF in which it owns a reportable
interest. The Commission may, however, on a case-by-case basis, choose
to waive requirement to file Form No. 556.
2. Elimination of Procedures for Referring to Information From Previous
Certifications
NOPR Proposal
60. Section 292.207(a)(1)(iii) provides that subsequent notices of
self-recertification for the same facility may reference prior self-
certifications or prior Commission certifications, and need only refer
to changes which have occurred with respect to the facility since the
prior notice or the prior Commission certification. In the NOPR, the
Commission proposed to delete this provision, and, as a result, to
change the Commission's policy so that applicants are required to
provide all of the information for their facility in each Form No. 556
they submit with a self-recertification or an application for
Commission recertification.
Comments
61. EEI concurs with the Commission's proposal to delete Sec.
292.207(a)(1)(iii) and suggests the Commission also require all
currently-certified QFs to re-file their information electronically
within two years after a final rule becomes effective.
62. On the other hand, U.S. Clean Heat & Power disagrees with the
NOPR proposal, and requests that the Commission retain the ability to
reference prior notices or prior Commission certifications and to refer
only to changes which have occurred with respect to the f
