[Federal Register Volume 75, Number 60 (Tuesday, March 30, 2010)]
[Rules and Regulations]
[Pages 15950-15986]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-6769]



[[Page 15949]]

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Part IV





 Department of Energy





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Federal Energy Regulatory Commission



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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.

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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, e-mail: [email protected].
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: [email protected].
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: 
[email protected].

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.
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    \1\ 18 CFR 131.80.
    \2\ http://www.ferc.gov/QF.
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    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.
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    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.
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    \4\ 18 CFR 292.601.
    \5\ 18 CFR 292.602.
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    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.
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    \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).
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    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \33\ See 16 U.S.C. 824a-3(a).
---------------------------------------------------------------------------

    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).
---------------------------------------------------------------------------

    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.''
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \38\ We note that the one-mile rule has been part of the 
Commission's regulations since the initial implementation of PURPA.
---------------------------------------------------------------------------

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:
---------------------------------------------------------------------------

    \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\
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.''
---------------------------------------------------------------------------

    \44\ 16 U.S.C. 824a-3(n)(2)(B).
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \45\ 18 CFR 292.207(a)(2).
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    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 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 Sec.  292.207(a)(1)(iii) that 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.
    64. This proposed change will result in greater transparency: 
During the processing of routine QF petitions and periodic compliance 
reviews of self-certifications, 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 Sec.  292.207(a)(1)(iii) is appropriate.

[[Page 15958]]

    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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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
NOPR Proposal
    68. Section 292.207(a)(1)(iv) of our regulations \54\ currently 
requires that notices of self-certifications and self-recertifications 
for new cogeneration facilities be published in the Federal Register. 
Similarly, Sec.  292.207(b)(4) of our regulations \55\ requires that 
notices 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, Sec. Sec.  
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.
---------------------------------------------------------------------------

    \54\ 18 CFR 292.207(a)(1)(iv).
    \55\ 18 CFR 292.207(b)(4).
---------------------------------------------------------------------------

    69. In the NOPR, the Commission proposed to continue to publish 
notices of self-certification and self-recertification for new 
cogeneration facilities and applications for Commission certification 
and recertification in the Federal Register, and included that 
requirement in the proposed Sec.  292.207(c). However, the Commission 
proposed to delete Sec. Sec.  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 Sec. Sec.  
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 self-certification 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.
---------------------------------------------------------------------------

    \56\ 18 CFR 292.207(a)(ii).
---------------------------------------------------------------------------

    73. In the NOPR, the Commission proposed to amend the regulations 
to require that any applicant filing a self-certification, self-
recertification, application for Commission certification or 
application for Commission 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 Sec.  202.203(d)(1) from the requirement to file 
a Form 556 from the notice requirements contained in proposed Sec.  
292.207(c)(2).
    75. Interstate Renewables also requests that proposed Sec.  
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 Sec.  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 Sec.  
292.207(c)(2) the regulatory text more closely aligned with that Sec.  
292.207(c), so that Sec.  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, Sec.  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 Sec.  292.207(c)(2) with the 
phrase ``Except for a facility exempt under Sec.  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

[[Page 15959]]

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 
``pre-authorized Commission recertification'' in the title of Sec.  
292.207(a) and in the text of Sec.  292.207(d)(1)(i). The Commission 
also proposed to delete the current Sec.  292.207(a)(1), and to replace 
it, in Sec.  292.207(a), with a procedure for self-certification that 
incorporates clear reference to proposed Sec.  131.80 and to the notice 
requirements in Sec.  292.207(c).
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.
---------------------------------------------------------------------------

Commission Determination
    80. The Commission adopts the NOPR proposal to remove reference to 
``pre-authorized Commission recertification'' in the title of Sec.  
292.207(a) and in the body text of Sec.  292.207(d)(1)(i). The 
Commission also adopts the NOPR proposal to delete the current Sec.  
292.207(a)(1), and to replace it, in Sec.  292.207(a), with a procedure 
for self-certification that incorporates clear reference to proposed 
Sec.  131.80 and to the notice requirements in Sec.  292.207(c).

G. Revisions to 18 CFR 292.601

 NOPR Proposal
    81. In the NOPR, the Commission proposed to amend Sec.  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 Sec.  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 
Sec. Sec.  292.601 and 292.602, otherwise applicable to other small 
power production facilities, does not apply to ``eligible facilities.'' 
\60\
---------------------------------------------------------------------------

    \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).
    \60\ Cambria Cogen Co., 53 FERC ] 61,459, at 62,619 (1990).
---------------------------------------------------------------------------

Comments
    82. No comments were filed on this proposal.
Commission Determination
    83. The Commission adopts the NOPR proposal to amend Sec.  
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 Sec.  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 Sec.  292.601(a), and 
because the QFs described by Sec.  292.601(a) include all QFs other 
than those described by Sec.  292.601(b), the Incentives Act's 
exemption of ``eligible facilities'' from the size limitation contained 
in Sec.  292.601(b) also has the effect of making such facilities 
eligible for the exemptions from PUHCA and State laws and regulations.

H. Revisions to 18 CFR 292.602

 NOPR Proposal
    85. In the NOPR, the Commission proposed to amend Sec.  
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 Sec.  292.602, and to correct a typographical error. Finally, the 
Commission proposed to correct a typographical error in the title of 
Sec.  292.602.
 Comments
    86. No comments were filed on this proposal.
 Commission Determination
    87. The Commission adopts the NOPR proposal to amend Sec.  
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 Sec.  292.602, and to correct a typographical error. The Commission 
also adopts the NOPR proposal to correct a typographical error in the 
title of Sec.  292.602.

IV. Proposed Revisions to the Form No. 556

A. General

 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 Sec.  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.
---------------------------------------------------------------------------

    \61\ http://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).
---------------------------------------------------------------------------

    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

[[Page 15960]]

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.''
---------------------------------------------------------------------------

    \63\ Order No. 575, 60 FR 4831 (Jan. 13, 1995), FERC Stats. & 
Regs. ] 31,014, at 31,282 and 31,285.
---------------------------------------------------------------------------

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.''

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 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.

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\
---------------------------------------------------------------------------

    \64\ Order No. 671, FERC Stats. & Regs. ] 31,203 at P 110.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

Comments
    105. EEI and Southern support the Commission's clarification of 
level of ownership. As discussed above, Sun Edison requests the 
Commission

[[Page 15961]]

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.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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.

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. 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 Sec.  292.204(b)(2) of the Commission's regulations.\71\
---------------------------------------------------------------------------

    \70\ 18 CFR 292.204(b).
    \71\ 18 CFR 292.204(b)(2).
---------------------------------------------------------------------------

    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.
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 [deg]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

[[Page 15962]]

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 
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 Sec.  
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 Sec.  292.205(d)(3).
---------------------------------------------------------------------------

    \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.''
---------------------------------------------------------------------------

    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 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).
---------------------------------------------------------------------------

    \73\ Order No. 671, FERC Stats. & Regs. ] 31,203 at P 17.
---------------------------------------------------------------------------

    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 Sec.  
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

[[Page 15963]]

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 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.
---------------------------------------------------------------------------

    \74\ Id. P 115.
---------------------------------------------------------------------------

    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 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 Sec.  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 Sec.  
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 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 
pre-EPAct 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

[[Page 15964]]

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.
---------------------------------------------------------------------------

    \75\ 44 U.S.C. 3507(d).
---------------------------------------------------------------------------

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 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:

----------------------------------------------------------------------------------------------------------------
                                                                     Number of       Hours per     Total annual
           Facility type                     Filing type            respondents     respondent         hours
----------------------------------------------------------------------------------------------------------------
cogeneration facility > 1 MW.......  self-certification.........             100               8             800
cogeneration facility > 1 MW.......  application for Commission                3              50             150
                                      certification.
small power production facility > 1  self-certification.........             400               3           1,200
 MW.
small power production facility > 1  application for Commission                1               6               6
 MW.                                  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 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: [email protected]]. 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).
    \77\ See 18 CFR 380.4(a)(5).
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \78\ 5 U.S.C. 601-12.
---------------------------------------------------------------------------

    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

[[Page 15965]]

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-by-step 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 (http://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 assistance, please contact 
FERC Online Support at 1-866-208-3676 (toll free) or 202-502-6652 or e-
mail at [email protected], or the Public Reference Room at 
(202) 502-8371, TTY (202) 502-8659. Email at 
[email protected].

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.

List of Subjects

18 CFR Part 131

    Electric power, Natural gas, Reporting and recordkeeping 
requirements.

18 CFR Part 292

    Electric power, Electric power plants, Electric utilities.

    By the Commission.
Nathaniel J. Davis, Sr.,
Deputy Secretary.

0
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

0
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.


0
2. Section 131.80 is revised to read as follows:


Sec.  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 Sec.  
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 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

0
1. The authority citation for part 292 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.


0
2. Section 292.203 is revised to read as follows:


Sec.  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 Sec.  292.204(a);
    (2) Meets the fuel use criteria specified in Sec.  292.204(b); and
    (3) Unless exempted by paragraph (d), has filed with the Commission 
a notice of self-certification, pursuant to Sec.  292.207(a); or has 
filed with the Commission an application for Commission certification, 
pursuant to Sec.  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 
Sec. Sec.  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 Sec.  292.207(a); or has 
filed with the Commission an application for Commission certification, 
pursuant to Sec.  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 Sec.  
292.202(p)) is a qualifying facility if it meets the requirements of:

[[Page 15966]]

    (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.

0
3. In Sec.  292.204, paragraph (a)(1) is revised and paragraph (a)(4) 
is added to read as follows:


Sec.  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.
* * * * *

0
4. In Sec.  292.205, paragraph (d) is revised to read as follows:


Sec.  292.205  Criteria for qualifying cogeneration facilities.

* * * * *
    (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 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, 
must also show:
* * * * *

0
5. In Sec.  292.207, paragraphs (a) through (d)(1)(i) are revised to 
read as follows:


Sec.  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 Sec.  
292.203 may be self-certified 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 Sec.  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 self-certification 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 Sec.  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 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 self-certification of a cogeneration 
facility that is subject to the requirements of Sec.  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 self-recertification 
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.
* * * * *


0
6. In Sec.  292.601, paragraph (a) is revised to read as follows:


Sec.  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).
* * * * *


0
7. In Sec.  292.602, the title and paragraph (c)(1) are revised to read 
as follows:


Sec.  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

[[Page 15967]]

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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[[Page 15968]]

Appendix A--Proposed FERC Form No. 556
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[FR Doc. 2010-6769 Filed 3-29-10; 8:45 am]
BILLING CODE 6717-01-C