[Federal Register Volume 79, Number 104 (Friday, May 30, 2014)]
[Proposed Rules]
[Pages 31061-31072]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-11946]
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DEPARTMENT OF ENERGY
Federal Energy Regulatory Commission
18 CFR Part 35
[Docket No. RM14-11-000]
Open Access and Priority Rights on Interconnection Customer's
Interconnection Facilities
AGENCY: Federal Energy Regulatory Commission.
ACTION: Notice of proposed rulemaking.
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SUMMARY: In this Notice of Proposed Rulemaking, the Federal Energy
Regulatory Commission proposes to amend its regulations to waive the
Open Access Transmission Tariff requirements, the Open Access Same-Time
Information System requirements its regulations, and the Standards of
Conduct requirements its regulations for any public utility that is
subject to such requirements solely because it owns, controls, or
operates Interconnection Customer's Interconnection Facilities, in
whole or in part, and sells electric energy from its Generating
Facility, as those terms are defined in the pro forma Large Generator
Interconnection Procedures and the pro forma Large Generator
Interconnection Agreement and adopted in Order No. 2003. The Commission
proposes to find that requiring the filing of an Open Access
Transmission Tariff is not necessary to prevent unjust or unreasonable
rates or unduly discriminatory behavior with respect to Interconnection
Customer's Interconnection Facilities over which interconnection and
transmission services can be ordered pursuant to the Federal Power Act.
DATES: Comments are due July 29, 2014.
ADDRESSES: You may submit comments, identified by docket number and in
accordance with the requirements posted on the Commission's Web site,
http://www.ferc.gov. Comments may be submitted by any of the following
methods:
Agency Web site: Documents created electronically using
word processing software should be filed in native applications or
print-to-PDF format, and not in a scanned format, at http://www.ferc.gov/docs-filing/efiling.asp.
Mail/Hand Delivery: Commenters unable to file comments
electronically must mail or hand deliver an original copy of their
comments to: Federal Energy Regulatory Commission, Secretary of the
Commission, 888 First Street NE., Washington, DC 20426. These
requirements can be found on the Commission's Web site, see, e.g., the
``Quick Reference Guide for Paper Submissions,'' available at http://www.ferc.gov/docs-filing/efiling.asp, or via phone from FERC Online
Support at (202) 502-6652 or toll-free at 1-866-208-3676.
FOR FURTHER INFORMATION CONTACT:
Becky Robinson (Technical Information), Office of Energy Policy and
Innovation, Federal Energy Regulatory Commission, 888 First Street NE.,
Washington, DC 20426, (202) 502-8868, [email protected].
Brian Gish (Legal Information), Office of the General Counsel--Energy
Markets, Federal Energy Regulatory Commission, 888 First Street NE.,
Washington, DC 20426, (202) 502-8998, [email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
Paragraph
Nos.
I. Introduction............................................. 1
II. Background.............................................. 4
A. Development of ICIF Policies......................... 4
B. Notice of Inquiry.................................... 16
C. Comments on the Notice of Inquiry.................... 18
III. The Need for Reform.................................... 23
IV. Proposed Reform......................................... 33
A. Proposed New Processes for ICIF Access............... 33
1. Grant Blanket Waivers to Eligible ICIF Owners.... 34
2. Provide Open Access and Establish Priority Rights 41
to ICIF Through Sections 210 and 211...............
a. Procedures Under Sections 210 and 211........ 42
b. Application of Sections 210 and 211 to 47
Requests for Service on ICIF...................
3. Safe Harbor for Early Years After ICIF 54
Energization.......................................
B. Affiliate Concerns................................... 59
V. Information Collection Statement......................... 60
VI. Environmental Analysis.................................. 65
VII. Regulatory Flexibility Act Analysis.................... 66
VIII. Comment Procedures.................................... 69
IX. Document Availability................................... 73
Appendix A: List of Short Names of Commenters on the Federal
Energy Regulatory Commission's Notice of Inquiry on Open
Access and Priority Rights on Interconnection Facilities--
Docket No. AD12-14-000, April 2012.
147 FERC ] 61,123.
Notice of Proposed Rulemaking
May 15, 2014.
I. Introduction
1. In this Notice of Proposed Rulemaking (Proposed Rule), the
Federal Energy Regulatory Commission (FERC or Commission) proposes to
amend its regulations to waive the Open Access Transmission Tariff
(OATT) requirements of 18 CFR 35.28 (2013), the Open Access Same-Time
Information System (OASIS) requirements of Part 37 of its regulations,
18 CFR 37 (2013), and the Standards of Conduct requirements of Part 358
of its regulations, 18 CFR 358 (2013), for any public utility that is
subject to such requirements solely because it owns, controls, or
operates Interconnection Customer's Interconnection Facilities
(ICIF),\1\ in whole or in part, and sells electric
[[Page 31062]]
energy from its Generating Facility, as those terms are defined in the
pro forma Large Generator Interconnection Procedures (LGIP) and the pro
forma Large Generator Interconnection Agreement (LGIA) \2\ and adopted
in Order No. 2003.\3\ The Commission proposes to find that requiring
the filing of an OATT is not necessary to prevent unjust or
unreasonable rates or unduly discriminatory behavior with respect to
ICIF over which interconnection and transmission services can be
ordered pursuant to sections 210, 211, and 212 of the Federal Power Act
(FPA).\4\
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\1\ The term ``generator tie line'' has often been used in the
past to refer to the facilities defined as ICIF. The Commission uses
the term ICIF in this Proposed Rule.
\2\ Throughout this Proposed Rule, the terms LGIP and LGIA refer
to the pro forma versions of those documents. The LGIA defines ICIF
as ``all facilities and equipment, as identified in Appendix A of
the Standard Large Generator Interconnection Agreement, that are
located between the Generating Facility and the Point of Change of
Ownership, including any modification, addition, or upgrades to such
facilities and equipment necessary to physically and electrically
interconnect the Generating Facility to the Transmission Provider's
Transmission System. Interconnection Customer's Interconnection
Facilities are sole use facilities.'' LGIA Article 1. The LGIP, in
Section 1, contains identical definitions to those in Article 1 of
the LGIA.
\3\ Standardization of Generator Interconnection Agreements and
Procedures, Order No. 2003, 68 FR 49845 (Aug. 19, 2003), FERC Stats.
& Regs. ] 31,146 (2003), order on reh'g, Order No. 2003-A, 69 FR
15932 (Mar. 26, 2004), FERC Stats. & Regs. ] 31,160, order on reh'g,
Order No. 2003-B, 70 FR 265 (Jan. 4, 2005), FERC Stats. & Regs. ]
31,171 (2004), order on reh'g, Order No. 2003-C, 70 FR 37661 (Jun.
30, 2005), FERC Stats. & Regs. ] 31,190 (2005), aff'd sub nom. Nat'l
Ass'n of Regulatory Util. Comm'rs v. FERC, 475 F.3d 1277 (D.C. Cir.
2007).
\4\ 16 U.S.C. 824i, 824j, and 824k (2012).
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2. Accordingly, with the goal of reducing regulatory burdens and
promoting development of generating facilities while continuing to
ensure open access to transmission facilities, the Commission proposes
to find that those seeking transmission service over ICIF that are
subject to the proposed blanket waiver discussed below must follow
procedures applicable to requests for interconnection and/or
transmission service under sections 210, 211, and 212 of the FPA. This
Proposed Rule also proposes a five-year safe harbor period during which
an ICIF owner subject to the blanket waiver discussed herein, who
initially has excess capacity on its ICIF because it intends to serve
its own or its affiliates' future phased generator additions or
expansions, may establish a rebuttable presumption for priority right
over third parties to use that excess capacity.
3. Based on input received following a technical conference and a
Notice of Inquiry (NOI) related to the treatment of ICIF, the
Commission preliminarily concludes that its policies that require the
ICIF owner to make excess capacity available to third parties unless it
can justify its planned use of the line impose risks and burdens on
ICIF owners and create regulatory inefficiencies that are not necessary
given the goals that the Commission seeks to achieve through such
policies. Specifically, the Commission's current policy has led ICIF
owners to file petitions for declaratory orders demonstrating plans and
milestones for future generation development to reserve for itself
currently excess ICIF capacity that it built with the intention of
using it for such purposes. In the vast majority of cases, the
Commission has granted the petition, based on confidential
documentation filed by the ICIF owner, with a limited description of
the plans and milestones the Commission deemed dispositive. Further,
the Commission's policy of treating ICIF the same as other transmission
facilities for OATT purposes, including the requirement to file an OATT
following a third-party request, creates undue burden for ICIF owners
without a corresponding enhancement of access given the ICIF owner's
typical ability to establish priority rights. We propose the
aforementioned reforms to re-balance the burden on ICIF owners, while
maintaining access to available capacity for third parties where
appropriate.
II. Background
A. Development of ICIF Policies
4. Under section 201(b) of the FPA, the Commission has jurisdiction
over all facilities used for the transmission of electric energy in
interstate commerce.\5\ Under section 201(e) of the FPA, any person who
owns or operates facilities subject to the jurisdiction of the
Commission is a public utility.\6\ The Commission is charged with the
responsibility under sections 205 and 206 of the FPA to ensure that a
public utility's rates, charges, and classifications are just and
reasonable and not unduly discriminatory or preferential.\7\
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\5\ 16 U.S.C. 824(b).
\6\ Section 201(f) of the FPA exempts certain governmental
entities and electric cooperatives from being a public utility.
\7\ 16 U.S.C. 824d and 824e.
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5. In Order No. 888, the Commission, relying upon its authority
under sections 205 and 206 of the FPA, established nondiscriminatory
open access to electric transmission service as the foundation
necessary to develop competitive bulk power markets in the United
States.\8\ Order No. 888 requires that all public utilities that own,
control, or operate transmission facilities must offer transmission
service to all eligible customers under standard terms and conditions.
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\8\ Promoting Wholesale Competition Through Open Access Non-
Discriminatory Transmission Services by Public Utilities; Recovery
of Stranded Costs by Public Utilities and Transmitting Utilities,
Order No. 888, 61 FR 21540 (May 10, 1996), FERC Stats. & Regs. ]
31,036 (1996), order on reh'g, Order No. 888-A, 62 FR 12274 (Mar.
14, 1997), FERC Stats. & Regs. ] 31,048, order on reh'g, Order No.
888-B, 81 FERC ] 61,248 (1997), order on reh'g, Order No. 888-C, 82
FERC ] 61,046 (1998), aff'd in relevant part sub nom. Transmission
Access Policy Study Group v. FERC, 225 F.3d 667 (D.C. Cir. 2000),
aff'd sub nom. New York v. FERC, 535 U.S. 1 (2002).
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6. Order No. 888, codified in section 35.28 of the Commission's
regulations, requires that any public utility that owns, controls, or
operates facilities used for the transmission of electric energy in
interstate commerce must file an OATT and comply with other related
requirements. The Commission in Order No. 888 did not specifically
address transmission facilities associated with the interconnection of
electric generating units to the transmission grid.
7. In Order No. 2003, the Commission found that interconnection
service plays a crucial role in bringing much-needed generation into
the market to meet the growing needs of electricity customers and
competitive electricity markets.\9\ The Commission reiterated that
``[i]nterconnection is a critical component of open access transmission
service,'' and that ``the Commission may order generic interconnection
terms and procedures pursuant to its authority to remedy undue
discrimination and preferences under Sections 205 and 206 of the
Federal Power Act.'' \10\ The Commission concluded that there was a
pressing need for a uniformly applicable set of procedures and a pro
forma agreement to form the basis of interconnection service for large
generators, and thus promulgated the LGIP and the LGIA to be included
in every public utility's OATT.\11\
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\9\ Order No. 2003, FERC Stats. & Regs. ] 31,146 at P 11.
\10\ Id. PP 12, 20.
\11\ Order No. 2003 established rules for a Large Generating
Facility, defined as a generating facility with a capacity of more
than 20 MW. In Order No. 2006, the Commission established procedures
and a pro forma Small Generator Interconnection Agreement for the
interconnection of generation resources no larger than 20 MW.
Standardization of Small Generator Interconnection Agreements and
Procedures, Order No. 2006, 70 FR 34100 (Jun. 13, 2005), FERC Stats.
& Regs. ] 31,180, order on reh'g, Order No. 2006-A, 70 FR 71760
(Nov. 30, 2005), FERC Stats. & Regs. ] 31,196 (2005), order on
clarification, Order No. 2006-B, 71 FR 42587 (Jul. 27, 2006), FERC
Stats. & Regs. ] 31,221 (2006).
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8. The LGIA defines an Interconnection Customer as ``any entity,
including the Transmission Provider, Transmission Owner or any of
[[Page 31063]]
the Affiliates or subsidiaries of either, that proposes to interconnect
its Generating Facility with the Transmission Provider's Transmission
System.'' Article 11.1 of the LGIA provides that the ``Interconnection
Customer shall design, procure, construct, install, own and/or control
Interconnection Customer Interconnection Facilities . . . at its sole
expense.'' The LGIA defines ``Interconnection Facilities'' \12\ as the:
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\12\ Unless otherwise indicated, capitalized terms herein have
the same definition as in the Commission's LGIA or in the OATT, as
applicable.
Transmission Provider's Interconnection Facilities and the
Interconnection Customer's Interconnection Facilities. Collectively,
Interconnection Facilities include all facilities and equipment
between the Generating Facility and the Point of Interconnection,
including any modification, additions or upgrades that are necessary
to physically and electrically interconnect the Generating Facility
to the Transmission Provider's Transmission System. Interconnection
Facilities are sole use facilities and shall not include
Distribution Upgrades, Stand Alone Network Upgrades or Network
Upgrades.\13\
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\13\ LGIA Article 1.
9. In general, Interconnection Facilities are constructed to enable
a generation facility or multiple generation facilities to transmit
power to the integrated transmission grid. Interconnection Facilities
are typically radial in nature, with a single point of interconnection
with the network grid, and over which power flows in one direction
toward the transmission grid.\14\ Depending on the circumstances,
Interconnection Facilities can be relatively short,\15\ or can span
considerable distances and represent significant transmission
capacity.\16\
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\14\ In limited circumstances, power may flow from the grid to
supply station power in the event no power is being produced at the
generating facility.
\15\ See, e.g., Southern Company Serv., Inc., Docket No. ER12-
554-000 (Jan. 6, 2012) (delegated letter order) (involving an
approximately 2000 foot interconnection facility).
\16\ See, e.g., Bayonne Energy Center, 136 FERC ] 61,019 (2011)
(involving a 345-kV interconnection facility); Terra-Gen Dixie
Valley, LLC, 132 FERC ] 61,215 (2010) (Terra-Gen I) (involving a
212-mile interconnection facility).
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10. Pursuant to the definitions in the LGIA and LGIP, those
Interconnection Facilities that are located between the Point of
Interconnection \17\ with the grid and the Point of Change of
Ownership,\18\ and which are owned, controlled, or operated by the
Transmission Provider, are the Transmission Provider's Interconnection
Facilities. Article 11.2 of the LGIA specifies that the ``Transmission
Provider or Transmission Owner shall design, procure, construct,
install, own and/or control the Transmission Provider's Interconnection
Facilities . . . at the sole expense of the Interconnection Customer.''
Third-party use of the Transmission Provider's Interconnection
Facilities is governed by Article 9.9.2 of the LGIA.\19\ This provision
permits the parties to negotiate for a third party to use the
Transmission Provider's Interconnection Facilities and entitles the
Interconnection Customer to compensation, based on pro rata usage, for
capital costs it incurred to construct those facilities and for the
associated ongoing costs, including operation and maintenance costs.
Neither the LGIP nor the LGIA contains provisions for third-party
requests for use of ICIF.
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\17\ The Point of Interconnection is defined in Article 1 of the
LGIA as the point where the Interconnection Facilities connect to
the Transmission Provider's Transmission System.
\18\ The Point of Change of Ownership is defined in Article 1 of
the LGIA as the point, as set forth in Appendix A to the LGIA, where
the Interconnection Customer's Interconnection Facilities connect to
the Transmission Provider's Interconnection Facilities. LGIP section
11.2 states that the Transmission Provider and Interconnection
Customer shall negotiate the provisions of the appendices to the
LGIA.
\19\ Article 9.9.2 provides that:
[I]f the Parties mutually agree, such agreement not to be
unreasonably withheld, to allow one or more third parties to use
Transmission Provider's Interconnection Facilities, or any part
thereof, Interconnection Customer will be entitled to compensation
for the capital expenses it incurred in connection with the
Interconnection Facilities based upon the pro rata use of the
Interconnection Facilities by the Transmission Provider, all third-
party users and the Interconnection Customer.
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11. In a series of cases since Order No. 2003 became effective,
issues have been raised regarding the extent to which, if at all, third
parties should be able to have open access for transmission on the
facilities located between the Generating Facility and the point at
which the Transmission Provider's Interconnection Facilities begin,
i.e., ICIF. In these cases, the Commission has required the ICIF owner
to provide open access transmission service over its facilities. In
Aero Energy, LLC,\20\ in response to an application under sections 210
and 211 of the FPA, the Commission ordered the Sagebrush Partnership
(Sagebrush) to interconnect with and provide transmission service to a
third party (Aero Energy, LLC) over Sagebrush's 46-mile, 230-kV ICIF
that connects its partners' generation resources to the grid. The
Commission ordered the parties to file an executed interconnection
agreement and transmission service agreement setting forth the terms
and conditions of service.\21\
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\20\ 115 FERC ] 61,128 (2006) (Aero Proposed Order), order
granting modification, 116 FERC ] 61,149 (2006) (Aero Modification
Order), final order directing interconnection and transmission
service, 118 FERC ] 61,204 (2007), order denying reh'g, 120 FERC ]
61,188 (2007) (Aero Rehearing Order) (collectively, Aero).
\21\ Subsequently, the Commission granted market-based rates to
several Sagebrush affiliates on the condition that Sagebrush file an
OATT for its line if any third party filed a request for service on
the line. EDFD Handsome-Lake, 127 FERC ] 61,243, at P 15 (2009).
Such a request was made, and Sagebrush filed an OATT for its
interconnection facility. Sagebrush, a California Partnership, 130
FERC ] 61,093, order on reh'g, 132 FERC ] 61,234 (2010). Similarly,
in Peetz Logan, the generation owner filed an OATT in response to a
request for third-party interconnection and transmission services
over its existing 78.2-mile, 230-kV ICIF that had been used to
connect three affiliated wind generation projects to the grid. Peetz
Logan Interconnect, LLC, 136 FERC ] 61,075 (2011) (Peetz Logan).
Also, in Terra-Gen, the generator owner of a 214-mile, 230-kV radial
interconnection facility was ordered by the Commission to file an
OATT in response to a request for third-party transmission service.
Terra-Gen Dixie Valley, LLC, 134 FERC ] 61,027, order on reh'g 135
FERC ] 61,134 (2011) (Terra Gen II).
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12. In Milford Wind Corridor, LLC, the Commission noted that the
fact that facilities only interconnect a generator to the grid does not
eliminate the requirement to file an OATT and to provide open access
transmission service.\22\ However, the Commission recognized that, in
such cases, it has granted waivers of the OATT requirements on a case-
by-case basis for ICIF owners who demonstrate that their ICIF are
limited and discrete and there is no outstanding request by a third
party to access the ICIF. The Commission granted these waivers to
Milford Wind Corridor, LLC with respect to its 88-mile 345-kV
``generator lead line.'' \23\
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\22\ 129 FERC ] 61,149, at P 24 (2009) (Milford).
\23\ Id. PP 1, 27.
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13. In Sky River, LLC, the Commission rejected the filing of an
executed Common Facilities Agreement providing a third party the right
to access and utilize Sky River, LLC's interest in a nine-mile 230-kV
``generator tie-line.'' Instead, the Commission required that any
service by non-owners over the line must be made pursuant to an
OATT.\24\ The Commission viewed the Common Facilities Agreement as an
attempt to govern transmission service for an unaffiliated third party
outside the context of an OATT.
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\24\ 134 FERC ] 61,064 (2011) (Sky River).
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14. At issue in these cases was whether the entity that owns and/or
controls ICIF to serve its or its affiliates' generation project or
projects has any priority right over third-party requesters to use the
capacity on its ICIF. Where an owner of ICIF has specific, pre-existing
generator expansion plans with milestones for construction of
[[Page 31064]]
generation facilities and can demonstrate that it has made material
progress toward meeting those milestones, the Commission may grant
priority rights for excess capacity on the ICIF for those future
generation projects.\25\ In Aero, before ordering service over the
Sagebrush line, the Commission provided the opportunity for the ICIF
owner to demonstrate that it had pre-existing contractual obligations
or other specific plans that would prevent it from providing the
requested firm transmission service to the third party.\26\ As a
result, the Commission found that one of the Sagebrush partners had
shown that it had pre-existing expansion plans that, at some future
date, would require firm transmission capacity, and that two other
Sagebrush partners had not shown that they had pre-existing expansion
plans that will require additional transmission capacity.\27\
Subsequently, the Commission has considered, on a case-by-case basis,
petitions for declaratory order requesting that an ICIF owner be
granted priority over third-parties to use capacity on its ICIF.\28\ In
Milford, the Commission granted such priority, finding that Milford had
shown that it had specific plans for phased development of its
generation. The Commission in Milford summarized the Aero precedent as
providing that:
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\25\ Alta Wind, 134 FERC ] 61,109, at PP 16-17 (2011); Milford,
129 FERC ] 61,149 at P 22; Aero Modification Order, 116 FERC ]
61,149 at P 28. Such plans and initial progress also must pre-date a
valid request for service. Terra-Gen I, 132 FERC ] 61,215 at P 53.
\26\ Aero Modification Order, 116 FERC ] 61,149 at P 28.
\27\ Specifically, one partner relied on a power purchase
agreement for 10 MW more than the nameplate capacity of its existing
project, but the Commission did not grant priority rights, ruling
that a power purchase agreement was not evidence of an expansion
obligation and that the partner had not presented evidence of
milestones having been met. Another partner argued that it had
expansion plans for one of its projects and had been working to
transfer transmission capacity from one of its affiliated projects
to another to accommodate its currently unused wind turbines;
however, the Commission ruled that because this was a transfer of
transmission capacity between partners, the required transmission
capacity was accounted for and included in the original allocation
of transmission capacity amongst the Sagebrush partners, and that
this possible expansion would not need additional transmission.
\28\ See Milford, 129 FERC ] 61,149 at P 24; Terra-Gen I, 132
FERC ] 61,215 at P 49.
A transmission owner that filed specific expansion plans with
definite dates and milestones for construction, and had made
material progress toward meeting its milestones, had priority over
later transmission requests.\29\
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\29\ Milford, 129 FERC ] 61,149 at P 22.
This required demonstration necessary to claim priority rights has
sometimes been referred to as the ``specific plans and milestones''
showing. In the past, some combination of the following types of
criteria has proven acceptable to demonstrate that an ICIF owner has
specific expansion plans with definite dates and milestones for
construction, and has made material progress toward meeting its
milestones: requesting interconnection and progressing with studies to
interconnect to the integrated transmission grid, demonstrating site
control, signing a power purchase agreement, pursuing financing
options, and researching and/or purchasing equipment.\30\
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\30\ The Aero precedent cited above is the only instance where
the Commission has not granted priority rights upon an attempted
plans and milestones demonstration.
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15. The Commission has also found that an affiliate of the ICIF
owner that is developing its own generator projects also may obtain
priority rights to the capacity on the ICIF by meeting the ``specific
plans and milestones'' standard with respect to future use.\31\ This
granting of priority rights preserves the ability of the generation
developer to deliver its future output to the point of interconnection
with the integrated transmission grid, so long as it can make the
relevant showing to the Commission sufficient to justify priority.
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\31\ See NextEra Energy Resources, LLC, 142 FERC ] 61,043, at P
26 (2013).
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B. Notice of Inquiry
16. On April 19, 2012, the Commission issued a NOI seeking comment
on whether and, if so, how it should revise its current policy
concerning open access and priority rights for capacity on ICIF.\32\
Specifically, the Commission sought comments on two alternative
approaches to govern third-party requests for service and priority
rights: (1) Continued use of an OATT framework with potential
modification and clarification, including the creation of a pro forma
tailored OATT and a case-by-case determination on the generation
developer's priority rights; and (2) use of an LGIA/LGIP framework in
which the existing LGIA provisions that govern third-party use of a
Transmission Provider's Interconnection Facilities would be extended to
ICIF (i.e., allowing parties to mutually agree to the use of and
compensation for the facilities, with disagreements coming to the
Commission for resolution).
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\32\ Open Access and Priority Rights on Interconnection
Facilities, 139 FERC ] 61,051 (2012). The Commission also held a
technical conference in March 2011 to explore, among other things,
the application of the Commission's open access policies to
``generator lead lines'' in the instance when affiliated or
unaffiliated third-party generators seek to use these facilities.
Priority Rights to New Participant-Funded Transmission, March 15,
2011 Technical Conference, AD11-11-000.
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17. These two options were intended to capture the policy debate of
whether, given the changes in industry (e.g., the development of
variable energy resources), and concerns over land-use, the Commission
should require ICIF owners to provide comparable service under known
rates, terms, and condition (i.e., an OATT) in response to a request of
a third party, or whether such third-party access should be obtained by
negotiation with the owner of the ICIF subject to the processes and
requirements of Order No. 2003, including Commission resolution of
disputes.
C. Comments on the Notice of Inquiry
18. Twenty-five entities submitted comments in response to the
NOI.\33\ Most commenters raised concerns regarding the Commission's
current policy and agreed that the Commission should change it. For
example, commenters expressed concerns that: (1) The Commission's
current policy creates regulatory disincentives for the development of
more efficient, high voltage ICIF to access new generation by
dramatically expanding the potential costs and responsibilities of
generation owners and increasing uncertainty regarding planned future
generation phases; \34\ (2) subjecting ICIF to open access requirements
places overly burdensome transmission owner-type requirements on
generators who are not in the business of providing transmission
service to third parties; \35\ (3) the Commission's pro forma OATT is
not well-suited to addressing a third-party request for access to ICIF
because ICIF do not serve the same purpose, and cannot provide many of
the same services, as network transmission facilities; \36\ (4)
treating these facilities under the OATT framework blurs the historical
distinction between integrated networked transmission facilities and
radial ICIF; \37\ and (5) having third-party access governed under
separate OATTs would complicate the third party's development because
prospective interconnecting generators would need to make separate
requests to seek
[[Page 31065]]
interconnection and transmission service from the ICIF owner and then
further transmission service from the Transmission Provider to transmit
energy on the transmission system.\38\
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\33\ Appendix A provides a list of commenters and name
abbreviations used herein.
\34\ BP Wind at 6; E.ON at 20; EEI at 2, 8-9; EPSA at 3, 16;
LADWP at 3; NextEra at 10; NRG at 1-3; Tenaska at 4-7.
\35\ BP Wind at 14; Duke at 3-5; EPSA at 7; First Wind at 2;
Invenergy at 20-21; NextEra at 10; NJBPU at 4-5, 8; NRG at 1-3.
\36\ APPA at 7; AWEA at 5; Duke at 5, 13; EEI at 7-8; Invenergy
at 7-8; NextEra at 9-10; Puget at 6; SEIA at 2; TGP at 28.
\37\ LADWP at 3, 10.
\38\ AWEA at 25; MISO at 5-6; Puget at 2-3.
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19. Commenters differed, however, in their recommendations for
specific changes to Commission policy. Some commenters supported the
option of creating a pro forma tailored OATT suited to the use of ICIF
for the provision of open access transmission service, noting that it:
(1) Would reduce the bureaucratic and financial burdens associated with
filing a pro forma OATT, while preserving the spirit of the
Commission's open access requirements; \39\ and (2) would ensure that
third-party requests for service on ICIF provide for adequate
transmission planning and study and appropriate contractual
relationships between Transmission Providers and interconnection
customers.\40\
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\39\ APPA at 2-4; TAPS at 2.
\40\ ITC at 7-9.
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20. Other commenters argued against requiring any OATT for ICIF.
They argued, among other things, that: (1) Mandating generator owners
to assume the role of Transmission Providers when faced with third-
party interconnection requests creates regulatory disincentives for the
development of more efficient, high voltage lead lines to access new
generation; \41\ and (2) the current policy of requiring an OATT is not
legally necessary \42\ or it is beyond the Commission's statutory
authority to impose a blanket OATT approach on independent generators
that do not voluntarily submit to the Commission's transmission service
jurisdiction under section 205.\43\
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\41\ LADWP at 3.
\42\ EPSA at 2-4; First Wind at 2, 11; NRG at 5-6; Tenaska at 2-
3.
\43\ TGP at 1-2.
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21. Other commenters supported an LGIA/LGIP approach for ICIF
access, in which the existing LGIA provisions that govern third-party
use of a Transmission Provider's Interconnection Facilities would be
extended to ICIF. They argued that: (1) A third party's access to the
grid cannot be evaluated solely by evaluating its use of the ICIF but
must also evaluate the third party's ability to interconnect with the
networked transmission system; (2) the networked Transmission Provider
has a more holistic view of the transmission system; (3) the
Transmission Provider has the necessary information and tools to
evaluate ICIF uses that are tied to the networked Transmission
Provider's administration of its interconnection queue and its
preparation of required system studies; \44\ (4) applying an LGIA/LGIP
framework to ICIF is administratively easy to implement and removes the
current uncertainty surrounding the Commission's OATT waiver process;
\45\ (5) using the LGIA/LGIP approach will avoid placing the overly
burdensome requirements of an OATT or tailored OATT framework on ICIF
owners; \46\ (6) this approach will not require the substantial
staffing and monetary resources that would be necessary to establish an
OATT, and ensures that balancing authority and Transmission Provider
functions remain with the most appropriate entity; \47\ and (7) the
LGIA/LGIP framework provides a more efficient method because it will
integrate any expanded use of the ICIF with the existing Transmission
Provider's planning process.\48\
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\44\ First Wind at 6-7.
\45\ BPA at 4; NRG at 14-17; Puget at 14-15.
\46\ EPSA at 9.
\47\ Puget at 14-15; E.ON at 2-3.
\48\ BPA at 1-5; MISO at 6.
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22. Other commenters, however, opposed the use of an LGIA/LGIP
framework for ICIF, arguing that: (1) It would place the network
Transmission Provider in control of determining access to the generator
lead line, when that utility may be a competitor, and leave to the ICIF
owner only a determination of the rates it could charge; \49\ (2) the
network Transmission Provider is in no position to grant or facilitate
access to or over facilities that it does not control or operate; \50\
(3) the Commission would have to address cost recovery (for the
increased burden of managing interconnection requests), cost allocation
(between the ICIF owner and third party), and the Transmission
Provider's level of operational control and the scope of
responsibilities; \51\ and (4) the LGIA/LGIP approach would
inappropriately favor the ICIF owner's generation vis-[agrave]-vis a
third-party generator because it would expand the ICIF owner's priority
rights to the full amount of the original interconnection request.\52\
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\49\ Invenergy 9-12; TGP at 5.
\50\ ITC at 6-7.
\51\ CAISO at 2-3.
\52\ TAPS at 11.
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III. The Need for Reform
23. The Commission preliminarily finds that the Commission's
current OATT requirements as applied to ICIF may impose risks and
burdens on generators and create regulatory inefficiencies that are not
necessary to achieve the Commission's open access goals. As such, the
Commission preliminarily finds that the Commission requirements for
achieving nondiscriminatory access over ICIF should be reformed to not
discourage competitive generation development with unnecessary burdens,
while ensuring nondiscriminatory access by eligible transmission
customers. Through this Proposed Rule, the Commission seeks to reduce
regulatory burdens and promote development of generation facilities
while continuing to ensure open access to transmission facilities.
24. Through the technical conference and NOI comments, as well as
other outreach efforts, the Commission has identified concerns with
respect to the Commission's current policy of applying OATT
requirements to ICIF. The Commission recognizes that filing and
maintaining an OATT can be seen as burdensome by ICIF owners who do not
see themselves, and do not want to be, in the business of providing
transmission service. Adding an OATT obligation to a generation project
can introduce an additional element of risk for the developer and its
lenders that they would not have if the project were not subject to the
potential obligation to file and maintain a transmission tariff.
25. The Commission also recognizes that the pro forma OATT is not a
very good fit for the limited services that could be provided over
ICIF. A number of sections of the pro forma OATT, such as the
provisions regarding network service, ancillary services, and planning
requirements, are arguably inapplicable to most or all ICIF owners.
Although ICIF owners may propose deviations from the pro forma OATT,
the Commission's existing process of handling these proposed deviations
on a case-by-case basis could result in a time-consuming proceeding
with an uncertain outcome.
26. An ICIF owner that has obtained a waiver of the OATT is still
required to file an OATT within 60 days of a request for service by a
third party and must begin interconnection studies. That obligation can
be triggered with a minimal effort by a requester, which may not
sufficiently distinguish customers who have a specific and
substantiated request for service from those whose request is not as
well supported. The Commission is aware of situations where the ICIF
owner received a request for service triggering the requirement that
the owner file an OATT, but the requester then failed to pursue any
further development. This is an additional risk for the ICIF owner.
27. Interconnecting with ICIF often involves unique circumstances
that would benefit from negotiation of individual access agreements.
However,
[[Page 31066]]
the current policy limits an ICIF owner's contractual flexibility if it
chooses to provide third-party access by mutual agreement.
Specifically, the Commission's current policy requires non-affiliated
parties to enter into a transmission service agreement, rather than a
common facilities agreement, which can limit the form of rates, terms,
and conditions in important ways. For instance, the third party would
pay average losses rather than incremental losses. In addition, an ICIF
owner is required to openly offer third-party service if it grants
third-party use by mutual agreement. This inflexibility may limit the
willingness of an ICIF owner to enter into third-party use agreements.
28. With respect to market-based rate filings (initial filings,
triennial updates, and change of status filings), there is often a lack
of clarity under existing policies as to whether applicants that own
ICIF or have affiliates that own ICIF must file an OATT or seek a
waiver from OATT requirements in order to show a lack of vertical
market power before the market-based rate order can be processed.\53\
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\53\ To demonstrate the absence of vertical market power in a
market power analysis, a seller or its affiliate that owns,
operates, or controls transmission facilities must have an OATT on
file unless waived. See 18 CFR 35.37(d) (2013).
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29. In addition, the Commission has identified concerns with the
pro forma OATT's requirement, in the absence of native load, to award
priority to use available capacity on transmission facilities based on
the timing (i.e., first-come-first-served) of the transmission request.
It is common for an ICIF owner to initially have excess capacity on its
ICIF because it plans to bring generation into commercial service in
stages or because transmission losses increase dramatically when a
transmission line becomes fully loaded. Under the Commission's current
policy, such ICIF owners face the risk of losing that capacity to a
competing developer who makes a request for service before the ICIF
owner is ready to use that capacity for its own future phases.
30. The Commission has developed a process for granting priority
rights to the ICIF owner for such excess capacity on a case-by-case
basis when the ICIF owner files a petition for declaratory order to
establish such priority rights. However, filing a petition for
declaratory order to establish priority rights can be a significant
burden for the ICIF owner. The Commission's current policy of requiring
a demonstration of ``specific plans and milestones'' to establish
priority rights can require substantial effort and resources on the
part of the ICIF owner to make the necessary showings. In addition, the
criteria the Commission uses to establish priority rights may appear as
vague to the public due to the reliance on documentation filed as
confidential.
31. Even with priority established through a request for
declaratory order, under current policy, the ICIF owner must still file
an OATT if a transmission request is filed. In other words, the
priority rights do not diminish the risk that the ICIF owner may have
to file an OATT within 60 days of a request for service.
32. The burdens and risks described above fall on all ICIF owners,
despite the fact that it is unlikely that any third party would request
OATT service on most ICIF. The Commission has issued numerous
individual orders granting waivers of OATT, OASIS, and Standards of
Conduct to ICIF owners, but in only four instances did a third party
request access on ICIF necessitating the filing of an OATT.\54\
Although only a small percentage of ICIF owners have actually had to
file an OATT, all ICIF owners are subject to the additional risks and
regulatory burdens discussed above, including possibly having to file
an OATT on 60 days' notice in response to a request for service, and
possibly losing some of the ICIF capacity planned for future use to a
requesting third party. The Commission preliminarily finds that
reforming its open access transmission requirements in this narrow set
of circumstances is appropriate due to the infrequency of third-party
requests to use ICIF. The Commission seeks comments on whether and how
the burden for eligible ICIF owners of potential OATT compliance bears
on the need to reform existing Commission policies with respect to ICIF
access.
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\54\ Between January 1, 2009, and January 1, 2014, the
Commission issued approximately 80 orders granting waiver of OATT,
OASIS, and Standards of Conduct requirements to ICIF owners.
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IV. Proposed Reform
A. Proposed New Processes for ICIF Access
33. The Commission proposes the following approach for non-
discriminatory open access to ICIF to replace the current case-by-case
approach for granting waivers of the OATT and priority rights
declarations. The Commission believes this approach will reduce
regulatory burdens and promote development of generation facilities
while continuing to ensure open access to transmission facilities. The
elements of this proposal are as described below.
1. Grant Blanket Waivers to Eligible ICIF Owners
34. The Commission's current policy is that, because ICIF are
facilities used for the transmission of electric energy in interstate
commerce, those who own, control, or operate ICIF must either have an
OATT on file or receive a waiver of the OATT requirement.\55\ Section
35.28(d) provides that any public utility subject to OATT, OASIS, and
Standards of Conduct requirements may file a request for a waiver for
good cause shown.\56\ The Commission has granted such requests for
waiver where the public utility owns only limited and discrete
facilities or is a small utility.\57\ Even if a waiver of the OATT is
granted for ICIF, it is subject to the requirement that, if a request
for transmission service over the facilities is made, the ICIF owner
would have to file an OATT within 60 days of the request \58\ and
comply with any additional requirements then in effect for compliance
with Order Nos. 888 and 890.\59\ The ICIF owner would thus become
subject to all of the relevant pro forma OATT requirements, unless it
successfully seeks and receives approval for deviations from the pro
forma OATT.
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\55\ See Milford, 129 FERC ] 61,149 at P 24 (noting that the
fact that the facilities merely tie a generator to the grid does not
render a line exempt from the Commission's regulation of
transmission facilities). See also Evergreen Wind Power III, LLC,
135 FERC ] 61,030, at P 15 n.18 (2011) (granting request for waiver
of the OATT requirement in the context of a request for market-based
rate authority).
\56\ The Commission has the general statutory authority to waive
its regulations as it may find necessary or appropriate. UtiliCorp
United, Inc. 99 FERC ] 61,280, at P 12 (2002); see also Pacific Gas
and Electric Co., 99 FERC ] 61,045, at P 5 (2002) (``It is however
well established that, with or without an explicit provision to that
effect, an agency may waive its regulations in appropriate
cases.'').
\57\ See, e.g., Prairie Breeze Wind Energy LLC, 145 FERC ]
61,290, at P 26 (2013); Ebensburg Power Company, 145 FERC ] 61,265,
at P 27 (2013); CSOLAR IV South, LLC, 143 FERC ] 61,275, at P 16
(2013).
\58\ Milford, 129 FERC ] 61,149 at P 27. See Termoelectrica
U.S., LLC, 105 FERC ] 61,087, at P 11 (2003); Black Creek Hydro,
Inc., 77 FERC ] 61,232, at 61,941 (1996).
\59\ Preventing Undue Discrimination and Preference in
Transmission Service, Order No. 890, 72 FR 12266 (Mar. 15, 2007),
FERC Stats. & Regs. ] 31,241, order on reh'g, Order No. 890-A, 73 FR
2984 (Jan. 16, 2008), FERC Stats. & Regs. ] 31,261 (2007), order on
reh'g and clarification, Order No. 890-B, 73 FR 39092 (July 8,
2008), 123 FERC ] 61,299 (2008), order on reh'g, Order No. 890-C, 74
FR 12540 (Mar. 25, 2009), 126 FERC ] 61,228 (2009), order on
clarification, Order No. 890-D, 74 FR 61511 (Nov. 25, 2009), 129
FERC ] 61,126 (2009).
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35. The Commission proposes to add sub-paragraph (d)(2) to 18 CFR
35.28 to grant a blanket ICIF waiver of all OATT, OASIS, and Standards
of Conduct
[[Page 31067]]
requirements to any public utility that is subject to such requirements
solely because it owns, controls, or operates ICIF, in whole or in
part, and sells electric energy from its Generating Facility, as those
terms are defined in the LGIP and LGIA.\60\ The waiver would apply to
all eligible existing and future ICIF owners. The Commission's proposal
to limit the waiver to ICIF owners who sell electric energy is intended
to ensure that any public utility with an OATT blanket waiver would be
subject to both an interconnection order under FPA section 210 and a
transmission order under FPA section 211, as discussed further below.
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\60\ The Commission also proposes to make non-substantive
revisions to what is currently 18 CFR 35.28(d) in order to update
certain cross-references in that paragraph.
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36. The Commission preliminarily finds that a blanket ICIF waiver
in these circumstances is justified because the usually limited and
discrete nature of ICIF and ICIF's dedicated interconnection purpose
mean that such facilities do not typically present all of the concerns
about discriminatory conduct that the Commission's OATT, OASIS and
Standards of Conduct requirements were intended to address. Because
third-party requests to use ICIF have been relatively rare, it is more
efficient to address such situations as they arise on an individual
basis.
37. Further, the ICIF waiver would remove regulatory burdens on
competitive generation resources without sacrificing the Commission's
ability to require open access in appropriate circumstances.
Specifically, we take this step to address concerns that our current
policy creates an undue burden on ICIF owners to file an OATT upon
energizing the ICIF or seek a waiver that would be revoked upon a
third-party request for service. As discussed above, ICIF owners are
focused on developing new generation resources. The time, effort and
cost of complying with the requirements of a public utility
transmission provider unduly hinder generation development efforts to
the detriment of competition. In addition, we agree with commenters to
the NOI and the technical conference that the current policy creates
too low a bar for third-party requests for service. Specifically, an
existing waiver of the OATT is revoked as soon as the ICIF owner
receives a third-party request for service, even if that request meets
few of the information and other requirements for transmission service
under the pro forma OATT. Finally, we believe that providing an up-
front waiver of the OATT for ICIF will clarify the manner by which
owners of these facilities can address concerns about vertical market
power when they seek market-based rate authority.
38. Unlike the current waivers for ``limited and discrete''
facilities, this blanket waiver of the OATT would not be automatically
revoked if transmission service is requested by a third party, but
could be revoked in a Commission order if the Commission determines
that it is in the public interest to do so. The waiver would also be
deemed to be revoked as of the date the public utility ceases to
satisfy the qualifications for such waiver, e.g., it owns, controls, or
operates transmission facilities that are not ICIF, or the corporate
structure changes such that the ICIF owner is no longer the entity that
sells electric energy from its Generating Facility. Thus, if material
circumstances change so that the ICIF owner no longer satisfies the
waiver qualifications, it may no longer rely on this waiver. For
example, providing transmission service not related to interconnecting
a generator to the grid, or the acquisition of transmission facilities
that are not ICIF, would be indicators that there has been a change in
circumstances that would make reliance on an ICIF waiver of the OATT
inappropriate.\61\ Determining whether the function of an ICIF has
evolved, and thus whether an ICIF owner may continue to rely on its
ICIF waiver, may require case-by-case assessment. We seek comment on
the circumstances under which and the mechanism by which the Commission
should revoke the proposed waiver.
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\61\ Cf. Golden Spread Electric Cooperative, Inc., 139 FERC ]
61,067, at PP 3-5 (2012) (explaining that the Commission several
times granted continued waiver of Order Nos. 888 and 889 to Golden
Spread Electric Cooperative, Inc. in response to system changes).
Specifically, in 2004, Golden Spread acquired approximately 110
miles of radial transmission facilities; in 2008, Golden Spread
acquired approximately 54.5 miles of radial transmission facilities
and constructed an approximately 18.4 mile radial line; and in 2011,
Golden Spread acquired Golden Panhandle Wind Ranch, LLC. Each time,
the Commission granted Golden Spread's waiver requests based on the
representation that the transmission facilities were limited and
discrete and did not constitute an integrated transmission system.
In doing so, the Commission noted its reliance on Golden Spread's
representation that the transmission lines were only used to provide
bundled wholesale service to the affected Golden Spread members and
that the power flowed in only one direction. Id. P 6.
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39. If the OATT waiver is revoked because of such a change in
circumstances, the waivers of OASIS and Standards of Conduct will also
be revoked, without prejudice to the ICIF owner filing a request to
continue its waivers of OASIS and Standards of Conduct pursuant to the
waiver criteria then in place.\62\ In the instance where the Commission
revokes the ICIF waiver by order, it may determine whether the OASIS
and Standards of Conduct waivers should be continued based on the
criteria then in place.
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\62\ Waivers of the standards of conduct may be granted for good
cause pursuant to 18 CFR 358.1(d).
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40. The grant of a blanket ICIF waiver under the Proposed Rule
would have no automatic impact on an OATT already on file or on service
already being taken under it, but the Commission might on a case-by-
case basis consider requests to withdraw an OATT on file for ICIF if no
third party is taking service under it. With regard to entities that
already have received a waiver of the OATT, the blanket ICIF waiver
would supersede an existing waiver.
2. Provide Open Access and Establish Priority Rights to ICIF Through
Sections 210 and 211
41. Under this Proposed Rule and subject to the safe harbor
presumption proposed below, if a third party seeks to use the ICIF that
are subject to the blanket ICIF waiver, an eligible entity seeking
interconnection and transmission service on ICIF would need to follow
the rules and regulations applicable to requests for service under
sections 210 and 211.
a. Procedures Under Sections 210 and 211
42. Sections 210 and 211 of the FPA describe the process for
granting interconnection and transmission service in the absence of an
OATT governing these services. Section 210 of the FPA provides, in
relevant part, ``Upon application of any electric utility . . . the
Commission may issue an order requiring (A) the physical connection of
. . . the transmission facilities of any electric utility, with the
facilities of such applicant.'' \63\ An ``electric utility'' is defined
as ``a person or Federal or State agency . . . that sells electric
energy.'' \64\ Section 211 provides that ``any electric utility,
Federal power marketing agency, or any other person generating electric
energy for sale or resale'' may apply to the Commission for an order
requiring a ``transmitting utility'' to provide transmission services,
including enlargement of facilities if necessary.\65\ The term
``transmitting utility'' is defined as an entity that ``owns, operates,
or controls facilities used for the transmission of electric energy . .
. in interstate commerce . . . for the sale of electric
[[Page 31068]]
energy at wholesale.'' \66\ For a third party to obtain interconnection
services and transmission services, an application must be made under
both sections 210 and 211.\67\ An applicant may consolidate the
applications for the Commission's consideration.\68\
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\63\ 16 U.S.C. 824i(a)(1)(A).
\64\ 16 U.S.C. 796(22).
\65\ 16 U.S.C. 824j.
\66\ 16 U.S.C. 796(23).
\67\ Tres Amigas LLC, 130 FERC ] 61,205, at P 43, reh'g denied,
132 FERC ] 61,232 (2010). In Laguna Irrigation District, the
Commission explained that ``[n]othing in our [section 210]
interconnection order requires transmission service. Rather,
transmission service will be obtained by Laguna pursuant to other
transmission tariffs or agreements.'' 95 FERC ] 61,305, at 62,038
(2001), aff'd sub. nom., Pacific Gas & Electric Co. v. FERC, 44 Fed.
Appx. 170 (9th Cir. 2002) (unpublished); see also City of Corona,
California v. Southern California Edison Co., 104 FERC ] 61,085, at
PP 7-10 (2003) (Corona's application under section 210 did not
constitute a request for transmission under section 211).
\68\ See Aero Proposed Order, 115 FERC ] 61,128.
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43. As discussed above, under the various provisions of the LGIA,
ICIF connect the Interconnection Customer's Generating Facility to the
Point of Interconnection. Consistent with these definitions, to be
eligible for the ICIF waiver, the Interconnection Customer that owns a
Generating Facility must also sell electric energy, and thus be subject
to section 210 of the FPA. Further, that Interconnection Customer must
also own, control, or operate ICIF, in whole or in part, used for
transmission for the sale of electric energy at wholesale, and thus be
subject to section 211 of the FPA. To be eligible for the blanket
waiver discussed herein, the ICIF owner must be subject to the
Commission's authority under both sections 210 and section 211.
44. An application under section 210 must: (1) Show that the
interconnection is in the public interest; (2) would either encourage
conservation of energy or capital, optimize efficient use of facilities
and resources, or improve reliability; and (3) meet the requirements of
section 212.\69\ The requirements of section 212 are discussed further
below.
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\69\ 16 U.S.C. 824i(c); Aero Proposed Order, 115 FERC ] 61,128
at PP 15-16.
---------------------------------------------------------------------------
45. An application under section 211 requires that the third party
seeking transmission first make a good faith request for service,
complying with 18 CFR 2.20, specifying details as to how much capacity
is requested and for what period, at least 60 days before making an
application to the Commission for an order requiring transmission
service.\70\ The Commission may grant an application under section 211
if the application is in the public interest and otherwise meets the
requirements under section 212.
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\70\ See 16 U.S.C. 824j(a) (``No order may be issued under this
subsection unless the applicant has made a request for transmission
services to the transmitting utility that would be the subject of
such order at least 60 days prior to its filing of an application
for such order.''); 18 CFR 2.20.
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46. Section 212 further requires that, before issuing a final order
under either section 210 or 211, the Commission must issue a proposed
order setting a reasonable time for the parties to agree to terms and
conditions for carrying out the order, including allocation of costs.
If parties can agree to terms within that time, the Commission may
issue a final order approving those terms. If parties do not agree, the
Commission will weigh the positions of the parties and issue a final
order establishing the terms of costs, compensation, and other terms of
interconnection and transmission and directing service.\71\
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\71\ 16 U.S.C. 824k(c)(2); Aero Proposed Order, 115 FERC ]
61,128 at PP 17-18 (providing parties 28 days to negotiate and
provide briefing on issues of disagreement).
---------------------------------------------------------------------------
b. Application of Sections 210 and 211 to Requests for Service on ICIF
47. As discussed above, the Commission's current practice of
addressing third-party requests for service is to allow the ICIF owner
to demonstrate ``specific plans and milestones'' for any planned future
generation development of the ICIF owner or its affiliates. Consistent
with that practice, the Commission proposes to find that, with respect
to ICIF eligible for the blanket waiver discussed above, it is
generally in the public interest under sections 210 and 211 to allow an
ICIF owner to retain priority rights to the use of excess capacity on
ICIF that it plans to use to interconnect its own or its affiliates'
future generation projects to the extent the ICIF owner can demonstrate
specific plans and milestones for its and/or its affiliates' future use
of the ICIF. Thus, the Commission will be making priority
determinations in the section 210 and 211 process. The Commission seeks
comment on whether an ICIF owner's or affiliate's planned future use of
the ICIF is an appropriate consideration to factor into a section 210
or 211 proceeding.
48. Any disputes as to the extent of excess capacity on ICIF or the
ICIF owner's future plans to use such excess capacity would be
resolved, subject to the safe harbor presumption discussed below,
during the proceedings under sections 210 and 211, using an excess
capacity analysis similar to that used in Aero and Milford, in which
the ICIF owner must demonstrate specific plans and milestones for the
future use of its ICIF. However, unlike Aero and Milford, the ICIF
waiver proposed here would not carry the automatic obligation to file
an OATT if transmission is requested; rather, use of the framework
under sections 210 and 211 will allow third parties to access the
transmission facilities after following the process set forth under
those provisions. The Commission acknowledges that entities have
expressed concern with the plans and milestones standard of Aero/
Milford for demonstrating priority rights, but believes that use of the
framework under sections 210 and 211 and the safe harbor presumption
discussed below will reduce the need for ICIF owners to file petitions
for declaratory order to pre-emptively seek priority rights.
49. Further, using sections 210 and 211 will protect the ICIF owner
from non-serious requests for transmission service by requiring the
entity requesting service to pursue processes under sections 210 and
211, rather than requiring an ICIF owner to file an OATT upon a request
for service. This framework will assure eligible ICIF owners that they
will have specified procedural rights as set forth in sections 210,
211, and 212 of the FPA. This framework will also provide the
contractual flexibility that some commenters suggest is not available
under our current policy so that contractual arrangements (e.g.,
transmission service agreements, interconnection agreements, and/or
shared facilities agreements) can be tailored to the special situations
for ICIF. In addition, this framework will provide for some flexibility
in determining the appropriate terms and conditions of service, as many
of the pro forma OATT provisions are not applicable to service over
ICIF.
50. Under this proposal, the Commission could order the eligible
ICIF owner to expand its facilities to provide interconnection and
transmission service under sections 210 and 211 if no excess capacity
is available.\72\ Section 212 requires that the eligible ICIF owners
would be fully compensated for any required expansion.\73\ This is
similar to the rights
[[Page 31069]]
and obligations under the pro forma OATT,\74\ so under the Proposed
Rule third parties will have substantively similar rights, compared to
the Commission's current policy, with regard to situations where
providing interconnection and transmission service entails expanding
ICIF.
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\72\ 16 U.S.C. 824i(a)(1)(D) (``The Commission may issue an
order requiring . . . such increase in transmission capacity as may
be necessary . . ..''); 16 U.S.C. 824j(a) (``Any electric utility .
. . may apply to the Commission for an order under this subsection
requiring a transmitting utility to provide transmission services
(including any enlargement of transmission capacity necessary to
provide such services) to the applicant.'').
\73\ Section 212(a) provides that:
An order under section 211 shall require the transmitting
utility subject to the order to provide wholesale transmission
services at rates, charges, terms, and conditions which permit the
recovery by such utility of all the costs incurred in connection
with the transmission services and necessary associated services,
including, but not limited to, an appropriate share, if any, of
legitimate, verifiable and economic costs, including taking into
account any benefits to the transmission system of providing the
transmission service, and the costs of any enlargement of
transmission facilities.
\74\ Section 15.4 of the pro forma OATT states:
If the Transmission Provider determines that it cannot
accommodate a Completed Application for Firm Point-To-Point
Transmission Service because of insufficient capability on its
Transmission System, the Transmission Provider will use due
diligence to expand or modify its Transmission System to provide the
requested Firm Transmission Service, consistent with its planning
obligations in Attachment K, provided the Transmission Customer
agrees to compensate the Transmission Provider for such costs
pursuant to the terms of Section 27.
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51. The Commission believes that the section 210/211 process for
requesting service over ICIF protects the rights of potential third-
party requesters. The proposed blanket waiver only applies in
situations where sections 210 and 211 would provide interconnection and
transmission access to a customer that seeks service over the ICIF. To
the extent that either the third-party requester or ICIF owner does not
meet applicable requirements for purposes of sections 210 and 211, but
where the third-party requester would be eligible for OATT service, the
ICIF waiver would not apply. The Commission believes that there would
be a relatively small number of ICIF owners who could not be subject to
section 210 and 211 orders. The Commission seeks comment on whether
this limitation on which public utilities can take advantage of the
blanket ICIF waiver is appropriate.
52. The Commission notes that an ICIF owner that is not an electric
utility continues to have the option to seek waiver of the OATT, OASIS,
and Standards of Conduct requirements on a case-by-case basis. The
Commission seeks comment on what would be the appropriate criteria and
procedures for granting such entities a waiver, and whether and under
what procedures the safe harbor provision discussed below could be
extended to such entities. The Commission also seeks comment on whether
a case-by-case process is effective for addressing waivers to such
entities, or whether there are alternative, more general structures by
which the Commission could appropriately apply the blanket waiver to
entities with a broader set of ownership structures.
53. We note that a section 210 and/or 211 proceeding would not
necessarily revoke the blanket ICIF waiver, and that the Commission
might direct service to be provided under an interconnection and/or
transmission service agreement without directing that the ICIF owner
file an OATT. However, the Commission reserves the right to revoke the
blanket ICIF waiver and require the filing of an OATT to ensure open
access in appropriate circumstances.
3. Safe Harbor for Early Years After ICIF Energization
54. To reduce risks to ICIF owners eligible for the blanket waiver
discussed above during the critical early years of their projects, the
Commission proposes a safe harbor period of five years during which
there would be a rebuttable presumption that: (1) The eligible ICIF
owner has definitive plans to use its capacity without having to make a
demonstration through a specific plans and milestones showing; and (2)
the eligible ICIF owner should not be required to expand its
facilities. A third-party requester \75\ for service on ICIF during the
safe harbor period could attempt to rebut these presumptions, but it
would have the burden of proof to show that the owner and/or operator
does not have definitive plans to use its capacity and the public
interest under sections 210 and 211 is better served by granting access
to the third party than by allowing the eligible ICIF owner to reserve
its ICIF capacity for its own future use.
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\75\ Such third-party requests for service could include
requests for firm, nonfirm, conditional, or interim service. See,
e.g., 18 CFR 2.20(b)(9).
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55. We believe a safe harbor period will address several concerns
with our current policy. Creating a safe harbor period will reduce the
risks of developing phased generation projects, as it will preserve the
eligible ICIF owner's priority use of its ICIF capacity during the safe
harbor period when the third-party requester fails to meet its burden
of proof and will allow the eligible ICIF owner to demonstrate its
plans and milestones in the proceedings under section 210 and 211.
Creating the safe harbor period will require greater specificity for
third-party requests for service, so the eligible ICIF owner would only
be required to respond to requests for service that are fully developed
and appropriate to the circumstances. Doing so will allow an eligible
ICIF owner to focus on building generation and achieving commercial
operation during the safe harbor period.
56. The Commission proposes that the safe harbor period begin on
the ICIF energization date. Because the energization date is not always
publicly available, we propose that any eligible ICIF owner seeking to
take advantage of the safe harbor must file an informational filing
with the Commission (requiring no Commission action) documenting: (1)
The ICIF energization date; (2) details sufficient to identify the ICIF
at issue, such as location and Point of Interconnection; and (3)
identification of the ICIF owner. For generators that are already
operating as of the effective date of the Final Rule adopted in this
proceeding, we propose to allow them to seek safe harbor status by
filing at the Commission to document the information listed above, and
that the safe harbor would expire five years after the initial
energization of their ICIF. The Commission proposes that eligible ICIF
owners making such an informational filing will be assigned an ``AD''
docket prefix for these filings, so that any interested third party
will be able to easily identify the relevant filing and determine when
a safe harbor is applicable.
57. Where an application under sections 210 and 211 is filed during
a safe harbor period and the Commission determines that the applicant
has not successfully rebutted the presumption, the Commission could
dismiss the application without prejudice to it being refiled if
circumstances change or after the safe harbor period expires.
58. The Commission seeks comments on whether a safe harbor period
is appropriate, and about the structure and length of the safe harbor
policy, including how the ICIF energization date should be reported.
The Commission also seeks comment on whether ICIF owners that are not
eligible for the blanket waiver, but that seek waiver on an individual
basis of the OATT, OASIS, and Standards of Conduct, should be eligible
for the safe harbor.
B. Affiliate Concerns
59. The Commission seeks comment as to the set of entities to which
it is appropriate to extend these reforms. As mentioned above, the
target of these reforms is intended to be those generators whose
ownership/operation of transmission facilities is limited to ICIF.
Should entities that meet this description, but who are affiliated with
a public utility transmission provider, be eligible for the blanket
ICIF waiver within or adjacent to a public utility's footprint? A
potential concern is that the availability of the blanket ICIF waiver
to affiliated generation could incent vertically-integrated utilities
to structure their generation and Interconnection Facilities
developments in such a way that inappropriately limits access to
certain facilities. If such
[[Page 31070]]
concerns warrant limiting the blanket ICIF waiver only to nonaffiliates
of public utility transmission providers (within or adjacent to a
public utility's footprint), the Commission is also interested as to
what would be the appropriate mechanics of third-party interest on
affiliates' ICIF (e.g., treatment of the facilities under the
vertically-integrated utility's OATT or a separate OATT).\76\
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\76\ See Termoelectrica U.S., LLC, 102 FERC ] 61,024, at P 28
(finding that Termoelectrica's line should be covered under the OATT
of its adjacent, affiliated public utility), order granting reh'g on
other grounds, 105 FERC ] 61,087 (2003) (granting rehearing to waive
OATT filing requirements for Termoelectrica).
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V. Information Collection Statement
60. The following collections of information contained in this
Proposed Rule are subject to review by the Office of Management and
Budget (OMB) under section 3507(d) of the Paperwork Reduction Act of
1995.\77\ OMB's regulations require approval of certain information
collection requirements imposed by agency rules.\78\ The Commission
solicits 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.
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\77\ 44 U.S.C. 3507(d).
\78\ 5 CFR 1320.11 (2013).
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61. The proposed regulations give a blanket waiver of OATT, OASIS,
and Standards of Conduct filing requirements, and thus avoid both
individual filings to request waiver as well as OATT filings. The
Commission also believes that the proposed regulations will reduce the
need for eligible ICIF owners to file petitions for declaratory order
to pre-emptively seek priority rights. Based upon a review of the
filings made over the past five years, the Commission estimates a
reduction of eighteen filings per year, as shown in the table below.
62. The Commission also recognizes that, in order to avail
themselves of the safe harbor period described in the Proposed Rule,
most ICIF owners will likely file a brief notification filing
documenting: (1) The energization date; (2) details sufficient to
identify the ICIF at issue, such as location and Point of
Interconnection; and (3) identification of the ICIF owner. The
estimated public reporting burdens for this proposed reporting
requirement are also in the table below.
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\79\ The estimates for cost per response are derived using the
following formula: Average Burden Hours per Response * $91 per Hour
= Average Cost per Response. The hourly cost figure represents a
combined hourly rate of an attorney ($128.39), economist ($70.96),
engineer ($59.87), and administrative staff ($29.93), with a 50
percent weighting on the attorney's rate. The estimated hourly costs
(salary) are based on Bureau of Labor and Statistics information
(available at http://www.bls.gov/oes/current/naics2_22.htm, and are
adjusted to include benefits by assuming that salary accounts for
70.1 percent of total compensation). See http://www.bls.gov/news.release/ecec.nr0.htm.
\80\ The average number of filings for the first three years is
computed as follows. The Commission expects approximately 80 safe
harbor filings in the first year, which represents the number of
waiver filings over a historical five year period and thus the
approximate number of existing entities which will be able to take
advantage of the five year safe harbor period as of the effective
date of the Final Rule in this proceeding. In the subsequent two
years, the Commission expects approximately 18 safe harbor filings
per year, which represents the historical number of OATT waiver
filings (16), OATT filings (1), and petitions for declaratory order
(1) per year. Going forward, we would expect the Proposed Rule would
avoid these filings and that the relevant entities would instead
avail themselves of the proposed safe harbor period. The average of
the three year period then is (80 + 18 + 18)/3 = 39.
RM14-11 (Open Access and Priority Rights on Interconnection Customer's Interconnection Facilities)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total annual
Number of Annual number Total number Average burden burden hours Average cost
respondents of responses of responses and cost per and total per respondent
per respondent response \79\ annual cost ($)
(1) (2) (1) * (2) = (4) (3) * (4) = (5) / (1)
(3) (5)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Individual Requests for Waiver (FERC-917)............... 16 -1 -16 10 -160 -$910
$910 -$14,560
OATT Filings (FERC-917)................................. 1 -1 -1 100 -100 -$9,100
$9,100 -$9,100
Petitions for Declaratory Order requesting priority 1 -1 -1 30 -30 -$2,730
rights (FERC-582)...................................... $2,730 -$2,730
Safe Harbor Energize Date Filing (average of first three 39 1 39 1 39 $91
years) \80\ (FERC-917)................................. $91 $3,549
-----------------------------------------------------------------------------------------------
Total............................................... .............. .............. 21 .............. -251 -$12,649
-$22,841
--------------------------------------------------------------------------------------------------------------------------------------------------------
Cost to Comply: The Commission has projected the cost of compliance
with the safe harbor energization date filing to be $7,280 in the
initial year and $1,638 in subsequent years, as new ICIF owners make
safe harbor filings for their newly energized projects. This is offset
by the reduction in burden associated with the waiver of filing
requirements of $26,390 per year. As an average for the first three
years, this amounts to a net reduction in burden of $22,841.
Total Annual Hours for Collection in initial year (80 hours) @ $91
an hour = $7,280
Total Annual Hours for Collection in subsequent years (18 hours) @
$91 an hour = $1,638.
Total Annual Hours for Reduced Collection per year (290 hours) @
$91 an hour = $26,390.
Title: FERC-917, Non-Discriminatory Open Access Transmission Tariff
Action: Proposed Collection.
OMB Control No. 1902-0233
Respondents for this Rulemaking: Businesses or other for profit
and/or not-for-profit institutions.
Frequency of Information: As indicated in the table.
Necessity of Information: The Federal Energy Regulatory Commission
is proposing changes to its regulations related to which entities must
file the pro forma OATT, establish and maintain an OASIS, and abide by
its
[[Page 31071]]
Standards of Conduct in order to eliminate unnecessary filings and
increase certainty for entities that develop generation. The purpose of
this Proposed Rule is to reduce regulatory burdens and promote
development while continuing to ensure open access to transmission
facilities. The safe harbor energization date filing is necessary to
ensure transparency as to the applicability of the safe harbor period.
Internal Review: The Commission has reviewed the proposed changes
and has determined that the changes are necessary. These requirements
conform to the Commission's need for efficient information collection,
communication, and management within the energy industry. The
Commission has assured itself, by means of internal review, that there
is specific, objective support for the burden estimates associated with
the information collection requirements.
63. Interested persons may obtain information on the reporting
requirements by contacting the following: Federal Energy Regulatory
Commission, 888 First Street NE., Washington, DC 20426 [Attention:
Ellen Brown, Office of the Executive Director], email:
[email protected], Phone: (202) 502-8663, fax: (202) 273-0873.
64. Comments on the collections of information and the associated
burden estimates in the proposed rule should be sent to the Commission
in this docket and may also be sent to the Office of Information and
Regulatory Affairs, Office of Management and Budget, 725 17th Street
NW., Washington, DC 20503 [Attention: Desk Officer for the Federal
Energy Regulatory Commission], at the following email address: [email protected]. Please reference OMB Control No. 1902-0096 and
the docket number of this proposed rulemaking in your submission.
VI. Environmental Analysis
65. 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.\81\ The
Commission concludes that neither an Environmental Assessment nor an
Environmental Impact Statement is required for this Proposed Rule under
section 380.4(a)(15) of the Commission's regulations, which provides a
categorical exemption for approval of actions under sections 205 and
206 of the FPA relating to the filing of schedules containing all rates
and charges for the transmission or sale of electric energy subject to
the Commission's jurisdiction, plus the classification, practices,
contracts, and regulations that affect rates, charges, classifications,
and services.\82\
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\81\ Regulations Implementing the National Environmental Policy
Act of 1969, Order No. 486, 52 FR 47897 (Dec. 17, 1987), FERC Stats.
& Regs. Regulations Preambles 1986-1990 ] 30,783 (1987).
\82\ 18 CFR 380.4(a)(15) (2013).
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VII. Regulatory Flexibility Act Analysis
66. The Regulatory Flexibility Act of 1980 (RFA) generally requires
a description and analysis of final rules that will have a significant
economic impact on a substantial number of small entities. The RFA
mandates consideration of regulatory alternatives that accomplish the
stated objectives of a proposed rule and that minimize any significant
economic impact on a substantial number of small entities. The Small
Business Administration's (SBA's) Office of Size Standards develops the
numerical definition of a small business.\83\ The SBA recently revised
its size standard for electric utilities (effective January 22, 2014)
to a standard based on the number of employees, including affiliates
(from a standard based on megawatt hours).\84\ Under SBA's new size
standards, ICIF owners likely come under one of the following
categories and associated size thresholds: \85\
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\83\ 13 CFR 121.101 (2013).
\84\ SBA Final Rule on ``Small Business Size Standards:
Utilities,'' 78 FR 77343 (12/23/2013).
\85\ 13 CFR 121.201, Sector 22, Utilities.
Hydroelectric power generation, at 500 employees
Fossil fuel electric power generation, at 750 employees
Other electric power generation (e.g. solar, wind, geothermal,
and others), at 250 employees
67. According to US economic census data,\86\ over half of the
firms in the categories above are small. However, currently FERC does
not have information on how the economic census data compares with
entities registered with NERC and is unable to estimate the number of
small ICIF owners using the new SBA definitions. Regardless, FERC
recognizes that the rule will likely impact small ICIF owners and
estimates the economic impact on each entity below.
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\86\ Data and further information is available from SBA at
http://www.sba.gov/advocacy/849/12162.
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68. This Proposed Rule applies to public utilities whose ownership,
control, or operation of transmission facilities is limited to ICIF, as
defined in the standard generator interconnection procedures and
agreements referenced in 18 CFR 35.28(f). Of these public utilities, we
conservatively estimate that all will qualify as small. The Commission
estimates that each of the small entities to whom the Proposed Rule
applies will incur one-time costs of $91 \87\ to document its
energization date and thus avail itself of the safe harbor provision.
This is true for those existing entities that have already received
waiver of the OATT prior to the issuance of a Final Rule, as well as
for new entities. This cost will be offset for new entities by a cost
reduction, on average, of $1,269.\88\ As the Commission has previously
explained, in determining whether a regulatory flexibility analysis is
required, the Commission is required to examine only direct compliance
costs that a rulemaking imposes on small business.\89\ It is not
required to examine indirect economic consequences, nor is it required
to consider costs that an entity incurs voluntarily. The Commission
does not consider the estimated costs per small entity to have a
significant economic impact on a substantial number of small entities.
Accordingly, the Commission certifies that the proposed rule will not
have a significant economic impact on a substantial number of small
entities.
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\87\ $91 is calculated here as one hour of work at an hourly
rate of $91.
\88\ This reduced burden amount is calculated by taking the
total estimated burden reduction per year, $22,841, and dividing by
18, the estimated number of filings avoided because of the proposed
regulations.
\89\ Credit Reforms in Organized Wholesale Electric Markets, 133
FERC ] 61,060, at P 184 (2010).
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VIII. Comment Procedures
69. The Commission invites interested persons to submit comments on
the matters and issues proposed in this notice to be adopted, including
any related matters or alternative proposals that commenters may wish
to discuss. Comments are due July 29, 2014. Comments must refer to
Docket No. RM14-11-000, and must include the commenter's name, the
organization represented, if applicable, and its address in its
comments.
70. The Commission encourages comments to be filed electronically
via the eFiling link on the Commission's Web site at http://www.ferc.gov. The Commission accepts most standard word processing
formats. Documents created electronically using word processing
software should be filed in native applications or print-to-PDF format
and not in a scanned format. Commenters filing electronically do not
need to make a paper filing.
71. Commenters that are not able to file comments electronically
must send
[[Page 31072]]
an original copy of their comments to: Federal Energy Regulatory
Commission, Secretary of the Commission, 888 First Street NE.,
Washington, DC 20426.
72. All comments will be placed in the Commission's public files
and may be viewed, printed, or downloaded remotely as described in the
Document Availability section below. Commenters on this proposal are
not required to serve copies of their comments on other commenters.
IX. Document Availability
73. 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 FERC's Home Page (http://www.ferc.gov) and in FERC's
Public Reference Room during normal business hours (8:30 a.m. to 5:00
p.m. Eastern time) at 888 First Street NE., Room 2A, Washington, DC
20426.
74. From FERC's Home Page on the Internet, this information is
available on eLibrary. The full text of this document is available on
eLibrary in PDF and Microsoft Word format for viewing, printing, and/or
downloading. To access this document in eLibrary, type the docket
number excluding the last three digits of this document in the docket
number field.
75. User assistance is available for eLibrary and the FERC's Web
site during normal business hours from FERC Online Support at (202)
502-6652 (toll free at 1-866-208-3676) or email at
[email protected], or the Public Reference Room at (202) 502-
8371, TTY (202) 502-8659. Email the Public Reference Room at
[email protected].
List of Subjects in 18 CFR Part 35
Electric power rates; Electric utilities; Reporting and
recordkeeping requirements.
By direction of the Commission.
Kimberly D. Bose,
Secretary.
In consideration of the foregoing, the Commission proposes to amend
Part 35, Chapter I, Title 18, Code of Federal Regulations, as follows:
PART 35--FILING OF RATE SCHEDULES AND TARIFFS
0
1. The authority citation for part 35 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. Amend Sec. 35.28 by revising paragraph (d) to read as follows:
Sec. 35.28 Non-discriminatory open access transmission tariff.
* * * * *
(d) Waivers. (1) A public utility subject to the requirements of
this section and 18 CFR parts 37 (Open Access Same-Time Information
System) and 358 (Standards of Conduct for Transmission Providers) for
good cause shown. Except as provided in paragraph (f) of this section,
an application for waiver must be filed no later than 60 days prior to
the time the public utility would have to comply with the requirement.
(2) The requirements of this section, 18 CFR parts 37 (Open Access
Same-Time Information System) and 358 (Standards of Conduct for
Transmission Providers) are waived for any public utility that is or
becomes subject to such requirements solely because it owns, controls,
or operates Interconnection Customer's Interconnection Facilities, in
whole or in part, and sells electric energy from its Generating
Facility, as those terms are defined in the standard generator
interconnection procedures and agreements referenced in paragraph (f)
of this section.
(i) The waivers referenced in this paragraph (d)(2) shall be deemed
to be revoked as of the date the public utility ceases to satisfy the
qualifications of this paragraph (d)(2), and may be revoked by the
Commission if the Commission determines that it is in the public
interest to do so. After revocation of its waivers, the public utility
must comply with the requirements that had been waived within 60 days
of revocation.
(ii) Any eligible entity that seeks interconnection or transmission
services with respect to Interconnection Customer's Interconnection
Facilities for which a waiver is in effect pursuant to this paragraph
(d)(2) shall follow the procedures in sections 210, 211, and 212 of the
Federal Power Act and 18 CFR 2.20 and 18 CFR part 36. In any proceeding
pursuant to this paragraph (d)(2)(ii):
(A) The Commission will consider it to be in the public interest to
grant priority rights to the owner and/or operator of Interconnection
Customer's Interconnection Facilities to use capacity thereon when such
owner and/or operator can demonstrate that it has specific plans with
milestones to use such capacity to interconnect its or its affiliate's
future generation projects.
(B) For the first five years after the Interconnection Customer's
Interconnection Facilities are energized, the Commission will apply
rebuttable presumptions that:
(1) The owner and/or operator of such facilities has definitive
plans to use the capacity thereon, and it is thus in the public
interest to grant priority rights to the owner and/or operator of such
facilities to use capacity thereon; and
(2) The owner and/or operator of such facilities should not be
required to expand its facilities.
Note: The following appendices will not appear in the Code of
Federal Regulations.
Appendix A: List of Short Names of Commenters on the Federal Energy
Regulatory Commission's Notice of Inquiry on Open Access and Priority
Rights on Interconnection Facilities--Docket No. AD12-14-000, April
2012
Commenter (Short Name or Acronym)
American Public Power Association (APPA)
American Wind Energy Association (AWEA)
Bonneville Power Administration (BPA)
BP Wind Energy North America Inc. (BP Wind)
California Independent System Operator Corporation (CAISO)
Duke Energy Corporation (Duke)
Edison Electric Institute (EEI)
E.ON Climate & Renewables North America (E.ON)
Electric Power Supply Association (EPSA)
First Wind Holdings, LLC (First Wind)
Invenergy Wind Development LLC and Invenergy Thermal Development LLC
(Invenergy)
ITC Holdings Corp. (ITC)
Los Angeles Department of Water and Power (LADWP)
Midwest Independent Transmission System Operator, Inc. (MISO)
NextEra Energy Resources, LLC (NextEra)
New Jersey Board of Public Utilities (NJBPU)
The NRG Companies (NRG)
Puget Sound Energy, Inc. (Puget)
Recurrent Energy
San Diego Gas & Electric Company
Solar Energy Industries Association (SEIA)
Southwest Power Pool, Inc.
Tenaska Energy, Inc. (Tenaska)
TGP Development Company, LLC (TGP)
Transmission Access Policy Study Group (TAPS)
[FR Doc. 2014-11946 Filed 5-29-14; 8:45 am]
BILLING CODE 6717-01-P