[Federal Register Volume 85, Number 207 (Monday, October 26, 2020)]
[Proposed Rules]
[Pages 67699-67704]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-23282]


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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Part 292

[Docket Nos. RM21-2-000 and RM20-20-000]


Fuel Cell Thermal Energy Output; Bloom Energy Corporation

AGENCY: Federal Energy Regulatory Commission, Department of Energy.

ACTION: Notice of proposed rulemaking.

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SUMMARY: In this Notice of Proposed Rulemaking, the Federal Energy 
Regulatory Commission proposes to amend the definition of useful 
thermal energy output in its regulations implementing the Public 
Utility Regulatory Policies Act of 1978 to recognize the technical 
evolution of cogeneration.

DATES: Comments are due November 25, 2020.

ADDRESSES: Comments, identified by docket number, may be filed 
electronically at http://www.ferc.gov in acceptable native applications 
and print-to-PDF, but not in scanned or picture format. For those 
unable to file electronically, comments may be filed by mail or hand-
delivery to: Federal Energy Regulatory Commission, Secretary of the 
Commission, 888 First Street NE, Washington, DC 20426. The Comment 
Procedures Section of this document contains more detailed filing 
procedures.

FOR FURTHER INFORMATION CONTACT: 
Lawrence R. Greenfield (Legal Information), Office of the General 
Counsel, Federal Energy Regulatory Commission, 888 First Street NE, 
Washington, DC 20426, (202) 502-6415, [email protected]
Helen Shepherd (Technical Information), Office of Energy Market 
Regulation, Federal Energy Regulatory Commission, 888 First Street NE, 
Washington, DC 20426, (202) 502-6176, [email protected]
Thomas Dautel (Technical Information), Office of Energy Policy and 
Innovation, Federal Energy Regulatory Commission, 888 First Street NE, 
Washington, DC 20426, (202) 502-6196, [email protected]

SUPPLEMENTARY INFORMATION:

I. Introduction

    1. In this Notice of Proposed Rulemaking (NOPR), the Federal Energy 
Regulatory Commission (Commission) proposes to revise its regulations 
(PURPA Regulations) \1\ implementing sections 201 and 210 of the Public 
Utility Regulatory Policies Act of 1978 (PURPA) \2\ in light of the 
development of Solid Oxide Fuel Cell systems with integrated natural 
gas reformation equipment as a technical evolution of cogeneration and 
in response to a petition for rulemaking submitted by Bloom Energy 
Corporation (Bloom Energy) asking the Commission to take such action 
given such development.
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    \1\ 18 CFR part 292.
    \2\ 16 U.S.C. 796, 824a-3.
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    2. PURPA was enacted in 1978 as part of a package of legislative 
proposals intended to reduce the country's dependence on oil and 
natural gas, which at the time were in short supply and subject to 
dramatic price increases.\3\ PURPA sets forth a framework to encourage 
the development of cogeneration facilities that make more efficient use 
of the heat produced both from fossil fuels used in the production of 
electricity by using that heat for, e.g., industrial purposes, and also 
from fossil fuels used for, e.g., industrial purposes by using that 
heat for the production of electricity. As relevant here, as required 
by PURPA, a cogeneration facility is a qualifying facility (QF) if the 
Commission determines that the QF meets certain requirements.\4\
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    \3\ Qualifying Facility Rates and Requirements Implementation 
Issues Under the Public Utility Regulatory Policies Act of 1978, 
Order No. 872, 85 FR 54,638 (Sept. 2, 2020), 172 FERC ] 61,041, at P 
47 (2020).
    \4\ 16 U.S.C. 796(18); 18 CFR 292.203(b), 292.205.
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    3. In enacting PURPA, Congress could not, and did not, predict 
specific technological developments that would occur in future years, 
but instead recognized the Commission's discretion by directing the 
Commission to ``from time to time thereafter revise[ ] such rules as it 
determines necessary to encourage cogeneration.'' \5\ Although in 1978 
the predominant form of cogeneration was a more traditional combined 
heat and power, Congress did not limit the definition of qualifying 
cogeneration facilities to the particular technologies then in 
existence. Instead, Congress defined a cogeneration facility in a more 
open-ended manner, as a facility that produces: (1) Electric energy; 
and (2) steam or forms of useful energy, such as heat, which are used 
for industrial, commercial, heating or cooling purpose.\6\ Congress 
thus left it for the Commission to determine the types of facilities 
that would qualify as cogeneration facilities under the statute.
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    \5\ 16 U.S.C. 824a-3(a).
    \6\ 16 U.S.C. 796(18)(A).
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    4. Due to innovation and development in the last decade, Solid 
Oxide Fuel Cell

[[Page 67700]]

systems with integrated natural gas reformation equipment are now a 
viable option for efficient electric energy cogeneration furthering 
PURPA's goal of encouraging the innovation and development of 
cogeneration facilities. Additionally, the industrial applications of 
hydrogen continue to grow, with distributed production of hydrogen 
becoming increasingly important.\7\ Solid Oxide Fuel Cell systems with 
integrated natural gas reformation equipment represent ``continuing 
progress in the development of efficient electricity generating 
technology'' \8\ since the enactment of PURPA. We find that this 
development constitutes a sufficient change in circumstance since the 
Commission's PURPA regulations were first promulgated in 1980 \9\ to 
warrant issuing this NOPR.
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    \7\ Today almost all the hydrogen produced in the United States 
is used for refining petroleum, treating metals, producing 
fertilizer, and processing foods, as the use of hydrogen as a fuel 
source for energy generation is currently limited by lack of 
infrastructure for hydrogen distribution and delivery. U.S. 
Department of Energy, Alternative Fuels Data Center, Hydrogen 
Production and Distribution (Oct 2020), https://afdc.energy.gov/
fuels/
hydrogen_production.html#:~:text=Natural%20Gas%20Reforming%2FGasifica
tion%3A%20Synthesis,water%20to%20produce%20additional%20hydrogen. 
Thus, using the hydrogen, in this case for electricity generation, 
where it is produced represents an efficient use of that hydrogen.
    \8\ 16 U.S.C. 824a-3(n)(1)(A)(iii).
    \9\ Small Power Production and Cogeneration Facilities--
Qualifying Status, Order No. 70, FERC Stats. & Regs. ] 30,134 
(cross-referenced at 10 FERC ] 61,230), orders on reh'g, Order No. 
70-A, FERC Stats. & Regs. ] 30,159 (cross-referenced at 11 FERC ] 
61,119), order on reh'g, Order No. 70-B, FERC Stats. & Regs. ] 
30,176 (cross-referenced at 12 FERC ] 61,128), order on reh'g, FERC 
Stats. & Regs. ] 30,192 (1980) (cross-referenced at 12 FERC ] 
61,306), amending regulations, Order No. 70-D, FERC Stats. & Regs. ] 
30,234 (cross-referenced at 14 FERC ] 61,076), amending regulations, 
Order No. 70-E, FERC Stats. & Regs. ] 30,274 (1981) (cross-
referenced at 15 FERC ] 61,281).
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    5. We thus propose to add a new paragraph (4) to Sec.  292.202(h) 
of its PURPA Regulations to amend the definition of ``[u]seful thermal 
energy output'' of a topping cycle cogeneration facility to include 
thermal energy that is used by a Solid Oxide Fuel Cell system with an 
integrated steam hydrocarbon reformation process for production of fuel 
for electricity generation. This definition would clarify that the 
thermal energy produced by a Solid Oxide Fuel Cell that then uses the 
thermal energy it produces to reform methane and produce hydrogen for 
electricity generation is useful thermal energy that would enable a 
facility powered by such fuel cells to be certified as a cogeneration 
QF.\10\ To be clear, this NOPR applies only to Solid Oxide Fuel Cell 
systems with integrated natural gas reformation that take in natural 
gas to produce hydrogen and to generate electricity by using steam from 
the power generation process to reform the natural gas to produce the 
hydrogen that the Solid Oxide Fuel Cell systems use to generate 
electricity.
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    \10\ There are different types of fuel cells, classified 
primarily by the kind of electrolyte used, with different kinds of 
chemical reactions. The type of chemical reaction determines the 
temperature range of operation, and other factors relating to the 
suitability of applications. Bloom Energy Petition at 8.
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    6. We seek comments on these proposed reforms 30 days from the date 
of publication of the NOPR in the Federal Register.

II. Background

    7. PURPA was part of a legislative package Congress enacted in 1978 
to address the energy crisis then facing the country.\11\ As the 
Supreme Court explained in FERC v. Mississippi, in passing PURPA 
Congress was aware that domestic oil production had lagged behind 
demand, and the country had become increasingly dependent on foreign 
oil--which could jeopardize the country's economy and undermine its 
independence.\12\ Roughly a third of the nation's electricity was 
generated using oil and natural gas,\13\ and Congress concluded that 
increased reliance on cogeneration and small power production could 
significantly contribute to conserving this energy.\14\ As recognized 
by the Supreme Court, Congress passed PURPA to address the consequences 
of shortages of oil and natural gas (and electric utilities' decreasing 
efficiency in their generating capacities), which adversely impacted 
rates to customers and the economy as a whole.\15\
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    \11\ See Public Law 95-617, 92 Stat. 3117. In addition to PURPA, 
that legislative package included: The Energy Tax Act of 1978, 
Public Law 95-618, 92 Stat. 3174; the National Energy Conservation 
Policy Act, Public Law 95-619, 92 Stat. 3206; the Powerplant and 
Industrial Fuel Use Act of 1978, Public Law 95-620, 92 Stat. 3289; 
and the Natural Gas Policy Act of 1978, Public Law 95-621, 92 Stat. 
3351.
    \12\ FERC v. Miss., 456 U.S. 742, 756 (1982).
    \13\ Id. at 745.
    \14\ Id. at 757.
    \15\ Id. at 745-46.
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    8. Congress enacted PURPA section 210 in 1978 to address the energy 
crisis by encouraging the development of QFs and thereby reducing the 
country's demand for traditional fossil fuels.\16\ To accomplish this, 
section 210(a) directed that the Commission ``prescribe, and from time 
to time thereafter revise, such rules as [the Commission] determines 
necessary to encourage cogeneration and small power production.'' \17\
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    \16\ Id. at 750.
    \17\ 16 U.S.C. 824a-3(a).
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    9. In 1980, the Commission issued Order No. 70, which promulgated 
the required rules that, as relevant here, remain in effect today.\18\ 
Order No. 70 established the ``criteria and procedures by which small 
power producers and cogeneration facilities can obtain qualifying 
status to receive the rate benefits and exemptions'' contained in 
section 210 of PURPA.\19\ As relevant here, the Commission established 
criteria for a cogeneration QF, a facility that, as required by the 
statute, ``produces electric energy as well as steam or forms of useful 
energy (such as heat) which are used for industrial, commercial, 
heating or cooling purposes.'' \20\
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    \18\ Order No. 70, FERC Stats. & Regs. ] 30,134.
    \19\ Id. at 30,933.
    \20\ 16 U.S.C. 796(18); accord 18 CFR 292.202(c).
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    10. In 2005, Congress passed the Energy Policy Act of 2005 (EPAct 
2005).\21\ Pursuant to section 210 of PURPA, as modified by section 
1253 of EPAct 2005, the Commission established regulations to ensure 
that new cogeneration QFs are using their thermal output in a 
productive and beneficial manner; that the electrical, thermal, 
chemical and mechanical output of any new cogeneration QFs are used 
fundamentally for industrial, commercial, residential or institutional 
purposes; and that there is continuing progress in the development of 
efficient electric energy generating technology.\22\ In determining 
whether the thermal output is used in a ``productive and beneficial 
manner,'' the Commission stated it would consider factors such as 
whether the product produced by the thermal energy is needed and 
whether there is a market for the product.\23\
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    \21\ Public Law 109-58, 119 Stat. 594, 969-70, as implemented in 
Revised Regulations Governing Small Power Production and 
Cogeneration Facilities, Order No. 671, FERC Stats. & Regs. ] 31,203 
(cross-referenced at 114 FERC ] 61,102), order on reh'g, Order No. 
671-A, FERC Stats. & Regs. ] 31,219 (2006) (cross-referenced at 115 
FERC ] 61,225).
    \22\ 16 U.S.C. 824-3(n)(1)(A)(iii).
    \23\ Order No. 671, FERC Stats. & Regs. ] 31,203 at P 17. Here, 
the relevant product would be hydrogen.
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    11. Unlike more traditional electric generation that relies on 
combustion of fossil fuels to produce electric energy, fuel cells 
convert the chemical energy in hydrogen to electric energy without 
combustion. This conversion has been characterized as a significant 
improvement in the efficiency of electric generation.\24\ More 
specifically, hydrogen fuel enters the anode side of the fuel cell. 
Simultaneously, ambient air enters the cathode side of the fuel cell. 
The hydrogen fuel on the anode

[[Page 67701]]

attracts oxygen ions from the cathode. In a Solid Oxide Fuel Cell 
system with integrated natural gas reformation equipment, the resulting 
electrochemical reaction provides electricity, plus heat and steam that 
is used to reform natural gas on-site to produce the hydrogen fuel to 
fuel the cell.\25\
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    \24\ Bloom Energy Petition at 8.
    \25\ Id.
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    12. If the natural gas reformation equipment were instead located 
offsite, then waste heat (in the form of steam) from the electricity 
production by the Solid Oxide Fuel Cell would not be available to aid 
the reformation process to fuel the cell. In this offsite reformation 
scenario, we would expect the external reformation process to require 
additional natural gas to be burned to create steam so that the 
remainder of the input natural gas could be reformed into hydrogen.\26\ 
This would be inefficient, and inconsistent with Congress's goal in 
enacting PURPA, as discussed above.
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    \26\ Furthermore, as hydrogen is frequently compressed or 
liquified for shipment to the point of consumption, yet more energy 
would be needed for these activities. Id. at 8 & App. B.
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    13. Stated another way, integrating the natural gas reformation 
process into a Solid Oxide Fuel Cell generating facility as described 
in this NOPR \27\ results in significant ``progress in the development 
of efficient electric energy generating technology.'' \28\
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    \27\ See supra P 5 (emphasizing the limited scope of the 
proposed change in the regulations).
    \28\ Bloom Energy Petition at 1, 3, 7, 16 (citing 16 U.S.C. 
824a-3(n)(1)(A)(iii)).
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III. Commission Proposal

    14. As discussed above, the statutory definition of cogeneration 
facilities requires that a cogeneration facility produce ``(i) electric 
energy, and (ii) steam or forms of useful energy (such as heat) which 
are used for industrial, commercial, heating or cooling purposes. . . 
.'' \29\ This definition provides for steam or other forms of useful 
energy to be used for, e.g., an industrial purpose. The creation by a 
Solid Oxide Fuel Cell system with an integrated natural gas reformation 
process of a commercially valuable fuel as described in this NOPR fits 
within this definition. Consistent with the PURPA regulations, Solid 
Oxide Fuel Cell systems with integrated natural gas reformation 
equipment produce two forms of energy: Electricity; and the heat/steam 
(thermal energy) used to create the hydrogen (a chemical energy).
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    \29\ 16 U.S.C. 796(18)(A).
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    15. Currently, the Commission's PURPA regulations provide that a 
topping-cycle cogeneration facility is a cogeneration facility in which 
the energy input to the facility is first used to produce useful power 
output and at least some of the reject heat from the power production 
process is then used to provide useful thermal energy.\30\
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    \30\ 18 CFR 292.202(d).
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    16. Solid Oxide Fuel Cell systems with integrated natural gas 
reformation equipment convert the chemical energy within natural gas 
into electricity using a steam-methane reformation process,\31\ which 
converts the natural gas input to hydrogen, which then reacts with 
oxygen in the fuel cell to produce electricity. The by-product of the 
fuel cell's production of electricity is heat and steam, some of which 
is used in the steam-methane reformation process to convert more 
methane into hydrogen, which the fuel cells use, in combination with 
oxygen from the air, to produce electricity.
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    \31\ Industrial gas manufacturers also produce hydrogen from 
natural gas using a steam-methane reformation process, but must 
produce their own steam, usually through combustion of some of the 
input natural gas. Because the buyers of the resulting hydrogen are 
usually remote from the industrial gas manufacturer, this hydrogen 
is either compressed or liquified in order to transport the hydrogen 
to the end user. Integrating the natural gas steam reformation 
process into a Solid Oxide Fuel Cell system increases efficiency and 
avoids the energy loss of external reformation, and compression or 
liquefaction for surface transportation. Bloom Energy Petition at 8 
& App. B.
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    17. A cogeneration QF is one that ``produces electric energy as 
well as steam or forms of useful energy (such as heat) which are used 
for industrial, commercial, heating or cooling purposes.'' \32\ 
Consistent with these regulations, Solid Oxide Fuel Cell systems with 
integrated natural gas reformation equipment generate two forms of 
useful energy--electricity, and heat/steam (thermal energy) that is 
used to produce hydrogen (a chemical energy). Commission regulations 
provide three categories of useful thermal output of a topping-cycle 
cogenerator. They are thermal energy: (1) That is ``made available to 
an industrial or commercial process . . .; (2) that is used in a 
heating application . . .; or (3) that is used in a space cooling 
application .'' \33\ We propose to amend our regulations to provide 
that the production of heat/steam by a Solid Oxide Fuel Cell system for 
use in an integrated natural gas reformation process to produce 
hydrogen is an industrial process that, as described in this NOPR, 
yields a ``useful thermal energy output'' that entitles such a system 
to be considered a topping cycle cogeneration facility that qualifies, 
subject to meeting the other relevant requirements,\34\ to be a QF. The 
recent technological advances in utilizing the thermal energy from a 
Solid Oxide Fuel Cell in an integrated steam hydrocarbon reformation 
process were not known or anticipated when the Commission adopted its 
original definitions for useful thermal energy, but that fact should 
not stand in the way of the Commission now recognizing such advances 
and responding accordingly.\35\
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    \32\ 16 U.S.C. 796(18).
    \33\ 18 CFR 292.202(h).
    \34\ See 18 CFR 292.203(b), 292.205.
    \35\ We recognize that in EG&G, Inc., 16 FERC ] 61,060, at 
61,104 (1981), the Commission stated that, for cogeneration, ``the 
use of thermal energy must be completely independent of the power 
production process.'' That order did not involve fuel cells and in 
any event was issued under the regulations then effective, see id. 
at 61,103-04, which we propose to revise in this NOPR, to now 
allow--for a Solid Oxide Fuel Cell system with an integrated natural 
gas reformation process--the production of hydrogen to be considered 
an industrial process that yields a ``useful thermal energy output'' 
that entitles such a system to be considered a topping cycle 
cogeneration facility that qualifies, subject to meeting the other 
relevant requirements, as a QF.
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    18. In sum, recognizing technological advancements over the past 40 
years and Congress's commitment to ``continuing progress in the 
development of efficient electric energy generating technology,'' \36\ 
and in light of the development and commercialization of Solid Oxide 
Fuel Cell systems with integrated natural gas reformation equipment 
since the original adoption of the PURPA regulations, we propose to 
amend Sec.  292.202(h) of the PURPA Regulations by adding a new 
paragraph to provide that useful thermal energy output includes the 
thermal energy ``that is used by a solid oxide fuel cell system with an 
integrated steam hydrocarbon reformation process for production of fuel 
for electricity generation.''
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    \36\ 16 U.S.C. 824a-3(n)(1)(A)(iii).
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    19. In proposing this change to its regulations, the Commission 
does not propose to revise Sec.  292.205(d) of the PURPA Regulations, 
which establishes additional criteria for new cogeneration facilities 
seeking to sell electric energy pursuant to PURPA section 210.\37\ The 
Commission proposes that any new cogeneration facility that is a solid 
oxide fuel cell system with an integrated steam hydrocarbon reformation 
process would be required to satisfy the existing

[[Page 67702]]

criteria of Sec.  292.205(d) of the PURPA Regulations if it seeks to 
make sales of electric energy pursuant to PURPA section 210.
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    \37\ 18 CFR 292.205(d); see also 18 CFR 292.205(d)(4) (``For 
purposes of paragraphs (d)(1) and (2) of this section, a new 
cogeneration facility of 5 MW or smaller will be presumed to satisfy 
the requirements of those paragraphs.''). That presumption, we note, 
is a rebuttable presumption, though. Revised Regulations Governing 
Small Power Production and Cogeneration Facilities, Order No. 671, 
114 FERC ] 61,102, at PP 26, 60, order on reh'g, Order No. 671-A, 
115 FERC ] 61,225 (2006).
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IV. Information Collection Statement

    20. The Paperwork Reduction Act \38\ requires each federal agency 
to seek and obtain the Office of Management and Budget's (OMB) approval 
before undertaking a collection of information (including reporting, 
record keeping, and public disclosure requirements) directed to ten or 
more persons or contained in a rule of general applicability. OMB 
regulations require approval of certain information collection 
requirements contemplated by proposed rules (including deletion, 
revision, or implementation of new requirements).\39\ Upon approval of 
a collection of information, OMB will assign an OMB control number and 
an expiration date. Respondents subject to the filing requirements of a 
rule will not be penalized for failing to respond to the collection of 
information unless the collection of information displays a valid OMB 
control number.
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    \38\ 44 U.S.C. 3501-21.
    \39\ See 5 CFR 1320.11.
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    Public Reporting Burden: In this NOPR, the Commission proposes to 
revise its regulations implementing PURPA. The proposed change is to 
provide that useful thermal energy outputs will now include the thermal 
energy ``that is used by a solid oxide fuel cell system with an 
integrated steam hydrocarbon reformation process for production of fuel 
for electricity generation.'' The estimated changes to the burden and 
cost of the information collection affected by this NOPR, i.e., the 
FERC Form No. 556, follow.\40\
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    \40\ The changes to the FERC Form No. 556, adopted in Order No. 
872 are pending OMB review (under ICR #202006-1902-004). Those 
changes are separate and are not addressed in this NOPR.

FERC-556, Certification of Qualifying Facility Status for a Small Power Production or Cogeneration Facility, Proposed Changes Due to NOPR in Docket Nos.
                                                             RM21-2-000 and RM20-20-000 \41\
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                                                                    Annual  number                    Average burden      Total annual      Annual cost
         Facility type               Filing tpe        Number of     of  responses   Total number    hours & cost per    burden hours &         per
                                                      respondents   per respondent   of responses        response      total annual cost  respondent ($)
                                                               (1)             (2)     (1) * (2) =  (4)..............  (3) * (4) = (5)..       (5) / (1)
                                                                                               (3)
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Cogeneration Facility <=1 MW     Self-                           5        \43\ 600           3,000  1.5 hrs.; $124.50  4,500 hrs.;               $74,700
 \42\.                            certification.                                                                        $373,500.
Cogeneration Facility >1 MW....  Self-                           5              20             100  1.5 hrs.; $124.50  1,500 hrs.;                 2,490
                                  certification.                                                                        $12,450.
Cogeneration Facility >1 MW....  Application for                 5               1               5  50 hrs.; $4,150..  250 hrs.; $20,750           4,150
                                  FERC
                                  certification.
                                                   -----------------------------------------------------------------------------------------------------
    FERC-556, Total additional   .................              15  ..............           3,105  .................  6,250 hrs.;        ..............
     burden and cost due to                                                                                             $406,700.
     NOPR in RM21-2 and RM20-20.
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    Title: FERC-556, Certification of Qualifying Facility (QF) Status 
for a Small Power Production or Cogeneration Facility.
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    \41\ The figures in this table reflect estimated changes to the 
current OMB-approved inventory for the FERC Form No. 556 (approved 
by OMB on November 18, 2019). This table only reflects cogeneration 
facilities because small power production facilities will not be 
affected by the proposed changes in the NOPR. The Commission staff 
believes that the industry is similarly situated to the Commission 
in terms of wages and benefits. Therefore, cost estimates are based 
on FERC's 2020 average hourly wage (and benefits) of $83.00/hour.
    \42\ Such facilities are not required to file but have the 
choice whether to do so.
    \43\ Bloom Energy has stated they have 600 facilities, with an 
average size of 0.6 MW, see Bloom Energy Petition at 14, which, if 
they all were in fact to file, would result in as many as 600 self-
certifications of below 1 MW facilities. The Commission accordingly 
will adopt a conservative approach and estimate 600 such responses 
over the course of a year, which is especially conservative given 
that the Commission's regulations do not require below-1 MW 
facilities to submit self-certifications.
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    Action: Revisions to existing information collection FERC-556.\44\
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    \44\ The FERC Form No. 556 is not being revised, but respondents 
with Solid Oxide Fuel Cell systems with integrated natural gas 
reformation equipment who are self-certifying or requesting 
Commission certification as a cogenerator will use the FERC Form No. 
556. On page 8, item 6a of the FERC Form No. 556, those respondents 
should indicate ``Fossil fuel, natural gas (not waste).''
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    OMB Control No.: 1902-0075.
    Respondents: Facilities that are self-certifying their status as a 
cogenerator or that are submitting an application for Commission 
certification of their status as a cogenerator; and electric utilities, 
state regulatory authorities, or other entities submitting comments on, 
or protests to, the self-certification or application for Commission 
certification.
    Frequency of Information: Ongoing.
    Necessity of Information: The Commission proposes the changes in 
this NOPR in order to revise its implementation of PURPA in light of 
technological advancements in electric generation since the enactment 
of PURPA in 1978.
    Internal Review: The Commission has reviewed the proposed changes 
and has determined that such changes are necessary. These requirements 
conform to the Commission's ongoing need for efficient information 
collection, communication, and management within the energy industry, 
in light of technological advancements in electric generation.
    Interested persons may obtain information on the reporting 
requirements by contacting the Federal Energy Regulatory Commission, 
888 First Street NE, Washington, DC 20426 [Attention: Ellen Brown, 
Office of the Executive Director], by email to [email protected], 
or by phone (202) 502-8663.
    Please send comments concerning the collection of information and 
the associated burden estimates to: Office of Information and 
Regulatory Affairs, Office of Management and Budget [Attention: Federal 
Energy Regulatory Commission Desk Officer]. Due to security concerns, 
comments should be sent directly to www.reginfo.gov/public/do/PRAMain. 
Comments submitted to OMB should be sent within 30 days of publication 
of this proposed rule in the Federal Register and should refer to FERC-
556 (OMB Control No. 1902-0075).

V. Environmental Analysis

    21. 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

[[Page 67703]]

environment.\45\ Whether and how the revisions proposed here, however, 
would affect QF development and the environment is speculative.
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    \45\ Regulations Implementing National Environmental Policy Act 
of 1969, Order No. 486, 52 FR 47,897 (Dec. 17, 1987), FERC Stats. & 
Regs. Preambles 1986-1990 ] 30,783 (1987) (cross-referenced at 41 
FERC ] 61,284).
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    22. The proposed changes to the PURPA Regulations do not authorize 
or fund particular generation that may happen to qualify as QFs, nor do 
they license or issue permits for operation of generation that may 
happen to qualify as QFs; such generation can be built and operated 
independent of, i.e., without, QF certification. They do not authorize 
or prohibit a generator's use of any particular technologies or fuels, 
nor do they mandate or limit where QFs should or should not be built. 
They do not exempt QFs from any Federal, state or local environmental, 
siting, or other similar laws or regulatory requirements. Given these 
facts any environmental impact analysis of the revisions proposed here 
would be speculative and not meaningfully inform the Commission or the 
public of the revisions' impact on QF development or, correspondingly, 
of any associated potential impacts on the environment; there are, in 
short, no reasonably foreseeable environmental impacts for the 
Commission to consider.\46\ Moreover, the revisions proposed here would 
apply only to a limited number of QFs: Solid Oxide Fuel Cell systems 
with integrated natural gas reformation equipment. Therefore, the 
Commission will not prepare an environmental document.
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    \46\ While courts have held that NEPA requires ``reasonable 
forecasting,'' an agency is not required ``to engage in speculative 
analysis'' or ``to do the impractical, if not enough information is 
available to permit meaningful consideration.'' N. Plains Res. 
Council v. Surface Transp. Board, 668 F.3d 1067, 1078 (9th Cir. 
2011).
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VI. Regulatory Flexibility Act Analysis

    23. The Regulatory Flexibility Act of 1980 (RFA) \47\ generally 
requires a description and analysis of proposed rules that will have 
significant economic impact on a substantial number of small entities. 
In lieu of preparing a regulatory flexibility analysis, an agency may 
certify that a proposed rule will not have a significant economic 
impact on a substantial number of small entities.\48\
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    \47\ 5 U.S.C. 601-12.
    \48\ 5 U.S.C. 605(b).
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    24. The Small Business Administration's (SBA) Office of Size 
Standards develops the numerical definition of a small business.\49\ 
The SBA size standard for electric utilities is based on the number of 
employees, including affiliates.\50\ Under SBA's current size 
standards, the threshold for a small entity (including its affiliates) 
is 250 employees for cogeneration in the NAICS \51\ category:
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    \49\ 13 CFR 121.101.
    \50\ SBA Final Rule on ``Small Business Size Standards: 
Utilities,'' 78 FR 77, 343 (Dec. 23, 2013).
    \51\ The North American Industry Classification System (NAICS) 
is an industry classification system that Federal statistical 
agencies use to categorize businesses for the purpose of collecting, 
analyzing, and publishing statistical data related to the U.S. 
economy. United States Census Bureau, North American Industry 
Classification System, https://www.census.gov/eos/www/naics/ 
(accessed October 4, 2020).

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NAICS Code 221118 for Other Electric Power Generation

    25. The Commission does not expect the proposed revision, if 
adopted, to affect a substantial number of small entities. This 
proposed rule directly affects only certain QFs, i.e., those that are 
Solid Oxide Fuel Cell systems with integrated natural gas reformation 
equipment; this proposed rule is voluntary. That is, this proposed rule 
expands the types of cogenerators that would be eligible to qualify as 
QFs to include Solid Oxide Fuel Cell systems with integrated natural 
gas reformation equipment, but this proposed rule does not require 
Solid Oxide Fuel Cell systems with integrated natural gas reformation 
equipment to file for QF certification. The Commission does not 
anticipate that the number of affected small entities would be 
substantial, nor does the Commission expect that any additional 
reporting burden or cost imposed on QFs, regardless of their status as 
a small or large business, would be significant.\52\
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    \52\ The average cost per response is estimated to vary from 
$124.50 to $4,150. The cost per respondent will vary based on the 
respondent's number of facilities and related requests for self-
certification and applications for Commission certification (with an 
estimated cost ranging from $2,490 to $74,700 per respondent).
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VII. Comment Procedures

    26. The Commission invites interested persons to submit comments on 
the matters and issues proposed in this document to be adopted, 
including any related matters or alternative proposals that commenters 
may wish to discuss. Comments are due November 25, 2020. Comments must 
refer to Docket Nos. RM21-2-000 and RM20-20-000, and must include the 
commenter's name, the organization the commenter represents, if 
applicable, and the commenter's address.
    27. The Commission encourages comments to be filed electronically 
via the eFiling link on the Commission's website at http://www.ferc.gov. The Commission accepts most standard word processing 
formats. Documents created electronically using word processing 
software should be filed in native applications or print-to-PDF format 
and not in a scanned format. Commenters filing electronically do not 
need to make a paper filing.
    28. Commenters that are not able to file comments electronically 
must send an original of their comments to: Federal Energy Regulatory 
Commission, Secretary of the Commission, 888 First Street NE, 
Washington, DC 20426.
    29. 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.

VIII. Document Availability

    30. In addition to publishing the full text of this document in the 
Federal Register, the Commission provides all interested persons an 
opportunity to view and/or print the contents of this document via the 
internet through the Commission's Home Page (http://www.ferc.gov). At 
this time, the Commission has suspended access to the Commission's 
Public Reference Room due to the President's March 13, 2020 
proclamation declaring a National Emergency concerning the Novel 
Coronavirus Disease (COVID-19).
    31. From the Commission's Home Page on the internet, this 
information is available on eLibrary. The full text of this document is 
available on eLibrary in PDF and Microsoft Word format for viewing, 
printing, and/or downloading. To access this document in eLibrary, type 
the docket number excluding the last three digits of this document in 
the docket number field.
    32. User assistance is available for eLibrary and the Commission's 
website during normal business hours from the Commission's Online 
Support at 202-502-6652 (toll free at 1-866-208-3676) or email at 
[email protected], or the Public Reference Room at (202) 502-
8371. Email the Public Reference Room at [email protected].

List of Subjects in 18 CFR Part 292

    Electric power plants, Electric utilities, Reporting and 
recordkeeping requirements.

    By direction of the Commission.

    Issued: October 15, 2020.
Nathaniel J. Davis, Sr.,
Deputy Secretary.

    In consideration of the foregoing, the Commission proposes to amend 
part

[[Page 67704]]

292, chapter I, title 18, Code of Federal Regulations, as follows.

PART 292--REGULATIONS UNDER SECTIONS 201 AND 210 OF THE PUBLIC 
UTILITY REGULATORY POLICIES ACT OF 1978 WITH REGARD TO SMALL POWER 
PRODUCTION AND COGENERATION

0
1. The authority citation for part 292 continues to read as follows:

    Authority:  16 U.S.C. 791a-825r, 2601-2645; 31 U.S.C. 9701; 42 
U.S.C. 7101-7352.

0
2. Amend Sec.  292.202 by:
0
a. revising paragraphs (h)(2) and (3); and
0
b. adding paragraph (h)(4).
    The revisions and addition read as follows:


Sec.  292.202  Definitions.

* * * * *
    (h) * * *
    (2) That is used in a heating application (e.g., space heating, 
domestic hot water heating);
    (3) That is used in a space cooling application (i.e., thermal 
energy used by an absorption chiller); or
    (4) That is used by a solid oxide fuel cell system with an 
integrated steam hydrocarbon reformation process for production of fuel 
for electricity generation.
* * * * *
[FR Doc. 2020-23282 Filed 10-23-20; 8:45 am]
BILLING CODE 6717-01-P