18 Cfr 292

Pt. 290, App. A

18 CFR Ch. I (4–1–12 Edition)

for purposes of compliance with this
part, provided such reporting period is
a 12-month period.

292.211 Petition for initial determination on
whether a project has a substantial adverse effect on the environment (AEE petition).

(Public Utility Regulatory Policies Act of
1978, 16 U.S.C. 2601–2645; Energy Supply and
Environmental Coordination Act, 15 U.S.C.
791–798; Federal Power Act, as amended, 16
U.S.C. 792–828C; Department of Energy Organization Act, 42 U.S.C. 7101–7352, E.O. 12009,
42 FR 46267)

Subpart C—Arrangements Between Electric Utilities and Qualifying Cogeneration and Small Power Production Facilities Under Section 210 of the Public
Utility Regulatory Policies Act of 1978

[Order 48, 44 FR 58697, Oct. 11, 1979, as amended by Order 353, 48 FR 55449, Dec. 13, 1983;
Order 545, 57 FR 53991, Nov. 16, 1992]

APPENDIX A TO PART 290—NONEXEMPT
ELECTRIC UTILITIES
Electric utilities that are not exempt from
part 290, as of the date of publication of the
Commission’s Order No. 545 are as follows:
Department of Water and Power of the City
of Los Angeles, California.
Pacific Gas & Electric Co.
San Diego Gas and Electric Co.
Southern California Edison Co.
Western Area Power Administration.
[Order 545, 57 FR 53991, Nov. 16, 1992]

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

292.301 Scope.
292.302 Availability of electric utility system cost data.
292.303 Electric utility obligations under
this subpart.
292.304 Rates for purchases.
292.305 Rates for sales.
292.306 Interconnection costs.
292.307 System emergencies.
292.308 Standards for operating reliability.
292.309 Termination of obligation to purchase from qualifying facilities.
292.310 Procedures for utilities requesting
termination of obligation to purchase
from qualifying facilities.
292.311 Reinstatement of obligation to purchase.
292.312 Termination of obligation to sell to
qualifying facilities.
292.313 Reinstatement of obligation to sell.
292.314 Existing rights and remedies.

Subpart D—Implementation
292.401 Implementation of certain reporting
requirements.
292.402 Waivers.

Subpart A—General Provisions
Sec.
292.101

Subpart E [Reserved]
Subpart F—Exemption of Qualifying Small
Power Production Facilities and Cogeneration Facilities from Certain Federal and State Laws and Regulations

Definitions.

erowe on DSK2VPTVN1PROD with CFR

Subpart B—Qualifying Cogeneration and
Small Power Production Facilities
292.201 Scope.
292.202 Definitions.
292.203 General requirements for qualification.
292.204 Criteria for qualifying small power
production facilities.
292.205 Criteria for qualifying cogeneration
facilities.
292.207 Procedures for obtaining qualifying
status.
292.208 Special requirements for hydroelectric small power production facilities
located at a new dam or diversion.
292.209 Exceptions from requirements for
hydroelectric small power production facilities located at a new dam or diversion.
292.210 Petition alleging commitment of
substantial monetary resources before
October 16, 1986.

292.601 Exemption to qualifying facilities
from the Federal Power Act.
292.602 Exemption to qualifying facilities
from the Public Utility Holding Company Act of 2005 and certain State laws
and regulations.
AUTHORITY: 16 U.S.C. 791a–825r, 2601–2645; 31
U.S.C. 9701; 42 U.S.C. 7101–7352.

Subpart A—General Provisions
§ 292.101 Definitions.
(a) General rule. Terms defined in the
Public Utility Regulatory Policies Act
of 1978 (PURPA) shall have the same
meaning for purposes of this part as
they have under PURPA, unless further
defined in this part.

828

VerDate Mar<15>2010

11:37 May 24, 2012

Jkt 226058

PO 00000

Frm 00838

Fmt 8010

Sfmt 8010

Y:\SGML\226058.XXX

226058

erowe on DSK2VPTVN1PROD with CFR

Federal Energy Regulatory Commission
(b) Definitions. The following definitions apply for purposes of this part.
(1) Qualifying facility means a cogeneration facility or a small power production facility that is a qualifying facility under Subpart B of this part.
(i) A qualifying facility may include
transmission lines and other equipment used for interconnection purposes
(including transformers and switchyard
equipment), if:
(A) Such lines and equipment are
used to supply power output to directly
and indirectly interconnected electric
utilities, and to end users, including
thermal hosts, in accordance with
state law; or
(B) Such lines and equipment are
used to transmit supplementary, standby, maintenance and backup power to
the qualifying facility, including its
thermal host meeting the criteria set
forth in Union Carbide Corporation, 48
FERC ¶ 61,130, reh’g denied, 49 FERC
¶ 61,209 (1989), aff’d sub nom., Gulf States
Utilities Company v. FERC, 922 F.2d 873
(D.C. Cir. 1991); or
(C) If such lines and equipment are
used to transmit power from other
qualifying facilities or to transmit
standby, maintenance, supplementary
and backup power to other qualifying
facilities.
(ii) The construction and ownership
of such lines and equipment shall be
subject to any applicable Federal,
state, and local siting and environmental requirements.
(2) Purchase means the purchase of
electric energy or capacity or both
from a qualifying facility by an electric utility.
(3) Sale means the sale of electric energy or capacity or both by an electric
utility to a qualifying facility.
(4) System emergency means a condition on a utility’s system which is likely to result in imminent significant
disruption of service to customers or is
imminently likely to endanger life or
property.
(5) Rate means any price, rate,
charge, or classification made, demanded, observed or received with respect to the sale or purchase of electric
energy or capacity, or any rule, regulation, or practice respecting any such
rate, charge, or classification, and any

§ 292.101
contract pertaining to the sale or purchase of electric energy or capacity.
(6) Avoided costs means the incremental costs to an electric utility of
electric energy or capacity or both
which, but for the purchase from the
qualifying facility or qualifying facilities, such utility would generate itself
or purchase from another source.
(7) Interconnection costs means the
reasonable costs of connection, switching, metering, transmission, distribution, safety provisions and administrative costs incurred by the electric utility directly related to the installation
and maintenance of the physical facilities
necessary
to
permit
interconnected operations with a qualifying
facility, to the extent such costs are in
excess of the corresponding costs which
the electric utility would have incurred
if it had not engaged in interconnected
operations, but instead generated an
equivalent amount of electric energy
itself or purchased an equivalent
amount of electric energy or capacity
from other sources. Interconnection
costs do not include any costs included
in the calculation of avoided costs.
(8) Supplementary power means electric energy or capacity supplied by an
electric utility, regularly used by a
qualifying facility in addition to that
which the facility generates itself.
(9) Back-up power means electric energy or capacity supplied by an electric
utility to replace energy ordinarily
generated by a facility’s own generation equipment during an unscheduled
outage of the facility.
(10) Interruptible power means electric
energy or capacity supplied by an electric utility subject to interruption by
the electric utility under specified conditions.
(11) Maintenance power means electric
energy or capacity supplied by an electric utility during scheduled outages of
the qualifying facility.
(Public Utility Regulatory Policies Act of
1978, 16 U.S.C. 2601 et seq., Energy Supply and
Environmental Coordination Act, 15 U.S.C.
791 et seq. Federal Power Act, 16 U.S.C. 792 et
seq., Department of Energy Organization
Act, 42 U.S.C. 7101 et seq., E.O. 12009, 42 FR
46267)
[45 FR 12233, Feb. 25, 1980, as amended by
Order 575, 60 FR 4856, Jan. 25, 1995]

829

VerDate Mar<15>2010

11:37 May 24, 2012

Jkt 226058

PO 00000

Frm 00839

Fmt 8010

Sfmt 8010

Y:\SGML\226058.XXX

226058

§ 292.201

18 CFR Ch. I (4–1–12 Edition)

Subpart B—Qualifying Cogeneration and Small Power Production Facilities
AUTHORITY: Public Utility Regulatory
Policies Act of 1978, (16 U.S.C. 2601, et seq.),
Energy Supply and Environmental Coordination Act, (15 U.S.C. 791 et seq.), Federal
Power Act, as amended, (16 U.S.C. 792, et
seq.), Department of Energy Organization
Act, (42 U.S.C. 7101 et seq.), E.O. 12009, 42 FR
46267, Natural Gas Policy Act of 1978, (15
U.S.C. 3301, et seq.).

§ 292.201 Scope.
This subpart applies to the criteria
for and manner of becoming a qualifying small power production facility
and a qualifying cogeneration facility
under sections 3(17)(C) and 3(18)(B), respectively, of the Federal Power Act,
as amended by section 201 of the Public
Utility Regulatory Policies Act of 1978
(PURPA).

erowe on DSK2VPTVN1PROD with CFR

[45 FR 17972, Mar. 20, 1980]

§ 292.202 Definitions.
For purposes of this subpart:
(a) Biomass means any organic material not derived from fossil fuels;
(b) Waste means an energy input that
is listed below in this subsection, or
any energy input that has little or no
current commercial value and exists in
the absence of the qualifying facility
industry. Should a waste energy input
acquire commercial value after a facility is qualified by way of Commission
certification pursuant to § 292.207(b), or
self-certification
pursuant
to
§ 292.207(a), the facility will not lose its
qualifying status for that reason. Waste
includes, but is not limited to, the following materials that the Commission
previously has approved as waste:
(1) Anthracite culm produced prior to
July 23, 1985;
(2) Anthracite refuse that has an average heat content of 6,000 Btu or less
per pound and has an average ash content of 45 percent or more;
(3) Bituminous coal refuse that has
an average heat content of 9,500 Btu
per pound or less and has an average
ash content of 25 percent or more;
(4) Top or bottom subbituminous coal
produced on Federal lands or on Indian
lands that has been determined to be
waste by the United States Depart-

ment of the Interior’s Bureau of Land
Management (BLM) or that is located
on non-Federal or non-Indian lands
outside of BLM’s jurisdiction, provided
that the applicant shows that the latter coal is an extension of that determined by BLM to be waste.
(5) Coal refuse produced on Federal
lands or on Indian lands that has been
determined to be waste by the BLM or
that is located on non-Federal or nonIndian lands outside of BLM’s jurisdiction, provided that applicant shows
that the latter is an extension of that
determined by BLM to be waste.
(6) Lignite produced in association
with the production of montan wax and
lignite that becomes exposed as a result of such a mining operation;
(7) Gaseous fuels, except:
(i) Synthetic gas from coal; and
(ii) Natural gas from gas and oil wells
unless the natural gas meets the requirements of § 2.400 of this chapter;
(8) Petroleum coke;
(9) Materials that a government
agency has certified for disposal by
combustion;
(10) Residual heat;
(11) Heat from exothermic reactions;
(12) Used rubber tires;
(13) Plastic materials; and
(14) Refinery off-gas.
(c) Cogeneration facility means equipment used to produce electric energy
and forms of useful thermal energy
(such as heat or steam), used for industrial, commercial, heating, or cooling
purposes, through the sequential use of
energy;
(d) Topping-cycle cogeneration facility
means 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;
(e) Bottoming-cycle cogeneration facility means a cogeneration facility in
which the energy input to the system
is first applied to a useful thermal energy application or process, and at
least some of the reject heat emerging
from the application or process is then
used for power production;
(f) Supplementary firing means an energy input to the cogeneration facility
used only in the thermal process of a

830

VerDate Mar<15>2010

11:37 May 24, 2012

Jkt 226058

PO 00000

Frm 00840

Fmt 8010

Sfmt 8010

Y:\SGML\226058.XXX

226058

erowe on DSK2VPTVN1PROD with CFR

Federal Energy Regulatory Commission
topping-cycle cogeneration facility, or
only in the electric generating process
of a bottoming-cycle cogeneration facility;
(g) Useful power output of a cogeneration facility means the electric or mechanical energy made available for use,
exclusive of any such energy used in
the power production process;
(h) Useful thermal energy output of a
topping-cycle
cogeneration
facility
means the thermal energy:
(1) That is made available to an industrial or commercial process (net of
any heat contained in condensate return and/or makeup water);
(2) That is used in a heating application (e.g., space heating, domestic hot
water heating); or
(3) That is used in a space cooling application (i.e., thermal energy used by
an absorption chiller).
(i) Total energy output of a toppingcycle cogeneration facility is the sum
of the useful power output and useful
thermal energy output;
(j) Total energy input means the total
energy of all forms supplied from external sources;
(k) Natural gas means either natural
gas unmixed, or any mixture of natural
gas and artificial gas;
(l) Oil means crude oil, residual fuel
oil, natural gas liquids, or any refined
petroleum products; and
(m) Energy input in the case of energy in the form of natural gas or oil is
to be measured by the lower heating
value of the natural gas or oil.
(n) Electric utility holding company
means a holding company, as defined in
section 2(a)(7) of the Public Utility
Holding Company Act of 1935, 15 U.S.C.
79b(a)(7) which owns one or more electric utilities, as defined in section
2(a)(3) of that Act, 15 U.S.C. 79b(a)(3),
but does not include any holding company which is exempt by rule or order
adopted or issued pursuant to sections
3(a)(3) or 3(a)(5) of the Public Utility
Holding Company Act of 1935, 15 U.S.C.
79c(a)(3) or 79c(a)(5).
(o) Utility geothermal small power production facility means a small power
production facility which uses geothermal energy as the primary energy
resource and of which more than 50
percent is owned either:

§ 292.202
(1) By an electric utility or utilities,
electric utility holding company or
companies, or any combination thereof.
(2) By any company 50 percent or
more of the outstanding voting securities of which of which are directly or
indirectly owned, controlled, or held
with power to vote by an electric utility, electric utility holding company,
or any combination thereof.
(p) New dam or diversion means a dam
or diversion which requires, for the
purposes of installing any hydroelectric power project, any construction, or enlargement of any impoundment or diversion structure (other
than repairs or reconstruction or the
addition of flashboards of similar adjustable devices);
(q) Substantial adverse effect on the environment means a substantial alteration in the existing or potential use
of, or a loss of, natural features, existing habitat, recreational uses, water
quality, or other environmental resources. Substantial alteration of particular resource includes a change in
the environment that substantially reduces the quality of the affected resources; and
(r) Commitment of substantial monetary
resources means the expenditure of, or
commitment to expend, at least 50 percent of the total cost of preparing an
application for license or exemption for
a hydroelectric project that is accepted
for filing by the Commission pursuant
to § 4.32(e) of this chapter. The total
cost includes (but is not limited to) the
cost of agency consultation, environmental studies, and engineering studies
conducted pursuant to § 4.38 of this
chapter, and the Commission’s requirements for filing an application for license exemption.
(s) Sequential use of energy means:
(1) For a topping-cycle cogeneration
facility, the use of reject heat from a
power production process in sufficient
amounts in a thermal application or
process to conform to the requirements
of the operating standard; or
(2) For a bottoming-cycle cogeneration facility, the use of reject heat
from a thermal application or process,

831

VerDate Mar<15>2010

11:37 May 24, 2012

Jkt 226058

PO 00000

Frm 00841

Fmt 8010

Sfmt 8010

Y:\SGML\226058.XXX

226058

§ 292.203

18 CFR Ch. I (4–1–12 Edition)

at least some of which is then used for
power production.
(Energy Security Act, Pub. L. 96-294, 94 Stat.
611 (1980) Public Utility Regulatory Policies
Act of 1978, 16 U.S.C. 2601, et seq., Energy
Supply and Environmental Coordination
Act, 15 U.S.C. 791 et seq., Federal Power Act,
as amended, 16 U.S.C. 792 et seq., Department
of Energy Organization Act, 42 U.S.C. 7101 et
seq., E.O. 12009, 42 FR 46267)

erowe on DSK2VPTVN1PROD with CFR

[45 FR 17972, Mar. 20, 1980, as amended at 45
FR 33958, May 21, 1980; 45 FR 66789, Oct. 8,
1980; Order 135, 46 FR 19231, Mar. 30, 1981; 46
FR 32239, June 22, 1981; Order 499, 53 FR 27002,
July 18, 1988; Order 575, 60 FR 4857, Jan. 25,
1995]

§ 292.203 General requirements for
qualification.
(a) Small power production facilities.
Except as provided in paragraph (c) of
this section, a small power production
facility is a qualifying facility if it:
(1) Meets the maximum size criteria
specified in § 292.204(a);
(2) Meets the fuel use criteria specified in § 292.204(b); and
(3) Unless exempted by paragraph (d),
has filed with the Commission a notice
of
self-certification,
pursuant
to
§ 292.207(a); or has filed with the Commission an application for Commission
certification, pursuant to § 292.207(b)(1),
that has been granted.
(b) Cogeneration facilities. A cogeneration facility, including any diesel and
dual-fuel cogeneration facility, is a
qualifying facility if it:
(1) Meets any applicable standards
and criteria specified in §§ 292.205(a), (b)
and (d); and
(2) Unless exempted by paragraph (d),
has filed with the Commission a notice
of
self-certification,
pursuant
to
§ 292.207(a); or has filed with the Commission an application for Commission
certification, pursuant to § 292.207(b)(1),
that has been granted.
(c) Hydroelectric small power production facilities located at a new dam or diversion. (1) A hydroelectric small power
production facility that impounds or
diverts the water of a natural watercourse by means of a new dam or diversion (as that term is defined in
§ 292.202(p)) is a qualifying facility if it
meets the requirements of:
(i) Paragraph (a) of this section; and
(ii) Section 292.208.
(2) [Reserved]

(d) Exemptions and waivers from filing
requirement. (1) Any facility with a net
power production capacity of 1 MW or
less is exempt from the filing requirements of paragraphs (a)(3) and (b)(2) of
this section.
(2) The Commission may waive the
requirement of paragraphs (a)(3) and
(b)(2) of this section for good cause.
Any applicant seeking waiver of paragraphs (a)(3) and (b)(2) of this section
must file a petition for declaratory
order describing in detail the reasons
waiver is being sought.
[Order 732, 75 FR 15965, Mar. 30, 2010]

§ 292.204 Criteria for qualifying small
power production facilities.
(a) Size of the facility—(1) Maximum
size. Except as provided in paragraph
(a)(4) of this section, the power production capacity of a facility for which
qualification is sought, together with
the power production capacity of any
other small power production facilities
that use the same energy resource, are
owned by the same person(s) or its affiliates, and are located at the same
site, may not exceed 80 megawatts.
(2) Method of calculation. (i) For purposes of this paragraph, facilities are
considered to be located at the same
site as the facility for which qualification is sought if they are located within one mile of the facility for which
qualification is sought and, for hydroelectric facilities, if they use water
from the same impoundment for power
generation.
(ii) For purposes of making the determination in clause (i), the distance between facilities shall be measured from
the electrical generating equipment of
a facility.
(3) Waiver. The Commission may
modify the application of paragraph
(a)(2) of this section, for good cause.
(4) Exception. Facilities meeting the
criteria in section 3(17)(E) of the Federal Power Act (16 U.S.C. 796(17)(E))
have no maximum size, and the power
production capacity of such facilities
shall be excluded from consideration
when determining the maximum size of
other small power production facilities
within one mile of such facilities.
(b) Fuel use. (1)(i) The primary energy
source of the facility must be biomass,
waste, renewable resources, geothermal

832

VerDate Mar<15>2010

11:37 May 24, 2012

Jkt 226058

PO 00000

Frm 00842

Fmt 8010

Sfmt 8010

Y:\SGML\226058.XXX

226058

Federal Energy Regulatory Commission
resources, or any combination thereof,
and 75 percent or more of the total energy input must be from these sources.
(ii) Any primary energy source
which, on the basis of its energy content, is 50 percent or more biomass
shall be considered biomass.
(2) Use of oil, natural gas and coal by
a facility, under section 3(17)(B) of the
Federal Power Act, is limited to the
minimum amounts of fuel required for
ignition, startup, testing, flame stabilization, and control uses, and the
minimum amounts of fuel required to
alleviate or prevent unanticipated
equipment outages, and emergencies,
directly affecting the public health,
safety, or welfare, which would result
from electric power outages. Such fuel
use may not, in the aggregate, exceed
25 percent of the total energy input of
the facility during the 12-month period
beginning with the date the facility
first produces electric energy and any
calendar year subsequent to the year in
which the facility first produces electric energy.
(Energy Security Act, Pub. L. 96–294, 94 Stat.
611 (1980) Public Utility Regulatory Policies
Act of 1978, 16 U.S.C. 2601, et seq., Energy
Supply and Environmental Coordination
Act, 15, U.S.C. 791, et seq., Federal Power Act,
as amended, 16 U.S.C. 792 et seq., Department
of Energy Organization Act, 42 U.S.C. 7101, et
seq.; E.O. 12009, 42 FR 46267)

erowe on DSK2VPTVN1PROD with CFR

[45 FR 17972, Mar. 20, 1980, as amended by
Order 135, 46 FR 19231, Mar. 30, 1981; Order
575, 60 FR 4857, Jan. 25, 1995; Order 732, 75 FR
15966, Mar. 30, 2010]

§ 292.205 Criteria for qualifying cogeneration facilities.
(a) Operating and efficiency standards
for topping-cycle facilities—(1) Operating
standard. For any topping-cycle cogeneration facility, the useful thermal energy output of the facility must be no
less than 5 percent of the total energy
output during the 12-month period beginning with the date the facility first
produces electric energy, and any calendar year subsequent to the year in
which the facility first produces electric energy.
(2) Efficiency standard. (i) For any
topping-cycle cogeneration facility for
which any of the energy input is natural gas or oil, and the installation of
which began on or after March 13, 1980,
the useful power output of the facility

§ 292.205
plus one-half the useful thermal energy
output, during the 12-month period beginning with the date the facility first
produces electric energy, and any calendar year subsequent to the year in
which the facility first produces electric energy, must:
(A) Subject to paragraph (a)(2)(i)(B)
of this section be no less than 42.5 percent of the total energy input of natural gas and oil to the facility; or
(B) If the useful thermal energy output is less than 15 percent of the total
energy output of the facility, be no less
than 45 percent of the total energy
input of natural gas and oil to the facility.
(ii) For any topping-cycle cogeneration facility not subject to paragraph
(a)(2)(i) of this section there is no efficiency standard.
(b) Efficiency standards for bottomingcycle facilities. (1) For any bottomingcycle cogeneration facility for which
any of the energy input as supplementary firing is natural gas or oil,
and the installation of which began on
or after March 13, 1980, the useful
power output of the facility during the
12-month period beginning with the
date the facility first produces electric
energy, and any calendar year subsequent to the year in which the facility
first produces electric energy must be
no less than 45 percent of the energy
input of natural gas and oil for supplementary firing.
(2) For any bottoming-cycle cogeneration facility not covered by paragraph (b)(1) of this section, there is no
efficiency standard.
(c) Waiver. The Commission may
waive any of the requirements of paragraphs (a) and (b) of this section upon
a showing that the facility will produce
significant energy savings.
(d) Criteria for new cogeneration facilities. Notwithstanding paragraphs (a)
and (b) of this section, any cogeneration facility that was either not a
qualifying cogeneration facility on or
before August 8, 2005, or that had not
filed a notice of self-certification or an
application for Commission certification as a qualifying cogeneration facility under § 292.207 of this chapter
prior to February 2, 2006, and which is
seeking to sell electric energy pursuant

833

VerDate Mar<15>2010

11:37 May 24, 2012

Jkt 226058

PO 00000

Frm 00843

Fmt 8010

Sfmt 8010

Y:\SGML\226058.XXX

226058

§ 292.207

18 CFR Ch. I (4–1–12 Edition)

erowe on DSK2VPTVN1PROD with CFR

to section 210 of the Public Utility Regulatory Policies Act of 1978, 16 U.S.C.
824a–1, must also show:
(1) The thermal energy output of the
cogeneration facility is used in a productive and beneficial manner; and
(2) The electrical, thermal, chemical
and mechanical output of the cogeneration facility is used fundamentally for
industrial, commercial, residential or
institutional purposes and is not intended fundamentality for sale to an
electric utility, taking into account
technological, efficiency, economic,
and variable thermal energy requirements, as well as state laws applicable
to sales of electric energy from a qualifying facility to its host facility.
(3) Fundamental use test. For the
purpose of satisfying paragraph (d)(2)
of this section, the electrical, thermal,
chemical and mechanical output of the
cogeneration facility will be considered
used fundamentally for industrial,
commercial, or institutional purposes,
and not intended fundamentally for
sale to an electric utility if at least 50
percent of the aggregate of such output, on an annual basis, is used for industrial, commercial, residential or institutional purposes. In addition, applicants for facilities that do not meet
this safe harbor standard may present
evidence to the Commission that the
facilities should nevertheless be certified given state laws applicable to
sales of electric energy or unique technological, efficiency, economic, and
variable thermal energy requirements.
(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.
(5) For purposes of paragraph (d)(1) of
this section, where a thermal host existed prior to the development of a new
cogeneration facility whose thermal
output will supplant the thermal
source previously in use by the thermal
host, the thermal output of such new
cogeneration facility will be presumed
to satisfy the requirements of paragraph (d)(1).
[45 FR 17972, Mar. 20, 1980, as amended by
Order 478, 52 FR 28467, July 30, 1987; Order
575, 60 FR 4857, Jan. 25, 1995; Order 671, 71 FR
7868, Feb. 15, 2006; Order 732, 75 FR 15966, Mar.
30, 2010; 76 FR 50663, Aug. 16, 2011]

§ 292.207 Procedures
for
obtaining
qualifying status.
(a) Self-certification. The qualifying
facility status of an existing or a proposed facility that meets the requirements of § 292.203 may be self-certified
by the owner or operator of the facility
or its representative by properly completing a Form No. 556 and filing that
form with the Commission, pursuant to
§ 131.80 of this chapter, and complying
with paragraph (c) of this section.
(b) Optional procedure—(1) Application
for Commission certification. In lieu of
the self-certification procedures in
paragraph (a) of this section, an owner
or operator of an existing or a proposed
facility, or its representative, may file
with the Commission an application for
Commission certification that the facility is a qualifying facility. The application must be accompanied by the
fee prescribed by part 381 of this chapter, and the applicant for Commission
certification must comply with paragraph (c) of this section.
(2) General contents of application. The
application must include a properly
completed Form No. 556 pursuant to
§ 131.80 of this chapter.
(3) Commission action. (i) Within 90
days of the later of the filing of an application or the filing of a supplement,
amendment or other change to the application, the Commission will either:
Inform the applicant that the application is deficient; or issue an order
granting or denying the application; or
toll the time for issuance of an order.
Any order denying certification shall
identify the specific requirements
which were not met. If the Commission
does not act within 90 days of the date
of the latest filing, the application
shall be deemed to have been granted.
(ii) For purposes of paragraph (b) of
this section, the date an application is
filed is the date by which the Office of
the Secretary has received all of the information and the appropriate filing
fee necessary to comply with the requirements of this Part.
(c) Notice requirements—(1) General.
An applicant filing a self-certification,
self-recertification,
application
for
Commission certification or application for Commission recertification of
the qualifying status of its facility
must concurrently serve a copy of such

834

VerDate Mar<15>2010

11:37 May 24, 2012

Jkt 226058

PO 00000

Frm 00844

Fmt 8010

Sfmt 8010

Y:\SGML\226058.XXX

226058

erowe on DSK2VPTVN1PROD with CFR

Federal Energy Regulatory Commission
filing on each electric utility with
which it expects to interconnect, transmit or sell electric energy to, or purchase supplementary, standby, back-up
or maintenance power from, and the
State regulatory authority of each
state where the facility and each affected electric utility is located. The
Commission will publish a notice in
the FEDERAL REGISTER for each application for Commission certification
and for each self-certification of a cogeneration facility that is subject to
the requirements of § 292.205(d).
(2) Facilities of 500 kW or more. An
electric utility is not required to purchase electric energy from a facility
with a net power production capacity
of 500 kW or more until 90 days after
the facility notifies the facility that it
is a qualifying facility or 90 days after
the utility meets the notice requirements in paragraph (c)(1) of this section.
(d) Revocation of qualifying status.
(1)(i) If a qualifying facility fails to
conform with any material facts or
representations presented by the cogenerator or small power producer in
its submittals to the Commission, the
notice of self-certification or Commission order certifying the qualifying
status of the facility may no longer be
relied upon. At that point, if the facility continues to conform to the Commission’s qualifying criteria under this
part, the cogenerator or small power
producer may file either a notice of
self-recertification of qualifying status
pursuant to the requirements of paragraph (a) of this section, or an application for Commission recertification
pursuant to the requirements of paragraph (b) of this section, as appropriate.
(ii) The Commission may, on its own
motion or on the motion of any person,
revoke the qualifying status of a facility that has been certified under paragraph (b) of this section, if the facility
fails to conform to any of the Commission’s qualifying facility criteria under
this part.
(iii) The Commission may, on its own
motion or on the motion of any person,
revoke the qualifying status of a selfcertified or self-recertified qualifying
facility if it finds that the self-certified
or self-recertified qualifying facility

§ 292.208
does not meet the applicable requirements for qualifying facilities.
(2) Prior to undertaking any substantial alteration or modification of a
qualifying facility which has been certified under paragraph (b) of this section, a small power producer or cogenerator may apply to the Commission for a determination that the proposed alteration or modification will
not result in a revocation of qualifying
status. This application for Commission recertification of qualifying status
should be submitted in accordance with
paragraph (b) of this section.
[45 FR 17972, Mar. 20, 1980]
EDITORIAL NOTE: For FEDERAL REGISTER citations affecting § 292.207, see the List of CFR
Sections Affected, which appears in the
Finding Aids section of the printed volume
and at www.fdsys.gov.

§ 292.208 Special requirements for hydroelectric small power production
facilities located at a new dam or
diversion.
(a) A hydroelectric small power production facility that impounds or diverts the water of a natural watercourse by means of a new dam or diversion (as that term is defined in
§ 292.202(p)) is a qualifying facility only
if it meets the requirements of:
(1) Paragraph (b) of this section;
(2) Section 292.203(c); and
(3) Part 4 of this chapter.
(b) A hydroelectric small power production described in paragraph (a) is a
qualifying facility only if:
(1) The Commission finds, at the time
it issues the license or exemption, that
the project will not have a substantial
adverse effect on the environment (as
that term is defined in § 292.202(q)), including recreation and water quality;
(2) The Commission finds, at the time
the application for the license or exemption is accepted for filing under
§ 4.32 of this chapter, that the project is
not located on any segment of a natural watercourse which:
(i) Is included, or designated for potential inclusion in, a State or National wild and scenic river system; or
(ii) The State has determined, in accordance with applicable State law, to
possess unique natural, recreational,
cultural or scenic attributes which

835

VerDate Mar<15>2010

11:37 May 24, 2012

Jkt 226058

PO 00000

Frm 00845

Fmt 8010

Sfmt 8010

Y:\SGML\226058.XXX

226058

erowe on DSK2VPTVN1PROD with CFR

§ 292.209

18 CFR Ch. I (4–1–12 Edition)

would be adversely affected by hydroelectric development; and
(3) The project meets the terms and
conditions set by the appropriate fish
and wildlife agencies under the same
procedures as provided for under section 30(c) of the Federal Power Act.
(c) For the Commission to make the
findings in paragraph (b) of this section
an applicant must:
(1) Comply with the applicable hydroelectric licensing requirements in Part
4 of this chapter, including:
(i) Completing the pre-filing consultation process under § 4.38 of this
chapter, including performing any environmental studies which may be required under §§ 4.38(b)(2)(i)(D) through
(F) of this chapter; and
(ii) Submitting with its application
an environmental report that meets
the requirements of § 4.41(f) of this
chapter, regardless of project size;
(2) State whether the project is located on any segment of a natural watercourse which:
(i) Is included in or designated for potential inclusion in:
(A) The National Wild and Scenic
River System (28 U.S.C. 1271–1278
(1982)); or
(B) A State wild and scenic river system;
(ii) Crosses an area designated or recommended for designation under the
Wilderness Act (16 U.S.C. 1132) as:
(A) A wilderness area; or
(B) Wilderness study area; or
(iii) The State, either by or pursuant
to an act of the State legislature, has
determined to possess unique, natural,
recreational, cultural, or scenic attributes that would be adversely affected by hydroelectric development.
(d) If the project is located on any
segment of a natural watercourse that
meets any of the conditions in paragraph (c)(2) of this section, the applicant must provide the following information in its application:
(1) The date on which the natural watercourse was protected;
(2) The statutory authority under
which the natural watercourse was protected; and
(3) The Federal or state agency, or
political subdivision of the state, that

is in charge of administering the natural watercourse.
[Order 499, 53 FR 27003, July 18, 1988]

§ 292.209 Exceptions
from
requirements
for
hydroelectric
small
power production facilities located
at a new dam or diversion.
(a) The requirements in §§ 292.208(b)(1)
through (3) do not apply if:
(1) An application for license or exemption is filed for a project located at
a Government dam, as defined in section 3(10) of the Federal Power Act, at
which non-Federal hydroelectric development is permissible; or
(2) An application for license or exemption was filed and accepted before
October 16, 1986.
(b) The requirements in §§ 292.208(b)
(1) and (3) do not apply if an application for license or exemption was filed
before October 16, 1986, and is accepted
for filing by the Commission before October 16, 1989.
(c) The requirements in § 292.208(b)(3)
do not apply to an applicant for license
or exemption if:
(1) The applicant files a petition pursuant to § 292.210; and
(2) The Commission grants the petition.
(d) Any application covered by paragraph (a), (b), or (c) of this section is
excepted from the moratorium imposed
by section 8(e) of the Electric Consumers Protection Act of 1986, Pub. L.
No. 99–495.
[Order 499, 53 FR 27003, July 18, 1988]

§ 292.210 Petition alleging commitment
of substantial monetary resources
before October 16, 1986.
(a)
An
applicant
covered
by
§ 292.203(c) whose application for license
or exemption was filed on or after October 16, 1986, but before April 16, 1988,
may file a petition for exception from
the requirement in § 292.208(b)(3) and
the
moratorium
described
in
§ 292.203(c)(2). The petition must show
that prior to October 16, 1986, the applicant committed substantial monetary
resources (as that term is defined in
§ 292.202(r)) to the development of the
project.
(b) Subject to rebuttal under paragraph (d)(7)(ii) of this section, a showing of the commitment of substantial

836

VerDate Mar<15>2010

11:37 May 24, 2012

Jkt 226058

PO 00000

Frm 00846

Fmt 8010

Sfmt 8010

Y:\SGML\226058.XXX

226058

erowe on DSK2VPTVN1PROD with CFR

Federal Energy Regulatory Commission
monetary resources will be presumed if
the applicant held a preliminary permit for the project and had completed
environmental consultations pursuant
to § 4.38 of this chapter before October
16, 1986.
(c) Time of filing petition—(1) General
rule. Except as provided in paragraph
(c)(2) of this section, the applicant
must:
(i) File the petition with the application for license or exemption; or
(ii) Submit with the application for
license or exemption a request for an
extension of time, not to exceed 90 days
or April 16, 1988, whichever occurs first,
in which to file the petition.
(2) Exception. If the application for license or exemption was filed on or
after October 16, 1986, but before March
23, 1987, the petition must have been
filed by June 22, 1987.
(d) Filing requirements. A petition
filed under this section must include
the following information or refer to
the pages in the application for license
or exemption where it can be found:
(1) A certificate of service, conforming to the requirements set out in
§ 385.2010(h) of this chapter, certifying
that the applicant has served the petition on the Federal and State agencies
required to be consulted by the applicant pursuant to § 4.38 of this chapter;
(2) Documentation of any issued preliminary permits for the project;
(3) An itemized statement of the
total costs expended on the application;
(4) An itemized schedule of costs the
applicant expended, or committed to be
expended, before October 16, 1986, on
the application, accompanied by supporting documentation including but
not limited to:
(i) Dated invoices for maps, surveys,
supplies, geophysical and geotechnical
services, engineering services, legal
services, document reproduction, and
other items related to the preparation
of the application, and
(ii) Written contracts and other written documentation demonstrating a
commitment made before October 16,
1986, to expend monetary resources on
the preparation of the application, together with evidence that those monetary resources were actually expended;
and

§ 292.210
(5) Correspondence or other documentation to support the items listed
in paragraphs (d)(3) and (d)(4) of this
section to show that the expenses presented were directly related to the
preparation of the application.
(6) The applicant must include in its
total cost statement and in its schedule of the costs expended or committed
to be expended before October 16, 1986,
the value of services that were performed by the applicant itself instead
of contracted out.
(7)(i) If the applicant held a preliminary permit for the project and had
completed pre-filing consultation pursuant to § 4.38 of this chapter prior to
October 16, 1986, the applicant may, instead of submitting the information
listed in paragraphs (d)(3), (d)(4), and
(d)(5) of this section, submit a statement identifying the preliminary permit by project number.
(ii) If any interested person objects
(pursuant to § 385.211 of this chapter) to
the presumption in paragraph (b) of
this section, the applicant must supply
the information listed in paragraphs
(d)(3), (d)(4), and (d)(5) of this section.
(8) If the application is deficient pursuant to § 4.32(e) of this chapter, the applicant must include with the information correcting those deficiencies a
statement of the costs expended to
make the corrections.
(e) Processing of petition. (1) The Commission will issue a notice of the petition filed under this section and publish the notice in the FEDERAL REGISTER. The petition will be available for
inspection and copying during regular
business hours in the Public Reference
Room maintained by the Division of
Public Information.
(2) Comments on the petition. The Commission will provide the public 45 days
from the date the notice of the petition
is issued to submit comments. The applicant for license or exemption has 15
days after the expiration of the public
comment period to respond to the comments filed with the Commission.
(3) Commission action on petition. The
Director of the Office of Energy
Projects will determine whether or not
the applicant for license or exemption

837

VerDate Mar<15>2010

11:37 May 24, 2012

Jkt 226058

PO 00000

Frm 00847

Fmt 8010

Sfmt 8010

Y:\SGML\226058.XXX

226058

§ 292.211

18 CFR Ch. I (4–1–12 Edition)

has made the showing required under
this section.
[Order 499, 53 FR 27003, July 18, 1988, as
amended by Order 699, 72 FR 45325, Aug. 14,
2007]

erowe on DSK2VPTVN1PROD with CFR

§ 292.211 Petition for initial determination on whether a project has
a substantial adverse effect on the
environment (AEE petition).
(a) An applicant that has filed a petition under § 292.210 may also file an
AEE petition with the Commission for
an initial determination on whether
the project satisfies the requirement
that it has no substantial adverse effect on the environment as specified in
§ 292.208(b)(1).
(b) The filing of the AEE petition
does not relieve the applicant of the
filing requirements of § 292.208(c).
(c) The Commission will act on the
AEE petition only if the Commission
has granted the applicant’s commitment of resources petition under
§ 292.210.
(d) Time of filing petition. The applicant may file the AEE petition with
the application for license or exemption or at any time before the Commission issues the license or exemption.
(e) Contents of petition. The AEE petition must identify the project and request that the Commission make an
initial determination on the adverse
environmental effects requirements in
§ 292.208(b)(1).
(f) The Director of the Office of Energy Projects will make the initial determination on the AEE petition. In
making this determination, the Director will consider the following:
(1) Any proposed mitigative measures;
(2) The consistency of the proposal
with local, regional, and national resource plans and programs;
(3) The mandatory terms and conditions of fish and wildlife agencies under
section 210(j) of PURPA, or section
30(c) of the Federal Power Act; or the
recommended terms and conditions of
fish a wildlife agencies under Section
10(j) of the Federal Power Act, whichever is appropriate; and
(4) Any other information which the
Director believes is relevant to consider.

(g) Initial finding on the petition. The
Director of the Office of Energy
Projects will make the initial determination on the AEE petition after the
close of the public notice period for the
accepted application. If the Director’s
initial determination finds:
(1) No substantial adverse effect on
the environment, the Commission must
wait at least 45 days before making a
final determination that the project
satisfies
the
requirements
of
§ 292.208(b)(1).
(2) A substantial adverse effect on
the environment, the applicant may
file, within 90 days of the initial finding that the project does not satisfy
the requirements in § 292.208(b)(1), proposed measures to mitigate the adverse
environmental effects found.
(3)(i) The Commission will provide
written notice of the Director’s initial
finding on the petition to the applicant, to the federal and state agencies
that the applicant must consult under
§ 4.38 of this chapter and to any intervenors in the proceeding.
(ii) The Commission will publish notice of the Director’s initial finding in
the FEDERAL REGISTER.
(h) Notice and comment on the mitigative measures. (1) The Commission will
issue notice of the mitigative measures
filed by an applicant under paragraph
(g)(2) of this section and will publish
the notice in the FEDERAL REGISTER.
The mitigative measures will be on file
and available for inspection or copying
during regular business hours in the
Public Reference Room maintained by
the Division of Public Information;
(2) The Commission will provide the
State and interested persons within 90
days from the date the notice is issued
to review and submit comments on the
mitigative measures. The applicant for
license or exemption has 15 days after
the expiration of the public comment
period to respond to the comments
filed with the Commission.
(i) Material amendments to application.
The proposed mitigative measures filed
under paragraph (g)(2) of this section
will not be considered a material
amendment to the application unless
the Commission finds that the proposed measures are unnecessary to, or

838

VerDate Mar<15>2010

11:37 May 24, 2012

Jkt 226058

PO 00000

Frm 00848

Fmt 8010

Sfmt 8010

Y:\SGML\226058.XXX

226058

erowe on DSK2VPTVN1PROD with CFR

Federal Energy Regulatory Commission
exceed the scope of, mitigating substantial adverse effects. If the Commission finds the proposed mitigative
measures constitute a material amendment, the application will be considered filed with the Commission on the
date on which the applicant filed the
proposed mitigative measures, and all
other provisions of § 4.35(a) of this
chapter will apply.
(j) Final determination on the petition.
The Commission will make a final determination on the petition at the time
the Commission issues a license or exemption for the project.
(k) Presumption. (1) If, between the
Commission’s initial and final findings
on the AEE petition, the State does
not
take
any
action
under
§ 292.208(b)(2), the failure to take action
can be the basis for a presumption that
there is not substantial adverse effect
on the environment (as that term is defined in § 292.202(q)).
(2) If the presumption in paragraph
(k)(1) of this section comes into effect,
it:
(i) Is only available for those adverse
effects related to the natural, recreational, cultural, or scenic attributes
of the environment;
(ii) Can only operate during the time
between the Commission’s initial and
final findings on the AEE petition; and
(iii) Has no affect on the Commission’s independent obligation to find
that the project will not have a substantial adverse effect on the environment under § 292.208(b)(1).
(3) The presumption in paragraph
(k)(1) of this section does not take effect if the State, the Commission or an
interested person demonstrates that
the State has acted to protect the natural watercourse under § 292.208(b)(2).
(4) The presumption in paragraph
(k)(1) of this section can be rebutted if:
(i) The Commission determines that
the project will have a substantial adverse effect on the environment related
to the environmental attributes listed
in paragraph (k)(2)(i) of this section; or
(ii) Any interested person, including
a State, demonstrates that the project
will have a substantial adverse effect
on the environment related to the envi-

§ 292.302
ronmental attributes listed in paragraph (k)(2)(i) of this section.
[Order 499, 53 FR 27004, July 18, 1988, as
amended by Order 499-A, 53 FR 40724, Oct. 18,
1988; Order 699, 72 FR 45325, Aug. 14, 2007]

Subpart C—Arrangements Between Electric Utilities and
Qualifying Cogeneration and
Small Power Production Facilities Under Section 210 of the
Public Utility Regulatory Policies Act of 1978
AUTHORITY: Public Utility Regulatory
Policies Act of 1978, 16 U.S.C. 2601 et seq., Energy Supply and Environmental Coordination Act, 15 U.S.C. 791 et seq. Federal Power
Act, 16 U.S.C. 792 et seq., Department of Energy Organization Act, 42 U.S.C. 7101 et seq.,
E.O. 12009, 42 FR 46267.
SOURCE: Order 69, 45 FR 12234, Feb. 25, 1980,
unless otherwise noted.

§ 292.301 Scope.
(a) Applicability. This subpart applies
to the regulation of sales and purchases between qualifying facilities
and electric utilities.
(b) Negotiated rates or terms. Nothing
in this subpart:
(1) Limits the authority of any electric utility or any qualifying facility to
agree to a rate for any purchase, or
terms or conditions relating to any
purchase, which differ from the rate or
terms or conditions which would otherwise be required by this subpart; or
(2) Affects the validity of any contract entered into between a qualifying
facility and an electric utility for any
purchase.
§ 292.302 Availability of electric utility
system cost data.
(a) Applicability. (1) Except as provided in paragraph (a)(2) of this section, paragraph (b) applies to each electric utility, in any calendar year, if the
total sales of electric energy by such
utility for purposes other than resale
exceeded 500 million kilowatt-hours
during any calendar year beginning
after December 31, 1975, and before the
immediately preceding calendar year.
(2) Each utility having total sales of
electric energy for purposes other than
resale of less than one billion kilowatt-

839

VerDate Mar<15>2010

11:37 May 24, 2012

Jkt 226058

PO 00000

Frm 00849

Fmt 8010

Sfmt 8010

Y:\SGML\226058.XXX

226058

erowe on DSK2VPTVN1PROD with CFR

§ 292.303

18 CFR Ch. I (4–1–12 Edition)

hours during any calendar year beginning after December 31, 1975, and before
the immediately preceding year, shall
not be subject to the provisions of this
section until June 30, 1982.
(b) General rule. To make available
data from which avoided costs may be
derived, not later than November 1,
1980, June 30, 1982, and not less often
than every two years thereafter, each
regulated electric utility described in
paragraph (a) of this section shall provide to its State regulatory authority,
and shall maintain for public inspection, and each nonregulated electric
utility described in paragraph (a) of
this section shall maintain for public
inspection, the following data:
(1) The estimated avoided cost on the
electric utility’s system, solely with
respect to the energy component, for
various levels of purchases from qualifying facilities. Such levels of purchases shall be stated in blocks of not
more than 100 megawatts for systems
with peak demand of 1000 megawatts or
more, and in blocks equivalent to not
more than 10 percent of the system
peak demand for systems of less than
1000 megawatts. The avoided costs
shall be stated on a cents per kilowatthour basis, during daily and seasonal
peak and off-peak periods, by year, for
the current calendar year and each of
the next 5 years;
(2) The electric utility’s plan for the
addition of capacity by amount and
type, for purchases of firm energy and
capacity, and for capacity retirements
for each year during the succeeding 10
years; and
(3) The estimated capacity costs at
completion of the planned capacity additions and planned capacity firm purchases, on the basis of dollars per kilowatt, and the associated energy costs
of each unit, expressed in cents per kilowatt hour. These costs shall be expressed in terms of individual generating units and of individual planned
firm purchases.
(c) Special rule for small electric utilities. (1) Each electric utility (other
than any electric utility to which paragraph (b) of this section applies) shall,
upon request:
(i) Provide comparable data to that
required under paragraph (b) of this
section to enable qualifying facilities

to estimate the electric utility’s avoided costs for periods described in paragraph (b) of this section; or
(ii) With regard to an electric utility
which is legally obligated to obtain all
its requirements for electric energy
and capacity from another electric
utility, provide the data of its supplying utility and the rates at which it
currently purchases such energy and
capacity.
(2) If any such electric utility fails to
provide such information on request,
the qualifying facility may apply to
the State regulatory authority (which
has ratemaking authority over the
electric utility) or the Commission for
an order requiring that the information be provided.
(d) Substitution of alternative method.
(1) After public notice in the area
served by the electric utility, and after
opportunity for public comment, any
State regulatory authority may require (with respect to any electric utility over which it has ratemaking authority), or any non-regulated electric
utility may provide, data different
than those which are otherwise required by this section if it determines
that avoided costs can be derived from
such data.
(2) Any State regulatory authority
(with respect to any electric utility
over which it has ratemaking authority) or nonregulated utility which requires such different data shall notify
the Commission within 30 days of making such determination.
(e) State Review. (1) Any data submitted by an electric utility under this
section shall be subject to review by
the State regulatory authority which
has ratemaking authority over such
electric utility.
(2) In any such review, the electric
utility has the burden of coming forward with justification for its data.
[45 FR 12234, Feb. 25, 1980; 45 FR 24126, Apr. 9,
1980]

§ 292.303 Electric utility
under this subpart.

obligations

(a) Obligation to purchase from qualifying facilities. Each electric utility
shall purchase, in accordance with
§ 292.304, unless exempted by § 292.309
and § 292.310, any energy and capacity

840

VerDate Mar<15>2010

11:37 May 24, 2012

Jkt 226058

PO 00000

Frm 00850

Fmt 8010

Sfmt 8010

Y:\SGML\226058.XXX

226058

Federal Energy Regulatory Commission
which is made available from a qualifying facility:
(1) Directly to the electric utility; or
(2) Indirectly to the electric utility
in accordance with paragraph (d) of
this section.
(b) Obligation to sell to qualifying facilities. Each electric utility shall sell
to any qualifying facility, in accordance with § 292.305, unless exempted by
§ 292.312, energy and capacity requested
by the qualifying facility.
(c) Obligation to interconnect. (1) Subject to paragraph (c)(2) of this section,
any electric utility shall make such
interconnection costs with any qualifying facility as may be necessary to
accomplish purchases or sales under
this subpart. The obligation to pay for
any interconnection shall be determined in accordance with § 292.306.
(2) No electric utility is required to
interconnect with any qualifying facility if, solely by reason of purchases or
sales over the interconnection, the
electric utility would become subject
to regulation as a public utility under
part II of the Federal Power Act.
(d) Transmission to other electric utilities. If a qualifying facility agrees, an
electric utility which would otherwise
be obligated to purchase energy or capacity from such qualifying facility
may transmit the energy or capacity
to any other electric utility. Any electric utility to which such energy or capacity is transmitted shall purchase
such energy or capacity under this subpart as if the qualifying facility were
supplying energy or capacity directly
to such electric utility. The rate for
purchase by the electric utility to
which such energy is transmitted shall
be adjusted up or down to reflect line
losses pursuant to § 292.304(e)(4) and
shall not include any charges for transmission.
(e) Parallel operation. Each electric
utility shall offer to operate in parallel
with a qualifying facility, provided
that the qualifying facility complies
with any applicable standards established in accordance with § 292.308.

erowe on DSK2VPTVN1PROD with CFR

[Order 688, 71 FR 64372, Nov. 1, 2006; 71 FR
75662, Dec. 18, 2006]

§ 292.304 Rates for purchases.
(a) Rates for purchases. (1) Rates for
purchases shall:

§ 292.304
(i) Be just and reasonable to the electric consumer of the electric utility
and in the public interest; and
(ii) Not discriminate against qualifying cogeneration and small power
production facilities.
(2) Nothing in this subpart requires
any electric utility to pay more than
the avoided costs for purchases.
(b) Relationship to avoided costs. (1)
For purposes of this paragraph, ‘‘new
capacity’’ means any purchase from capacity of a qualifying facility, construction of which was commenced on
or after November 9, 1978.
(2) Subject to paragraph (b)(3) of this
section, a rate for purchases satisfies
the requirements of paragraph (a) of
this section if the rate equals the
avoided costs determined after consideration of the factors set forth in paragraph (e) of this section
(3) A rate for purchases (other than
from new capacity) may be less than
the avoided cost if the State regulatory
authority (with respect to any electric
utility over which it has ratemaking
authority) or the nonregulated electric
utility determines that a lower rate is
consistent with paragraph (a) of this
section, and is sufficient to encourage
cogeneration and small power production.
(4) Rates for purchases from new capacity shall be in accordance with
paragraph (b)(2) of this section, regardless of whether the electric utility
making such purchases is simultaneously making sales to the qualifying
facility.
(5) In the case in which the rates for
purchases are based upon estimates of
avoided costs over the specific term of
the contract or other legally enforceable obligation, the rates for such purchases do not violate this subpart if
the rates for such purchases differ from
avoided costs at the time of delivery.
(c) Standard rates for purchases. (1)
There shall be put into effect (with respect to each electric utility) standard
rates for purchases from qualifying facilities with a design capacity of 100
kilowatts or less.
(2) There may be put into effect
standard rates for purchases from
qualifying facilities with a design capacity of more than 100 kilowatts.

841

VerDate Mar<15>2010

11:37 May 24, 2012

Jkt 226058

PO 00000

Frm 00851

Fmt 8010

Sfmt 8010

Y:\SGML\226058.XXX

226058

erowe on DSK2VPTVN1PROD with CFR

§ 292.304

18 CFR Ch. I (4–1–12 Edition)

(3) The standard rates for purchases
under this paragraph:
(i) Shall be consistent with paragraphs (a) and (e) of this section; and
(ii) May differentiate among qualifying facilities using various technologies on the basis of the supply
characteristics of the different technologies.
(d) Purchases ‘‘as available’’ or pursuant to a legally enforceable obligation.
Each qualifying facility shall have the
option either:
(1) To provide energy as the qualifying facility determines such energy
to be available for such purchases, in
which case the rates for such purchases
shall be based on the purchasing utility’s avoided costs calculated at the
time of delivery; or
(2) To provide energy or capacity pursuant to a legally enforceable obligation for the delivery of energy or capacity over a specified term, in which
case the rates for such purchases shall,
at the option of the qualifying facility
exercised prior to the beginning of the
specified term, be based on either:
(i) The avoided costs calculated at
the time of delivery; or
(ii) The avoided costs calculated at
the time the obligation is incurred.
(e) Factors affecting rates for purchases. In determining avoided costs,
the following factors shall, to the extent practicable, be taken into account:
(1) The data provided pursuant to
§ 292.302(b), (c), or (d), including State
review of any such data;
(2) The availability of capacity or energy from a qualifying facility during
the system daily and seasonal peak periods, including:
(i) The ability of the utility to dispatch the qualifying facility;
(ii) The expected or demonstrated reliability of the qualifying facility;
(iii) The terms of any contract or
other legally enforceable obligation,
including the duration of the obligation, termination notice requirement
and sanctions for non-compliance;
(iv) The extent to which scheduled
outages of the qualifying facility can
be usefully coordinated with scheduled
outages of the utility’s facilities;
(v) The usefulness of energy and capacity supplied from a qualifying facil-

ity during system emergencies, including its ability to separate its load from
its generation;
(vi) The individual and aggregate
value of energy and capacity from
qualifying facilities on the electric
utility’s system; and
(vii) The smaller capacity increments
and the shorter lead times available
with additions of capacity from qualifying facilities; and
(3) The relationship of the availability of energy or capacity from the
qualifying facility as derived in paragraph (e)(2) of this section, to the ability of the electric utility to avoid
costs, including the deferral of capacity additions and the reduction of fossil
fuel use; and
(4) The costs or savings resulting
from variations in line losses from
those that would have existed in the
absence of purchases from a qualifying
facility, if the purchasing electric utility generated an equivalent amount of
energy itself or purchased an equivalent amount of electric energy or capacity.
(f) Periods during which purchases not
required. (1) Any electric utility which
gives notice pursuant to paragraph
(f)(2) of this section will not be required to purchase electric energy or
capacity during any period during
which,
due
to
operational
circumstances, purchases from qualifying
facilities will result in costs greater
than those which the utility would
incur if it did not make such purchases, but instead generated an equivalent amount of energy itself.
(2) Any electric utility seeking to invoke paragraph (f)(1) of this section
must notify, in accordance with applicable State law or regulation, each affected qualifying facility in time for
the qualifying facility to cease the delivery of energy or capacity to the
electric utility.
(3) Any electric utility which fails to
comply with the provisions of paragraph (f)(2) of this section will be required to pay the same rate for such
purchase of energy or capacity as
would be required had the period described in paragraph (f)(1) of this section not occurred.
(4) A claim by an electric utility that
such a period has occurred or will

842

VerDate Mar<15>2010

11:37 May 24, 2012

Jkt 226058

PO 00000

Frm 00852

Fmt 8010

Sfmt 8010

Y:\SGML\226058.XXX

226058

erowe on DSK2VPTVN1PROD with CFR

Federal Energy Regulatory Commission

§ 292.308

occur is subject to such verification by
its State regulatory authority as the
State regulatory authority determines
necessary or appropriate, either before
or after the occurrence.

(2) Shall take into account the extent
to which scheduled outages of the
qualifying facilities can be usefully coordinated with scheduled outages of
the utility’s facilities.

§ 292.305 Rates for sales.
(a) General rules. (1) Rates for sales:
(i) Shall be just and reasonable and
in the public interest; and
(ii) Shall not discriminate against
any qualifying facility in comparison
to rates for sales to other customers
served by the electric utility.
(2) Rates for sales which are based on
accurate data and consistent systemwide costing principles shall not be
considered to discriminate against any
qualifying facility to the extent that
such rates apply to the utility’s other
customers with similar load or other
cost-related characteristics.
(b) Additional services to be provided to
qualifying facilities. (1) Upon request of
a qualifying facility, each electric utility shall provide:
(i) Supplementary power;
(ii) Back-up power;
(iii) Maintenance power; and
(iv) Interruptible power.
(2) The State regulatory authority
(with respect to any electric utility
over which it has ratemaking authority) and the Commission (with respect
to any nonregulated electric utility)
may waive any requirement of paragraph (b)(1) of this section if, after notice in the area served by the electric
utility and after opportunity for public
comment, the electric utility demonstrates and the State regulatory authority or the Commission, as the case
may be, finds that compliance with
such requirement will:
(i) Impair the electric utility’s ability to render adequate service to its
customers; or
(ii) Place an undue burden on the
electric utility.
(c) Rates for sales of back-up and maintenance power. The rate for sales of
back-up power or maintenance power:
(1) Shall not be based upon an assumption (unless supported by factual
data) that forced outages or other reductions in electric output by all qualifying facilities on an electric utility’s
system will occur simultaneously, or
during the system peak, or both; and

§ 292.306

Interconnection costs.

(a) Obligation to pay. Each qualifying
facility shall be obligated to pay any
interconnection costs which the State
regulatory authority (with respect to
any electric utility over which it has
ratemaking authority) or nonregulated
electric utility may assess against the
qualifying facility on a nondiscriminatory basis with respect to other customers with similar load characteristics.
(b) Reimbursement of interconnection
costs. Each State regulatory authority
(with respect to any electric utility
over which it has ratemaking authority) and nonregulated utility shall determine the manner for payments of
interconnection costs, which may include reimbursement over a reasonable
period of time.
§ 292.307

System emergencies.

(a) Qualifying facility obligation to provide power during system emergencies. A
qualifying facility shall be required to
provide energy or capacity to an electric utility during a system emergency
only to the extent:
(1) Provided by agreement between
such qualifying facility and electric
utility; or
(2) Ordered under section 202(c) of the
Federal Power Act.
(b) Discontinuance of purchases and
sales during system emergencies. During
any system emergency, an electric
utility may discontinue:
(1) Purchases from a qualifying facility if such purchases would contribute
to such emergency; and
(2) Sales to a qualifying facility, provided that such discontinuance is on a
nondiscriminatory basis.
§ 292.308 Standards for operating reliability.
Any State regulatory authority (with
respect to any electric utility over
which it has ratemaking authority) or
nonregulated electric utility may establish reasonable standards to ensure

843

VerDate Mar<15>2010

11:37 May 24, 2012

Jkt 226058

PO 00000

Frm 00853

Fmt 8010

Sfmt 8010

Y:\SGML\226058.XXX

226058

§ 292.309

18 CFR Ch. I (4–1–12 Edition)

system safety and reliability of interconnected operations. Such standards
may be recommended by any electric
utility, any qualifying facility, or any
other person. If any State regulatory
authority (with respect to any electric
utility over which it has ratemaking
authority) or nonregulated electric
utility establishes such standards, it
shall specify the need for such standards on the basis of system safety and
reliability.

erowe on DSK2VPTVN1PROD with CFR

§ 292.309 Termination of obligation to
purchase from qualifying facilities.
(a) After August 8, 2005, an electric
utility shall not be required, under this
part, to enter into a new contract or
obligation to purchase electric energy
from a qualifying cogeneration facility
or a qualifying small power production
facility if the Commission finds that
the qualifying cogeneration facility or
qualifying small power facility production has nondiscriminatory access to:
(1)(i) Independently administered,
auction-based day ahead and real time
wholesale markets for the sale of electric energy; and
(ii) Wholesale markets for long-term
sales of capacity and electric energy;
or
(2)(i) Transmission and interconnection services that are provided by a
Commission-approved regional transmission entity and administered pursuant to an open access transmission tariff that affords nondiscriminatory
treatment to all customers; and
(ii) Competitive wholesale markets
that provide a meaningful opportunity
to sell capacity, including long-term
and short-term sales, and electric energy, including long-term, short-term
and real-time sales, to buyers other
than the utility to which the qualifying facility is interconnected. In determining whether a meaningful opportunity to sell exists, the Commission
shall consider, among other factors,
evidence of transactions within the relevant market; or
(3) Wholesale markets for the sale of
capacity and electric energy that are,
at a minimum, of comparable competitive quality as markets described in
paragraphs (a)(1) and (a)(2) of this section.

(b) For purposes of § 292.309(a), a renewal of a contract that expires by its
own terms is a ‘‘new contract or obligation’’ without a continuing obligation to purchase under an expired contract.
(c) For purposes of § 292.309(a)(1), (2)
and (3), with the exception of paragraph (d) of this section, there is a rebuttable presumption that a qualifying
facility has nondiscriminatory access
to the market if it is eligible for service under a Commission-approved open
access transmission tariff or Commission-filed reciprocity tariff, and Commission-approved
interconnection
rules. If the Commission determines
that a market meets the criteria of
§ 292.309(a)(1), (2) or (3), and if a qualifying facility in the relevant market is
eligible for service under a Commission-approved open access transmission
tariff or Commission-filed reciprocity
tariff, a qualifying facility may seek to
rebut the presumption of access to the
market by demonstrating, inter alia,
that it does not have access to the
market because of operational characteristics or transmission constraints.
(d)(1) For purposes of § 292.309(a)(1),
(2), and (3), there is a rebuttable presumption that a qualifying facility
with a capacity at or below 20
megawatts does not have nondiscriminatory access to the market.
(2) For purposes of implementing
paragraph (d)(1) of this section, the
Commission will not be bound by the
one-mile
standard
set
forth
in
§ 292.204(a)(2).
(e) Midwest Independent Transmission System Operator (Midwest
ISO), PJM Interconnection, L.L.C.
(PJM), ISO New England, Inc. (ISO–
NE), and New York Independent System Operator (NYISO) qualify as markets described in § 292.309(a)(1)(i) and
(ii), and there is a rebuttable presumption that qualifying facilities with a
capacity greater than 20 megawatts
have nondiscriminatory access to those
markets through Commission-approved
open access transmission tariffs and
interconnection rules, and that electric
utilities that are members of such regional transmission organizations or
independent system operators (RTO/
ISOs) should be relieved of the obligation to purchase electric energy from

844

VerDate Mar<15>2010

11:37 May 24, 2012

Jkt 226058

PO 00000

Frm 00854

Fmt 8010

Sfmt 8010

Y:\SGML\226058.XXX

226058

erowe on DSK2VPTVN1PROD with CFR

Federal Energy Regulatory Commission
the qualifying facilities. A qualifying
facility may seek to rebut this presumption by demonstrating, inter alia,
that:
(1) The qualifying facility has certain
operational characteristics that effectively prevent the qualifying facility’s
participation in a market; or
(2) The qualifying facility lacks access to markets due to transmission
constraints. The qualifying facility
may show that it is located in an area
where persistent transmission constraints in effect cause the qualifying
facility not to have access to markets
outside a persistently congested area
to sell the qualifying facility output or
capacity.
(f) The Electric Reliability Council of
Texas (ERCOT) qualifies as a market
described in § 292.309(a)(3), and there is
a rebuttable presumption that qualifying facilities with a capacity greater
than 20 megawatts have nondiscriminatory access to that market through
Public Utility Commission of Texas
(PUCT) approved open access protocols,
and that electric utilities that operate
within ERCOT should be relieved of the
obligation to purchase electric energy
from the qualifying facilities. A qualifying facility may seek to rebut this
presumption by demonstrating, inter
alia, that:
(1) The qualifying facility has certain
operational characteristics that effectively prevent the qualifying facility’s
participation in a market; or
(2) The qualifying facility lacks access to markets due to transmission
constraints. The qualifying facility
may show that it is located in an area
where persistent transmission constraints in effect cause the qualifying
facility not to have access to markets
outside a persistently congested area
to sell the qualifying facility output or
capacity.
(g) The California Independent System Operator and Southwest Power
Pool, Inc. satisfy the criteria of
§ 292.309(a)(2)(i).
(h) No electric utility shall be required, under this part, to enter into a
new contract or obligation to purchase
from or sell electric energy to a facility that is not an existing qualifying
cogeneration facility unless the facility meets the criteria for new quali-

§ 292.310
fying cogeneration facilities established by the Commission in § 292.205.
(i) For purposes of § 292.309(h), an
‘‘existing qualifying cogeneration facility’’ is a facility that:
(1) Was a qualifying cogeneration facility on or before August 8, 2005; or
(2) Had filed with the Commission a
notice of self-certification or self-recertification, or an application for
Commission
certification,
under
§ 292.207 prior to February 2, 2006.
(j) For purposes of § 292.309(h), a ‘‘new
qualifying cogeneration facility’’ is a
facility that satisfies the criteria for
qualifying cogeneration facilities pursuant to § 292.205.
[Order 688, 71 FR 64372, Nov. 1, 2006; 71 FR
75662, Dec. 18, 2006]

§ 292.310 Procedures for utilities requesting termination of obligation
to purchase from qualifying facilities.
(a) An electric utility may file an application with the Commission for relief from the mandatory purchase requirement under § 292.303(a) pursuant
to this section on a service territorywide basis. Such application shall set
forth the factual basis upon which relief is requested and describe why the
conditions set forth in § 292.309(a)(1), (2)
or (3) have been met. After notice, including sufficient notice to potentially
affected qualifying cogeneration facilities and qualifying small power production facilities, and an opportunity for
comment, the Commission shall make
a final determination within 90 days of
such application regarding whether the
conditions set forth in § 292.309(a)(1), (2)
or (3) have been met.
(b) Sufficient notice shall mean that
an electric utility must identify with
names and addresses all potentially affected qualifying facilities in an application filed pursuant to paragraph (a).
(c) An electric utility must submit
with its application for each potentially affected qualifying facility: The
docket number assigned if the qualifying facility filed for self-certification
or an application for Commission certification of qualifying facility status;
the net capacity of the qualifying facility; the location of the qualifying facility depicted by state and county, and

845

VerDate Mar<15>2010

11:37 May 24, 2012

Jkt 226058

PO 00000

Frm 00855

Fmt 8010

Sfmt 8010

Y:\SGML\226058.XXX

226058

erowe on DSK2VPTVN1PROD with CFR

§ 292.310

18 CFR Ch. I (4–1–12 Edition)

the name and location of the substation where the qualifying facility is
interconnected; the interconnection
status of each potentially affected
qualifying facility including whether
the qualifying facility is interconnected as an energy or a network
resource; and the expiration date of the
energy and/or capacity agreement between the applicant utility and each
potentially affected qualifying facility.
All potentially affected qualifying facilities shall include:
(1) Those qualifying facilities that
have existing power purchase contracts
with the applicant;
(2) Other qualifying facilities that
sell their output to the applicant or
that have pending self-certification or
Commission certification with the
Commission for qualifying facility status whereby the applicant will be the
purchaser of the qualifying facility’s
output;
(3) Any developer of generating facilities with whom the applicant has
agreed to enter into power purchase
contracts, as of the date of the application filed pursuant to this section, or
are in discussion, as of the date of the
application filed pursuant to this section, with regard to power purchase
contacts;
(4) The developers of facilities that
have pending state avoided cost proceedings, as of the date of the application filed pursuant to this section; and
(5) Any other qualifying facilities
that the applicant reasonably believes
to be affected by its application filed
pursuant to paragraph (a) of this section.
(d) The following information must
be filed with an application:
(1) Identify whether applicant seeks a
finding
under
the
provisions
of
§ 292.309(a)(1), (2), or (3).
(2) A narrative setting forth the factual basis upon which relief is requested and describing why the conditions set forth in § 292.309(a)(1), (2), or
(3) have been met. Applicant should
also state in its application whether it
is relying on the findings or rebuttable
presumptions contained in § 292.309(e),
(f) or (g). To the extent applicant seeks
relief from the purchase obligation
with respect to a qualifying facility 20
megawatts or smaller, and thus seeks

to rebut the presumption in § 292.309(d),
applicant must also set forth, and submit evidence of, the factual basis supporting its contention that the qualifying facility has nondiscriminatory
access to the wholesale markets which
are the basis for the applicant’s filing.
(3) Transmission Studies and related
information, including:
(i) The applicant’s long-term transmission plan, conducted by applicant,
or the RTO, ISO or other relevant entity;
(ii) Transmission constraints by
path, element or other level of comparable detail that have occurred and/
or are known and expected to occur,
and any proposed mitigation including
transmission construction plans;
(iii) Levels of congestion, if available;
(iv) Relevant system impact studies
for the generation interconnections, already completed;
(v) Other information pertinent to
showing whether transfer capability is
available; and
(vi) The appropriate link to applicant’s OASIS, if any, from which a
qualifying facility may obtain applicant’s available transfer capability
(ATC) information.
(4) Describe the process, procedures
and practices that qualifying facilities
interconnected to the applicant’s system must follow to arrange for the
transmission service to transfer power
to purchasers other than the applicant.
This description must include the process, procedures and practices of all distribution, transmission and regional
transmission facilities necessary for
qualifying facility access to the market.
(5) If qualifying facilities will be required to execute new interconnection
agreements, or renegotiate existing
agreements so that they can effectuate
wholesale sales to third-party purchasers, explain the requirements,
charges and the process to be followed.
Also, explain any differences in these
requirements as they apply to qualifying facilities compared to other generators, or to applicant-owned generation.
(6) Applicants seeking a Commission
finding pursuant to § 292.309(a)(2) or (3),
except those applicants located in

846

VerDate Mar<15>2010

11:37 May 24, 2012

Jkt 226058

PO 00000

Frm 00856

Fmt 8010

Sfmt 8010

Y:\SGML\226058.XXX

226058

Federal Energy Regulatory Commission
ERCOT, also must provide evidence of
competitive wholesale markets that
provide a meaningful opportunity to
sell capacity, including long-term and
short-term sales, and electric energy,
including long-term, short-term and
real-time sales, to buyers other than
the utility to which the qualifying facility is interconnected. In demonstrating that a meaningful opportunity to sell exists, provide evidence
of transactions within the relevant
market. Applicants must include a list
of known or potential purchasers, e.g.,
jurisdictional and non-jurisdictional
utilities as well as retail energy service
providers.
(7) Signature of authorized individual
evidencing the accuracy and authenticity of information provided by applicant.
(8) Person(s) to whom communications regarding the filed information
may be addressed, including name,
title, telephone number, and mailing
address.
[Order 688, 71 FR 64372, Nov. 1, 2006, as
amended by Order 688–A, 72 FR 35892, June
29, 2007]

erowe on DSK2VPTVN1PROD with CFR

§ 292.311 Reinstatement of obligation
to purchase.
At any time after the Commission
makes a finding under §§ 292.309 and
292.310 relieving an electric utility of
its obligation to purchase electric energy, a qualifying cogeneration facility, a qualifying small power production facility, a State agency, or any
other affected person may apply to the
Commission for an order reinstating
the electric utility’s obligation to purchase electric energy under this section. Such application shall set forth
the factual basis upon which the application is based and describe why the
conditions set forth in § 292.309(a), (b)
or (c) are no longer met. After notice,
including sufficient notice to potentially affected electric utilities, and
opportunity for comment, the Commission shall issue an order within 90 days
of such application reinstating the
electric utility’s obligation to purchase
electric energy under this section if the
Commission finds that the conditions
set forth in § 292.309(a), (b), or (c) which

§ 292.313
relieved the obligation to purchase, are
no longer met.
[Order 688, 71 FR 64372, Nov. 1, 2006]

§ 292.312 Termination of obligation to
sell to qualifying facilities.
(a) Any electric utility may file an
application with the Commission for
relief from the mandatory obligation
to sell under this section on a service
territory-wide basis or a single qualifying facility basis. Such application
shall set forth the factual basis upon
which relief is requested and describe
why the conditions set forth in paragraphs (b)(1) and (b)(2) of this section
have been met. After notice, including
sufficient notice to potentially affected
qualifying facilities, and an opportunity for comment, the Commission
shall make a final determination within 90 days of such application regarding
whether the conditions set forth in
paragraphs (b)(1) and (b)(2) of this section have been met.
(b) After August 8, 2005, an electric
utility shall not be required to enter
into a new contract or obligation to
sell electric energy to a qualifying
small power production facility, an existing qualifying cogeneration facility,
or a new qualifying cogeneration facility if the Commission has found that;
(1) Competing retail electric suppliers are willing and able to sell and
deliver electric energy to the qualifying cogeneration facility or qualifying small power production facility;
and
(2) The electric utility is not required
by State law to sell electric energy in
its service territory.
[Order 688, 71 FR 64372, Nov. 1, 2006; 71 FR
75662, Dec. 18, 2006]

§ 292.313 Reinstatement of obligation
to sell.
At any time after the Commission
makes a finding under § 292.312 relieving an electric utility of its obligation
to sell electric energy, a qualifying cogeneration facility, a qualifying small
power production facility, a State
agency, or any other affected person
may apply to the Commission for an
order reinstating the electric utility’s
obligation to purchase electric energy
under this section. Such application

847

VerDate Mar<15>2010

11:37 May 24, 2012

Jkt 226058

PO 00000

Frm 00857

Fmt 8010

Sfmt 8010

Y:\SGML\226058.XXX

226058

§ 292.314

18 CFR Ch. I (4–1–12 Edition)

shall set forth the factual basis upon
which the application is based and describe why the conditions set forth in
Paragraph (b)(1) and (b)(2) of this section are no longer met. After notice,
including sufficient notice to potentially affected utilities, and opportunity for comment, the Commission
shall issue an order within 90 days of
such application reinstating the electric utility’s obligation to sell electric
energy under this section if the Commission finds that the conditions set
forth in paragraphs (b)(1) and (b)(2) of
this section are no longer met.
[Order 688, 71 FR 64372, Nov. 1, 2006]

§ 292.314

Existing rights and remedies.

Nothing in this section affects the
rights or remedies of any party under
any contract or obligation, in effect or
pending approval before the appropriate State regulatory authority or
non-regulated electric utility on or before August 8, 2005, to purchase electric
energy or capacity from or to sell electric energy or capacity to a qualifying
cogeneration facility or qualifying
small power production facility under
this Act (including the right to recover
costs of purchasing electric energy or
capacity).
[Order 688, 71 FR 64372, Nov. 1, 2006]

Waivers.

(a) State regulatory authority and nonregulated electric utility waivers. Any
State regulatory authority (with respect to any electric utility over which
it has ratemaking authority) or nonregulated electric utility may, after
public notice in the area served by the
electric utility, apply for a waiver from
the application of any of the requirements of subpart C (other than § 292.302
thereof).
(b) Commission action. The Commission will grant such a wavier only if an
applicant under paragraph (a) of this
section demonstrates that compliance
with any of the requirements of subpart C is not necessary to encourage
cogeneration and small power production and is not otherwise required
under section 210 of PURPA.
[45 FR 12236, Feb. 25, 1980. Redesignated by
Order 541, 57 FR 21734, May 22, 1992]

Subpart E [Reserved]
Subpart F—Exemption of Qualifying Small Power Production
Facilities and Cogeneration
Facilities from Certain Federal
and State Laws and Regulations
§ 292.601 Exemption to qualifying facilities from the Federal Power Act.

Subpart D—Implementation
AUTHORITY: Public Utility Regulatory
Policies Act of 1978, 16 U.S.C. 2601 et seq., Energy Supply and Environmental Coordination Act, 15 U.S.C. 791 et seq., Federal Power
Act, 16 U.S.C. 792 et seq., Department of Energy Organization Act, 42 U.S.C. 7101 et seq.,
E.O. 12009, 42 FR 46267.
SOURCE: Order 69, 45 FR 12236, Feb. 25, 1980,
unless otherwise noted.

§ 292.401 Implementation of certain reporting requirements.

erowe on DSK2VPTVN1PROD with CFR

§ 292.402

Any electric utility which fails to
comply with the requirements of
§ 292.302(b) shall be subject to the same
penalties to which it may be subjected
for failure to comply with the requirements of the Commission’s regulations
issued under section 133 of PURPA.
[45 FR 12236, Feb. 25, 1980. Redesignated by
Order 541, 57 FR 21734, May 22, 1992]

(a) Applicability. This section applies
to qualifying facilities, other than
those described in paragraph (b) of this
section. This section also applies to
qualifying facilities that meet the criteria of section 3(17)(E) of the Federal
Power Act (16 U.S.C. 796(17)(E)), notwithstanding paragraph (b).
(b) Exclusion. This section does not
apply to a qualifying small power production facility with a power production
capacity
which
exceeds
30
megawatts, if such facility uses any
primary energy source other than geothermal resources.
(c) General rule. Any qualifying facility described in paragraph (a) of this
section shall be exempt from all sections of the Federal Power Act, except:
(1) Sections 205 and 206; however,
sales of energy or capacity made by
qualifying facilities 20 MW or smaller,

848

VerDate Mar<15>2010

11:37 May 24, 2012

Jkt 226058

PO 00000

Frm 00858

Fmt 8010

Sfmt 8010

Y:\SGML\226058.XXX

226058

Federal Energy Regulatory Commission
or made pursuant to a contract executed on or before March 17, 2006 or
made pursuant to a state regulatory
authority’s implementation of section
210 the Public Utility Regulatory Policies Act of 1978, 16 U.S.C. 824a–1, shall
be exempt from scrutiny under sections
205 and 206;
(2) Section 1–18, and 21–30;
(3) Sections 202(c), 210, 211, 212, 213,
214, 215, 220, 221 and 222;
(4) Sections 305(c); and
(5) Any necessary enforcement provision of part III of the Federal Power
Act (including but not limited to sections 306, 307, 308, 309, 314, 315, 316 and
316A) with regard to the sections listed
in paragraphs (c)(1), (2), (3) and (4) of
this section.
(Energy Security Act, Pub. L. 96–294, 94 Stat.
611 (1980) Public Utility Regulatory Policies
Act of 1978, 16 U.S.C. 2601, et seq., Energy
Supply and Environmental Coordination
Act, 15 U.S.C. 791, et seq., Federal Power Act,
as amended, 16 U.S.C. 792 et seq., Department
of Energy Organization Act, 42 U.S.C. 7101, et
seq.; E.O. 12009, 42 FR 46267)

erowe on DSK2VPTVN1PROD with CFR

[Order 135, 46 FR 19232, Mar. 30, 1981, as
amended by Order 569, 59 FR 40470, Aug. 9,
1994; Order 671, 71 FR 7868, Feb. 15, 2006; 72 FR
29063, May 24, 2007; Order 732, 75 FR 15966,
Mar. 30, 2010]

§ 292.602 Exemption to qualifying facilities from the Public Utility Holding Company Act of 2005 and certain State laws and regulations.
(a) Applicability. This section applies
to any qualifying facility described in
§ 292.601(a), and to any qualifying small
power production facility with a power
production capacity over 30 megawatts
if such facility produces electric energy solely by the use of biomass as a
primary energy source.
(b) Exemption from the Public Utility
Holding Company Act of 2005. A qualifying facility described in paragraph
(a) of this section or a utility geothermal small power production facility shall be exempt from the Public
Utility Holding Company Act of 2005, 42
U.S.C. 16,451–63.
(c) Exemption from certain State laws
and regulations. (1) Any qualifying facility described in paragraph (a) of this
section shall be exempted (except as
provided in paragraph (c)(2) of this section) from State laws or regulations respecting:

§ 294.101
(i) The rates of electric utilities; and
(ii) The financial and organizational
regulation of electric utilities.
(2) A qualifying facility may not be
exempted from State laws and regulations implementing subpart C.
(3) Upon request of a state regulatory
authority or nonregulated electric utility, the Commission may consider a
limitation on the exemptions specified
in paragraph (b)(1) of this section.
(4) Upon request of any person, the
Commission may determine whether a
qualifying facility is exempt from a
particular State law or regulation.
(Energy Security Act, Pub. L. 96–294, 94 Stat.
611 (1980) Public Utility Regulatory Policies
Act of 1978, 16 U.S.C. 2601, et seq., Energy
Supply and Environmental Coordination
Act, 15 U.S.C. 791, et seq., Federal Power Act,
as amended, 16 U.S.C. 792 et seq., Department
of Energy Organization Act, 42 U.S.C. 7101, et
seq.; E.O. 12009, 42 FR 46267)
[45 FR 12237, Feb. 25, 1980, as amended by
Order 135, 46 FR 19232, Mar. 30, 1981; Order
671, 71 FR 7869, Feb. 15, 2006; Order 671–A, 71
FR 30589, May 30, 2006; Order 732, 75 FR 15966,
Mar. 30, 2010; 77 FR 9842, Feb. 21, 2012]

PART
294—PROCEDURES
FOR
SHORTAGES OF ELECTRIC ENERGY AND CAPACITY UNDER
SECTION 206 OF THE PUBLIC
UTILITY REGULATORY POLICIES
ACT OF 1978
AUTHORITY: 5 U.S.C. 553; 16 U.S.C. 791a–825r;
42 U.S.C. 7107–7352.

§ 294.101 Shortages of electric energy
and capacity.
(a) Definition of shortages of electric
energy and capacity. For purposes of
this section, the term anticipated shortages of electric or energy means:
(1) Any situation anticipated to
occur in which the generating and bulk
purchased power capability of a public
utility will not be sufficient to meet its
anticipated demand plus appropriate
reserve margins and this shortage
would affect the utility’s capability
adequately to supply electric services
to its firm power wholesale customers;
or

849

VerDate Mar<15>2010

11:37 May 24, 2012

Jkt 226058

PO 00000

Frm 00859

Fmt 8010

Sfmt 8010

Y:\SGML\226058.XXX

226058