RM14-11-000 (published)

Federal Register / Vol. 79, No. 104 / Friday, May 30, 2014 / Proposed Rules
Issued in Renton, Washington, on May 15,
2014.
Michael Kaszycki,
Acting Manager, Transport Airplane
Directorate, Aircraft Certification Service.
[FR Doc. 2014–12613 Filed 5–29–14; 8:45 am]
BILLING CODE 4910–13–P

DEPARTMENT OF ENERGY
Federal Energy Regulatory
Commission
18 CFR Part 35
[Docket No. RM14–11–000]

Open Access and Priority Rights on
Interconnection Customer’s
Interconnection Facilities
Federal Energy Regulatory
Commission.
ACTION: Notice of proposed rulemaking.
AGENCY:

In this Notice of Proposed
Rulemaking, the Federal Energy
Regulatory Commission proposes to
amend its regulations to waive the Open
Access Transmission Tariff
requirements, the Open Access SameTime Information System requirements
its regulations, and the Standards of
Conduct requirements its regulations for

SUMMARY:

any public utility that is subject to such
requirements solely because it owns,
controls, or operates Interconnection
Customer’s Interconnection Facilities, in
whole or in part, and sells electric
energy from its Generating Facility, as
those terms are defined in the pro forma
Large Generator Interconnection
Procedures and the pro forma Large
Generator Interconnection Agreement
and adopted in Order No. 2003. The
Commission proposes to find that
requiring the filing of an Open Access
Transmission Tariff is not necessary to
prevent unjust or unreasonable rates or
unduly discriminatory behavior with
respect to Interconnection Customer’s
Interconnection Facilities over which
interconnection and transmission
services can be ordered pursuant to the
Federal Power Act.
DATES: Comments are due July 29, 2014.
ADDRESSES: You may submit comments,
identified by docket number and in
accordance with the requirements
posted on the Commission’s Web site,
http://www.ferc.gov. Comments may be
submitted by any of the following
methods:
• Agency Web site: Documents
created electronically using word
processing software should be filed in
native applications or print-to-PDF
format, and not in a scanned format, at

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http://www.ferc.gov/docs-filing/
efiling.asp.
• Mail/Hand Delivery: Commenters
unable to file comments electronically
must mail or hand deliver an original
copy of their comments to: Federal
Energy Regulatory Commission,
Secretary of the Commission, 888 First
Street NE., Washington, DC 20426.
These requirements can be found on the
Commission’s Web site, see, e.g., the
‘‘Quick Reference Guide for Paper
Submissions,’’ available at http://
www.ferc.gov/docs-filing/efiling.asp, or
via phone from FERC Online Support at
(202) 502–6652 or toll-free at 1–866–
208–3676.
FOR FURTHER INFORMATION CONTACT:
Becky Robinson (Technical
Information), Office of Energy Policy
and Innovation, Federal Energy
Regulatory Commission, 888 First
Street NE., Washington, DC 20426,
(202) 502–8868, Becky.Robinson@
ferc.gov.
Brian Gish (Legal Information), Office of
the General Counsel—Energy Markets,
Federal Energy Regulatory
Commission, 888 First Street NE.,
Washington, DC 20426, (202) 502–
8998, [email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
Paragraph
Nos.

I. Introduction ...........................................................................................................................................................................................
II. Background ...........................................................................................................................................................................................
A. Development of ICIF Policies ......................................................................................................................................................
B. Notice of Inquiry ...........................................................................................................................................................................
C. Comments on the Notice of Inquiry ............................................................................................................................................
III. The Need for Reform ..........................................................................................................................................................................
IV. Proposed Reform ................................................................................................................................................................................
A. Proposed New Processes for ICIF Access ...................................................................................................................................
1. Grant Blanket Waivers to Eligible ICIF Owners ...................................................................................................................
2. Provide Open Access and Establish Priority Rights to ICIF Through Sections 210 and 211 ...........................................
a. Procedures Under Sections 210 and 211 .......................................................................................................................
b. Application of Sections 210 and 211 to Requests for Service on ICIF .......................................................................
3. Safe Harbor for Early Years After ICIF Energization ...........................................................................................................
B. Affiliate Concerns .........................................................................................................................................................................
V. Information Collection Statement .......................................................................................................................................................
VI. Environmental Analysis .....................................................................................................................................................................
VII. Regulatory Flexibility Act Analysis .................................................................................................................................................
VIII. Comment Procedures .......................................................................................................................................................................
IX. Document Availability .......................................................................................................................................................................
Appendix A: List of Short Names of Commenters on the Federal Energy Regulatory Commission’s Notice of Inquiry on Open
Access and Priority Rights on Interconnection Facilities—Docket No. AD12–14–000, April 2012.

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147 FERC ¶ 61,123.
Notice of Proposed Rulemaking
May 15, 2014.
I. Introduction
1. In this Notice of Proposed
Rulemaking (Proposed Rule), the
Federal Energy Regulatory Commission
(FERC or Commission) proposes to

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amend its regulations to waive the Open
Access Transmission Tariff (OATT)
requirements of 18 CFR 35.28 (2013),
the Open Access Same-Time
Information System (OASIS)
requirements of Part 37 of its
regulations, 18 CFR 37 (2013), and the
Standards of Conduct requirements of
Part 358 of its regulations, 18 CFR 358
(2013), for any public utility that is

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subject to such requirements solely
because it owns, controls, or operates
Interconnection Customer’s
Interconnection Facilities (ICIF),1 in
whole or in part, and sells electric
1 The term ‘‘generator tie line’’ has often been
used in the past to refer to the facilities defined as
ICIF. The Commission uses the term ICIF in this
Proposed Rule.

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energy from its Generating Facility, as
those terms are defined in the pro forma
Large Generator Interconnection
Procedures (LGIP) and the pro forma
Large Generator Interconnection
Agreement (LGIA) 2 and adopted in
Order No. 2003.3 The Commission
proposes to find that requiring the filing
of an OATT is not necessary to prevent
unjust or unreasonable rates or unduly
discriminatory behavior with respect to
ICIF over which interconnection and
transmission services can be ordered
pursuant to sections 210, 211, and 212
of the Federal Power Act (FPA).4
2. Accordingly, with the goal of
reducing regulatory burdens and
promoting development of generating
facilities while continuing to ensure
open access to transmission facilities,
the Commission proposes to find that
those seeking transmission service over
ICIF that are subject to the proposed
blanket waiver discussed below must
follow procedures applicable to requests
for interconnection and/or transmission
service under sections 210, 211, and 212
of the FPA. This Proposed Rule also
proposes a five-year safe harbor period
during which an ICIF owner subject to
the blanket waiver discussed herein,
who initially has excess capacity on its
ICIF because it intends to serve its own
or its affiliates’ future phased generator
additions or expansions, may establish
a rebuttable presumption for priority
right over third parties to use that excess
capacity.
3. Based on input received following
a technical conference and a Notice of
Inquiry (NOI) related to the treatment of
ICIF, the Commission preliminarily
concludes that its policies that require
the ICIF owner to make excess capacity
available to third parties unless it can
2 Throughout this Proposed Rule, the terms LGIP
and LGIA refer to the pro forma versions of those
documents. The LGIA defines ICIF as ‘‘all facilities
and equipment, as identified in Appendix A of the
Standard Large Generator Interconnection
Agreement, that are located between the Generating
Facility and the Point of Change of Ownership,
including any modification, addition, or upgrades
to such facilities and equipment necessary to
physically and electrically interconnect the
Generating Facility to the Transmission Provider’s
Transmission System. Interconnection Customer’s
Interconnection Facilities are sole use facilities.’’
LGIA Article 1. The LGIP, in Section 1, contains
identical definitions to those in Article 1 of the
LGIA.
3 Standardization of Generator Interconnection
Agreements and Procedures, Order No. 2003, 68 FR
49845 (Aug. 19, 2003), FERC Stats. & Regs. ¶ 31,146
(2003), order on reh’g, Order No. 2003–A, 69 FR
15932 (Mar. 26, 2004), FERC Stats. & Regs. ¶ 31,160,
order on reh’g, Order No. 2003–B, 70 FR 265 (Jan.
4, 2005), FERC Stats. & Regs. ¶ 31,171 (2004), order
on reh’g, Order No. 2003–C, 70 FR 37661 (Jun. 30,
2005), FERC Stats. & Regs. ¶ 31,190 (2005), aff’d sub
nom. Nat’l Ass’n of Regulatory Util. Comm’rs v.
FERC, 475 F.3d 1277 (D.C. Cir. 2007).
4 16 U.S.C. 824i, 824j, and 824k (2012).

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justify its planned use of the line
impose risks and burdens on ICIF
owners and create regulatory
inefficiencies that are not necessary
given the goals that the Commission
seeks to achieve through such policies.
Specifically, the Commission’s current
policy has led ICIF owners to file
petitions for declaratory orders
demonstrating plans and milestones for
future generation development to
reserve for itself currently excess ICIF
capacity that it built with the intention
of using it for such purposes. In the vast
majority of cases, the Commission has
granted the petition, based on
confidential documentation filed by the
ICIF owner, with a limited description
of the plans and milestones the
Commission deemed dispositive.
Further, the Commission’s policy of
treating ICIF the same as other
transmission facilities for OATT
purposes, including the requirement to
file an OATT following a third-party
request, creates undue burden for ICIF
owners without a corresponding
enhancement of access given the ICIF
owner’s typical ability to establish
priority rights. We propose the
aforementioned reforms to re-balance
the burden on ICIF owners, while
maintaining access to available capacity
for third parties where appropriate.
II. Background
A. Development of ICIF Policies
4. Under section 201(b) of the FPA,
the Commission has jurisdiction over all
facilities used for the transmission of
electric energy in interstate commerce.5
Under section 201(e) of the FPA, any
person who owns or operates facilities
subject to the jurisdiction of the
Commission is a public utility.6 The
Commission is charged with the
responsibility under sections 205 and
206 of the FPA to ensure that a public
utility’s rates, charges, and
classifications are just and reasonable
and not unduly discriminatory or
preferential.7
5. In Order No. 888, the Commission,
relying upon its authority under
sections 205 and 206 of the FPA,
established nondiscriminatory open
access to electric transmission service as
the foundation necessary to develop
competitive bulk power markets in the
United States.8 Order No. 888 requires
5 16

U.S.C. 824(b).
201(f) of the FPA exempts certain
governmental entities and electric cooperatives
from being a public utility.
7 16 U.S.C. 824d and 824e.
8 Promoting Wholesale Competition Through
Open Access Non-Discriminatory Transmission
Services by Public Utilities; Recovery of Stranded
6 Section

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that all public utilities that own,
control, or operate transmission
facilities must offer transmission service
to all eligible customers under standard
terms and conditions.
6. Order No. 888, codified in section
35.28 of the Commission’s regulations,
requires that any public utility that
owns, controls, or operates facilities
used for the transmission of electric
energy in interstate commerce must file
an OATT and comply with other related
requirements. The Commission in Order
No. 888 did not specifically address
transmission facilities associated with
the interconnection of electric
generating units to the transmission
grid.
7. In Order No. 2003, the Commission
found that interconnection service plays
a crucial role in bringing much-needed
generation into the market to meet the
growing needs of electricity customers
and competitive electricity markets.9
The Commission reiterated that
‘‘[i]nterconnection is a critical
component of open access transmission
service,’’ and that ‘‘the Commission may
order generic interconnection terms and
procedures pursuant to its authority to
remedy undue discrimination and
preferences under Sections 205 and 206
of the Federal Power Act.’’ 10 The
Commission concluded that there was a
pressing need for a uniformly applicable
set of procedures and a pro forma
agreement to form the basis of
interconnection service for large
generators, and thus promulgated the
LGIP and the LGIA to be included in
every public utility’s OATT.11
8. The LGIA defines an
Interconnection Customer as ‘‘any
entity, including the Transmission
Provider, Transmission Owner or any of
Costs by Public Utilities and Transmitting Utilities,
Order No. 888, 61 FR 21540 (May 10, 1996), FERC
Stats. & Regs. ¶ 31,036 (1996), order on reh’g, Order
No. 888–A, 62 FR 12274 (Mar. 14, 1997), FERC
Stats. & Regs. ¶ 31,048, order on reh’g, Order No.
888–B, 81 FERC ¶ 61,248 (1997), order on reh’g,
Order No. 888–C, 82 FERC ¶ 61,046 (1998), aff’d in
relevant part sub nom. Transmission Access Policy
Study Group v. FERC, 225 F.3d 667 (D.C. Cir. 2000),
aff’d sub nom. New York v. FERC, 535 U.S. 1
(2002).
9 Order No. 2003, FERC Stats. & Regs. ¶ 31,146 at
P 11.
10 Id. PP 12, 20.
11 Order No. 2003 established rules for a Large
Generating Facility, defined as a generating facility
with a capacity of more than 20 MW. In Order No.
2006, the Commission established procedures and
a pro forma Small Generator Interconnection
Agreement for the interconnection of generation
resources no larger than 20 MW. Standardization of
Small Generator Interconnection Agreements and
Procedures, Order No. 2006, 70 FR 34100 (Jun. 13,
2005), FERC Stats. & Regs. ¶ 31,180, order on
reh’g, Order No. 2006–A, 70 FR 71760 (Nov. 30,
2005), FERC Stats. & Regs. ¶ 31,196 (2005), order on
clarification, Order No. 2006–B, 71 FR 42587 (Jul.
27, 2006), FERC Stats. & Regs. ¶ 31,221 (2006).

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Federal Register / Vol. 79, No. 104 / Friday, May 30, 2014 / Proposed Rules
the Affiliates or subsidiaries of either,
that proposes to interconnect its
Generating Facility with the
Transmission Provider’s Transmission
System.’’ Article 11.1 of the LGIA
provides that the ‘‘Interconnection
Customer shall design, procure,
construct, install, own and/or control
Interconnection Customer
Interconnection Facilities . . . at its sole
expense.’’ The LGIA defines
‘‘Interconnection Facilities’’ 12 as the:
Transmission Provider’s Interconnection
Facilities and the Interconnection Customer’s
Interconnection Facilities. Collectively,
Interconnection Facilities include all
facilities and equipment between the
Generating Facility and the Point of
Interconnection, including any modification,
additions or upgrades that are necessary to
physically and electrically interconnect the
Generating Facility to the Transmission
Provider’s Transmission System.
Interconnection Facilities are sole use
facilities and shall not include Distribution
Upgrades, Stand Alone Network Upgrades or
Network Upgrades.13

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9. In general, Interconnection
Facilities are constructed to enable a
generation facility or multiple
generation facilities to transmit power to
the integrated transmission grid.
Interconnection Facilities are typically
radial in nature, with a single point of
interconnection with the network grid,
and over which power flows in one
direction toward the transmission
grid.14 Depending on the circumstances,
Interconnection Facilities can be
relatively short,15 or can span
considerable distances and represent
significant transmission capacity.16
10. Pursuant to the definitions in the
LGIA and LGIP, those Interconnection
Facilities that are located between the
Point of Interconnection 17 with the grid
and the Point of Change of Ownership,18
12 Unless otherwise indicated, capitalized terms
herein have the same definition as in the
Commission’s LGIA or in the OATT, as applicable.
13 LGIA Article 1.
14 In limited circumstances, power may flow from
the grid to supply station power in the event no
power is being produced at the generating facility.
15 See, e.g., Southern Company Serv., Inc., Docket
No. ER12–554–000 (Jan. 6, 2012) (delegated letter
order) (involving an approximately 2000 foot
interconnection facility).
16 See, e.g., Bayonne Energy Center, 136 FERC
¶ 61,019 (2011) (involving a 345-kV interconnection
facility); Terra-Gen Dixie Valley, LLC, 132 FERC
¶ 61,215 (2010) (Terra-Gen I) (involving a 212-mile
interconnection facility).
17 The Point of Interconnection is defined in
Article 1 of the LGIA as the point where the
Interconnection Facilities connect to the
Transmission Provider’s Transmission System.
18 The Point of Change of Ownership is defined
in Article 1 of the LGIA as the point, as set forth
in Appendix A to the LGIA, where the
Interconnection Customer’s Interconnection
Facilities connect to the Transmission Provider’s
Interconnection Facilities. LGIP section 11.2 states

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and which are owned, controlled, or
operated by the Transmission Provider,
are the Transmission Provider’s
Interconnection Facilities. Article 11.2
of the LGIA specifies that the
‘‘Transmission Provider or
Transmission Owner shall design,
procure, construct, install, own and/or
control the Transmission Provider’s
Interconnection Facilities . . . at the
sole expense of the Interconnection
Customer.’’ Third-party use of the
Transmission Provider’s
Interconnection Facilities is governed
by Article 9.9.2 of the LGIA.19 This
provision permits the parties to
negotiate for a third party to use the
Transmission Provider’s
Interconnection Facilities and entitles
the Interconnection Customer to
compensation, based on pro rata usage,
for capital costs it incurred to construct
those facilities and for the associated
ongoing costs, including operation and
maintenance costs. Neither the LGIP nor
the LGIA contains provisions for thirdparty requests for use of ICIF.
11. In a series of cases since Order No.
2003 became effective, issues have been
raised regarding the extent to which, if
at all, third parties should be able to
have open access for transmission on
the facilities located between the
Generating Facility and the point at
which the Transmission Provider’s
Interconnection Facilities begin, i.e.,
ICIF. In these cases, the Commission has
required the ICIF owner to provide open
access transmission service over its
facilities. In Aero Energy, LLC,20 in
response to an application under
sections 210 and 211 of the FPA, the
Commission ordered the Sagebrush
Partnership (Sagebrush) to interconnect
with and provide transmission service
to a third party (Aero Energy, LLC) over
Sagebrush’s 46-mile, 230-kV ICIF that
connects its partners’ generation
resources to the grid. The Commission
ordered the parties to file an executed
that the Transmission Provider and Interconnection
Customer shall negotiate the provisions of the
appendices to the LGIA.
19 Article 9.9.2 provides that:
[I]f the Parties mutually agree, such agreement
not to be unreasonably withheld, to allow one or
more third parties to use Transmission Provider’s
Interconnection Facilities, or any part thereof,
Interconnection Customer will be entitled to
compensation for the capital expenses it incurred
in connection with the Interconnection Facilities
based upon the pro rata use of the Interconnection
Facilities by the Transmission Provider, all thirdparty users and the Interconnection Customer.
20 115 FERC ¶ 61,128 (2006) (Aero Proposed
Order), order granting modification, 116 FERC
¶ 61,149 (2006) (Aero Modification Order), final
order directing interconnection and transmission
service, 118 FERC ¶ 61,204 (2007), order denying
reh’g, 120 FERC ¶ 61,188 (2007) (Aero Rehearing
Order) (collectively, Aero).

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interconnection agreement and
transmission service agreement setting
forth the terms and conditions of
service.21
12. In Milford Wind Corridor, LLC, the
Commission noted that the fact that
facilities only interconnect a generator
to the grid does not eliminate the
requirement to file an OATT and to
provide open access transmission
service.22 However, the Commission
recognized that, in such cases, it has
granted waivers of the OATT
requirements on a case-by-case basis for
ICIF owners who demonstrate that their
ICIF are limited and discrete and there
is no outstanding request by a third
party to access the ICIF. The
Commission granted these waivers to
Milford Wind Corridor, LLC with
respect to its 88-mile 345-kV ‘‘generator
lead line.’’ 23
13. In Sky River, LLC, the Commission
rejected the filing of an executed
Common Facilities Agreement
providing a third party the right to
access and utilize Sky River, LLC’s
interest in a nine-mile 230-kV
‘‘generator tie-line.’’ Instead, the
Commission required that any service
by non-owners over the line must be
made pursuant to an OATT.24 The
Commission viewed the Common
Facilities Agreement as an attempt to
govern transmission service for an
unaffiliated third party outside the
context of an OATT.
14. At issue in these cases was
whether the entity that owns and/or
controls ICIF to serve its or its affiliates’
generation project or projects has any
priority right over third-party requesters
to use the capacity on its ICIF. Where an
owner of ICIF has specific, pre-existing
generator expansion plans with
milestones for construction of
21 Subsequently, the Commission granted marketbased rates to several Sagebrush affiliates on the
condition that Sagebrush file an OATT for its line
if any third party filed a request for service on the
line. EDFD Handsome-Lake, 127 FERC ¶ 61,243, at
P 15 (2009). Such a request was made, and
Sagebrush filed an OATT for its interconnection
facility. Sagebrush, a California Partnership, 130
FERC ¶ 61,093, order on reh’g, 132 FERC ¶ 61,234
(2010). Similarly, in Peetz Logan, the generation
owner filed an OATT in response to a request for
third-party interconnection and transmission
services over its existing 78.2-mile, 230-kV ICIF that
had been used to connect three affiliated wind
generation projects to the grid. Peetz Logan
Interconnect, LLC, 136 FERC ¶ 61,075 (2011) (Peetz
Logan). Also, in Terra-Gen, the generator owner of
a 214-mile, 230-kV radial interconnection facility
was ordered by the Commission to file an OATT in
response to a request for third-party transmission
service. Terra-Gen Dixie Valley, LLC, 134 FERC
¶ 61,027, order on reh’g 135 FERC ¶ 61,134 (2011)
(Terra Gen II).
22 129 FERC ¶ 61,149, at P 24 (2009) (Milford).
23 Id. PP 1, 27.
24 134 FERC ¶ 61,064 (2011) (Sky River).

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generation facilities and can
demonstrate that it has made material
progress toward meeting those
milestones, the Commission may grant
priority rights for excess capacity on the
ICIF for those future generation
projects.25 In Aero, before ordering
service over the Sagebrush line, the
Commission provided the opportunity
for the ICIF owner to demonstrate that
it had pre-existing contractual
obligations or other specific plans that
would prevent it from providing the
requested firm transmission service to
the third party.26 As a result, the
Commission found that one of the
Sagebrush partners had shown that it
had pre-existing expansion plans that, at
some future date, would require firm
transmission capacity, and that two
other Sagebrush partners had not shown
that they had pre-existing expansion
plans that will require additional
transmission capacity.27 Subsequently,
the Commission has considered, on a
case-by-case basis, petitions for
declaratory order requesting that an ICIF
owner be granted priority over thirdparties to use capacity on its ICIF.28 In
Milford, the Commission granted such
priority, finding that Milford had shown
that it had specific plans for phased
development of its generation. The
Commission in Milford summarized the
Aero precedent as providing that:
A transmission owner that filed specific
expansion plans with definite dates and
milestones for construction, and had made
material progress toward meeting its
milestones, had priority over later
transmission requests.29

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This required demonstration
necessary to claim priority rights has
25 Alta Wind, 134 FERC ¶ 61,109, at PP 16–17
(2011); Milford, 129 FERC ¶ 61,149 at P 22; Aero
Modification Order, 116 FERC ¶ 61,149 at P 28.
Such plans and initial progress also must pre-date
a valid request for service. Terra-Gen I, 132 FERC
¶ 61,215 at P 53.
26 Aero Modification Order, 116 FERC ¶ 61,149 at
P 28.
27 Specifically, one partner relied on a power
purchase agreement for 10 MW more than the
nameplate capacity of its existing project, but the
Commission did not grant priority rights, ruling that
a power purchase agreement was not evidence of
an expansion obligation and that the partner had
not presented evidence of milestones having been
met. Another partner argued that it had expansion
plans for one of its projects and had been working
to transfer transmission capacity from one of its
affiliated projects to another to accommodate its
currently unused wind turbines; however, the
Commission ruled that because this was a transfer
of transmission capacity between partners, the
required transmission capacity was accounted for
and included in the original allocation of
transmission capacity amongst the Sagebrush
partners, and that this possible expansion would
not need additional transmission.
28 See Milford, 129 FERC ¶ 61,149 at P 24; TerraGen I, 132 FERC ¶ 61,215 at P 49.
29 Milford, 129 FERC ¶ 61,149 at P 22.

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sometimes been referred to as the
‘‘specific plans and milestones’’
showing. In the past, some combination
of the following types of criteria has
proven acceptable to demonstrate that
an ICIF owner has specific expansion
plans with definite dates and milestones
for construction, and has made material
progress toward meeting its milestones:
requesting interconnection and
progressing with studies to interconnect
to the integrated transmission grid,
demonstrating site control, signing a
power purchase agreement, pursuing
financing options, and researching and/
or purchasing equipment.30
15. The Commission has also found
that an affiliate of the ICIF owner that
is developing its own generator projects
also may obtain priority rights to the
capacity on the ICIF by meeting the
‘‘specific plans and milestones’’
standard with respect to future use.31
This granting of priority rights preserves
the ability of the generation developer to
deliver its future output to the point of
interconnection with the integrated
transmission grid, so long as it can make
the relevant showing to the Commission
sufficient to justify priority.
B. Notice of Inquiry
16. On April 19, 2012, the
Commission issued a NOI seeking
comment on whether and, if so, how it
should revise its current policy
concerning open access and priority
rights for capacity on ICIF.32
Specifically, the Commission sought
comments on two alternative
approaches to govern third-party
requests for service and priority rights:
(1) Continued use of an OATT
framework with potential modification
and clarification, including the creation
of a pro forma tailored OATT and a
case-by-case determination on the
generation developer’s priority rights;
and (2) use of an LGIA/LGIP framework
in which the existing LGIA provisions
that govern third-party use of a
Transmission Provider’s
Interconnection Facilities would be
extended to ICIF (i.e., allowing parties
to mutually agree to the use of and
30 The Aero precedent cited above is the only
instance where the Commission has not granted
priority rights upon an attempted plans and
milestones demonstration.
31 See NextEra Energy Resources, LLC, 142 FERC
¶ 61,043, at P 26 (2013).
32 Open Access and Priority Rights on
Interconnection Facilities, 139 FERC ¶ 61,051
(2012). The Commission also held a technical
conference in March 2011 to explore, among other
things, the application of the Commission’s open
access policies to ‘‘generator lead lines’’ in the
instance when affiliated or unaffiliated third-party
generators seek to use these facilities. Priority Rights
to New Participant-Funded Transmission, March
15, 2011 Technical Conference, AD11–11–000.

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compensation for the facilities, with
disagreements coming to the
Commission for resolution).
17. These two options were intended
to capture the policy debate of whether,
given the changes in industry (e.g., the
development of variable energy
resources), and concerns over land-use,
the Commission should require ICIF
owners to provide comparable service
under known rates, terms, and
condition (i.e., an OATT) in response to
a request of a third party, or whether
such third-party access should be
obtained by negotiation with the owner
of the ICIF subject to the processes and
requirements of Order No. 2003,
including Commission resolution of
disputes.
C. Comments on the Notice of Inquiry
18. Twenty-five entities submitted
comments in response to the NOI.33
Most commenters raised concerns
regarding the Commission’s current
policy and agreed that the Commission
should change it. For example,
commenters expressed concerns that: (1)
The Commission’s current policy
creates regulatory disincentives for the
development of more efficient, high
voltage ICIF to access new generation by
dramatically expanding the potential
costs and responsibilities of generation
owners and increasing uncertainty
regarding planned future generation
phases; 34 (2) subjecting ICIF to open
access requirements places overly
burdensome transmission owner-type
requirements on generators who are not
in the business of providing
transmission service to third parties; 35
(3) the Commission’s pro forma OATT
is not well-suited to addressing a thirdparty request for access to ICIF because
ICIF do not serve the same purpose, and
cannot provide many of the same
services, as network transmission
facilities; 36 (4) treating these facilities
under the OATT framework blurs the
historical distinction between integrated
networked transmission facilities and
radial ICIF; 37 and (5) having third-party
access governed under separate OATTs
would complicate the third party’s
development because prospective
interconnecting generators would need
to make separate requests to seek
33 Appendix A provides a list of commenters and
name abbreviations used herein.
34 BP Wind at 6; E.ON at 20; EEI at 2, 8–9; EPSA
at 3, 16; LADWP at 3; NextEra at 10; NRG at 1–3;
Tenaska at 4–7.
35 BP Wind at 14; Duke at 3–5; EPSA at 7; First
Wind at 2; Invenergy at 20–21; NextEra at 10;
NJBPU at 4–5, 8; NRG at 1–3.
36 APPA at 7; AWEA at 5; Duke at 5, 13; EEI at
7–8; Invenergy at 7–8; NextEra at 9–10; Puget at 6;
SEIA at 2; TGP at 28.
37 LADWP at 3, 10.

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interconnection and transmission
service from the ICIF owner and then
further transmission service from the
Transmission Provider to transmit
energy on the transmission system.38
19. Commenters differed, however, in
their recommendations for specific
changes to Commission policy. Some
commenters supported the option of
creating a pro forma tailored OATT
suited to the use of ICIF for the
provision of open access transmission
service, noting that it: (1) Would reduce
the bureaucratic and financial burdens
associated with filing a pro forma
OATT, while preserving the spirit of the
Commission’s open access
requirements; 39 and (2) would ensure
that third-party requests for service on
ICIF provide for adequate transmission
planning and study and appropriate
contractual relationships between
Transmission Providers and
interconnection customers.40
20. Other commenters argued against
requiring any OATT for ICIF. They
argued, among other things, that: (1)
Mandating generator owners to assume
the role of Transmission Providers when
faced with third-party interconnection
requests creates regulatory disincentives
for the development of more efficient,
high voltage lead lines to access new
generation; 41 and (2) the current policy
of requiring an OATT is not legally
necessary 42 or it is beyond the
Commission’s statutory authority to
impose a blanket OATT approach on
independent generators that do not
voluntarily submit to the Commission’s
transmission service jurisdiction under
section 205.43
21. Other commenters supported an
LGIA/LGIP approach for ICIF access, in
which the existing LGIA provisions that
govern third-party use of a Transmission
Provider’s Interconnection Facilities
would be extended to ICIF. They argued
that: (1) A third party’s access to the
grid cannot be evaluated solely by
evaluating its use of the ICIF but must
also evaluate the third party’s ability to
interconnect with the networked
transmission system; (2) the networked
Transmission Provider has a more
holistic view of the transmission
system; (3) the Transmission Provider
has the necessary information and tools
to evaluate ICIF uses that are tied to the
networked Transmission Provider’s
administration of its interconnection

queue and its preparation of required
system studies; 44 (4) applying an LGIA/
LGIP framework to ICIF is
administratively easy to implement and
removes the current uncertainty
surrounding the Commission’s OATT
waiver process; 45 (5) using the LGIA/
LGIP approach will avoid placing the
overly burdensome requirements of an
OATT or tailored OATT framework on
ICIF owners; 46 (6) this approach will
not require the substantial staffing and
monetary resources that would be
necessary to establish an OATT, and
ensures that balancing authority and
Transmission Provider functions remain
with the most appropriate entity; 47 and
(7) the LGIA/LGIP framework provides
a more efficient method because it will
integrate any expanded use of the ICIF
with the existing Transmission
Provider’s planning process.48
22. Other commenters, however,
opposed the use of an LGIA/LGIP
framework for ICIF, arguing that: (1) It
would place the network Transmission
Provider in control of determining
access to the generator lead line, when
that utility may be a competitor, and
leave to the ICIF owner only a
determination of the rates it could
charge; 49 (2) the network Transmission
Provider is in no position to grant or
facilitate access to or over facilities that
it does not control or operate; 50 (3) the
Commission would have to address cost
recovery (for the increased burden of
managing interconnection requests),
cost allocation (between the ICIF owner
and third party), and the Transmission
Provider’s level of operational control
and the scope of responsibilities; 51 and
(4) the LGIA/LGIP approach would
inappropriately favor the ICIF owner’s
generation vis-a`-vis a third-party
generator because it would expand the
ICIF owner’s priority rights to the full
amount of the original interconnection
request.52
III. The Need for Reform
23. The Commission preliminarily
finds that the Commission’s current
OATT requirements as applied to ICIF
may impose risks and burdens on
generators and create regulatory
inefficiencies that are not necessary to
achieve the Commission’s open access
goals. As such, the Commission
preliminarily finds that the Commission
44 First

Wind at 6–7.
at 4; NRG at 14–17; Puget at 14–15.
at 9.
47 Puget at 14–15; E.ON at 2–3.
48 BPA at 1–5; MISO at 6.
49 Invenergy 9–12; TGP at 5.
50 ITC at 6–7.
51 CAISO at 2–3.
52 TAPS at 11.
45 BPA

38 AWEA

at 25; MISO at 5–6; Puget at 2–3.
at 2–4; TAPS at 2.
40 ITC at 7–9.
41 LADWP at 3.
42 EPSA at 2–4; First Wind at 2, 11; NRG at 5–
6; Tenaska at 2–3.
43 TGP at 1–2.
39 APPA

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requirements for achieving
nondiscriminatory access over ICIF
should be reformed to not discourage
competitive generation development
with unnecessary burdens, while
ensuring nondiscriminatory access by
eligible transmission customers.
Through this Proposed Rule, the
Commission seeks to reduce regulatory
burdens and promote development of
generation facilities while continuing to
ensure open access to transmission
facilities.
24. Through the technical conference
and NOI comments, as well as other
outreach efforts, the Commission has
identified concerns with respect to the
Commission’s current policy of
applying OATT requirements to ICIF.
The Commission recognizes that filing
and maintaining an OATT can be seen
as burdensome by ICIF owners who do
not see themselves, and do not want to
be, in the business of providing
transmission service. Adding an OATT
obligation to a generation project can
introduce an additional element of risk
for the developer and its lenders that
they would not have if the project were
not subject to the potential obligation to
file and maintain a transmission tariff.
25. The Commission also recognizes
that the pro forma OATT is not a very
good fit for the limited services that
could be provided over ICIF. A number
of sections of the pro forma OATT, such
as the provisions regarding network
service, ancillary services, and planning
requirements, are arguably inapplicable
to most or all ICIF owners. Although
ICIF owners may propose deviations
from the pro forma OATT, the
Commission’s existing process of
handling these proposed deviations on
a case-by-case basis could result in a
time-consuming proceeding with an
uncertain outcome.
26. An ICIF owner that has obtained
a waiver of the OATT is still required
to file an OATT within 60 days of a
request for service by a third party and
must begin interconnection studies.
That obligation can be triggered with a
minimal effort by a requester, which
may not sufficiently distinguish
customers who have a specific and
substantiated request for service from
those whose request is not as well
supported. The Commission is aware of
situations where the ICIF owner
received a request for service triggering
the requirement that the owner file an
OATT, but the requester then failed to
pursue any further development. This is
an additional risk for the ICIF owner.
27. Interconnecting with ICIF often
involves unique circumstances that
would benefit from negotiation of
individual access agreements. However,

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the current policy limits an ICIF owner’s
contractual flexibility if it chooses to
provide third-party access by mutual
agreement. Specifically, the
Commission’s current policy requires
non-affiliated parties to enter into a
transmission service agreement, rather
than a common facilities agreement,
which can limit the form of rates, terms,
and conditions in important ways. For
instance, the third party would pay
average losses rather than incremental
losses. In addition, an ICIF owner is
required to openly offer third-party
service if it grants third-party use by
mutual agreement. This inflexibility
may limit the willingness of an ICIF
owner to enter into third-party use
agreements.
28. With respect to market-based rate
filings (initial filings, triennial updates,
and change of status filings), there is
often a lack of clarity under existing
policies as to whether applicants that
own ICIF or have affiliates that own ICIF
must file an OATT or seek a waiver
from OATT requirements in order to
show a lack of vertical market power
before the market-based rate order can
be processed.53
29. In addition, the Commission has
identified concerns with the pro forma
OATT’s requirement, in the absence of
native load, to award priority to use
available capacity on transmission
facilities based on the timing (i.e., firstcome-first-served) of the transmission
request. It is common for an ICIF owner
to initially have excess capacity on its
ICIF because it plans to bring generation
into commercial service in stages or
because transmission losses increase
dramatically when a transmission line
becomes fully loaded. Under the
Commission’s current policy, such ICIF
owners face the risk of losing that
capacity to a competing developer who
makes a request for service before the
ICIF owner is ready to use that capacity
for its own future phases.
30. The Commission has developed a
process for granting priority rights to the
ICIF owner for such excess capacity on
a case-by-case basis when the ICIF
owner files a petition for declaratory
order to establish such priority rights.
However, filing a petition for
declaratory order to establish priority
rights can be a significant burden for the
ICIF owner. The Commission’s current
policy of requiring a demonstration of
‘‘specific plans and milestones’’ to
establish priority rights can require
substantial effort and resources on the
53 To demonstrate the absence of vertical market
power in a market power analysis, a seller or its
affiliate that owns, operates, or controls
transmission facilities must have an OATT on file
unless waived. See 18 CFR 35.37(d) (2013).

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part of the ICIF owner to make the
necessary showings. In addition, the
criteria the Commission uses to
establish priority rights may appear as
vague to the public due to the reliance
on documentation filed as confidential.
31. Even with priority established
through a request for declaratory order,
under current policy, the ICIF owner
must still file an OATT if a transmission
request is filed. In other words, the
priority rights do not diminish the risk
that the ICIF owner may have to file an
OATT within 60 days of a request for
service.
32. The burdens and risks described
above fall on all ICIF owners, despite
the fact that it is unlikely that any third
party would request OATT service on
most ICIF. The Commission has issued
numerous individual orders granting
waivers of OATT, OASIS, and
Standards of Conduct to ICIF owners,
but in only four instances did a third
party request access on ICIF
necessitating the filing of an OATT.54
Although only a small percentage of
ICIF owners have actually had to file an
OATT, all ICIF owners are subject to the
additional risks and regulatory burdens
discussed above, including possibly
having to file an OATT on 60 days’
notice in response to a request for
service, and possibly losing some of the
ICIF capacity planned for future use to
a requesting third party. The
Commission preliminarily finds that
reforming its open access transmission
requirements in this narrow set of
circumstances is appropriate due to the
infrequency of third-party requests to
use ICIF. The Commission seeks
comments on whether and how the
burden for eligible ICIF owners of
potential OATT compliance bears on
the need to reform existing Commission
policies with respect to ICIF access.
IV. Proposed Reform
A. Proposed New Processes for ICIF
Access
33. The Commission proposes the
following approach for nondiscriminatory open access to ICIF to
replace the current case-by-case
approach for granting waivers of the
OATT and priority rights declarations.
The Commission believes this approach
will reduce regulatory burdens and
promote development of generation
facilities while continuing to ensure
open access to transmission facilities.
The elements of this proposal are as
described below.
54 Between January 1, 2009, and January 1, 2014,
the Commission issued approximately 80 orders
granting waiver of OATT, OASIS, and Standards of
Conduct requirements to ICIF owners.

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1. Grant Blanket Waivers to Eligible ICIF
Owners
34. The Commission’s current policy
is that, because ICIF are facilities used
for the transmission of electric energy in
interstate commerce, those who own,
control, or operate ICIF must either have
an OATT on file or receive a waiver of
the OATT requirement.55 Section
35.28(d) provides that any public utility
subject to OATT, OASIS, and Standards
of Conduct requirements may file a
request for a waiver for good cause
shown.56 The Commission has granted
such requests for waiver where the
public utility owns only limited and
discrete facilities or is a small utility.57
Even if a waiver of the OATT is granted
for ICIF, it is subject to the requirement
that, if a request for transmission service
over the facilities is made, the ICIF
owner would have to file an OATT
within 60 days of the request 58 and
comply with any additional
requirements then in effect for
compliance with Order Nos. 888 and
890.59 The ICIF owner would thus
become subject to all of the relevant pro
forma OATT requirements, unless it
successfully seeks and receives approval
for deviations from the pro forma
OATT.
35. The Commission proposes to add
sub-paragraph (d)(2) to 18 CFR 35.28 to
grant a blanket ICIF waiver of all OATT,
OASIS, and Standards of Conduct
55 See Milford, 129 FERC ¶ 61,149 at P 24 (noting
that the fact that the facilities merely tie a generator
to the grid does not render a line exempt from the
Commission’s regulation of transmission facilities).
See also Evergreen Wind Power III, LLC, 135 FERC
¶ 61,030, at P 15 n.18 (2011) (granting request for
waiver of the OATT requirement in the context of
a request for market-based rate authority).
56 The Commission has the general statutory
authority to waive its regulations as it may find
necessary or appropriate. UtiliCorp United, Inc. 99
FERC ¶ 61,280, at P 12 (2002); see also Pacific Gas
and Electric Co., 99 FERC ¶ 61,045, at P 5 (2002)
(‘‘It is however well established that, with or
without an explicit provision to that effect, an
agency may waive its regulations in appropriate
cases.’’).
57 See, e.g., Prairie Breeze Wind Energy LLC, 145
FERC ¶ 61,290, at P 26 (2013); Ebensburg Power
Company, 145 FERC ¶ 61,265, at P 27 (2013);
CSOLAR IV South, LLC, 143 FERC ¶ 61,275, at P 16
(2013).
58 Milford, 129 FERC ¶ 61,149 at P 27. See
Termoelectrica U.S., LLC, 105 FERC ¶ 61,087, at P
11 (2003); Black Creek Hydro, Inc., 77 FERC
¶ 61,232, at 61,941 (1996).
59 Preventing Undue Discrimination and
Preference in Transmission Service, Order No. 890,
72 FR 12266 (Mar. 15, 2007), FERC Stats. & Regs.
¶ 31,241, order on reh’g, Order No. 890–A, 73 FR
2984 (Jan. 16, 2008), FERC Stats. & Regs. ¶ 31,261
(2007), order on reh’g and clarification, Order No.
890–B, 73 FR 39092 (July 8, 2008), 123 FERC
¶ 61,299 (2008), order on reh’g, Order No. 890–C,
74 FR 12540 (Mar. 25, 2009), 126 FERC ¶ 61,228
(2009), order on clarification, Order No. 890–D, 74
FR 61511 (Nov. 25, 2009), 129 FERC ¶ 61,126
(2009).

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requirements to any public utility that is
subject to such requirements solely
because it owns, controls, or operates
ICIF, in whole or in part, and sells
electric energy from its Generating
Facility, as those terms are defined in
the LGIP and LGIA.60 The waiver would
apply to all eligible existing and future
ICIF owners. The Commission’s
proposal to limit the waiver to ICIF
owners who sell electric energy is
intended to ensure that any public
utility with an OATT blanket waiver
would be subject to both an
interconnection order under FPA
section 210 and a transmission order
under FPA section 211, as discussed
further below.
36. The Commission preliminarily
finds that a blanket ICIF waiver in these
circumstances is justified because the
usually limited and discrete nature of
ICIF and ICIF’s dedicated
interconnection purpose mean that such
facilities do not typically present all of
the concerns about discriminatory
conduct that the Commission’s OATT,
OASIS and Standards of Conduct
requirements were intended to address.
Because third-party requests to use ICIF
have been relatively rare, it is more
efficient to address such situations as
they arise on an individual basis.
37. Further, the ICIF waiver would
remove regulatory burdens on
competitive generation resources
without sacrificing the Commission’s
ability to require open access in
appropriate circumstances. Specifically,
we take this step to address concerns
that our current policy creates an undue
burden on ICIF owners to file an OATT
upon energizing the ICIF or seek a
waiver that would be revoked upon a
third-party request for service. As
discussed above, ICIF owners are
focused on developing new generation
resources. The time, effort and cost of
complying with the requirements of a
public utility transmission provider
unduly hinder generation development
efforts to the detriment of competition.
In addition, we agree with commenters
to the NOI and the technical conference
that the current policy creates too low
a bar for third-party requests for service.
Specifically, an existing waiver of the
OATT is revoked as soon as the ICIF
owner receives a third-party request for
service, even if that request meets few
of the information and other
requirements for transmission service
under the pro forma OATT. Finally, we
believe that providing an up-front
60 The

Commission also proposes to make nonsubstantive revisions to what is currently 18 CFR
35.28(d) in order to update certain cross-references
in that paragraph.

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waiver of the OATT for ICIF will clarify
the manner by which owners of these
facilities can address concerns about
vertical market power when they seek
market-based rate authority.
38. Unlike the current waivers for
‘‘limited and discrete’’ facilities, this
blanket waiver of the OATT would not
be automatically revoked if transmission
service is requested by a third party, but
could be revoked in a Commission order
if the Commission determines that it is
in the public interest to do so. The
waiver would also be deemed to be
revoked as of the date the public utility
ceases to satisfy the qualifications for
such waiver, e.g., it owns, controls, or
operates transmission facilities that are
not ICIF, or the corporate structure
changes such that the ICIF owner is no
longer the entity that sells electric
energy from its Generating Facility.
Thus, if material circumstances change
so that the ICIF owner no longer
satisfies the waiver qualifications, it
may no longer rely on this waiver. For
example, providing transmission service
not related to interconnecting a
generator to the grid, or the acquisition
of transmission facilities that are not
ICIF, would be indicators that there has
been a change in circumstances that
would make reliance on an ICIF waiver
of the OATT inappropriate.61
Determining whether the function of an
ICIF has evolved, and thus whether an
ICIF owner may continue to rely on its
ICIF waiver, may require case-by-case
assessment. We seek comment on the
circumstances under which and the
mechanism by which the Commission
should revoke the proposed waiver.
39. If the OATT waiver is revoked
because of such a change in
circumstances, the waivers of OASIS
and Standards of Conduct will also be
revoked, without prejudice to the ICIF
owner filing a request to continue its
waivers of OASIS and Standards of
Conduct pursuant to the waiver criteria
61 Cf. Golden Spread Electric Cooperative, Inc.,
139 FERC ¶ 61,067, at PP 3–5 (2012) (explaining
that the Commission several times granted
continued waiver of Order Nos. 888 and 889 to
Golden Spread Electric Cooperative, Inc. in
response to system changes). Specifically, in 2004,
Golden Spread acquired approximately 110 miles of
radial transmission facilities; in 2008, Golden
Spread acquired approximately 54.5 miles of radial
transmission facilities and constructed an
approximately 18.4 mile radial line; and in 2011,
Golden Spread acquired Golden Panhandle Wind
Ranch, LLC. Each time, the Commission granted
Golden Spread’s waiver requests based on the
representation that the transmission facilities were
limited and discrete and did not constitute an
integrated transmission system. In doing so, the
Commission noted its reliance on Golden Spread’s
representation that the transmission lines were only
used to provide bundled wholesale service to the
affected Golden Spread members and that the
power flowed in only one direction. Id. P 6.

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then in place.62 In the instance where
the Commission revokes the ICIF waiver
by order, it may determine whether the
OASIS and Standards of Conduct
waivers should be continued based on
the criteria then in place.
40. The grant of a blanket ICIF waiver
under the Proposed Rule would have no
automatic impact on an OATT already
on file or on service already being taken
under it, but the Commission might on
a case-by-case basis consider requests to
withdraw an OATT on file for ICIF if no
third party is taking service under it.
With regard to entities that already have
received a waiver of the OATT, the
blanket ICIF waiver would supersede an
existing waiver.
2. Provide Open Access and Establish
Priority Rights to ICIF Through Sections
210 and 211
41. Under this Proposed Rule and
subject to the safe harbor presumption
proposed below, if a third party seeks to
use the ICIF that are subject to the
blanket ICIF waiver, an eligible entity
seeking interconnection and
transmission service on ICIF would
need to follow the rules and regulations
applicable to requests for service under
sections 210 and 211.
a. Procedures Under Sections 210 and
211
42. Sections 210 and 211 of the FPA
describe the process for granting
interconnection and transmission
service in the absence of an OATT
governing these services. Section 210 of
the FPA provides, in relevant part,
‘‘Upon application of any electric utility
. . . the Commission may issue an order
requiring (A) the physical connection of
. . . the transmission facilities of any
electric utility, with the facilities of
such applicant.’’ 63 An ‘‘electric utility’’
is defined as ‘‘a person or Federal or
State agency . . . that sells electric
energy.’’ 64 Section 211 provides that
‘‘any electric utility, Federal power
marketing agency, or any other person
generating electric energy for sale or
resale’’ may apply to the Commission
for an order requiring a ‘‘transmitting
utility’’ to provide transmission
services, including enlargement of
facilities if necessary.65 The term
‘‘transmitting utility’’ is defined as an
entity that ‘‘owns, operates, or controls
facilities used for the transmission of
electric energy . . . in interstate
commerce . . . for the sale of electric
62 Waivers of the standards of conduct may be
granted for good cause pursuant to 18 CFR 358.1(d).
63 16 U.S.C. 824i(a)(1)(A).
64 16 U.S.C. 796(22).
65 16 U.S.C. 824j.

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energy at wholesale.’’ 66 For a third
party to obtain interconnection services
and transmission services, an
application must be made under both
sections 210 and 211.67 An applicant
may consolidate the applications for the
Commission’s consideration.68
43. As discussed above, under the
various provisions of the LGIA, ICIF
connect the Interconnection Customer’s
Generating Facility to the Point of
Interconnection. Consistent with these
definitions, to be eligible for the ICIF
waiver, the Interconnection Customer
that owns a Generating Facility must
also sell electric energy, and thus be
subject to section 210 of the FPA.
Further, that Interconnection Customer
must also own, control, or operate ICIF,
in whole or in part, used for
transmission for the sale of electric
energy at wholesale, and thus be subject
to section 211 of the FPA. To be eligible
for the blanket waiver discussed herein,
the ICIF owner must be subject to the
Commission’s authority under both
sections 210 and section 211.
44. An application under section 210
must: (1) Show that the interconnection
is in the public interest; (2) would either
encourage conservation of energy or
capital, optimize efficient use of
facilities and resources, or improve
reliability; and (3) meet the
requirements of section 212.69 The
requirements of section 212 are
discussed further below.
45. An application under section 211
requires that the third party seeking
transmission first make a good faith
request for service, complying with 18
CFR 2.20, specifying details as to how
much capacity is requested and for what
period, at least 60 days before making
an application to the Commission for an
order requiring transmission service.70
The Commission may grant an
66 16

U.S.C. 796(23).
Amigas LLC, 130 FERC ¶ 61,205, at P 43,
reh’g denied, 132 FERC ¶ 61,232 (2010). In Laguna
Irrigation District, the Commission explained that
‘‘[n]othing in our [section 210] interconnection
order requires transmission service. Rather,
transmission service will be obtained by Laguna
pursuant to other transmission tariffs or
agreements.’’ 95 FERC ¶ 61,305, at 62,038 (2001),
aff’d sub. nom., Pacific Gas & Electric Co. v. FERC,
44 Fed. Appx. 170 (9th Cir. 2002) (unpublished);
see also City of Corona, California v. Southern
California Edison Co., 104 FERC ¶ 61,085, at PP 7–
10 (2003) (Corona’s application under section 210
did not constitute a request for transmission under
section 211).
68 See Aero Proposed Order, 115 FERC ¶ 61,128.
69 16 U.S.C. 824i(c); Aero Proposed Order, 115
FERC ¶ 61,128 at PP 15–16.
70 See 16 U.S.C. 824j(a) (‘‘No order may be issued
under this subsection unless the applicant has
made a request for transmission services to the
transmitting utility that would be the subject of
such order at least 60 days prior to its filing of an
application for such order.’’); 18 CFR 2.20.

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application under section 211 if the
application is in the public interest and
otherwise meets the requirements under
section 212.
46. Section 212 further requires that,
before issuing a final order under either
section 210 or 211, the Commission
must issue a proposed order setting a
reasonable time for the parties to agree
to terms and conditions for carrying out
the order, including allocation of costs.
If parties can agree to terms within that
time, the Commission may issue a final
order approving those terms. If parties
do not agree, the Commission will
weigh the positions of the parties and
issue a final order establishing the terms
of costs, compensation, and other terms
of interconnection and transmission and
directing service.71
b. Application of Sections 210 and 211
to Requests for Service on ICIF
47. As discussed above, the
Commission’s current practice of
addressing third-party requests for
service is to allow the ICIF owner to
demonstrate ‘‘specific plans and
milestones’’ for any planned future
generation development of the ICIF
owner or its affiliates. Consistent with
that practice, the Commission proposes
to find that, with respect to ICIF eligible
for the blanket waiver discussed above,
it is generally in the public interest
under sections 210 and 211 to allow an
ICIF owner to retain priority rights to
the use of excess capacity on ICIF that
it plans to use to interconnect its own
or its affiliates’ future generation
projects to the extent the ICIF owner can
demonstrate specific plans and
milestones for its and/or its affiliates’
future use of the ICIF. Thus, the
Commission will be making priority
determinations in the section 210 and
211 process. The Commission seeks
comment on whether an ICIF owner’s or
affiliate’s planned future use of the ICIF
is an appropriate consideration to factor
into a section 210 or 211 proceeding.
48. Any disputes as to the extent of
excess capacity on ICIF or the ICIF
owner’s future plans to use such excess
capacity would be resolved, subject to
the safe harbor presumption discussed
below, during the proceedings under
sections 210 and 211, using an excess
capacity analysis similar to that used in
Aero and Milford, in which the ICIF
owner must demonstrate specific plans
and milestones for the future use of its
ICIF. However, unlike Aero and Milford,
the ICIF waiver proposed here would
71 16 U.S.C. 824k(c)(2); Aero Proposed Order, 115
FERC ¶ 61,128 at PP 17–18 (providing parties 28
days to negotiate and provide briefing on issues of
disagreement).

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not carry the automatic obligation to file
an OATT if transmission is requested;
rather, use of the framework under
sections 210 and 211 will allow third
parties to access the transmission
facilities after following the process set
forth under those provisions. The
Commission acknowledges that entities
have expressed concern with the plans
and milestones standard of Aero/Milford
for demonstrating priority rights, but
believes that use of the framework
under sections 210 and 211 and the safe
harbor presumption discussed below
will reduce the need for ICIF owners to
file petitions for declaratory order to
pre-emptively seek priority rights.
49. Further, using sections 210 and
211 will protect the ICIF owner from
non-serious requests for transmission
service by requiring the entity
requesting service to pursue processes
under sections 210 and 211, rather than
requiring an ICIF owner to file an OATT
upon a request for service. This
framework will assure eligible ICIF
owners that they will have specified
procedural rights as set forth in sections
210, 211, and 212 of the FPA. This
framework will also provide the
contractual flexibility that some
commenters suggest is not available
under our current policy so that
contractual arrangements (e.g.,
transmission service agreements,
interconnection agreements, and/or
shared facilities agreements) can be
tailored to the special situations for
ICIF. In addition, this framework will
provide for some flexibility in
determining the appropriate terms and
conditions of service, as many of the pro
forma OATT provisions are not
applicable to service over ICIF.
50. Under this proposal, the
Commission could order the eligible
ICIF owner to expand its facilities to
provide interconnection and
transmission service under sections 210
and 211 if no excess capacity is
available.72 Section 212 requires that the
eligible ICIF owners would be fully
compensated for any required
expansion.73 This is similar to the rights
72 16 U.S.C. 824i(a)(1)(D) (‘‘The Commission may
issue an order requiring . . . such increase in
transmission capacity as may be necessary . . ..’’);
16 U.S.C. 824j(a) (‘‘Any electric utility . . . may
apply to the Commission for an order under this
subsection requiring a transmitting utility to
provide transmission services (including any
enlargement of transmission capacity necessary to
provide such services) to the applicant.’’).
73 Section 212(a) provides that:
An order under section 211 shall require the
transmitting utility subject to the order to provide
wholesale transmission services at rates, charges,
terms, and conditions which permit the recovery by
such utility of all the costs incurred in connection
with the transmission services and necessary
associated services, including, but not limited to, an

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and obligations under the pro forma
OATT,74 so under the Proposed Rule
third parties will have substantively
similar rights, compared to the
Commission’s current policy, with
regard to situations where providing
interconnection and transmission
service entails expanding ICIF.
51. The Commission believes that the
section 210/211 process for requesting
service over ICIF protects the rights of
potential third-party requesters. The
proposed blanket waiver only applies in
situations where sections 210 and 211
would provide interconnection and
transmission access to a customer that
seeks service over the ICIF. To the
extent that either the third-party
requester or ICIF owner does not meet
applicable requirements for purposes of
sections 210 and 211, but where the
third-party requester would be eligible
for OATT service, the ICIF waiver
would not apply. The Commission
believes that there would be a relatively
small number of ICIF owners who could
not be subject to section 210 and 211
orders. The Commission seeks comment
on whether this limitation on which
public utilities can take advantage of the
blanket ICIF waiver is appropriate.
52. The Commission notes that an
ICIF owner that is not an electric utility
continues to have the option to seek
waiver of the OATT, OASIS, and
Standards of Conduct requirements on a
case-by-case basis. The Commission
seeks comment on what would be the
appropriate criteria and procedures for
granting such entities a waiver, and
whether and under what procedures the
safe harbor provision discussed below
could be extended to such entities. The
Commission also seeks comment on
whether a case-by-case process is
effective for addressing waivers to such
entities, or whether there are alternative,
more general structures by which the
Commission could appropriately apply
the blanket waiver to entities with a
broader set of ownership structures.
53. We note that a section 210 and/
or 211 proceeding would not necessarily
revoke the blanket ICIF waiver, and that
appropriate share, if any, of legitimate, verifiable
and economic costs, including taking into account
any benefits to the transmission system of providing
the transmission service, and the costs of any
enlargement of transmission facilities.
74 Section 15.4 of the pro forma OATT states:
If the Transmission Provider determines that it
cannot accommodate a Completed Application for
Firm Point-To-Point Transmission Service because
of insufficient capability on its Transmission
System, the Transmission Provider will use due
diligence to expand or modify its Transmission
System to provide the requested Firm Transmission
Service, consistent with its planning obligations in
Attachment K, provided the Transmission Customer
agrees to compensate the Transmission Provider for
such costs pursuant to the terms of Section 27.

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the Commission might direct service to
be provided under an interconnection
and/or transmission service agreement
without directing that the ICIF owner
file an OATT. However, the
Commission reserves the right to revoke
the blanket ICIF waiver and require the
filing of an OATT to ensure open access
in appropriate circumstances.
3. Safe Harbor for Early Years After ICIF
Energization
54. To reduce risks to ICIF owners
eligible for the blanket waiver discussed
above during the critical early years of
their projects, the Commission proposes
a safe harbor period of five years during
which there would be a rebuttable
presumption that: (1) The eligible ICIF
owner has definitive plans to use its
capacity without having to make a
demonstration through a specific plans
and milestones showing; and (2) the
eligible ICIF owner should not be
required to expand its facilities. A thirdparty requester 75 for service on ICIF
during the safe harbor period could
attempt to rebut these presumptions, but
it would have the burden of proof to
show that the owner and/or operator
does not have definitive plans to use its
capacity and the public interest under
sections 210 and 211 is better served by
granting access to the third party than
by allowing the eligible ICIF owner to
reserve its ICIF capacity for its own
future use.
55. We believe a safe harbor period
will address several concerns with our
current policy. Creating a safe harbor
period will reduce the risks of
developing phased generation projects,
as it will preserve the eligible ICIF
owner’s priority use of its ICIF capacity
during the safe harbor period when the
third-party requester fails to meet its
burden of proof and will allow the
eligible ICIF owner to demonstrate its
plans and milestones in the proceedings
under section 210 and 211. Creating the
safe harbor period will require greater
specificity for third-party requests for
service, so the eligible ICIF owner
would only be required to respond to
requests for service that are fully
developed and appropriate to the
circumstances. Doing so will allow an
eligible ICIF owner to focus on building
generation and achieving commercial
operation during the safe harbor period.
56. The Commission proposes that the
safe harbor period begin on the ICIF
energization date. Because the
energization date is not always publicly
available, we propose that any eligible
75 Such third-party requests for service could
include requests for firm, nonfirm, conditional, or
interim service. See, e.g., 18 CFR 2.20(b)(9).

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31069

ICIF owner seeking to take advantage of
the safe harbor must file an
informational filing with the
Commission (requiring no Commission
action) documenting: (1) The ICIF
energization date; (2) details sufficient
to identify the ICIF at issue, such as
location and Point of Interconnection;
and (3) identification of the ICIF owner.
For generators that are already operating
as of the effective date of the Final Rule
adopted in this proceeding, we propose
to allow them to seek safe harbor status
by filing at the Commission to
document the information listed above,
and that the safe harbor would expire
five years after the initial energization of
their ICIF. The Commission proposes
that eligible ICIF owners making such
an informational filing will be assigned
an ‘‘AD’’ docket prefix for these filings,
so that any interested third party will be
able to easily identify the relevant filing
and determine when a safe harbor is
applicable.
57. Where an application under
sections 210 and 211 is filed during a
safe harbor period and the Commission
determines that the applicant has not
successfully rebutted the presumption,
the Commission could dismiss the
application without prejudice to it being
refiled if circumstances change or after
the safe harbor period expires.
58. The Commission seeks comments
on whether a safe harbor period is
appropriate, and about the structure and
length of the safe harbor policy,
including how the ICIF energization
date should be reported. The
Commission also seeks comment on
whether ICIF owners that are not
eligible for the blanket waiver, but that
seek waiver on an individual basis of
the OATT, OASIS, and Standards of
Conduct, should be eligible for the safe
harbor.
B. Affiliate Concerns
59. The Commission seeks comment
as to the set of entities to which it is
appropriate to extend these reforms. As
mentioned above, the target of these
reforms is intended to be those
generators whose ownership/operation
of transmission facilities is limited to
ICIF. Should entities that meet this
description, but who are affiliated with
a public utility transmission provider,
be eligible for the blanket ICIF waiver
within or adjacent to a public utility’s
footprint? A potential concern is that
the availability of the blanket ICIF
waiver to affiliated generation could
incent vertically-integrated utilities to
structure their generation and
Interconnection Facilities developments
in such a way that inappropriately
limits access to certain facilities. If such

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concerns warrant limiting the blanket
ICIF waiver only to nonaffiliates of
public utility transmission providers
(within or adjacent to a public utility’s
footprint), the Commission is also
interested as to what would be the
appropriate mechanics of third-party
interest on affiliates’ ICIF (e.g.,
treatment of the facilities under the
vertically-integrated utility’s OATT or a
separate OATT).76
V. Information Collection Statement
60. The following collections of
information contained in this Proposed
Rule are subject to review by the Office
of Management and Budget (OMB)
under section 3507(d) of the Paperwork
Reduction Act of 1995.77 OMB’s
regulations require approval of certain
information collection requirements

imposed by agency rules.78 The
Commission solicits comments on the
Commission’s need for this information,
whether the information will have
practical utility, the accuracy of the
burden estimates, ways to enhance the
quality, utility, and clarity of the
information to be collected or retained,
and any suggested methods for
minimizing respondents’ burden,
including the use of automated
information techniques.
61. The proposed regulations give a
blanket waiver of OATT, OASIS, and
Standards of Conduct filing
requirements, and thus avoid both
individual filings to request waiver as
well as OATT filings. The Commission
also believes that the proposed
regulations will reduce the need for

eligible ICIF owners to file petitions for
declaratory order to pre-emptively seek
priority rights. Based upon a review of
the filings made over the past five years,
the Commission estimates a reduction of
eighteen filings per year, as shown in
the table below.
62. The Commission also recognizes
that, in order to avail themselves of the
safe harbor period described in the
Proposed Rule, most ICIF owners will
likely file a brief notification filing
documenting: (1) The energization date;
(2) details sufficient to identify the ICIF
at issue, such as location and Point of
Interconnection; and (3) identification
of the ICIF owner. The estimated public
reporting burdens for this proposed
reporting requirement are also in the
table below.

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RM14–11 (OPEN ACCESS AND PRIORITY RIGHTS ON INTERCONNECTION CUSTOMER’S INTERCONNECTION FACILITIES)
Number of
respondents

Annual
number of
responses per
respondent

Total number
of responses

Average
burden and
cost per
response 79

Total annual
burden hours
and total
annual cost

Average
cost per
respondent
($)

(1)

(2)

(1) * (2) = (3)

(4)

(3) * (4) = (5)

(5) ÷ (1)

Individual Requests for Waiver (FERC–
917) ......................................................

16

¥1

¥16

OATT Filings (FERC–917) .......................

1

¥1

¥1

Petitions for Declaratory Order requesting priority rights (FERC–582) .............

1

¥1

Safe Harbor Energize Date Filing (average of first three years) 80 (FERC–917)

39

Total ..................................................

........................

10
$910
100
$9,100

¥160
¥$14,560
¥100
¥$9,100

¥$910

¥1

30
$2,730

¥30
¥$2,730

¥$2,730

1

39

1
$91

39
$3,549

$91

........................

21

........................

¥251
¥$22,841

¥$12,649

¥$9,100

Cost to Comply: The Commission has
projected the cost of compliance with
the safe harbor energization date filing
to be $7,280 in the initial year and
$1,638 in subsequent years, as new ICIF
owners make safe harbor filings for their
newly energized projects. This is offset
by the reduction in burden associated
with the waiver of filing requirements of
$26,390 per year. As an average for the
first three years, this amounts to a net
reduction in burden of $22,841.

Total Annual Hours for Collection in
initial year (80 hours) @ $91 an hour =
$7,280
Total Annual Hours for Collection in
subsequent years (18 hours) @ $91 an
hour = $1,638.
Total Annual Hours for Reduced
Collection per year (290 hours) @ $91 an
hour = $26,390.
Title: FERC–917, Non-Discriminatory
Open Access Transmission Tariff
Action: Proposed Collection.

OMB Control No. 1902–0233
Respondents for this Rulemaking:
Businesses or other for profit and/or
not-for-profit institutions.
Frequency of Information: As
indicated in the table.
Necessity of Information: The Federal
Energy Regulatory Commission is
proposing changes to its regulations
related to which entities must file the
pro forma OATT, establish and
maintain an OASIS, and abide by its

76 See Termoelectrica U.S., LLC, 102 FERC
¶ 61,024, at P 28 (finding that Termoelectrica’s line
should be covered under the OATT of its adjacent,
affiliated public utility), order granting reh’g on
other grounds, 105 FERC ¶ 61,087 (2003) (granting
rehearing to waive OATT filing requirements for
Termoelectrica).
77 44 U.S.C. 3507(d).
78 5 CFR 1320.11 (2013).
79 The estimates for cost per response are derived
using the following formula: Average Burden Hours
per Response * $91 per Hour = Average Cost per
Response. The hourly cost figure represents a

combined hourly rate of an attorney ($128.39),
economist ($70.96), engineer ($59.87), and
administrative staff ($29.93), with a 50 percent
weighting on the attorney’s rate. The estimated
hourly costs (salary) are based on Bureau of Labor
and Statistics information (available at http://
www.bls.gov/oes/current/naics2_22.htm, and are
adjusted to include benefits by assuming that salary
accounts for 70.1 percent of total compensation).
See http://www.bls.gov/news.release/ecec.nr0.htm.
80 The average number of filings for the first three
years is computed as follows. The Commission
expects approximately 80 safe harbor filings in the
first year, which represents the number of waiver

filings over a historical five year period and thus
the approximate number of existing entities which
will be able to take advantage of the five year safe
harbor period as of the effective date of the Final
Rule in this proceeding. In the subsequent two
years, the Commission expects approximately 18
safe harbor filings per year, which represents the
historical number of OATT waiver filings (16),
OATT filings (1), and petitions for declaratory order
(1) per year. Going forward, we would expect the
Proposed Rule would avoid these filings and that
the relevant entities would instead avail themselves
of the proposed safe harbor period. The average of
the three year period then is (80 + 18 + 18)/3 = 39.

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Federal Register / Vol. 79, No. 104 / Friday, May 30, 2014 / Proposed Rules
Standards of Conduct in order to
eliminate unnecessary filings and
increase certainty for entities that
develop generation. The purpose of this
Proposed Rule is to reduce regulatory
burdens and promote development
while continuing to ensure open access
to transmission facilities. The safe
harbor energization date filing is
necessary to ensure transparency as to
the applicability of the safe harbor
period.
Internal Review: The Commission has
reviewed the proposed changes and has
determined that the changes are
necessary. These requirements conform
to the Commission’s need for efficient
information collection, communication,
and management within the energy
industry. The Commission has assured
itself, by means of internal review, that
there is specific, objective support for
the burden estimates associated with the
information collection requirements.
63. Interested persons may obtain
information on the reporting
requirements by contacting the
following: Federal Energy Regulatory
Commission, 888 First Street NE.,
Washington, DC 20426 [Attention: Ellen
Brown, Office of the Executive Director],
email: [email protected], Phone:
(202) 502–8663, fax: (202) 273–0873.
64. Comments on the collections of
information and the associated burden
estimates in the proposed rule should be
sent to the Commission in this docket
and may also be sent to the Office of
Information and Regulatory Affairs,
Office of Management and Budget, 725
17th Street NW., Washington, DC 20503
[Attention: Desk Officer for the Federal
Energy Regulatory Commission], at the
following email address: oira_
[email protected]. Please
reference OMB Control No. 1902–0096
and the docket number of this proposed
rulemaking in your submission.

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VI. Environmental Analysis
65. The Commission is required to
prepare an Environmental Assessment
or an Environmental Impact Statement
for any action that may have a
significant adverse effect on the human
environment.81 The Commission
concludes that neither an
Environmental Assessment nor an
Environmental Impact Statement is
required for this Proposed Rule under
section 380.4(a)(15) of the Commission’s
regulations, which provides a
categorical exemption for approval of
actions under sections 205 and 206 of
81 Regulations Implementing the National
Environmental Policy Act of 1969, Order No. 486,
52 FR 47897 (Dec. 17, 1987), FERC Stats. & Regs.
Regulations Preambles 1986–1990 ¶ 30,783 (1987).

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the FPA relating to the filing of
schedules containing all rates and
charges for the transmission or sale of
electric energy subject to the
Commission’s jurisdiction, plus the
classification, practices, contracts, and
regulations that affect rates, charges,
classifications, and services.82
VII. Regulatory Flexibility Act Analysis
66. The Regulatory Flexibility Act of
1980 (RFA) generally requires a
description and analysis of final rules
that will have a significant economic
impact on a substantial number of small
entities. The RFA mandates
consideration of regulatory alternatives
that accomplish the stated objectives of
a proposed rule and that minimize any
significant economic impact on a
substantial number of small entities.
The Small Business Administration’s
(SBA’s) Office of Size Standards
develops the numerical definition of a
small business.83 The SBA recently
revised its size standard for electric
utilities (effective January 22, 2014) to a
standard based on the number of
employees, including affiliates (from a
standard based on megawatt hours).84
Under SBA’s new size standards, ICIF
owners likely come under one of the
following categories and associated size
thresholds: 85
• Hydroelectric power generation, at
500 employees
• Fossil fuel electric power generation,
at 750 employees
• Other electric power generation (e.g.
solar, wind, geothermal, and others),
at 250 employees
67. According to US economic census
data,86 over half of the firms in the
categories above are small. However,
currently FERC does not have
information on how the economic
census data compares with entities
registered with NERC and is unable to
estimate the number of small ICIF
owners using the new SBA definitions.
Regardless, FERC recognizes that the
rule will likely impact small ICIF
owners and estimates the economic
impact on each entity below.
68. This Proposed Rule applies to
public utilities whose ownership,
control, or operation of transmission
facilities is limited to ICIF, as defined in
the standard generator interconnection
procedures and agreements referenced
in 18 CFR 35.28(f). Of these public
82 18

CFR 380.4(a)(15) (2013).
CFR 121.101 (2013).
84 SBA Final Rule on ‘‘Small Business Size
Standards: Utilities,’’ 78 FR 77343 (12/23/2013).
85 13 CFR 121.201, Sector 22, Utilities.
86 Data and further information is available from
SBA at http://www.sba.gov/advocacy/849/12162.
83 13

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31071

utilities, we conservatively estimate that
all will qualify as small. The
Commission estimates that each of the
small entities to whom the Proposed
Rule applies will incur one-time costs of
$91 87 to document its energization date
and thus avail itself of the safe harbor
provision. This is true for those existing
entities that have already received
waiver of the OATT prior to the
issuance of a Final Rule, as well as for
new entities. This cost will be offset for
new entities by a cost reduction, on
average, of $1,269.88 As the Commission
has previously explained, in
determining whether a regulatory
flexibility analysis is required, the
Commission is required to examine only
direct compliance costs that a
rulemaking imposes on small
business.89 It is not required to examine
indirect economic consequences, nor is
it required to consider costs that an
entity incurs voluntarily. The
Commission does not consider the
estimated costs per small entity to have
a significant economic impact on a
substantial number of small entities.
Accordingly, the Commission certifies
that the proposed rule will not have a
significant economic impact on a
substantial number of small entities.
VIII. Comment Procedures
69. The Commission invites interested
persons to submit comments on the
matters and issues proposed in this
notice to be adopted, including any
related matters or alternative proposals
that commenters may wish to discuss.
Comments are due July 29, 2014.
Comments must refer to Docket No.
RM14–11–000, and must include the
commenter’s name, the organization
represented, if applicable, and its
address in its comments.
70. The Commission encourages
comments to be filed electronically via
the eFiling link on the Commission’s
Web site at http://www.ferc.gov. The
Commission accepts most standard
word processing formats. Documents
created electronically using word
processing software should be filed in
native applications or print-to-PDF
format and not in a scanned format.
Commenters filing electronically do not
need to make a paper filing.
71. Commenters that are not able to
file comments electronically must send
87 $91 is calculated here as one hour of work at
an hourly rate of $91.
88 This reduced burden amount is calculated by
taking the total estimated burden reduction per
year, $22,841, and dividing by 18, the estimated
number of filings avoided because of the proposed
regulations.
89 Credit Reforms in Organized Wholesale Electric
Markets, 133 FERC ¶ 61,060, at P 184 (2010).

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an original copy of their comments to:
Federal Energy Regulatory Commission,
Secretary of the Commission, 888 First
Street NE., Washington, DC 20426.
72. All comments will be placed in
the Commission’s public files and may
be viewed, printed, or downloaded
remotely as described in the Document
Availability section below. Commenters
on this proposal are not required to
serve copies of their comments on other
commenters.
IX. Document Availability
73. In addition to publishing the full
text of this document in the Federal
Register, the Commission provides all
interested persons an opportunity to
view and/or print the contents of this
document via the Internet through
FERC’s Home Page (http://
www.ferc.gov) and in FERC’s Public
Reference Room during normal business
hours (8:30 a.m. to 5:00 p.m. Eastern
time) at 888 First Street NE., Room 2A,
Washington, DC 20426.
74. From FERC’s Home Page on the
Internet, this information is available on
eLibrary. The full text of this document
is available on eLibrary in PDF and
Microsoft Word format for viewing,
printing, and/or downloading. To access
this document in eLibrary, type the
docket number excluding the last three
digits of this document in the docket
number field.
75. User assistance is available for
eLibrary and the FERC’s Web site during
normal business hours from FERC
Online Support at (202) 502–6652 (toll
free at 1–866–208–3676) or email at
[email protected], or the
Public Reference Room at (202) 502–
8371, TTY (202) 502–8659. Email the
Public Reference Room at
[email protected].
List of Subjects in 18 CFR Part 35
Electric power rates; Electric utilities;
Reporting and recordkeeping
requirements.
By direction of the Commission.
Kimberly D. Bose,
Secretary.

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In consideration of the foregoing, the
Commission proposes to amend Part 35,
Chapter I, Title 18, Code of Federal
Regulations, as follows:
PART 35—FILING OF RATE
SCHEDULES AND TARIFFS
1. The authority citation for part 35
continues to read as follows:

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

2. Amend § 35.28 by revising
paragraph (d) to read as follows:

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16:22 May 29, 2014

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§ 35.28 Non-discriminatory open access
transmission tariff.

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(d) Waivers. (1) A public utility
subject to the requirements of this
section and 18 CFR parts 37 (Open
Access Same-Time Information System)
and 358 (Standards of Conduct for
Transmission Providers) for good cause
shown. Except as provided in paragraph
(f) of this section, an application for
waiver must be filed no later than 60
days prior to the time the public utility
would have to comply with the
requirement.
(2) The requirements of this section,
18 CFR parts 37 (Open Access SameTime Information System) and 358
(Standards of Conduct for Transmission
Providers) are waived for any public
utility that is or becomes subject to such
requirements solely because it owns,
controls, or operates Interconnection
Customer’s Interconnection Facilities, in
whole or in part, and sells electric
energy from its Generating Facility, as
those terms are defined in the standard
generator interconnection procedures
and agreements referenced in paragraph
(f) of this section.
(i) The waivers referenced in this
paragraph (d)(2) shall be deemed to be
revoked as of the date the public utility
ceases to satisfy the qualifications of
this paragraph (d)(2), and may be
revoked by the Commission if the
Commission determines that it is in the
public interest to do so. After revocation
of its waivers, the public utility must
comply with the requirements that had
been waived within 60 days of
revocation.
(ii) Any eligible entity that seeks
interconnection or transmission services
with respect to Interconnection
Customer’s Interconnection Facilities
for which a waiver is in effect pursuant
to this paragraph (d)(2) shall follow the
procedures in sections 210, 211, and
212 of the Federal Power Act and 18
CFR 2.20 and 18 CFR part 36. In any
proceeding pursuant to this paragraph
(d)(2)(ii):
(A) The Commission will consider it
to be in the public interest to grant
priority rights to the owner and/or
operator of Interconnection Customer’s
Interconnection Facilities to use
capacity thereon when such owner and/
or operator can demonstrate that it has
specific plans with milestones to use
such capacity to interconnect its or its
affiliate’s future generation projects.
(B) For the first five years after the
Interconnection Customer’s
Interconnection Facilities are energized,
the Commission will apply rebuttable
presumptions that:

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(1) The owner and/or operator of such
facilities has definitive plans to use the
capacity thereon, and it is thus in the
public interest to grant priority rights to
the owner and/or operator of such
facilities to use capacity thereon; and
(2) The owner and/or operator of such
facilities should not be required to
expand its facilities.
Note: The following appendices will not
appear in the Code of Federal Regulations.

Appendix A: List of Short Names of
Commenters on the Federal Energy
Regulatory Commission’s Notice of
Inquiry on Open Access and Priority
Rights on Interconnection Facilities—
Docket No. AD12–14–000, April 2012
Commenter (Short Name or Acronym)
American Public Power Association (APPA)
American Wind Energy Association (AWEA)
Bonneville Power Administration (BPA)
BP Wind Energy North America Inc. (BP
Wind)
California Independent System Operator
Corporation (CAISO)
Duke Energy Corporation (Duke)
Edison Electric Institute (EEI)
E.ON Climate & Renewables North America
(E.ON)
Electric Power Supply Association (EPSA)
First Wind Holdings, LLC (First Wind)
Invenergy Wind Development LLC and
Invenergy Thermal Development LLC
(Invenergy)
ITC Holdings Corp. (ITC)
Los Angeles Department of Water and Power
(LADWP)
Midwest Independent Transmission System
Operator, Inc. (MISO)
NextEra Energy Resources, LLC (NextEra)
New Jersey Board of Public Utilities (NJBPU)
The NRG Companies (NRG)
Puget Sound Energy, Inc. (Puget)
Recurrent Energy
San Diego Gas & Electric Company
Solar Energy Industries Association (SEIA)
Southwest Power Pool, Inc.
Tenaska Energy, Inc. (Tenaska)
TGP Development Company, LLC (TGP)
Transmission Access Policy Study Group
(TAPS)
[FR Doc. 2014–11946 Filed 5–29–14; 8:45 am]
BILLING CODE 6717–01–P

ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 745
[EPA–HQ–OPPT–2010–0173; FRL–9910–44]
RIN 2070–AJ56

Lead; Framework for Identifying and
Evaluating Lead-Based Paint Hazards
From Renovation, Repair, and Painting
Activities in Public and Commercial
Buildings
Environmental Protection
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