18 CFR 292

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18 CFR Part 292 (up to date as of 9/16/2026)
Regulations Under Sections 201 and 210 of the Public Utility Regulatory...

18 CFR Part 292 (Sept. 16, 2026)

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Title 18 —Conservation of Power and Water Resources
Chapter I —Federal Energy Regulatory Commission, Department of Energy
Subchapter K —Regulations Under the Public Utility Regulatory Policies Act of 1978
Part 292 Regulations Under Sections 201 and 210 of the Public Utility Regulatory
Policies Act of 1978 with Regard to Small Power Production and
Cogeneration
Subpart A General Provisions
§ 292.101 Definitions.
Subpart B Qualifying Cogeneration and Small Power Production Facilities
§ 292.201 Scope.
§ 292.202 Definitions.
§ 292.203 General requirements for qualification.
§ 292.204 Criteria for qualifying small power production facilities.
§ 292.205 Criteria for qualifying cogeneration facilities.
§ 292.207 Procedures for obtaining qualifying status.
§ 292.208 Special requirements for hydroelectric small power production facilities located at a
new dam or diversion.
§ 292.209 Exceptions from requirements for hydroelectric small power production facilities
located at a new dam or diversion.
§ 292.210 Petition alleging commitment of substantial monetary resources before October 16,
1986.
§ 292.211 Petition for initial determination on whether a project has a substantial adverse
effect on the environment (AEE petition).
Subpart C Arrangements Between Electric Utilities and Qualifying Cogeneration
and Small Power Production Facilities Under Section 210 of the Public
Utility Regulatory Policies Act of 1978
§ 292.301 Scope.
§ 292.302 Availability of electric utility system cost data.
§ 292.303 Electric utility obligations under this subpart.
§ 292.304 Rates for purchases.
§ 292.305 Rates for sales.
§ 292.306 Interconnection costs.
§ 292.307 System emergencies.
§ 292.308 Standards for operating reliability.
§ 292.309 Termination of obligation to purchase from qualifying facilities.
§ 292.310 Procedures for utilities requesting termination of obligation to purchase from
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18 CFR Part 292 (Sept. 16, 2026)

qualifying facilities.
§ 292.311 Reinstatement of obligation to purchase.
§ 292.312 Termination of obligation to sell to qualifying facilities.
§ 292.313 Reinstatement of obligation to sell.
§ 292.314 Existing rights and remedies.
Subpart D Implementation
§ 292.401 Implementation of certain reporting requirements.
§ 292.402 Waivers.
Subpart E [Reserved]
Subpart F Exemption of Qualifying Small Power Production Facilities and
Cogeneration Facilities from Certain Federal and State Laws and
Regulations
§ 292.601 Exemption to qualifying facilities from the Federal Power Act.
§ 292.602 Exemption to qualifying facilities from the Public Utility Holding Company Act of
2005 and certain State laws and regulations.

PART 292—REGULATIONS UNDER SECTIONS 201 AND 210 OF THE
PUBLIC UTILITY REGULATORY POLICIES ACT OF 1978 WITH
REGARD TO SMALL POWER PRODUCTION AND COGENERATION
Authority: 16 U.S.C. 791a-825r, 2601-2645; 31 U.S.C. 9701; 42 U.S.C. 7101-7352.

Subpart A—General Provisions
§ 292.101 Definitions.
(a) General rule. Terms defined in the Public Utility Regulatory Policies Act of 1978 (PURPA) shall have the
same meaning for purposes of this part as they have under PURPA, unless further defined in this part.
(b) Definitions. The following definitions apply for purposes of this part.
(1) Qualifying facility means a cogeneration facility or a small power production facility that is a
qualifying facility under Subpart B of this part.
(i)

A qualifying facility may include transmission lines and other equipment used for
interconnection purposes (including transformers and switchyard equipment), if:
(A) Such lines and equipment are used to supply power output to directly and indirectly
interconnected electric utilities, and to end users, including thermal hosts, in accordance
with state law; or

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18 CFR 292.101(b)(1)(i)(B)

(B) Such lines and equipment are used to transmit supplementary, standby, maintenance and
backup power to the qualifying facility, including its thermal host meeting the criteria set
forth in Union Carbide Corporation, 48 FERC ¶ 61,130, reh'g denied, 49 FERC ¶ 61,209
(1989), aff'd sub nom., Gulf States Utilities Company v. FERC, 922 F.2d 873 (D.C. Cir. 1991);
or
(C) If such lines and equipment are used to transmit power from other qualifying facilities or
to transmit standby, maintenance, supplementary and backup power to other qualifying
facilities.
(ii) The construction and ownership of such lines and equipment shall be subject to any applicable
Federal, state, and local siting and environmental requirements.
(2) Purchase means the purchase of electric energy or capacity or both from a qualifying facility by an
electric utility.
(3) Sale means the sale of electric energy or capacity or both by an electric utility to a qualifying facility.
(4) System emergency means a condition on a utility's system which is likely to result in imminent
significant disruption of service to customers or is imminently likely to endanger life or property.
(5) Rate means any price, rate, charge, or classification made, demanded, observed or received with
respect to the sale or purchase of electric energy or capacity, or any rule, regulation, or practice
respecting any such rate, charge, or classification, and any contract pertaining to the sale or
purchase of electric energy or capacity.
(6) Avoided costs means the incremental costs to an electric utility of electric energy or capacity or both
which, but for the purchase from the qualifying facility or qualifying facilities, such utility would
generate itself or purchase from another source.
(7) Interconnection costs means the reasonable costs of connection, switching, metering, transmission,
distribution, safety provisions and administrative costs incurred by the electric utility directly related
to the installation and maintenance of the physical facilities necessary to permit interconnected
operations with a qualifying facility, to the extent such costs are in excess of the corresponding
costs which the electric utility would have incurred if it had not engaged in interconnected
operations, but instead generated an equivalent amount of electric energy itself or purchased an
equivalent amount of electric energy or capacity from other sources. Interconnection costs do not
include any costs included in the calculation of avoided costs.
(8) Supplementary power means electric energy or capacity supplied by an electric utility, regularly used
by a qualifying facility in addition to that which the facility generates itself.
(9) Back-up power means electric energy or capacity supplied by an electric utility to replace energy
ordinarily generated by a facility's own generation equipment during an unscheduled outage of the
facility.
(10) Interruptible power means electric energy or capacity supplied by an electric utility subject to
interruption by the electric utility under specified conditions.
(11) Maintenance power means electric energy or capacity supplied by an electric utility during scheduled
outages of the qualifying facility.
(12) Locational marginal price means the price for energy at a particular location as determined in a
market defined in § 292.309(e), (f), or (g).
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18 CFR 292.101(b)(13)

(13) Competitive Price means a Market Hub Price or a Combined Cycle Price.
(14) Market Hub Price means a price for as-delivered energy determined pursuant to § 292.304(b)(7)(i).
(15) Combined Cycle Price means a price for as-delivered energy determined pursuant to §
292.304(b)(7)(ii).
(16) Competitive Solicitation Price means a price for energy and/or capacity determined pursuant to §
292.304(b)(8).
(Public Utility Regulatory Policies Act of 1978, 16 U.S.C. 2601 et seq., Energy Supply and Environmental
Coordination Act, 15 U.S.C. 791 et seq. Federal Power Act, 16 U.S.C. 792 et seq., Department of Energy Organization
Act, 42 U.S.C. 7101 et seq., E.O. 12009, 42 FR 46267)
[45 FR 12233, Feb. 25, 1980, as amended by Order 575, 60 FR 4856, Jan. 25, 1995; Order 872, 85 FR 54732, Sept. 2, 2020]

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

§ 292.201 Scope.
This subpart applies to the criteria for and manner of becoming a qualifying small power production facility and a
qualifying cogeneration facility under sections 3(17)(C) and 3(18)(B), respectively, of the Federal Power Act, as
amended by section 201 of the Public Utility Regulatory Policies Act of 1978 (PURPA).
[45 FR 17972, Mar. 20, 1980]

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

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18 CFR 292.202(b)(3)

(3) Bituminous coal refuse that has an average heat content of 9,500 Btu per pound or less and has an
average ash content of 25 percent or more;
(4) Top or bottom subbituminous coal produced on Federal lands or on Indian lands that has been
determined to be waste by the United States Department of the Interior's Bureau of Land
Management (BLM) or that is located on non-Federal or non-Indian lands outside of BLM's
jurisdiction, provided that the applicant shows that the latter coal is an extension of that determined
by BLM to be waste.
(5) Coal refuse produced on Federal lands or on Indian lands that has been determined to be waste by
the BLM or that is located on non-Federal or non-Indian lands outside of BLM's jurisdiction, provided
that applicant shows that the latter is an extension of that determined by BLM to be waste.
(6) Lignite produced in association with the production of montan wax and lignite that becomes
exposed as a result of such a mining operation;
(7) Gaseous fuels, except:
(i)

Synthetic gas from coal; and

(ii) Natural gas from gas and oil wells unless the natural gas meets the requirements of § 2.400 of
this chapter;
(8) Petroleum coke;
(9) Materials that a government agency has certified for disposal by combustion;
(10) Residual heat;
(11) Heat from exothermic reactions;
(12) Used rubber tires;
(13) Plastic materials; and
(14) Refinery off-gas.
(c) Cogeneration facility means equipment used to produce electric energy and forms of useful thermal
energy (such as heat or steam), used for industrial, commercial, heating, or cooling purposes, through the
sequential use of energy;
(d) Topping-cycle cogeneration facility means a cogeneration facility in which the energy input to the facility is
first used to produce useful power output, and at least some of the reject heat from the power production
process is then used to provide useful thermal energy;
(e) Bottoming-cycle cogeneration facility means a cogeneration facility in which the energy input to the
system is first applied to a useful thermal energy application or process, and at least some of the reject
heat emerging from the application or process is then used for power production;
(f) Supplementary firing means an energy input to the cogeneration facility used only in the thermal process
of a topping-cycle cogeneration facility, or only in the electric generating process of a bottoming-cycle
cogeneration facility;
(g) Useful power output of a cogeneration facility means the electric or mechanical energy made available for
use, exclusive of any such energy used in the power production process;
(h) Useful thermal energy output of a topping-cycle cogeneration facility means the thermal energy:
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(1) That is made available to an industrial or commercial process (net of any heat contained in
condensate return and/or makeup water);
(2) That is used in a heating application (e.g., space heating, domestic hot water heating);
(3) That is used in a space cooling application (i.e., thermal energy used by an absorption chiller); or
(4) That is used by a fuel cell system with an integrated steam hydrocarbon reformation process for
production of fuel for electricity generation.
(i)

Total energy output of a topping-cycle cogeneration facility is the sum of the useful power output and
useful thermal energy output;

(j)

Total energy input means the total energy of all forms supplied from external sources;

(k) Natural gas means either natural gas unmixed, or any mixture of natural gas and artificial gas;
(l)

Oil means crude oil, residual fuel oil, natural gas liquids, or any refined petroleum products; and

(m) Energy input in the case of energy in the form of natural gas or oil is to be measured by the lower heating
value of the natural gas or oil.
(n) Electric utility holding company means a holding company, as defined in section 2(a)(7) of the Public Utility
Holding Company Act of 1935, 15 U.S.C. 79b(a)(7) which owns one or more electric utilities, as defined in
section 2(a)(3) of that Act, 15 U.S.C. 79b(a)(3), but does not include any holding company which is
exempt by rule or order adopted or issued pursuant to sections 3(a)(3) or 3(a)(5) of the Public Utility
Holding Company Act of 1935, 15 U.S.C. 79c(a)(3) or 79c(a)(5).
(o) Utility geothermal small power production facility means a small power production facility which uses
geothermal energy as the primary energy resource and of which more than 50 percent is owned either:
(1) By an electric utility or utilities, electric utility holding company or companies, or any combination
thereof.
(2) By any company 50 percent or more of the outstanding voting securities of which of which are
directly or indirectly owned, controlled, or held with power to vote by an electric utility, electric utility
holding company, or any combination thereof.
(p) New dam or diversion means a dam or diversion which requires, for the purposes of installing any
hydroelectric power project, any construction, or enlargement of any impoundment or diversion structure
(other than repairs or reconstruction or the addition of flashboards of similar adjustable devices);
(q) Substantial adverse effect on the environment means a substantial alteration in the existing or potential
use of, or a loss of, natural features, existing habitat, recreational uses, water quality, or other
environmental resources. Substantial alteration of particular resource includes a change in the
environment that substantially reduces the quality of the affected resources; and
(r) Commitment of substantial monetary resources means the expenditure of, or commitment to expend, at
least 50 percent of the total cost of preparing an application for license or exemption for a hydroelectric
project that is accepted for filing by the Commission pursuant to § 4.32(e) of this chapter. The total cost
includes (but is not limited to) the cost of agency consultation, environmental studies, and engineering
studies conducted pursuant to § 4.38 of this chapter, and the Commission's requirements for filing an
application for license exemption.
(s) Sequential use of energy means:
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(1) For a topping-cycle cogeneration facility, the use of reject heat from a power production process in
sufficient amounts in a thermal application or process to conform to the requirements of the
operating standard; or
(2) For a bottoming-cycle cogeneration facility, the use of reject heat from a thermal application or
process, at least some of which is then used for power production.
(t) Electrical generating equipment means all boilers, heat recovery steam generators, prime movers (any
mechanical equipment driving an electric generator), electrical generators, photovoltaic solar panels,
inverters, fuel cell equipment and/or other primary power generation equipment used in the facility,
excluding equipment for gathering energy to be used in the facility.
(Energy Security Act, Pub. L. 96-294, 94 Stat. 611 (1980) Public Utility Regulatory Policies Act of 1978, 16 U.S.C.
2601, et seq., Energy Supply and Environmental Coordination Act, 15 U.S.C. 791 et seq., Federal Power Act, as
amended, 16 U.S.C. 792 et seq., Department of Energy Organization Act, 42 U.S.C. 7101 et seq., E.O. 12009, 42 FR
46267)
[45 FR 17972, Mar. 20, 1980, as amended at 45 FR 33958, May 21, 1980; 45 FR 66789, Oct. 8, 1980; Order 135, 46 FR 19231, Mar.
30, 1981; 46 FR 32239, June 22, 1981; Order 499, 53 FR 27002, July 18, 1988; Order 575, 60 FR 4857, Jan. 25, 1995; Order 872, 85
FR 54732, Sept. 2, 2020; Order 874, 86 FR 8140, Feb. 4, 2021]

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

Paragraph (a) of this section; and

(ii) Section 292.208.
(2) [Reserved]
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18 CFR 292.203(d)

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

§ 292.204 Criteria for qualifying small power production facilities.
(a) Size of the facility —
(1) Maximum size. Except as provided in paragraph (a)(4) of this section, the power production capacity
of a facility for which qualification is sought, together with the power production capacity of any
other small power production qualifying facilities that use the same energy resource, are owned by
the same person(s) or its affiliates, and are located at the same site, may not exceed 80 megawatts.
(2) Method of calculation.
(i)
(A) For purposes of this paragraph (a)(2), there is an irrebuttable presumption that affiliated
small power production qualifying facilities that use the same energy resource and are
located one mile or less from the facility for which qualification or recertification is sought
are located at the same site as the facility for which qualification or recertification is
sought.
(B) For purposes of this paragraph (a)(2), for facilities for which qualification or recertification
is filed on or after December 31, 2020 there is an irrebuttable presumption that affiliated
small power production qualifying facilities that use the same energy resource and are
located 10 miles or more from the facility for which qualification or recertification is
sought are located at separate sites from the facility for which qualification or
recertification is sought.
(C) For purposes of this paragraph (a)(2), for facilities for which qualification or recertification
is filed on or after December 31, 2020, there is a rebuttable presumption that affiliated
small power production qualifying facilities that use the same energy resource and are
located more than one mile and less than 10 miles from the facility for which qualification
or recertification is sought are located at separate sites from the facility for which
qualification or recertification is sought.
(D) For hydroelectric facilities, facilities are considered to be located at the same site as the
facility for which qualification or recertification is sought if they are located within one
mile of the facility for which qualification or recertification is sought and use water from
the same impoundment for power generation.

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18 CFR 292.204(a)(2)(ii)

(ii) For purposes of making the determinations in paragraph (a)(2)(i), the distance between two
facilities shall be measured from the edge of the closest electrical generating equipment for
which qualification or recertification is sought to the edge of the nearest electrical generating
equipment of the other affiliated small power production qualifying facility using the same
energy resource.
(3) Waiver. The Commission may modify the application of paragraph (a)(2) of this section, for good
cause.
(4) Exception. Facilities meeting the criteria in section 3(17)(E) of the Federal Power Act (16 U.S.C.
796(17)(E)) have no maximum size, and the power production capacity of such facilities shall be
excluded from consideration when determining the size of other small power production facilities
less than 10 miles from such facilities.
(b) Fuel use.
(1)
(i)

The primary energy source of the facility must be biomass, waste, renewable resources,
geothermal resources, or any combination thereof, and 75 percent or more of the total energy
input must be from these sources.

(ii) Any primary energy source which, on the basis of its energy content, is 50 percent or more
biomass shall be considered biomass.
(2) Use of oil, natural gas and coal by a facility, under section 3(17)(B) of the Federal Power Act, is
limited to the minimum amounts of fuel required for ignition, startup, testing, flame stabilization, and
control uses, and the minimum amounts of fuel required to alleviate or prevent unanticipated
equipment outages, and emergencies, directly affecting the public health, safety, or welfare, which
would result from electric power outages. Such fuel use may not, in the aggregate, exceed 25
percent of the total energy input of the facility during the 12-month period beginning with the date
the facility first produces electric energy and any calendar year subsequent to the year in which the
facility first produces electric energy.
(Energy Security Act, Pub. L. 96-294, 94 Stat. 611 (1980) Public Utility Regulatory Policies Act of 1978, 16 U.S.C.
2601, et seq., Energy Supply and Environmental Coordination Act, 15, U.S.C. 791, et seq., Federal Power Act, as
amended, 16 U.S.C. 792 et seq., Department of Energy Organization Act, 42 U.S.C. 7101, et seq.; E.O. 12009, 42 FR
46267)
[45 FR 17972, Mar. 20, 1980, as amended by Order 135, 46 FR 19231, Mar. 30, 1981; Order 575, 60 FR 4857, Jan. 25, 1995; Order
732, 75 FR 15966, Mar. 30, 2010; Order 872, 85 FR 54732, Sept. 2, 2020]

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

18 CFR 292.205(a)(2)(i)

For any topping-cycle cogeneration facility for which any of the energy input is natural gas or oil,
and the installation of which began on or after March 13, 1980, the useful power output of the
facility plus one-half the useful thermal energy output, during the 12-month period beginning
with the date the facility first produces electric energy, and any calendar year subsequent to the
year in which the facility first produces electric energy, must:
(A) Subject to paragraph (a)(2)(i)(B) of this section be no less than 42.5 percent of the total
energy input of natural gas and oil to the facility; or
(B) If the useful thermal energy output is less than 15 percent of the total energy output of the
facility, be no less than 45 percent of the total energy input of natural gas and oil to the
facility.

(ii) For any topping-cycle cogeneration facility not subject to paragraph (a)(2)(i) of this section
there is no efficiency standard.
(b) Efficiency standards for bottoming-cycle facilities.
(1) For any bottoming-cycle cogeneration facility for which any of the energy input as supplementary
firing is natural gas or oil, and the installation of which began on or after March 13, 1980, the useful
power output of the facility during the 12-month period beginning with the date the facility first
produces electric energy, and any calendar year subsequent to the year in which the facility first
produces electric energy must be no less than 45 percent of the energy input of natural gas and oil
for supplementary firing.
(2) For any bottoming-cycle cogeneration facility not covered by paragraph (b)(1) of this section, there is
no efficiency standard.
(c) Waiver. The Commission may waive any of the requirements of paragraphs (a) and (b) of this section
upon a showing that the facility will produce significant energy savings.
(d) Criteria for new cogeneration facilities. Notwithstanding paragraphs (a) and (b) of this section, any
cogeneration facility that was either not a qualifying cogeneration facility on or before August 8, 2005, or
that had not filed a notice of self-certification or an application for Commission certification as a
qualifying cogeneration facility under § 292.207 of this chapter prior to February 2, 2006, and which is
seeking to sell electric energy pursuant to section 210 of the Public Utility Regulatory Policies Act of 1978,
16 U.S.C. 824a-1, must also show:
(1) The thermal energy output of the cogeneration facility is used in a productive and beneficial manner;
and
(2) The electrical, thermal, chemical and mechanical output of the cogeneration facility is used
fundamentally for industrial, commercial, residential or institutional purposes and is not intended
fundamentality for sale to an electric utility, taking into account technological, efficiency, economic,
and variable thermal energy requirements, as well as state laws applicable to sales of electric energy
from a qualifying facility to its host facility.
(3) Fundamental use test. For the purpose of satisfying paragraph (d)(2) of this section, the electrical,
thermal, chemical and mechanical output of the cogeneration facility will be considered used
fundamentally for industrial, commercial, or institutional purposes, and not intended fundamentally
for sale to an electric utility if at least 50 percent of the aggregate of such output, on an annual basis,
is used for industrial, commercial, residential or institutional purposes. In addition, applicants for

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18 CFR 292.205(d)(4)

facilities that do not meet this safe harbor standard may present evidence to the Commission that
the facilities should nevertheless be certified given state laws applicable to sales of electric energy
or unique technological, efficiency, economic, and variable thermal energy requirements.
(4) For purposes of paragraphs (d)(1) and (2) of this section, a new cogeneration facility of 5 MW or
smaller will be presumed to satisfy the requirements of those paragraphs.
(5) For purposes of paragraph (d)(1) of this section, where a thermal host existed prior to the
development of a new cogeneration facility whose thermal output will supplant the thermal source
previously in use by the thermal host, the thermal output of such new cogeneration facility will be
presumed to satisfy the requirements of paragraph (d)(1).
[45 FR 17972, Mar. 20, 1980, as amended by Order 478, 52 FR 28467, July 30, 1987; Order 575, 60 FR 4857, Jan. 25, 1995; Order
671, 71 FR 7868, Feb. 15, 2006; Order 732, 75 FR 15966, Mar. 30, 2010; 76 FR 50663, Aug. 16, 2011]

§ 292.207 Procedures for obtaining qualifying status.
(a) Self-certification —
(1) FERC Form No. 556. The qualifying facility status of an existing or a proposed facility that meets the
requirements of § 292.203 may be self-certified by the owner or operator of the facility or its
representative by properly completing a FERC Form No. 556 and filing that form with the
Commission, pursuant to § 131.80 of this chapter, and complying with paragraph (e) of this section.
(2) Factors. For small power production facilities pursuant to § 292.204, the owner or operator of the
facility or its representative may, when completing the FERC Form No. 556, provide information
asserting factors showing that the facility for which qualification or recertification is sought is at a
separate site from other facilities using the same energy resource and owned by the same person(s)
or its affiliates.
(3) Commission action. Self-certification and self-recertification are effective upon filing. If no protests to
a self-certification or self-recertification are timely filed pursuant to paragraph (c) of this section, no
further action by the Commission is required for a self-certification or self-recertification to be
effective. If protests to a self-certification or self-recertification are timely filed pursuant to
paragraph (c) of this section, a self-certification or self-recertification will remain effective until the
Commission issues an order revoking QF certification. The Commission will act on the protest within
90 days from the date the protest is filed; provided that, if the Commission requests more
information from the protester, the entity seeking qualification or recertification, or both, the time for
the Commission to act will be extended to 60 days from the filing of a complete answer to the
information request. In addition to any extension resulting from a request for information, the
Commission also may toll the 90-day period for one additional 60-day period if so required to rule on
a protest. Authority to toll the 90-day period for this purpose is delegated to the Secretary or the
Secretary's designee. Absent Commission action before the expiration of the tolling period, a protest
will be deemed denied, and the self-certification or self-recertification will remain effective.
(b) Optional procedure —Commission certification—

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(1) Application for Commission certification. In lieu of the self-certification procedures in paragraph (a)
of this section, an owner or operator of an existing or a proposed facility, or its representative, may
file with the Commission an application for Commission certification that the facility is a qualifying
facility. The application must be accompanied by the fee prescribed by part 381 of this chapter, and
the applicant for Commission certification must comply with paragraph (c) of this section.
(2) General contents of application. The application must include a properly completed FERC Form No.
556 pursuant to § 131.80 of this chapter. For small power production facilities pursuant to §
292.204, the owner or operator of the facility or its representative may, when completing the FERC
Form No. 556, provide information asserting factors showing that the facility for which qualification
is sought is at a separate site from other facilities using the same energy resource and owned by the
same person(s) or its affiliates.
(3) Commission action.
(i)

Within 90 days of the later of the filing of an application or the filing of a supplement,
amendment or other change to the application, the Commission will either: Inform the applicant
that the application is deficient; or issue an order granting or denying the application; or toll the
time for issuance of an order. Any order denying certification shall identify the specific
requirements which were not met. If the Commission does not act within 90 days of the date of
the latest filing, the application shall be deemed to have been granted.

(ii) For purposes of paragraph (b) of this section, the date an application is filed is the date by
which the Office of the Secretary has received all of the information and the appropriate filing
fee necessary to comply with the requirements of this Part.
(c) Protests and Interventions —
(1) Filing a Protest. Any person, as defined in § 385.102(d) of this chapter, who opposes either a selfcertification or self-recertification making substantive changes to the existing certification filed
pursuant to paragraph (a) of this section or an application for Commission certification or
Commission recertification making substantive changes to the existing certification filed pursuant to
paragraph (b) of this section for which qualification or recertification is filed on or after December
31, 2020, may file a protest with the Commission. Any protest to and any intervention in a selfcertification or self-recertification must be filed in accordance with §§ 385.211 and 385.214 of this
chapter, on or before 30 days from the date the self-certification or self-recertification is filed. Any
protestor must concurrently serve a copy of such filing pursuant to § 385.211 of this chapter. Any
protest must be adequately supported, and provide any supporting documents, contracts, or
affidavits to substantiate the claims in the protest.
(2) Limitations on protest. Protests may be filed to any initial self-certification or application for
Commission certification filed on or after the effective date of this final rule, and to any selfrecertification or application for Commission recertification that are filed on or after December 31,
2020 that makes substantive changes to the existing certification. Once the Commission has
certified an applicant's qualifying facility status either in response to a protest opposing a selfcertification or self-recertification, or in response to an application for Commission certification or
Commission recertification, any later protest to a self-recertification or application for Commission
recertification making substantive changes to a qualifying facility's certification must demonstrate
changed circumstances that call into question the continued validity of the certification.
(d) Response to protests. Any response to a protest must be filed on or before 30 days from the date of filing
of that protest and will be allowed under § 385.213(a)(2) of this chapter.
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(e) Notice requirements —
(1) General. An applicant filing a self-certification, self-recertification, application for Commission
certification or application for Commission recertification of the qualifying status of its facility must
concurrently serve a copy of such filing on each electric utility with which it expects to interconnect,
transmit or sell electric energy to, or purchase supplementary, standby, back-up or maintenance
power from, and the State regulatory authority of each state where the facility and each affected
electric utility is located. The Commission will publish a notice in the FEDERAL REGISTER for each
application for Commission certification and for each self-certification of a cogeneration facility that
is subject to the requirements of § 292.205(d).
(2) Facilities of 500 kW or more. An electric utility is not required to purchase electric energy from a
facility with a net power production capacity of 500 kW or more until 90 days after the facility
notifies the facility that it is a qualifying facility or 90 days after the utility meets the notice
requirements in paragraph (c)(1) of this section.
(f) Revocation of qualifying status.
(1)
(i)

If a qualifying facility fails to conform with any material facts or representations presented by
the cogenerator or small power producer in its submittals to the Commission, the notice of selfcertification or Commission order certifying the qualifying status of the facility may no longer
be relied upon. At that point, if the facility continues to conform to the Commission's qualifying
criteria under this part, the cogenerator or small power producer may file either a notice of selfrecertification of qualifying status pursuant to the requirements of paragraph (a) of this section,
or an application for Commission recertification pursuant to the requirements of paragraph (b)
of this section, as appropriate.

(ii) The Commission may, on its own motion or on the motion of any person, revoke the qualifying
status of a facility that has been certified under paragraph (b) of this section, if the facility fails
to conform to any of the Commission's qualifying facility criteria under this part.
(iii) The Commission may, on its own motion or on the motion of any person, revoke the qualifying
status of a self-certified or self-recertified qualifying facility if it finds that the self-certified or
self-recertified qualifying facility does not meet the applicable requirements for qualifying
facilities.
(2) Prior to undertaking any substantial alteration or modification of a qualifying facility which has been
certified under paragraph (b) of this section, a small power producer or cogenerator may apply to the
Commission for a determination that the proposed alteration or modification will not result in a
revocation of qualifying status. This application for Commission recertification of qualifying status
should be submitted in accordance with paragraph (b) of this section.
[45 FR 17972, Mar. 20, 1980]

Editorial Note: For FEDERAL REGISTER citations affecting § 292.207, see the List of CFR Sections Affected, which
appears in the Finding Aids section of the printed volume and at www.govinfo.gov.

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§ 292.208 Special requirements for hydroelectric small power production facilities located at a
new dam or diversion.
(a) A hydroelectric small power production facility that impounds or diverts the water of a natural
watercourse by means of a new dam or diversion (as that term is defined in § 292.202(p)) is a qualifying
facility only if it meets the requirements of:
(1) Paragraph (b) of this section;
(2) Section 292.203(c); and
(3) Part 4 of this chapter.
(b) A hydroelectric small power production described in paragraph (a) is a qualifying facility only if:
(1) The Commission finds, at the time it issues the license or exemption, that the project will not have a
substantial adverse effect on the environment (as that term is defined in § 292.202(q)), including
recreation and water quality;
(2) The Commission finds, at the time the application for the license or exemption is accepted for filing
under § 4.32 of this chapter, that the project is not located on any segment of a natural watercourse
which:
(i)

Is included, or designated for potential inclusion in, a State or National wild and scenic river
system; or

(ii) The State has determined, in accordance with applicable State law, to possess unique natural,
recreational, cultural or scenic attributes which would be adversely affected by hydroelectric
development; and
(3) The project meets the terms and conditions set by the appropriate fish and wildlife agencies under
the same procedures as provided for under section 30(c) of the Federal Power Act.
(c) For the Commission to make the findings in paragraph (b) of this section an applicant must:
(1) Comply with the applicable hydroelectric licensing requirements in Part 4 of this chapter, including:
(i)

Completing the pre-filing consultation process under § 4.38 of this chapter, including
performing any environmental studies which may be required under §§ 4.38(b)(2)(i)(D) through
(F) of this chapter; and

(ii) Submitting with its application an environmental report that meets the requirements of §
4.41(f) of this chapter, regardless of project size;
(2) State whether the project is located on any segment of a natural watercourse which:
(i)

Is included in or designated for potential inclusion in:
(A) The National Wild and Scenic River System (28 U.S.C. 1271-1278 (1982)); or
(B) A State wild and scenic river system;

(ii) Crosses an area designated or recommended for designation under the Wilderness Act (16
U.S.C. 1132) as:
(A) A wilderness area; or
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(B) Wilderness study area; or
(iii) The State, either by or pursuant to an act of the State legislature, has determined to possess
unique, natural, recreational, cultural, or scenic attributes that would be adversely affected by
hydroelectric development.
(d) If the project is located on any segment of a natural watercourse that meets any of the conditions in
paragraph (c)(2) of this section, the applicant must provide the following information in its application:
(1) The date on which the natural watercourse was protected;
(2) The statutory authority under which the natural watercourse was protected; and
(3) The Federal or state agency, or political subdivision of the state, that is in charge of administering the
natural watercourse.
[Order 499, 53 FR 27003, July 18, 1988]

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

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

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(b) Subject to rebuttal under paragraph (d)(7)(ii) of this section, a showing of the commitment of substantial
monetary resources will be presumed if the applicant held a preliminary permit for the project and had
completed environmental consultations pursuant to § 4.38 of this chapter before October 16, 1986.
(c) Time of filing petition —
(1) General rule. Except as provided in paragraph (c)(2) of this section, the applicant must:
(i)

File the petition with the application for license or exemption; or

(ii) Submit with the application for license or exemption a request for an extension of time, not to
exceed 90 days or April 16, 1988, whichever occurs first, in which to file the petition.
(2) Exception. If the application for license or exemption was filed on or after October 16, 1986, but
before March 23, 1987, the petition must have been filed by June 22, 1987.
(d) Filing requirements. A petition filed under this section must include the following information or refer to
the pages in the application for license or exemption where it can be found:
(1) A certificate of service, conforming to the requirements set out in § 385.2010(h) of this chapter,
certifying that the applicant has served the petition on the Federal and State agencies required to be
consulted by the applicant pursuant to § 4.38 of this chapter;
(2) Documentation of any issued preliminary permits for the project;
(3) An itemized statement of the total costs expended on the application;
(4) An itemized schedule of costs the applicant expended, or committed to be expended, before October
16, 1986, on the application, accompanied by supporting documentation including but not limited to:
(i)

Dated invoices for maps, surveys, supplies, geophysical and geotechnical services, engineering
services, legal services, document reproduction, and other items related to the preparation of
the application, and

(ii) Written contracts and other written documentation demonstrating a commitment made before
October 16, 1986, to expend monetary resources on the preparation of the application, together
with evidence that those monetary resources were actually expended; and
(5) Correspondence or other documentation to support the items listed in paragraphs (d)(3) and (d)(4)
of this section to show that the expenses presented were directly related to the preparation of the
application.
(6) The applicant must include in its total cost statement and in its schedule of the costs expended or
committed to be expended before October 16, 1986, the value of services that were performed by
the applicant itself instead of contracted out.
(7)
(i)

If the applicant held a preliminary permit for the project and had completed pre-filing
consultation pursuant to § 4.38 of this chapter prior to October 16, 1986, the applicant may,
instead of submitting the information listed in paragraphs (d)(3), (d)(4), and (d)(5) of this
section, submit a statement identifying the preliminary permit by project number.

(ii) If any interested person objects (pursuant to § 385.211 of this chapter) to the presumption in
paragraph (b) of this section, the applicant must supply the information listed in paragraphs
(d)(3), (d)(4), and (d)(5) of this section.
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(8) If the application is deficient pursuant to § 4.32(e) of this chapter, the applicant must include with
the information correcting those deficiencies a statement of the costs expended to make the
corrections.
(e) Processing of petition.
(1) The Commission will issue a notice of the petition filed under this section and publish the notice in
the FEDERAL REGISTER. The petition will be available to inspect or to download on the Commission's
website, https://www.ferc.gov.
(2) Comments on the petition. The Commission will provide the public 45 days from the date the notice
of the petition is issued to submit comments. The applicant for license or exemption has 15 days
after the expiration of the public comment period to respond to the comments filed with the
Commission.
(3) Commission action on petition. The Director of the Office of Energy Projects will determine whether
or not the applicant for license or exemption has made the showing required under this section.
[Order 499, 53 FR 27003, July 18, 1988, as amended by Order 699, 72 FR 45325, Aug. 14, 2007; Order 899, 88 FR 74032, Oct. 30,
2023]

§ 292.211 Petition for initial determination on whether a project has a substantial adverse effect
on the environment (AEE petition).
(a) An applicant that has filed a petition under § 292.210 may also file an AEE petition with the Commission
for an initial determination on whether the project satisfies the requirement that it has no substantial
adverse effect on the environment as specified in § 292.208(b)(1).
(b) The filing of the AEE petition does not relieve the applicant of the filing requirements of § 292.208(c).
(c) The Commission will act on the AEE petition only if the Commission has granted the applicant's
commitment of resources petition under § 292.210.
(d) Time of filing petition. The applicant may file the AEE petition with the application for license or exemption
or at any time before the Commission issues the license or exemption.
(e) Contents of petition. The AEE petition must identify the project and request that the Commission make an
initial determination on the adverse environmental effects requirements in § 292.208(b)(1).
(f) The Director of the Office of Energy Projects will make the initial determination on the AEE petition. In
making this determination, the Director will consider the following:
(1) Any proposed mitigative measures;
(2) The consistency of the proposal with local, regional, and national resource plans and programs;
(3) The mandatory terms and conditions of fish and wildlife agencies under section 210(j) of PURPA, or
section 30(c) of the Federal Power Act; or the recommended terms and conditions of fish a wildlife
agencies under Section 10(j) of the Federal Power Act, whichever is appropriate; and
(4) Any other information which the Director believes is relevant to consider.
(g) Initial finding on the petition. The Director of the Office of Energy Projects will make the initial
determination on the AEE petition after the close of the public notice period for the accepted application.
If the Director's initial determination finds:
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(1) No substantial adverse effect on the environment, the Commission must wait at least 45 days before
making a final determination that the project satisfies the requirements of § 292.208(b)(1).
(2) A substantial adverse effect on the environment, the applicant may file, within 90 days of the initial
finding that the project does not satisfy the requirements in § 292.208(b)(1), proposed measures to
mitigate the adverse environmental effects found.
(3)
(i)

The Commission will provide written notice of the Director's initial finding on the petition to the
applicant, to the federal and state agencies that the applicant must consult under § 4.38 of this
chapter and to any intervenors in the proceeding.

(ii) The Commission will publish notice of the Director's initial finding in the FEDERAL REGISTER.
(h) Notice and comment on the mitigative measures.
(1) The Commission will issue notice of the mitigative measures filed by an applicant under paragraph
(g)(2) of this section and will publish the notice in the FEDERAL REGISTER. The mitigative measures will
be on file and available to inspect or to download on the Commission's website, https://www.ferc.gov.
(2) The Commission will provide the State and interested persons within 90 days from the date the
notice is issued to review and submit comments on the mitigative measures. The applicant for
license or exemption has 15 days after the expiration of the public comment period to respond to the
comments filed with the Commission.
(i)

Material amendments to application. The proposed mitigative measures filed under paragraph (g)(2) of
this section will not be considered a material amendment to the application unless the Commission finds
that the proposed measures are unnecessary to, or exceed the scope of, mitigating substantial adverse
effects. If the Commission finds the proposed mitigative measures constitute a material amendment, the
application will be considered filed with the Commission on the date on which the applicant filed the
proposed mitigative measures, and all other provisions of § 4.35(a) of this chapter will apply.

(j)

Final determination on the petition. The Commission will make a final determination on the petition at the
time the Commission issues a license or exemption for the project.

(k) Presumption.
(1) If, between the Commission's initial and final findings on the AEE petition, the State does not take any
action under § 292.208(b)(2), the failure to take action can be the basis for a presumption that there
is not substantial adverse effect on the environment (as that term is defined in § 292.202(q)).
(2) If the presumption in paragraph (k)(1) of this section comes into effect, it:
(i)

Is only available for those adverse effects related to the natural, recreational, cultural, or scenic
attributes of the environment;

(ii) Can only operate during the time between the Commission's initial and final findings on the AEE
petition; and
(iii) Has no affect on the Commission's independent obligation to find that the project will not have
a substantial adverse effect on the environment under § 292.208(b)(1).

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(3) The presumption in paragraph (k)(1) of this section does not take effect if the State, the Commission
or an interested person demonstrates that the State has acted to protect the natural watercourse
under § 292.208(b)(2).
(4) The presumption in paragraph (k)(1) of this section can be rebutted if:
(i)

The Commission determines that the project will have a substantial adverse effect on the
environment related to the environmental attributes listed in paragraph (k)(2)(i) of this section;
or

(ii) Any interested person, including a State, demonstrates that the project will have a substantial
adverse effect on the environment related to the environmental attributes listed in paragraph
(k)(2)(i) of this section.
[Order 499, 53 FR 27004, July 18, 1988, as amended by Order 499-A, 53 FR 40724, Oct. 18, 1988; Order 699, 72 FR 45325, Aug. 14,
2007; Order 899, 88 FR 74032, Oct. 30, 2023]

Subpart C—Arrangements Between Electric Utilities and Qualifying Cogeneration and Small
Power Production Facilities Under Section 210 of the Public Utility Regulatory Policies Act of
1978
Authority: Public Utility Regulatory Policies Act of 1978, 16 U.S.C. 2601 et seq., Energy Supply and Environmental
Coordination Act, 15 U.S.C. 791 et seq. Federal Power Act, 16 U.S.C. 792 et seq., Department of Energy
Organization Act, 42 U.S.C. 7101 et seq., E.O. 12009, 42 FR 46267.

Source: Order 69, 45 FR 12234, Feb. 25, 1980, unless otherwise noted.

§ 292.301 Scope.
(a) Applicability. This subpart applies to the regulation of sales and purchases between qualifying facilities
and electric utilities.
(b) Negotiated rates or terms. Nothing in this subpart:
(1) Limits the authority of any electric utility or any qualifying facility to agree to a rate for any purchase,
or terms or conditions relating to any purchase, which differ from the rate or terms or conditions
which would otherwise be required by this subpart; or
(2) Affects the validity of any contract entered into between a qualifying facility and an electric utility for
any purchase.

§ 292.302 Availability of electric utility system cost data.
(a) Applicability.
(1) Except as provided in paragraph (a)(2) of this section, paragraph (b) applies to each electric utility, in
any calendar year, if the total sales of electric energy by such utility for purposes other than resale
exceeded 500 million kilowatt-hours during any calendar year beginning after December 31, 1975,
and before the immediately preceding calendar year.

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

Provide comparable data to that required under paragraph (b) of this section to enable
qualifying facilities to estimate the electric utility's avoided costs for periods described in
paragraph (b) of this section; or

(ii) With regard to an electric utility which is legally obligated to obtain all its requirements for
electric energy and capacity from another electric utility, provide the data of its supplying utility
and the rates at which it currently purchases such energy and capacity.
(2) If any such electric utility fails to provide such information on request, the qualifying facility may
apply to the State regulatory authority (which has ratemaking authority over the electric utility) or the
Commission for an order requiring that the information be provided.
(d) Substitution of alternative method.
(1) After public notice in the area served by the electric utility, and after opportunity for public comment,
any State regulatory authority may require (with respect to any electric utility over which it has
ratemaking authority), or any non-regulated electric utility may provide, data different than those
which are otherwise required by this section if it determines that avoided costs can be derived from
such data.

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(2) Any State regulatory authority (with respect to any electric utility over which it has ratemaking
authority) or nonregulated utility which requires such different data shall notify the Commission
within 30 days of making such determination.
(e) State Review.
(1) Any data submitted by an electric utility under this section shall be subject to review by the State
regulatory authority which has ratemaking authority over such electric utility.
(2) In any such review, the electric utility has the burden of coming forward with justification for its data.
[45 FR 12234, Feb. 25, 1980; 45 FR 24126, Apr. 9, 1980]

§ 292.303 Electric utility obligations under this subpart.
(a) Obligation to purchase from qualifying facilities. Each electric utility shall purchase, in accordance with §
292.304, unless exempted by § 292.309 and § 292.310, any energy and capacity which is made available
from a qualifying facility:
(1) Directly to the electric utility; or
(2) Indirectly to the electric utility in accordance with paragraph (d) of this section.
(b) Obligation to sell to qualifying facilities. Each electric utility shall sell to any qualifying facility, in
accordance with § 292.305, unless exempted by § 292.312, energy and capacity requested by the
qualifying facility.
(c) Obligation to interconnect.
(1) Subject to paragraph (c)(2) of this section, any electric utility shall make such interconnection with
any qualifying facility as may be necessary to accomplish purchases or sales under this subpart.
The obligation to pay for any interconnection costs shall be determined in accordance with §
292.306.
(2) No electric utility is required to interconnect with any qualifying facility if, solely by reason of
purchases or sales over the interconnection, the electric utility would become subject to regulation
as a public utility under part II of the Federal Power Act.
(d) Transmission to other electric utilities. If a qualifying facility agrees, an electric utility which would
otherwise be obligated to purchase energy or capacity from such qualifying facility may transmit the
energy or capacity to any other electric utility. Any electric utility to which such energy or capacity is
transmitted shall purchase such energy or capacity under this subpart as if the qualifying facility were
supplying energy or capacity directly to such electric utility. The rate for purchase by the electric utility to
which such energy is transmitted shall be adjusted up or down to reflect line losses pursuant to §
292.304(e)(4) and shall not include any charges for transmission.
(e) Parallel operation. Each electric utility shall offer to operate in parallel with a qualifying facility, provided
that the qualifying facility complies with any applicable standards established in accordance with §
292.308.
[Order 688, 71 FR 64372, Nov. 1, 2006; 71 FR 75662, Dec. 18, 2006]

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

Be just and reasonable to the electric consumer of the electric utility and in the public interest;
and

(ii) Not discriminate against qualifying cogeneration and small power production facilities.
(2) Nothing in this subpart requires any electric utility to pay more than the avoided costs for purchases.
(b) Relationship to avoided costs.
(1) For purposes of this paragraph, “new capacity” means any purchase from capacity of a qualifying
facility, construction of which was commenced on or after November 9, 1978.
(2) Subject to paragraph (b)(3) of this section, a rate for purchases satisfies the requirements of
paragraph (a) of this section if the rate equals the avoided costs determined after consideration of
the factors set forth in paragraph (e) of this section
(3) A rate for purchases (other than from new capacity) may be less than the avoided cost if the State
regulatory authority (with respect to any electric utility over which it has ratemaking authority) or the
nonregulated electric utility determines that a lower rate is consistent with paragraph (a) of this
section, and is sufficient to encourage cogeneration and small power production.
(4) Rates for purchases from new capacity shall be in accordance with paragraph (b)(2) of this section,
regardless of whether the electric utility making such purchases is simultaneously making sales to
the qualifying facility.
(5) In the case in which the rates for purchases are based upon estimates of avoided costs over the
specific term of the contract or other legally enforceable obligation, the rates for such purchases do
not violate this subpart if the rates for such purchases differ from avoided costs at the time of
delivery.
(6) Locational Marginal Price. There is a rebuttable presumption that a state regulatory authority or
nonregulated electric utility may use a Locational Marginal Price as a rate for as-available qualifying
facility energy sales to electric utilities located in a market defined in § 292.309(e), (f), or (g).
(7) Competitive Price. A state regulatory authority or nonregulated electric utility may use a Competitive
Price as a rate for as-available qualifying facility energy sales to electric utilities located outside a
market defined in § 292.309(e), (f), or (g). A Competitive Price may be either a Market Hub Price or a
Combined Cycle Price, determined as follows:
(i)

A Market Hub Price is a price established at a liquid market hub which a state regulatory
authority or nonregulated electric utility determines represents an appropriate measure of the
electric utility's avoided cost for as-available energy, and is a hub to which the electric utility has
reasonable access, based on an evaluation by the state regulatory authority or nonregulated
electric utility of the relevant factors, including but not limited to the following:
(A) Whether the hub is sufficiently liquid that prices at the hub represent a competitive price;
(B) Whether prices developed at the hub are sufficiently transparent;

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(C) Whether the electric utility has the ability to deliver power from such hub to its load, even if
its load is not directly connected to the hub; and
(D) Whether the hub represents an appropriate market to derive an energy price for the electric
utility's purchases from the relevant qualifying facility given the electric utility's physical
proximity to the hub or other factors.
(ii) A Combined Cycle Price is a price determined pursuant to a formula established by a state
regulatory authority or nonregulated electric utility using published natural gas price indices, a
proxy heat rate, and variable operations and maintenance costs for an efficient natural gas
combined-cycle generating facility. Before establishing such a formula rate, a state regulatory
authority or nonregulated electric utility must determine that the resulting Combined Cycle
Price represents an appropriate measure of the purchasing electric utility's avoided cost for
energy, based on its evaluation of the relevant factors, including but not limited to the following:
(A) Whether the cost of energy from an efficient natural gas combined cycle generating facility
represents a reasonable measure of a competitive price in the purchasing electric utility's
region;
(B) Whether natural gas priced pursuant to particular proposed natural gas price indices
would be available in the relevant market;
(C) Whether there should be an adjustment to the natural gas price to appropriately reflect the
cost of transporting natural gas to the relevant market; and
(D) Whether the proxy heat rate used in the formula should be updated regularly to reflect
improvements in generation technology.
(8) Competitive Solicitation Price.
(i)

A state regulatory authority or nonregulated electric utility may use a price determined pursuant
to a competitive solicitation process to establish qualifying facility energy and/or capacity rates
for sales to electric utilities, provided that such competitive solicitation process is conducted
pursuant to procedures ensuring the solicitation is conducted in a transparent and nondiscriminatory manner including, but not limited to, the following:
(A) The solicitation process is an open and transparent process that includes, but is not
limited to, providing equally to all potential bidders substantial and meaningful information
regarding transmission constraints, levels of congestion, and interconnections, subject to
appropriate confidentiality safeguards;
(B) Solicitations are open to all sources, to satisfy that electric utility's capacity needs, taking
into account the required operating characteristics of the needed capacity;
(C) Solicitations are conducted at regular intervals;
(D) Solicitations are subject to oversight by an independent administrator; and
(E) Solicitations are certified as fulfilling the above criteria by the relevant state regulatory
authority or nonregulated electric utility through a post-solicitation report.

(ii) To the extent that the electric utility procures all of its capacity, including capacity resources
constructed or otherwise acquired by the electric utility, through a competitive solicitation
process conducted pursuant to paragraph (b)(8)(i) of this section, the electric utility shall be
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presumed to have no avoided capacity costs unless and until it determines to acquire capacity
outside of such competitive solicitation process. However, the electric utility shall nevertheless
be required to purchase energy from qualifying small power producers and qualifying
cogeneration facilities.
(iii) To the extent that the electric utility does not procure all of its capacity through a competitive
solicitation process conducted pursuant to paragraph (b)(8)(i) of this section, then there shall
be no presumption that the electric utility has no avoided capacity costs.
(c) Standard rates for purchases.
(1) There shall be put into effect (with respect to each electric utility) standard rates for purchases from
qualifying facilities with a design capacity of 100 kilowatts or less.
(2) There may be put into effect standard rates for purchases from qualifying facilities with a design
capacity of more than 100 kilowatts.
(3) The standard rates for purchases under this paragraph:
(i)

Shall be consistent with paragraphs (a) and (e) of this section; and

(ii) May differentiate among qualifying facilities using various technologies on the basis of the
supply characteristics of the different technologies.
(d) Purchases “as available” or pursuant to a legally enforceable obligation.
(1) Each qualifying facility shall have the option either:
(i)

To provide energy as the qualifying facility determines such energy to be available for such
purchases, in which case the rates for such purchases shall be based on the electric utility's
avoided cost for energy calculated at the time of delivery; or

(ii) To provide energy or capacity pursuant to a legally enforceable obligation for the delivery of
energy or capacity over a specified term, in which case the rates for such purchases shall,
except as provided in paragraph (d)(2) of this section, be based on either:
(A) The avoided costs calculated at the time of delivery; or
(B) The avoided costs calculated at the time the obligation is incurred.
(iii) The rate for delivery of energy calculated at the time the obligation is incurred may be based on
estimates of the present value of the stream of revenue flows of future locational marginal
prices, or Competitive Prices during the anticipated period of delivery.
(2) Notwithstanding paragraph (d)(1)(ii)(B) of this section, a state regulatory authority or nonregulated
electric utility may require that rates for purchases of energy from a qualifying facility pursuant to a
legally enforceable obligation vary through the life of the obligation, and be set at the electric utility's
avoided cost for energy calculated at the time of delivery.
(3) Obtaining a legally enforceable obligation. A qualifying facility must demonstrate commercial viability
and financial commitment to construct its facility pursuant to criteria determined by the state
regulatory authority or nonregulated electric utility as a prerequisite to a qualifying facility obtaining a
legally enforceable obligation. Such criteria must be objective and reasonable.
(e) Factors affecting rates for purchases.
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(1) A state regulatory authority or nonregulated electric utility may establish rates for purchases of
energy from a qualifying facility based on a purchasing electric utility's locational marginal price
calculated by the applicable market defined in § 292.309(e), (f), or (g), or the purchasing electric
utility's applicable Competitive Price. Alternatively, a state regulatory authority or nonregulated
electric utility may establish rates for purchases of energy and/or capacity from a qualifying facility
based on a Competitive Solicitation Price. To the extent that capacity rates are not set pursuant to
this section, capacity rates shall be set pursuant to subsection (2).
(2) To the extent that a state regulatory authority or nonregulated electric utility does not set energy and/
or capacity rates pursuant to paragraph (e)(1) of this section, the following factors shall, to the
extent practicable, be taken into account in determining rates for purchases from a qualifying
facility:
(i)

The data provided pursuant to § 292.302(b), (c), or (d), including State review of any such data;

(ii) The availability of capacity or energy from a qualifying facility during the system daily and
seasonal peak periods, including:
(A) The ability of the electric utility to dispatch the qualifying facility;
(B) The expected or demonstrated reliability of the qualifying facility;
(C) The terms of any contract or other legally enforceable obligation, including the duration of
the obligation, termination notice requirement and sanctions for non-compliance;
(D) The extent to which scheduled outages of the qualifying facility can be usefully
coordinated with scheduled outages of the electric utility's facilities;
(E) The usefulness of energy and capacity supplied from a qualifying facility during system
emergencies, including its ability to separate its load from its generation;
(F) The individual and aggregate value of energy and capacity from qualifying facilities on the
electric utility's system; and
(G) The smaller capacity increments and the shorter lead times available with additions of
capacity from qualifying facilities; and
(iii) The relationship of the availability of energy or capacity from the qualifying facility as derived in
paragraph (e)(2)(ii) of this section, to the ability of the electric utility to avoid costs, including
the deferral of capacity additions and the reduction of fossil fuel use; and
(iv) The costs or savings resulting from variations in line losses from those that would have existed
in the absence of purchases from a qualifying facility, if the purchasing electric utility generated
an equivalent amount of energy itself or purchased an equivalent amount of electric energy or
capacity.
(f) Periods during which purchases not required.
(1) Any electric utility which gives notice pursuant to paragraph (f)(2) of this section will not be required
to purchase electric energy or capacity during any period during which, due to operational
circumstances, purchases from qualifying facilities will result in costs greater than those which the
utility would incur if it did not make such purchases, but instead generated an equivalent amount of
energy itself.

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(2) Any electric utility seeking to invoke paragraph (f)(1) of this section must notify, in accordance with
applicable State law or regulation, each affected qualifying facility in time for the qualifying facility to
cease the delivery of energy or capacity to the electric utility.
(3) Any electric utility which fails to comply with the provisions of paragraph (f)(2) of this section will be
required to pay the same rate for such purchase of energy or capacity as would be required had the
period described in paragraph (f)(1) of this section not occurred.
(4) A claim by an electric utility that such a period has occurred or will occur is subject to such
verification by its State regulatory authority as the State regulatory authority determines necessary
or appropriate, either before or after the occurrence.
[Order 69, 45 FR 12234, Feb. 25, 1980, as amended by Order 872, 85 FR 54733, Sept. 2, 2020]

§ 292.305 Rates for sales.
(a) General rules.
(1) Rates for sales:
(i)

Shall be just and reasonable and in the public interest; and

(ii) Shall not discriminate against any qualifying facility in comparison to rates for sales to other
customers served by the electric utility.
(2) Rates for sales which are based on accurate data and consistent systemwide costing principles shall
not be considered to discriminate against any qualifying facility to the extent that such rates apply to
the utility's other customers with similar load or other cost-related characteristics.
(b) Additional services to be provided to qualifying facilities.
(1) Upon request of a qualifying facility, each electric utility shall provide:
(i)

Supplementary power;

(ii) Back-up power;
(iii) Maintenance power; and
(iv) Interruptible power.
(2) The State regulatory authority (with respect to any electric utility over which it has ratemaking
authority) and the Commission (with respect to any nonregulated electric utility) may waive any
requirement of paragraph (b)(1) of this section if, after notice in the area served by the electric utility
and after opportunity for public comment, the electric utility demonstrates and the State regulatory
authority or the Commission, as the case may be, finds that compliance with such requirement will:
(i)

Impair the electric utility's ability to render adequate service to its customers; or

(ii) Place an undue burden on the electric utility.
(c) Rates for sales of back-up and maintenance power. The rate for sales of back-up power or maintenance
power:

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(1) Shall not be based upon an assumption (unless supported by factual data) that forced outages or
other reductions in electric output by all qualifying facilities on an electric utility's system will occur
simultaneously, or during the system peak, or both; and
(2) Shall take into account the extent to which scheduled outages of the qualifying facilities can be
usefully coordinated with scheduled outages of the utility's facilities.

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

§ 292.307 System emergencies.
(a) Qualifying facility obligation to provide power during system emergencies. A qualifying facility shall be
required to provide energy or capacity to an electric utility during a system emergency only to the extent:
(1) Provided by agreement between such qualifying facility and electric utility; or
(2) Ordered under section 202(c) of the Federal Power Act.
(b) Discontinuance of purchases and sales during system emergencies. During any system emergency, an
electric utility may discontinue:
(1) Purchases from a qualifying facility if such purchases would contribute to such emergency; and
(2) Sales to a qualifying facility, provided that such discontinuance is on a nondiscriminatory basis.

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

§ 292.309 Termination of obligation to purchase from qualifying facilities.
(a) After August 8, 2005, an electric utility shall not be required, under this part, to enter into a new contract or
obligation to purchase electric energy from a qualifying cogeneration facility or a qualifying small power
production facility if the Commission finds that the qualifying cogeneration facility or qualifying small
power facility production has nondiscriminatory access to:
(1)
(i)

Independently administered, auction-based day ahead and real time wholesale markets for the
sale of electric energy; and

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(ii) Wholesale markets for long-term sales of capacity and electric energy; or
(2)
(i)

Transmission and interconnection services that are provided by a Commission-approved
regional transmission entity and administered pursuant to an open access transmission tariff
that affords nondiscriminatory treatment to all customers; and

(ii) Competitive wholesale markets that provide a meaningful opportunity to sell capacity, including
long-term and short-term sales, and electric energy, including long-term, short-term and realtime sales, to buyers other than the utility to which the qualifying facility is interconnected. In
determining whether a meaningful opportunity to sell exists, the Commission shall consider,
among other factors, evidence of transactions within the relevant market; or
(3) Wholesale markets for the sale of capacity and electric energy that are, at a minimum, of comparable
competitive quality as markets described in paragraphs (a)(1) and (a)(2) of this section.
(b) For purposes of § 292.309(a), a renewal of a contract that expires by its own terms is a “new contract or
obligation” without a continuing obligation to purchase under an expired contract.
(c) For purposes of paragraphs (a)(1), (2) and (3) of this section, with the exception of paragraph (d) of this
section, there is a rebuttable presumption that a qualifying facility has nondiscriminatory access to the
market if it is eligible for service under a Commission-approved open access transmission tariff or
Commission-filed reciprocity tariff, and Commission-approved interconnection rules.
(1) If the Commission determines that a market meets the criteria of paragraphs (a)(1), (2) or (3) of this
section, and if a qualifying facility in the relevant market is eligible for service under a Commissionapproved open access transmission tariff or Commission-filed reciprocity tariff, a qualifying facility
may seek to rebut the presumption of access to the market by demonstrating, inter alia, that it does
not have access to the market because of operational characteristics or transmission constraints.
(2) For purposes of paragraphs (a)(1), (2), and (3) of this section, a qualifying small power production
facility with a capacity between 5 megawatts and 20 megawatts may additionally seek to rebut the
presumption of access to the market by demonstrating that it does not have access to the market in
light of consideration of other factors, including, but not limited to:
(i)

Specific barriers to connecting to the interstate transmission grid, such as excessively high
costs and pancaked delivery rates;

(ii) Unique circumstances impacting the time or length of interconnection studies or queues to
process the small power production facility's interconnection request;
(iii) A lack of affiliation with entities that participate in the markets in paragraphs (a)(1), (2), and (3)
of this section;
(iv) The qualifying small power production facility has a predominant purpose other than selling
electricity and should be treated similarly to qualifying cogeneration facilities;
(v) The qualifying small power production facility has certain operational characteristics that
effectively prevent the qualifying facility's participation in a market; or

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(vi) The qualifying small power production facility lacks access to markets due to transmission
constraints. The qualifying small power production facility may show that it is located in an
area where persistent transmission constraints in effect cause the qualifying facility not to have
access to markets outside a persistently congested area to sell the qualifying facility output or
capacity.
(d)
(1) For purposes of paragraphs (a)(1), (2), and (3) of this section, there is a rebuttable presumption that
a qualifying cogeneration facility with a capacity at or below 20 megawatts does not have
nondiscriminatory access to the market.
(2) For purposes of paragraphs (a)(1), (2), and (3) of this section, there is a rebuttable presumption that
a qualifying small power production facility with a capacity at or below 5 megawatts does not have
nondiscriminatory access to the market.
(3) Nothing in paragraphs (d)(1) through (3) affects the rights the rights or remedies of any party under
any contract or obligation, in effect or pending approval before the appropriate State regulatory
authority or non-regulated electric utility on or before February 16, 2021, to purchase electric energy
or capacity from or to sell electric energy or capacity to a small power production facility between 5
megawatts and 20 megawatts under this Act (including the right to recover costs of purchasing
electric energy or capacity).
(4) For purposes of implementing paragraphs (d)(1) and (2) of this section, the Commission will not be
bound by the standards set forth in § 292.204(a)(2).
(e) Midcontinent Independent System Operator, Inc. (MISO), PJM Interconnection, L.L.C. (PJM), ISO New
England Inc. (ISO-NE), and New York Independent System Operator, Inc. (NYISO) qualify as markets
described in paragraphs (a)(1)(i) and (ii) of this section, and there is a rebuttable presumption that small
power production facilities with a capacity greater than 5 megawatts and cogeneration facilities with a
capacity greater than 20 megawatts have nondiscriminatory access to those markets through
Commission-approved open access transmission tariffs and interconnection rules, and that electric
utilities that are members of such regional transmission organizations or independent system operators
should be relieved of the obligation to purchase electric energy from the qualifying facilities.
(1) A qualifying facility above 20 MW may seek to rebut this presumption by demonstrating, inter alia,
that:
(i)

The qualifying facility has certain operational characteristics that effectively prevent the
qualifying facility's participation in a market; or

(ii) The qualifying facility lacks access to markets due to transmission constraints. The qualifying
facility may show that it is located in an area where persistent transmission constraints in
effect cause the qualifying facility not to have access to markets outside a persistently
congested area to sell the qualifying facility output or capacity.
(2) A small power producer qualifying facility between 5 megawatts and 20 megawatts may show it
does not have access to the market in light of consideration of other factors, including, but not
limited to:
(i)

Specific barriers to connecting to the interstate transmission grid, such as excessively high
costs and pancaked delivery rates;

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(ii) Unique circumstances impacting the time or length of interconnection studies or queues to
process the small power production facility's interconnection request;
(iii) A lack of affiliation with entities that participate in the markets in section § 292.309(a)(1), (2),
and (3);
(iv) The qualifying small power production facility has a predominant purpose other than selling
electricity and should be treated similarly to qualifying cogeneration facilities;
(v) The qualifying small power production facility has certain operational characteristics that
effectively prevent the qualifying facility's participation in a market; or
(vi) The qualifying small power production facility lacks access to markets due to transmission
constraints. The qualifying small power production facility may show that it is located in an
area where persistent transmission constraints in effect cause the qualifying facility not to have
access to markets outside a persistently congested area to sell the qualifying facility output or
capacity.
(f) The Electric Reliability Council of Texas (ERCOT) qualifies as a market described in paragraph (a)(3) of
this section, and there is a rebuttable presumption that small power production facilities with a capacity
greater than five megawatts and cogeneration facilities with a capacity greater than 20 megawatts have
nondiscriminatory access to that market through Public Utility Commission of Texas (PUCT) approved
open access protocols, and that electric utilities that operate within ERCOT should be relieved of the
obligation to purchase electric energy from the qualifying facilities.
(1) A qualifying facility above 20 MW may seek to rebut this presumption by demonstrating, inter alia,
that:
(i)

The qualifying facility has certain operational characteristics that effectively prevent the
qualifying facility's participation in a market; or

(ii) The qualifying facility lacks access to markets due to transmission constraints. The qualifying
facility may show that it is located in an area where persistent transmission constraints in
effect cause the qualifying facility not to have access to markets outside a persistently
congested area to sell the qualifying facility output or capacity.
(2) A small power producer qualifying facility between 5 megawatts and 20 megawatts may show it
does not have access to the market in light of consideration of other factors, including, but not
limited to:
(i)

Specific barriers to connecting to the interstate transmission grid, such as excessively high
costs and pancaked delivery rates;

(ii) Unique circumstances impacting the time or length of interconnection studies or queues to
process the small power production facility's interconnection request;
(iii) A lack of affiliation with entities that participate in the markets in section § 292.309(a)(1), (2),
and (3);
(iv) The qualifying small power production facility has a predominant purpose other than selling
electricity and should be treated similarly to qualifying cogeneration facilities;
(v) The qualifying small power production facility has certain operational characteristics that
effectively prevent the qualifying facility's participation in a market; or
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(vi) The qualifying small power production facility lacks access to markets due to transmission
constraints. The qualifying small power production facility may show that it is located in an
area where persistent transmission constraints in effect cause the qualifying facility not to have
access to markets outside a persistently congested area to sell the qualifying facility output or
capacity.
(g) The California Independent System Operator and Southwest Power Pool, Inc. satisfy the criteria of §
292.309(a)(2)(i).
(h) No electric utility shall be required, under this part, to enter into a new contract or obligation to purchase
from or sell electric energy to a facility that is not an existing qualifying cogeneration facility unless the
facility meets the criteria for new qualifying cogeneration facilities established by the Commission in §
292.205.
(i)

For purposes of § 292.309(h), an “existing qualifying cogeneration facility” is a facility that:
(1) Was a qualifying cogeneration facility on or before August 8, 2005; or
(2) Had filed with the Commission a notice of self-certification or self-recertification, or an application
for Commission certification, under § 292.207 prior to February 2, 2006.

(j)

For purposes of § 292.309(h), a “new qualifying cogeneration facility” is a facility that satisfies the criteria
for qualifying cogeneration facilities pursuant to § 292.205.

[Order 688, 71 FR 64372, Nov. 1, 2006; 71 FR 75662, Dec. 18, 2006; Order 872, 85 FR 54735, Sept. 2, 2020; 85 FR 86725, Dec. 30,
2020]

§ 292.310 Procedures for utilities requesting termination of obligation to purchase from
qualifying facilities.
(a) An electric utility may file an application with the Commission for relief from the mandatory purchase
requirement under § 292.303(a) pursuant to this section on a service territory-wide basis. Such
application shall set forth the factual basis upon which relief is requested and describe why the
conditions set forth in § 292.309(a)(1), (2) or (3) have been met. After notice, including sufficient notice to
potentially affected qualifying cogeneration facilities and qualifying small power production facilities, and
an opportunity for comment, the Commission shall make a final determination within 90 days of such
application regarding whether the conditions set forth in § 292.309(a)(1), (2) or (3) have been met.
(b) Sufficient notice shall mean that an electric utility must identify with names and addresses all potentially
affected qualifying facilities in an application filed pursuant to paragraph (a).
(c) An electric utility must submit with its application for each potentially affected qualifying facility: The
docket number assigned if the qualifying facility filed for self-certification or an application for
Commission certification of qualifying facility status; the net capacity of the qualifying facility; the
location of the qualifying facility depicted by state and county, and the name and location of the
substation where the qualifying facility is interconnected; the interconnection status of each potentially
affected qualifying facility including whether the qualifying facility is interconnected as an energy or a
network resource; and the expiration date of the energy and/or capacity agreement between the applicant
utility and each potentially affected qualifying facility. All potentially affected qualifying facilities shall
include:
(1) Those qualifying facilities that have existing power purchase contracts with the applicant;
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(2) Other qualifying facilities that sell their output to the applicant or that have pending self-certification
or Commission certification with the Commission for qualifying facility status whereby the applicant
will be the purchaser of the qualifying facility's output;
(3) Any developer of generating facilities with whom the applicant has agreed to enter into power
purchase contracts, as of the date of the application filed pursuant to this section, or are in
discussion, as of the date of the application filed pursuant to this section, with regard to power
purchase contacts;
(4) The developers of facilities that have pending state avoided cost proceedings, as of the date of the
application filed pursuant to this section; and
(5) Any other qualifying facilities that the applicant reasonably believes to be affected by its application
filed pursuant to paragraph (a) of this section.
(d) The following information must be filed with an application:
(1) Identify whether applicant seeks a finding under the provisions of § 292.309(a)(1), (2), or (3).
(2) A narrative setting forth the factual basis upon which relief is requested and describing why the
conditions set forth in § 292.309(a)(1), (2), or (3) have been met. Applicant should also state in its
application whether it is relying on the findings or rebuttable presumptions contained in §
292.309(e), (f) or (g). To the extent applicant seeks relief from the purchase obligation with respect
to a qualifying facility 20 megawatts or smaller, and thus seeks to rebut the presumption in §
292.309(d), applicant must also set forth, and submit evidence of, the factual basis supporting its
contention that the qualifying facility has nondiscriminatory access to the wholesale markets which
are the basis for the applicant's filing.
(3) Transmission Studies and related information, including:
(i)

The applicant's long-term transmission plan, conducted by applicant, or the RTO, ISO or other
relevant entity;

(ii) Transmission constraints by path, element or other level of comparable detail that have
occurred and/or are known and expected to occur, and any proposed mitigation including
transmission construction plans;
(iii) Levels of congestion, if available;
(iv) Relevant system impact studies for the generation interconnections, already completed;
(v) Other information pertinent to showing whether transfer capability is available; and
(vi) The appropriate link to applicant's OASIS, if any, from which a qualifying facility may obtain
applicant's available transfer capability (ATC) information.
(4) Describe the process, procedures and practices that qualifying facilities interconnected to the
applicant's system must follow to arrange for the transmission service to transfer power to
purchasers other than the applicant. This description must include the process, procedures and
practices of all distribution, transmission and regional transmission facilities necessary for
qualifying facility access to the market.

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18 CFR 292.310(d)(5)

(5) If qualifying facilities will be required to execute new interconnection agreements, or renegotiate
existing agreements so that they can effectuate wholesale sales to third-party purchasers, explain
the requirements, charges and the process to be followed. Also, explain any differences in these
requirements as they apply to qualifying facilities compared to other generators, or to applicantowned generation.
(6) Applicants seeking a Commission finding pursuant to § 292.309(a)(2) or (3), except those applicants
located in ERCOT, also must provide evidence of competitive wholesale markets that provide a
meaningful opportunity to sell capacity, including long-term and short-term sales, and electric
energy, including long-term, short-term and real-time sales, to buyers other than the utility to which
the qualifying facility is interconnected. In demonstrating that a meaningful opportunity to sell exists,
provide evidence of transactions within the relevant market. Applicants must include a list of known
or potential purchasers, e.g., jurisdictional and non-jurisdictional utilities as well as retail energy
service providers.
(7) Signature of authorized individual evidencing the accuracy and authenticity of information provided
by applicant.
(8) Person(s) to whom communications regarding the filed information may be addressed, including
name, title, telephone number, and mailing address.
[Order 688, 71 FR 64372, Nov. 1, 2006, as amended by Order 688-A, 72 FR 35892, June 29, 2007]

§ 292.311 Reinstatement of obligation to purchase.
At any time after the Commission makes a finding under §§ 292.309 and 292.310 relieving an electric utility of its
obligation to purchase electric energy, a qualifying cogeneration facility, a qualifying small power production facility,
a State agency, or any other affected person may apply to the Commission for an order reinstating the electric
utility's obligation to purchase electric energy under this section. Such application shall set forth the factual basis
upon which the application is based and describe why the conditions set forth in § 292.309(a), (b) or (c) are no
longer met. After notice, including sufficient notice to potentially affected electric utilities, and opportunity for
comment, the Commission shall issue an order within 90 days of such application reinstating the electric utility's
obligation to purchase electric energy under this section if the Commission finds that the conditions set forth in §
292.309(a), (b), or (c) which relieved the obligation to purchase, are no longer met.
[Order 688, 71 FR 64372, Nov. 1, 2006]

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

(1) Competing retail electric suppliers are willing and able to sell and deliver electric energy to the
qualifying cogeneration facility or qualifying small power production facility; and
(2) The electric utility is not required by State law to sell electric energy in its service territory.
[Order 688, 71 FR 64372, Nov. 1, 2006; 71 FR 75662, Dec. 18, 2006]

§ 292.313 Reinstatement of obligation to sell.
At any time after the Commission makes a finding under § 292.312 relieving an electric utility of its obligation to sell
electric energy, a qualifying cogeneration facility, a qualifying small power production facility, a State agency, or any
other affected person may apply to the Commission for an order reinstating the electric utility's obligation to
purchase electric energy under this section. Such application shall set forth the factual basis upon which the
application is based and describe why the conditions set forth in Paragraph (b)(1) and (b)(2) of this section are no
longer met. After notice, including sufficient notice to potentially affected utilities, and opportunity for comment, the
Commission shall issue an order within 90 days of such application reinstating the electric utility's obligation to sell
electric energy under this section if the Commission finds that the conditions set forth in paragraphs (b)(1) and
(b)(2) of this section are no longer met.
[Order 688, 71 FR 64372, Nov. 1, 2006]

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

Subpart D—Implementation
Authority: Public Utility Regulatory Policies Act of 1978, 16 U.S.C. 2601 et seq., Energy Supply and Environmental
Coordination Act, 15 U.S.C. 791 et seq., Federal Power Act, 16 U.S.C. 792 et seq., Department of Energy
Organization Act, 42 U.S.C. 7101 et seq., E.O. 12009, 42 FR 46267.

Source: Order 69, 45 FR 12236, Feb. 25, 1980, unless otherwise noted.

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

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18 CFR 292.402

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

Subpart E [Reserved]
Subpart F—Exemption of Qualifying Small Power Production Facilities and Cogeneration
Facilities from Certain Federal and State Laws and Regulations
§ 292.601 Exemption to qualifying facilities from the Federal Power Act.
(a) Applicability. This section applies to qualifying facilities, other than those described in paragraph (b) of
this section. This section also applies to qualifying facilities that meet the criteria of section 3(17)(E) of
the Federal Power Act (16 U.S.C. 796(17)(E)), notwithstanding paragraph (b).
(b) Exclusion. This section does not apply to a qualifying small power production facility with a power
production capacity which exceeds 30 megawatts, if such facility uses any primary energy source other
than geothermal resources.
(c) General rule. Any qualifying facility described in paragraph (a) of this section shall be exempt from all
sections of the Federal Power Act, except:
(1) Sections 205 and 206; however, sales of energy or capacity made by qualifying facilities 20 MW or
smaller, or made pursuant to a contract executed on or before March 17, 2006 or made pursuant to a
state regulatory authority's implementation of section 210 the Public Utility Regulatory Policies Act
of 1978, 16 U.S.C. 824a-1, shall be exempt from scrutiny under sections 205 and 206;
(2) Section 1-18, and 21-30;
(3) Sections 202(c), 210, 211, 212, 213, 214, 215, 220, 221 and 222;
(4) Sections 305(c); and
(5) Any necessary enforcement provision of part III of the Federal Power Act (including but not limited to
sections 306, 307, 308, 309, 314, 315, 316 and 316A) with regard to the sections listed in paragraphs
(c)(1), (2), (3) and (4) of this section.
(Energy Security Act, Pub. L. 96-294, 94 Stat. 611 (1980) Public Utility Regulatory Policies Act of 1978, 16 U.S.C.
2601, et seq., Energy Supply and Environmental Coordination Act, 15 U.S.C. 791, et seq., Federal Power Act, as
amended, 16 U.S.C. 792 et seq., Department of Energy Organization Act, 42 U.S.C. 7101, et seq.; E.O. 12009, 42 FR
46267)

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18 CFR 292.602

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

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

The rates of electric utilities; and

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

18 CFR 292.602(c)(4) (enhanced display)

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