only with the distance between affiliated QFs.
    575. The Commission also sought comment on whether item 3c
(geographic coordinates) and the Geographic Coordinates instructions on
page 4 of the current FERC Form No. 556 should be modified such that
reporting of geographic coordinates should be required for all
applications, rather than only for applications where there is no
facility street address (as has been the case). We believed such
information may provide more transparency in measuring distances
between facilities, and that such transparency may be useful for both
the public and Commission staff in monitoring compliance with the
Commission's QF regulations.
    576. The Commission noted, as it did in Order No. 732,\892\ and as
in the general form instructions on page 4 of the FERC Form No. 556,
that such coordinates can be obtained through certain free online map
services (with links and instructions available through the
Commission's QF website); GPS devices (including smartphones, which are
now nearly ubiquitous); Google Earth; property surveys; various
engineering or construction drawings; property deeds; or municipal or
county maps showing property lines. The Commission also noted that the
Commission has a link on its QF web page (https://www.ferc.gov/industries-data/electric/power-sales-and-markets/purpa-qualifying-facilities) which provides assistance with determining geographic
coordinates of facilities. As such, the Commission believed that the
burden that would be created by requiring every QF to provide
geographic coordinates would be limited. Even so, the Commission sought
comment on whether the value of the information to the public and the
Commission would outweigh the limited burden.
---------------------------------------------------------------------------

    \892\ Revisions to Form, Procedures, and Criteria for
Certification of Qualifying Facility Status for a Small Power
Production or Cogeneration Facility, Order No. 732, 130 FERC ]
61,214, at P 100 (2010).
---------------------------------------------------------------------------

2. Comments
    577. A few commenters oppose the changes to FERC Form No. 556 as
proposed in the NOPR.\893\ Solar Energy Industries and the Southeast
Public Interest Organizations contend that the proposed new item 8b
that requests a list of all affiliated facilities within one to 10
miles from the certifying QF would be a significant increase in
information collection, time, effort, and cost of QF
certification.\894\
---------------------------------------------------------------------------

    \893\ Solar Energy Industries Comments at 8; Southeast Public
Interest Organizations Comments at 36-37.
    \894\ Solar Energy Industries Comments at 56; Southeast Public
Interest Organizations Comments at 36-37.
---------------------------------------------------------------------------

    578. The Southeast Public Interest Organizations further object
that the obligation to show how distances are calculated and to
identify electrical generating equipment and their associated
geographic coordinates are overly burdensome for facilities that are
presumed to be separate and contradicts the rebuttable presumption of
separate facilities, which usually places the burden on the
challenger.\895\
---------------------------------------------------------------------------

    \895\ Southeast Public Interest Organizations Comments at 37-38.
---------------------------------------------------------------------------

    579. The Southeast Public Interest Organizations also assert it
would be reasonable to ask for only affiliated QFs and to exclude non-
QF affiliates from the questions in item 8.\896\
---------------------------------------------------------------------------

    \896\ Id.
---------------------------------------------------------------------------

    580. Several commenters support changes to FERC Form No. 556 as
proposed in the NOPR.\897\ A few commenters support the proposed
changes to item 8a and proposed new item 8b and argue that the
additional information might be otherwise difficult to find and will be
useful to clarify if the assumption of separate facilities is
appropriate.\898\ Some commenters support requiring all applicants to
supply geographic coordinates in item 3c, regardless of whether they
have a street address.\899\
---------------------------------------------------------------------------

    \897\ APPA Comments at 23; EEI Comments at 50; Portland General
Comments at 17-18; Subsurface Engineering Association Comments at 1.
    \898\ APPA Comments at 23-24; EEI Comments at 50.
    \899\ EEI Comments at 50; Idaho Commission Comments at 7;
Subsurface Engineering Association Comments at 1.
---------------------------------------------------------------------------

    581. Two commenters support the collection of information for all
affiliated facilities, not just QF affiliates, within the one or ten-
mile radius requested in item 8a and proposed item 8b, respectively,
because they believe it will be needed to identify QFs not complying
with the proposed rule.\900\
---------------------------------------------------------------------------

    \900\ EEI Comments at 50-51; Portland General Comments at 18.
---------------------------------------------------------------------------

    582. Solar Energy Industries assert that the proposed item 8b to
the Form No. 556, requiring a listing of all affiliated facilities
whose nearest electrical generating equipment is greater than one mile
and less than 10 miles from the electrical generating equipment of the
certifying QF, is a substantial expansion of the information collection
requirements and goes against the Commission's previously-granted
blanket exemptions for QFs to relieve the burden of public utility
regulation. Solar Energy Industries argue that this is not a mere
information collection requirement, but a request for information that
is not otherwise publicly available and is inconsistent with the
Commission's finding on the burden of collecting Connected Entity
information. Solar Energy Industries argue that collecting such
information from QFs is unwarranted discriminatory treatment and is
arbitrary and capricious.\901\
---------------------------------------------------------------------------

    \901\ Solar Energy Industries Comments at 56-57.
---------------------------------------------------------------------------

    583. A few commenters requested additional changes to FERC Form No.
556.\902\ North American-Central would like the Commission to create
separate Form No. 556 forms for small power producers and cogeneration
QFs for a more distinct and simplified application process.\903\ EEI
would like Form No. 556 to explicitly include battery storage.\904\ EEI
requests that the Form No. 556 collect information on the rated
capacity and notes that net capacity may not be the appropriate measure
of power production. Solar Energy Industries also noted that the
Commission stated in Order No. 732 that future changes to Form No. 556
would not go through a rulemaking and would instead be reviewed by the
Office of Management and Budget with a period for public comments.\905\
---------------------------------------------------------------------------

    \902\ EEI Comments at 51; El Paso Electric Comments at 5-6;
North American-Central Comments at 7.
    \903\ North American-Central Comments at 7.
    \904\ EEI Comments at 51-52.
    \905\ Solar Energy Industries Comments at 56.
---------------------------------------------------------------------------

3. Commission Determination
    584. We adopt the NOPR proposals regarding changes to the FERC Form
No. 556, with the further clarifications and additions described below.
The revised Form No. 556 will be attached to this rule in eLibrary, but
will not be published in the Federal Register or Code of Federal
Regulations. The Commission finds that the added information collected
by these changes

is necessary to implement the changes made to the regulations in this
final rule, and thus justifies the increase in reporting burden.
    585. The currently effective Form No. 556 contains a ``Who Must
File'' section which specifies when an applicant seeking QF status or
recertification of QF status must file a self-certification, and when
such applicant is exempt from the filing requirement. We will revise
the ``Who Must File'' section to clarify that the exemption from the
requirement to complete or file a Form No. 556 applies to an applicant
seeking QF status for a small power production facility that, together
with any affiliated small power production QFs within one mile of the
entity seeking small power production QF status, has a net power
production capacity of 1 MW or less. While we did not seek comment on
this corrective change in the NOPR, this change is consistent with the
Commission's determination in SunE B9 Holdings LLC, \906\ and serves to
make the Form No. 556 more transparent in its application.
---------------------------------------------------------------------------

    \906\ 157 FERC ] 61,044 at P 16 (``the one-mile rule of section
292.204(a)(2) is a size determination which the Commission has
consistently applied generally to the regulations pursuant to PURPA,
and which applies here to determining the applicability of the less-
than-1-MW exemption of section 292.203(d)'') (internal citations
omitted).
---------------------------------------------------------------------------

    586. We also revise the ``Who Must File'' section to include a
``Recertification'' section which provides the text of revised 18 CFR
292.207(f), (previously 18 CFR 292.207(d)) which states that a QF must
file for recertification whenever the QF ``fails to conform with any
material facts or representation presented . . . in its submittals to
the Commission.'' \907\
---------------------------------------------------------------------------

    \907\ 18 CFR 292.207(d).
---------------------------------------------------------------------------

    This addition does not alter our recertification requirements, and
we include it here simply to make the Form No. 556 clearer in its
application.
    587. The total burden estimates in the ``Paperwork Reduction Act
Notice'' section of FERC Form No. 556 will be updated based on the
changes in this final rule, to provide the following estimates: 1.5
hours for self-certifications of facilities of 1 MW or less; 1.5 hours
for self-certifications of a cogeneration facility over 1 MW; 50 hours
for applications for Commission certification of a cogeneration
facility; 3.5 hours for self-certifications of small power producers
over 1 MW and less than a mile or more than 10 miles from affiliated
small power production QFs that use the same energy resource; 56 hours
for an application for Commission certification of a small power
production facility over 1 MW and less than a mile or more than 10
miles from affiliated small power production QFs that use the same
energy resource; 9.5 hours for self-certifications of small power
producers over 1 MW with affiliated small power production QFs more
than one but less than 10 miles that use the same energy resource; 62
hours for an application for Commission certification of a small power
production facility over 1 MW with affiliated small power production
QFs more than one but less than 10 miles that use the same energy
resource.
    588. We find that an explanatory ``Protest to the Filing'' section
should be added to the FERC Form No. 556 to note that, pursuant to 18
CFR 292.207, an interested person or entity has 30 days from the date
of the filing of the FERC Form No. 556 to intervene or file a protest.
The ``Protest to the Filing'' section will state that the protestor
must concurrently serve a copy of such filing, pursuant to 18 CFR
385.211(b), on the Form No. 556 applicant. The ``Protest to the
Filing'' section will also state that the Form No. 556 applicant will
have 30 days to file any answer to a protest. The ``Protest to the
Filing'' section will also state that protests may be made to any
initial certification, and any recertifications on or after the
effective date of this final rule making substantive changes to the
existing certification, which may include, for example, a change in
electrical generating equipment that increases power production
capacity by the greater of 1 MW or 10 percent of the previously
certified capacity of the QF, or a change in ownership in which an
owner increases their equity interest by at least 10% from the equity
interest previously reported. The ``Protest to the Filing'' section
will note that ``administrative only'' changes will not be subject to
protests.
    589. The Commission finds that item 3c (geographic coordinates) and
the Geographic Coordinates instructions on page 4 of the current FERC
Form No. 556 will be revised to require all applicants to report the
applicant facility's geographic coordinates, rather than only for
applications where there is no street address (as was the case
previously). We find that such information will provide more
transparency regarding the location of each site, and that such
transparency may be useful for both the public and Commission staff in
monitoring compliance with the Commission's QF regulations.
    590. The Commission will change item 8a, which currently requires
applicants to list all affiliated facilities within one mile, to
instead require that the applicant only list affiliated small power
production QFs using the same energy resource within one mile.
    591. We modify the NOPR's proposal to add the collection of
information for affiliated facilities whose nearest electrical
generating equipment is more than one but less than 10 miles from the
electrical generating equipment of the applicant's facility to instead
add the collection of information for affiliated small power production
QFs using the same energy resource located more than one mile but less
than 10 miles from the electrical generating equipment of the
applicant's facility. However, rather than adding a separate item 8b to
the Form No. 556 specifically for such QFs, as proposed in the NOPR, we
are expanding the existing item 8a to require the applicant to list all
affiliated small power production QFs using the same energy resource
whose nearest electrical generating equipment is less than 10 miles
from the electrical generating equipment of the entity seeking small
power production QF status.
    592. We determine that the revised item 8a will require the
applicant to list the geographic coordinates of the nearest
``electrical generating equipment'' of both its own facility and the
affiliated small power production QF in question based on the
definitions adopted in this final rule. The distance between the entity
seeking small power production QF status and each affiliated small
power production QF will be automatically calculated based on these
coordinates. For any affiliated small power production QFs that cannot
be described in item 8a due to space limitations, the instructions will
direct applicants to provide the required information for such small
power production QFs in the Miscellaneous section of the form. To
facilitate the uniform calculation of distances for facility data that
are entered into the Miscellaneous section of the form, a distance
calculator will be added to the form, and the form instructions will
direct applicants to use the calculator to convert their facilities'
geographic coordinates into distance.
    593. The Commission also adopts the NOPR proposal to allow
applicants with affiliated small power production QFs greater than one
mile and less than 10 miles from the electrical generating equipment of
the entity seeking small power production QF status identified under
item 8a to, if they choose, explain why the affiliated small power
production QFs greater than one mile and less than 10 miles from the
nearest electrical generating equipment of the entity seeking QF status
identified

under item 8a should be considered to be at separate sites from the
entity seeking QF status, considering the relevant physical and
ownership factors. The instructions will provide references to the
relevant physical and ownership factors, as defined in this final rule,
that may be asserted to defend against rebuttal.
    594. Regarding Solar Energy Industries' concern regarding the
expansion of the information collection requirements, we find that the
added information collected by item 8a of the Form No. 556 is necessary
to implement the changes made to the regulations in this final rule,
and thus justifies the increase in reporting burden. As noted in
section IV.E, the currently pending Connected Entity proceeding is a
separate proceeding and beyond the scope of this proceeding. Moreover,
the data collection at issue in that proceeding does not eliminate the
need for the Commission to collect the data required by the FERC Form
No. 556 so that the Commission has the information it needs to
determine whether a facility qualifies to be a QF consistent with the
standards laid out in the statute.
    595. We note that these changes and any future changes to Form No.
556 will continue to be reviewed by the Office of Management and Budget
following solicitation of comments from the public, as described in
Order No. 732.\908\
---------------------------------------------------------------------------

    \908\ Order No. 732, 130 FERC ] 61,214.
---------------------------------------------------------------------------

    596. We find the requests for additional changes to FERC Form No.
556 beyond the scope of this proceeding.

G. PURPA Section 210(m) Rebuttable Presumption of Nondiscriminatory
Access to Markets

1. PURPA Section 210(m) Implementation
a. NOPR Proposal
    597. In 2006, when Order No. 688 was issued, the organized electric
markets had been in existence for only a few years and were not well
understood by all market participants. Now, fourteen years later, the
markets are more mature, and the mechanics of participation in such
markets are improved and better understood. Consequently, in the NOPR,
the Commission determined that small power production facilities below
20 MW should now be able to participate in such markets under most
circumstances. The Commission therefore proposed to revise 18 CFR
292.309(d) to reduce the net power production capacity level at which
the presumption of nondiscriminatory access to a market attaches for
small power production facilities, but not cogeneration facilities,
from 20 MW to 1 MW.
    598. The Commission determined that, in light of the maturation of
organized electric markets, such a reduction was consistent with
Congress's intent to relieve electric utilities of their obligation to
purchase when a QF has nondiscriminatory access to competitive markets.
    599. The Commission noted that, in establishing the original
presumption that QFs whose net power production capacity was 20 MW or
below lacked nondiscriminatory access to markets defined in sections
210(m)(1)(A)-(C) of PURPA, it had acknowledged that ``there is no
unique and distinct megawatt size that uniquely determines if a
generator is small.'' \909\ The Commission noted that, in using 20 MW
to separate the presumption that large QFs had nondiscriminatory access
and small QFs lacked such access, the Commission had recognized: (1)
Order No. 671's exemption for QFs that are 20 MW or smaller from
sections 205 and 206 of the FPA; and (2) Order Nos. 2006 and 2006-A's
setting 20 MW as the demarcation for different interconnection
standards between small and large generators.\910\ The NOPR stated
that, while the Commission had not (and likewise did not in the NOPR)
propose to revise the exemptions for QFs from sections 205 and 206 of
the FPA, the Commission had elsewhere taken steps to ease both
interconnection and market access for generation resources with small
capacities since it first implemented section 210(m) of PURPA.
---------------------------------------------------------------------------

    \909\ Order No. 688-A, 119 FERC ] 61,305 at P 97.
    \910\ See Order No. 688, 117 FERC ] 61,078 at P 76, order on
reh'g, Order No. 688-A, 119 FERC ] 61,305 at P 97; see also 18 CFR
292.601(c)(1) (``[S]ales 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.''); Revised Regulations
Governing Small Power Production and Cogeneration Facilities, Order
No. 671, 114 FERC ] 61,102, at P 98, order on reh'g, Order No. 671-
A, 115 FERC ] 61,225 (2006) (establishing exemption for QFs 20 MW or
below from 205 and 206 of FPA); Standardization of Small Generator
Interconnection Agreements and Procedures, Order No. 2006, 111 FERC
] 61,220, at P 75, order on reh'g, Order No. 2006-A, 113 FERC ]
61,195 (2005), order granting clarification, Order No. 2006-B, 116
FERC ] 61,046 (2006).
---------------------------------------------------------------------------

    600. For example, the Commission noted that it had required public
utilities to provide a Fast-Track interconnection process for some
interconnection customers whose capacity is up to and including 5 MW
(up from the previous 2 MW threshold),\911\ and had required each RTO/
ISO to revise its tariff to include a participation model for electric
storage resources that establishes a minimum size requirement for
participation in the RTO/ISO markets that does not exceed 100 kW.\912\
While both of these changes do not apply only to generation types that
could become QFs or only to RTOs/ISOs, the Commission stated that it
believed they generally show that small power production facilities
below 20 MW, specifically those whose capacity exceeds 1 MW, now have
greater access to the markets defined in section 210(m)(1) of PURPA
than they did when the Commission first established the presumptions of
market access. The Commission also stated that, under the NOPR proposal
and like QFs over 20 MW today, small power production facilities over 1
MW would still be able to rebut the presumption of access due to
operational characteristics or transmission constraints.\913\
---------------------------------------------------------------------------

    \911\ Small Generator Interconnection Agreements and Procedures,
Order No. 792, 145 FERC ] 61,159, at P 103 (2013), clarifying, Order
No. 792-A, 146 FERC ] 61,214 (2014).
    \912\ Order No. 841, 162 FERC ] 61,127 at P 265.
    \913\ See 18 CFR 292.309(c), (e), (f).
---------------------------------------------------------------------------

    601. The Commission did not propose to make the same reduction
applicable to cogeneration facilities. The Commission stated that,
unlike small power production facilities, which are constructed solely
to produce and sell electricity, cogeneration facilities seeking QF
certification after February 2, 2006 are statutorily required to show
that they are intended primarily to provide heat for an industrial,
commercial, residential or institutional process rather than
fundamentally for sale to an electric utility.\914\ Consequently, the
production and sale of electricity is a byproduct of these thermal
processes, and owners of cogeneration facilities might not be as
familiar with energy markets and the technical requirements for such
sales. The Commission stated that retention of the existing 20 MW level
for the presumption of access to markets therefore would be appropriate
for cogeneration facilities.
---------------------------------------------------------------------------

    \914\ See 16 U.S.C. 824a-3(n); 18 CFR 292.205(d)(3). We
recognize that cogeneration facilities seeking certification 5 MW or
smaller after February 2, 2006 are presumed to satisfy this
requirement. 18 CFR 292.205(d)(4).
---------------------------------------------------------------------------

b. Comments in Opposition
    602. Numerous commenters oppose the NOPR proposal to revise 18 CFR
292.309(d) to reduce the net power production capacity level at which
the presumption of nondiscriminatory

access to a market attaches for small power production facilities, but
not cogeneration facilities, from 20 MW to 1 MW.\915\
---------------------------------------------------------------------------

    \915\ Allco Comments at 2, 17-19; Advanced Energy Economy
Comments at 1-12; AllEarth Comments at 2; Biogas Comments at 2-3;
Biological Diversity Comments at 8-9; California Commission Comments
at 31-33; CARE Comments at 5-6; Con Edison Comments at 5; Covanta
Comments at 10-12; DC Commission Comments at 4-5; Distributed Sun
Comments at 2-3; ELCON Comments at 18, 31-35; Energy Recovery
Comments at 4-5; ENGIE Comments at 3-4; Commissioner Slaughter
Comments at 2, 4; Green Power Comments at 3; Industrial Energy
Consumers Comments at 6-10; Massachusetts AG Comments at 6-8;
Michigan Commission Comments at 6-7; North American-Central at 2-4;
One Energy Comments at 2; South Dakota Commission Comments at 5;
Solar Energy Industries Comments at 44-51; State Entities Comments
at 5-6; Western Resource Councils Comments at 1-144.
---------------------------------------------------------------------------

i. Insufficient Evidentiary Support
    603. Several commenters argue that the record does not support the
proposal.\916\
---------------------------------------------------------------------------

    \916\ AllEarth Comments at 2; Advanced Energy Economy Comments
at 5-9; Biological Diversity Comments at 9; ELCON Comments at 31-32;
Industrial Energy Consumers Comments at 8; New England Hydropower
Comments at 11-12; NIPPC, CREA, REC, and OSEIA Comments at 77;
Public Interest Organizations Comments at 76-78; SC Solar Alliance
Comments at 12; Solar Energy Industries Comments at 45-48; Southeast
Public Interest Organization Comments at 39-40.
---------------------------------------------------------------------------

    604. Advanced Energy Economy asserts that, when an agency reverses
course on a policy issue, and the ``new policy rests upon factual
findings that contradict those which underlay'' the previous policy,
then the agency must ``provide a more detailed justification than what
would suffice for new policy created on a blank slate.'' \917\ Advanced
Energy Economy argues that the NOPR falls short of that standard.\918\
---------------------------------------------------------------------------

    \917\ Advanced Energy Economy Comments at 6 (citing FCC v. Fox
Television Stations, Inc., 556 U.S. at 515).
    \918\ Id. at 7.
---------------------------------------------------------------------------

    605. Public Interest Organizations and NIPPC, CREA, REC and OSEI
argue that the Commission fails to cite any evidence supporting the
premise that the markets are more mature, and that the mechanics of
participation in such markets are improved and better understood.
Public Interest Organizations and NIPPC, CREA, REC, and OSEIA state
that the Commission asserts that QFs smaller than 20 MW can now
participate in markets on a nondiscriminatory basis ``under most
circumstances,'' but that the Commission does not explain what those
``circumstances'' are, or whether they apply as a general matter to
most small QFs.\919\
---------------------------------------------------------------------------

    \919\ Public Interest Organizations Comments at 78; NIPPC, CREA,
REC, and OSEIA Comments at 77 (citing NOPR, 168 FERC ] 61,184 at P
126).
---------------------------------------------------------------------------

    606. Several commenters state that, in Order No. 688-A, the
Commission, rejected utility proposals to set the threshold at 1 MW,
and confirmed that 20 MW was an appropriate threshold.\920\ Advanced
Energy Economy states that the Commission's explanation in Order No.
688-A, which stated that the rebuttable presumptions were based on the
Commission's experience of implementing non-discriminatory open access
transmission over the past 11 years, dealing with QF issues over the
past 29 years and its experience with RTO/ISO markets for almost 10
years, contradicts the Commission's justification in the NOPR of
limited experience with organized electric markets.\921\ Advanced
Energy Economy and Southeast Public Interest Organizations assert that,
since Order No. 688, the Commission has repeatedly found that utilities
in organized markets have failed to rebut the presumption of
nondiscriminatory access to QFs, instead finding that QFs 20 MW and
under do not have sufficient access.\922\
---------------------------------------------------------------------------

    \920\ Advanced Energy Economy Comments at 5-6; ELCON Comments at
31-32.
    \921\ Advanced Energy Economy Comments at 8-9.
    \922\ Id. (citing, e.g., PPL Elec. Utils Corp., 145 FERC ]
61,053, at P 24 (2013); City of Burlington, 145 FERC ] 61,121, at P
36 (2013); Fitchburg Gas and Elec. Light Co., 146 FERC ] 61,186, at
PP 32-33 (2014); Va. Elec. & Power Co., 151 FERC ] 61,038, at P 21
(2015); N. States Power Co., 151 FERC ] 61,110 (2015)); Southeast
Public Interest Organizations Comments at 39-40.
---------------------------------------------------------------------------

    607. Public Interest Organizations and NIPPC, CREA, REC, and OSEIA
argue that the Commission fails to explain the relevance of its Fast-
Track interconnection process or energy storage order or which barriers
these developments alleviate for small QFs' access to markets.\923\
Advanced Energy Economy asserts that the expansion of the Fast-Track
procedures only applied to a narrow slice of inverter-based resources
under 20 MW and is insufficient to support a rebuttable presumption
that all QFs under 20 MW have nondiscriminatory access.\924\
---------------------------------------------------------------------------

    \923\ NIPPC, CREA, REC, and OSEIA at 77; Public Interest
Organizations Comments at 78 (citing Motor Vehicle Mfrs. Ass'n of
U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)
(explaining that an agency's failure to consider the relevant
factors and supply a ``rational connection between the facts found
and the choice made'' renders its decision arbitrary and
capricious)).
    \924\ Advanced Energy Comments at 7-8.
---------------------------------------------------------------------------

    608. Solar Energy Industries and New England Hydro argue that, just
because some small QFs participate in energy markets, that is not
sufficient justification to find that all small QFs meet the statutory
standard required for granting waiver for all QFs 20 MW or less.\925\
Public Interest Organizations assert that proper implementation of
section 210(m) requires that exemption from the mandatory purchase
obligation only applies where QF development will be stimulated by
market forces; otherwise Congress intended QF development to continue
to be encouraged by the mandatory purchase obligation.\926\ Protesters
assert that the record does not provide evidence that could reasonably
allow the Commission to conclude that small QF development will be
stimulated by market forces. On the contrary, the Public Interest
Organizations assert that the Commission's proposal placing the burden
on small QFs to rebut the presumption of access is itself a barrier to
QF development.\927\
---------------------------------------------------------------------------

    \925\ Solar Energy Industries Comments at 46; New England Hydro
Comments at 11-12.
    \926\ Public Interest Organizations Comments at 76 (citing New
PURPA Section 210(m) Regulations Applicable to Small Power
Production and Cogeneration Facilities, Order No. 688, 117 FERC ]
61,078, at P 6 (2006), order on reh'g, Order No. 688-A, 119 FERC ]
61,305 (2007), aff'd sub nom. Am. Forest and Paper Ass'n v. FERC,
550 F.3d 1179).
    \927\ Id.
---------------------------------------------------------------------------

    609. Solar Energy Industries argue that, along with the energy
markets, the capacity markets in the RTO/ISO regions have not evolved
to provide a meaningful opportunity for any QF to sell long-term
capacity.\928\ Solar Energy Industries argue that PURPA section 210(m)
requires the Commission to find that a QF has nondiscriminatory access
to a market for long-term sales of capacity prior to relieving the
purchase obligation. Solar Energy Industries provide several examples
such as MISO's Planning Resources Auction that only provides a one-year
purchase agreement, PJM not purchasing capacity since the Commission's
July 2019 Order, and that SPP does not have a centralized capacity
market. Solar Energy Industries argue that without a specific finding
that RTO/ISO markets provide QFs with an opportunity to sell long-term
capacity, the Commission is statutorily required to maintain utilities'
obligation to purchase output from QFs 20 MWs or less.\929\
---------------------------------------------------------------------------

    \928\ Solar Energy Industries Comments at 45.
    \929\ Id. at 49.
---------------------------------------------------------------------------

    610. Mr. Mattson asserts, without elaboration, that FPA sections
205 and 206 disallow the Commission from lowering the nondiscriminatory
access threshold from 20 MW to 1 MW, and, therefore, claims it would
amount to a violation of state-jurisdictional rights and a taking of
property.\930\
---------------------------------------------------------------------------

    \930\ Mr. Mattson Comments at 10.
---------------------------------------------------------------------------

ii. Administrative Burden and Complex Market Rules
    611. The DC Commission state that QFs 20 MW or less lack the
capability

to participate in a complicated wholesale market such as PJM where
there is a need to understand membership obligations and rules in order
to appropriately execute transactions.\931\
---------------------------------------------------------------------------

    \931\ DC Commission Comments at 4-5.
---------------------------------------------------------------------------

    612. Allco argues that, in retail choice states, PURPA is the only
way small QFs can sell to utilities. Allco asserts that in retail
choice states there is a shifting retail customer base, therefore
utilities want obligations reduced and contracts limited to a year.
Allco asserts that utilities and state commissions cannot limit
contracts due to a potentially disappearing customer base and then
argue that a sufficient wholesale market exists for long-term sales of
electric energy and capacity to support nondiscriminatory access for
small QFs under 20 MW.\932\
---------------------------------------------------------------------------

    \932\ Allco Comments at 18.
---------------------------------------------------------------------------

    613. Public Interest Organizations argue that giving special
exemptions to cogeneration facilities is discriminatory against small
power producer QFs.\933\ Two commenters also assert that small QFs are
at an inherent disadvantage compared to larger QFs because smaller QFs
are often engaged in other business enterprises, such as governmental
units distributing irrigation water or local companies unfamiliar with
energy markets.\934\
---------------------------------------------------------------------------

    \933\ Public Interest Organizations Comments at 74.
    \934\ NIPPC, CREA, REC, and OSEIA Comments at 18-19, 24-25; Mr.
Mattson Comments at 15.
---------------------------------------------------------------------------

c. Comments in Support
    614. Numerous commenters support the proposal to revise 18 CFR
292.309(d) for small power production facilities but not cogeneration
facilities, to reduce the net power production capacity level at which
the presumption of nondiscriminatory access to a market applies from 20
MW to 1 MW.\935\ DTE Electric argues that RTO/ISOs can now provide
smaller resources non-discriminatory access, and therefore electric
utilities should no longer be required to purchase electric energy from
them.\936\ EEI supports the proposal because resource diversity has
improved and markets have evolved as smaller resources, including QFs,
are increasingly participating in the RTO/ISO markets. RTOs/ISOs have
also increasingly adjusted their bidding rules, forecasts, and
operations to better accommodate variable resources.\937\ Alliant and
the Ohio Commission Energy Advocate state that small resources have
increased access to wholesale markets and that RTO/ISO rule flexibility
allows for the non-discriminatory participation of very small resources
and the aggregation of even smaller resources in the markets, therefore
the 20 MW threshold is no longer appropriate.\938\
---------------------------------------------------------------------------

    \935\ Alliant Energy Comments at 13-16; Tax Reform Comments at
2; APPA Comments at 24-26; Arizona Public Service Comments at 8-10;
Basin Comments at 12-13; Freedom Center Comments at 2; Colorado
Independent Energy Comments at 14; Connecticut Commission Comments
at 21-22; Conservative Action Comments at 2; Consumers Alliance
Comments at 1-2; Consumers Energy Comments at 4-5; DTE Electric
Comments at 4-5; East Kentucky Comments at 3; East River Comments at
2; EEI Comments 54-59; FirstEnergy Comments at 2-3; Idaho Power
comments at 14; Indiana Municipal Comments at 6-9; Institute for
Energy Research Comments at 2; Kentucky Commission Comments at 8;
Missouri River Energy Comments at 3-4; NorthWestern at 14; TAPS
Comments at 4; Ohio Commission Energy Advocate Comments at 8;
Taxpayers Protection Alliance Comments at 2; Chamber of Commerce
Comments at 7; We Stand Comments at 1-144; Taxpayer Protection
Alliance Comments at 2; TAPS Comments at 4.
    \936\ DTE Electric Comments at 5-6.
    \937\ EEI Comments at 56-58.
    \938\ Alliant Energy Comments at 13-14; Ohio Commission Energy
Advocate Comments at 7-8.
---------------------------------------------------------------------------

    615. Consumer Alliance and EEI argue that reducing the threshold
will reduce costs to customers because currently some QFs with access
to markets are foregoing the opportunity to participate in those
markets and electing to contract with electric utilities under state-
implemented PURPA programs, which EEI argues compensate QFs at an
above-market rate.\939\
---------------------------------------------------------------------------

    \939\ EEI Comments at 58-59; Consumers Alliance Comments at 1-2.
---------------------------------------------------------------------------

    616. The Ohio Commission Energy Advocate argues that the rebuttable
presumption process for QFs provides an appropriate safety valve for
the lower threshold.\940\
---------------------------------------------------------------------------

    \940\ Ohio Commission Energy Advocate Comments at 8.
---------------------------------------------------------------------------

d. Comments Requesting Modifications/Clarifications
    617. Institute for Energy Research requests that the Commission
expand the rebuttable presumption of non-discriminatory access to QFs 1
MW and below if the market structure in a given state is appropriate.
Institute for Energy Research gives the example of Texas's open market
model, where generation is open to all comers of all sizes. Institute
for Energy Research also suggests that the Commission should include
some threshold now such that when other states achieve similar open
access market designs QFs 1 MW and below could be rebuttably presumed
to have non-discriminatory access to those markets, without the need to
undertake, at that time, a separate rulemaking on QFs 1 MW and
below.\941\
---------------------------------------------------------------------------

    \941\ Institute of Energy Research Comments at 2.
---------------------------------------------------------------------------

    618. The Connecticut Commission suggests reducing the threshold at
which the presumption of nondiscriminatory access attaches to 0 MW
because the markets are more mature, the mechanics of participating in
the markets are improved and the law requires nondiscriminatory access
to the markets for all resources.\942\ Missouri River Energy recommends
lowering the threshold to 500 kW.\943\ FirstEnergy recommends the
Commission treat both small power production resources and cogeneration
resources consistently by lowering the rebuttable presumption threshold
from 20 MW to 1 MW for all QFs.\944\ Indiana Municipal requests that
the Commission automatically apply the 1 MW threshold to utilities that
have already been granted waiver for QFs over 20 MW to promote the
efficient use of the Commission's resources and savings to
utilities.\945\
---------------------------------------------------------------------------

    \942\ Connecticut Commission Comments at 21-23.
    \943\ Missouri River Energy Comments at 3.
    \944\ FirstEnergy Comments at 2-3.
    \945\ Indiana Municipal Comments at 8-9.
---------------------------------------------------------------------------

    619. The Michigan Commission requests clarification on the NOPR
proposal specifically regarding: (1) How existing contracts with QFs
greater than 1 MW but below 20 MWs are to be treated under the NOPR,
and if they would be subject to early termination or would be granted
legacy treatment indefinitely or until the end of the existing contract
term; (2) whether utilities that have already received relief from the
mandatory purchase obligation from the Commission for operating within
the footprint of an organized wholesale electricity market
automatically qualify for relief under the 1 MW threshold; and (3) how
interconnection requirements would be considered for QFs between 1 MW
and 20 MWs--specifically whether these projects would need to
interconnect at transmission level voltages to be considered as having
access to the wholesale electricity market.\946\ The Michigan
Commission notes that there is some tension between the proposal and
the market rules for MISO and PJM.\947\
---------------------------------------------------------------------------

    \946\ Michigan Commission Comments at 6-7
    \947\ Id. at 7 (commenting that MISO, for example, utilizes a 5
MW threshold as the cut off point for Network Modeling purposes and
that resources less than 5 MW are modeled on a case-by-case basis
only).
---------------------------------------------------------------------------

    620. Several commenters request that the Commission expand the
exemption for cogeneration to small power QFs whose primary purpose is
to self-supply but still rely on PURPA when making occasional sales to
the interconnected utility when QF output exceeds on-site
consumption.\948\ Industrial Energy

Consumers suggest that small power producers seeking a 20 MW self-
supply exemption meet the ``fundamental use test'' which currently
applies to cogeneration facilities.\949\ Other commenters assert that
behind-the-meter distributed energy resources,\950\ Waste to Energy
resources,\951\ and baseload renewables \952\ are similar to
cogeneration facilities and should be included in the exemption.
---------------------------------------------------------------------------

    \948\ ELCON Comments at 32-33; Industrial Energy Consumers
Comments at 6-8; Chamber of Commerce Comments at 7.
    \949\ Industrial Energy Consumers Comments at 9-10.
    \950\ One Energy Comments at 2.
    \951\ Industrial Energy Consumers Comments at 9-10.
    \952\ Renewable Baseload Coalition Comments at 2.
---------------------------------------------------------------------------

    621. Public Interest Organizations request that the Commission
clarify that utilities are required to petition to eliminate the must-
purchase obligation for small QFs, even for those utilities that have
previously made such a showing for QFs larger than 20 MW.\953\ NRECA,
concerned over a potential change in aggregation for distributed energy
resources in RTOs/ISOs, requests that the Commission clarify that the
presumption will only apply to those facilities having sufficient
transmission access to the RTO/ISO markets.\954\
---------------------------------------------------------------------------

    \953\ Public Interest Organizations Comments at 76.
    \954\ NRECA Comments at 18-19.
---------------------------------------------------------------------------

    622. Hydropower Association asserts that, despite their potential,
hydropower resources do not receive the same tax treatment and
eligibility for state RPSs and therefore have not enjoyed the same
growth rate as other renewable energy small power producers. Hydropower
Association urges the Commission to retain the 20 MW rebuttable
presumption for hydropower resources, as would be the case for
cogenerators, because hydropower resources are required by the FPA
section 10(a) to be best adapted for comprehensive uses, including non-
power generation purposes such as irrigation, flood control,
navigation, recreation, environmental restoration, and wildlife
preservation. Hydropower Association states that non-powered dams by
definition were not constructed to generate power. Because power
generation is therefore a secondary use of these facilities, Hydropower
Association asserts that subjecting these facilities to new avoided
cost calculations will necessarily burden hydropower resources more
than other small power production facilities. Hydropower Association
also asserts that there is almost 5 GW of potential non-power dams that
could be developed and that the 20 MW exemption should be retained for
these resources.\955\
---------------------------------------------------------------------------

    \955\ Hydropower Association Comments at 2-7 (citing 16 U.S.C.
803).
---------------------------------------------------------------------------

    623. Ohio Consumers Counsel states that lowering the rebuttable
presumption could permit electric utilities and state policies to deny
QFs and distributed energy resources under 20 MW from having
unrestricted and nondiscriminatory access to wholesale markets. For
example, Ohio Consumers Counsel states that the NOPR would permit
electric distribution utilities to limit the availability of after-the-
meter generation and storage from PJM's markets, such as through
restrictive net metering requirements, unreasonably low compensation
for distributed energy resources, or other state regulatory and policy
restrictions. Ohio Consumers Counsel urges the Commission to require
that investor-owned electric distribution utilities demonstrate that
they have not restricted market access to QFs and distributed energy
resources rated between 1 MW and 20 MW.\956\
---------------------------------------------------------------------------

    \956\ Ohio Consumers Counsel Comments at 2-5.
---------------------------------------------------------------------------

e. Commission Determination
    624. We agree with commenters that, in Order Nos. 688 and 688-A,
given conditions at the time, the Commission established the rebuttable
presumption at QFs 20 MW or less. Furthermore, as commenters noted in
reviewing several individual cases in 2013-2015, the Commission
continued to find that those individual small power production
facilities 20 MW or less still needed the additional protections and
encouragement.\957\ However, since Order Nos. 688 and 688-A the
Commission has recognized multiple examples of small power production
facilities under 20 MW participating in RTO/ISO energy markets. The
Commission found that the electric utilities in those proceedings
rebutted the presumption of no market access and therefore terminated
the mandatory purchase obligation.\958\
---------------------------------------------------------------------------

    \957\ PPL Elec. Utilities Corp., 145 FERC ] 61,053 at P 24; Va.
Elec. & Power Co., 151 FERC ] 61,038, at P 21; N. States Power Co.,
151 FERC ] 61,110.
    \958\ See, e.g., Fitchburg Gas and Elec. Light Co., 146 FERC ]
61,186, at P 33 (2014); City of Burlington, Vt., 145 FERC ] 61,121,
at P 33 (2013).
---------------------------------------------------------------------------

    625. We adopt the proposal to revise 18 CFR 292.309(d) to reduce
the net power production capacity level at which the presumption of
nondiscriminatory access to a market attaches for small power
production facilities, but not for cogeneration facilities. However,
recognizing some of the challenges that QFs near 1 MW have in
participating in such markets that have been identified by commenters,
in this final rule we lower the rebuttable presumption from 20 MW to 5
MW, rather than from 20 MW to 1 MW as proposed in the NOPR. Under the
final rule, small power production facilities with a net power
production capacity at or below 5 MW will be presumed not to have
nondiscriminatory access to markets, and, conversely, small power
production facilities with a net power production capacity over 5 MW
will be presumed to have nondiscriminatory access to markets.
    626. A number of commenters oppose the reduction below 20 MW,
arguing the lack of a record to support the proposal. We disagree. In
Order Nos. 688 and 688-A, the Commission determined that small QFs may
not have nondiscriminatory access to wholesale markets and, therefore,
it was reasonable to establish a presumption for small QFs. At that
time, the Commission found that it was ``reasonable and
administratively workable'' to define ``small'' for purposes of this
regulation to be QFs below 20 MW.\959\ We also note that a number of
commenters, including state entities which are charged with applying
PURPA in their jurisdictions,\960\ supported a reduction in the 20 MW
threshold.
---------------------------------------------------------------------------

    \959\ See Order No. 688, 117 FERC ] 61,078 at PP 74-78
(establishing rebuttable presumption); Order No. 688-A, 119 FERC ]
61,305 at P 95 (``There is no perfect bright line that can be drawn
and we have reasonably exercised our discretion in adopting a 20 MW
or below demarcation for purposes of determining which QFs are
unlikely to have nondiscriminatory access to markets.'').
    \960\ See Connecticut Commission Comments at 20-21; Kentucky
Commission Comments at 8.
---------------------------------------------------------------------------

    627. The Commission acknowledged that there is no unique number to
draw a line for determining what is a small entity.\961\ In
establishing 20 MW presumption as the line between large and small QFs
for purposes of section 210(m), the Commission looked at other non-QF
rulemaking orders in which it considered what was a small entity and
those orders showed 20 MW was a reasonable number at which to draw the
line.\962\ But, as explained below, the Commission has since
determined, based on changed circumstances since the issuance of Order
Nos. 688 and 688-A, that entities with capacity lower than 20 MW have
nondiscriminatory access to the markets and, therefore, capacity

level of 20 MW may no longer be a reasonable place to establish the
presumption on what constitutes a smaller entity under our regulations.
---------------------------------------------------------------------------

    \961\ Order No. 688-A, 119 FERC ] 61,305 at P 97 (``Although
there is no unique and distinct megawatt size that uniquely
determines if a generator is small, in other contexts the Commission
has used 20 MW, based on similar considerations to those presented
here, to determine the applicability of its rules and policies.'').
    \962\ See Order No. 688, 117 FERC ] 61,078 at P 76; Order No.
688-A, 119 FERC ] 61,305 at PP 96-97.
---------------------------------------------------------------------------

    628. Similar to our analysis in Order No. 688, we have determined
that entities below 20 MW now can participate in RTO/ISO markets.\963\
Here, we are updating the rebuttable presumption based on industry
changes since Order No. 688. Moreover, it is reasonable to update the
rebuttable presumption as markets defined in PURPA section
210(m)(1)(A), (B), and (C) evolve because that statute itself does not
establish a presumption and we are updating the rules, as PURPA
provides we will do from time to time, to ensure we comply with PURPA.
However, because the revised presumption established in this final rule
is a rebuttable presumption, QFs can seek to overcome it.
---------------------------------------------------------------------------

    \963\ In fact, when the Commission established the rebuttable
presumption of 20 MW, commenters in that proceeding cited instances
where QFs at 1 MW or above had already had nondiscriminatory access
to RTOs/ISOs. See Order No. 688, 117 FERC ] 61,078 at PP 64-66.
---------------------------------------------------------------------------

    629. Over the last 15 years, the RTO/ISO markets have matured,
market participants have gained a better understanding of the mechanics
of such markets, and, as a result, we find that it is reasonable to
presume that access to the RTO/ISO markets has improved and that it is
appropriate to update the presumption for smaller production
facilities. As we did in Order No. 688, we have looked to indicia in
other orders to determine where the presumption should be set.
    630. We find that at this time, market rules are inclusive of power
producers below 20 MW participating in markets. For example, since the
issuance of Order No. 688, the Commission has required public utilities
to increase the availability of a Fast-Track interconnection process
for projects up to 5 MW.\964\ That the Commission chose a 5 MW cut-off
for eligibility for the fast-track procedures represents an implicit
judgment by the Commission that facilities larger than 5 MW do not need
such procedures to be able to interconnect to the grid.
---------------------------------------------------------------------------

    \964\ Order No. 792, 145 FERC ] 61,159, at P 103, clarified,
Order No. 792-A, 146 FERC ] 61,214.
---------------------------------------------------------------------------

    631. While the existence of Fast-Track interconnection processes
does not on its own demonstrate nondiscriminatory access for resources
under 20 MW, it does indicate that entities smaller than 20 MW have
access to the market. Presuming that QFs above 5 MW have such access is
therefore a reasonable approach to identifying a capacity level at
which to update the rebuttable presumption of nondiscriminatory market
access.
    632. Additionally, since the issuance of Order No. 688 the
Commission has required each RTO/ISO to update its tariff to include a
participation model for electric storage resources that established a
minimum size requirement for participation in the RTO/ISO markets that
does not exceed 100 kW.\965\ These proposals require RTO/ISOs to revise
their tariffs to provide easier access for smaller resources. Requiring
markets to accommodate storage resources to as low as 100 kW also
supports that resources smaller than 20 MW have nondiscriminatory
access to those RTO/ISO markets. The Commission believes that these
developments support updating the 20 MW presumption to a lower number.
---------------------------------------------------------------------------

    \965\ Order No. 841, 162 FERC ] 61,127 at P 265.
---------------------------------------------------------------------------

    633. Commenters argue that individually each of these changes in
circumstances, standing alone, may not support the reduction of the
threshold below 20 MW. But when the changes are viewed together, we
find that their cumulative effect demonstrates that it is reasonable
for the Commission to maintain a small entity rule but update its
determination of what is a small entity under this presumption under
the PURPA regulations. Additionally, the prospect of increased
participation of distributed energy resources in energy markets further
supports the proposition that wholesale markets are accommodating
resources with smaller capacities.\966\
---------------------------------------------------------------------------

    \966\ See, e.g., Elec. Participation in Mkts Operated by Reg'l
Transmission Orgs and Independent Sys. Operators, 157 FERC ] 61,121,
P 129 (2016) (``The costs of distributed energy resources have
decreased significantly, which when paired with alternative revenue
streams and innovative financing solutions, is increasing these
resources' potential to compete in and deliver value to the
organized wholesale electric markets.'' (footnote omitted)).]
---------------------------------------------------------------------------

    634. The Commission recognizes that certain of these precedents
would support reducing the presumption below 5 MW, and perhaps even
lower than 1 MW. However, the Commission has carefully considered the
comments detailing the problems that QFs have had in participating in
RTO/ISO markets, problems that necessarily are more acute for smaller
QFs at or near the 1 MW threshold proposed in the NOPR.\967\ The
Commission therefore has determined that a 5 MW is a more reasonable
threshold of non-discriminatory access to RTO/ISO markets.
---------------------------------------------------------------------------

    \967\ See, e.g., Allco Comments at 17-19; Advanced Energy
Economy Comments at 10-11; DC Commission Comments at 5; Public
Interest Organizations Comments at 89-90; SEIA Comments at 45-49.
---------------------------------------------------------------------------

    635. Based on the foregoing, we find it reasonable to update the
presumption under these regulations as to what constitutes a small
entity that has non-discriminatory access to RTO/ISO markets and
markets of comparable competitive quality below 20 MW, and that 5 MW
represents a reasonable new threshold that accounts for the change of
circumstances indicating that 20 MW no longer is appropriate but also
accommodates commenters' concerns that a 1 MW threshold would be too
low. We acknowledge that ``there is no unique and distinct megawatt
size that uniquely determines if a generator is small.'' \968\ We find
that a 5 MW threshold accords with PURPA's mandate to encourage small
power production facilities, recognizes the progress made in wholesale
markets as discussed above, and balances the competing claims of those
seeking a lower threshold and those seeking a higher threshold.
---------------------------------------------------------------------------

    \968\ Order No. 688-A, 119 FERC ] 61,305 at P 97.
---------------------------------------------------------------------------

    636. Individual small power production QFs that are over 5 MW and
less than 20 MW can seek to make the case, however, that they do not
truly have nondiscriminatory access to a market and should still be
entitled to a mandatory purchase obligation.
    637. Regarding Advanced Energy Economy's argument that the
Commission failed to sufficiently justify its change in policy, we
disagree.\969\ In FCC v. Fox Television, the court stated that, when an
agency makes a change in policy, the agency must show that there are
good reasons for the change, ``[b]ut it need not demonstrate to a
court's satisfaction that the reasons for the new policy are better
than the reasons for the old one; it suffices that the new policy is
permissible under the statute, that there are good reasons for it, and
that the agency believes it to be better, which the conscious change of
course adequately indicates.'' \970\
---------------------------------------------------------------------------

    \969\ Advanced Energy Economy Comments at 6 (citing FCC v. Fox
Television, 556 U.S. at 515).
    \970\ FCC v. Fox Television, 556 U.S. at 515.
---------------------------------------------------------------------------

    638. To be clear, we are maintaining our determination from Order
No. 688 that small entities potentially may not have non-discriminatory
access for purposes of PURPA section 210(m). However, as explained
above, the Commission has determined that using 20 MW as an indicator
of what constitutes a small entity is no longer valid. Entities below
20 MW increasingly have access to the markets, become familiar with
practices and procedures, and that markets have since

implemented several changes to provide easier access to smaller
facilities, including small power production QFs, storage facilities,
and distributed energy resources. These changes demonstrate a change in
facts since the time we issued Order No. 688 which supports our
updating of what constitutes a small entity for purposes of PURPA
section 210(m).
    639. Accordingly, we decline to adopt Ohio Consumers Counsel's
suggestion that electric utilities continue to have the burden to
demonstrate that certain small power production QFs under 20 MW have
nondiscriminatory access to markets like PJM before being relieved of
the mandatory purchase obligation for such QFs.
    640. While we find that it is reasonable to update the rebuttable
presumption from 20 MW to 5 MW, we recognize commenters' concerns
regarding specific barriers to participation in RTO markets that may
affect the nondiscriminatory access to those markets of some individual
small power production facilities between 5 MW and 20 MW.
    To address these concerns, we additionally are revising 18 CFR
292.309(c)(2)(i)-(vi) to include factors that small power production
facilities between 5 MW and 20 MW can point to in seeking to rebut the
presumption that they have nondiscriminatory access. These factors are
in addition to the existing ability, pursuant to 18 CFR 292.309(c), to
rebut the presumption of access to the market by demonstrating, inter
alia, operational characteristics or transmission constraints.
    641. Specifically, the Commission adds to 18 CFR 292.309(c) the
following five factors: (1) Specific barriers to connecting to the
interstate transmission grid, such as excessively high costs and
pancaked delivery rates; (2) the unique circumstances impacting the
time/length of interconnection studies/queue to process small power QF
interconnection requests; (3) a lack of affiliation with entities that
participate in RTO/ISO markets; (4) a predominant purpose other than
selling electricity which would warrant the small power QF being
treated similarly to cogenerators (e.g., municipal solid waste
facilities, biogas facilities, run-of-river hydro facilities, and non-
powered dams); (5) the QF has certain operational characteristics that
effectively prevent the qualifying facility's participation in a
market; and (6) the QF lacks access to markets due to transmission
constraints, including that it is located in an area where persistent
transmission constraints in effect cause the QF not to have access to
markets outside a persistently congested area to sell the QF output or
capacity. This is not intended to be an exhaustive list of the factors
that a QF could rely upon in seeking to rebut the presumption. These
factors, among other indicia of lack of nondiscriminatory access, will
be assessed by the Commission on a case-by-case basis in considering a
claim that the presumption of nondiscriminatory access to the defined
markets should be considered rebutted for a specific QF.
    642. The addition of these factors addresses commenters' concern
that not all small power production facilities between 5 and 20 MW may
have nondiscriminatory access to competitive markets, and facilitates
the ability of small power production facilities facing barriers to
participation in RTO markets to demonstrate their lack of access. For
example, while a small power production facility between 5 MW and 20 MW
does not need to be physically interconnected to transmission
facilities to be considered as having access to the statutorily-defined
wholesale electricity markets, we recognize there are some small power
production facilities between 5 MW and 20 MW that may face additional
barriers, such as excessively high costs and pancaked delivery rates,
to access wholesale markets.
    643. For example, several commenters express concern over the
resources or administrative burden for some small power QFs that lack
the necessary experience or expertise to participate in energy markets.
Recognizing these concerns, we have added consideration of both the
fact that some small power production facilities will face additional
difficulties due to costs, administrative burdens, length of the
interconnection study process and the size of the queues, and the fact
that some small power production QFs do not have access to the
expertise of affiliated entities.
    644. We agree with commenters that some small power production
facilities are similar to cogeneration facilities because their
predominant purpose is not power production. Like cogeneration
facilities, the sale of electricity from these small power production
facilities is a byproduct of another purpose and these facilities might
not be as familiar with energy markets and the technical requirements
for such sales. Therefore, we will allow the small subset of small
power production facilities that are between 20 MW and 5 MW to rebut
the presumption of access to markets where the predominant purpose of
the facility is other than selling electricity, and the sale of
electricity is simply a byproduct of that purpose. Finally, like all
QFs over 20 MW, we recognize that there may be particular small power
production facilities with certain operational characteristics or that
are located in an area where persistent transmission constraints in
effect cause the QF not to have access to markets outside a
persistently congested area to sell the QF output or capacity.
    645. While we appreciate Indiana Municipals' concern over
preserving Commission resources, we will deny its request to
automatically apply the lower threshold to utilities that have already
been granted termination for QFs over the 20 MW threshold. We find that
it is appropriate to require utilities that were previously granted
termination of the mandatory purchase obligation for new contracts and
obligations for QFs above 20 MW, but are now seeking to terminate the
mandatory purchase obligation for new contracts and obligations for
small power production facilities between 5 and 20 MW to follow the
procedures in 18 CFR 292.310, including procedures for providing notice
to those potentially affected QFs within their footprint. That is,
those utilities for which the Commission has already granted relief
from the mandatory purchase obligation for small power production
facilities over 20 MW must reapply with the Commission requesting
relief from the mandatory purchase obligation for small power
production facilities between 5 MW and 20 MW.
    646. Among other factors, the regulation's notice provision
mentioned above will allow small power production facilities between 5
MW and 20 MW an opportunity, if applicable, to present evidence that
their facility does not have nondiscriminatory access to defined
markets based on the factors discussed above.\971\ In the proceeding in
which the utility seeks to terminate the mandatory purchase obligation
between 5 MW and 20 MW, we will not entertain arguments that the
utility should lose its previously granted termination of purchase
obligation at 20 MW and above; our regulations provide how a mandatory
purchase obligation can be reinstated. We do not, in this final rule,
change a QF's right to seek reinstatement of the mandatory purchase
obligation where the conditions set forth in 18 CFR 292.309(a), (b), or
(c) are no longer met.\972\
---------------------------------------------------------------------------

    \971\ 18 CFR 292.310.
    \972\ See 18 CFR 292.311.
---------------------------------------------------------------------------

    647. Regarding the Michigan Commission's questions, this final rule

preserves the rights or remedies of any party under existing contracts
or obligations, in effect or pending approval before the appropriate
state regulatory authority or non-regulated electric utility on or
before December 31, 2020 with QFs between 5 MW and 20 MW. Consistent
with Commission precedent, this final rule defines the term
``obligations'' broadly to encompass any existing legally enforceable
obligation.\973\
---------------------------------------------------------------------------

    \973\ See Cedar Creek Wind LLC, 137 FERC ] 61,006, at PP 35-36
n.62 (2011) (stating that courts have recognized negotiations
regarding terms that parties to the negotiations intend to become
finalized or written contract, may in some circumstances result in
legally enforceable obligations on those parties notwithstanding the
absence of a writing). See generally Burbach Broadcasting Co. of
Delaware v. Elkins Radio Corp., 278 F.3d 401, 407-09 (4th Cir.
2002); Adjustrite Systems, Inc. v. GAB Business Serv., Inc., 145
F.3d 543, 550 (2d Cir. 1998); Miller Constr. Co. v. Stresstek, 697
P.2d 1201, 1202-04 (Idaho 1985).); see also JD Wind 1, LLC, 129 FERC
] 61,148 at P 25; Grouse Creek Wind Park, LLC, 142 FERC ] 61,187 at
PP 40-41.
---------------------------------------------------------------------------

2. Reliance on RFPs and Liquid Market Hubs To Terminate Purchase
Obligation Under PURPA Section 210(m)
a. NOPR Discussion
    648. In the NOPR, the Commission noted that NARUC had proposed that
the Commission allow utilities to rely on RFPs (in combination with
liquid market hubs) to establish eligibility to terminate a utility's
purchase obligation pursuant to PURPA section 210(m)(1)(C).\974\ After
describing generally how such a proposal might be structured, NARUC
suggested that ``[t]he Commission should create a yardstick of
characteristics that describe in detail how a utility could qualify for
an exemption under subparagraph (C).'' \975\
---------------------------------------------------------------------------

    \974\ NOPR, 168 FERC ] 61,184 at P 131 (citing NARUC
Supplemental Comments, Docket No. AD16-16-000 (filed Oct. 17,
2018)).
    \975\ Id., attach. A at 9.
---------------------------------------------------------------------------

    649. The Commission stated that, under the PURPA Regulations,
electric utilities already may seek to terminate their mandatory
purchase obligation pursuant to PURPA section 210(m)(1)(C) by
demonstrating that a particular market is of comparable competitive
quality to markets described in PURPA section 210(m)(1)(A) and
(B).\976\ The Commission further noted that the current PURPA
Regulations are not prescriptive about how an electric utility must
make such a demonstration and nothing in the PURPA Regulations or
precedent would bar an electric utility from arguing that RFPs in
combination with liquid market hubs are sufficient to satisfy PURPA
section 210(m)(1)(C).
---------------------------------------------------------------------------

    \976\ Id. P 132 (citing Order No. 688-A, 119 FERC ] 61,305 at P
43 (``Congress believed the two types of markets identified in
subparagraphs (A) and (B), while distinct between themselves,
contain certain competitive qualities that justify termination of
the purchase requirement for any QF with nondiscriminatory access to
those markets. Subparagraph (C) directs the Commission to consider
these competitive qualities when analyzing whether there are other
markets that, while not meeting the specific requirements of
subparagraphs (A) and (B), are sufficiently competitive to justify
termination of the purchase requirement.'')); cf. Pub. Serv. Co. of
N.M., 140 FERC ] 61,191, at PP 29-38 (2012) (denying application to
terminate mandatory purchase obligation on the grounds that the Four
Corners Hub is not of comparable competitive quality to markets in
sections 210(m)(1)(A) and (B) of PURPA)).
---------------------------------------------------------------------------

    650. The Commission then stated that it believed that a properly
structured proposal along the lines proposed by NARUC potentially could
satisfy the statutory requirements under PURPA section 210(m)(1)(C) and
that it would consider such proposals on a case-by-case basis. Although
the Commission did not propose additional criteria a utility or
utilities may rely on to satisfy PURPA section 210(m)(1)(C), the
Commission sought comments on any specific factors that would be useful
to consider in determining how a utility or utilities may satisfy PURPA
section 210(m)(1)(C).\977\
---------------------------------------------------------------------------

    \977\ Id. P 133.
---------------------------------------------------------------------------

b. Comments
i. Comments in Opposition
    651. A few commenters do not support allowing competition to be an
alternative to the mandatory purchase obligation.\978\ ELCON is
concerned that no state competitive procurement is robust enough to
replace avoided capacity costs.\979\ Solar Energy Industries supports
using RFPs to set avoided cost rates, but does not support using RFPs
to vitiate utilities' mandatory purchase obligations.\980\
---------------------------------------------------------------------------

    \978\ Allco Comments at 17-19; Public Interest Organizations
Comments at 90.
    \979\ ELCON Comments at 19.
    \980\ Solar Energy Industries Comments at 24 (citing Solar
Energy Industries, Supplemental Comments, Docket No. AD16-16-000, at
10-37, 40-58 (filed Aug. 28, 2019)).
---------------------------------------------------------------------------

    652. Public Interest Organizations contend that RFPs are not
comparable in quality to PURPA section 210(m)(1)(A) or (B) markets
because there is only a single buyer and there are no safeguards
against the anti-competitive behavior of that buyer, such as favoring
its own or an affiliate's generation.\981\ NIPPC, CREA, REC, and OSEIA
state that, while they agree in principle that competition should be
the motivating force in energy markets, their experience shows that
utility-sponsored RFP programs often fall far short of genuine
competition.\982\
---------------------------------------------------------------------------

    \981\ Public Interest Organizations Comments at 93.
    \982\ NIPPC, CREA, REC, and OSEIA Comments at 66.
---------------------------------------------------------------------------

    653. Public Interest Organizations state that Order No. 688-A
specifies that demonstrating that a market offers ``a meaningful
opportunity to sell'' usually requires evidence of QF transactions,
which is not possible with a market hub.\983\ Public Interest
Organizations argue that market hubs are not equivalent to PURPA
section 210(m)(1)(A) or (B) markets because, unlike an independently
administered auction, there is no guarantee that a QF will be able to
sell their energy even if it is the lowest cost resource.\984\
---------------------------------------------------------------------------

    \983\ Public Interest Organizations Comments at 92 (citing Order
No. 688-A, 119 FERC ] 61,305 at P 38).
    \984\ Id.
---------------------------------------------------------------------------

    654. Public Interest Organizations further contend that the
Commission does not have the authority to approve RFPs or liquid market
hubs as PURPA section 210(m)(1)(C) wholesale markets because they are
not of comparable qualify to Day 1 or Day 2 markets, i.e., to PURPA
section 210(a)(1)(A) or (B) markets.\985\
---------------------------------------------------------------------------

    \985\ Id. at 90-91.
---------------------------------------------------------------------------

ii. Comments in Support
    655. Several commenters support allowing competition to be an
alternative to the mandatory purchase obligation.\986\ ELCON supports
competitive procurements that exempt industrial self-supply.\987\
---------------------------------------------------------------------------

    \986\ Advanced Energy Economy Comments at 12; APPA Comments at
29; Colorado Independent Energy Comments at 7; Xcel Comments at 11.
    \987\ ELCON Comments at 19.
---------------------------------------------------------------------------

    656. APPA supports the Commission reviewing factors that would
determine if a market is competitive and comparable to PURPA sections
210(m)(1)(A) and (B).\988\ Xcel proposes that the PURPA section
210(m)(1)(C) test should evaluate whether market players have a
reasonable opportunity to participate in the market, rather than
whether the type of market is similar to PURPA section 210(m)(1)(A) and
(B) markets.\989\ A few commenters requested a technical conference to
identify the criteria for determining what processes are
competitive.\990\ Colorado Independent Energy would like the RFP
standard for PURPA section 210(m)(1)(C) status to be higher than for QF
pricing and include evaluation of bid data and the modeling process to
show the absence of bias against renewable and cogeneration

projects and likewise the absence of bias for utility self-build
projects.\991\
---------------------------------------------------------------------------

    \988\ APPA Comments at 26-29.
    \989\ Xcel Comments at 11.
    \990\ Advanced Energy Economy Comments at 13; ELCON Comments at
19.
    \991\ Colorado Independent Energy Comments at 6, 11-12.
---------------------------------------------------------------------------

    657. Arizona Public Service agrees with NARUC that the Commission
should allow utilities to rely on RFPs to establish eligibility to
terminate the utility's purchase obligation pursuant to PURPA section
210(m)(1)(C). Arizona Public Service believes this proposal is one way
a utility could demonstrate that a market is of comparable competitive
quality to the markets described in PURPA sections 210(m)(1)(A) and
(B).\992\
---------------------------------------------------------------------------

    \992\ Arizona Public Service Comments at 8-10.
---------------------------------------------------------------------------

    658. APPA argues that market hubs should be considered as possibly
comparable, particularly to PURPA section 210(m)(1)(B), which requires
that QFs have access to Commission-approved transmission service and
competitive wholesale markets for long and short-term capacity and
energy sales.\993\ APPA highlights the Commission finding that the Mid-
Columbia and Palo Verde hubs have sufficient liquidity to find just and
reasonable rates and adds that an empirical test of market liquidity
could be created.\994\
---------------------------------------------------------------------------

    \993\ APPA Comments at 27.
    \994\ Id. at 28.
---------------------------------------------------------------------------

c. Commission Determination
    659. In this final rule, we affirm that we will consider utility
proposals to terminate the purchase obligation pursuant to PURPA
section 210(m)(1)(C) on a case-by-case basis, including utility
proposals based on competitive solicitations or liquid market hubs.
    660. In response to Public Interest Organizations, as explained
above in Section IV.A.1, PURPA section 210(m) obligates the Commission
to grant any request to terminate a utility's obligation to purchase
from a QF with nondiscriminatory access to the specified markets that
satisfy that provision. Whether any particular market is of comparable
quality to a Day 1 or Day 2 market necessarily must be determined in
the context of an individual case.
    661. We refrain from outlining here an exhaustive list of factors
that will be used in any such case-by-case evaluation, but at a minimum
we will be guided by the important criteria discussed previously in
this rule in section IV.B.8 on the use of competitive solicitations to
determine avoided costs.
    662. Consistent with our findings and discussion in section IV.B.4
on the use of market hubs to determine avoided cost, the Commission
finds that competitive market prices in general should reflect the
avoided cost energy rates of utilities with access to such markets in a
given region. We will therefore consider, on a case-by-case basis,
whether a properly run RFP or competitive acquisition process may also
justify termination of the PURPA purchase obligation pursuant to PURPA
section 210(m)(1)(C).

H. Legally Enforceable Obligation

1. NOPR Proposal
    663. The Commission proposed to add regulatory text in 18 CFR
292.304(d)(3) to require QFs to demonstrate that a proposed project is
commercially viable and that the QF has a financial commitment to
construct the proposed project pursuant to objective, reasonable,
state-determined criteria in order to be eligible for a LEO. The
Commission further proposed to provide that states have flexibility as
to what constitutes an acceptable showing of commercial viability and
financial commitment.
    664. The Commission stated that its objective in requiring a
showing of commercial viability and the QF's financial commitment to
construct the project was to ensure that no electric utility obligation
is triggered for those QF projects that are not sufficiently advanced
in their development and, therefore, for which it would be unreasonable
for a utility to include in its resource planning, while at the same
time ensuring that the purchasing utility does not unilaterally and
unreasonably decide when its obligation arises. The NOPR proposed that
states may require a showing, for example, that a QF has satisfied, or
is in the process of undertaking, at least some of the following
prerequisites: (1) Obtaining site control adequate to commence
construction of the project at the proposed location; (2) filing an
interconnection application with the appropriate entity; (3) securing
local permitting and zoning; or (4) other similar, objective,
reasonable criteria that allow a QF to demonstrate its commercial
viability and financial commitment to construct the facilities. The
NOPR stated that these proposed indicia were not intended to be
exhaustive and the Commission sought comment on these indicia and
others that also might be appropriate for consideration.
    665. The Commission stated that it believed requiring QFs to
demonstrate their commercial viability and financial commitment to
construct the facilities based on such indicia before obtaining a LEO
would allow electric utilities to reliably plan their systems while
ensuring resource adequacy. Additionally, the development and
definition of objective and reasonable factors to determine commercial
viability and financial commitment to construct a facility would
encourage the development of QFs by providing QFs with more certainty
as to when they will obtain a LEO.\995\
---------------------------------------------------------------------------

    \995\ Because QFs already in operation have necessarily
demonstrated a commitment to construct the project, the Commission
stated that it does not intend commercial viability and financial
commitment requirements to serve as prerequisites to QFs already in
operation with existing LEOs to obtaining new LEOs.
---------------------------------------------------------------------------

2. Comments
a. Comments in Opposition
    666. Several commenters oppose the Commission's proposal to require
QFs to demonstrate that a proposed project is commercially viable and
the QF has a financial commitment to construct the proposed project
pursuant to objective, reasonable, state-determined criteria in order
to be eligible for a LEO and that states have flexibility as to what
constitutes an acceptable showing of commercial viability and financial
commitment, arguing it undermines PURPA's intent to promote QF
development.\996\
---------------------------------------------------------------------------

    \996\ NIPPC, CREA, REC, and OSEIA Comments at 81; Public
Interest Organizations Comments at 98; Western Resource Councils
Comments at 144.
---------------------------------------------------------------------------

    667. NIPPC, CREA, REC, and OSEIA argue that developers cannot
obtain financing without the financial commitment of a PPA or LEO from
the utility and therefore requiring financial viability as a condition
precedent to obtain a LEO is problematic.\997\ Western Resource
Councils argues that the NOPR proposal represents an onerous financial
and bureaucratic barrier that will lead to a substantial reduction in
the number of QFs.\998\
---------------------------------------------------------------------------

    \997\ NIPPC, CREA, REC, and OSEIA Comments at 81.
    \998\ Western Resource Councils Comments at 144.
---------------------------------------------------------------------------

    668. Southeast Public Interest Organizations argue that the
proposal does not sufficiently narrow the range of divergent LEO tests
that have already been adopted by the states and opposes allowing
states additional flexibility in establishing criteria up to a fully
executed agreement.\999\ sPower requests that the Commission establish
specific criteria and prohibit states from imposing any additional
criteria.\1000\ Solar Energy Industries requests that the Commission
develop a concrete baseline

in determining when a QF is entitled to a purchase contract.
---------------------------------------------------------------------------

    \999\ Southeast Public Interest Organizations Comments at 43
    \1000\ sPower Comments at 14.
---------------------------------------------------------------------------

    669. Solar Energy Industries and Public Interest Organizations
argue that requiring developers to invest additional capital prior to
obtaining a LEO will prevent smaller companies who are unable to invest
heavily in early state development activity from participating.\1001\
Solar Energy Industries argue that it is unjust and unreasonable to
require QFs to invest millions of dollars in site control, permit
acquisition and interconnection costs in order to secure the
opportunity to negotiate with the purchasing utility. For those states
that do not willingly disclose their avoided cost rates or methodology,
the NOPR's LEO proposal requires QFs to incur substantial expense to
establish their commercial viability without a reasonable understanding
of what their rate may be.\1002\
---------------------------------------------------------------------------

    \1001\ Solar Energy Industries Comments at 41; Public Interest
Organization Comments at 80-82.
    \1002\ Solar Energy Industries Comments at 41.
---------------------------------------------------------------------------

    670. In striking a balance between interconnection and development
risk, Solar Energy Industries proposes that the first prerequisite to a
LEO formation be either: (a) The completion of the System Impact Study
(or the equivalent in the state interconnection process); or (b) where
the utility cannot complete the System Impact Study within a reasonable
period of time, one year after tendering an interconnection request to
the host utility.\1003\ Where a QF has obtained site control, initiated
state permitting processes, submitted an interconnection request and
associated study deposit, and has been certified through the submission
of a Form No. 556, the Commission should find that the QF is eligible
to establish a LEO to sell to the purchasing utility, provided that:
(1) The QF has received a System Impact Study report (or equivalent) or
one year has elapsed since the QF's interconnection request was
tendered to the host utility; and (2) the QF commits to achieving
commercial operation within 180 days of the completion of all
interconnection facilities and network upgrades by the utility.\1004\
Solar Energy Industries asserts that QFs would, upon satisfaction of
these criteria, be legally entitled to negotiate with the purchasing
utility to develop a PPA setting forth the terms and conditions of the
purchase, including liability if the QF fails to perform. Projects that
reach agreement will proceed according to the terms of the PPA and the
purchasing utility can establish milestones with enough financial
protection to ensure that ratepayers will not be harmed if the QF fails
to begin operations.\1005\
---------------------------------------------------------------------------

    \1003\ Id. at 43.
    \1004\ Id.
    \1005\ Id.
---------------------------------------------------------------------------

    671. American Dams argues that Interconnection Agreements are
generally processed far too slowly, a problem that should be addressed
by the Commission.\1006\
---------------------------------------------------------------------------

    \1006\ American Dams Comments at 5-6.
---------------------------------------------------------------------------

    672. Southeast Public Interest Organizations support the
requirement of demonstrating site control, but state that requiring
permits can be time-consuming and costly such that pre-financing QFs
may not have the resources for the lengthy permitting process, and it
is unreasonable to expect a QF to incur these expenses until it has
secured a price for its output so that it can in turn secure financing
for the project.\1007\
---------------------------------------------------------------------------

    \1007\ Southeast Public Interest Organization Comments at 43-44.
---------------------------------------------------------------------------

b. Comments in Support
    673. Numerous commenters support the NOPR's LEO proposal, asserting
that state agencies are better positioned to develop criteria that
reflect their unique operational circumstances, resource planning needs
and risk appetite.\1008\ Several commenters note that the proposed
factors provide a reasonable balance between the planning needs of the
connecting utility and certainty to QF developers.\1009\ Several
commenters assert that requiring QFs to demonstrate commercial
viability and financial commitment will reduce the reliability or other
risks a utility faces by having to plan for its system needs or
resource adequacy around a QF that is never developed.\1010\
---------------------------------------------------------------------------

    \1008\ Alaska Power Comments at 1-2; APPA Comments at 30;
Chamber of Commerce at 8; Colorado Independent Energy Comments at
13; Connecticut Authority Comments at 24-25; Consumer Alliance
Comments at 2; Consumers Energy Comments at 5; East Kentucky
Comments at 3-4; East River at 2; El Paso Electric Comments at 6-7;
Golden Valley Comments at 7-8; Indiana Municipal Comments at 11-12;
Institute for Energy Research Comments at 2; Massachusetts DPU
Comments at 10; NARUC Comments at 7-8; NIPPC, CREA, REC, and OSEIA
Comments at 81; NRECA Comments at 21; North Carolina Commission
Staff Comments at 6; Northern Laramie Range Alliance Comments at 3-
4; Ohio Commission Energy Advocate Comments at 10; Oregon Commission
at 6.
    \1009\ Alliant Energy Comments at 21; Industrial Energy
Consumers Comments at 14-16.
    \1010\ Duke Energy Comments at 19; EEI Comments at 37.
---------------------------------------------------------------------------

    674. Several commenters agree that the proposed regulations will
provide certainty to host utilities and state commissions while
decreasing systems impact and associated costs.\1011\
---------------------------------------------------------------------------

    \1011\ Alliant Energy Comments at 21-22; NRECA at 21; Northern
Laramie Range Alliance Comments at 3-4.
---------------------------------------------------------------------------

    675. Connecticut Authority supports the proposal arguing that the
factors included in the NOPR will provide greater certainty and less
risk to QF developers and purchasing utilities which is consistent with
PURPA's goal of developing renewable resources.\1012\ The Chamber of
Commerce argues that the proposed factors indicate a developer's good-
faith intention to ultimately develop its proposed QF.\1013\ The
Michigan Commission states that it supports the proposal, currently has
a rulemaking and several cases pending regarding LEOs, and appreciates
any additional clarity the Commission could provide.\1014\
---------------------------------------------------------------------------

    \1012\ Connecticut Authority Comments at 24-25.
    \1013\ Chamber of Commerce Comments at 8.
    \1014\ Michigan Commission Comments at 7-8.
---------------------------------------------------------------------------

c. Comments Requesting Modification
    676. NIPPC, CREA, REC, and OSEIA request that the Commission: (1)
Further define the terms ``commercial viability'' and ``financial
commitment'' to avoid litigation; (2) clarify that any changes to the
LEO rules will not affect the viability of any executed contract
between a developer and utility, regardless of the facility's
development status; and (3) clarify that the LEO rules will not
preclude nor bar any utility from executing a PPA before the QF may be
able to demonstrate compliance with the implementation of LEO
rules.\1015\
---------------------------------------------------------------------------

    \1015\ NIPPC, CREA, REC, and OSEIA Comments at 81-83.
---------------------------------------------------------------------------

i. Studies
    677. NorthWestern requests that the Commission require more than
just the submission of an interconnection application prior to
obtaining a LEO in order to demonstrate that the proposal is more than
a speculative paper project.\1016\ Portland General requests that the
Commission allow states to require developers to have completed the
first interconnection study.\1017\ The South Dakota Commission states
that developers should be required to have completed a transmission
feasibility study or system impact study with a determination of the
interconnection costs the QF would be required to pay prior to
obtaining a LEO.\1018\ Portland General requests that off-system QFs be
required to have completed the first study milestone of the
transmission service request.\1019\
---------------------------------------------------------------------------

    \1016\ NorthWestern Comments at 15-16.
    \1017\ Portland General Comments at 20.
    \1018\ South Dakota Commission Comments at 2.
    \1019\ Portland General Comments at 20.
---------------------------------------------------------------------------

    678. SC Solar Alliance requests that the Commission adopt a recent
South Carolina Commission ruling that a QF should be able to establish
a LEO after

receiving a System Impact Study or within one year if a System Impact
Study is not provided in a timely manner and that PPA in-service dates
must be extended based on interconnection delays.\1020\
---------------------------------------------------------------------------

    \1020\ SC Solar Alliance Comments at 15.
---------------------------------------------------------------------------

ii. Commercial Viability
    679. Alliant Energy requests that the Commission consider requiring
QF developers to have contracts in place with equipment suppliers and
an analysis of interconnections needed.\1021\
---------------------------------------------------------------------------

    \1021\ Alliant Energy Comments at 22.
---------------------------------------------------------------------------

    680. North Carolina Commission Staff requests that the Commission
adopt a North Carolina Commission standard that QFs must (1) commit to
sell their power via a written notice of commitment by the earlier of
105 days after submission of an interconnection request or upon receipt
of the system impact study, (2) have filed a report of proposed
construction, and (3) submitted an interconnection request under the
state's interconnection protocol which requires the QF to demonstrate
site control.\1022\ sPower argues that option contracts should be
sufficient to demonstrate site control.\1023\
---------------------------------------------------------------------------

    \1022\ North Carolina Commission Staff Comments at 6.
    \1023\ sPower Comments at 15.
---------------------------------------------------------------------------

iii. Financial Viability
    681. Portland General and sPower suggest requiring developers to
pay a deposit to state commissions to demonstrate financial viability
with the amount based on the capacity of the QF and released upon
project completion.\1024\ Portland General asserts that having to post
a deposit encourages developers to perform sufficient due diligence
prior to claiming a LEO.\1025\
---------------------------------------------------------------------------

    \1024\ Portland General Comments at 15-16; sPower Comments at
14-15.
    \1025\ Portland General Comments at 20-21.
---------------------------------------------------------------------------

    682. North Carolina Commission Staff argues that, in order to
protect ratepayers from QFs gaming the process, any project that backs
out of its notice of commitment should only receive as-available rates
for two years.\1026\
---------------------------------------------------------------------------

    \1026\ North Carolina Commission Staff Comments at 6.
---------------------------------------------------------------------------

iv. Rejecting QF Purchases and Expanded Curtailment Rights
    683. North Carolina Commission Staff suggests that the Commission
update its regulations to allow curtailing QFs when it would be
uneconomic for the utility to make such purchases.\1027\ The Institute
for Energy Research argues that the Commission should allow a utility
to reject purchases from QFs if the utility has no need for additional
capacity. The Institute for Energy Research states that such need could
be determined separately, on an annual basis, a stand-alone basis, or
as part of an IRP process.\1028\
---------------------------------------------------------------------------

    \1027\ Id. at 8.
    \1028\ Institute for Energy Research Comments at 2-3.
---------------------------------------------------------------------------

3. Commission Determination
    684. In this final rule, we adopt the NOPR proposal to require QFs
to demonstrate that a proposed project is commercially viable and that
the QF has a financial commitment to construct the proposed project,
pursuant to objective, reasonable, state-determined criteria in order
to be eligible for a LEO.\1029\ We also affirm that the states have
flexibility as to what constitutes an acceptable showing of commercial
viability and financial commitment, albeit subject to the criteria
being objective and reasonable. We find that requiring a showing of
commercial viability and financial commitment, based on objective and
reasonable criteria, will ensure that no electric utility obligation is
triggered for those QF projects that are not sufficiently advanced in
their development, and therefore, for which it would be unreasonable
for a utility to include in its resource planning. At the same time,
the criteria ensure that the purchasing utility does not unilaterally
and unreasonably decide when its obligation arises. We believe this
strikes the right balance for QF developers and purchasing utilities
and should encourage development of QFs.
---------------------------------------------------------------------------

    \1029\ NOPR, 168 FERC ] 61,184 at P 140.
---------------------------------------------------------------------------

    685. Examples of factors a state could reasonably require are that
a QF demonstrate that it is in the process of at least some of the
following prerequisites: (1) Taking meaningful steps to obtain site
control adequate to commence construction of the project at the
proposed location and (2) filing an interconnection application with
the appropriate entity. The state could also require that the QF show
that it has submitted all applications, including filing fees, to
obtain all necessary local permitting and zoning approvals. We note
that the factors that the state requires must be factors that are
within the control of the QF. Thus, we clarify that it is appropriate
for states to require a QF to demonstrate that it is in the process of
obtaining site control or has applied for all local permitting and
zoning approvals, rather than requiring a QF to show that it has
obtained site control or secured local permitting and zoning.
    686. We agree with Southeast Public Interest Organizations'
concerns regarding requiring QFs to obtain permits in order to
determine commercial viability. In some regions the permitting and
zoning process can be lengthy and expensive, making obtaining the
permits and zoning changes a condition to a LEO unreasonable.
Therefore, instead of requiring a QF to have secured local permitting
and zoning, states can require QFs to have applied for all of the
necessary permits and zoning variances, including the payment of all
necessary fees, as a factor in demonstrating the QF's commercial
viability. States may require a showing that such applications have
been submitted to the relevant regulatory bodies (including payment of
the application fees).
    687. Several commenters argue that requiring QFs to demonstrate
financial viability prior to obtaining a LEO is problematic because QFs
need a LEO to obtain financing.\1030\ However, demonstrating the
required financial commitment does not require a demonstration of
having obtained financing. Requiring QFs to, for example, apply for all
relevant permits, take meaningful steps to seek site control, or meet
other objective and reasonable milestones in the QF's development can
sufficiently demonstrate QF developers' financial commitment in the QF
development and allows utilities to reasonably rely on the LEO in
planning for system resource adequacy. Obtaining a PPA or financing
cannot be required to show proof of financial commitment.
---------------------------------------------------------------------------

    \1030\ NIPPC, CREA, REC, and OSEIA Comments at 81; Western
Resource Council Comments at 144.
---------------------------------------------------------------------------

    688. The intent of these factors is to provide a reasonable balance
between providing QFs with objective and transparent milestones up
front that are needed to obtain a LEO, allowing states the flexibility
to establish factors that address the individual circumstances of each
state, and increasing utilities' ability to accurately plan their
systems.\1031\ Establishing objective and reasonable factors is
intended to limit the number of unviable QFs obtaining LEOs and
unnecessarily burdening utilities that currently have to plan for QFs
that obtain a LEO very early in the process but ultimately are never
developed.\1032\ In adopting this provision, the Commission is raising
the bar to prevent speculative QFs from obtaining LEOs, and the
associated burden on purchasing utilities, but is

not establishing a barrier for financially committed developers seeking
to develop commercially viable QFs.
---------------------------------------------------------------------------

    \1031\ Alliant Energy Comments at 21; Industrial Energy
Consumers Comments at 14-16.
    \1032\ Duke Energy Comments at 19; EEI Comments at 37.
---------------------------------------------------------------------------

    689. We disagree that establishing reasonable, transparent factors
is an onerous barrier or will cause a substantial reduction of QFs. The
objective and reasonable criteria we have established will protect QFs
against onerous requirements for a LEO that hinder financing, such as a
requirement for a utility's execution of an interconnection agreement
\1033\ or power purchase agreement,\1034\ or requiring that QFs file a
formal complaint with the state commission,\1035\ or limiting LEOs to
only those QFs capable of supplying firm power,\1036\ or requiring the
QF to be able to deliver power in 90 days.\1037\ We find that, by
making clear that such conditions are not permitted, and by providing
objective criteria to clarify when a LEO commences, the LEO provisions
we have adopted will encourage the development of QFs.
---------------------------------------------------------------------------

    \1033\ See, e.g., FLS Energy, Inc., 157 FERC ] 61,211, at P 26
(2016) (FLS) (stating that requiring signed interconnection
agreement as prerequisite to LEO is inconsistent with PURPA
Regulations).
    \1034\ See, e.g., Murphy Flat Power, LLC, 141 FERC ] 61,145, at
P 24 (2012) (finding that requiring a signed and executed contract
with an electric utility as a prerequisite to a LEO is inconsistent
with PURPA Regulations.
    \1035\ See, e.g., Grouse Creek Wind Park, LLC, 142 FERC ]
61,187, at P 40 (2013).
    \1036\ Exelon Wind 1, L.L.C. v. Nelson, 766 F.3d 380, 400 (5th
Cir. 2014).
    \1037\ Power Resource Group, Inc. v. Public Utility Com'n of
Texas, 422 F.3d 231, (5th Cir. 2005).
---------------------------------------------------------------------------

    690. For those commenters that requested that the Commission
establish specific factors for the states to apply, or to establish a
baseline for eligible factors, or to otherwise limit states'
flexibility, we decline to do so. Since its inception, the Commission's
PURPA Regulations have established rules and defined boundaries
allowing states flexibility within those boundaries in implementing
PURPA as appropriate for each state. As commenters noted, this allows
states to address their unique circumstances and best address each
states' needs. Furthermore, existing precedent establishes a baseline
\1038\ and this final rule's requirement that states adopt objective
and reasonable criteria for determining when a QF has obtained a LEO
provides additional safeguards (in addition to that baseline)
applicable to both QFs and utilities. Similarly, regarding Solar Energy
Industries' proposed pre-requisites and factors, for the reasons stated
above, we find that states are in the best position to determine what
specific factors would best suit the specific circumstances of that
state, so long as they are objective and reasonable, and we provide the
suggested prerequisites above as examples of objective and reasonable
factors.\1039\ While Solar Energy Industries' proposed criteria may be
reasonable, we decline to mandate specific terms for the entire
country.
---------------------------------------------------------------------------

    \1038\ For example, the Commission has held that requiring a
fully-executed contract or executed interconnection agreement as a
condition precedent to obtaining a LEO is inconsistent with PURPA.
See FLS, 157 FERC ] 61,211 at P 26; Cedar Creek Wind LLC, 137 FERC ]
61,006 at P 35.
    \1039\ See supra P 685.
---------------------------------------------------------------------------

    691. Contrary to Solar Energy Industries' assertions, nothing in
this final rule limits a QF developer's or utility's ability to
negotiate rates, terms or conditions.\1040\
---------------------------------------------------------------------------

    \1040\ See 18 CFR 292.301(b).
---------------------------------------------------------------------------

    692. With regard to the argument that the NOPR's LEO proposal is
unreasonable in states that do not disclose their avoided cost rate
because it would require QFs to incur substantial expense to establish
commercial viability without a reasonable understanding of the purchase
rate, we find that such state-specific implementation issues can be
addressed case-by-case. To the extent that entities believe that a
particular state's avoided cost rates or rate setting methodologies do
not provide sufficient transparency to support a QF's ability to make
reasonable commercial viability investment decisions, such entities
could file a petition for enforcement against the state at the
Commission and, if the Commission declines to act, later file a
petition against the state in U.S. district court (pursuant to PURPA
section 210(h)(2)(B)).
    693. NIPPC, CREA, REC, and OSEIA request that we further define the
terms commercial viability and financial commitment. We decline. As
discussed above, we believe the best course is to allow states the
flexibility (employing objective and reasonable factors) to determine
what constitutes commercial viability and financial commitment relative
to the unique conditions or circumstances in each state but also
recognizing that existing Commission precedent establishes boundaries
of what would be considered reasonable and not discriminatory limits
for requirements in establishing a LEO.\1041\
---------------------------------------------------------------------------

    \1041\ See FLS, 157 FERC ] 61,211 at P 26; Cedar Creek Wind LLC,
137 FERC ] 61,006 at P 35.
---------------------------------------------------------------------------

    694. Additionally, we clarify that any changes to the LEO rules
adopted herein do not affect the viability of any executed contract or
LEO between a QF developer and utility in place as of the effective
date of this final rule, regardless of the facility's development
status. Further we clarify that nothing in the LEO rules adopted herein
precludes any utility from choosing to execute a PPA before a QF has
demonstrated compliance with the LEO rules adopted here.
    Several commenters requested that the Commission require QFs to do
more than just file an interconnection application; instead, for
example, suggesting requiring completion of system impact study,
interconnection or transmission feasibility study.\1042\ We disagree.
The approach taken here recognizes the need for a QF to demonstrate
that its project is more than mere speculation, such that it is
reasonable for a utility to consider the resource in its planning
projections. A QF that has submitted an application for
interconnection, as well as having taken meaningful steps to obtain
site control and has applied for all relevant permits, while not a
guarantee that the project will be completed, are all objective and
reasonable indicators that the QF developer is seriously pursuing the
project and has spent time and resources in developing the project to
show a financial commitment. As numerous commenters have explained, QFs
need a LEO in order to obtain financing to complete the project, and we
find that, as an illustrative example, requiring the submission of an
interconnection request (as opposed to the completion of a system
impact study or transmission feasibility study) as one criteria strikes
an appropriate balance between the competing needs.
---------------------------------------------------------------------------

    \1042\ NorthWestern Comments at 15-16, Portland General Comments
at 20, South Dakota Commission Comments at 2.
---------------------------------------------------------------------------

    695. Moreover, it bears remembering that the concept of a LEO was
specifically adopted to prevent utilities from circumventing the
mandatory purchase requirement under PURPA by refusing to enter into
contracts.\1043\ The Commission thus has found that requiring a QF to
have a utility-executed contract or interconnection agreement, or
requiring the completion of a utility-controlled study places too much
control over the LEO in the hands of the utility and defeats the
purpose of a LEO and is inconsistent with PURPA.\1044\ When reviewing
factors to demonstrate commercial viability and financial commitment,
states thus should place emphasis on those factors that show that the
QF has taken meaningful steps to

develop the QF that are within the QF's control to complete, and not on
those factors that a utility controls. For example, requiring a QF to
make a deposit as Portland General and sPower proposed or whether the
QF has applied for system impact, interconnection or other needed
studies are the types of factors that may show that the QF has taken
meaningful steps to develop the QF that are within the QF's control and
the type of objective and reasonable standards that states can consider
in their implementation.\1045\
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    \1043\ JD Wind 1, LLC, 129 FERC ] 61,148 at P 25, reh'g denied,
130 FERC ] 61,127 (citing Order No. 69 FERC Stats. & Regs. ] 30,128
at 30,880; see also Midwest Renewable Energy Projects, LLC, 116 FERC
] 61,017 (2006).
    \1044\ FLS, 157 FERC ] 61,211 at P 23 (finding such requirements
``allows a utility to control whether and when a legally enforceable
obligation exists--e.g. by delaying the facilities study.'').
    \1045\ Portland General Comments at 15-16; sPower Comments at
14-15.
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    696. Requests by parties to expand utilities' rights to curtail QF
sales are outside the scope of this proceeding. Additionally, requests
to allow a utility to reject purchases from QFs if a utility has no
need for additional capacity are outside the scope of this proceeding.

V. Information Collection Statement

    697. The Paperwork Reduction Act \1046\ requires each federal
agency to seek and obtain the Office of Management and Budget's (OMB)
approval before undertaking a collection of information (including
reporting, record keeping, and public disclosure requirements) directed
to 10 or more persons or contained in a rule of general applicability.
OMB regulations require approval of certain information collection
requirements contemplated by proposed rules (including deletion,
revision, or implementation of new requirements).\1047\ Upon approval
of a collection of information, OMB will assign an OMB control number
and an expiration date. Respondents subject to the filing requirements
of a rule will not be penalized for failing to respond to the
collection of information unless the collection of information displays
a valid OMB control number.
---------------------------------------------------------------------------

    \1046\ 44 U.S.C. 3501-21.
    \1047\ See 5 CFR 1320.11.
---------------------------------------------------------------------------

    Public Reporting Burden: The Commission is revising its regulations
implementing PURPA. At the Notice of Proposed Rulemaking (NOPR) stage,
the Commission stated the principal changes that affect information
collection involved the FERC Form No. 556.\1048\ In response to
comments arguing that the NOPR proposals would cause additional
reporting burdens, in this final rule we have analyzed whether there
are additional incremental reporting burdens that result from other
aspects of this final rule. As described further below, we find that
there is one additional potential reporting burden arising from this
final rule. It relates to reducing the PURPA section 210(m) rebuttable
presumption regarding small power production QFs' nondiscriminatory
access to certain markets from 20 MW to 5 MW. Specifically, this
reporting burden would arise from electric utilities located in markets
who choose to submit to the Commission a PURPA section 210(m) petition
for termination of the PURPA mandatory purchase obligation (affecting
information collection FERC-912) for small power production QFs between
20 MW and 5 MW.
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    \1048\ The change to the FERC-556 described by the NOPR was
submitted under a temporary interim information collection no.,
FERC-556A (OMB Control No. 1902-0316) because another item for FERC-
556 was pending OMB review at the time and only one item per OMB
Control No. can be pending OMB review at a time. The final rule is
being submitted to OMB under FERC-556.
---------------------------------------------------------------------------

    698. With respect to the FERC Form No. 556, the Commission affirms
that the relevant burdens derive from the change from the Commission's
current ``one-mile rule'' for determining whether generation facilities
should be considered to be at the same site for purposes of determining
qualification as a qualifying small power production facility, to
allowing an interested person or other entity challenging a QF
certification the opportunity to file a protest, without a fee, to
rebut the presumption that affiliated small power production QFs using
the same energy resource and located more than one mile and less than
10 miles from the applicant facility are considered to be at separate
sites.
    Specifically, as more fully explained in section IV.F above, and as
demonstrated by the revised Form No. 556 attached to this final rule
(but not published in the Federal Register or Code of Federal
Regulations),\1049\ the Commission makes the following changes to the
FERC Form No. 556 which affect the burden of the information
collection:
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    \1049\ The Form 556 and instructions will be available in the
Commission's eLibrary.
---------------------------------------------------------------------------

     Allow an interested person or other entity challenging a
QF certification the opportunity to file a protest, without a fee, to
an initial certification (both self-certification and application for
Commission certification) filed on or after the effective date of this
final rule, or to a recertification (self-recertification or
application for Commission recertification) that makes substantive
changes to the existing certification that is filed on or after the
effective date of this final rule.
     Require all applicants to report the applicant facility's
geographic coordinates, rather than only for applications where there
is no street address.
     Change the current requirement to identify any affiliated
facilities with electrical generating equipment within one mile of the
applicant facility's electrical generating equipment to instead require
applicants to list only affiliated small power production QFs using the
same energy resource one mile or less from the applicant facility.
     Additionally require applicants to list affiliated small
power production QFs using the same energy resource whose nearest
electrical generating equipment is greater than one mile and less than
10 miles from the electrical generating equipment of the applicant
facility.
     Require the applicant to list the geographic coordinates
of the nearest ``electrical generating equipment'' of both its own
facility and the affiliated small power production QF in question based
on the definitions adopted in this final rule.
     Provide space for the applicant to explain, if it chooses
to do so, why the affiliated small power production QFs using the same
energy resource, that are more than one mile and less than 10 miles
from the electrical generating equipment of the applicant facility,
should be considered to be at separate sites from the applicant's
facility, considering the relevant physical and ownership factors
identified in this final rule.
    As explained in the body of this final rule, these changes in
burden are appropriate because they are necessary to meet the statutory
requirements contained in PURPA.
    699. In this final rule, the Commission is revising its regulations
implementing PURPA, which will affect the information collections for
the FERC Form No. 556 and FERC-912. Below, the first table includes
estimated changes to the burden and cost of the FERC Form No. 556 due
to the final rule. As demonstrated by the table, we believe that QFs
will spend more time to identify any affiliated small power production
QFs that are less than one mile, between one and 10 miles, and more
than 10 miles, apart. The Commission expects that there will be an
increase due to the revisions to the Commission's regulations, and that
the changes to the ``one-mile rule'' and the ability to protest without
a fee will affect self-certifications and applications for Commission
certification.

                                  FERC-556, Changes Due to Final Rule in Docket Nos. RM19-15-000 and AD16-16-000 \1050\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                Increased     Increased total
                                                                     Annual number                     average  burden    annual burden     Increased
        Facility type             Filing type        Number of       of responses    Total number  of  hours and  cost  hours and total  annual cost per
                                                    respondents     per respondent       responses       per response      annual cost   respondent  ($)
                                                                                ($)              ($)
                                                 (1).............  (2).............  (1) * (2) = (3).  (4)............  (3) * (4) = (5)   (5) / (1 = (6)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Cogeneration and Small Power   Self-             no change (692).  no change (1.25)  no change (865).  no change (1.5   no change                      0
 Production Facility <= 1 MW    certification.                                                          hrs.); $0.       (1,297.5
 \1051\.                                                                                hrs.); $0.
Cogeneration Facility > 1 MW.  Self-             no change (63)..  no change (1.25)  no change         no change (1.5   no change                      0
                                certification.                                        (78.75).          hrs.); $0.       (118.125
                                                                                hrs.); $0.
Cogeneration Facility > 1 MW.  Application for   no change (1)...  no change (1.25)  no change (1.25)  no change (50    no change (62.5                0
                                FERC                                                                    hrs.); $0.       hrs.); $0.
                                certification.
Small Power Production         Self-             no change (899)   no change (1.25)  no change         2 hrs.; $166...  2,247.5 hrs.;              207.5
 Facility > 1 MW, <= 1 Mile     certification.    \1052\.                             (1,123.75).                        186,542.5.
 from Affiliated Small Power
 Production QF.
Small Power Production         Application for   no change (0)...  no change (1.25)  no change (0)...  6 hrs.; $498...  no change (0                   0
 Facility > 1 MW, <= 1 Mile     FERC                                                                                hrs.); $0.
 from Affiliated Small Power    certification.
 Production QF.
Small Power Production         Self-             no change (900).  no change (1.25)  no change         8 hrs.; $664...  9,000 hrs.;                  830
 Facility > 1 MW, > 1 Mile, <   certification.                                        (1,125).                           $747,000.
 10 Miles from Affiliated
 Small Power Production QF.
Small Power Production         Application for   no change (0)...  no change (1.25)  no change (0)...  12 hrs.; $996..  no change (0                   0
 Facility > 1 MW, > 1 Mile, <   FERC                                                                                hrs.); $0.
 10 Miles from Affiliated       certification.
 Small Power Production QF.
Small Power Production         Self-             no change (899).  no change (1.25)  no change         2 hrs.; $166...  2,247.5 hrs.;              207.5
 Facility > 1 MW, >= 10 Miles   certification.                                        (1,123.75).                        $186,542.5.
 from Affiliated Small Power
 Production QF.
Small Power Production         Application for   no change (0)...  no change (1.25)  no change (0)...  6 hrs.; $498...  no change (0                   0
 Facility > 1 MW, >= 10 Miles   FERC                                                                                hrs.); $0.
 from Affiliated Small Power    certification.
 Production QF.
                              --------------------------------------------------------------------------------------------------------------------------
    FERC-556, Total            ................  no change         ................  no change         ...............  13,495 hrs.;     ...............
     Additional Burden and                        (3,454).                            (4,317.5).                         $1,120,085.
     Cost Due to Final Rule.
--------------------------------------------------------------------------------------------------------------------------------------------------------

    700. The table below reflects the additional estimated public
reporting burdens associated with reducing the PURPA section 210(m)
rebuttable presumption regarding small power production QFs'
nondiscriminatory access to certain markets from 20 MW to 5 MW, which
affects the FERC-912.\1053\ The FERC-912 is optional, but if electric
utilities located in relevant markets choose to submit to the

Commission a PURPA section 210(m) petition for termination of the PURPA