[Federal Register Volume 80, Number 62 (Wednesday, April 1, 2015)]
[Rules and Regulations]
[Pages 17653-17682]
[FR Doc No: 2015-06953]

Vol. 80

Wednesday,

No. 62

April 1, 2015

Part IV

Department of Energy

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 Federal Energy Regulatory Commission

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18 CFR Part 35

 Open Access and Priority Rights on Interconnection Customer's
Interconnection Facilities; Final Rule

Federal Register / Vol. 80 , No. 62 / Wednesday, April 1, 2015 /
Rules and Regulations

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Part 35

[RM14-11-000; Order No. 807]

Open Access and Priority Rights on Interconnection Customer's
Interconnection Facilities

AGENCY: Federal Energy Regulatory Commission.

ACTION: Final rule.

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SUMMARY: In this Final Rule, the Federal Energy Regulatory Commission
is amending its regulations to waive the Open Access Transmission
Tariff requirements, the Open Access Same-Time Information System
requirements, and the Standards of Conduct requirements, under certain
conditions, for the ownership, control, or operation of Interconnection
Customer's Interconnection Facilities (ICIF). This Final Rule finds
that those seeking interconnection and transmission service over ICIF
that are subject to the blanket waiver adopted herein may follow
procedures applicable to requests for interconnection and transmission
service under sections 210, 211, and 212 of the FPA, which also allows
the contractual flexibility for entities to reach mutually agreeable
access solutions. This Final Rule establishes a modified rebuttable
presumption for a five-year safe harbor period to reduce risks to ICIF
owners eligible for the blanket waiver during the critical early years
of their projects. Finally, this Final Rule modifies, as described in
detail below, several elements of the Notice of Proposed Rulemaking,
including the entities eligible for the OATT waiver, the date on which
the safe harbor begins, the rebuttable presumption that the ICIF owner
should not be required to expand its facilities during the safe harbor,
and the facilities covered by the Final Rule.

DATES: This rule will become effective June 30, 2015.

FOR FURTHER INFORMATION CONTACT:
Becky Robinson (Technical Information), Office of Energy Policy and
Innovation, Federal Energy Regulatory Commission, 888 First Street NE.,
Washington, DC 20426,<PHONE_NUMBER><EMAIL_ADDRESS>Brian Gish (Legal Information), Office of the General Counsel--Energy
Markets, Federal Energy Regulatory Commission, 888 First Street NE.,
Washington, DC 20426,<PHONE_NUMBER><EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

                              Order No. 807
                               Final Rule

                                                        Paragraph Nos.

I. Introduction....................................                    1
II. Background.....................................                    6
    A. Development of ICIF Policies................                    6
III. Need for Reform...............................                   18
    A. Commission Proposal.........................                   18
    B. Comments....................................                   19
    C. Commission Determination....................                   33
IV. Proposed Reforms...............................                   41
    A. Eligible ICIF...............................                   41
        1. Commission Proposal.....................                   41
        2. Comments................................                   42
        3. Commission Determination................                   43
    B. Grant Blanket Waivers to Eligible ICIF                         44
     Owners........................................
        1. Blanket Waivers.........................                   44
        2. Requirement That ICIF Owners Must Sell                     59
         Electricity To Qualify for the Waiver.....
        3. Status of the Third-Party Requester.....                   76
        4. Non-Public Utilities....................                   79
        5. Applicability to Industrial Power                          83
         Systems' Tie Lines........................
        6. Applicability of the Blanket Waiver to                     85
         Additional Regulations....................
        7. Existing Agreements and Waivers.........                   88
        8. Existing OATTs..........................                   90
        9. Revoking the Blanket Waiver.............                   94
    C. Interconnection and Transmission Under                        104
     Sections 210 and 211 of the Federal Power Act.
        1. Sections 210 and 211....................                  104
        2. Voluntary Arrangements..................                  115
        3. Interaction With the Transmission System                  119
        4. Scope of Regulations To Be Modified.....                  128
        5. Reliability Standards...................                  131
    D. Safe Harbor.................................                  133
        1. Whether and To What Extent There Should                   133
         Be a Safe Harbor Period...................
        2. Starting Point for the Safe Harbor                        141
         Period....................................
        3. Length of the Safe Harbor Period........                  147
    E. Affiliate Concerns..........................                  153
        1. Commission Proposal.....................                  153
        2. Comments................................                  154
        3. Commission Determination................                  165
    F. Miscellaneous...............................                  170
        1. Treatment of Line Losses on ICIF........                  170
        2. Applicability of the Commission's                         172
         ``Prior Notice'' Policy...................
        3. Technical Aspects of Interconnection....                  174
        4. Implementation..........................                  176
V. Information Collection Statement................                  177
VI.8 Regulatory Flexibility Act Analysis...........                  184
VII. Document Availability.........................                  185
VIII. Effective Date and Congressional Notification                  188
Regulatory Text
Appendix A: List of Short Names of Commenters on
 the Notice of Proposed Rulemaking

I. Introduction

    1. In this Final Rule, the Federal Energy Regulatory Commission
(FERC or Commission) is amending its regulations to waive the Open
Access Transmission Tariff (OATT) requirements of 18 CFR 35.28, the
Open Access Same-Time Information System (OASIS) requirements of 18 CFR
37, and the Standards of Conduct requirements 18 CFR 358, under certain
conditions, for the ownership, control, or operation of Interconnection
Customer's Interconnection Facilities (ICIF).\1\ This Final Rule finds
that those seeking interconnection and transmission service over ICIF
that are subject to the blanket waiver adopted herein may follow
procedures applicable to requests for interconnection and transmission
service under sections 210, 211, and 212 of the Federal Power Act
(FPA), which also allows the contractual flexibility for entities to
reach mutually agreeable access solutions.\2\ This Final Rule
establishes a modified rebuttable presumption for a five-year safe
harbor period to reduce risks to ICIF owners \3\ eligible for the
blanket waiver during the critical early years of their projects.
Finally, this Final Rule modifies, as described in detail below,
several elements of the Notice of Proposed Rulemaking (NOPR), including
the entities eligible for the OATT waiver, the date on which the safe
harbor begins, the rebuttable presumption that the ICIF owner should
not be required to expand its facilities during the safe harbor, and
the facilities covered by the Final Rule.\4\
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    \1\ The jurisdictional interconnection facilities for which this
Final Rule grants a waiver have sometimes in the past been referred
to informally as ``generator tie lines,'' but, in the Notice of
Proposed Rulemaking, the Commission used the term ICIF as defined in
the pro forma documents issued with Order No. 2003. As discussed
below, infra section IV.A Eligible ICIF, we continue to use the term
``ICIF'' throughout this Final Rule but clarify there that we intend
the term to encompass a broader scope. Standardization of Generator
Interconnection Agreements and Procedures, Order No. 2003, 68 FR
49845 (Aug. 19, 2003), FERC Stats. & Regs. ]31,146, at Appendix C,
Appendix 6, Article 1 (2003), order on reh'g, Order No. 2003-A, 69
FR 15932 (Mar. 26, 2004), FERC Stats. & Regs. ] 31,160, order on
reh'g, Order No. 2003-B, 70 FR 265 (Jan. 4, 2005), FERC Stats. &
Regs. ] 31,171 (2004), order on reh'g, Order No. 2003-C, 70 FR 37661
(Jun. 30, 2005), FERC Stats. & Regs. ] 31,190 (2005), aff'd sub nom.
Nat'l Ass'n of Regulatory Util. Comm'rs v. FERC, 475 F.3d 1277 (D.C.
Cir. 2007), cert denied, 552 U.S. 1230 (2008).
    \2\ 16 U.S.C. 824i, 824j, and 824k.
    \3\ In this Final Rule, the term ``ICIF owners'' includes those
who operate or control ICIF.
    \4\ Open Access and Priority Rights on Interconnection
Customer's Interconnection Facilities, Notice of Proposed
Rulemaking, 79 FR 31061 (May 30, 2014), FERC Stats. & Regs. ] 32,701
(2014), corrected, 79 FR 35501 (June 23, 2014).
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    2. We find that requiring the filing of an OATT is not necessary to
prevent unjust or unreasonable rates or unduly discriminatory behavior
with respect to ICIF, over which interconnection and transmission
services can be ordered pursuant to sections 210, 211, and 212 of the
FPA.\5\ Further, we conclude that the Commission's policies requiring
the ICIF owner to make excess capacity available to third parties
unless it can justify its planned use of the line impose risks and
burdens on ICIF owners and create regulatory inefficiencies that are
not necessary given the goals that the Commission seeks to achieve
through such policies. Based on comments received as part of our
consideration of the treatment of ICIF, we understand that generation
developers may develop new projects in phases and build interconnection
facilities large enough to accommodate the development of all planned
phases. The Commission's existing policy has led ICIF owners to file
petitions for declaratory orders demonstrating plans and milestones for
future generation development to reserve for themselves currently
excess ICIF capacity that they built for such purposes. In the vast
majority of cases, the Commission has granted the petition, based on
confidential documentation filed by the ICIF owner, with a limited
description of the plans and milestones the Commission deemed
dispositive. Further, the Commission's existing policy of treating ICIF
the same as other transmission facilities for OATT purposes, including
the requirement to file an OATT following a third-party request,
creates undue burden for ICIF owners without a corresponding
enhancement of access given the ICIF owner's typical ability to
establish priority rights.
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    \5\ As discussed infra, the blanket waiver will apply only to
entities that are either directly subject to section 210 or have
voluntarily committed to comply with section 210.
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    3. Granting an OATT waiver to ICIF owners and providing that third-
party access be governed by sections 210, 211, and 212 will enable ICIF
owners and third parties, where possible, to reach mutually agreeable
and voluntary arrangements that provide ICIF access to third parties,
while protecting a third party's right to request that the Commission
order interconnection and transmission service over ICIF. We find that
providing this contractual flexibility may remove barriers to an ICIF
owner's willingness to enter into such an agreement with a third party.
    4. We recognize that ICIF owners often construct ICIF to
accommodate multiple generation project phases and intend for their
subsequent generation projects to use what is initially excess capacity
on the ICIF. We believe that the safe harbor period established by this
Final Rule will enable these ICIF owners to focus in the early stages
of development on building generation.
    5. We find that the reforms adopted herein re-balance the burden on
ICIF owners and encourage efficient generation and interconnection
facility development, while maintaining access to available capacity
for third parties where appropriate.

II. Background

A. Development of ICIF Policies

    6. Under section 201(b) of the FPA, the Commission has jurisdiction
over all facilities used for the transmission of electric energy in
interstate commerce.\6\ Under section 201(e) of the FPA, any person who
owns or operates facilities subject to the jurisdiction of the
Commission is a public utility.\7\ The Commission is charged with the
responsibility under sections 205 and 206 of the FPA to ensure that a
public utility's rates, charges, and classifications of service are
just and reasonable and not unduly discriminatory or preferential.\8\
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    \6\ 16 U.S.C. 824(b).
    \7\ 16 U.S.C. 824(e). Section 201(f) of the FPA exempts certain
governmental entities and electric cooperatives from being a public
utility.
    \8\ 16 U.S.C. 824d and 824e.
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    7. In Order No. 888, the Commission, relying upon its authority
under sections 205 and 206 of the FPA, established non-discriminatory
open access to electric transmission service as the foundation
necessary to develop competitive bulk power markets in the United
States.\9\ Order No. 888, codified in section 35.28 of the Commission's
regulations, requires that any public utility that owns, controls, or
operates facilities used for the transmission of electric energy in
interstate commerce must file an OATT and comply with other related
requirements. The Commission in Order No. 888 did not specifically
address transmission facilities associated with the

interconnection of electric generating units to the transmission grid.
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    \9\ Promoting Wholesale Competition Through Open Access Non-
Discriminatory Transmission Services by Public Utilities; Recovery
of Stranded Costs by Public Utilities and Transmitting Utilities,
Order No. 888, 61 FR 21540 (May 10, 1996), FERC Stats. & Regs. ]
31,036 (1996), order on reh'g, Order No. 888-A, 62 FR 12274 (Mar.
14, 1997), FERC Stats. & Regs. ] 31,048, order on reh'g, Order No.
888-B, 81 FERC ] 61,248 (1997), order on reh'g, Order No. 888-C, 82
FERC ] 61,046 (1998), aff'd in relevant part sub nom. Transmission
Access Policy Study Group v. FERC, 225 F.3d 667 (D.C. Cir. 2000),
aff'd sub nom. New York v. FERC, 535 U.S. 1 (2002).
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    8. At the same time, the Commission issued Order No. 889,\10\ which
promulgated the Open Access Same-Time Information System (OASIS) and
Standards of Conduct requirements in Part 37 of the Commission's
regulations to ensure the contemporaneous disclosure of certain
information and prevent transmission providers from engaging in non-
discriminatory behavior in favor of their marketing affiliates.\11\
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    \10\ Open Access Same-Time Information System and Standards of
Conduct, Order No. 889, 61 FR 21737 (May 10, 1996), FERC Stats. &
Regs. ] 31,035 (1996), order on reh'g, Order No. 889-A, FERC Stats.
& Regs. ] 31,049 (1997), reh'g denied, Order No. 889-B, 81 FERC ]
61,253 (1997).
    \11\ Although originally promulgated by Order No. 889, the
Commission has since relocated the Standards of Conduct to Part 358
and adopted a number of changes, most recently revised by Order No.
717. Standards of Conduct for Transmission Providers, Order No. 717,
FERC Stats. & Regs. ] 31,280 (2008).
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    9. In Order No. 2003, the Commission found that interconnection
service plays a crucial role in bringing generation into the market to
meet the growing needs of electricity customers and competitive
electricity markets.\12\ The Commission reiterated that
``[i]nterconnection is a critical component of open access transmission
service,'' and that ``the Commission may order generic interconnection
terms and procedures pursuant to its authority to remedy undue
discrimination and preferences under sections 205 and 206 of the
Federal Power Act.'' \13\ The Commission concluded that there was a
pressing need for a uniformly applicable set of procedures and a pro
forma agreement to form the basis of interconnection service for large
generators, and thus promulgated the pro forma Large Generator
Interconnection Procedures (LGIP) and the pro forma Large Generator
Interconnection Agreement (LGIA) \14\ to be included in every public
utility's OATT.\15\
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    \12\ Order No. 2003, FERC Stats. & Regs. ] 31,146 at P 11.
    \13\ Id. PP 12, 20.
    \14\ As discussed above, throughout this Final Rule, the terms
LGIP and LGIA refer to the pro forma versions of those documents.
    \15\ Order No. 2003 established rules for a Large Generating
Facility, defined as a generating facility with a capacity of more
than 20 MW. Similarly, in Order No. 2006, the Commission established
the pro forma Small Generator Interconnection Procedures and the pro
forma Small Generator Interconnection Agreement for interconnecting
small generators (no larger than 20 MW). Standardization of Small
Generator Interconnection Agreements and Procedures, Order No. 2006,
FERC Stats. & Regs. ] 31,180, order on reh'g, Order No. 2006-A, FERC
Stats. & Regs. ] 31,196 (2005), order granting clarification, Order
No. 2006-B, FERC Stats. & Regs. ] 31,221 (2006).
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    10. Article 11.1 of the LGIA provides that the ``Interconnection
Customer shall design, procure, construct, install, own and/or control
Interconnection Customer Interconnection Facilities . . . at its sole
expense.'' The LGIA defines ICIF as ``all facilities and equipment, as
identified in Appendix A of the Standard Large Generator
Interconnection Agreement, that are located between the Generating
Facility and the Point of Change of Ownership, including any
modification, addition, or upgrades to such facilities and equipment
necessary to physically and electrically interconnect the Generating
Facility to the Transmission Provider's Transmission System.
Interconnection Customer's Interconnection Facilities are sole use
facilities.'' \16\ The LGIA defines ``Interconnection Facilities'' \17\
as the:
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    \16\ LGIA Article 1. Section 1 of the LGIP includes identical
definitions to those in Article 1 of the LGIA.
    \17\ Unless otherwise indicated, capitalized terms herein have
the same definition as in the Commission's LGIA or in the OATT, as
applicable.

Transmission Provider's Interconnection Facilities and the
Interconnection Customer's Interconnection Facilities. Collectively,
Interconnection Facilities include all facilities and equipment
between the Generating Facility and the Point of Interconnection,
including any modification, additions or upgrades that are necessary
to physically and electrically interconnect the Generating Facility
to the Transmission Provider's Transmission System. Interconnection
Facilities are sole use facilities and shall not include
Distribution Upgrades, Stand Alone Network Upgrades or Network
Upgrades.\18\
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    \18\ LGIA Article 1. See supra n.1.

Finally, the LGIA defines Transmission Provider's Interconnection
Facilities as ``those Interconnection Facilities that are located
between the Point of Interconnection \19\ with the grid and the Point
of Change of Ownership,\20\ and which are owned, controlled, or
operated by the transmission provider.'' \21\
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    \19\ The Point of Interconnection is defined in Article 1 of the
LGIA as the point where the Interconnection Facilities connect to
the Transmission Provider's Transmission System.
    \20\ The Point of Change of Ownership is defined in Article 1 of
the LGIA as the point, as set forth in Appendix A to the LGIA, where
the Interconnection Customer's Interconnection Facilities connect to
the Transmission Provider's Interconnection Facilities. LGIP section
11.2 states that the Transmission Provider and Interconnection
Customer shall negotiate the provisions of the appendices to the
LGIA.
    \21\ LGIA Article 1.
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    11. In general, Interconnection Facilities are constructed to
enable a generation facility or multiple generation facilities to
transmit power to the integrated transmission grid. Interconnection
Facilities are typically radial in nature, with a single point of
interconnection with the network grid, and over which power flows in
one direction toward the transmission grid.\22\ Depending on the
circumstances, Interconnection Facilities may range in length, but can
span considerable distances and represent significant transmission
capacity.\23\
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    \22\ In limited circumstances, power may flow from the grid to
supply station power in the event no power is being produced at the
generating facility.
    \23\ See, e.g., Bayonne Energy Center, LLC, 136 FERC ] 61,019
(2011) (involving a 6.75-mile, 345-kV interconnection facility);
Terra-Gen Dixie Valley, LLC, 132 FERC ] 61,215 (2010) (Terra-Gen I),
reh'g denied, 134 FERC ] 61,021 (2011), order on request for
priority rights, 137 FERC ] 61,179 (2011), order on reh'g, 147 FERC
] 61,122 (2014) (involving a 214-mile, 230-kV interconnection
facility). See also, e.g., Southern Company Serv., Inc., Docket No.
ER12-554-000 (Jan. 6, 2012) (delegated letter order) (involving an
approximately 2000 foot interconnection facility).
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    12. In a series of cases since Order No. 2003 became effective,
issues have been raised regarding the extent to which, if at all, third
parties should be able to have access rights for transmission on the
facilities located between the generating facility and the Point of
Change of Ownership at which the Transmission Provider's
Interconnection Facilities begin, i.e., ICIF. Applications have come
before the Commission as petitions for declaratory order and requests
for service under sections 210 and 211. In each of these, the
Commission has put the onus on the developer, if it would like to
preempt a third party's use, to demonstrate that it has plans to use
the currently excess capacity.
    13. In Milford Wind Corridor, LLC, the Commission recognized that
it has granted waivers of the OATT requirements on a case-by-case basis
for ICIF owners who demonstrate that their ICIF are limited and
discrete and there is no outstanding request by a third party to access
the ICIF.\24\
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    \24\ Milford Wind Corridor, LLC, 129 FERC ] 61,149, at P 24
(2009) (Milford).
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    14. At issue in these cases was whether the entity that owns and/or
controls ICIF to serve its or its affiliates' generation project or
projects has any priority right over third-party requesters to use the
capacity on its ICIF. Where an ICIF owner has specific, pre-existing
generator expansion plans with milestones for construction of
generation facilities and can demonstrate that it has made material
progress toward meeting those milestones, the Commission granted
priority rights for excess capacity on the ICIF for those future
generation

projects.\25\ For example in Aero Energy, LLC,\26\ before ordering
service over the Sagebrush line pursuant to FPA sections 210 and 211,
the Commission provided the opportunity for the ICIF owner to
demonstrate that it had pre-existing contractual obligations or other
specific plans that would prevent it from providing the requested firm
transmission service to the third party.\27\ As a result, the
Commission found that one of the Sagebrush partners had shown that it
had pre-existing expansion plans that, at some future date, would
require firm transmission capacity, and that two other Sagebrush
partners had not shown that they had pre-existing expansion plans that
would require additional transmission capacity.
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    \25\ Alta Wind I, LLC, 134 FERC ] 61,109, at PP 16-17 (2011);
Milford, 129 FERC ] 61,149 at P 22; Aero Energy LLC, 116 FERC ]
61,149, at P 28 (2006) Aero Modification Order. Such plans and
initial progress also must pre-date a valid request for service.
Terra-Gen I, 132 FERC ] 61,215 at P 53.
    \26\ Aero Energy LLC, 115 FERC ] 61,128 (2006) (Aero Proposed
Order), order granting modification, 116 FERC ] 61,149 (2006) (Aero
Modification Order), final order, 118 FERC ] 61,204 (2007), reh'g
denied, 120 FERC ] 61,188 (2007) (Aero Rehearing Order)
(collectively, Aero).
    \27\ Aero Modification Order, 116 FERC ] 61,149 at P 28.
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    15. The Commission has also considered, on a case-by-case basis,
petitions for declaratory order requesting that an ICIF owner be
granted priority over third parties to use capacity on its ICIF.\28\ In
Milford, the Commission granted such priority, finding that Milford had
shown that it had specific plans for phased development of its
generation. The Commission in Milford summarized the Aero precedent as
providing that:
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    \28\ See, e.g., Milford, 129 FERC ] 61,149 at P 24; Terra-Gen I,
132 FERC ] 61,215 at P 49.

    A transmission owner that filed specific expansion plans with
definite dates and milestones for construction, and had made
material progress toward meeting its milestones, had priority over
later transmission requests.\29\
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    \29\ Milford, 129 FERC ] 61,149 at P 22.

This required demonstration necessary to claim priority rights has been
referred to as the ``specific plans and milestones'' showing. This
granting of priority rights preserves the ability of the generation
developer to deliver its future output to the point of interconnection
with the integrated transmission grid, so long as it can make the
relevant showing to the Commission sufficient to justify priority.\30\
The Commission has also found that an affiliate of the ICIF owner that
is developing its own generator projects also may obtain priority
rights to the capacity on the ICIF by meeting the ``specific plans and
milestones'' standard with respect to future use.\31\
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    \30\ The Aero precedent cited above is the only instance where
the Commission has not granted priority rights upon an attempted
plans and milestones demonstration.
    \31\ See NextEra Energy Resources, LLC, 142 FERC ] 61,043, at P
26 (2013).
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    16. Notwithstanding the ability of an ICIF owner to request
priority rights, where an ICIF owner has received a third-party request
for service, the Commission has required that the ICIF owner file an
OATT.\32\
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    \32\ Subsequent to ordering transmission under FPA sections 210
and 211 in Aero, the Commission granted market-based rates to
several Sagebrush affiliates on the condition that Sagebrush file an
OATT for its line if any third party filed a request for service on
the line. EDFD Handsome-Lake, 127 FERC ] 61,243, at P 15 (2009).
Such a request was made, and Sagebrush filed an OATT for its
interconnection facility. Sagebrush, a California Partnership, 130
FERC ] 61,093, order on reh'g, 132 FERC ] 61,234 (2010). In Peetz
Logan, the generation owner filed an OATT in response to a request
for third-party interconnection and transmission services over its
existing 78.2-mile, 230-kV ICIF that had been used to connect three
affiliated wind generation projects to the grid. Peetz Logan
Interconnect, LLC, 136 FERC ] 61,075 (2011) (Peetz Logan). In Sky
River, the Commission rejected the filing of an executed Common
Facilities Agreement providing a third party the right to access and
utilize Sky River, LLC's interest in a nine-mile 230-kV ``generator
tie-line.'' Instead, the Commission required that any service by
non-owners over the line must be made pursuant to an OATT. Sky
River, LLC, 134 FERC ] 61,064 (2011) (Sky River). Also, in Terra-
Gen, the generator owner of a 214-mile, 230-kV radial
interconnection facility was ordered by the Commission to file an
OATT in response to a request for third-party transmission service.
Terra-Gen Dixie Valley, LLC, 134 FERC ] 61,027 (2011), order on
reh'g, 135 FERC ] 61,134 (2011), order granting extension of time,
136 FERC ] 61,026 (2011), order on reh'g, 147 FERC ] 61,122 (2014).
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    17. In summary, the Commission's existing policy since 2009 is
that, because ICIF are facilities used for the transmission of electric
energy in interstate commerce, those who own, control, or operate ICIF
must either have an OATT on file or receive a waiver of the OATT
requirement.\33\ Section 35.28(d) provides that any public utility
subject to OATT, OASIS, and Standards of Conduct requirements may file
a request for a waiver for good cause shown.\34\ The Commission grants
such requests for waiver where the public utility owns only limited and
discrete facilities or is a small utility.\35\ Even if a waiver of the
OATT is granted for ICIF, the ICIF owner is subject to the requirement
that, if a request for transmission service over the facilities is
made, it would have to file an OATT within 60 days of the request \36\
and comply with any additional requirements then in effect for public
utility transmission providers. The ICIF owner would thus become
subject to all of the relevant pro forma OATT requirements, unless it
successfully seeks and receives approval for deviations from the pro
forma OATT.
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    \33\ See Milford, 129 FERC ] 61,149 at P 24 (noting that the
fact that the facilities merely tie a generator to the grid does not
render a line exempt from the Commission's regulation of
transmission facilities). See also Evergreen Wind Power III, LLC,
135 FERC ] 61,030, at P 15 n.18 (2011) (granting request for waiver
of the OATT requirement in the context of a request for market-based
rate authority).
    \34\ The Commission has the general statutory authority to waive
its regulations as it may find necessary or appropriate. UtiliCorp
United Inc., 99 FERC ] 61,280, at P 12 (2002); see also Pacific Gas
and Electric Co., 99 FERC ] 61,045, at P 5 (2002) (``It is however
well established that, with or without an explicit provision to that
effect, an agency may waive its regulations in appropriate
cases.''). Similarly, section 358.1(d) of the Commission's
regulations provides that a transmission provider may seek a waiver
from all or some of the requirements of Part 358.
    \35\ See, e.g., Prairie Breeze Wind Energy LLC, 145 FERC ]
61,290, at P 26 (2013); Ebensburg Power Company, 145 FERC ] 61,265,
at P 27 (2013); CSOLAR IV South, LLC, 143 FERC ] 61,275, at P 16
(2013).
    \36\ Milford, 129 FERC ] 61,149 at P 27. See Termoelectrica
U.S., LLC, 105 FERC ] 61,087, at P 11 (2003); Black Creek Hydro,
Inc., 77 FERC ] 61,232, at 61,941 (1996).
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III. Need for Reform

A. Commission Proposal

    18. The Commission issued a NOPR in this proceeding on May 15,
2014. In the NOPR, the Commission proposed to grant a blanket waiver
for ICIF of all OATT, OASIS, and Standards of Conduct requirements in
circumstances where a public utility is subject to such requirements
solely because it owns, controls, or operates ICIF and sells electric
energy from its generating facility. The Commission also proposed a
safe harbor period of five years during which there would be a
rebuttable presumption that: (1) The eligible ICIF owner has definitive
plans to use its capacity without having to make a demonstration
through a specific plans and milestones showing; and (2) the eligible
ICIF owner should not be required to expand its facilities.\37\ The
Commission found, on a preliminary basis, that there was a need for
reform because OATT requirements as applied to ICIF may impose risks
and burdens on generators and create regulatory inefficiencies that are
not necessary to achieve the Commission's open access goals. The
Commission also preliminarily found that there was a need to reform its
requirements for achieving non-discriminatory access over ICIF so as
not to discourage competitive generation development with unnecessary
burdens, while ensuring non-discriminatory access by eligible
transmission customers.
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    \37\ NOPR, FERC Stats. & Regs. ] 32,701 at P 54.

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B. Comments

    19. The Commission received 24 comments and one reply comment on
the NOPR.\38\ Of those, 21 commenters \39\ generally support the need
for reform and the NOPR proposals. Commenters state that the
Commission's existing policy is unduly burdensome and unnecessary \40\
and that it does not meet the goal of promoting development of
generation facilities while ensuring not unduly discriminatory open
access to transmission facilities.\41\ Commenters argue that ICIF
owners are focused on developing new generation resources and the time,
effort and cost of complying with the OATT requirements under the
Commission's existing policy hinders generation development.\42\
Commenters support the Commission's goal of reducing regulatory burdens
and promoting development of generation facilities while ensuring open
access to transmission facilities and support the Commission's proposal
to revise its current ICIF policies.\43\
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    \38\ See Appendix A for a list of NOPR commenters.
    \39\ These include AWEA, BHE, BP Wind, Linden, DTE, E.ON, EEI,
ELCON, EPSA, First Wind, Invenergy, ITC, MISO, MISO TOs, NextEra,
NRG, Recurrent, SEIA, Sempra, Southern, and Terra-Gen. SWP also
commented on the NOPR, but did not express support or opposition to
the proposed changes overall.
    \40\ AWEA at 1; E.ON at 2; and NextEra at 3.
    \41\ EEI at 2.
    \42\ AWEA at 2; Linden at 3; and E.ON at 2.
    \43\ BHE at 1; EEI at 2; and ELCON at 2.
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    20. Terra-Gen states that the NOPR proposals are essential to
minimize the business and regulatory risks faced by generation owners
and developers.\44\ Further, Terra-Gen argues that the Commission's
existing ICIF policy allows third parties to impose substantial and
potentially unrecoverable regulatory compliance and other costs on
generation owners by requesting access to ICIF without making a showing
that the third party is ``ready, willing, and able to pay the
reasonable costs of transmission services plus a reasonable rate of
return on such costs.'' \45\
---------------------------------------------------------------------------

    \44\ Terra-Gen at 1.
    \45\ Terra-Gen at 1 (citing New York State Electric & Gas Corp.
v. FERC, 638 F.2d 388, 402 (2d. Cir. 1980), cert. denied, 454 U.S.
821 (1981)).
---------------------------------------------------------------------------

    21. Linden states that ICIF owners generally plan to use the excess
capacity on their ICIF for their own purposes and that the Commission's
existing policy imposes a risk of losing that capacity if another party
makes a request for service.\46\ ELCON argues that an ICIF owner should
retain the rights over its ICIF for its own future projected use.\47\
---------------------------------------------------------------------------

    \46\ Linden at 4.
    \47\ ELCON at 2.
---------------------------------------------------------------------------

    22. MISO supports revising the Commission's ICIF policy because it
argues that the existing policy: (1) Creates disincentives to develop
more efficient, high-voltage ICIF by expanding the costs and
responsibilities of generation owners; (2) imposes transmission owner
requirements on entities that are not in the business of providing
transmission service to third parties; and (3) creates concerns over
the interaction of ICIF with the transmission system, and the reliable
interconnection of projects to the transmission system.\48\
---------------------------------------------------------------------------

    \48\ MISO at 4-5.
---------------------------------------------------------------------------

    23. Commenters argue that ICIF are unique and the Commission's open
access requirements and pro forma OATT were not designed for and are
not appropriate for these facilities.\49\ MISO asserts that use of an
OATT by an ICIF owner raises complicated issues regarding seams
agreements between the transmission provider and the ICIF owner and
issues related to Order No. 1000-compliance regional transmission
planning and cost allocation.\50\ MISO also notes that using OATTs for
access to ICIF could create different interconnection processes for
different ICIF within the MISO footprint, thus complicating the
interconnection process.\51\
---------------------------------------------------------------------------

    \49\ BP Wind at 4; Linden at 3; ELCON at 2; and E.ON at 2.
    \50\ MISO at 5.
    \51\ MISO at 5.
---------------------------------------------------------------------------

    24. On the other hand, APPA, TAPS, and NCPA state that they support
the Commission's goal of promoting generation development, but assert
that the NOPR proposals would erode the Commission's open access
transmission policies.\52\ APPA and TAPS argue that the Commission
should instead address the concerns identified in the NOPR in a manner
that preserves the open access underpinnings of competitive markets and
its reliance on market-based rates to ensure just and reasonable
wholesale sales, and meets its statutory obligation to eliminate undue
discrimination in transmission service. APPA and TAPS contend that the
NOPR, as proposed, fundamentally erodes open access by making it
effectively impossible for subsequent competitive generation developers
to interconnect with the ICIF owner's facilities for long periods of
time, if ever.\53\ NCPA states that while it supports the Commission's
desire to promote generation development, it shares the concerns
expressed by APPA and TAPS that the NOPR imperils the open access
underpinnings for competitive markets by cutting back on the
significant procedural reforms initiated by this Commission in Order
Nos. 888 and 889, and supports the alternatives proposed by APPA and
TAPS, as described below, by which the Commission could achieve the
NOPR's objectives without unnecessarily reducing the protection from
discrimination that those orders provided.\54\ Similarly, NRECA states
that it appreciates the Commission's concerns about imposing the entire
open access regime on entities that only own ICIF, but contends that
reducing this burden must not come at the expense of ensuring that
load-serving entities have access to facilities to serve their
loads.\55\
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    \52\ APPA and TAPS at 2 and NCPA at 3.
    \53\ APPA and TAPS at 2.
    \54\ NCPA at 3.
    \55\ NRECA at 2.
---------------------------------------------------------------------------

    25. APPA and TAPS \56\ argue that the NOPR fails to demonstrate the
need to change the requirement that an ICIF owner file an OATT upon
receipt of a third-party request for service, noting that the NOPR
itself recognizes that third-party requests to ICIF owners for service
are ``infrequen[t]'' and ``relatively rare.'' \57\ They also contend
that the NOPR has not demonstrated that the proposed procedures would
cost less than existing requirements, arguing that the lengthy and
costly procedures of sections 210 and 211 could not possibly be less
expensive for ICIF owners on an industry-wide basis. They argue that
the NOPR proposals will therefore be ineffective at reducing the
regulatory costs of ICIF owners and may function as a bar to open
access.\58\
---------------------------------------------------------------------------

    \56\ NCPA states that it supports the comments submitted by APPA
and TAPS. NCPA at 1 and 3.
    \57\ APPA and TAPS at 20 (citing NOPR, FERC Stats. & Regs. ]
32,701 at PP 32, 36).
    \58\ APPA and TAPS at 21.
---------------------------------------------------------------------------

    26. APPA and TAPS contend that the NOPR would invite ICIF owners to
close off access to what could well be significant highways to areas
ripe for renewable resource development.\59\ APPA and TAPS argue that
the NOPR would allow an ICIF owner to hold that transmission corridor
hostage, block efficient expansion, and deny access to competitors.
They add that the ICIF owner is likely to be the competitor of the
third party seeking interconnection and transmission service over the
ICIF, giving the ICIF owner strong incentive to use its control over
ICIF to the advantage of its own generation resources.\60\
---------------------------------------------------------------------------

    \59\ APPA and TAPS at 8 (citing NOPR, FERC Stats. & Regs. ]
32,701 at P 9, n.16).
    \60\ APPA and TAPS at 8-9.
---------------------------------------------------------------------------

    27. APPA and TAPS also state that the Commission cannot assume that
open access principles need not apply to ICIF

because competitors can build their own, arguing that such lines
require extensive permitting, and that it is often more difficult to
obtain siting approvals for a second line once a first line has been
permitted.\61\ They contend that, even where it is possible to obtain
necessary siting approvals for duplicative lines, inefficient build-out
of the grid would make it more costly than necessary to access new
generation resources, burdening those resources and consumers, as well
as undermining competitive wholesale markets.
---------------------------------------------------------------------------

    \61\ APPA and TAPS at 9-10.
---------------------------------------------------------------------------

    28. APPA and TAPS contend that departure from the Commission's non-
discriminatory access requirements cannot be excused by the fact that
usage of ICIF has been requested infrequently thus far, arguing that
ICIF access may well become more common in the future given the
increasing dependence on renewable resources.
    29. APPA, TAPS, and NRECA suggest alternatives to the NOPR
proposals. APPA and TAPS state that the Commission could grant a
blanket waiver of OATT, OASIS, and Standards of Conduct requirements,
but require ICIF owners to submit a standardized, more limited OATT
within 60 days of a third-party service request. APPA and TAPS argue
that the modified OATT should not remove core elements of open access,
including the obligation to expand and the development of rates for
point-to-point service, but could eliminate provisions for network
transmission service and ancillary services.\62\ They state that this
will reduce the regulatory burden on ICIF owners and eliminate the need
to apply for special waivers on a case-by-case basis, while preserving
key limitations on the ICIF owner's ability to discriminate and create
barriers to entry to competitive markets.
---------------------------------------------------------------------------

    \62\ APPA and TAPS at 21-22.
---------------------------------------------------------------------------

    30. APPA and TAPS state that the Commission could address the
concern that the existing policy creates too low a bar for third-party
requests to trigger the requirement for an ICIF owner to file an OATT
by specifying clarified and heightened thresholds for a service request
to trigger the requirement to file. They add that the Commission could
approve fee structures that enable an ICIF owner to insist upon
reasonable deposits before the obligation to file a notice of receipt
of a service request and, subsequently, an OATT is triggered.\63\ They
argue that such additional deposits would discourage speculative
service requests that trigger a first-time OATT filing and fully
address the specific ICIF owner regulatory burden that the NOPR
identifies. They contend that while the extra deposit would increase
costs for the first entity that seeks service from the ICIF owner's
corporate family, the amount of the deposit would be much lower than
the costs of requesting, negotiating, and litigating service under
sections 210 and 211.\64\
---------------------------------------------------------------------------

    \63\ APPA and TAPS at 23.
    \64\ APPA and TAPS at 23-24.
---------------------------------------------------------------------------

    31. NRECA suggests that the Commission could implement a procedure
under which a prospective customer seeking service on ICIF must submit
a request that is fully supported by specified information, followed by
the necessary studies and the parties cooperating to reach an agreement
for service within a specified period of time, such as 90 days.\65\
NRECA adds that if the parties are not able to reach an agreement, the
ICIF owner would file an unexecuted service proposal with the
Commission.\66\
---------------------------------------------------------------------------

    \65\ NRECA at 5-6.
    \66\ NRECA at 6-7.
---------------------------------------------------------------------------

    32. NRECA argues that its proposed procedures would address the
Commission's concern that the existing policy ``creates too low a bar
for third-party requests for service'' because those seeking service
would be required to provide adequate information to support their
requests. NRECA also argues that its proposal would alleviate the
concern that an ICIF owner may be required to file an OATT due to a
service request by a requester that subsequently fails to pursue any
further development, because a mere service request would no longer
trigger that requirement. In addition, NRECA contends that its proposal
would promote flexibility by requiring the parties to work together to
attempt to reach an agreement.\67\

---------------------------------------------------------------------------

    \67\ NRECA at 7.
---------------------------------------------------------------------------

C. Commission Determination

    33. We believe this Final Rule will relieve regulatory burdens and
unnecessary risks from generation developers to encourage the
development of new generation and efficient interconnection facilities
and promote competition while ensuring access to transmission on a not
unduly discriminatory basis.
    34. Our action is supported by comments on the NOPR, the technical
conference,\68\ and Notice of Inquiry.\69\ Specifically, we appreciate
that filing and maintaining an OATT can be burdensome to ICIF owners
who do not seek to provide transmission service. Adding a potential
OATT obligation to a generation project can introduce an additional
element of risk for the developer and its lenders that they would not
have if the project were not subject to the potential obligation to
file and maintain a transmission tariff. The risk stems from the policy
to require an ICIF owner to file an OATT within 60 days of a request
for service by a third party and must begin interconnection studies.
The ICIF owner's obligation can be triggered with minimal effort by a
third party requester, thus a request for service may not sufficiently
distinguish third party requesters who have a well-supported request
for service from those that do not. We are aware of situations where
the ICIF owner received a request for service triggering the
requirement that the owner file an OATT, but the requester then failed
to pursue any further development.\70\ This is an additional risk for
the ICIF owner.
---------------------------------------------------------------------------

    \68\ Priority Rights to New Participant-Funded Transmission,
March 15, 2011 Technical Conference, AD11-11-000.
    \69\ Open Access and Priority Rights on Interconnection
Facilities, Notice of Inquiry, FERC Stats. & Regs. ] 35,574 (cross-
referenced at 139 FERC ] 61,051 (2012).
    \70\ See NextEra at 5 (``Two of the three NextEra subsidiaries
that received inquiries triggering OATT filings with respect to
their ICIF--Sagebrush and Peetz Logan--never had customers actually
pursue transmission or interconnection service following the initial
inquiries'') and Terra-Gen at 2 (``Dixie Valley . . . incurred
substantial costs in attempting to comply with the Commission's OATT
requirements over several years, only to find that it would have no
way to recover those costs because the customer that requested
transmission service ultimately did not become a transmission
customer'').
---------------------------------------------------------------------------

    35. We also agree that a number of sections of the pro forma OATT,
such as the provisions regarding network service, ancillary services,
and planning requirements, are arguably inapplicable to most or all
ICIF owners. Although ICIF owners may propose deviations from the pro
forma OATT, the Commission's existing process of handling these
proposed deviations on a case-by-case basis can impose the risk of a
time-consuming proceeding with an uncertain outcome.
    36. Moreover, interconnecting with ICIF often involves unique
circumstances that would benefit from negotiations to tailor individual
access agreements. However, the existing policy limits an ICIF owner's
contractual flexibility and does not allow parties to use common
facility agreements or have service governed outside of an OATT.\71\
---------------------------------------------------------------------------

    \71\ Sky River, 134 FERC ] 61,064 at P 13.
---------------------------------------------------------------------------

    37. In addition, it is common for an ICIF owner to initially have
excess capacity on its ICIF when it plans to bring generation into
commercial service in stages. The Commission has

a process for granting priority rights to the ICIF owner for such
excess capacity on a case-by-case basis. However, filing a petition for
declaratory order to establish priority rights can be a significant
burden for the ICIF owner because the Commission's existing policy of
requiring a demonstration of ``specific plans and milestones'' can
require substantial effort and resources on the part of the ICIF owner
to make the necessary showings. Further, these priority rights do not
diminish the risk and potential burden that the ICIF owner may have to
file an OATT within 60 days of a request for service.
    38. Contrary to APPA and TAPS' argument that the proposed revisions
will likely cost more to implement than the Commission's existing OATT
requirements,\72\ other commenters assert that the risks described
above fall on all ICIF owners and therefore that the Commission's
existing policy imposes costs,\73\ despite the fact that it is unlikely
that any third party would request OATT service on most ICIF. The
Commission has issued numerous individual orders granting waivers of
OATT, OASIS, and Standards of Conduct to ICIF owners, but in only four
instances did a third-party request access on ICIF such that the filing
of an OATT was required.\74\ Although only a small percentage of ICIF
owners have actually had to file an OATT, all ICIF owners are subject
to the additional risks and potential regulatory burdens discussed
above, including possibly having to file an OATT on 60 days' notice in
response to a request for service, and possibly losing some of the ICIF
capacity planned for future use to a requesting third party. In
response to commenters concerns that the process under sections 210 and
211 is more expensive for potential transmission customers than the
existing process, we note that the cost of any process has many
variables. This Final Rule specifically allows for voluntary
interconnection agreements, which may be a more efficient process than
currently exists. Under our existing policy, while a potential
transmission customer may trigger an ICIF owner's OATT obligation by
making a simple request for service, the potential customer often bears
the expense to be a party to what are sometimes controversial
proceedings. We find that the proposed reforms will avoid the expense
of requests that are unlikely to be successful. Accordingly, we find
that reforming the open access transmission requirements in this narrow
set of circumstances is appropriate.
---------------------------------------------------------------------------

    \72\ APPA and TAPS at 20.
    \73\ AWEA at 2 and E.ON at 2.
    \74\ Between January 1, 2009, and January 1, 2014, the
Commission issued approximately 80 orders granting waiver of OATT,
OASIS, and Standards of Conduct requirements to ICIF owners.
---------------------------------------------------------------------------

    39. We find that APPA and TAPS' concerns that the NOPR would allow
an ICIF owner to close off access to significant highways to areas ripe
for renewable resource development overlook practical considerations of
infrastructure development. The approach taken in this Final Rule
recognizes that, often, an ICIF owner anticipates that it will use its
excess ICIF capacity, and seeks to reduce unnecessary regulatory
burdens. The Commission precedent with respect to priority use has
given ICIF owners the opportunity to demonstrate that they had pre-
existing contractual obligations or other specific plans that would
prevent them from providing the requested transmission service at a
future date.\75\ In balancing the considerations, we are persuaded that
the process under sections 210 and 211 allows an ICIF owner to be
reasonably assured of being able to use that extra capacity, while also
providing a mechanism for expansion. Without such reasonable assurance,
there is no incentive for a developer to shoulder the extra expense of
ICIF sized larger than their initial project.
---------------------------------------------------------------------------

    \75\ See, e.g., Aero Modification Order, 116 FERC ] 61,149 at P
28.
---------------------------------------------------------------------------

    40. Moreover, we agree with NRECA that it is important to promote
flexibility by encouraging the ICIF owner and the third party to work
together to attempt to reach an agreement. As discussed further below,
this Final Rule adopts a framework that includes opportunities for the
ICIF owner and third party to reach mutually agreeable solutions,
either as part of a proceeding under sections 210 and 211, or in such a
way that obviates the need to bring a proceeding under sections 210 and
211 to the Commission.

IV. Proposed Reforms

A. Eligible ICIF

1. Commission Proposal
    41. In the NOPR, the Commission defined the facilities that were
subject to the rule as ICIF because that term already had a specific
definition in the pro forma LGIA and LGIP.\76\ The Commission proposed
to apply the NOPR reforms to any public utility that is subject to
OATT, OASIS, and Standards of Conduct requirements solely because it
owns, controls, or operates ICIF, in whole or in part, and sells
electric energy from its generating facility, as those terms are
defined in the pro forma LGIP and the pro forma LGIA adopted in Order
No. 2003. The LGIA and LGIP define ICIF as ``all facilities and
equipment, as identified in Appendix A of the LGIA, that are located
between the generating facility and the Point of Change of Ownership,
including any modification, addition, or upgrades to such facilities
and equipment necessary to physically and electrically interconnect the
generating facility to the transmission provider's transmission
system.'' \77\
---------------------------------------------------------------------------

    \76\ NOPR, FERC Stats. & Regs. ] 32,701 at PP 1 and 35.
    \77\ LGIA Article 1.
---------------------------------------------------------------------------

2. Comments
    42. First Wind and Invenergy recommend that the Commission not
define the interconnection facilities subject to the waiver with
reference to the LGIA and LGIP, but simply as those facilities located
between the generating facility and the point of interconnection to the
transmission provider's transmission system. This is because some
interconnection agreements predate Order No. 2003 which first defined
ICIF; some may be implemented under the small generator interconnection
procedures under Order No. 2006; and some agreements were entered into
with non-Commission jurisdictional transmission providers. They argue
that the definition of ICIF and generating facility should be revised
to encompass facilities that may not be installed under the
Commission's LGIA/LGIP arrangements.\78\ Similarly, AWEA seeks
clarification that ICIF owners who do not have interconnection
agreements under pro forma arrangements or those that have shared
facilities agreements (or similar understandings) also qualify for the
blanket waiver.\79\
---------------------------------------------------------------------------

    \78\ First Wind at 11-12 and Invenergy at 4-6.
    \79\ AWEA at 7-8.
---------------------------------------------------------------------------

3. Commission Determination
    43. We expand our definition of what interconnection facilities are
subject to the Final Rule to include ICIF as well as comparable
jurisdictional interconnection facilities that are the subject of
interconnection agreements other than an LGIA. For those
interconnection customers that have entered into an LGIA, these
facilities will be those defined as ICIF in the LGIA and LGIP. For
those interconnection customers that have entered into interconnection
agreements other than an LGIA, these facilities will be the comparable
set of interconnection facilities as those described as ICIF in the
LGIA. Therefore, the term ICIF

should be read in this Final Rule to encompass this broader scope. We
use the term ``comparable'' set of interconnection facilities because
the definition of ICIF in the LGIA is made with reference to specific
facilities listed in an appendix to the LGIA and to terms defined
elsewhere in the LGIA. Therefore, we cannot apply literally the
definition of ICIF in the LGIA to describe facilities in
interconnection agreements other than the LGIA. Generally, this
comparable set of facilities would include all facilities and equipment
that are located between an interconnection customer's generating
facility and the point where such facilities connect to the
transmission provider's interconnection facilities (called the ``point
of change of ownership'' in the LGIA) that are necessary to physically
and electrically interconnect the interconnection customer's generating
facility to the transmission provider's facilities that are used to
provide transmission service (called the ``point of interconnection''
in the LGIA).

B. Grant Blanket Waivers to Eligible ICIF Owners

1. Blanket Waivers
a. Commission Proposal
    44. The Commission proposed to add sub-paragraph (d)(2) to 18 CFR
35.28 to grant a blanket waiver of all OATT, OASIS, and Standards of
Conduct requirements to any public utility that is subject to such
requirements solely because it owns, controls, or operates ICIF, in
whole or in part, and sells electric energy from its generating
facility, as those terms are defined in the LGIP and LGIA.\80\ The
Commission proposed that the blanket waiver would apply to all eligible
existing and future ICIF owners, and explained that the limitation to
ICIF owners that sell electric energy was meant to ensure that the
proposed blanket waiver would only apply in situations where sections
210 and 211 would provide interconnection and transmission access to a
customer that seeks service over the ICIF.\81\
---------------------------------------------------------------------------

    \80\ The Commission also proposed to make non-substantive
revisions to what is currently 18 CFR 35.28(d) in order to update
certain cross-references in that paragraph.
    \81\ NOPR, FERC Stats. & Regs. ] 32,701 at P 35.
---------------------------------------------------------------------------

b. Comments
    45. The majority of commenters support the Commission's proposal to
grant a blanket waiver of all OATT, OASIS, and Standards of Conduct
requirements to public utility ICIF owners. Commenters agree with the
Commission's preliminary findings in the NOPR that a blanket waiver is
justified because such facilities do not typically present the concerns
about discriminatory conduct that the Commission's OATT, OASIS, and
Standards of Conduct requirements were intended to address.\82\
Commenters agree that the Commission's existing practice of requiring
an OATT for ICIF discourages generation development and results in a
disincentive to be the first developer in an area to build ICIF, while
creating a relative advantage for subsequent competing generation
developers in that area.\83\ Additionally, they argue that the
Commission's existing practice unreasonably causes developers of ICIF
to incur significant costs in response to mere written third-party
requests unaccompanied by any deposit. Commenters agree that the
requirement to file an OATT following any third-party request creates a
regulatory burden without a corresponding enhancement of access.\84\
---------------------------------------------------------------------------

    \82\ EEI at 3 and BHE at 6-7.
    \83\ EEI at 8-9; BHE at 6-7; and E.ON at 2.
    \84\ EEI at 8-9; BHE at 6-7; and E.ON at 2.
---------------------------------------------------------------------------

    46. Commenters state that the OATT is not a good fit for the
services that can be provided over ICIF, and argue that such limited
service is not comparable to the integrated network, point-to-point,
and ancillary services provided under the pro forma OATT.\85\ E.ON
agrees that the current OATT requirement can be seen as burdensome by
ICIF owners who do not seek to be in the business of providing
transmission service, can introduce an additional element of risk for
the developer and its lenders that they would not have if the project
were not subject to the potential obligation to file and maintain a
transmission tariff, and limits an ICIF owner's contractual flexibility
if it chooses to provide third-party access by mutual agreement.\86\
---------------------------------------------------------------------------

    \85\ NextEra at 4-5 and E.ON at 2.
    \86\ E.ON at 2.
---------------------------------------------------------------------------

    47. Commenters state that the Commission's existing policy of
requiring an ICIF owner to file an OATT or seek a waiver that would be
revoked only upon a third-party request for service creates too low a
bar for third-party requests for service and could lead to competitive
mischief.\87\ BHE argues that ICIF owners are focused on developing new
generation resources and that, given the infrequency of third-party
requests and the absence of disputes before the Commission, it is more
reasonable and efficient to address third-party requests to access
available ICIF capacity as they arise on an individual basis.\88\
---------------------------------------------------------------------------

    \87\ BHE at 6-7 and E.ON at 2.
    \88\ BHE at 6-7.
---------------------------------------------------------------------------

    48. Some commenters argue that adjudicating such OATT waiver
requests and OATT tariff filings on a case-by-case basis has led to
confusion and uncertainty in the industry with respect to compliance
with the Commission's open access requirements as applied to ICIF.\89\
DTE argues that there is a filing burden associated with making a
waiver request, as well as some uncertainty about the actions that
would need to be taken in the unlikely event that these requests for
waiver were not granted. DTE states that the proposed blanket waiver
would remove any uncertainty regarding the current status of existing
eligible ICIF owners that may have been awaiting the Commission's
direction on this matter before making the determination of whether or
not to seek a ``limited and discrete'' waiver from the OATT, OASIS and
Standards of Conduct regulations.\90\ Similarly, NextEra argues that
the implication of the description of existing policy in the NOPR is
that a significant number of generation owners should be taking actions
to address existing open access requirements. NextEra points out that,
in the NOPR, the Commission notes that this lack of clarity extends to
whether market-based rate applicants that own ICIF, or have affiliates
that own ICIF, must file an OATT or seek a waiver from OATT
requirements in order to show a lack of vertical market power. NextEra
argues that the proposed waiver will provide much needed certainty for
ICIF owners by clearly identifying those entities that are not subject
to OATT, OASIS, or Standards of Conduct requirements.\91\
---------------------------------------------------------------------------

    \89\ NextEra at 3-4.
    \90\ DTE at 2.
    \91\ NextEra at 7.
---------------------------------------------------------------------------

    49. Southern agrees that the blanket waiver approach appears to be
appropriate given that very few generator tie lines have the
characteristics (e.g., long length, excess capacity) that would make
them more feasible for interconnection by another generator than the
transmission system.\92\
---------------------------------------------------------------------------

    \92\ Southern at 4.
---------------------------------------------------------------------------

    50. In contrast, APPA and TAPS state that creating and maintaining
two different standards for access to transmission facilities is
problematic in a dynamic grid, adding that ICIF that look like radial
lines at the fringe of the system today may be a more central part of
the network in a decade or two.\93\
---------------------------------------------------------------------------

    \93\ APPA and TAPS at 10.

---------------------------------------------------------------------------

    51. APPA and TAPS argue that the Commission has long required
market-based rate sellers that own transmission to demonstrate
mitigation of vertical market power by showing that they and their
affiliates either have filed an OATT or received a waiver for every
transmission facility that they own, operate, or control, and to offer
third parties service comparable to the service the market-based rate
sellers and their affiliates provide themselves. APPA and TAPS contend
that the proposed blanket waiver does not clarify the manner by which
ICIF owners can address concerns about vertical market power when they
seek market-based rate authority, but rather that it magnifies those
concerns by discarding an essential foundation for allowing the ICIF
owner and its affiliates to enjoy market-based rates.\94\
---------------------------------------------------------------------------

    \94\ APPA and TAPS at 14.
---------------------------------------------------------------------------

    52. APPA and TAPS state that they would not oppose an initial grant
of a blanket waiver of the requirement that each ICIF owner must file
an individual request for waiver of OATT, OASIS, and Standards of
Conduct, provided that such waivers would be revoked upon receipt of a
third-party request for service on the ICIF.\95\
---------------------------------------------------------------------------

    \95\ APPA and TAPS at 20.
---------------------------------------------------------------------------

    53. APPA and TAPS argue that the NOPR places no limit on the
proposed blanket waiver, extending it to periods when there is no
reasonable expectation that the ICIF owner is still in the project
development mode.
    54. NRECA states that it does not object to exempting certain ICIF
owners from the mandate to file an OATT and related requirements for
limited and discrete facilities, but that any such waiver should be
revoked if the entity no longer meets those criteria.\96\
---------------------------------------------------------------------------

    \96\ NRECA at 4.
---------------------------------------------------------------------------

c. Commission Determination
    55. We adopt the proposed blanket waiver with modifications as
discussed below.\97\ We believe the proposal as modified addresses the
concerns of commenters while meeting our purpose of reducing
unnecessary burden and providing clarity and certainty to developers.
Such a waiver is justified because the usually limited and discrete
nature of ICIF and ICIF's dedicated interconnection purpose means that
such facilities do not typically present the concerns about
discriminatory conduct that the Commission's OATT, OASIS, and Standards
of Conduct requirements were intended to address. Because third-party
requests to use ICIF have been relatively rare, it is more efficient to
address such situations as they arise on an individual basis.
---------------------------------------------------------------------------

    \97\ Certain aspects of the blanket ICIF waiver adopted herein
differ from the NOPR proposal. E.g., see infra PP 73-75 for the
Commission determination on the public utilities eligible for the
blanket waiver and supra P 43 for the Commission determination on
the ICIF eligible for the blanket waiver.
---------------------------------------------------------------------------

    56. Further, the ICIF waiver would remove regulatory burdens on
competitive generation developers without sacrificing the Commission's
ability to require open access in appropriate circumstances.
Specifically, we find that a blanket waiver will remedy the undue
burden on ICIF owners under our existing policy to file an OATT or seek
a waiver that would be revoked upon a third-party request for service
from ICIF owners. We find that the time, effort, and cost of complying
with the requirements of a public utility transmission provider in
these circumstances unduly burden generation development efforts. In
addition, we agree with commenters that the existing policy creates too
low a bar for third-party requests for service. Specifically, an
existing waiver of the OATT is revoked as soon as the ICIF owner
receives a third-party request for service, even if that request meets
few of the information and other requirements for transmission service
under the pro forma OATT.
    57. Finally, we agree with DTE and NextEra that providing a blanket
waiver of the OATT for ICIF owners will clarify how they meet the OATT
filing or OATT waiver requirements involved when seeking market-based
rate authority.\98\ APPA and TAPS argue that the blanket waiver does
not explain how sellers would address vertical market power for
purposes of market-based rate authority. However, this Final Rule
simply provides an additional method for obtaining waiver of the OATT
requirements. Therefore, to the extent that a market-based rate seller
or any of its affiliates owns, operates, or controls transmission
facilities, the Commission will require that, in order to satisfy the
Commission's market-based rate vertical market power requirements in 18
CFR 35.37(d), it either must have a Commission-approved OATT on file,
receive waiver of the OATT requirement under 18 CFR 35.28(d)(1), or
satisfy the requirements for blanket waiver under 18 CFR 35.28(d)(2).
Market-based rate filings cannot be used as the vehicle by which
applicants may obtain determinations on whether they qualify for an
ICIF blanket waiver.
---------------------------------------------------------------------------

    \98\ To demonstrate the absence of vertical market power in a
market power analysis, a seller or its affiliate that owns,
operates, or controls transmission facilities must have an OATT on
file unless waived. See 18 CFR 35.37(d).
---------------------------------------------------------------------------

    58. As discussed further below, the blanket waiver adopted herein
only applies in situations where sections 210, 211, and 212 would
provide interconnection and transmission access to a customer that
seeks service over the ICIF. This ensures that we are only waiving the
OATT requirements in circumstances where there is an alternative for
third parties to seek not unduly discriminatory access.
2. Requirement That ICIF Owners Must Sell Electricity To Qualify for
the Waiver
a. Commission Proposal
    59. The Commission proposed to grant the blanket waiver to any
public utility that is subject to the Commission's OATT, OASIS, and
Standards of Conduct requirements solely because it owns, controls, or
operates ICIF, in whole or in part, and sells electric energy from its
generating facility. The Commission's proposal to limit the waiver to
ICIF owners who sell electric energy was intended to ensure that any
public utility with an OATT blanket waiver would be subject to an
interconnection order under section 210. This requirement was seen as
necessary so as not to create a gap and leave a potential customer
without a means of obtaining an interconnection with ICIF once the OATT
interconnection procedures were waived.\99\
---------------------------------------------------------------------------

    \99\ NOPR, FERC Stats. & Regs. ] 32,701 at PP 35, 43.
---------------------------------------------------------------------------

    60. Section 210 of the FPA provides, in relevant part, ``Upon
application of any electric utility . . . the Commission may issue an
order requiring (A) the physical connection of . . . the transmission
facilities of any electric utility, with the facilities of such
applicant.'' \100\ An ``electric utility'' is defined as ``a person or
Federal or State agency . . . that sells electric energy.'' \101\ Thus,
the NOPR granted the waiver only to those that qualified as an electric
utility to ensure that section 210 would be applicable. The Commission
stated that it believes that there would be a relatively small number
of ICIF owners who could not be subject to orders under sections 210
and 211, and sought comments on whether this limitation on which public
utilities can take advantage of the blanket waiver is appropriate. The
Commission noted that ICIF owners who were not electric

utilities had the option to seek waiver on a case-by-case basis.\102\
---------------------------------------------------------------------------

    \100\ 16 U.S.C. 824i(a)(1)(A).
    \101\ 16 U.S.C. 796(22).
    \102\ NOPR, FERC Stats. & Regs. ] 32,701 at PP 51-52.
---------------------------------------------------------------------------

b. Comments
    61. Some commenters argue that it is common for separate ICIF-only
companies to be created and owned by a generation company or an
affiliate, so that an entity separate from the generation company is
used to own, operate, and manage the ICIF.\103\ Further, these
commenters argue that it is unnecessary to exclude from the waiver and
safe harbor those entities that do not sell electric energy, and that
the Commission can and should modify the proposal to make the waiver
applicable to entities that only own the ICIF but do not sell electric
energy. They also argue that the Commission routinely grants OATT
waivers for such companies under the limited and discrete facilities
factor.\104\
---------------------------------------------------------------------------

    \103\ Recurrent at 4; First Wind at 4-8; Invenergy at 7-11; BP
Wind at 4-5; E.ON at 6; ITC at 8; NextEra at 7-9; SEIA at 4-5;
Sempra at 3-6; and MISO TOs at 5-6.
    \104\ First Wind at 4-8 and Invenergy at 7-11.
---------------------------------------------------------------------------

    62. Recurrent, SEIA, and Sempra argue that ICIF-only companies
often are employed when the generation project is developed in phases,
and separate companies own the discrete portions of the generating
facility that is the subject of a LGIA.\105\ SEIA states that
establishing a separate entity can facilitate management of the
jointly-owned ICIF, assist in establishing a single point of contact
with the interconnected transmission owner and operator, and can
facilitate the addition of other ICIF users.\106\ Sempra states that
the ICIF-only entity structure has also been utilized because of tax
regulations and other permitting considerations.\107\ BP Wind notes
that sometimes a separate stand-alone entity is formed to own the ICIF
because an RTO requests to have a single point of contact for multiple
generators interconnecting at the same point on the grid.\108\
---------------------------------------------------------------------------

    \105\ Sempra at 3 (citing, e.g., Wolverine Creek Goshen
Interconnection LLC, Docket Nos. ER06-267-000 (Letter Order dated
Jan. 13 2006), Wolverine Creek Energy LLC, et al., Docket Nos. ER12-
1280-000 and ER12-1281-000 (May 9, 2012) (unpublished letter order
accepting amended common facilities agreement for filing), and Maine
GenLead, LLC, 146 FERC ] 61,223 (2014)).
    \106\ SEIA at 4.
    \107\ Sempra at 3 (citing, e.g., Docket No. ER03-175-000,
``Request of Termoelectrica U.S., LLC for Rehearing, and Expedited
Consideration and/or Stay'' at n.6 (filed Feb. 10, 2003) (TDM
Rehearing Request), and Termoelectrica U.S., LLC, 105 FERC ] 61,087
(2003) (order granting rehearing relating to OATT waivers), Docket
No. EC14-80-000, ``Application for Authorization to Transfer
Jurisdictional Facilities Pursuant to section 203 of the Federal
Power Act and Request for Expedited Action'' at pp. 5-6 (describing
the planned ownership structure of future cross-border
interconnection facilities), and Energia Sierra Juarez U.S., LLC,
Docket No. EC14-80-000 (May 29, 2014) (letter order approving
transfer)).
    \108\ BP Wind at 4-5. MISO's comments seem to support this
point, stating, ``from an operational and reliability perspective,
MISO needs to have a single Interconnection Customer entity at each
distinct Point of Interconnection to the Transmission System with
whom MISO can coordinate. That entity must have the authority to
control any other generators that interconnect to its ICIF on its
side of the Point of Interconnection.'' MISO at 8.
---------------------------------------------------------------------------

    63. E.ON argues that an ICIF-only entity should be afforded the
same opportunity to obtain a blanket waiver as entities that sell
electricity because this type of entity only exists to accommodate a
generator company's phased access to the grid.\109\ Recurrent states
that when an interconnection company structure is used, the physical
arrangement is identical to where the same entity owns the generation
and the ICIF--the only difference is that a separate entity, the
interconnection company, owns all or a portion of the ICIF and no
generation.\110\ SEIA asserts that the Commission should not impose
unnecessary burdens on developers based on their use of this ownership
structure.\111\ ITC argues that the ICIF owned by an ICIF-only entity
will be functionally identical to situations where generators own ICIF,
and the service is likely to be the same.\112\ BP Wind agrees that the
Commission should ensure that ICIF-only entities are not precluded from
being eligible for the proposed blanket waiver on a technicality, so
long as the facilities are utilized to interconnect generating
facilities to the transmission grid.\113\ BP Wind argues that these
interconnection-only entities, like generators that directly own
interconnection facilities, do not seek to be in the transmission
business.
---------------------------------------------------------------------------

    \109\ E.ON at 6-7.
    \110\ Recurrent at 5-6.
    \111\ SEIA at 4-5.
    \112\ ITC at 12-13.
    \113\ BP Wind at 6.
---------------------------------------------------------------------------

    64. First Wind and Invenergy argue that, if the Commission does not
extend the blanket waiver to ICIF-only entities, the rule would be
discriminatory because there is no basis to distinguish the two types
of ICIF entities other than corporate structure, and ICIF-only entities
would face the undue burdens identified in the NOPR.\114\ ITC and MISO
TOs argue that to provide a blanket waiver to ICIF owners that sell
electric energy, but to require ICIF owners that do not sell electric
energy to file an OATT or seek waiver thereof, serves no clear purpose
and imposes precisely the same burdens and regulatory inefficiencies
identified as the basis for the Commission's NOPR, in a manner which
discriminates against non-sellers of electric energy.\115\
---------------------------------------------------------------------------

    \114\ First Wind at 4-8 and Invenergy at 7-11.
    \115\ ITC at 12-13 and MISO TOs at 5-6.
---------------------------------------------------------------------------

    65. ITC also is concerned that the Commission's proposal to limit
eligibility for the waiver may have unintended consequences. For
example, given the practical burdens associated with the operation and
maintenance of ICIF, ICIF owners may wish to divest such facilities to
transmission owners with more experience operating these types of
facilities, and more resources for meeting the reliability requirements
of such operation. ITC argues that failure to extend the blanket waiver
in such scenarios may discourage such transactions, thereby imposing
reliability and operational burdens on generator owners who may not be
willing or able to carry them out.\116\ MISO TOs quote the NOPR as
stating that the pro forma OATT is not a good fit for ICIF and that
these facilities do not typically present all the concerns the OATT is
intended to address; MISO TOs assert that the same is true whether the
ICIF owner happens to sell electric energy from its generating facility
or not.\117\
---------------------------------------------------------------------------

    \116\ ITC at 13.
    \117\ MISO TOs at 5-6.
---------------------------------------------------------------------------

    66. Recurrent and Sempra further argue that the Commission has
addressed these types of ownership arrangements in the context of
``exempt wholesale generator'' (EWG) status pursuant to section 32 of
the Public Utility Holding Company Act of 2005 (PUHCA).\118\ Recurrent
states that the Commission has held that an entity that does not own
generation facilities but does own a radial interconnection line used
solely to connect wholesale-only generating facilities to the
transmission grid qualifies as an EWG. Recurrent argues that section
32(a)(2) of PUHCA states that the term ``eligible facility'' includes
interconnecting transmission facilities necessary to effect a sale of
electric energy at wholesale, and that an entity may be an EWG if it
owns ``all or part of one or more eligible facilities.'' Recurrent
states that with respect to the

statutory requirement that an EWG ``sell electric energy at
wholesale,'' the Commission has imputed the generation owner's sales of
wholesale power to the interconnection company, in order to satisfy the
statutory requirement, in all of the proceedings that have addressed
this issue.\119\ Recurrent argues that in decisions involving requests
for waivers of OATT and related requirements, and in those involving
EWG status, the Commission appropriately has not elevated form over
substance and has not differentiated its regulatory treatment of
interconnection companies from its treatment of a ``single entity''
that owns both generation and ICIF.\120\
---------------------------------------------------------------------------

    \118\ Sempra at 4-5 (citing, e.g., Wolverine Creek Goshen
Interconnection LLC, 111 FERC ] 62,209 (2005) (Wolverine Creek
Goshen); Sagebrush, 103 FERC ] 61,332 (2003) (Sagebrush);
Termoelectrica U.S., LLC, 102 FERC ] 61,019 (2003) (Termoelectrica);
Peetz Logan Interconnect, LLC, Docket No. EG06-84-000, ``Notice of
Exempt Wholesale Generator Status'' (Sept. 27, 2006); Bishop Hill
Interconnection LLC, Docket No. EG12-24-000, ``Notice of Self-
Certification of Exempt Wholesale Generator Status'' (Jan. 20,
2012); Maine GenLead LLC, Docket No. EG14-23-000, ``Notice of Self-
Certification of Exempt Wholesale Generator Status'' (Jan. 24,
2014)).
    \119\ Recurrent at 6.
    \120\ Recurrent at 6-7.
---------------------------------------------------------------------------

    67. Several commenters suggest potential ways to fix the section
210 applicability issue with respect to ICIF-only entities, such that
the blanket waiver and safe harbor would apply to ICIF-only companies,
and section 210 would preserve the ``backstop'' ability of third
parties to obtain a Commission order requiring the ICIF-only company to
interconnect with and provide transmission services to the third party.
Recurrent proposes that the Commission grant the blanket waiver to an
ICIF owner that does not sell electric energy if the interconnection
company files a request for waiver that includes a commitment that if
the Commission issues an order requiring the interconnection company to
provide transmission services to a third party pursuant to section 211
of the FPA--to which the interconnection company is subject--the
interconnection company agrees to voluntarily provide interconnection
to the third party.\121\ SEIA states that it supports Recurrent's
proposal.\122\ Similarly E.ON states that the section 210 applicability
concern could be alleviated by having the ICIF-only entity
affirmatively submit to the Commission's section 210 jurisdiction as a
condition to being afforded the blanket waiver.\123\
---------------------------------------------------------------------------

    \121\ Recurrent at 9-10.
    \122\ SEIA at 5 (citing Recurrent at 9-10).
    \123\ E.ON at 7. E.ON also offers a redline of the proposed
regulations to effect this change.
---------------------------------------------------------------------------

    68. Sempra states that, although ICIF-only entities may not sell
the power produced by their affiliates, they are an indispensable part
of the sales transaction, and are typically party to the
interconnection agreement along with or as agent for the affiliated
generator.\124\ Therefore, Sempra argues, for the purpose of section
210 applicability, it would be appropriate to impute the electricity
sales of an affiliated generator, as the Commission does in the EWG
context, as discussed above, and extend that blanket waiver and safe
harbor to the ICIF-only entity.\125\
---------------------------------------------------------------------------

    \124\ Sempra at 4.
    \125\ Sempra at 4-6.
---------------------------------------------------------------------------

    69. First Wind and Invenergy argue that the Commission's concern
about entities not being able to use section 210 to request
interconnection service can be addressed by the Commission creating an
equivalent obligation by regulation for requesting interconnection from
an ICIF entity, and then review requests under section 210
standards.\126\ Similarly, BP Wind argues that the Commission should
revise its regulations so that ICIF-only entities that receive a
request for interconnection service would process the request in
accordance with requirements similar to those set forth in section 210
of the FPA.\127\
---------------------------------------------------------------------------

    \126\ First Wind at 4-8 and Invenergy at 7-11. Invenergy also
offers a redline of the proposed regulations to effect this change.
    \127\ BP Wind at 5-6.
---------------------------------------------------------------------------

    70. NextEra requests that the Commission clarify that ICIF owners
that have authorization from the Commission to sell electric energy at
market-based rates or that are EWGs are engaged in the sale of electric
energy for purposes of determining application of the proposed waiver
and application of section 210. NextEra argues that this would ensure
consistency between the Commission's use of similar terms and with
Commission precedent with respect to EWGs.\128\ NextEra states that
there may be instances in which an ICIF owner is not currently engaged
in sales of electricity yet is authorized by the Commission to engage
in such sales under a market-based rates tariff, so it should qualify
as an electric utility.
---------------------------------------------------------------------------

    \128\ NextEra at 7-9.
---------------------------------------------------------------------------

    71. ITC argues that section 210(d) provides that the Commission
may, on its own motion, issue an order requiring any action described
in subsection (a)(1) if the Commission determines that such order meets
the requirements of subsection (c). ITC interprets this to mean that
the Commission may issue an interconnection order on its own motion,
regardless of whether the ICIF owner qualifies as an electric utility
by selling energy.
    72. BP Wind argues that, if the Commission does not allow ICIF-only
entities to forego filing an OATT, it should at a minimum not require
such companies to file an OATT with the Commission until after
completion of interconnection studies by the interconnecting utility
and the requesting party has committed to move forward with its
project.\129\ ITC argues that if the Commission does not extend the
blanket waiver to ICIF-only entities, the Commission should provide the
option for ineligible entities to file a less burdensome and more
narrowly tailored OATT that governs the terms of interconnections via
the LGIP and LGIA.\130\
---------------------------------------------------------------------------

    \129\ BP Wind at 7.
    \130\ ITC at 8.
---------------------------------------------------------------------------

c. Commission Determination
    73. The proposal to limit the waiver to ICIF owners that also sell
electricity was intended to prevent the creation of a regulatory gap
and ensure that potential customers are not deprived of the ability to
seek interconnection with ICIF as a result of the waiver of ICIF
owners' OATT obligation. We believe that the initial assessment in the
NOPR that relatively few entities that own and/or operate ICIF would be
excluded from the blanket waiver by the requirement that they sell
electricity may be incorrect. We also believe that the value of
reducing regulatory burdens, which is a goal of this Final Rule,
applies equally to ICIF owners who sell electricity and to those that
do not. Therefore, we conclude that we should extend the blanket waiver
to ICIF owners who do not sell electricity, but, in doing so, we must
ensure that no potential customers are deprived of their ability to
seek interconnection with ICIF by the waiver of the ICIF owner's OATT
obligation. To expand the entities eligible for the blanket OATT
waiver, we adopt the following procedure to allow ICIF-only entities to
be eligible for the blanket OATT waiver. Any public utility to which
the blanket waiver stated in section 35.28(d)(2) of the regulations
adopted herein applies, but which does not sell electric energy, will
receive the blanket waiver upon filing an informational statement with
the Commission, as provided for in those regulations adopted
herein.\131\ In the statement, the entity must declare that, ``In order
to satisfy the requirements for a blanket waiver as described in
section 35.28(d)(2) of the Commission's regulations, [entity] commits
to comply with and be bound by the obligations and procedures
applicable to electric utilities under section 210 of the FPA.'' This
informational statement may be brief, requiring only the name and
contact information for the entity making the statement, and the
affirmative declaration described in the previous

sentence. These section 210 statements are to be filed in the following
docket, Docket No. AD15-9-000. The Commission will take no action in
response to these statements, but the blanket waiver will be applicable
upon filing this informational statement.
---------------------------------------------------------------------------

    \131\ We will not issue a public notice, accept comments, or
issue an order on the informational filings.
---------------------------------------------------------------------------

    74. The purpose of this section 210 statement is to create a
publically available record of ICIF-only entities that are taking
advantage of the blanket OATT waiver, and of the fact that, even though
these entities are not electric utilities, they are subject to an
application to the Commission under section 210 for an interconnection
order. Through this process, our intent is to extend the benefits of
the blanket OATT waiver to ICIF-only entities, protect the rights of
potential interconnection customers, and minimize the regulatory burden
to accomplish these goals. If an entity submits such a statement and
later objects to or fails to comply with section 210 obligations and
procedures, its blanket waiver will be deemed to have been
revoked.\132\
---------------------------------------------------------------------------

    \132\ A section 210 informational statement would remain
operative if the public utility that filed it had a change in
ownership. However, if the original public utility with an
informational statement sold the facilities to a different entity,
the new entity would have to satisfy the criteria for a waiver
(including, for instance, not owning network transmission
facilities), and if it does not, it would be subject to OATT
requirements. It is the party's responsibility to ensure that its
regulatory filings are up to date.
---------------------------------------------------------------------------

    75. Accordingly, we are revising section 35.28(d)(2) of the
regulations to incorporate this extension of the blanket waiver to
entities that are not electric utilities, upon the filing of the
section 210 statement described above. The safe harbor protections at
section 35.28(d)(2)(ii)(B) will also be available to those entities
eligible for the blanket waiver, as discussed below.
3. Status of the Third-Party Requester
a. Commission Proposal
    76. In the NOPR, the Commission stated, ``To the extent that either
the third-party requester or ICIF owner does not meet applicable
requirements for purposes of sections 210 and 211, but where the third-
party requester would be eligible for OATT service, the ICIF waiver
would not apply.'' \133\
---------------------------------------------------------------------------

    \133\ NOPR, FERC Stats. & Regs. ] 32,701 at P 51.
---------------------------------------------------------------------------

b. Comments
    77. AWEA, First Wind, and Invenergy argue that a public utility's
eligibility for the blanket waivers should not depend on the status of
any such potential third party that might seek access to ICIF. They
argue that the waiver would not provide the expected benefits of
reducing risks if it would not apply in the circumstance of an
ineligible third-party requester. They argue that the Commission does
not explain how an ICIF owner would be expected to deal with requests
from such a third-party requester. These parties argue that, if the
Commission is concerned about this, it should by regulation require
such entities to follow procedures under sections 210 and 211.\134\
---------------------------------------------------------------------------

    \134\ AWEA at 14; First Wind 8-9; and Invenergy at 11-12.
---------------------------------------------------------------------------

c. Commission Determination
    78. We agree with commenters that making the applicability of the
blanket waiver to the ICIF owner dependent on the status of a potential
third-party requester would create unnecessary uncertainty for ICIF
owners. Accordingly, we clarify that applicability of the blanket
waiver will not depend on the status of the third-party requester. The
applicability of the blanket waiver does, however, depend on the status
of the ICIF owner or the ICIF owner's willingness to file a section 210
statement, as described above.
4. Non-Public Utilities
a. Commission Proposal
    79. The Commission proposed to grant a blanket waiver of all OATT,
OASIS, and Standards of Conduct requirements to any public utility that
is subject to such requirements solely because it owns, controls, or
operates ICIF, in whole or in part, and sells electric energy from its
generating facility.\135\ The NOPR did not specify how the blanket
waiver would apply to non-public utilities.
---------------------------------------------------------------------------

    \135\ NOPR, FERC Stats. & Regs. ] 32,701 at P 35.
---------------------------------------------------------------------------

b. Comments
    80. APPA and TAPS state that, in the event the Commission modifies
its regulations to create blanket waivers for public utility ICIF
owners, the same blanket waiver and safe harbor should also apply to
non-jurisdictional utilities for purposes of satisfying reciprocity
obligations.\136\ APPA, TAPS, and SWP explain that non-public utilities
are not directly subject to OATT, OASIS, and Standards of Conduct
requirements, but are obligated to provide reciprocal service over
transmission they own, operate, or control as a condition of taking
service under a public utility's OATT. APPA and TAPS state that, to the
extent a non-public utility is subject to reciprocity solely because it
owns, controls, or operates ICIF and sells energy from its generation
facility, it should be able to point to any blanket waiver adopted by
the Final Rule for public utilities as eliminating its obligation to
individually file for ``limited and discrete'' waivers to satisfy
reciprocity obligations, thereby avoiding the burden on it and the
Commission associated with such waivers. They state that any
restrictions or safe harbors adopted with respect to section 210 or 211
proceedings regarding public utility ICIF should also be available to
such a non-public utility.
---------------------------------------------------------------------------

    \136\ APPA and TAPS at 27-29.
---------------------------------------------------------------------------

    81. NCPA and SWP contend that the Final Rule should make clear that
any blanket waiver adopted in this proceeding applies to eligible
public utilities and non-public utilities alike, arguing that treating
similarly situated utilities differently in this respect would be
unduly discriminatory.\137\ SWP states that non-public utilities may
request waivers from these obligations according to the same criteria
as public utilities. SWP also argues that there is no justification for
conferring an advantage on public utilities that non-public utilities
do not share.\138\
---------------------------------------------------------------------------

    \137\ NCPA at 4 and SWP at 4.
    \138\ SWP at 5.
---------------------------------------------------------------------------

c. Commission Determination
    82. The blanket waiver made available to public utilities under
this Final Rule is also available, as commenters suggest, to non-public
utilities with a reciprocity obligation.
5. Applicability to Industrial Power Systems' Tie Lines
a. Comments
    83. ELCON comments that many industrials own and operate combined
heat and power systems or other types of generation that are primarily
dedicated to their own consumption needs, and that ambiguity with the
scope of the NOPR may arise because of commonly used nomenclature,
because dedicated lines operated by industrials are often referred to
as one type of ``generator tie line.'' ELCON argues that the NOPR
should be revised to clarify that the regulations respecting third-
party rights to interconnection facilities, even as newly constrained,
do not apply to the generator tie lines operated by industrials and
dedicated to their own internal consumption.\139\
---------------------------------------------------------------------------

    \139\ ELCON at 2-3.
---------------------------------------------------------------------------

b. Commission Determination
    84. We decline to revise the proposed regulation as ELCON suggests.
ELCON's argument that the NOPR's discussion of third-party rights to
request interconnection and transmission on ICIF should not apply to
electric lines from industrial-owned combined heat

and power systems raises an issue that is not the subject of this
rulemaking. This Final Rule does not make any determination with
respect to the applicability of the Commission's OATT requirements to
any particular lines or types of lines. Rather, it applies to any
transmission providers who are subject to the requirements of section
35.28 of our regulations, i.e., any public utility that owns, controls,
or operates facilities used for the transmission of electric energy in
interstate commerce.\140\

---------------------------------------------------------------------------

    \140\ 18 CFR 35.28(a).
---------------------------------------------------------------------------

6. Applicability of the Blanket Waiver to Additional Regulations
a. Commission Proposal
    85. In the NOPR, the Commission proposed that the blanket waiver
would apply to section 35.28 of the Commission's regulation, which
relates to OATT requirements, Part 37, which relates to OASIS
requirements, and Part 358, which relates to Standards of Conduct for
Transmission Providers.\141\
---------------------------------------------------------------------------

    \141\ NOPR, FERC Stats. & Regs. ] 32,701 at P 1.
---------------------------------------------------------------------------

b. Comments
    86. Linden argues that the blanket waiver should be expanded to
also apply to all of Parts 34, 35, 41, 50, 101, and 141 (except
sections 141.14 and 141.15) of the Commission's regulations with
respect to any provision of transmission service or interconnection
service or other sharing with respect to ICIF.\142\ Linden contends
that this is consistent with the Commission's findings in an order on a
proposed shared facilities agreement between Linden and its affiliate,
in which the Commission found that such regulations are waived with
respect to Linden.\143\
---------------------------------------------------------------------------

    \142\ Linden at 8.
    \143\ Linden at 8 (citing Cogen Technologies Linden Venture,
L.L.P., 127 FERC ] 61,181, at P 20 (2009)).
---------------------------------------------------------------------------

c. Commission Determination
    87. While we recognize that waiver of the provisions mentioned by
Linden have, under certain circumstances, been granted by the
Commission, we decline to expand the scope of this Final Rule. The
blanket waivers granted in this Final Rule are the same as those that
could be requested on a case-by-case basis for good cause shown in the
Commission's pre-existing regulations at 18 CFR 35.28(d). Whether to
grant additional waivers on a generic basis was not something proposed
to be addressed in this proceeding.
7. Existing Agreements and Waivers
a. Comments
    88. Linden contends that the Commission should clarify that the
blanket waiver will apply regardless of whether a public utility has
already granted access to its ICIF pursuant to a Commission-accepted
agreement. Linden argues that the fact that an owner and/or operator of
ICIF has allowed a third-party to use its ICIF pursuant to a
Commission-accepted agreement does not change the nature of such ICIF,
and the blanket waiver should accordingly continue to apply.\144\
Linden states that, at the very least, the Commission should clarify
that all existing waivers that have been granted to public utilities
like Linden will continue to apply.\145\
---------------------------------------------------------------------------

    \144\ Linden at 7.
    \145\ Linden at 7-8.
---------------------------------------------------------------------------

b. Commission Determination
    89. We affirm granting access over ICIF via an existing agreement,
such as a common facilities agreement or shared use agreement, does not
affect an ICIF owner's eligibility for the blanket waiver granted by
this Final Rule. Further, we affirm that, if an entity has previously
received a specific waiver of the OATT and related obligations pursuant
to the Commission's ``limited and discrete'' or ``small entity''
standards, the blanket waiver will supersede the existing waiver.\146\
If, as Linden postulates, an entity has received a case-specific waiver
that waives requirements in addition to those waived by the blanket
waiver, the blanket waiver would not rescind the broader waiver.
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    \146\ NOPR, FERC Stats. & Regs. ] 32,701 at P 40.
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8. Existing OATTs
a. Commission Proposal
    90. The Commission proposed that the grant of a blanket waiver
would have no automatic impact on an OATT already on file or on service
already being taken under it, but the Commission might on a case-by-
case basis consider requests to withdraw an OATT on file for ICIF if no
third party is taking service under it.\147\
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    \147\ NOPR, FERC Stats. & Regs. ] 32,701 at P 40.
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b. Comments
    91. AWEA, Terra-Gen, and NextEra assert that an ICIF owner with an
OATT on file should be able to withdraw its OATT if there are no third
parties taking, or currently pursuing a request for, interconnection or
transmission service.\148\ AWEA and Terra-Gen ask that the Commission:
(1) Clarify that this cancellation policy will apply when the ICIF
owner has no existing customers and that any new service requests
submitted after such a filing has been made must proceed under sections
210, 211, and 212; and (2) provide an expedited process to grant such
requests to withdraw such OATTs.\149\ Terra-Gen states that it incurred
substantial costs in attempting to comply with the Commission's OATT
requirements over several years, only to find that it could not recover
those costs because the customer that requested transmission service
ultimately did not become a transmission customer. Terra-Gen argues
that this experience underscores the importance of the Commission's
proposal to provide a case-by-case mechanism to accept cancellation of
OATTs filed by ICIF owners that have proven to be unnecessary because
no third parties are taking service under them.\150\ NextEra requests
that the Commission clarify its statement in the NOPR that withdrawal
of an OATT ``if no party is taking service under it'' was not intended
to preclude the ability of an ICIF owner with an OATT on file from
exercising its rights under section 205 of the FPA to propose
alternative tariff structures in the future, as appropriate to the
facts and circumstances of service available on the ICIF.\151\
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    \148\ AWEA at 17; NextEra at 10; and Terra-Gen at 2.
    \149\ AWEA at 17 and Terra-Gen at 4.
    \150\ Terra-Gen at 2.
    \151\ NextEra at 10-11.
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    92. AWEA further contends that the blanket waivers should also
automatically apply to those that already have OATTs on file. AWEA
states that ICIF owners that currently have an OATT on file are in need
of the proposed reforms just as much as future ICIF owners, and argues
that providing blanket waivers to this group as well would provide
consistency and certainty to these entities.\152\
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    \152\ AWEA at 11.
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c. Commission Determination
    93. In the instance where an ICIF owner has an OATT on file and no
third parties are taking service, the Commission will consider a
request to withdraw an OATT on a case-by-case basis. Thus, we decline
to automatically apply blanket waivers to those that already have OATTs
on file. We believe this is appropriate in order to give any potential
customer actively pursuing service sufficient notice before allowing a
filed OATT to be withdrawn. As such, we decline to establish a separate
process for cancelling existing OATTs because the Commission will
consider the specific circumstances of each

request to withdraw an OATT already on file.
9. Revoking the Blanket Waiver
a. Commission Proposal
    94. In the NOPR, the Commission proposed that the blanket waiver
would not be automatically revoked by a service request, but could be
revoked in a Commission order if the Commission determines that it is
in the public interest to do so pursuant to a proceeding under sections
210 and 211. The Commission also proposed that the waiver would be
deemed to be revoked as of the date the public utility ceases to
satisfy the qualifications for such waiver (e.g., it owns, controls, or
operates transmission facilities that are not ICIF, or the corporate
structure changes such that the ICIF owner is no longer the entity that
sells electric energy from its Generating Facility). The Commission
sought comment on the circumstances under which and the mechanism by
which the Commission should revoke the proposed waiver.\153\
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    \153\ NOPR, FERC Stats. & Regs. ] 32,701 at P 38.
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    95. The Commission also proposed that, if an OATT waiver were
revoked because of such a change in circumstances, the waivers of OASIS
and Standards of Conduct would also be revoked, without prejudice to
the ICIF owner filing a request to continue its waivers of OASIS and
Standards of Conduct pursuant to the waiver criteria then in
effect.\154\ In the instance where the Commission revokes the ICIF
waiver by order, the Commission noted that it may determine whether the
OASIS and Standards of Conduct waivers should be continued based on the
criteria that are in effect.\155\
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    \154\ Waivers of the Standards of Conduct may be granted for
good cause pursuant to 18 CFR 358.1(d).
    \155\ NOPR, FERC Stats. & Regs. ] 32,701 at P 39.
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b. Comments
    96. NextEra, BHE, and AWEA agree that revocation of the blanket
waiver should be considered on a case-by-case basis and believe that
the processes set forth in sections 210 and 211 of the FPA and section
2.20 of the Commission's regulations are sufficient to evaluate
potential revocation of waivers granted to ICIF owners.\156\ If, for
example, the Commission were to determine that an ICIF owner employed
market power against the third party requesting service over the ICIF,
it would be reasonable for the Commission to consider the revocation of
waiver or other enforcement remedies.\157\ Similarly, AWEA asserts that
the only plausible basis for revocation of the waiver, besides losing
eligibility, is if an ICIF owner refuses to provide transmission access
following proceedings under sections 210, 211, and 212. AWEA seeks
clarification on what, if any, other criteria might be used by the
Commission to determine that it is in the public interest to revoke
such a waiver and requests the Commission to provide clear criteria for
what would constitute a waiver revocation.\158\ BHE states that the
waiver should only be revoked in limited circumstances, such as when a
third party is granted access under sections 210 and 211 of the FPA or
when material circumstances change such that the ICIF owner no longer
satisfies the waiver qualification.\159\
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    \156\ NextEra at 9-10; BHE at 7-8; and AWEA at 8.
    \157\ NextEra at 10.
    \158\ AWEA at 9.
    \159\ BHE at 7.
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    97. AWEA states that acquisition of transmission facilities should
not automatically trigger revocation of the blanket waiver. AWEA argues
that service over such transmission facilities will be subject to
applicable open access regulations but that ICIFs are distinct
facilities that exist for the limited purpose of connecting generation
to the grid.\160\
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    \160\ AWEA at 9.
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    98. With respect to the revocation process, AWEA recommends that
the Commission provide an ICIF owner with reasonable advanced notice
detailing the reasons for potential revocation, and give the ICIF owner
an opportunity to dispute and to cure the reasons for such a potential
revocation.\161\ AWEA suggests that the Commission first issue a show
cause order to the waiver holder to address why the waiver should not
be revoked and provide an opportunity for the waiver holder to make
that demonstration.\162\
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    \161\ AWEA at 9-10.
    \162\ AWEA at 10.
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    99. AWEA recommends that the Commission outline the process to
reinstitute an ICIF owner's waiver if, after revocation of a waiver, it
is discovered that the waiver revocation was unnecessary, such as, for
example, if the requirement to file an OATT proves to be unnecessary
because of the failure of the requesting third party to take
transmission service.\163\
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    \163\ AWEA at 10.
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    100. AWEA supports the Commission proposals that (1) if the OATT
waiver is revoked, the Commission may determine whether the OASIS and
Standards of Conduct waivers should continue to be based on the
criteria in effect; \164\ and (2) if the OATT waiver is revoked due to
loss of eligibility, the OASIS and Standards of Conduct waivers will
also be revoked without prejudice to the entity filing a request to
continue the OASIS and Standards of Conduct waivers.\165\
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    \164\ AWEA at 10-11.
    \165\ AWEA at 10-11.
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c. Commission Determination
    101. We adopt the NOPR proposal that the blanket waiver would not
be automatically revoked by a service request, but could be revoked in
a Commission order if the Commission determines that it is in the
public interest to do so pursuant to a proceeding under sections 210
and 211 of the FPA. We also adopt the NOPR proposal that the waiver
would be deemed to be revoked as of the date the public utility ceases
to satisfy the qualifications for such waiver. Additionally, if the
ICIF that are covered by a blanket waiver become integrated into a
transmission system such that they can no longer be considered ICIF,
the blanket waiver would be deemed to have been revoked. To the extent
that a dispute arises regarding whether a facility is eligible for the
waiver, the Commission will address such a dispute at that time.
    102. If the OATT waiver is automatically revoked because of a
change in circumstances, we affirm that the waivers of OASIS and
Standards of Conduct would also be revoked, without prejudice to the
ICIF owner filing a request to continue its waivers of OASIS and
Standards of Conduct pursuant to the waiver criteria then in effect.
    103. We decline to elaborate on the specific circumstances that
would lead to the revocation of the blanket waiver other than ceasing
to satisfy the qualifications for such waiver, because it is not
possible to anticipate every circumstance that would result in a
revocation. Revocation of the blanket waiver in circumstances other
than ceasing to satisfy the qualifications for such waiver will be
determined by the Commission under applicable statutory and regulatory
provisions. Any instance of revocation, however, would be the result of
a Commission proceeding, so the ICIF owner would have notice of the
revocation and full due process rights to respond. Moreover, under
sections 210 and 211 the Commission may direct service to be provided
under an interconnection and transmission service agreement without
directing that the ICIF owner file an OATT. However, the Commission
reserves the right to revoke the blanket waiver and require the filing
of an OATT to ensure open access in appropriate circumstances.

C. Interconnection and Transmission Under Sections 210 and 211 of the
Federal Power Act

1. Sections 210 and 211
    104. Sections 210 and 211 of the FPA describe the process for
seeking Commission-ordered interconnection and transmission services.
Section 210 of the FPA provides, in relevant part, ``Upon application
of any electric utility . . . the Commission may issue an order
requiring (A) the physical connection of . . . the transmission
facilities of any electric utility, with the facilities of such
applicant.'' \166\ An ``electric utility'' is defined as ``a person or
Federal or State agency . . . that sells electric energy.'' \167\
Section 211 provides that ``any electric utility, Federal power
marketing agency, or any other person generating electric energy for
sale or resale'' may apply to the Commission for an order requiring a
``transmitting utility'' to provide transmission services, including
enlargement of facilities if necessary.\168\ The term ``transmitting
utility'' is defined as an entity that ``owns, operates, or controls
facilities used for the transmission of electric energy . . . in
interstate commerce . . . for the sale of electric energy at
wholesale.'' \169\ For a third party to obtain interconnection services
and transmission services, an application must be made under both
sections 210 and 211.\170\ An applicant may consolidate the
applications for the Commission's consideration.\171\
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    \166\ 16 U.S.C. 824i(a)(1)(A).
    \167\ 16 U.S.C. 796(22).
    \168\ 16 U.S.C. 824j.
    \169\ 16 U.S.C. 796(23).
    \170\ Tres Amigas LLC, 130 FERC ] 61,205, at P 43, reh'g denied,
132 FERC ] 61,232 (2010). In Laguna Irrigation District, the
Commission explained that ``[n]othing in our [section 210]
interconnection order requires transmission service. Rather,
transmission service will be obtained by Laguna pursuant to other
transmission tariffs or agreements.'' 95 FERC ] 61,305, at 62,038
(2001), aff'd sub nom. Pacific Gas & Electric Co. v. FERC, 44 Fed.
Appx. 170 (9th Cir. 2002) (unpublished); see also City of Corona,
California v. Southern California Edison Co., 104 FERC ] 61,085, at
PP 7-10 (2003) (Corona's application under section 210 did not
constitute a request for transmission under section 211).
    \171\ See Aero Proposed Order, 115 FERC ] 61,128.
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    105. An application under section 210 must show that the
interconnection: (1) Is in the public interest; (2) would either
encourage conservation of energy or capital, optimize efficient use of
facilities and resources, or improve reliability; and (3) meets the
requirements of section 212.\172\ The requirements of section 212 are
discussed further below.
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    \172\ 16 U.S.C. 824i(c); Aero Proposed Order, 115 FERC ] 61,128
at PP 15-16.
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    106. An application under section 211 requires that the third party
seeking transmission service first make a good faith request for
service, complying with 18 CFR 2.20, specifying details as to how much
capacity is requested and for what period, at least 60 days before
making an application to the Commission for an order requiring
transmission service.\173\ The Commission may grant an application
under section 211 if the application is in the public interest and
otherwise meets the requirements under section 212.
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    \173\ See 16 U.S.C. 824j(a) (``No order may be issued under this
subsection unless the applicant has made a request for transmission
services to the transmitting utility that would be the subject of
such order at least 60 days prior to its filing of an application
for such order.''); 18 CFR 2.20.
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    107. Section 212 further requires that, before issuing a final
order under either section 210 or 211, the Commission must issue a
proposed order setting a reasonable time for the parties to agree to
terms and conditions for carrying out the order, including allocation
of costs. If parties can agree to terms within that time, the
Commission may issue a final order approving those terms. If parties do
not agree, the Commission will weigh the positions of the parties and
issue a final order establishing the terms of costs, compensation, and
other terms of interconnection and transmission and directing
service.\174\
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    \174\ 16 U.S.C. 824k(c)(2); Aero Proposed Order, 115 FERC ]
61,128 at PP 17-18 (providing parties 28 days to negotiate and
provide briefing on issues of disagreement).
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a. Commission Proposal
    108. The Commission proposed in the NOPR that, if a third party
seeks to use ICIF that qualify for the blanket waiver discussed above,
an eligible entity seeking interconnection and transmission service on
ICIF would need to follow the rules and regulations applicable to
requests for service under sections 210 and 211 (subject to the safe
harbor presumption proposed in the NOPR).\175\
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    \175\ NOPR, FERC Stats. & Regs. ] 32,701 at P 41.
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    109. As discussed above, the Commission's current practice with
respect to allowing an ICIF owner to have priority use of excess
transmission capacity it has built is to allow the ICIF owner to
demonstrate specific plans and milestones for any planned future
generation development by the ICIF owner or its affiliates. Consistent
with that practice, the Commission proposed in the NOPR to find that,
outside of the safe harbor period and to the extent the ICIF owner can
demonstrate specific plans and milestones for its and/or its
affiliates' future use of the ICIF, with respect to ICIF that are
eligible for the blanket waiver discussed above, it is generally in the
public interest under sections 210 and 211 to allow an ICIF owner to
retain priority rights to the use of excess capacity on ICIF that it
plans to use to interconnect its own or its affiliates' future
generation projects.\176\ Thus, the Commission proposed to make
priority determinations for use of ICIF, in the event of a third party
request, in the process under sections 210 and 211. The Commission
sought comment on whether an ICIF owner's or affiliate's planned future
use of the ICIF is an appropriate consideration to factor into a
proceeding under sections 210 and 211.