Federal Register / Vol. 86, No. 22 / Thursday, February 4, 2021 / Rules and Regulations 8133 

18 5 U.S.C. 553(d)(3). 

the Commission’s Public Reference 

Room due to the President’s March 13, 

2020 proclamation declaring a National 

Emergency concerning the Novel 

Coronavirus Disease (COVID–19). 

13. From the Commission’s Home 

Page on the internet, this information is 

available on eLibrary. The full text of 

this document is available on eLibrary 

in PDF and Microsoft Word format for 

viewing, printing, and downloading. To 

access this document in eLibrary, type 

the docket number (excluding the last 

three digits) in the docket number field. 

14. User assistance is available for 

eLibrary and the Commission’s website 

during normal business hours from the 

Commission’s Online Support at (202)- 

502–6652 (toll free at 1–866–208–3676) 

or email at ferconlinesupport@ferc.gov, 

or the Public Reference Room at (202) 

502–8371, TTY (202) 502–8659, 

public.referenceroom@ferc.gov. 

VII. Effective Date and Congressional 

Notification 

15. For the same reasons the 

Commission has determined that public 

notice and comment are unnecessary, 

impractical, and contrary to the public 

interest, the Commission finds good 

cause to adopt an effective date that is 

less than 30 days after the date of 

publication in the Federal Register 

pursuant to the Administrative 

Procedure Act,18 and therefore, the 

regulation is effective upon publication 

in the Federal Register. 

16. The Commission has determined, 

with the concurrence of the 

Administrator of the Office of 

Information and Regulatory Affairs of 

the Office of Management and Budget, 

that this rule is not a ‘‘major rule’’ as 

defined in section 351 of the Small 

Business Regulatory Enforcement 

Fairness Act of 1996. This final rule is 

being submitted to the Senate, House, 

and Government Accountability Office. 

List of Subjects 

18 CFR Part 250 

Natural gas, Reporting and 

recordkeeping requirements. 

18 CFR Part 385 

Administrative practice and 

procedure, Electric power, Penalties, 

Pipelines, Reporting and recordkeeping 

requirements. 

By the Commission. Commissioner 

Clements is not participating. Commissioner 

Christie is not participating. 

Issued: January 8, 2021. 

Nathaniel J. Davis, Sr., 

Deputy Secretary. 

In consideration of the foregoing, the 

Commission amends parts 250 and 385, 

chapter I, title 18, Code of Federal 

Regulations as follows: 

PART 250—FORMS 

■ 1. The authority citation for part 250 

continues to read as follows: 

Authority: 15 U.S.C. 717–717w, 3301– 

3432; 42 U.S.C. 7101–7352; 28 U.S.C. 2461 

note. 

■ 2. Revise § 250.16(e)(1) to read as 

follows: 

§ 250.16 Format of compliance plan for 

transportation services and affiliate 

transactions. 

* * * * * 

(e) * * * 

(1) Any person who transports gas for 

others pursuant to subpart B or G of part 

284 of this chapter and who knowingly 

violates the requirements of §§ 358.4 

and 358.5 of this chapter, this section, 

or § 284.13 of this chapter will be 

subject, pursuant to sections 311(c), 501, 

and 504(b)(6) of the Natural Gas Policy 

Act of 1978, to a civil penalty, which 

the Commission may assess, of not more 

than $1,307,164 for any one violation. 

* * * * * 

PART 385—RULES OF PRACTICE AND 

PROCEDURE 

■ 3. The authority citation for part 385 

continues to read as follows: 

Authority: 5 U.S.C. 551–557; 15 U.S.C. 

717–717w, 3301–3432; 16 U.S.C. 791a–825v, 

2601–2645; 28 U.S.C. 2461; 31 U.S.C 3701, 

9701; 42 U.S.C. 7101–7352, 16441, 16451– 

16463; 49 U.S.C. 60502; 49 App. U.S.C. 1–85 

(1988); 28 U.S.C. 2461 note (1990); 28 U.S.C. 

2461 note (2015). 

■ 4. Revise § 385.1504(a) to read as 

follows: 

§ 385.1504 Maximum civil penalty (Rule 

1504). 

(a) Except as provided in paragraph 

(b) of this section, the Commission may 

assess a civil penalty of up to $23,607 

for each day that the violation 

continues. 

* * * * * 

■ 5. Revise § 385.1602 to read as 

follows: 

§ 385.1602 Civil penalties, as adjusted 

(Rule 1602). 

The current inflation-adjusted civil 

monetary penalties provided by law 

within the jurisdiction of the 

Commission are: 

(a) 15 U.S.C. 3414(b)(6)(A)(i), Natural 

Gas Policy Act of 1978: $1,307,164. 

(b) 16 U.S.C. 823b(c), Federal Power 

Act: $23,607 per day. 

(c) 16 U.S.C. 825n(a), Federal Power 

Act: $3,083. 

(d) 16 U.S.C. 825o–1(b), Federal 

Power Act: $1,307,164 per day. 

(e) 15 U.S.C. 717t–1, Natural Gas Act: 

$1,307,164 per day. 

(f) 49 App. U.S.C. 6(10) (1988), 

Interstate Commerce Act: $1,368 per 

offense and $69 per day after the first 

day. 

(g) 49 App. U.S.C. 16(8) (1988), 

Interstate Commerce Act: $13,685 per 

day. 

(h) 49 App. U.S.C. 19a(k) (1988), 

Interstate Commerce Act: $1,368 per 

day. 

(i) 49 App. U.S.C. 20(7)(a) (1988), 

Interstate Commerce Act: $1,368 per 

day. 

[FR Doc. 2021–00679 Filed 2–3–21; 8:45 am] 

BILLING CODE 6717–01–P 

DEPARTMENT OF ENERGY 

Federal Energy Regulatory 

Commission 

18 CFR Part 292 

[Docket Nos. RM21–2–000 and RM20–20– 

000; Order No. 874] 

Fuel Cell Thermal Energy Output; 

Bloom Energy Corporation 

AGENCY: Federal Energy Regulatory 

Commission, Department of Energy. 

ACTION: Final rule. 

SUMMARY: In this final rule, the Federal 

Energy Regulatory Commission amends 

the definition of useful thermal energy 

output in its regulations implementing 

the Public Utility Regulatory Policies 

Act of 1978 to recognize the technical 

evolution of cogeneration. 

DATES: This rule is effective April 5, 

2021. 

FOR FURTHER INFORMATION CONTACT: 

Lawrence R. Greenfield (Legal 

Information), Office of the General 

Counsel, Federal Energy Regulatory 

Commission, 888 First Street NE, 

Washington, DC 20426, (202) 502– 

6415, lawrence.greenfield@ferc.gov 

Helen Shepherd (Technical 

Information), Office of Energy Market 

Regulation, Federal Energy Regulatory 

Commission, 888 First Street NE, 

Washington, DC 20426, (202) 502– 

6176, helen.shepherd@ferc.gov 

Thomas Dautel (Technical Information), 

Office of Energy Policy and 

Innovation, Federal Energy Regulatory 


jbell on DSKJLSW7X2PROD with RULES
8134 Federal Register / Vol. 86, No. 22 / Thursday, February 4, 2021 / Rules and Regulations 

1 18 CFR part 292. 

2 16 U.S.C. 796, 824a–3. 

3 Fuel Cell Thermal Energy Output, Notice of 

Proposed Rulemaking, 85 FR 67,699 (Oct. 26, 2020), 

175 FERC ¶ 61,050 (2020) (NOPR). 

4See Public Law 95–617, 92 Stat. 3117 (1978). In 

addition to PURPA, that legislative package 

included: The Energy Tax Act of 1978, Public Law 

95–618, 92 Stat. 3174; the National Energy 

Conservation Policy Act, Public Law 95–619, 92 

Stat. 3206; the Powerplant and Industrial Fuel Use 

Act of 1978, Public Law 95–620, 92 Stat. 3289; and 

the Natural Gas Policy Act of 1978, Public Law 95– 

621, 92 Stat. 3351. 

5 456 U.S. 742 (1982). 

6 Id. at 756. 

7 Id. at 745. 

8 Id. at 757. 

9 Id. at 745–46. 

10 Id. at 750. 

11 16 U.S.C. 824a–3(a). 

12Small Power Production and Cogeneration 

Facilities—Qualifying Status, Order No. 70, 45 FR 

17959 (Mar. 20, 1980), FERC Stats. & Regs. ¶ 30,134 

(cross-referenced at 10 FERC ¶ 61,230), order on 

reh’g, Order No. 70–A, 45 FR 33603 (May 20, 1980), 

FERC Stats. & Regs. ¶ 30,159 (cross-referenced at 11 

FERC ¶ 61,119), order on reh’g, Order No. 70–B, 45 

FR 52779 (Aug. 4, 1980), FERC Stats. & Regs. 

¶ 30,176 (cross-referenced at 12 FERC ¶ 61,128), 

order on reh’g, 45 FR 66784 (Oct. 8, 1980) FERC 

Stats. & Regs. ¶ 30,192 (1980) (cross-referenced at 12 

FERC ¶ 61,306), amending regulations, Order No. 

70–D, 46 FR 11251 (Feb. 6, 1981), FERC Stats. & 

Regs. ¶ 30,234 (cross-referenced at 14 FERC 

¶ 61,076), amending regulations, Order No. 70–E, 

46 FR 33025 (Jun. 26, 1981) FERC Stats. & Regs. 

¶ 30,274 (1981) (cross-referenced at 15 FERC 

¶ 61,281). 

13Order No. 70, FERC Stats. & Regs. ¶ 30,134 at 

30,933. 

14 16 U.S.C. 796(18); accord 18 CFR 292.202(c). 

15 16 U.S.C. 824a–3(a). 

16See supra note 14. 

17Bloom Energy Petition at 8. 

18 Id. 

19Furthermore, because hydrogen is frequently 

compressed or liquified for shipment to the point 

of consumption, more energy would be needed for 

these activities. Id. at 8 & App. B. 

20 Id. at 1, 3, 7, 16 (citing 16 U.S.C. 824a– 

3(n)(1)(A)(iii)). 

Commission, 888 First Street NE, 

Washington, DC 20426, (202) 502– 

6196, thomas.dautel@ferc.gov. 

SUPPLEMENTARY INFORMATION: 

I. Introduction 

1. In this final rule, the Federal 

Energy Regulatory Commission 

(Commission) revises its regulations 

(PURPA Regulations) 1 implementing 

sections 201 and 210 of the Public 

Utility Regulatory Policies Act of 1978 

(PURPA) 2 in light of the development of 

fuel cell systems with integrated 

hydrocarbon reformation equipment as 

a technical evolution of cogeneration. 

2. On October 15, 2020, the 

Commission issued a notice of proposed 

rulemaking (NOPR) proposing to modify 

the PURPA Regulations.3 Bloom Energy, 

Edison Electric Institute (EEI), and 

FuelCell Energy, Inc. (FuelCell Energy) 

responded with comments and the 

California Public Utilities Commission 

filed a notice of intervention. Bloom 

Energy also filed a motion to submit 

reply comments, and reply comments, 

to the comments of FuelCell Energy and 

EEI. 

3. This final rule addresses the 

comments received in response to the 

NOPR. With one modification, we adopt 

the proposed revisions in the NOPR. 

II. Background 

4. PURPA was part of a legislative 

package Congress enacted in 1978 to 

address the energy crisis then facing the 

country.4 As the Supreme Court 

explained in FERC v. Mississippi,5

Congress was aware that domestic oil 

production had lagged behind demand, 

and the country had become 

increasingly dependent on foreign oil— 

which could jeopardize the country’s 

economy and undermine its 

independence.6 Roughly a third of the 

nation’s electricity was generated using 

oil and natural gas,7 and Congress 

concluded that increased reliance on 

cogeneration and small power 

production could significantly 

contribute to conserving this energy.8

As recognized by the Supreme Court, 

Congress passed PURPA to address the 

impacts of oil and natural gas shortages 

(and electric utilities’ decreasing 

efficiency in their generating capacities) 

on customer rates and the economy as 

a whole.9

5. PURPA section 210 was intended to 

address the energy crisis by encouraging 

the development of QFs and thereby 

reducing the country’s demand for 

traditional fossil fuels.10 PURPA section 

210(a) thus directed that the 

Commission ‘‘prescribe, and from time 

to time thereafter revise, such rules as 

[the Commission] determines necessary 

to encourage cogeneration and small 

power production.’’ 11

6. In 1980, the Commission issued 

Order No. 70, which promulgated rules 

that, as relevant here, largely remain in 

effect today.12 Order No. 70 established 

the ‘‘criteria and procedures by which 

small power producers and 

cogeneration facilities can obtain 

qualifying status to receive the rate 

benefits and exemptions’’ contained in 

PURPA section 210.13 As relevant here, 

the Commission established criteria for 

a cogeneration QF, a facility that, as 

required by the statute, ‘‘produces (i) 

electric energy, and (ii) steam or forms 

of useful energy (such as heat) which 

are used for industrial, commercial, 

heating or cooling purposes.’’ 14

7. In enacting PURPA, Congress could 

not, and did not, predict specific 

technological developments that would 

occur in future years but instead 

recognized the Commission’s discretion 

by directing the Commission to ‘‘from 

time to time thereafter revise such rules 

as it determines necessary to encourage 

cogeneration.’’ 15 Although in 1978 the 

predominant form of cogeneration was a 

more traditional combined heat and 

power, Congress did not limit the 

definition of qualifying cogeneration 

facilities to the particular technologies 

then in existence. Instead, as described 

above, Congress defined a cogeneration 

facility as a facility that produces: (1) 

Electric energy; and (2) steam or forms 

of useful energy, such as heat, which are 

used for industrial, commercial, heating 

or cooling purpose.16 Congress 

otherwise left it for the Commission, 

from time to time, to determine the 

types of facilities that would qualify as 

cogeneration facilities under the statute. 

8. Unlike more traditional electric 

generation that relies on combustion of 

fossil fuels to produce electric energy, 

fuel cells convert the chemical energy in 

hydrogen to electric energy without 

combustion. This conversion has been 

characterized as a significant 

improvement in the efficiency of 

electric generation.17 More specifically, 

hydrogen fuel—which can be produced 

from the application of heat and steam 

to hydrocarbons such as natural gas— 

enters the anode side of the fuel cell. 

Simultaneously, ambient air enters the 

cathode side of the fuel cell. The 

hydrogen fuel on the anode attracts 

oxygen ions from the cathode. The 

resulting electrochemical reaction 

produces electricity plus heat and steam 

that can be used up front to reform 

natural gas on-site to produce the 

hydrogen that fuels the fuel cell.18

9. If the natural gas reformation 

equipment were instead located offsite, 

then waste heat (in the form of steam) 

from the electricity production by the 

fuel cell would not be available to aid 

the reformation process to fuel the cell. 

In this offsite reformation scenario, we 

would expect the external reformation 

process to require additional natural gas 

to be burned to create steam so that the 

remainder of the input natural gas could 

be reformed into hydrogen.19 This 

would be inefficient and inconsistent 

with Congress’s goal in enacting 

PURPA, as discussed above. 

10. Stated another way, integrating 

the natural gas reformation process into 

a fuel cell generating facility results in 

significant ‘‘progress in the 

development of efficient electric energy 

generating technology.’’ 20

III. NOPR Proposal 

11. In the NOPR, the Commission 

stated that the statutory definition of 


jbell on DSKJLSW7X2PROD with RULES
Federal Register / Vol. 86, No. 22 / Thursday, February 4, 2021 / Rules and Regulations 8135 

21 16 U.S.C. 796(18)(A). 

22 18 CFR 292.202(d). 

23 Industrial gas manufacturers also produce 

hydrogen from natural gas using a steam-methane 

reformation process, but must produce their own 

steam, usually through combustion of some of the 

input natural gas. Because the buyers of the 

resulting hydrogen are usually remote from the 

industrial gas manufacturer, this hydrogen is either 

compressed or liquified in order to transport the 

hydrogen to the end user. Integrating the natural gas 

steam reformation process into a fuel cell system 

increases efficiency and avoids the energy loss of 

external reformation, and compression or 

liquefaction for surface transportation. Bloom 

Energy Petition at 8 & App. B. 

24 16 U.S.C. 796(18). 

25 18 CFR 292.202(h). 

26See 18 CFR 292.203(b), 292.205. If the 

cogeneration facility is a ‘‘new’’ qualifying 

cogeneration facility ‘‘seeking to sell electric energy 

pursuant to [PURPA section 210],’’ such facility 

must meet certain additional requirements. 16 

U.S.C. 824a–3(n); accord 18 CFR 292.205(d) 

(implementing PURPA section 210(n), by requiring 

an additional showing for certain cogeneration 

facilities that are ‘‘seeking to sell electric energy 

pursuant to [PURPA] section 210’’). 

27See infra note 53. 

28 16 U.S.C. 824a–3(n)(1)(A)(iii). 

29NOPR, 175 FERC ¶ 61,050 at PP 1, 3, 7, 10–11. 

30 18 CFR 292.205(d); see also 18 CFR 

292.205(d)(4) (‘‘For purposes of paragraphs (d)(1) 

and (2) of this section, a new cogeneration facility 

of 5 MW or smaller will be presumed to satisfy the 

requirements of those paragraphs.’’). That 

presumption for 5 MW or smaller facilities is a 

rebuttable presumption, though. 

Revised Regulations Governing Small Power 

Production and Cogeneration Facilities, Order No. 

671, 114 FERC ¶ 61,102, at PP 26, 60, order on reh’g, 

Order No. 671–A, 115 FERC ¶ 61,225 (2006). 

31FuelCell Energy Comments at 5, 7. 

32 Id. at 6. 

cogeneration facilities requires that a 

cogeneration facility produce ‘‘(i) 

electric energy, and (ii) steam or forms 

of useful energy (such as heat) which 

are used for industrial, commercial, 

heating or cooling purposes.’’ 21 This 

definition provides for steam or other 

forms of useful energy to be used for, 

e.g., an industrial purpose. The creation 

by a fuel cell system with an integrated 

natural gas reformation process of a 

commercially valuable fuel, as 

described in the NOPR, would fit within 

the scope of this statutory definition. 

Consistent with the PURPA Regulations, 

fuel cell systems with integrated natural 

gas reformation equipment produce two 

forms of energy: Electricity, and the 

heat/steam (thermal energy) used to 

create the hydrogen that fuels the fuel 

cell system (a chemical energy). 

12. The Commission’s PURPA 

Regulations define a topping-cycle 

cogeneration facility as a cogeneration 

facility in which the energy input to the 

facility is first used to produce useful 

power output and at least some of the 

reject heat from the power production 

process is then used to provide useful 

thermal energy.22

13. Fuel cell systems with integrated 

natural gas reformation equipment 

convert the chemical energy within 

natural gas into electricity using a 

steam-methane reformation process,23

which essentially converts the methane 

in the natural gas input to hydrogen, 

which then reacts with oxygen in the 

fuel cell to produce electricity. The byproduct of the fuel cell’s production of 

electricity is heat and steam, some of 

which can be used in the steammethane reformation process to convert 

more methane into hydrogen, which the 

fuel cells use, in combination with 

oxygen from the air, to produce 

electricity. 

14. As a cogeneration QF is one that 

‘‘produces electric energy as well as 

steam or forms of useful energy (such as 

heat) which are used for industrial, 

commercial, heating or cooling 

purposes,’’ 24 consistent with the 

PURPA Regulations, fuel cell systems 

with integrated natural gas reformation 

equipment generate two forms of useful 

energy—electricity, and heat/steam 

(thermal energy) that is used to produce 

hydrogen (a chemical energy). 

15. The PURPA Regulations identify 

three categories of useful thermal output 

from a topping-cycle cogenerator. They 

are thermal energy (1) that is ‘‘made 

available to an industrial or commercial 

process . . .; (2) that is used in a heating 

application . . .; or (3) that is used in 

a space cooling application.’’ 25 In the 

NOPR, the Commission proposed to 

amend its regulations to provide that the 

production of heat/steam by a solid 

oxide fuel cell system for use in an 

integrated natural gas reformation 

process to produce hydrogen yields a 

useful thermal energy output made 

available to an industrial process that, 

as described in the NOPR, entitles such 

a system to be considered a topping 

cycle cogeneration facility that qualifies, 

subject to meeting the other relevant 

requirements,26 to be a QF. The 

Commission stated that the recent 

technological advances in utilizing the 

thermal energy from a solid oxide fuel 

cell in an integrated steam hydrocarbon 

reformation process were not known or 

anticipated when the Commission 

adopted its original definitions for 

useful thermal energy, but that fact 

should not stand in the way of the 

Commission now recognizing such 

advances and responding accordingly.27

16. In recognition of technological 

advancements over the past 40 years 

and Congress’s commitment to 

‘‘continuing progress in the 

development of efficient electric energy 

generating technology,’’ 28 and in light 

of the development and 

commercialization of fuel cell systems 

with integrated natural gas reformation 

equipment since the original adoption 

of the PURPA Regulations, the 

Commission proposed in the NOPR to 

amend section 292.202(h) of the PURPA 

Regulations by adding a new paragraph 

providing that useful thermal energy 

output include the thermal energy that 

is used by a solid oxide fuel cell system 

with an integrated steam hydrocarbon 

reformation process for production of 

fuel for electricity generation.29

17. In proposing this change to its 

regulations, the Commission did not 

propose to revise section 292.205(d) of 

the PURPA Regulations, which 

establishes additional criteria for, in 

particular, new cogeneration facilities 

seeking to sell electric energy pursuant 

to PURPA section 210.30 The 

Commission proposed that any new 

cogeneration facility that is a solid oxide 

fuel cell system with an integrated 

steam hydrocarbon reformation process 

would be required to satisfy the existing 

criteria of section 292.205(d) of the 

PURPA Regulations if it seeks to make 

sales of electric energy pursuant to 

PURPA section 210. 

IV. Comments 

18. FuelCell Energy, which explains 

that it operates fuel cell systems on 

three continents that have generated 

over 10 billion kWh of power, asks the 

Commission to revise its regulations to 

encompass more than just solid oxide 

fuel cell systems. FuelCell Energy 

asserts that Bloom Energy requested that 

the Commission expand its current 

definition of a cogeneration facility so 

that Bloom Energy’s solid oxide fuel 

cells qualify as a QF. FuelCell Energy 

argues that the Commission should 

revise the definition, so it can apply 

more broadly to any fuel cell systems 

that use waste heat for the reforming of 

fuel to produce hydrogen, and not just 

Bloom Energy’s solid oxide fuel cell 

system.31

19. FuelCell Energy asserts that its 

carbonate fuel cells use waste heat in an 

integrated fuel reforming process to 

produce hydrogen,32 just as Bloom 

Energy’s solid oxide fuel cells do. 

FuelCell Energy contends that, as long 

as fuel cell systems use waste heat for 

the reforming of hydrocarbon fuel to 

produce hydrogen, the particular fuel 

cell technology should not be exclusive 

or exclusionary; so long as there is no 

efficiency tradeoffs or additional 

negative environmental impacts, the 

type of fuel cell technology (whether 


jbell on DSKJLSW7X2PROD with RULES
8136 Federal Register / Vol. 86, No. 22 / Thursday, February 4, 2021 / Rules and Regulations 

33 Id. at 5. 

34EEI Comments at 2. 

35 Id. at 4 (quoting 16 U.S.C. 796(18)). 

36 Id. (quoting16 U.S.C. 824a–3(n)). 

37 Id. (referencing NOPR, 175 FERC ¶ 61,050 at P 

3). 

38 Id. 

39 Id. at 6. 

40 Id. (quoting Order No. 70, FERC Stats. & Regs. 

¶ 30,134 at 30,931–32). 

41 Id. (quoting Order No. 70, FERC Stats. & Regs. 

¶ 30,134 at 30,934). 

42 Id. at 6–7. 

43 Id. at 7 (quoting EG&G, Inc., 16 FERC ¶ 61,060, 

at 61,104 (1981)). 

44 Id. 

45Bloom Energy Comments at 7 (referencing 

Bloom Energy Petition at 1–2) (internal quotations 

omitted). 

46Bloom Energy Comments, Joint Declaration at 

3. 

47We recognize that the integrated fuel reforming 

process can use hydrocarbons other than just 

natural gas but also, e.g., bio-gas. The regulatory 

text’s reference to ‘‘an integrated steam hydrocarbon 

reformation process’’ thus encompasses not only 

carbonate or solid oxide) should be 

irrelevant.33

20. EEI requests that the Commission 

not move forward with this final rule, 

arguing that the Commission cannot 

expand the statutory definition of a 

cogeneration facility.34 EEI asserts that 

fuel cell technology does not meet the 

statutory requirements to be certified as 

a cogeneration facility. EEI agrees that 

the Commission is charged with 

implementing PURPA through adoption 

of regulations but argues that, in doing 

so, the Commission is limited by the 

statutory requirements. EEI states that, 

to qualify as a QF, a cogeneration 

facility must meet the statutory 

definition of a cogeneration facility, i.e., 

it must be a facility which produces: (1) 

Electric energy and (2) steam or forms 

of useful energy (such as heat) which 

are used for industrial, commercial, 

heating or cooling purposes.35

21. EEI also points out that the statute 

requires that the Commission establish 

regulations that ensure that: 

(i) The thermal energy output of a new 

qualifying cogeneration facility is used in a 

productive and beneficial manner; 

(ii) the electrical, thermal, and chemical 

output of the cogeneration facility is used 

fundamentally for industrial, commercial, or 

institutional purposes and is not intended 

fundamentally for sale to an electric utility, 

taking into account technological, efficiency, 

economic, and variable thermal energy 

requirements, as well as State laws 

applicable to sales of electric energy from a 

qualifying facility to its host facility; and 

(iii) continuing progress in the 

development of efficient electric energy 

generating technology.36

22. EEI argues that this statutory 

language indicates that, contrary to the 

Commission’s statement in the NOPR, 

the definition of cogeneration is not 

‘‘open-ended.’’ 37 EEI recognizes that 

other technologies may qualify as 

cogeneration facilities under the statute 

but argues that the fuel cell technology 

described in the NOPR does not meet 

the statutory requirement.38

23. EEI explains that the solid oxide 

fuel cell system described in the NOPR 

appears to be a self-contained reaction 

that is designed to produce electricity 

and thus is inconsistent with the 

statutory requirement.39 EEI explains 

that, in Order No. 70, the Commission 

defined a cogeneration facility as one 

that 

produces electric energy and steam or forms 

of useful energy (such as heat) which are 

used for industrial, commercial, heating, or 

cooling purposes. Thus, cogeneration 

facilities simultaneously produce two forms 

of useful energy, namely electric power and 

heat. Cogeneration facilities can use 

significantly less fuel to produce electricity 

and steam (or other forms of energy) than 

would be needed to produce the two 

separately. By using the fuels more efficiently 

cogeneration facilities can make a significant 

contribution to the Nation’s effort to conserve 

its energy resources.40

24. Further, EEI explains that there is 

an explicit requirement for the sequential use 

of energy in cogeneration facilities. This 

means that rejected heat from a power 

production or heating process is used in 

another power production or heating process. 

It is precisely this ‘‘cascading’’ use of energy 

in sequential processes that gives rise to the 

energy conserving characteristics of 

cogeneration.41

25. EEI explains that, in adopting this 

provision in Order No. 70, the 

Commission clarified the facilities 

eligible for QF status did not include 

natural gas-fired combined-cycle 

combustion plants even though the 

sequential use of heat is used to produce 

more electricity.42 EEI argues that the 

main difference between a solid oxide 

fuel cell and a natural gas-fired 

combined-cycle facility is that the solid 

oxide fuel cell produces electricity from 

natural gas through a chemical reaction 

instead of combustion, which is not a 

meaningful distinction because ‘‘[i]f the 

thermal energy uses were not required 

to be completely independent of the 

power production processes many 

conventional generating facilities could 

be considered cogeneration facilities 

and may be eligible for the benefits of 

section 210 of PURPA.’’ 43

26. EEI argues that allowing solid 

oxide fuel cells to now qualify as 

cogeneration is inconsistent with the 

rationale behind encouraging 

cogeneration under PURPA. EEI 

explains that, in Order No. 70, the 

Commission recognized that the goal 

was to promote conservation by 

recognizing that the production of 

electricity often creates a byproduct, 

thermal energy, and with minimal 

additional fuel the cogenerators could 

produce large amounts of thermal 

energy that could be used in other 

processes.44 EEI asserts that solid oxide 

fuel cells’ primary purpose is to produce 

more electricity instead of using the 

thermal energy for another, independent 

purpose. 

27. Finally, EEI argues that, in the 

past, the Commission has remained 

technology neutral; yet, here, the 

Commission is proposing to change its 

PURPA Regulations to endorse a 

specific technology. EEI requests that, 

instead of changing the regulations to 

accommodate specific technologies, the 

Commission evaluate new technologies 

under statutory criteria and the goals of 

PURPA to ensure a level playing field 

for all technologies. 

28. Bloom Energy filed comments 

reiterating its support for the revision of 

the Commission’s PURPA Regulations, 

contending that the revised definition 

‘‘represents a narrow, targeted form of 

regulatory relief necessary to ensure 

‘continuing progress in the development 

of efficient electric energy generating 

technology’ and . . . would not impact 

the application of the ‘fundamental use 

test’ or the existing operating standards 

applicable to cogeneration facilities.’’ 45

Bloom Energy asserts that fuel cells 

provide several public policy benefits 

such as grid reliability and resiliency of 

electric supply. Bloom Energy includes 

a Joint Declaration from former 

Commissioners Vicky A. Bailey, 

Norman C. Bay, Nora Mead Brownell, 

Suedeen G. Kelly, and William L. 

Massey, who note their support of the 

NOPR and state that the ‘‘proposed 

change is consistent with the statutory 

text of PURPA and the definition of 

‘cogeneration facility’ in the 

[FPA]. . . .’’ 46 Subsequently, Bloom 

Energy filed reply comments in 

response to the comments of FuelCell 

Energy and EEI. 

V. Discussion 

29. In this final rule, we adopt a 

revision to the definition of a toppingcycle cogeneration facility in section 

292.202(h) of the PURPA Regulations, as 

proposed in the NOPR, with one 

modification, to include all fuel cells 

that use waste heat in an integrated fuel 

reforming process, instead of limiting 

the type of eligible fuel cells to only 

solid oxide fuel cells.47


jbell on DSKJLSW7X2PROD with RULES
Federal Register / Vol. 86, No. 22 / Thursday, February 4, 2021 / Rules and Regulations 8137 

use of natural gas in the reformation process but 

also use of other hydrocarbons such as bio-gas. 

48 16 U.S.C. 796(18)(A). 

49 18 CFR 292.202(d). 

50As explained in the NOPR, and described again 

above, industrial gas manufacturers also produce 

hydrogen from natural gas using a steam-methane 

reformation process but must produce their own 

steam, usually through combustion of some of the 

input natural gas. Because the buyers of the 

resulting hydrogen are usually remote from the 

industrial gas manufacturer, this hydrogen is either 

compressed or liquified in order to transport the 

hydrogen to the end user. Integrating the 

hydrocarbon reformation process into a fuel cell 

system increases efficiency and avoids the energy 

loss of external reformation and compression or 

liquefaction for surface transportation. 

51 16 U.S.C. 796(18). 

52See 18 CFR 292.203(b), 292.205. If the facility 

is a ‘‘new’’ cogeneration facility that seeks to sell 

electric energy pursuant to PURPA section 210, it 

will also need to meet the additional requirements 

applicable to such facilities. 16 U.S.C. 824a–3(n); 18 

CFR 292.205(d). 

53We recognize that, in EG&G, Inc., the 

Commission stated that, for cogeneration, ‘‘the use 

of thermal energy must be completely independent 

of the power production process.’’ EG&G, Inc., 16 

FERC at 61,104. Even aside from the fact that that 

order did not involve fuel cells, it was issued under 

the regulations then effective, which we revise here. 

See id. at 61,103–04. In short, it was based on the 

regulations as adopted in 1980, and it has now been 

overtaken by the change in the PURPA Regulations 

adopted today. 

54 16 U.S.C. 824a–3(n)(1)(A)(iii). 55 18 CFR 292.205(d)(1). 

30. The statutory definition of 

cogeneration facilities requires only that 

a cogeneration facility produce ‘‘(i) 

electric energy, and (ii) steam or forms 

of useful energy (such as heat) which 

are used for industrial, commercial, 

heating or cooling purposes . . . .’’ 48

This definition explicitly provides for 

steam or other forms of useful energy to 

be used for an industrial purpose. 

Because, as described above, a fuel cell 

system with an integrated hydrocarbon 

reformation process creates useful 

thermal energy in that it is used for an 

industrial purpose—here, producing a 

commercially valuable fuel, hydrogen— 

it fits within this statutory definition. 

Phrased differently, fuel cell systems 

with integrated hydrocarbon 

reformation equipment produce two 

forms of useful energy: Electric energy 

and heat/steam (thermal energy) which 

can be used to produce hydrogen (from 

which chemical energy can be used to 

produce electric energy). 

31. Currently, the Commission’s 

PURPA Regulations as adopted in 1980 

provide that a topping-cycle 

cogeneration facility is a cogeneration 

facility in which the energy input to the 

facility is first used to produce useful 

power output and at least some of the 

reject heat from the power production 

process is then used to provide useful 

thermal energy.49 Fuel cell systems with 

integrated hydrocarbon reformation 

equipment convert the chemical energy 

of the methane within natural gas into 

hydrogen and, ultimately, electricity 

using a steam-methane reformation 

process,50 which converts the natural 

gas input to hydrogen, which reacts 

with oxygen in the fuel cell to produce 

electricity. The by-product of the fuel 

cell’s production of electricity is heat 

and steam, some of which is used in the 

integrated hydrocarbon reformation 

process to convert more natural gas into 

hydrogen, which the fuel cells use, in 

combination with oxygen from the air, 

to produce electricity. 

32. A cogeneration facility is, per the 

statute, one that ‘‘produces electric 

energy as well as steam or forms of 

useful energy (such as heat) which are 

used for industrial, commercial, heating 

or cooling purposes.’’ 51 Consistent with 

this language, fuel cell systems with 

integrated hydrocarbon reformation 

equipment do exactly that and thus can 

be cogeneration facilities. Fuel cells, as 

noted above, generate two forms of 

useful energy—electricity and the heat/ 

steam (thermal energy) that is used to 

produce hydrogen. The Commission 

thus amends its PURPA Regulations to 

provide that the production of heat/ 

steam by a fuel cell system with an 

integrated hydrocarbon reformation 

process to produce hydrogen yields a 

‘‘useful thermal energy output’’ made 

available to an industrial process that 

entitles such a system, consistent with 

the statute’s requirements for a 

cogeneration facility, to be considered a 

topping cycle cogeneration facility that 

can qualify, subject to meeting the other 

relevant requirements,52 to be a QF. The 

technological advances in fuel cells that 

have occurred since 1980 were neither 

known nor anticipated when the 

Commission adopted its original 

definitions for useful thermal energy, 

but that fact should not stand in the way 

of the Commission now recognizing 

such advances and responding 

accordingly.53

33. In sum, recognizing technological 

advancements over the past 40 years 

and Congress’s commitment to 

‘‘continuing progress in the 

development of efficient electric energy 

generating technology,’’ 54 and in light 

of the development and 

commercialization of fuel cell systems 

with integrated hydrocarbon 

reformation equipment since the 

original adoption of the PURPA 

Regulations, we amend section 

292.202(h) of the PURPA Regulations by 

adding a new paragraph to provide that 

‘‘useful thermal energy output’’ includes 

the thermal energy that is used by a fuel 

cell system with an integrated steam 

hydrocarbon reformation process for 

production of hydrogen to be used, 

ultimately, as fuel for electricity 

generation. 

34. We also note that the thermal 

energy output, i.e., the waste heat, from 

the fuel cell that is used to reform 

natural gas into hydrogen fuel is used in 

a sequential process to create additional 

electricity and is more efficient and uses 

less fuel than fuel cells without 

integrated fuel reforming systems. This 

technology did not exist when the 

Commission established the regulations 

in Order No. 70. In this final rule, we 

now update our cogeneration 

regulations to include fuel cells with an 

integrated steam hydrocarbon 

reformation process. Combined-cycle 

electric generation, while admittedly a 

more efficient form of electric 

generation than, for example, a 

combustion turbine, is still not the same 

thing as a fuel cell system with an 

integrated steam hydrocarbon 

reformation process and does not 

warrant being identified as a qualifying 

facility. 

35. FuelCell Energy argues that the 

NOPR proposal endorsed a specific 

technology, solid oxide fuel cells, 

instead of establishing standards that 

would apply to all similar fuel cells. We 

agree. The Commission has not 

endorsed specific types of solar panels, 

for example, in defining small power 

production facilities. Here, as FuelCell 

Energy recognizes, the focus should be 

on the integrated use of waste heat for 

reforming hydrocarbons to produce 

hydrogen to fuel a fuel cell, instead of 

the specific fuel cell technology utilized 

to accomplish that goal (i.e., solid oxide 

or carbonate). As such, we modify the 

proposed definition in the NOPR to 

state that useful thermal energy output 

includes the thermal energy that is used 

by a fuel cell system with an integrated 

steam hydrocarbon reformation process 

for production of fuel for electricity 

generation. 

36. Finally, as we have noted above, 

we reiterate that ‘‘new’’ cogeneration 

facilities seeking to sell electric energy 

pursuant to PURPA section 210 must 

meet the additional requirements 

imposed by PURPA section 210 and the 

implementing regulations, that the 

‘‘thermal energy output . . . is used in 

a productive and beneficial manner’’ 55

and that ‘‘[t]he electrical, thermal, 

chemical and mechanical output of the 

cogeneration facility is used 

fundamentally for industrial, 

commercial, residential or institutional 

purposes and is not intended 

fundamentally for sale to an electric 


jbell on DSKJLSW7X2PROD with RULES
8138 Federal Register / Vol. 86, No. 22 / Thursday, February 4, 2021 / Rules and Regulations 

56 18 CFR 292.205(d)(2). See also Energy Policy 

Act of 2005, Public Law 109–58, 1253, 119 Stat. 

594, 967–70 (2005); Order No. 671, 114 FERC 

¶ 61,102, order on reh’g, Order No. 671–A, 115 

FERC ¶ 61,225. 

57 44 U.S.C. 3501–21. 

58See 5 CFR 1320.11. 

59The change to the FERC–556 to reflect the 

change in the regulations adopted by this final rule 

is being submitted under a temporary interim 

information collection number, FERC–556A (OMB 

Control No. 1902–0316) because another change to 

FERC–556 (OMB Control No. 1902–0075) is 

pending OMB review and only one change per 

OMB Control No. can be pending for OMB review 

at a time. 

60The changes to the FERC Form No. 556 adopted 

in Order No. 872 are pending OMB review (under 

ICR #202006–1902–004). Those changes are 

separate and are not affected by or addressed in this 

final rule. 

61The figures in this table reflect estimated 

changes to the current OMB-approved inventory for 

the FERC Form No. 556. Commission Information 

Collection Activities (FERC–556); Comment 

Request; Extension, Docket No. IC19–16–000 

(issued May 15, 2019 and approved by OMB on 

November 18, 2019). The above table only reflects 

cogeneration facilities because small power 

production facilities will not be affected by the 

changes in this final rule. The Commission staff 

believes that the industry is similarly situated to the 

Commission in terms of wages and benefits. 

Therefore, cost estimates are based on FERC’s 2020 

average hourly wage (and benefits) of $83.00/hour. 

62Such facilities are not required to file but have 

the choice whether to do so. 

63Bloom Energy has stated they have 600 

facilities, each with an average size of 0.6 MW, see 

Bloom Energy Petition at 14, which, if they all were 

in fact to file, would result in as many as 600 selfcertifications of below-1 MW facilities. The 

Commission accordingly will adopt a conservative 

approach and estimate 600 such responses over the 

course of a year, which is especially conservative 

given that the Commission’s regulations do not 

require below-1 MW facilities to submit selfcertifications. 

utility.’’ 56 These requirements apply to 

fuel cell systems subject to the revised 

regulations adopted in this final rule. 

VI. Information Collection Statement 

37. The Paperwork Reduction Act 57

requires each federal agency to seek and 

obtain the Office of Management and 

Budget’s (OMB) approval before 

undertaking a collection of information 

(including reporting, record keeping, 

and public disclosure requirements) 

directed to ten or more persons or 

contained in a rule of general 

applicability. OMB regulations require 

approval of certain information 

collection requirements contemplated 

by proposed rules (including deletion, 

revision, or implementation of new 

requirements).58 Upon approval of a 

collection of information, OMB will 

assign an OMB control number and an 

expiration date. Respondents subject to 

the filing requirements of a rule will not 

be penalized for failing to respond to the 

collection of information unless the 

collection of information displays a 

valid OMB control number. 

Public Reporting Burden: The 

Commission is revising its regulations 

implementing PURPA. The revision 

provides that useful thermal energy 

outputs will now include the thermal 

energy ‘‘that is used by a fuel cell 

system with an integrated steam 

hydrocarbon reformation process for 

production of fuel for electricity 

generation.’’ Below, the table includes 

estimated changes to the burden and 

cost of the FERC Form No. 556A 59 due 

to this final rule. As demonstrated by 

the table, we believe that some 

respondents may file multiple Form No. 

556As in order to avail themselves of 

the revision in the regulations adopted 

above.60

FERC–556A, CERTIFICATION OF QUALIFYING FACILITY STATUS FOR A SMALL POWER PRODUCTION OR COGENERATION

FACILITY,CHANGES DUE TO FINAL RULE IN DOCKET NOS. RM21–2–000 AND RM20–20–000 61

Facility type Filing type Number of 

respondents 

Annual 

number of 

responses per 

respondent 

Total 

number of 

responses 

Average 

burden hours 

& cost per 

response 

Total annual 

burden hours & 

total annual cost 

Annual 

cost per 

respondent 

($) 

(1) (2) (1) * (2) = (3) (4) (3) * (4) = (5) (5) ÷ (1) 

Cogeneration 

Facility ≤ 1 

MW 62.

Self-certification.5 63 600 3,000 1.5 hrs.; $124.50 ..... 4,500 hrs.; $373,500 $74,700 

Cogeneration 

Facility > 1 

MW.

Self-certification.5 20 100 1.5 hrs.; $124.50 ..... 1,500 hrs.; $12,450 2,490 

Cogeneration 

Facility > 1 

MW.

Application for 

FERC certification.

5 1 5 50 hrs.; $4,150 ........ 250 hrs.; $20,750 .... 4,150 

FERC– 

556A, 

TOTAL 

ADDITIONAL 

BURDEN 

AND 

COST 

DUE 

TO final 

rule in 

RM21– 

2 and 

RM20– 

20.

....................... 15 ........................ 3,105 ................................. 6,250 hrs.; $406,700 ....................

Title: FERC–556A (Certification of 

Qualifying Facility (QF) Status for a 

Small Power Production or 

Cogeneration Facility) 

While FuelCell Energy also states that, 

to date, it has over 250 MW of fuel cells 


jbell on DSKJLSW7X2PROD with RULES
Federal Register / Vol. 86, No. 22 / Thursday, February 4, 2021 / Rules and Regulations 8139 

64The FERC Form No. 556 is not being revised, 

but respondents with fuel cell systems with 

integrated natural gas reformation equipment who 

are self-certifying or requesting Commission 

certification as a cogenerator will use the FERC 

Form No. 556. On page 8, item 6a of the FERC Form 

No. 556, those respondents should indicate ‘‘Fossil 

fuel, natural gas (not waste).’’ 

65Regulations Implementing the National 

Environmental Policy Act, Order No. 486, 52 FR 

47,897 (Dec. 17, 1987), FERC Stats. & Regs. ¶ 30,783 

(1987)) (cross-referenced at 41 FERC ¶ 61,284). 

66While courts have held that NEPA requires 

‘‘reasonable forecasting,’’ an agency is not required 

‘‘to engage in speculative analysis’’ or ‘‘to do the 

impractical, if not enough information is available 

to permit meaningful consideration.’’ N. Plains Res. 

Council v. Surface Transp. Board, 668 F.3d 1067, 

1078 (9th Cir. 2011). 

67 5 U.S.C. 601–12. 

68 5 U.S.C. 605(b). 

69 13 CFR 121.101. 

70SBA final rule on ‘‘Small Business Size 

Standards: Utilities,’’ 78 FR 77,343 (Dec. 23, 2013). 

71The North American Industry Classification 

System (NAICS) is an industry classification system 

that Federal statistical agencies use to categorize 

businesses for the purpose of collecting, analyzing, 

and publishing statistical data related to the U.S. 

economy. United States Census Bureau, North 

American Industry Classification System, https://

www.census.gov/eos/www/naics/ (accessed October 

4, 2020). 

72The average cost per response is estimated to 

vary from $124.50 for self-certifications to $4,150 

for applications for FERC certification. The cost per 

respondent will vary based on the respondent’s 

number of facilities and related requests for selfcertification and applications for Commission 

certification (with an estimated cost ranging from 

$2,490 to $74,700 per respondent). 

(but of unknown size) installed, in 

backlog, or under award on three 

continents, our burden estimate of as 

many as five respondents self-certifying 

up to 600 units annually each is 

sufficiently large to encompass any such 

self-certifications. 

Action: Revisions to existing 

information collection FERC–556–A.64

OMB Control No.: 1902–0316. 

Respondents: Facilities that are selfcertifying their status as a cogenerator or 

that are submitting an application for 

Commission certification of their status 

as a cogenerator. 

Frequency of Information: Ongoing. 

Necessity of Information: The 

Commission directs the changes in this 

final rule in order to revise its 

implementation of PURPA in light of 

technological advancements in electric 

generation since the enactment of 

PURPA in 1978. 

Internal Review: The Commission has 

reviewed the proposed changes and has 

determined that such changes are 

necessary. These requirements conform 

to the Commission’s ongoing need for 

efficient information collection, 

communication, and management 

within the energy industry, in light of 

technological advancements in electric 

generation. 

Interested persons may obtain 

information on the reporting 

requirements by contacting the Federal 

Energy Regulatory Commission, 888 

First Street NE, Washington, DC 20426 

[Attention: Ellen Brown, Office of the 

Executive Director], by email to 

DataClearance@ferc.gov, or by phone 

(202) 502–8663. 

Please send comments concerning the 

collection of information and the 

associated burden estimates to: Office of 

Information and Regulatory Affairs, 

Office of Management and Budget 

[Attention: Federal Energy Regulatory 

Commission Desk Officer]. Due to 

security concerns, comments should be 

sent directly to www.reginfo.gov/public/ 

do/PRAMain. Comments submitted to 

OMB should be sent within 30 days of 

publication of this notice in the Federal 

Register and should refer to FERC–556 

(OMB Control No. 1902–0075). 

VII. Environmental Analysis 

38. The Commission is required to 

prepare an Environmental Assessment 

or an Environmental Impact Statement 

for any action that may have a 

significant adverse effect on the human 

environment.65 Whether and how the 

changes adopted here, however, would 

affect QF development and the 

environment is speculative. 

39. The changes to the PURPA 

Regulations do not authorize or fund 

particular generation that may happen 

to qualify as QFs, nor do they license or 

issue permits for operation of generation 

that may happen to qualify as QFs; such 

generation can be built and operated 

independent of, i.e., without, QF 

certification. They do not authorize or 

prohibit a generator’s use of any 

particular technologies or fuels, nor do 

they mandate or limit where QFs should 

or should not be built. They do not 

exempt QFs from any Federal, state or 

local environmental, siting, or other 

similar laws or regulatory requirements. 

Given these facts any environmental 

impact analysis of the revisions 

proposed here would be speculative and 

not meaningfully inform the 

Commission or the public of the 

revisions’ impact on QF development 

or, correspondingly, of any associated 

potential impacts on the environment; 

there are, in short, no reasonably 

foreseeable environmental impacts for 

the Commission to consider.66

Moreover, the revisions proposed here 

would apply only to a limited number 

of QFs: Fuel cell systems with 

integrated hydrocarbon reformation 

equipment. Therefore, the Commission 

will not prepare an environmental 

document. 

VIII. Regulatory Flexibility Act 

40. The Regulatory Flexibility Act of 

1980 (RFA) 67 generally requires a 

description and analysis of final rules 

that will have significant economic 

impact on a substantial number of small 

entities. In lieu of preparing a regulatory 

flexibility analysis, an agency may 

certify that a proposed rule will not 

have a significant economic impact on 

a substantial number of small entities.68

41. The Small Business 

Administration’s (SBA) Office of Size 

Standards develops the numerical 

definition of a small business.69 The 

SBA size standard for electric utilities is 

based on the number of employees, 

including affiliates.70 Under SBA’s 

current size standards, the threshold for 

a small entity (including its affiliates) is 

250 employees for cogeneration in the 

NAICS 71 category: NAICS code 221118 

for Other Electric Power Generation. 

42. This rule directly affects 

cogeneration facilities, the majority of 

which the Commission estimates are 

small businesses. However, the 

Commission does not expect the 

revision to affect a substantial number 

of small entities. This final rule directly 

affects only certain QFs, i.e., those that 

are fuel cell systems with integrated 

steam hydrocarbon reformation 

equipment; this rule is voluntary. That 

is, this final rule expands the types of 

cogenerators that would be eligible to 

qualify as QFs to include fuel cell 

systems with integrated steam 

hydrocarbon reformation equipment, 

but this final rule does not require fuel 

cell systems with integrated steam 

hydrocarbon reformation equipment to 

file for QF certification. The 

Commission does not anticipate that the 

number of affected small entities would 

be substantial, nor does the Commission 

expect that any additional reporting 

burden or cost imposed on QFs, 

regardless of their status as a small or 

large business, would be significant.72

The Commission estimates that annual 

additional compliance costs on industry 

(detailed above) will be approximately 

$406,700 to comply with these 

requirements. 

43. Accordingly, pursuant to section 

605(b) of the RFA, the Commission 

certifies that this rule will not have a 

significant economic impact on a 

substantial number of small entities. 

IX. Document Availability 

44. In addition to publishing the full 

text of this document in the Federal 

Register, the Commission provides all 

interested persons an opportunity to 

view and/or print the contents of this 


jbell on DSKJLSW7X2PROD with RULES
8140 Federal Register / Vol. 86, No. 22 / Thursday, February 4, 2021 / Rules and Regulations 

document via the internet through the 

Commission’s Home Page (http://

www.ferc.gov). At this time, the 

Commission has suspended access to 

the Commission’s Public Reference 

Room due to the President’s March 13, 

2020 proclamation declaring a National 

Emergency concerning the Novel 

Coronavirus Disease (COVID–19). 

45. From the Commission’s Home 

Page on the internet, this information is 

available on eLibrary. The full text of 

this document is available on eLibrary 

in PDF and Microsoft Word format for 

viewing, printing, and/or downloading. 

To access this document in eLibrary, 

type the docket number excluding the 

last three digits of this document in the 

docket number field. 

46. User assistance is available for 

eLibrary and the Commission’s website 

during normal business hours from 

FERC Online Support at 202–502–6652 

(toll free at 1–866–208–3676) or email at 

ferconlinesupport@ferc.gov, or the 

Public Reference Room at (202) 502– 

8371, TTY (202)502–8659. Email the 

Public Reference Room at 

public.referenceroom@ferc.gov. 

X. Effective Date and Congressional 

Notification 

47. These regulations are effective 

April 5, 2021. The Commission has 

determined, with the concurrence of the 

Administrator of the Office of 

Information and Regulatory Affairs of 

OMB, that this rule is not a ‘‘major rule’’ 

as defined in section 351 of the Small 

Business Regulatory Enforcement 

Fairness Act of 1996. This final rule is 

being submitted to the Senate, House, 

Government Accountability Office, and 

Small Business Administration. 

List of Subjects in 18 CFR Part 292 

Electric power plants, Electric 

utilities, Reporting and recordkeeping 

requirements. 

By the Commission. Commissioner 

Clements is not participating. 

Issued: December 17, 2020. 

Kimberly D. Bose, 

Secretary. 

In consideration of the foregoing, the 

Commission amends part 292, chapter I, 

title 18, Code of Federal Regulations, as 

follows: 

PART 292—REGULATIONS UNDER 

SECTIONS 201 AND 210 OF THE 

PUBLIC UTILITY REGULATORY 

POLICIES ACT OF 1978 WITH REGARD 

TO SMALL POWER PRODUCTION AND 

COGENERATION 

■ 1. The authority citation for part 292 

continues to read as follows: 

Authority: 16 U.S.C. 791a–825r, 2601– 

2645; 31 U.S.C. 9701; 42 U.S.C. 7101–7352. 

■ 2. Amend § 292.202 by revising 

paragraphs (h)(2) and (3) and adding 

paragraph (h)(4) to read as follows: 

§ 292.202 Definitions. 

* * * * * 

(h) * * * : 

(2) That is used in a heating 

application (e.g., space heating, 

domestic hot water heating); 

(3) That is used in a space cooling 

application (i.e., thermal energy used by 

an absorption chiller); or 

(4) That is used by a fuel cell system 

with an integrated steam hydrocarbon 

reformation process for production of 

fuel for electricity generation. 

* * * * * 

[FR Doc. 2021–01988 Filed 2–3–21; 8:45 am] 

BILLING CODE 6717–01–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 165 

[Docket Number USCG–2021–0035] 

RIN 1625–AA00 

Safety Zone; Power Plant Demolition; 

Grand River, Grand Haven, MI 

AGENCY: Coast Guard, DHS. 

ACTION: Temporary final rule. 

SUMMARY: The Coast Guard is 

establishing a temporary safety zone for 

all navigable waters within 1400 feet of 

a demolition site near the eastern bank 

of the Grand River in Grand Haven, MI. 

The safety zone is needed to protect 

personnel, vessels, and the marine 

environment from potential hazards 

created by the controlled implosion of 

the J.B. Sims power plant. Entry of 

vessels or persons into this zone is 

prohibited unless specifically 

authorized by the Captain of the Port 

Lake Michigan or a designated 

representative. 

DATES: This rule is effective from 9:30 

a.m. on February 5 through 10:30 a.m. 

on February 19, 2021. The rule will be 

enforced from 9:30 a.m. to 10:30 a.m. on 

both February 5 and February 19, 2021. 

ADDRESSES: To view documents 

mentioned in this preamble as being 

available in the docket, go to https://

www.regulations.gov, type USCG–2021– 

0035 in the ‘‘SEARCH’’ box, and click 

‘‘SEARCH.’’ Click on Open Docket 

Folder on the line associated with this 

rule. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions on this rule, call or 

email Chief Petty Officer Jeromy 

Sherrill, Sector Lake Michigan 

Waterways Management Division, U.S. 

Coast Guard; telephone 414–747–7148, 

email Jeromy.N.Sherrill@uscg.mil. 

SUPPLEMENTARY INFORMATION: 

I. Table of Abbreviations 

CFR Code of Federal Regulations 

DHS Department of Homeland Security 

FR Federal Register 

NPRM Notice of proposed rulemaking 

§ Section 

U.S.C. United States Code 

II. Background Information and 

Regulatory History 

The Coast Guard is issuing this 

temporary rule without prior notice and 

opportunity to comment pursuant to 

authority under section 4(a) of the 

Administrative Procedure Act (APA) 

(5 U.S.C. 553(b)). This provision 

authorizes an agency to issue a rule 

without prior notice and opportunity to 

comment when the agency for good 

cause finds that those procedures are 

‘‘impracticable, unnecessary, or contrary 

to the public interest.’’ Under 5 U.S.C. 

553(b)(B), the Coast Guard finds that 

good cause exists for not publishing a 

notice of proposed rulemaking (NPRM) 

with respect to this rule because the 

Coast Guard not made aware of the 

intended demolition project until 

January 12, 2021, and immediate action 

is needed to mitigate potential safety 

hazards associated with the demolition 

process. Delaying the effective date of 

this rule to wait for a comment period 

to run would be impracticable and 

contrary to public interest by inhibiting 

the Coast Guard’s ability to protect 

against the known and anticipated 

hazards. 

Under 5 U.S.C. 553(d)(3), the Coast 

Guard finds that good cause exists for 

making this rule effective less than 30 

days after publication in the Federal 

Register. For the same reasons 

discussed in the preceding paragraph, 

waiting for a 30-day notice period to 

elapse would be impracticable because 

immediate action is needed to mitigate 

potential safety hazards associated with 

the controlled implosion of portion of 

the power plant adjancent to the Grand 

River. 

III. Legal Authority and Need for Rule 

The Coast Guard is issuing this rule 

under authority in 46 U.S.C. 70034 

(previously 33 U.S.C. 1231). The 

Captain of the Port (COTP) Lake 

Michigan has determined that potential 

safety hazards associated with the 

demolition of the J.B. Sims power plant 


jbell on DSKJLSW7X2PROD with RULES