150 FERC ¶ 61,211

UNITED STATES OF AMERICA

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

(Issued March 19, 2015)

AGENCY: Federal Energy Regulatory Commission.

ACTION: Final Rule.

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, 
Docket No. RM14-11-000 -2-

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. 

EFFECTIVE DATE: This rule will become effective [Insert_Date 90 days after 

publication in the FEDERAL REGISTER].

FOR FURTHER INFORMATION CONTACT:

Becky Robinson (Technical Information)

Office of Energy Policy and Innovation

Federal Energy Regulatory Commission

888 First Street, NE

Washington, DC 20426

(202) 502-8868

Becky.Robinson@ferc.gov

Brian Gish (Legal Information)

Office of the General Counsel – Energy Markets

Federal Energy Regulatory Commission

888 First Street, NE

Washington, DC 20426

(202) 502-8998

Brian.Gish@ferc.gov

SUPPLEMENTARY INFORMATION:
UNITED STATES OF AMERICA

FEDERAL ENERGY REGULATORY COMMISSION

Before Commissioners: Cheryl A. LaFleur, Chairman;

 Philip D. Moeller, Tony Clark,

Norman C. Bay, and Colette D. Honorable.

Open Access and Priority Rights on Interconnection 

 Customer’s Interconnection Facilities

Docket No. RM14-11-000

ORDER NO. 807

FINAL RULE

(Issued March 19, 2015)

Paragraph Numbers

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 Owners .............................................................44.

1. Blanket Waivers............................................................................................................44.

2. Requirement That ICIF Owners Must Sell Electricity to Qualify for the Waiver .......59.

3. Status of the Third-Party Requester..............................................................................76.

4. Non-Public Utilities......................................................................................................79.

5. Applicability to Industrial Power Systems’ Tie Lines .................................................83.

6. Applicability of the Blanket Waiver to Additional Regulations..................................85.

7. Existing Agreements and Waivers ...............................................................................88.
Docket No. RM14-11-000 - 2 -

8. Existing OATTs ...........................................................................................................90.

9. Revoking the Blanket Waiver.......................................................................................94.

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

Power Act...............................................................................................................................104.

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 be a Safe Harbor Period.........................133.

2. Starting Point for the Safe Harbor Period.....................................................................141.

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 “Prior Notice” Policy ...........................................172.

3. Technical Aspects of Interconnection ..........................................................................174.

4. Implementation .............................................................................................................176.

V. Information Collection Statement ........................................................................................177.

VI. 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
Docket No. RM14-11-000 - 3 -

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 

 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. 
Docket No. RM14-11-000 - 4 -

presumption for a five-year safe harbor period to reduce risks to ICIF owners3 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

 

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 

 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 Fed. Reg. 31,061 (May 30, 2014), FERC 

Stats. & Regs. ¶ 32,701 (2014), corrected, 79 Fed. Reg. 35,501 (June 23, 2014). 

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.
Docket No. RM14-11-000 - 5 -

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. 

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 
Docket No. RM14-11-000 - 6 -

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

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 

 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. 
Docket No. RM14-11-000 - 7 -

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.

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

 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). 

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).
Docket No. RM14-11-000 - 8 -

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 

10. Article 11.1 of the LGIA provides that the “Interconnection Customer shall 

design, procure, construct, install, own and/or control Interconnection Customer 

 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).
Docket No. RM14-11-000 - 9 -

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:

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

 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.

18 LGIA Article 1. See supra n.1.
Docket No. RM14-11-000 - 10 -

Finally, the LGIA defines Transmission Provider’s Interconnection Facilities as “those 

Interconnection Facilities that are located between the Point of Interconnection19 with the 

grid and the Point of Change of Ownership,20 and which are owned, controlled, or 

operated by the transmission provider.”21 

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 

 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.

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 

(continued...)
Docket No. RM14-11-000 - 11 -

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 

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 thirdparty requesters to use the capacity on its ICIF. Where an ICIF owner has specific, preexisting generator expansion plans with milestones for construction of generation 

facilities and can demonstrate that it has made material progress toward meeting those 

 

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).

24 Milford Wind Corridor, LLC, 129 FERC ¶ 61,149, at P 24 (2009) (Milford). 
Docket No. RM14-11-000 - 12 -

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.

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 

 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.

28 See, e.g., Milford, 129 FERC ¶ 61,149 at P 24; Terra-Gen I, 132 FERC ¶ 61,215 

at P 49.
Docket No. RM14-11-000 - 13 -

Milford had shown that it had specific plans for phased development of its generation. 

The Commission in Milford summarized the Aero precedent as providing that:

A transmission owner that filed specific expansion plans with 

definite dates and milestones for construction, and had made 

material progress toward meeting its milestones, had priority 

over later transmission requests.29

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

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 

 29 Milford, 129 FERC ¶ 61,149 at P 22.

30 The Aero precedent cited above is the only instance where the Commission has 

not granted priority rights upon an attempted plans and milestones demonstration.

31 See NextEra Energy Resources, LLC, 142 FERC ¶ 61,043, at P 26 (2013).

32 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 

(continued...)
Docket No. RM14-11-000 - 14 -

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 

 

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).

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 

(continued...)
Docket No. RM14-11-000 - 15 -

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 request36 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.

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 

 

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).
Docket No. RM14-11-000 - 16 -

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. 

B. Comments

19. The Commission received 24 comments and one reply comment on the NOPR.

38 

Of those, 21 commenters39 generally support the need for reform and the NOPR 

proposals. Commenters state that the Commission’s existing policy is unduly 

burdensome and unnecessary40 and that it does not meet the goal of promoting 

 37 NOPR, FERC Stats. & Regs. ¶ 32,701 at P 54.

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. 
Docket No. RM14-11-000 - 17 -

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 

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

 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.

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)).
Docket No. RM14-11-000 - 18 -

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

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 

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 

 46 Linden at 4.

47 ELCON at 2.

48 MISO at 4-5.

49 BP Wind at 4; Linden at 3; ELCON at 2; and E.ON at 2.
Docket No. RM14-11-000 - 19 -

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

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 

 50 MISO at 5.

51 MISO at 5.

52 APPA and TAPS at 2 and NCPA at 3. 

53 APPA and TAPS at 2.
Docket No. RM14-11-000 - 20 -

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

25. APPA and TAPS56 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 

 54 NCPA at 3.

55 NRECA at 2.

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).
Docket No. RM14-11-000 - 21 -

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

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

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 

 58 APPA and TAPS at 21.

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.

61 APPA and TAPS at 9-10.
Docket No. RM14-11-000 - 22 -

generation resources, burdening those resources and consumers, as well as undermining 

competitive wholesale markets.

28. APPA and TAPS contend that departure from the Commission’s nondiscriminatory 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.

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 

 62 APPA and TAPS at 21-22.
Docket No. RM14-11-000 - 23 -

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 

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

 63 APPA and TAPS at 23.

64 APPA and TAPS at 23-24.

65 NRECA at 5-6.

66 NRECA at 6-7.
Docket No. RM14-11-000 - 24 -

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

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. 

 67 NRECA at 7.

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). 
Docket No. RM14-11-000 - 25 -

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.

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 

 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”). 
Docket No. RM14-11-000 - 26 -

these proposed deviations on a case-by-case basis can impose the risk of a timeconsuming 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

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 

 71 Sky River, 134 FERC ¶ 61,064 at P 13.

72 APPA and TAPS at 20.
Docket No. RM14-11-000 - 27 -

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 

 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. 
Docket No. RM14-11-000 - 28 -

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. 

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. 

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 

 75 See, e.g., Aero Modification Order, 116 FERC ¶ 61,149 at P 28.
Docket No. RM14-11-000 - 29 -

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.
Docket No. RM14-11-000 - 30 -

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

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 

 78 First Wind at 11-12 and Invenergy at 4-6.

79 AWEA at 7-8.
Docket No. RM14-11-000 - 31 -

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 
Docket No. RM14-11-000 - 32 -

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 

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 

 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.

82 EEI at 3 and BHE at 6-7.
Docket No. RM14-11-000 - 33 -

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 

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

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 

 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.

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

86 E.ON at 2.
Docket No. RM14-11-000 - 34 -

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

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 

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

88 BHE at 6-7.

89 NextEra at 3-4.

90 DTE at 2.
Docket No. RM14-11-000 - 35 -

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

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

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

 91 NextEra at 7.

92 Southern at 4.

93 APPA and TAPS at 10.
Docket No. RM14-11-000 - 36 -

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

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

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.

 94 APPA and TAPS at 14.

95 APPA and TAPS at 20.
Docket No. RM14-11-000 - 37 -

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

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. 

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 

 96 NRECA at 4.

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. 
Docket No. RM14-11-000 - 38 -

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 

 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).
Docket No. RM14-11-000 - 39 -

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.

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 
Docket No. RM14-11-000 - 40 -

customer without a means of obtaining an interconnection with ICIF once the OATT 

interconnection procedures were waived.99

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

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 

 99 NOPR, FERC Stats. & Regs. ¶ 32,701 at PP 35, 43.

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.
Docket No. RM14-11-000 - 41 -

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 

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 

 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.

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.
Docket No. RM14-11-000 - 42 -

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 

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 

 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. 

109 E.ON at 6-7.

110 Recurrent at 5-6.
Docket No. RM14-11-000 - 43 -

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. 

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 

 111 SEIA at 4-5.

112 ITC at 12-13.

113 BP Wind at 6.

114 First Wind at 4-8 and Invenergy at 7-11.
Docket No. RM14-11-000 - 44 -

inefficiencies identified as the basis for the Commission's NOPR, in a manner which 

discriminates against non-sellers of electric energy.115 

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 

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 

 115 ITC at 12-13 and MISO TOs at 5-6.

116 ITC at 13.

117 MISO TOs at 5-6.
Docket No. RM14-11-000 - 45 -

(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 

 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 SelfCertification of Exempt Wholesale Generator Status” (Jan. 24, 2014)).

119 Recurrent at 6.
Docket No. RM14-11-000 - 46 -

regulatory treatment of interconnection companies from its treatment of a “single entity” 

that owns both generation and ICIF.120

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 

 120 Recurrent at 6-7.

121 Recurrent at 9-10.

122 SEIA at 5 (citing Recurrent at 9-10).
Docket No. RM14-11-000 - 47 -

Commission’s section 210 jurisdiction as a condition to being afforded the blanket 

waiver.123

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 

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 

 123 E.ON at 7. E.ON also offers a redline of the proposed regulations to effect this 

change.

124 Sempra at 4.

125 Sempra at 4-6.

126 First Wind at 4-8 and Invenergy at 7-11. Invenergy also offers a redline of the 

proposed regulations to effect this change.
Docket No. RM14-11-000 - 48 -

would process the request in accordance with requirements similar to those set forth in 

section 210 of the FPA.127 

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. 

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.

 127 BP Wind at 5-6.

128 NextEra at 7-9.
Docket No. RM14-11-000 - 49 -

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

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 

 129 BP Wind at 7.

130 ITC at 8.
Docket No. RM14-11-000 - 50 -

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. 

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 

 131 We will not issue a public notice, accept comments, or issue an order on the 

informational filings.
Docket No. RM14-11-000 - 51 -

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

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 

 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. 
Docket No. RM14-11-000 - 52 -

210 and 211, but where the third-party requester would be eligible for OATT service, the 

ICIF waiver would not apply.”133

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 

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.

 133 NOPR, FERC Stats. & Regs. ¶ 32,701 at P 51.

134 AWEA at 14; First Wind 8-9; and Invenergy at 11-12.
Docket No. RM14-11-000 - 53 -

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.

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 

 135 NOPR, FERC Stats. & Regs. ¶ 32,701 at P 35.

136 APPA and TAPS at 27-29.
Docket No. RM14-11-000 - 54 -

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.

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

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 

 137 NCPA at 4 and SWP at 4.

138 SWP at 5.
Docket No. RM14-11-000 - 55 -

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

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 

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, 

 139 ELCON at 2-3.

140 18 CFR 35.28(a).
Docket No. RM14-11-000 - 56 -

Part 37, which relates to OASIS requirements, and Part 358, which relates to Standards of 

Conduct for Transmission Providers.141

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

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 

 141 NOPR, FERC Stats. & Regs. ¶ 32,701 at P 1.

142 Linden at 8.

143 Linden at 8 (citing Cogen Technologies Linden Venture, L.L.P., 127 FERC 

¶ 61,181, at P 20 (2009)).
Docket No. RM14-11-000 - 57 -

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

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

 144 Linden at 7.

145 Linden at 7-8.
Docket No. RM14-11-000 - 58 -

supersede the existing waiver.146 If, as Linden postulates, an entity has received a casespecific waiver that waives requirements in addition to those waived by the blanket 

waiver, the blanket waiver would not rescind the broader waiver. 

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

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 

 146 NOPR, FERC Stats. & Regs. ¶ 32,701 at P 40. 

147 NOPR, FERC Stats. & Regs. ¶ 32,701 at P 40. 

148 AWEA at 17; NextEra at 10; and Terra-Gen at 2.

149 AWEA at 17 and Terra-Gen at 4.
Docket No. RM14-11-000 - 59 -

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 

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

 150 Terra-Gen at 2.

151 NextEra at 10-11.

152 AWEA at 11.
Docket No. RM14-11-000 - 60 -

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 caseby-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 
Docket No. RM14-11-000 - 61 -

comment on the circumstances under which and the mechanism by which the 

Commission should revoke the proposed waiver.153

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 

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 

 153 NOPR, FERC Stats. & Regs. ¶ 32,701 at P 38.

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. 

156 NextEra at 9-10; BHE at 7-8; and AWEA at 8.
Docket No. RM14-11-000 - 62 -

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

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

98. With respect to the revocation process, AWEA recommends that the Commission 

provide an ICIF owner with reasonable advanced notice detailing the reasons for 

 157 NextEra at 10.

158 AWEA at 9.

159 BHE at 7.

160 AWEA at 9.
Docket No. RM14-11-000 - 63 -

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

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 

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

 161 AWEA at 9-10.

162 AWEA at 10.

163 AWEA at 10.

164 AWEA at 10-11.

165 AWEA at 10-11.
Docket No. RM14-11-000 - 64 -

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 
Docket No. RM14-11-000 - 65 -

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 Commissionordered 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 

 166 16 U.S.C. 824i(a)(1)(A).

167 16 U.S.C. 796(22).

168 16 U.S.C. 824j.
Docket No. RM14-11-000 - 66 -

“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

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. 

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 section 2.20, 

specifying details as to how much capacity is requested and for what period, at least 

 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.

172 16 U.S.C. 824i(c); Aero Proposed Order, 115 FERC ¶ 61,128 at PP 15-16.
Docket No. RM14-11-000 - 67 -

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. 

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

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 

 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.

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).
Docket No. RM14-11-000 - 68 -

applicable to requests for service under sections 210 and 211 (subject to the safe harbor 

presumption proposed in the NOPR).175

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.

110. Any disputes as to the extent of excess capacity on ICIF or the ICIF owner’s 

future plans to use such excess capacity would be resolved, subject to the safe harbor 

 175 NOPR, FERC Stats. & Regs. ¶ 32,701 at P 41.

176 NOPR, FERC Stats. & Regs. ¶ 32,701 at P 47.
Docket No. RM14-11-000 - 69 -

presumption discussed below, during the proceedings under sections 210 and 211, using 

an excess capacity analysis similar to that used in Aero and Milford, in which the ICIF 

owner must demonstrate specific plans and milestones for the future use of its ICIF. 

Even if an ICIF owner were able to demonstrate in such a proceeding that no excess 

capacity exists, if supported by the record in the case, the Commission could order the 

eligible ICIF owner to expand its facilities to provide interconnection and transmission 

service under sections 210 and 211.177 Section 212 requires that the eligible ICIF owners 

would be fully compensated for any required expansion.178 This is similar to the rights 

and obligations under the pro forma OATT.

179

 177 16 U.S.C. 824i(a)(1)(D) (“The Commission may issue an order requiring ... 

such increase in transmission capacity as may be necessary ....”); 16 U.S.C. 824j(a) 

(“Any electric utility ... may apply to the Commission for an order under this subsection 

requiring a transmitting utility to provide transmission services (including any 

enlargement of transmission capacity necessary to provide such services) to the 

applicant.”).

178 Section 212(a) provides that:

An order under section 211 shall require the transmitting 

utility subject to the order to provide wholesale transmission 

services at rates, charges, terms, and conditions which permit 

the recovery by such utility of all the costs incurred in 

connection with the transmission services and necessary 

associated services, including, but not limited to, an 

appropriate share, if any, of legitimate, verifiable and 

economic costs, including taking into account any benefits to 

the transmission system of providing the transmission service, 

and the costs of any enlargement of transmission facilities.

179 Section 15.4 of the pro forma OATT states:

If the Transmission Provider determines that it cannot 

(continued...)
Docket No. RM14-11-000 - 70 -

b. Comments

111. Most commenters support the NOPR proposal that third parties seeking to use 

ICIF subject to the blanket waiver should do so pursuant to sections 210 and 211. 

AWEA, BHE, EEI, NextEra, Recurrent, and Southern argue that this approach will 

protect the ICIF owner from speculative requests for transmission service.180 NextEra 

and BHE further argue that the requirements of sections 210 and 211 also protect the 

interests of third parties seeking to use ICIF.181 NextEra and Southern also support the 

NOPR’s proposal to evaluate, in the course of a proceeding under sections 210 and 211, 

whether an ICIF owner’s “specific plans and milestones” justify priority rights to use 

excess capacity on the ICIF, to the extent the safe harbor is not applicable.182 Finally, 

NextEra and AWEA contend that the framework under sections 210 and 211 provides the 

 

accommodate a Completed Application for Firm Point-ToPoint Transmission Service because of insufficient capability 

on its Transmission System, the Transmission Provider will 

use due diligence to expand or modify its Transmission 

System to provide the requested Firm Transmission Service, 

consistent with its planning obligations in Attachment K, 

provided the Transmission Customer agrees to compensate 

the Transmission Provider for such costs pursuant to the 

terms of Section 27.

180 Recurrent at 4; Southern at 7; NextEra at 11-14; AWEA at 12-13; BHE at 8; 

and EEI at 16.

181 NextEra at 11-14 and BHE at 8.

182 NextEra at 11-14.
Docket No. RM14-11-000 - 71 -

flexibility necessary for ICIF owners and third parties to reach mutually agreeable 

arrangements tailored to their respective needs.183 

112. APPA and TAPS argue that the NOPR, as proposed, would erect an impassable 

barrier to accessing ICIF. APPA, TAPS, and NRECA argue that a proceeding under 

sections 210 and 211 is time-consuming, burdensome, and expensive.184 They state that 

Order No. 888 expressly found those statutory processes to be too cumbersome and timeconsuming to provide non-discriminatory access and placed customers “at a severe 

disadvantage compared to the transmission owner.”185 They contend that by limiting 

requesters to access only through sections 210 and 211, even if the request is received 

many years after the ICIF is energized and there is ample unused capacity, the NOPR 

creates a potent and permanent obstacle to open access that enhances the ICIF owner’s 

vertical market power without any justification.186 NRECA argues that prospective 

customers should not have to initiate such a proceeding with the Commission in order to 

demonstrate entitlement to service on these Commission-jurisdictional lines.187 APPA 

and TAPS also contend that the NOPR has not demonstrated that the proposed 

 183 NextEra at 11-14 and AWEA at 12-13.

184 APPA and TAPS at 11-12.

185 APPA and TAPS at 12 (citing to Order No. 888, FERC Stats. & Regs. ¶ 31,036 

at 31,646).

186 APPA and TAPS at 24-25.

187 NRECA at 5.
Docket No. RM14-11-000 - 72 -

procedures will 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.188 

c. Commission Determination

113. We find that with respect to ICIF eligible for the blanket waiver discussed above, 

it is appropriate for entities seeking interconnection and transmission service on ICIF to 

follow the rules and regulations applicable to requests for service under sections 210 and 

211 (subject to the safe harbor discussed below).

189 Given the risk of investment in 

generation and ICIF, it is appropriate to provide an ICIF owner with priority rights over 

the use of the excess capacity on ICIF that it plans to use to interconnect its own or its 

affiliates’ future generation projects to the extent the ICIF owner can demonstrate 

specific plans and milestones for its and/or its affiliates’ future use of the ICIF. In 

addition, we find that given the relatively small percentage of ICIF owners that have 

actually had to file an OATT,190 requiring the entity requesting service over ICIF to 

pursue such service under sections 210 and 211 will not overly burden potential 

customers of service on ICIF. The process under sections 210 and 211 assures thirdparty entities requesting service on ICIF and eligible ICIF owners alike that they will 

 188 APPA and TAPS at 20-21.

189 Such third-party requests for service could include requests for firm, nonfirm, 

conditional, or interim service. See, e.g., 18 CFR 2.20(b)(9).

190 See supra P 38.
Docket No. RM14-11-000 - 73 -

have specified procedural rights as set forth in sections 210, 211, and 212 of the FPA and 

appropriately balances ICIF owners’ and third parties’ rights to service on ICIF. Further, 

this framework provides the contractual flexibility that some commenters suggest is not 

available under our existing policy so that contractual arrangements (e.g., transmission 

service agreements, interconnection agreements, and/or shared facilities agreements) can 

be tailored to the special situations for ICIF in determining the appropriate terms and 

conditions of service, as many of the pro forma OATT provisions are not applicable to 

service over ICIF. Finally, we recognize that our existing policy to allow an ICIF owner 

to retain priority rights if it has plans to use the ICIF capacity and is making progress to 

achieve those plans can involve a potential transmission or interconnection customer in 

complex proceedings associated with a request for service. Thus, we believe the reforms 

adopted herein will not meaningfully change the expense potential customers incur to 

obtain service.

114. APPA and TAPS are correct that the Commission in Order No. 888 found 

section 211 to provide insufficient relief as a general method of enabling more 

competitive generation to obtain open access transmission service. As a result, Order 

No. 888 required that public utilities file an OATT to provide readily available, 

comparable service at known rates, terms, and conditions. In this Final Rule, the 

Commission finds that the filing of an OATT and compliance with certain regulations are 

not necessary to prevent unjust and unreasonable rates or unduly discriminatory behavior 

with respect to ICIF. ICIF are sole-use, limited and discrete, radial in nature, and not part 

of an integrated transmission network, and third-party requests to use ICIF are infrequent. 
Docket No. RM14-11-000 - 74 -

Case-by-case determinations under sections 210 and 211 are not appropriate for the large 

number of transmission service requests on the integrated grid, but are appropriate for the 

few expected requests for service on ICIF, each of which would likely have different 

circumstances. We find that, for this set of circumstances, the framework of sections 210 

and 211 provide a sufficient means for third-party access to ICIF.

2. Voluntary Arrangements

a. Comments

115. First Wind and Invenergy ask the Commission to confirm that ICIF owners

may continue to enter into shared use agreements with affiliates without requiring the 

affiliated party to utilize sections 210, 211 and 212 to obtain access.

191 

Similarly, Linden requests that the Commission clarify that the Commission’s proposed 

process does not preclude an ICIF owner and a non-affiliated entity seeking service to 

mutually agree upon an appropriate arrangement outside of the context of a proceeding 

under sections 210 or 211, if the parties file any resulting mutually agreed upon 

arrangement pursuant to section 205 of the FPA.192 Linden contends that the new 

proposed section 35.28(d)(2)(ii) suggests that the parties must use the process before the 

Commission that is outlined in sections 210, 211, and 212 of the FPA and the 

Commission’s corresponding regulations. Linden asserts that even where sections 210 

and 211 apply, section 212(c)(1) of the FPA requires that the Commission “set a 

 191 First Wind at 15 and Invenergy at 14-15.

192 Linden at 4-5.
Docket No. RM14-11-000 - 75 -

reasonable time for parties . . . to agree to terms and conditions under which such order is 

to be carried out” and that the Commission generally directs the parties to negotiate 

appropriate agreements.193 Accordingly, Linden recommends that the Commission 

should consider revising section 35.28(d)(2)(ii) to explicitly allow for the possibility that 

parties may arrive at mutually agreeable arrangements without undergoing a proceeding 

under sections 210 and 211 at the Commission.194 Linden further states that parties to the 

relevant arrangements should be allowed flexibility to negotiate appropriate terms and 

conditions without restriction as to the form or nature of the agreement for greater 

regulatory efficiency, and recommends that the Commission add an additional 

section 35.28(iii) explicitly acknowledging that parties may mutually agree on rates, 

terms and conditions, subject to Commission review and acceptance.195

116. E.ON asks the Commission to clarify that the blanket waiver should not be 

jeopardized if a planned phase of a generation project is owned by a non-affiliate.196 

Similarly, NRG and E.ON ask for clarification that voluntarily negotiating a bilateral 

agreement with a third party that is seeking access to the ICIF during the safe harbor 

 193 Linden at 5.

194 Linden at 5-6.

195 Linden at 6-7.

196 E.ON at 13.
Docket No. RM14-11-000 - 76 -

period, discussed below, would not jeopardize the continuation of the safe harbor 

period.

197

b. Commission Determination

117. We clarify that the availability of the process under sections 210 and 211 does not 

preclude the opportunity for an ICIF owner and an entity seeking service, including an 

affiliate, to mutually agree, outside of the process under sections 210 and 211, to an 

arrangement for service over the ICIF. In fact, this flexibility benefits both the ICIF 

owner and an entity seeking service, as it allows the parties the opportunity to craft an 

agreement appropriate for the circumstances and potentially expedite access to ICIF. In 

that case, availability of the process under sections 210 and 211 provides protection to 

entities seeking service by allowing them to seek service under the process under 

sections 210 and 211 if an agreement cannot be reached. Furthermore, we likewise 

clarify that this flexibility applies both to affiliates and non-affiliates of the ICIF owner, 

such that ICIF owners may enter into shared use agreements with affiliates or nonaffiliates, without requiring a proceeding under sections 210 and 211 to obtain access.

Finally, we clarify that a shared-use agreement or bilateral agreement with either an 

affiliate or non-affiliate will not in itself jeopardize the applicability of the blanket waiver 

or the continuation of the safe harbor period, discussed below. We find that this will 

allow flexibility and promote mutually agreeable arrangements for sharing facilities. In 

 197 NRG at 3-4 and E.ON at 13.
Docket No. RM14-11-000 - 77 -

any case, ICIF owners that are public utilities would still be subject to the statutory 

requirement of sections 205 and 206 forbidding unduly discriminatory practices.

118. We agree that our use of the term “shall” in new section 35.28(d)(2)(ii) may 

have inadvertently given the impression that voluntary agreements without resort to 

sections 210 and 211 were not allowed. We did not intend that, and therefore change the 

word “shall” to “may” in section 35.28(d)(2)(ii). Indeed, the flexibility to enter into 

voluntary agreements is inherent in the process under sections 210 and 211. As Linden 

points out, section 212 recognizes that parties should have a reasonable time to agree to 

terms and conditions,

198 and section 211 requires that a third party must have submitted a 

good faith request for service at least 60 days before it may submit a section 211 

application before the Commission. Nothing in sections 210 or 211 precludes entities 

from arriving at mutual agreements prior to or instead of seeking to establish a process 

under sections 210 and 211. Accordingly, we confirm that an ICIF owner and an entity 

seeking service may mutually agree to an arrangement for interconnection and 

transmission service over the ICIF, without initiating a process under sections 210 and 

211.

 198 See 16 U.S.C. 824k(c)(1).
Docket No. RM14-11-000 - 78 -

3. Interaction with the Transmission System

a. Comments

119. AWEA states that a third party requesting service on an ICIF should be required to 

submit an appropriate interconnection or transmission service request to the transmission 

provider with whom the ICIF are interconnected within 30 days of the good faith request 

to the owner of the ICIF and/or within a reasonable time before an application under

sections 210 and 211 is made. NextEra argues for a similar requirement, stating that the 

third party should make a request to the transmission provider within 60 days following 

the completion of a feasibility study by the ICIF owner in order for a subsequent petition 

under sections 210 or 211 of the FPA to be considered in good faith.199 AWEA explains 

that, even if the proposed reforms were put into place, failing to require such a submittal 

could lead to gaming opportunities by unaffiliated generators who may wish to establish 

a queue position on an ICIF, while avoiding upfront costs associated with actually 

injecting power into a transmission provider’s network grid.200 AWEA argues that it is 

reasonable to make such a requirement because it is critical for system reliability that all 

three of the relevant parties are involved in any interconnection of new generation to the 

grid.201

 199 NextEra at 14-15.

200 AWEA at 16-17.

201 AWEA at 17.
Docket No. RM14-11-000 - 79 -

120. MISO and the MISO TOs suggest that the Commission should require the new 

interconnection customer who requests to interconnect to the existing ICIF to enter into 

an agreement with the existing interconnection customer before allowing the new 

interconnection customer to enter the binding portion of the governing interconnection 

procedures.202 They argue this is reasonable because adding generating facilities to 

existing ICIF will complicate the existing interconnection process and require 

coordination with the relevant RTO or the use of existing RTO interconnection 

procedures to ensure that new interconnections to ICIFs will not adversely impact the 

reliable operation of the transmission system.203

121. While ITC does not oppose the reforms proposed in the NOPR, ITC is concerned 

that the Commission’s proposal to rely exclusively on sections 210 and 211 of the FPA to 

govern third-party interconnections on ICIF fails to provide sufficient clarity on the 

precise contractual relationship that will exist between the ICIF owner, a third party 

proposing to interconnect with ICIF, the transmission provider, and the impacted 

transmission owner (provided these are separate entities). ITC recommends that the 

Commission provide additional guidance in the Final Rule on the process for establishing 

contractual relationships between these four types of parties, the nature of these 

contractual relationships, and how successful applications will fit into the relevant 

 202 MISO at 7 and MISO TOs at 5.

203 MISO at 5-6 and MISO TOs at 4-5.
Docket No. RM14-11-000 - 80 -

transmission provider study processes necessary to ensure that such connections occur 

safely and reliably. Specifically, ITC recommends that the Commission include in the 

Final Rule requirements that: (1) interconnection requests approved under sections 210 

and 211 must proceed under the LGIP of the transmission provider to which the ICIF 

owner is interconnected; and (2) the third party must enter into a separate LGIA with the 

impacted transmission owner and facilities agreement with the ICIF owner.204 Given that 

the transmission owner owns and operates facilities to which the shared ICIF are 

interconnected, the third party should be required to enter into an LGIA with the 

impacted transmission owner. This will clearly establish the rights and obligations of all 

parties and, more importantly, ensure that the appropriate reliability studies are conducted 

prior to allowing an interconnection.205 The MISO TOs agree with ITC that the 

Commission should modify its NOPR proposal to require greater coordination with the 

transmission provider and transmission owner because this will lessen the likelihood of 

operational and reliability problems while lessening the OATT, OASIS, and Standards of 

Conduct burdens on ICIF owners that the Commission seeks to alleviate.206

122. Similarly, EPSA recommends that the Commission should encourage parties to 

utilize appropriate existing LGIA and LGIP provisions regarding terms, conditions and 

 204 ITC at 7-8.

205 ITC at 11.

206 MISO TOs at 5.
Docket No. RM14-11-000 - 81 -

procedures in the Final Rule because the provisions of the LGIA and LGIP (e.g., 

section 9.9.2 of the LGIA) work well for the interconnection process and that augmenting 

the process under sections 210, 211 and 212 with these procedures will offer clarity to 

industry stakeholders. 

123. EEI requests that the Commission not be prescriptive with respect to a mechanism 

for interconnection or transmission under this rule, and states that under the framework 

under sections 210 and 211, the ICIF owner, the eligible entity seeking interconnection to 

the ICIF and the transmission provider will have flexibility on how to develop the terms 

and conditions of the interconnection to the ICIF and any associated transmission 

delivery service over the ICIF.207 

124. Southern asserts that the ICIF owner, the party seeking interconnection to the 

ICIF, and the transmission provider should have the flexibility to develop appropriate 

arrangements for both interconnection and transmission service that meet all parties’ 

needs so long as the new interconnection customer is able to interconnect its generating 

facility and acquire transmission service on terms and conditions that are similar to other 

customers. Therefore, Southern contends, the Commission should not be prescriptive 

with respect to the mechanism to be used for interconnection or transmission service 

under this rule as long as all affected parties agree to jointly study and provide 

interconnection and transmission service for the new generator requesting 

 207 EEI at 16-17.
Docket No. RM14-11-000 - 82 -

interconnection, with the new generator’s commitment to bear the expense of such work. 

Moreover, Southern notes that the Commission would retain oversight over the thirdparty requests for service over the ICIF because it would have an opportunity to review 

such arrangements under FPA sections 210, 211 and 212 and amendments to existing 

interconnection agreements under section 205.208

b. Commission Determination

125. Commenters appear to be conflating the scope of this Final Rule – access to ICIF 

– with requirements for access to the network/integrated grid. As such, we decline to 

prescribe additional requirements for access to the network/integrated transmission

system by entities seeking to interconnect with ICIF or a process for how requests to 

interconnect with ICIF must fit into the transmission provider’s study processes. We 

reaffirm the existing policy that third-party requesters are obligated to obtain service on 

the transmission facilities at or beyond the Point of Change of Ownership as well as those 

facilities beyond the Point of Interconnection with ICIF pursuant to the relevant existing 

OATT and interconnection procedures.209 The existing policy, under which third-party 

 208 Southern at 7-8.

209 In addition, an application under section 211 requires that the third party 

seeking transmission first make a good faith request for service, complying with 18 CFR 

section 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. 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. As part of the evaluation of whether the third party seeking transmission 

service made a good faith request for service, the Commission may look to see what 

(continued...)
Docket No. RM14-11-000 - 83 -

requesters are obligated to obtain service on the transmission facilities beyond the ICIF 

pursuant to the relevant existing OATT and interconnection procedures, will maintain the 

reliability of the network transmission system by ensuring that the appropriate studies are

conducted. At the same time, the Commission’s existing policy provides the flexibility 

for the entity seeking interconnection to the ICIF, the ICIF owner, and the public utility

transmission provider to develop arrangements for the interconnection to the ICIF and

any associated transmission delivery service over the ICIF. 

126. In response to AWEA’s assertion that failing to require a third party seeking 

service on ICIF to submit an interconnection or transmission service request to the 

transmission provider with whom the ICIF are interconnected could lead to gaming 

opportunities by unaffiliated generators, we find that the process under sections 210 

and 211 will limit speculative requests for transmission service from the ICIF owner and 

deter attempts to game the interconnection process. We are not persuaded that additional 

protection is needed at this time. The framework under sections 210 and 211 assures that

ICIF owners have specified procedural rights as set forth in sections 210 and 211 of the 

FPA. 

127. We conclude that the existing policy, that third-party requesters are obligated to

obtain service on the transmission facilities at or beyond the Point of Change of 

Ownership as well as those facilities beyond the Point of Interconnection pursuant to the

 

measures, if any, the third party has taken to acquire service on the network transmission 

system beyond the ICIF.
Docket No. RM14-11-000 - 84 -

relevant OATT and interconnection procedures, strikes the right balance between 

ensuring reliability, providing flexibility, and protecting the rights of the ICIF owner. 

Accordingly, we decline to further prescribe how a third-party seeking service over ICIF

pursuant to sections 210 and 211 also gains access to the networked transmission

provider’s transmission system.

4. Scope of Regulations to be Modified

a. Commission Proposal

128. In the NOPR, the Commission proposed to add subsection 35.28(d)(2) to the 

Commission’s regulations for the purpose of setting forth the terms of the blanket OATT 

waiver, and did not propose to revise other regulations.210

b. Comments

129. E.ON argues that section 2.20 of the Commission’s regulations, which 

implements the section 211 process with respect to making and responding to “good 

faith” requests for transmission services, should be amended as to its applicability to ICIF 

because an ICIF owner cannot fulfill all of the requirements of a traditional transmission 

provider in that regulation. For example, section 2.20 requires the transmitting utility to 

respond to the requester with a date by which a response will be sent to the requester and 

a statement of any fees associated with responding to its request (e.g., initial studies), and 

if the transmitting utility determines it cannot provide the requested service with existing

 210 NOPR, FERC Stats. & Regs. ¶ 32,701 at P 35.
Docket No. RM14-11-000 - 85 -

capacity, then it must provide studies and data regarding constraints and offer an 

executable agreement wherein the requester agrees to reimburse the transmitting utility 

for all costs of performing any studies.211 E.ON argues that the Commission should 

clarify that the section 2.20 process requires the third-party requester to arrange and pay 

for all required studies with the ICIF’s transmission provider, and that the ICIF owner has 

no obligation to arrange and pay for all such studies. E.ON argues that this would 

encompass impacts on the ICIF, interconnecting transmission owner’s interconnection 

facilities and transmission facilities, the transmission provider’s grid and any other 

affected entities’ facilities.212

c. Commission Determination

130. We see no reason to revise section 2.20 of our regulations. We do not expect the 

ICIF owner to study the networked transmission system, but only to study the capacity 

available on its ICIF. Further, we believe that section 2.20 is clear that the requesting 

party pays for any studies associated with a request for service over ICIF.213 Given the 

nature of the study to determine available capacity on the ICIF (typically by comparing

the thermal rating of the facilities to the existing commitments on the line) and that the 

ICIF owner should have the information necessary to perform such studies, this is likely 

to be a fairly straightforward process that is best performed by the ICIF owner. 

 211 E.ON at 13-14.

212 E.ON at 14.

213 See 18 CFR 2.20(c)(1) and 18 CFR 2.20(c)(4)(iii).
Docket No. RM14-11-000 - 86 -

Accordingly, the transparency and timing requirements of section 2.20 should not prove 

overly burdensome for ICIF owners and do not require revision.

5. Reliability Standards

a. Comments

131. ITC requests that the Commission clarify how the proposed interconnection 

process interacts with the requirements of NERC Reliability Standard FAC-001-1 

(Facility Connection Requirements).214 This standard applies to all transmission owners 

and those generator owners that have an executed agreement to evaluate the reliability 

impact of interconnecting a third party facility to the generator owner’s existing facility 

that is used to interconnect to the interconnected transmission systems.

b. Commission Determination

132. We clarify that nothing in this Final Rule changes the requirement to comply with 

all Commission-approved mandatory Reliability Standards, including FAC-001-1. 

D. Safe Harbor

1. Whether and To What Extent There Should be a Safe Harbor 

Period

a. Commission Proposal

133. To reduce risks to ICIF owners eligible for the blanket waiver discussed above 

during the critical early years of their projects, the Commission proposed a safe harbor 

period of five years during which there would be a rebuttable presumption that: (1) the

 214 ITC at 11-12.
Docket No. RM14-11-000 - 87 -

eligible ICIF owner has definitive plans to use its capacity without having to make a 

demonstration through a specific plans and milestones showing; and (2) the eligible ICIF 

owner should not be required to expand its facilities. A third-party requester for service 

on ICIF during the safe harbor period could attempt to rebut these presumptions, but it 

would have the burden of proof to show that the owner and/or operator does not have 

definitive plans to use its capacity and the public interest under sections 210 and 211 is 

better served by granting access to the third party than by allowing the eligible ICIF 

owner to reserve its ICIF capacity for its own future use. 

b. Comments

134. Many commenters215 support the proposed safe harbor period, during which a 

developer of a generator tie line would be presumed to have priority rights to the capacity 

on the generator tie lines it funded for five years from the date the line is energized. 

However, a few commenters oppose the safe harbor, and a few others argue it should be 

strengthened.

135. APPA and TAPS argue that the NOPR’s proposed safe harbor cuts back on the 

relief otherwise available under sections 210, 211, and 212, and all but ensures absolute 

foreclosure of competitors from access to ICIF.216 They explain that in order to rebut the 

 215 AWEA at 5; BHE at 3; BP Wind at 4; E.ON at 10; EEI at 4; EPSA at 6; 

ELCON at 2-3; First Wind at 2; Invenergy at 2; NextEra at 6; NRG at 3; Recurrent at 3; 

Sempra at 2; SEIA at 3; Southern at 6; and Terra-Gen at 4. 

216 APPA and TAPS at 14-15.
Docket No. RM14-11-000 - 88 -

presumptions, a requester would have the burden of proof to show that the ICIF owner 

lacks definitive plans to use its capacity, and that the public interest under sections 210 

and 211 is better served by granting access to the third party than by allowing the ICIF 

owner to reserve its ICIF capacity for its own future use. They contend that the proposed 

presumption is effectively irrebuttable because the Commission’s determinations as to 

whether the ICIF owner and its affiliates have definitive plans have been based on 

confidential demonstrations available only to the ICIF owner and its affiliates. They note 

that the bar on any “expansion” during the safe harbor period may also foreclose all 

interconnections, even if the definitive plans presumption were somehow surmounted, 

because while the NOPR does not define the term “expansion,” modifications to the ICIF 

owner’s facilities will be necessary in any interconnection of a competitor’s generator.

136. NRECA argues that the Commission should not implement its proposed safe 

harbor creating a rebuttable presumption against transmission access for five years in 

cases where the customer requesting service on the ICIF needs it to serve load 

efficiently.217 NRECA states that load has little or minimal impact on the available 

capacity of ICIF, and, in many cases may actually increase the capability of ICIF with 

counterflow. NRECA states that the burden of proof should be on the ICIF owner to 

demonstrate that it has specific plans to use the transmission capacity in such a way that 

would prevent it from providing access to a load-serving transmission customer, adding 

 217 NRECA at 7.
Docket No. RM14-11-000 - 89 -

that the Commission cannot reasonably require a prospective customer to prove a 

negative – that the owner has no such plans – when all of the relevant information is in 

the hands of the owner.218 NRECA also argues that the Commission has not provided 

any justification for granting a five-year presumption against requiring an ICIF owner to 

expand its facilities to accommodate a service request when sections 210 and 211 of the 

FPA provide for potential increases in transmission capacity as necessary.219

137. On the other hand, AWEA and E.ON support the safe harbor concept but urge the 

Commission to consider removing the rebuttable presumption standard. E.ON expresses 

concern that the safe harbor the Commission proposes would not relieve the 

interconnection customer of the regulatory compliance burden, because a third party 

could still initiate the process under sections 210 and 211 during the safe harbor period 

and thus force the ICIF owner to demonstrate specific plans and milestones in order to 

sustain the rebuttable presumption.220 Further, while the NOPR proposed to rebuttably 

presume that an ICIF owner should not be required to expand the ICIF during the five-

 218 NRECA at 8.

219 NRECA at 8 (citing 16 U.S.C. 824i(a)(1) (“Upon application...the Commission 

may issue an order requiring...such increase in transmission capacity as may be 

necessary to carry out the purposes of any order under subparagraph (A) or (B)”); 16 

U.S.C. 824j(a) (“Any electric utility...may apply to the Commission for an order under 

this subsection requiring a transmitting utility to provide transmission services (including 

any enlargement of transmission capacity necessary to provide such services) to the 

applicant.”)).

220 E.ON at 10.
Docket No. RM14-11-000 - 90 -

year safe harbor period, E.ON argues that it is unclear how a rebuttable presumption 

would apply in that context and what might be rebutted. E.ON argues that what is clear 

is that the ICIF owner needs to be unencumbered during the safe harbor period, so that it 

may focus on developing and bringing online successive phases of new generation.221 

More generally, AWEA contends that if the generation developer dedicates the extra 

capital and builds ICIF that accommodate more capacity than needed for initial 

generation, it is because the generation developer plans to develop more generation in 

future phases. Accordingly, AWEA believes that removing the rebuttable presumption is 

appropriate because it will clarify that the generation developer and owner of the ICIF 

have sole use of the excess capacity, without the need to defend the right to that 

capacity.222

c. Commission Determination

138. We will adopt the safe harbor period, but we will modify it to remove the 

rebuttable presumption that the ICIF owner should not be required to expand its facilities. 

During the safe harbor period, there will be a rebuttable presumption that the eligible 

ICIF owner has definitive plans to use its capacity without having to make a 

demonstration through a specific plans and milestones showing. We believe this Final 

Rule will relieve regulatory burdens and unnecessary risks from generation developers to 

 221 E.ON at 11-12.

222 AWEA at 13.
Docket No. RM14-11-000 - 91 -

encourage the development of new generation and efficient interconnection facilities and 

promote competition while ensuring access to transmission on a not unduly 

discriminatory basis. Under this Final Rule, the ICIF owner gains a degree of protection 

through the reduced likelihood that a third-party requester could rebut the presumption

that an ICIF owner has plans to use all of its capacity. However, by making the 

presumption rebuttable rather than absolute, a third-party requester with strong evidence 

has the opportunity to gain access to the ICIF, even during the safe harbor. 

139. The proposal in the NOPR that the safe harbor period would also contain a 

rebuttable presumption that the ICIF owner should not have to expand its facilities was 

intended to provide generation developers an initial opportunity to establish their 

generation projects while limiting the burden and distraction of studying requests to 

expand its ICIF and potentially expanding those facilities to accommodate third party 

use. However, upon consideration of the comments, we believe such a rebuttable 

presumption could prevent third-party access without providing a substantial ease of 

burden for the ICIF owner.

223 We conclude that eliminating this presumption strikes an 

appropriate balance by providing certainty to an ICIF owner over its planned capacity 

without hindering expansion of the facility in question when a potential customer 

 223 We would expect that, in any order under sections 210 and 211, we would 

require the potential customer requesting expansion to pay all costs to study the request to 

expand and to take full responsibility for the costs to expand and operate the ICIF. 
Docket No. RM14-11-000 - 92 -

requesting that expansion is willing to carry the burden associated with that possible 

expansion.

140. With regard to NRECA’s argument that load-serving entities’ use of ICIF has 

minimal or positive impact on available ICIF capacity, we find that such arguments are 

based on an unlikely scenario that assumes away the intended function of the 

interconnection facilities at issue in this Final Rule. By definition, the facilities at issue 

are not part of the integrated transmission system, so it is a slim possibility that a loadserving entity would be in a position to make use of ICIF to serve load by counterflowing 

power relative to the generation associated with the ICIF. However, a load-serving 

entity may make arguments to support such a scenario in a proceeding under sections 210 

and 211.

2. Starting Point for the Safe Harbor Period

a. Commission Proposal

141. In the NOPR, the Commission proposed that the safe harbor period begin on the 

ICIF energization date. Because the energization date is not always publicly available, 

the Commission proposed that any eligible ICIF owner seeking to take advantage of the 

safe harbor must file an informational filing with the Commission (requiring no 

Commission action) documenting: (1) the ICIF energization date; (2) details sufficient 

to identify the ICIF at issue, such as location and Point of Interconnection;

224 and 

 224 See supra n. 19.
Docket No. RM14-11-000 - 93 -

(3) identification of the ICIF owner. For generators that are already operating as of the 

effective date of the Final Rule, the Commission proposed to allow them to seek safe 

harbor status by filing at the Commission to document the information listed above, and 

that the safe harbor would expire five years after the initial energization of their ICIF.225

b. Comments

142. E.ON, AWEA, First Wind, and NRG argue that ICIF energization is not the 

proper starting date for the safe harbor period and that the safe harbor period should 

instead begin when the first generating facility using the ICIF achieves commercial 

operation, the commercial operation date.226 E.ON argues that the point in the 

interconnection process where access to the grid begins is the appropriate starting point 

for the safe harbor period.

227 E.ON states that, prior to this, the interconnecting 

transmission owner’s interconnection facilities and network upgrades may not be 

complete and available for use and that all necessary interconnecting transmission 

owner’s network upgrades may not be scheduled for completion for years after the ICIF 

are energized.228 E.ON adds that, if the safe harbor begins on the ICIF energization date, 

 225 NOPR, FERC Stats. & Regs. ¶ 32,701 at P 56. 

226 The Commercial Operation Date is defined in the LGIP and LGIA as the date 

on which the Generating Facility commences generating electricity for sale, excluding 

electricity generated during on-site test operations and commissioning of the Generating 

Facility, as agreed to by the Parties pursuant to Appendix E to the Standard Large 

Generator Interconnection Agreement.

227 E.ON at 8.

228 E.ON at 9.
Docket No. RM14-11-000 - 94 -

it may only encourage energization to be delayed as long as possible in order to have as 

long a safe harbor period as is needed to support future phase’s priority use of the 

ICIF.229 

143. AWEA and First Wind explain that for many wind projects the ICIF may be 

energized well before commercial operation of the wind project begins in order to 

provide backfeed power to the construction site.

230 Accordingly, AWEA contends that 

the “energization date” would significantly limit the safe harbor period for phased 

development projects.231 First Wind and NRG argues that the commercial operation date 

not only provides a more appropriate starting date, but it also is a date that is routinely 

documented for other purposes (e.g., under Appendix E of the LGIA, the customer is 

required to provide written documentation of the commercial operation date, and power 

purchase agreements will have the commercial operation date.

232 NRG also argues that 

the commercial operation date is universally understandable.

233

144. NRG and Linden argue that the Commission should decline to adopt the 

requirement that owners of existing and new ICIFs submit an informational filing to get 

the benefit of the safe harbor provision. NRG argues that the Commission is already 

 229 E.ON at 9.

230 First Wind at 16.

231 AWEA at 15-16.

232 First Wind at 16 and NRG at 4.

233 NRG at 4.
Docket No. RM14-11-000 - 95 -

generally aware of the commercial operation date for interconnection facilities through 

market-based rate, exempt wholesale generator, and interconnection agreement filings. 

NRG further argues that the commercial operation date is an established and verifiable 

date, and interconnection facility owners are often required to provide notice of the 

commercial operation date to various parties under different project agreements. 

Additionally, third-parties that seek to interconnect can contact the ICIF owner directly 

and ask for the same information detailed in the informational filing, and ICIF owners 

can be required to provide the commercial operation date upon request. NRG argues that 

if there is any dispute regarding the commercial operation date, the third party can go to 

the Commission and seek clarification of the commercial operation date.

234 Linden 

argues that the informational filing proposal would simply require numerous public 

utilities to make filings that will never be needed until and unless an entity seeks service 

over the ICIF.235 It argues that no policy would be served by requiring public utilities to 

preserve rights through an otherwise unnecessary informational filing.236

145. MISO supports the Commission’s proposal to require interconnection customers 

to submit their ICIF energization date to the Commission. Currently, MISO 

interconnection customers submit their test dates, which are very close to the energization 

 234 NRG at 5.

235 Linden at 9-10.

236 Linden at 9-10.
Docket No. RM14-11-000 - 96 -

date, to MISO’s resource integration group as part of the Generator Interconnection 

Agreement milestones.237

c. Commission Determination

146. We will modify the proposal and will use the commercial operation date instead of 

the energization date. We find commenters’ argument convincing that the commercial 

operation date is the preferable starting point for the safe harbor period. The ICIF may be 

energized to provide needed backfeed power for construction equipment well before the 

first generator is ready to produce test power, thus shortening the safe harbor period and 

undermining the goal to give the generation project sufficient time to develop. Using the 

energization date would likely disadvantage certain developers who must energize their 

ICIF early in the construction process because of their particular circumstances, while 

other developers are not required to do so. Although commenters argue that the 

commercial operation date is frequently documented in other contexts, we are not aware 

of a publicly available source that would consistently provide the commercial operation

date for ICIF. Commenters’ suggestion that potential customers request information 

from the ICIF owner or seek relief from the Commission creates an unnecessary barrier 

to potential customers and is inconsistent with the transparency we require for other

elements of transmission and interconnection service. Accordingly, we will require, 

consistent with the NOPR proposal, that any eligible ICIF owner seeking to take 

 237 MISO at 6.
Docket No. RM14-11-000 - 97 -

advantage of the safe harbor must file an informational filing with the Commission 

(requiring no Commission action) stating: (1) the ICIF commercial operation date, as we 

define it below; (2) details sufficient to identify the ICIF at issue, such as location and 

Point of Interconnection; and (3) identification of the ICIF owner seeking to take

advantage of the safe harbor.

238 For ICIF that are already in commercial operation as of 

the effective date of the Final Rule, the ICIF owner may seek safe harbor status by filing 

at the Commission to provide the information listed above, and the safe harbor would 

expire five years after the commercial operation date of its ICIF. ICIF owners making 

such an informational filing should file under the following docket, Docket No.AD15-9-

000, so that any interested third party will be able to easily identify the relevant filing and 

determine when a safe harbor is applicable. We consider the commercial operation date 

of ICIF to be the date those facilities are first used to transmit energy for sale, excluding 

use for on-site testing and commissioning of the generating facility.

3. Length of the Safe Harbor Period

a. Commission Proposal

147. In the NOPR, the Commission 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 

 238 We do not intend to issue a public notice, accept comments, or issue an order 

on the informational filings.
Docket No. RM14-11-000 - 98 -

specific plans and milestones showing; and (2) the eligible ICIF owner should not be 

required to expand its facilities.239

b. Comments

148. Several commenters argue for a seven-year safe harbor period.240 EEI argues that 

a presumption of five years from the date the line is energized is only minimally 

sufficient and providing an additional two years of safe harbor protection would allow the 

eligible ICIF owner to focus on building generation and achieving commercial operation 

during the safe harbor period.241 NextEra argues that a safe harbor of five years 

effectively presumes that the second phase will be completed without any delays and that 

the developer will not pursue development in additional phases. NextEra argues that a 

seven-year safe harbor would more fully achieve the Commission’s stated goals.242 

EPSA and NRG agree that a seven-year period would better support ICIF project 

development, and argue that a seven-year time period is supported by section 3.3.1 of the 

pro forma LGIP under which the expected in-service date of a new generating facility or 

increase in capacity of an existing facility should not be more than seven years from the 

date the interconnection request is received by the transmission provider.243 SEIA states 

 239 NOPR, FERC Stats. & Regs. ¶ 32,701 at P 54.

240 EEI at 14; NextEra at 17; EPSA at 6-7; NRG at 3-4; and SEIA at 4.

241 EEI at 14.

242 NextEra at 17.

243 EPSA at 6-7 and NRG at 3-4.
Docket No. RM14-11-000 - 99 -

that a seven-year safe harbor period would ensure adequate time for financing and 

construction of additional generation capacity. SEIA asserts that analysis of the dozen 

largest solar projects expected to be online by 2016 reveals the median time from 

development to commercial operation is nearly six years. A seven-year safe harbor will 

ensure that most, if not all, future phases of a solar power plant can be constructed within 

the safe harbor timeframe.244

149. Some commenters argue for a ten-year safe harbor period. BHE also agrees that 

the proposed five-year duration is impractically short given the commercial and 

permitting realities generation developers face and, argues the safe harbor should be for 

ten years from the date that the ICIF is energized.245 AWEA argues that the proposed 

five-year period should be extended to ten years in order to reduce the risks encountered 

by generation developers developing phased generation projects. AWEA explains that 

often times a wind generation project may be planned in three or four phases, which 

could not reasonably be expected to reach completion in a five-year period. According to 

AWEA, a ten-year safe harbor period would provide developers the appropriate amount 

of time and reasonable incentive needed to develop the ICIF necessary for the 

development of new, cost-effective wind energy resources.246

 244 SEIA at 4.

245 BHE at 12-13.

246 AWEA at 15. 
Docket No. RM14-11-000 - 100 -

150. As discussed above, APPA, TAPS, and NRECA argue that the Commission 

should not implement a safe harbor period of any duration.247 Additionally, APPA and 

TAPS argue that the monopoly on ICIF will extend for longer than the five years of the 

safe harbor period.248 They argue that in order to avoid the safe harbor barrier, a 

requester must not file its application under sections 210 and 211 until after the five-year 

period. They point out that it will take some time for the Commission to issue a final 

order requiring interconnection and transmission service, and additional studies or 

modifications may be required even after a final order. Therefore, they contend, the 

proposed safe harbor effectively grants to the ICIF owner and its affiliates a monopoly 

over use of its ICIF for six years at a minimum. They argue that such a result cannot be 

harmonized with the Commission’s obligations to remedy undue discrimination in 

transmission service and its reliance on competitive markets to ensure just and reasonable 

wholesale prices.

c. Commission Determination

151. We adopt in this Final Rule the five-year safe harbor period. It represents a 

balancing of interests. On the one hand, we want to relieve regulatory burdens and 

unnecessary risks from generation developers to encourage the development of new 

generation and promote competition. On the other hand, we want to ensure not unduly 

 247 See supra PP 135-136.

248 APPA and TAPS at 15-16.
Docket No. RM14-11-000 - 101 -

discriminatory access to transmission which also promotes competition. We find that 

using the commercial operation date as the starting point for the safe harbor period 

eliminates some of the concerns regarding sufficient time for safe harbor protection. As 

such, we decline to increase the safe harbor period from five years to either seven or ten 

years.

152. We disagree with APPA and TAPS that the safe harbor protection is effectively a 

minimum of six years instead of five. That is, the rebuttable presumption that the ICIF 

owner has definitive plans to use its capacity, without having to make a demonstration 

through a specific plans and milestones showing, ends five years after the commercial 

operation date. The fact that it takes time to get service under sections 210 and 211 does 

not change the fact that, at the end of the five year safe harbor period, if there were to be 

an application under sections 210 and 211, the ICIF owner would need to show it has 

plans to use any remaining capacity on the ICIF and is making progress to completing 

those plans. In any event, we note that any request for interconnection or transmission 

service takes time to prepare and process, whether it is addressed to an ICIF owner 

pursuant to sections 210 and 211 or a public utility under its OATT. 
Docket No. RM14-11-000 - 102 -

E. Affiliate Concerns

1. Commission Proposal

153. In the NOPR,249 the Commission sought comments on whether to extend the 

proposed reforms to generators whose ownership or operation of transmission facilities is 

limited to ICIF, but who are affiliated with a public utility transmission provider and are 

within or adjacent to the public utility transmission provider’s footprint (ICIF-Owning 

Affiliates).250 

2. Comments 

154. Several commenters argue that ICIF-Owning Affiliates should be eligible for the 

blanket waiver.251 Commenters assert that excluding ICIF-Owning Affiliates from the 

proposed waivers would bestow an unfair advantage on their competitors without 

providing any regulatory benefits.252 Southern emphasizes that ICIF-Owning Affiliates

function separately from the public utility transmission provider and are independent 

generators.253 BHE argues that the same reasons that warrant the Commission replacing 

 249 NOPR, FERC Stats. & Regs. ¶ 32,701 at P 59.

250 For generators owned by a public utility transmission provider within its 

footprint, transmission service on the generator’s interconnection facilities has generally 

been governed by the public utility transmission provider’s OATT. See Puget Sound 

Energy, Inc., 133 FERC ¶ 61,160 (2010), reh’g denied 139 FERC ¶ 61,241 (2012).

251 Southern at 4-5; EEI at 11-13; BHE at 8-11; Sempra at 6-9; BP Wind 7-10; 

First Wind at 10; AWEA at 16; and NextEra 18-20. 

252 EEI at 9; BHE at 8-10; and Southern at 4-5.

253 Southern at 4-5.
Docket No. RM14-11-000 - 103 -

its current case-by-case approach to granting waivers apply irrespective of corporate 

structure.254 

155. BP Wind, Sempra, and First Wind take issue with the Commission’s stated 

concern in the NOPR that the generator’s vertically-integrated utility affiliate, if granted 

the blanket waiver, may take steps to structure its development projects to limit or deny 

access to transmission facilities. BP Wind emphasizes that there are various reasons why 

a company would place ownership of generation and associated generation 

interconnection facilities into a separate legal entity that are not in any way for the 

purpose of limiting access to generator interconnection facilities.255 First Wind argues 

that, as a practical matter, a transmission owner will not attempt to push facilities that are 

not properly defined as ICIF into the ICIF classification in order to remove them from 

availability under their OATTs or to secure priority rights, because it would violate the 

OATT and shift costs to the generation affiliate that would otherwise be recovered from 

OATT customers.256 Further, Sempra argues that the Commission has for years granted 

OATT waivers to ICIF-owning generators interconnected to their affiliated utility 

 254 BHE at 8-10.

255 BP Wind at 8-9.

256 First Wind at 10.
Docket No. RM14-11-000 - 104 -

systems because the facilities in question are sole-use, limited and discrete, radial in 

nature, and not part of an integrated transmission network.257 

156. Several commenters argue that there are sufficient protections already in place to 

deter such behavior. Sempra notes that the Commission-jurisdictional interconnection 

process and the Commission’s Standards of Conduct provide additional protections to 

affiliated and unaffiliated generators alike, and that further protection is provided when 

the interconnection process is administered by an RTO or ISO.258 Sempra also states that 

if the Commission is made aware that a vertically-integrated utility has structured its 

generation and interconnection facilities development in such a way that inappropriately 

limits access to those facilities, the Commission could, among other things, revoke the 

blanket waiver and safe harbor treatment for those facilities.259 Further, BHE asserts that 

affiliate restrictions and enforcement tools all function to achieve non-discriminatory 

access over ICIF for third parties and that the procedures under sections 210 and 211 of 

the FPA provide an extra level of protection.260 Southern agrees that the Commission’s 

concerns with respect to anti-competitive behavior by a transmission provider should be 

addressed by the Commission’s open access requirements, the Standards of Conduct, and 

 257 Sempra at 8 (citing the TDM Rehearing Request at n. 20, pointing to the 

then-significant number of OATT waivers granted to such affiliated entities as of 2003).

258 Sempra at 8.

259 Sempra at 8-9.

260 BHE at 10.
Docket No. RM14-11-000 - 105 -

the code of conduct.261 BHE contends that the Commission should extend eligibility for 

the proposed blanket waiver not only to affiliates of the transmission provider, but also to 

the wholesale generation function of a vertically-integrated utility, irrespective of 

whether the ICIF is physically located within or adjacent to the affiliated public utility 

transmission provider’s footprint.

262

157. BP Wind and AWEA argue that the Commission should at least extend eligibility 

of the blanket waiver to ICIF-owning Affiliates where they are geographically separate 

from the public utility transmission provider’s footprint.263 Southern, BP Wind, and 

NextEra question how ICIF-owning Affiliates will be treated if they do not receive the 

blanket waiver. Southern argues that a wholesale generator affiliate that is not a part of a 

vertically-integrated utility’s OATT, and whose ownership/operation of transmission 

facilities is limited to ICIF, should not be required to be added to the public utility’s 

OATT because this could shift the costs of the ICIF to native load customers of the 

transmission provider and create other complexities for the transmission provider (e.g., 

compliance with Standards of Conduct).264

158. BP Wind points out that excluding ICIF-owning Affiliates from the blanket waiver 

could disadvantage jointly owned projects, as unaffiliated generator owners would 

 261 Southern at 5.

262 BHE at 2, 10-11.

263 BP Wind at 7-8 and AWEA at 16.

264 Southern at 5.
Docket No. RM14-11-000 - 106 -

effectively lose the value associated with their blanket waiver if they share ownership in a 

common set of ICIF with a generator that is affiliated with a public utility transmission 

provider.265 Similarly, if the Commission declines to extend the blanket waiver to ICIFowning Affiliates, NextEra questions: (1) how ICIF-owning Affiliates could request the 

waiver on a case-by-case basis; (2) whether, without a waiver, each ICIF-owning 

Affiliate is required to file its own OATT, resulting in holding companies with numerous 

OATTs on file, even for facilities located in the affiliated public utility transmission 

provider’s footprint; and (3) whether the ICIF-owning Affiliates have to transfer 

ownership or control of their facilities to the affiliated public utility transmission 

provider.

266 In the event the Commission does extend the blanket waiver to ICIF-owning 

Affiliates, BHE asks the Commission to confirm that, in instances where a third party is 

granted a request for service under sections 210 and 211 over an incumbent utility 

generator’s ICIF, that incumbent utility generator can fulfill its access responsibility by 

transferring operational control and responsibility for the relevant ICIF to its transmission 

provider to ensure non-discriminatory access over the ICIF.267 Additionally, BHE asks

the Commission to clarify its expectations, in this scenario, as to whether the ICIF should 

 265 BP Wind at 8-9.

266 NextEra at 18-20.

267 BHE at 17-18.
Docket No. RM14-11-000 - 107 -

be treated by the transmission provider as Transmission Provider’s Interconnection 

Facilities and managed under Article 9.9.2 of the Commission’s pro forma LGIA.268 

159. Linden states that in the event that the Commission limits the applicability of the 

blanket waiver to non-affiliates, it requests that the Commission clarify that any such 

limitation would not apply to an affiliate of a merchant transmission provider.269

160. Southern and BHE also argue that the Commission should extend the safe harbor 

protection to ICIF-owning Affiliates because such generators are similarly situated to and 

operate the same as other wholesale generators. Southern believes that all wholesale 

generators and ICIF owners would benefit from the proposed safe harbor period.270 BHE 

requests that the Commission also extend eligibility for the safe harbor presumption to 

incumbent utility generators.271 BHE asserts that wholesale generator ICIF owners share 

the same commercial risks of having their specific generation expansion plans preempted by a competing unaffiliated generation developer and burden of pursuing a 

declaratory order from the Commission in order to reserve capacity for their future 

plans.272 According to BHE, any concerns with extending the safe harbor presumption 

beyond non-affiliates are reasonably mitigated without limiting the presumption to non-

 268 BHE at 17-18.

269 Linden at 8-9.

270 Southern at 6.

271 BHE at 13.

272 BHE at 14.
Docket No. RM14-11-000 - 108 -

affiliated ICIF owners. BHE explains that under Commission rules, all generators 

seeking transmission interconnection and/or transmission service are to be treated 

comparably. BHE further notes that employees of a public utility with captive customers 

and its affiliates with market-based rate authority are to operate separately to the 

maximum extent practical.273 BHE also contends that it would be unduly discriminatory 

to deny incumbent utility generator and ICIF-owning Affiliates identical access to the 

safe harbor presumption, given that existing policy is equally burdensome, and creates 

the same regulatory uncertainty with respect to priority rights for all ICIF owners.274

161. BHE argues that, at a minimum, eligibility for the proposed safe harbor 

presumption should be extended to ICIF-owning Affiliates.275 BHE also argues that the 

safe harbor presumption should be applied to ICIF-owning Affiliates irrespective of 

whether the ICIF is physically located within or adjacent to the affiliated public utility 

transmission provider’s footprint.276

162. In contrast, some commenters argue that the Commission should not extend the

proposed reforms to entities that are affiliated with a public utility transmission 

provider.277 APPA and TAPS contend that the NOPR’s treatment of affiliates is 

 273 BHE at 15.

274 BHE at 16.

275 BHE at 3-4.

276 BHE at 3-4.

277 APPA and TAPS at 16-17 and NRECA at 9-10. 
Docket No. RM14-11-000 - 109 -

inconsistent and contrary to the Commission’s market-based rate policies which have 

been crafted over decades to protect customers from the use of control over transmission 

facilities to erect barriers to competition in favor of the owner’s corporate family.278 

They state that, while the NOPR does not consider the ICIF owner’s affiliates in defining 

eligibility for the blanket waiver or safe harbor, potentially even if the ICIF owner’s 

affiliate is a transmission provider, the Commission proposes to continue its policy of 

allowing the ICIF owner to point to its affiliate’s planned usage to demonstrate definitive 

plans to use any remaining ICIF capacity after the safe harbor period.279 APPA and 

TAPS argue that by ignoring affiliates in determining eligibility for waiver or safe harbor 

while allowing ICIF owners to use those same affiliates to fend off third-party access, the 

NOPR would incent utilities to organize their corporate structures to maximize their 

opportunities to block third-party competitive generation.

163. APPA and TAPS also contend that transmission providers are already “in the 

business of providing transmission service” and are subject to Standards of Conduct, and 

thus face no significant additional burden from the requirements the Commission

proposes to waive. NRECA adds that such entities should not be granted privileges that 

are intended for generators that are completely independent of transmission providers. 

They argue that if extended to affiliates of transmission providers, the proposed reforms 

 278 APPA and TAPS at 16-17.

279 APPA and TAPS at 17 (citing to NOPR, FERC Stats. & Regs. ¶ 32,701

proposed section 35.28(d)(2)(ii)(A)).
Docket No. RM14-11-000 - 110 -

would incent transmission providers to structure generation and ICIF development to 

avoid open access and transmission planning obligations.280

164. APPA and TAPS contend that any ICIF policy changes should exclude affiliates 

of transmission providers from eligibility for the blanket waiver or safe harbor status at 

least within the transmission provider’s planning region.281 They argue that requiring 

transmission provider-affiliated ICIF owners within the transmission provider’s planning 

region to utilize the transmission provider’s existing OATT processes, rather than 

artificially walling-off such ICIF from access and transmission planning and expansion 

obligations, is necessary to prevent the transmission provider from evading its affirmative 

obligation to work within its transmission planning region to create a regional 

transmission plan. They assert that, at an absolute minimum, ICIF owners affiliated with 

transmission providers should be excluded from the blanket waiver and safe harbor as to 

any ICIF within the transmission provider’s footprint or an adjacent system.282

3. Commission Determination

165. We conclude that the blanket waiver and safe harbor should apply to a public 

utility transmission provider’s affiliates whose ownership/operation of transmission 

facilities is limited to ICIF, regardless of geographic location. An ICIF-Owning Affiliate, 

as we use the term here, is a corporate entity that is separate from, and functions 

 280 APPA and TAPS at 18 and NRECA at 9-10.

281 APPA and TAPS at 25-27.

282 APPA and TAPS at 26-27.
Docket No. RM14-11-000 - 111 -

independently from, an affiliated public utility transmission provider that owns, controls, 

or operates non-ICIF transmission facilities. As such, the ICIF-Owning Affiliate is 

comparable to other independent generation companies that own ICIF within the public 

utility transmission provider’s footprint. Like other independent generation companies, 

an ICIF-Owning Affiliate faces the risk and potential burden of having to file an OATT if 

it receives a third-party request for service. The undue discrimination provisions of 

section 205 and section 206 and the Commission’s existing Standards of Conduct rules 

should prevent undue discrimination and ensure that the transmission provider’s open 

access and transmission planning obligations are not circumvented. However, we decline 

to extend the blanket waiver to ICIF that are controlled or operated by the generation 

units of vertically-integrated public utilities (Generation Functions), as requested by 

BHE. 

166. We disagree with APPA and TAPS that extending the reforms adopted herein to 

ICIF-Owning Affiliates would constitute a departure from the Commission’s 

requirements that transmission service be not unduly discriminatory. Sections 205 and 

206 of the FPA continue to govern the behavior of the ICIF-Owning Affiliates and public 

utility transmission providers after the reforms adopted herein become effective. 

Therefore, ICIF-Owning Affiliates and public utility transmission providers are 

prohibited from engaging in unduly preferential or unduly discriminatory behavior. In 

addition, the independent functioning and transparency requirements of the Standards of 

Conduct under Part 358 of the Commission’s regulations impose specific requirements 

governing the relationship between the ICIF-Owning Affiliates and the transmission 
Docket No. RM14-11-000 - 112 -

provider.283 While a waiver of the Standards of Conduct for the ICIF-Owning Affiliate 

would relieve it of the obligation to comply with the Standards of Conduct that require 

separation of transmission and marketing functions, that waiver has no effect on the 

transmission provider’s obligation to comply with the Standards of Conduct consistent 

with Part 358 of the Commission’s regulations.284 The Standards of Conduct also 

require, among other things, a transmission provider to treat all transmission customers, 

affiliated and non-affiliated, on a not unduly discriminatory basis, and prohibits the 

transmission provider from making or granting any undue preference or advantage to any 

person with respect to the transmission or sale of electric energy.285 

167. We disagree with APPA and TAPS’ claim that granting the waiver to ICIFOwning Affiliates would be inconsistent and contrary to the Commission’s market-based 

rate policies by failing to consider the ICIF-Owning Affiliates in defining eligibility for 

market-based rates. The Commission considers the ICIF-Owning Affiliates when 

granting market-based rate authority. The market-based rate requirement under 

section 35.37(d) requires a seller that owns, operates, or controls transmission facilities, 

or whose affiliates own, operate, or control transmission facilities, to have on file with the 

 283 18 CFR pt. 358.

284 ICIF Generator Affiliates are typically making sales for resale in interstate 

commerce and meet the Commission’s definition of marketing affiliates. See

18 CFR 358.3(a) and (c).

285 18 CFR 358.4.
Docket No. RM14-11-000 - 113 -

Commission an OATT as described in section 35.28. However, the Commission allows 

sellers to rely on Commission-granted OATT waivers to satisfy the vertical market power 

part of the requirement.286 As noted above,287 the waiver in section 35.28(d)(2) is an 

additional way in which to satisfy the vertical market power requirements for 

transmission. Market-based rate authority is conditioned on compliance with the 

Affiliate Restrictions in section 35.39 of the Commission’s regulations. Like the 

Standards of Conduct, the Affiliate Restrictions include independent functioning 

requirements as well as information sharing prohibitions.288 Thus, with the statutory 

prohibitions and implementing regulations, public utility transmission providers are not 

permitted to organize their corporate structures in a way that would block third-party 

competitive generation. 

168. Moreover, we note that entities may file a complaint under section 206 with the 

Commission if they believe discrimination is occurring. Also, in determining whether a 

 286 Market-Based Rates for Wholesale Sales of Electric Energy, Capacity and 

Ancillary Services by Public Utilities, Order No. 697, 72 FR 39904 (July 20, 2007), 

FERC Stats. & Regs. ¶ 31,252 at P 408, clarified, 121 FERC ¶ 61,260 (2007), clarified, 

124 FERC ¶ 61,055, order on reh’g, Order No. 697-A, 73 FR 25832 (May 7, 2008), 

FERC Stats. & Regs. ¶ 31,268, order on reh’g, Order No. 697-B, 73 FR 79610 

(Dec. 30, 2008), FERC Stats. & Regs. ¶ 31,285 (2008), order on reh’g, Order No. 697-C, 

74 FR 30924 (June 29, 2009), FERC Stats. & Regs. ¶ 31,291 (2009), order on reh’g, 

Order No. 697-D, 75 FR 14342 (Mar. 25, 2010), FERC Stats. & Regs. ¶ 31,305 (2010), 

aff’d sub nom. Mont. Consumer Counsel v. FERC, 659 F.3d 910 (9th Cir. 2011), cert. 

denied, 133 S. Ct. 26 (2012).

287 See supra P 57.

288 See 18 CFR 35.39(c) and § 35.39(d).
Docket No. RM14-11-000 - 114 -

third party has rebutted the presumption under this Final Rule that an ICIF owner has 

definitive plans to use excess capacity on the ICIF during the safe harbor period, the 

affiliate relationship between the ICIF owner and a public utility transmission provider 

may be a factor in that determination. Finally, as a backstop, we note that the 

Commission possesses ample statutory remedies to address violations of the applicable

regulations and statutes. As noted by Sempra, if the Commission became aware that a 

public utility transmission provider and an ICIF-Owning Affiliate structured their

transmission, generation, and interconnection facilities development in such a way that 

inappropriately limits access to those facilities, the Commission could, among other 

things, revoke the blanket waiver and safe harbor treatment for the ICIF-Owning 

Affiliate. Accordingly, the Commission’s existing rules, in concert with other tools 

available to hold entities accountable, are sufficient to ensure comparable treatment of 

affiliates and non-affiliates, and enforce the Commission’s requirements prohibiting 

undue discrimination without the provisions waived through this Final Rule. 

169. We find that it is not appropriate to grant the blanket waiver to Generation 

Functions. The public utility transmission provider has certain rights and obligations, one 

of which is to administer the transmission grid pursuant to its existing OATT. Where a 

Generation Function of the public utility transmission provider is an ICIF owner, we find 

it appropriate, in the event of a third-party request, for the request to be processed 

pursuant to its affiliated public utility transmission provider’s OATT. 
Docket No. RM14-11-000 - 115 -

F. Miscellaneous

1. Treatment of Line Losses on ICIF

a. Comments

170. NRG requests that the Commission explicitly state that all transmission line losses 

associated with a third party gaining access to an incumbent owner’s interconnection 

facility be borne solely by the third party. NRG argues that as more capacity is 

transmitted on these interconnection facilities and the excess capacity on these facilities 

diminishes, line losses will continue to increase to the detriment of the incumbent 

interconnection facility owner.289

b. Commission Determination

171. We find the NRG’s argument to be beyond the scope of the proceeding. 

Treatment of line losses on ICIF should be negotiated between the parties using the ICIF.

2. Applicability of the Commission’s “Prior Notice” Policy

a. Comments

172. First Wind and Invenergy ask the Commission to confirm that its Prior Notice

policy290 also applies to requests for ICIF access. In Prior Notice, the Commission, 

among other things, found that transmission study contracts and charges, while 

jurisdictional, do not have to be filed unless they are the subject of a complaint filed by 

 289 NRG at 6.

290 Prior Notice and Filing Requirements Under Part II of the Federal Power Act 

64 FERC ¶ 61,139, clarified, 65 FERC ¶ 61,081, at 61,508 (1993) (Prior Notice).
Docket No. RM14-11-000 - 116 -

the transmission requester under section 206 of the Federal Power Act alleging that the 

rates charged for a transmission feasibility study are unjust, unreasonable or unduly 

discriminatory, or preferential. First Wind and Invenergy contend that the Commission 

should confirm that this Prior Notice policy applies not only to transmission requests 

under section 211, but also to interconnection requests under section 210 and to any 

requests for ICIF access.291

b. Commission Determination

173. We decline to address the Commission’s filing requirements as they are beyond 

the scope of the proceeding. 

3. Technical Aspects of Interconnection

a. Comments

174. BHE states that third-party access to an ICIF should only be allowed at a point 

past the high side (transmission side) of a collector bus, and not on the low side 

(generator side) of the collector bus. It argues that such access to the generator side of 

the collector introduces technical system protection and control complexities that would 

be impractical to accommodate, requiring an inordinate amount of coordination between 

interconnecting generation projects and may even compromise the reliability of the 

interconnecting facilities.292

 291 First Wind at 12-14 and Invenergy at 12-13.

292 BHE at 19.
Docket No. RM14-11-000 - 117 -

b. Commission Determination

175. We find BHE’s argument to be beyond the scope of the proceeding. Disputes 

regarding technical requirements of the reliable interconnection of third-party generators 

should be addressed in particular proceedings under sections 210 and 211. 

4. Implementation

176. For those entities that satisfy the eligibility requirements set forth in this Final 

Rule, the blanket waiver will be effective as of the effective date of this Final Rule. For 

those entities that must file a statement of compliance with section 210 of the FPA in 

order to achieve eligibility, the blanket waiver will be effective as of the latter of the 

effective date of this Final Rule or the date the statement of compliance is filed. If an 

entity has a case-specific request for waiver of OATT requirements pending as of the date 

that the entity becomes eligible for the blanket waiver, the blanket waiver will apply as of 

that date, and the entity should file to withdraw the waiver request to the extent it has 

been rendered moot by the blanket waiver. As discussed in section IV.B.7 above, an 

entity that has already been issued a waiver of the same requirements waived by the 

blanket waiver and is eligible for the blanket waiver will be deemed to be operating under 

the blanket waiver without further filings necessary with respect to the issued waiver. 

However, as discussed in section IV.B.8 above, the blanket waiver will have no 

automatic impact on existing OATTs that govern service requests over ICIF, although the 

Commission will consider a request to withdraw an OATT on a case-by-case basis if no 

third parties are taking service under it. With respect to the informational statement

regarding the commercial operation date of the ICIF discussed in section IV.D.2 above, 
Docket No. RM14-11-000 - 118 -

we note that such statement need only be filed if the ICIF owner seeks to take advantage 

of the five-year safe harbor period.

V. Information Collection Statement

177. The Office of Management and Budget (OMB) regulations require approval of 

certain information collection and data retention requirements imposed by agency 

rules.293 Upon approval of a collection(s) 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 these collections of information 

unless the collections of information display a valid OMB control number. 

178. The Commission is submitting the proposed modifications to its information 

collections to OMB for review and approval in accordance with section 3507(d) of the 

Paperwork Reduction Act of 1995.294 In the NOPR, the Commission solicited comments 

on the Commission’s need for this information, whether the information will have 

practical utility, the accuracy of the burden estimates, ways to enhance the quality, utility, 

and clarity of the information to be collected or retained, and any suggested methods for 

minimizing respondents’ burden, including the use of automated information techniques. 

The Commission included a table that listed the estimated public reporting burdens for 

 293 5 CFR 1320.11(b) (2013).

294 44 U.S.C. 3507(d) (2012).
Docket No. RM14-11-000 - 119 -

the proposed reporting requirements, as well as a projection of the costs of compliance 

for the reporting requirements.

179. The Commission did not receive any comments specifically addressing the burden 

estimates provided in the NOPR. However, the Commission has made changes to its 

proposal that are adopted in this Final Rule. 

180. First, the regulations adopted in the Final Rule give a blanket waiver of OATT, 

OASIS, and Standards of Conduct filing requirements, to all ICIF owners, including 

those that do not sell electric energy. Under the Final Rule, an ICIF owner that does not 

sell electric energy is required to make an informational filing stating that it commits to 

comply with and be bound by the obligations and procedures applicable to electric 

utilities under section 210 of the FPA in order to receive the blanket waiver. We have 

increased the burden estimate in the table below to reflect this filing. 

181. Second, the Commission revised the beginning of the safe harbor period from the 

ICIF energization date to the ICIF commercial operation date. The Commission 

recognizes that most ICIF owners will likely make a brief notification filing 

documenting: (1) the ICIF commercial operation date; (2) details sufficient to identify 

the ICIF at issue, such as location and Point of Interconnection; and (3) identification of 

the ICIF owner. However, because the filing is similar to that proposed in the NOPR, we 

are not modifying the estimated public reporting burdens for this proposed reporting

requirement in the table below. The Commission believes that the revised burden 

estimates below are representatives of the average burden on respondents.
Docket No. RM14-11-000 - 120 -

RM14-11 (Open Access and Priority Rights on Interconnection Customer’s Interconnection Facilities)

Number of 

Respondents

(1)

Annual 

Number of 

Responses 

per 

Respondent

(2)

Total 

Number of 

Responses 

(1)*(2)=(3)

Average 

Burden & 

Cost Per 

Response295

(4)

Total Annual 

Burden 

Hours & 

Total Annual 

Cost

(3)*(4)=(5)

Average Cost 

per 

Respondent

($)

(5)÷(1)

Individual 

Requests for 

Waiver (FERC917)

16 -1 -16 10

$947

-160

-$15,146

-$947

OATT Filings 

(FERC-917)

1 -1 -1 100

$9,466

-100

-$9,466

-$9,466

Petitions for 

Declaratory 

Order requesting 

priority rights

(FERC-582)

1 -1 -1 30

$2,840

-30

-$2,840

-$2,840

Safe Harbor 

Commercial 

Operation Date 

Filing (average 

of first three 

years)296

(FERC-917)

39 1 39 1

$95

39

$3,692

$95

 295 The estimates for cost per response are derived using the following formula: 

Average Burden Hours per Response * $94.66 per Hour = Average Cost per Response. 

The hourly cost figure represents a combined hourly rate of an attorney ($131.00), 

economist ($71.00), engineer ($65.34), and administrative staff ($38.63), with a 50 

percent weighting on the attorney’s rate (i.e. [$131(1/2) + $71.00(1/6) + $65.34(1/6) + 

$38.63(1/6)]/4 = $94.66. The estimated hourly costs (salary) are based on Bureau of 

Labor and Statistics information (available at

http://www.bls.gov/oes/current/naics2_22.htm, and are adjusted to include benefits by 

assuming that salary accounts for 68.7 percent of total compensation). See

http://www.bls.gov/news.release/ecec.nr0.htm.

296 The average number of filings for the first three years is computed as follows. 

The Commission expects approximately 80 safe harbor filings in the first year, which 

represents the number of waiver filings over a historical five-year period and thus the 

approximate number of existing entities which will be able to take advantage of the 

five- year safe harbor period as of the effective date of the Final Rule in this proceeding. 

In the subsequent two years, the Commission expects approximately 18 safe harbor 

filings per year, which represents the historical number of OATT waiver filings (16), 

OATT filings (1), and petitions for declaratory order (1) per year. Going forward, we 

(continued...)
Docket No. RM14-11-000 - 121 -

ICIF Owner that 

Does Not Sell 

Electric Energy 

Filing to 

Receive Blanket 

Waiver (average 

of first three 

years)297

(FERC-917)

19 1 19 1

$95

19

$1,799

$95

TOTAL 40 -232

-$21,961

-$13,063

Cost to Comply: The Commission has projected the cost of compliance with the safe 

harbor commercial operation date filing to be $7,573 in the initial year and $1,704 in 

subsequent years, as new ICIF owners make safe harbor filings for their new projects. In 

addition, the Commission has projected the cost of compliance for ICIF owners that do 

 

would expect the entities complying with the Final Rule would avoid these filings and 

that the relevant entities would instead avail themselves of the safe harbor period. The 

average of the three-year period then is (80 + 18 + 18) / 3 = 39.

297 The average number of filings for the first three years is computed as follows. 

The Commission expects approximately 40 section 210 applicability filings in the first 

year, which represents half the number of waiver filings over a historical five-year 

period. The Commission does not know the precise number of existing ICIF owners that 

do not sell electric energy. Of the 80 ICIF owner that have requested waiver in the past 

five years, the Commission reasons that some share of them do not sell electric energy, 

and we use 50 percent as an estimate. While there is no five year limitation that applies 

to entities that may make this filing, we reason that this issue, while not new, has become 

more relevant in recent years because of an increase in generation owners retaining 

control of their ICIF; hence, we are not including in our estimate any estimate of the 

number of ICIF owners that do not sell electric energy that would have requested waiver 

prior to 2010. In the subsequent two years, the Commission expects approximately nine 

section 210 applicability filings per year, which represents half the historical number of 

OATT waiver filings (16), OATT filings (1), and petitions for declaratory order (1) per 

year. Going forward, we would expect the entities complying with the Final Rule would 

avoid these filings and that the relevant entities would instead avail themselves of the 

blanket ICIF waiver. The average of the three-year period then is (40 + 9 + 9) / 3 = 19.
Docket No. RM14-11-000 - 122 -

not sell electric energy to make an informational filing stating that it commits to comply 

with and be bound by the obligations and procedures applicable to electric utilities under 

section 210 of the FPA in order to receive the blanket waiver to be $3,786 in the initial 

year and $852 in subsequent years, as new ICIF owners make such filings. This is offset 

by the reduction in burden associated with the waiver of filing requirements of $27,452 

per year. As an average for the first three years, this amounts to a net reduction in burden 

of $21,961.

Total Annual Hours for Collection in initial year (120 hours) @ $94.66 an hour = 

$11,359

Total Annual Hours for Collection in subsequent years (27 hours) @ $94.66 an hour = 

$2,556.

Total Annual Hours for Reduced Collection per year (290 hours) @ $94.66 an hour = 

$27,452.

Title: FERC-582, Electric Fees and Annual Charges; FERC-917, Non-Discriminatory 

Open Access Transmission Tariff.

Action: Revision of Currently Approved Collection of Information.

OMB Control No. 1902-0132; 1902-0233.

Respondents for this Rulemaking: Businesses or other for profit and/or not-for-profit 

institutions.

Frequency of Information: As indicated in the table.

Necessity of Information: The Commission is adopting these changes to its regulations 

related to which entities must file the pro forma OATT, establish and maintain an 
Docket No. RM14-11-000 - 123 -

OASIS, and abide by its Standards of Conduct in order to eliminate unnecessary filings 

and increase certainty for entities that develop generation. The purpose of this Final Rule 

is to reduce regulatory burdens and promote development while continuing to ensure 

open access to transmission facilities. The safe harbor commercial operation date filing 

is necessary to ensure transparency as to the applicability of the safe harbor period.

Internal Review: The Commission has reviewed the proposed changes and has 

determined that the changes are necessary. These requirements conform to the 

Commission’s need for efficient information collection, communication, and 

management within the energy industry. The Commission has assured itself, by means of 

internal review, that there is specific, objective support for the burden estimates 

associated with the information collection requirements.

182. Interested persons may obtain information on the reporting requirements by 

contacting the following: Federal Energy Regulatory Commission, 888 First Street, NE, 

Washington, DC 20426 [Attention: Ellen Brown, Office of the Executive Director], 

e-mail: DataClearance@ferc.gov, Phone: (202) 502-8663, fax: (202) 273-0873.

183. Comments on the requirements of this Final Rule can be sent to the Office of 

Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street, 

NW, Washington, DC 20503 [Attention: Desk Officer for the Federal Energy 

Regulatory Commission]. For security reasons, comments to OMB should be submitted 

by e-mail to: oira_submission@omb.eop.gov. Comments submitted to OMB should 

include Docket No. RM14-11-000 and OMB Control No. 1902-0132 and/or 1902-0233.
Docket No. RM14-11-000 - 124 -

VI. Regulatory Flexibility Act Analysis

184. The Regulatory Flexibility Act of 1980 (RFA)298 generally requires a description 

and analysis of final rules that will have a significant economic impact on a substantial 

number of small entities. The Small Business Administration (SBA) revised its size 

standard (effective January 22, 2014) for electric utilities from a standard based on 

megawatt hours to a standard based on the number of employees including affiliates.

299 

Under SBA’s new size standards, ICIF owners likely come under the following 

category and associated size threshold: Electric bulk power transmission and control, at 

500 employees.300 The Final Rule states that approximately 80 entities will be 

affected by the changes imposed. Of these, the Commission estimates that approximately 

93.1 percent301 or 75 of these are small entities. In the Final Rule, the Commission 

estimates that, on average, each of the small entities to whom the Final Rule applies will 

incur one-time costs of $142 in order to: (1) document its commercial operation date and 

 298 5 U.S.C. 601-612 (2014).

299 SBA Final Rule on “Small Business Size Standards: Utilities,” 78 FR 77,343 

(Dec. 23, 2013).

300 13 CFR 121.201, Sector 22, Utilities. 

301 The Small Business Administration sets the threshold for what constitutes a 

small business. Public utilities may fall under one of several different categories, each 

with a size threshold based on the company’s number of employees, including affiliates, 

the parent company, and subsidiaries. The possible categories for the applicable entities 

have a size threshold ranging from 250 employees to 1,000 employees. For the analysis 

in this final rule, we are using the 500 employee threshold for each applicable entity type.
Docket No. RM14-11-000 - 125 -

thus avail itself of the safe harbor provision; and, (2) if the entity does not sell electricity, 

commit to comply with section 210 of the FPA.302 This is true for those existing entities 

that have already received waiver of the OATT prior to the issuance of the Final 

Rule, as well as for new entities. This cost will be offset for new entities by, on 

average, $1,525.303 As the Commission has previously explained, in determining 

whether a regulatory flexibility analysis is required, the Commission is required to 

examine only direct compliance costs that a rulemaking imposes on small business.304 It 

is not required to examine indirect economic consequences, nor is it required to consider 

costs that an entity incurs voluntarily. The Commission does not consider the estimated 

costs per small entity to have a significant economic impact on a substantial number of 

small entities. Accordingly, the Commission certifies that the Final Rule will not have a 

significant economic impact on a substantial number of small entities. 

VII. Document Availability

185. 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 

 302 See supra n. 298. We estimate that all affected entities will make the safe 

harbor filing, but that only half do not sell electric energy and thus need to make the 

commitment to comply with section 210 of the FPA. Thus, $142 = (1)x($94.66) + 

(1/2)x($94.66).

303 This reduced burden amount is calculated by taking the total estimated burden 

reduction per year, $27,452, and dividing by 18, the estimated number of filings avoided 

because of the new regulations.

304 Credit Reforms in Organized Wholesale Electric Markets, 133 FERC ¶ 61,060, 

at P 184 (2010).
Docket No. RM14-11-000 - 126 -

contents of this document via the Internet through FERC's Home Page 

(http://www.ferc.gov) and in FERC's Public Reference Room during normal business 

hours (8:30 a.m. to 5:00 p.m. Eastern time) at 888 First Street, NE, Room 2A, 

Washington, DC 20426.

186. From FERC's Home Page on the Internet, this information is available on 

eLibrary. The full text of this document is available on eLibrary in PDF and Microsoft 

Word format for viewing, printing, and/or downloading. To access this document in 

eLibrary, type the docket number excluding the last three digits of this document in the 

docket number field.

187. User assistance is available for eLibrary and the FERC’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. E-mail the Public Reference Room at 

public.referenceroom@ferc.gov.

VIII. Effective Date and Congressional Notification

These regulations are effective [INSERT DATE 90 days after publication in the 

FEDERAL REGISTER]. 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
Docket No. RM14-11-000 - 127 -

Enforcement Act of 1996. The Commission will submit this Final Rule to both houses of 

Congress and the Government Accountability Office.

List of subjects in 18 CFR Part 35 

Electric power rates; Electric utilities; Reporting and record-keeping requirements

The Commission orders:

By the Commission.

( S E A L )

Nathaniel J. Davis, Sr.,

Deputy Secretary.
Docket No. RM14-11-000 - 128 -

In consideration of the foregoing, the Commission amends Part 35, Chapter I, Title 18, 

Code of Federal Regulations, as follows:

PART 35—FILING OF RATE SCHEDULES AND TARIFFS

1. The authority citation for part 35 continues to read as follows: 

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

7352.

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

§ 35.28 Non-discriminatory open access transmission tariff.

* * * * *

(d) Waivers. (1) A public utility subject to the requirements of this section and 

18 CFR parts 37 (Open Access Same-Time Information System) and 358 

(Standards of Conduct for Transmission Providers) may file a request for waiver 

of all or part of such requirements for good cause shown.

(2) The requirements of this section, 18 CFR parts 37 (Open Access SameTime Information System) and 358 (Standards of Conduct for Transmission 

Providers) are waived for any public utility that is or becomes subject to such 

requirements solely because it owns, controls, or operates Interconnection 

Customer’s Interconnection Facilities, in whole or in part, as that term is defined 

in the standard generator interconnection procedures and agreements referenced in 

paragraph (f) of this section, or comparable jurisdictional interconnection facilities 

that are the subject of interconnection agreements other than the standard 
Docket No. RM14-11-000 - 129 -

generator interconnection procedures and agreements referenced in paragraph (f) 

of this section, if the entity that owns, operates, or controls such facilities either (a) 

sells electric energy, or (b) files a statement with the Commission that it commits 

to comply with and be bound by the obligations and procedures applicable to 

electric utilities under section 210 of the Federal Power Act. 

(i) The waivers referenced in this paragraph (d)(2) shall be deemed to be 

revoked as of the date the public utility ceases to satisfy the qualifications of this 

paragraph (d)(2), and may be revoked by the Commission if the Commission 

determines that it is in the public interest to do so. After revocation of its waivers, 

the public utility must comply with the requirements that had been waived within 

60 days of revocation. 

(ii) Any eligible entity that seeks interconnection or transmission services with 

respect to the interconnection facilities for which a waiver is in effect pursuant to 

this paragraph (d)(2) may follow the procedures in sections 210, 211, and 212 of 

the Federal Power Act, 18 CFR 2.20, and 18 CFR part 36. In any proceeding 

pursuant to this paragraph (d)(2)(ii):

(A) The Commission will consider it to be in the public interest to grant priority 

rights to the owner and/or operator of interconnection facilities specified in this 

paragraph (d)(2) to use capacity thereon when such owner and/or operator can 

demonstrate that it has specific plans with milestones to use such capacity to 

interconnect its or its affiliate’s future generation projects.
Docket No. RM14-11-000 - 130 -

(B) For the first five years after the commercial operation date of the

interconnection facilities specified in this paragraph (d)(2), the Commission will 

apply the rebuttable presumption that the owner and/or operator of such facilities 

has definitive plans to use the capacity thereon, and it is thus in the public interest 

to grant priority rights to the owner and/or operator of such facilities to use 

capacity thereon.
Docket No. RM14-11-000 - 131 -

Note: Appendix A will not be published in the Code of Federal Regulations.

Appendix A: List of Short Names of Commenters on the Notice of Proposed 

Rulemaking 

Commenter (Short Name or Acronym)

American Public Power Association and Transmission Access Policy Study Group

(APPA and TAPS)

American Wind Energy Association (AWEA)

Berkshire Hathaway Energy Company (BHE)

BP Wind Energy North America Inc. (BP Wind)

California Department of Water Resources State Water Project (SWP)

Cogen Technologies Linden Venture, L.P. (Linden)

DTE Energy Company (DTE)

Edison Electric Institute (EEI)

Electric Power Supply Association (EPSA)

Electricity Consumers Resource Council (ELCON)

E.ON Climate & Renewables North America (E.ON)

First Wind Energy, LLC (First Wind)

Invenergy Wind LLC, Invenergy Wind Development LLC, and Invenergy Thermal 

Development LLC (Invenergy)

ITC Transmission, Michigan Electric Transmission Company, LLC, ITC Midwest, LLC, 

and ITC Great Plains, LLC (ITC)

Midcontinent Independent System Operator, Inc. (MISO)

MISO Transmission Owners (MISO TOs)

National Rural Electric Cooperative Association (NRECA)
Docket No. RM14-11-000 - 132 -

NextEra Energy, Inc. (NextEra)

Northern California Power Agency (NCPA)

The NRG Companies (NRG)

Recurrent Energy (Recurrent)

Sempra U.S. Gas & Power, LLC (Sempra)

Solar Energy Industries Association (SEIA)

Southern Company Services, Inc. (Southern)

Terra-Gen Dixie Valley, LLC (Terra-Gen)