C.F.R. » Title 18 » CHAPTER I—FEDERAL ENERGY REGULATORY COMMISSION, DEPARTMENT OF ENERGY › SUBCHAPTER K—REGULATIONS UNDER THE PUBLIC UTILITY REGULATORY POLICIES ACT OF 1978 › PART 292—REGULATIONS UNDER SECTIONS 201 AND 210 OF THE PUBLIC UTILITY REGULATORY POLICIES ACT OF 1978 WITH REGARD TO SMALL POWER PRODUCTION AND COGENERATION › Subpart B—Qualifying Cogeneration and Small Power Production Facilities

18 C.F.R. § 292.207

Procedures for obtaining qualifying status

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(a) Self-certification—(1) FERC Form No. 556. The qualifying facility status of an existing or a proposed facility that meets the requirements of § 292.203 may be self-certified by the owner or operator of the facility or its representative by properly completing a FERC Form No. 556 and filing that form with the Commission, pursuant to § 131.80 of this chapter, and complying with paragraph (e) of this section.

(2) Factors. For small power production facilities pursuant to § 292.204, the owner or operator of the facility or its representative may, when completing the FERC Form No. 556, provide information asserting factors showing that the facility for which qualification or recertification is sought is at a separate site from other facilities using the same energy resource and owned by the same person(s) or its affiliates.

(3) Commission action. Self-certification and self-recertification are effective upon filing. If no protests to a self-certification or self-recertification are timely filed pursuant to paragraph (c) of this section, no further action by the Commission is required for a self-certification or self-recertification to be effective. If protests to a self-certification or self-recertification are timely filed pursuant to paragraph (c) of this section, a self-certification or self-recertification will remain effective until the Commission issues an order revoking QF certification. The Commission will act on the protest within 90 days from the date the protest is filed; provided that, if the Commission requests more information from the protester, the entity seeking qualification or recertification, or both, the time for the Commission to act will be extended to 60 days from the filing of a complete answer to the information request. In addition to any extension resulting from a request for information, the Commission also may toll the 90-day period for one additional 60-day period if so required to rule on a protest. Authority to toll the 90-day period for this purpose is delegated to the Secretary or the Secretary's designee. Absent Commission action before the expiration of the tolling period, a protest will be deemed denied, and the self-certification or self-recertification will remain effective.

(b) Optional procedure—Commission certification—(1) Application for Commission certification. In lieu of the self-certification procedures in paragraph (a) of this section, an owner or operator of an existing or a proposed facility, or its representative, may file with the Commission an application for Commission certification that the facility is a qualifying facility. The application must be accompanied by the fee prescribed by part 381 of this chapter, and the applicant for Commission certification must comply with paragraph (c) of this section.

(2) General contents of application. The application must include a properly completed FERC Form No. 556 pursuant to § 131.80 of this chapter. For small power production facilities pursuant to § 292.204, the owner or operator of the facility or its representative may, when completing the FERC Form No. 556, provide information asserting factors showing that the facility for which qualification is sought is at a separate site from other facilities using the same energy resource and owned by the same person(s) or its affiliates.

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

(ii) For purposes of paragraph (b) of this section, the date an application is filed is the date by which the Office of the Secretary has received all of the information and the appropriate filing fee necessary to comply with the requirements of this Part.

(c) Protests and Interventions—(1) Filing a Protest. Any person, as defined in § 385.102(d) of this chapter, who opposes either a self-certification or self-recertification making substantive changes to the existing certification filed pursuant to paragraph (a) of this section or an application for Commission certification or Commission recertification making substantive changes to the existing certification filed pursuant to paragraph (b) of this section for which qualification or recertification is filed on or after December 31, 2020, may file a protest with the Commission. Any protest to and any intervention in a self-certification or self-recertification must be filed in accordance with §§ 385.211 and 385.214 of this chapter, on or before 30 days from the date the self-certification or self-recertification is filed. Any protestor must concurrently serve a copy of such filing pursuant to § 385.211 of this chapter. Any protest must be adequately supported, and provide any supporting documents, contracts, or affidavits to substantiate the claims in the protest.

(2) Limitations on protest. Protests may be filed to any initial self-certification or application for Commission certification filed on or after the effective date of this final rule, and to any self-recertification or application for Commission recertification that are filed on or after December 31, 2020 that makes substantive changes to the existing certification. Once the Commission has certified an applicant's qualifying facility status either in response to a protest opposing a self-certification or self-recertification, or in response to an application for Commission certification or Commission recertification, any later protest to a self-recertification or application for Commission recertification making substantive changes to a qualifying facility's certification must demonstrate changed circumstances that call into question the continued validity of the certification.

(d) Response to protests. Any response to a protest must be filed on or before 30 days from the date of filing of that protest and will be allowed under § 385.213(a)(2) of this chapter.

(e) Notice requirements—(1) General. An applicant filing a self-certification, self-recertification, application for Commission certification or application for Commission recertification of the qualifying status of its facility must concurrently serve a copy of such filing on each electric utility with which it expects to interconnect, transmit or sell electric energy to, or purchase supplementary, standby, back-up or maintenance power from, and the State regulatory authority of each state where the facility and each affected electric utility is located. The Commission will publish a notice in the Federal Register for each application for Commission certification and for each self-certification of a cogeneration facility that is subject to the requirements of § 292.205(d).

(2) Facilities of 500 kW or more. An electric utility is not required to purchase electric energy from a facility with a net power production capacity of 500 kW or more until 90 days after the facility notifies the facility that it is a qualifying facility or 90 days after the utility meets the notice requirements in paragraph (c)(1) of this section.

(f) Revocation of qualifying status. (1)(i) If a qualifying facility fails to conform with any material facts or representations presented by the cogenerator or small power producer in its submittals to the Commission, the notice of self-certification or Commission order certifying the qualifying status of the facility may no longer be relied upon. At that point, if the facility continues to conform to the Commission's qualifying criteria under this part, the cogenerator or small power producer may file either a notice of self-recertification of qualifying status pursuant to the requirements of paragraph (a) of this section, or an application for Commission recertification pursuant to the requirements of paragraph (b) of this section, as appropriate.

(ii) The Commission may, on its own motion or on the motion of any person, revoke the qualifying status of a facility that has been certified under paragraph (b) of this section, if the facility fails to conform to any of the Commission's qualifying facility criteria under this part.

(iii) The Commission may, on its own motion or on the motion of any person, revoke the qualifying status of a self-certified or self-recertified qualifying facility if it finds that the self-certified or self-recertified qualifying facility does not meet the applicable requirements for qualifying facilities.

(2) Prior to undertaking any substantial alteration or modification of a qualifying facility which has been certified under paragraph (b) of this section, a small power producer or cogenerator may apply to the Commission for a determination that the proposed alteration or modification will not result in a revocation of qualifying status. This application for Commission recertification of qualifying status should be submitted in accordance with paragraph (b) of this section.

[45 FR 17972, Mar. 20, 1980] Editorial Note:For Federal Register citations affecting § 292.207, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and at www.govinfo.gov.
Notes of Decisions
Cited in 27 cases (3 in the last 5 years), 1983–2025 · leading case: Indep. Energy Producers Ass'n v. California Pub. Utils. Comm'n, 36 F.3d 848 (9th Cir. 1994).
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Indep. Energy Producers Ass'n v. California Pub. Utils. Comm'n, 36 F.3d 848 (9th Cir. 1994). · cites it 8× “18 C.F.R. § 292.207 (a)(2). Under the Commission’s “optional” procedure, a cogenerating facility may apply to the Commission to obtain certification; under this procedure, the Commission must issue an order granting or denying certification within ninety days from receipt of the…”
Kamine/Besicorp Allegany L.P. v. Rochester Gas & Elec. Corp., 908 F. Supp. 1180 (W.D.N.Y. 1995). · cites it 4× “18 C.F.R. § 292.207 (a). The second method, which the regulations describe as an “optional procedure,” is to apply for FERC certification.”
Empire Lumber Co. v. Washington Water Power Co., 755 P.2d 1229 (Idaho 1988). · cites it 4× “§ 824a-3(a)) and for the regulations under PURPA to require the utilities to purchase ( 18 C.F.R. § 292.207 (c)) from a qualified facility.”
Power Resource Grp., Inc. v. Pub. Util. Comm'n, 73 S.W.3d 354 (Tex. App. 2002). “See 18 C.F.R. § 292.207 (a) (2001). 4 . The parties agree that the relevant rule governing this appeal is rule 23.”
Solar Energy Indus. Ass'n v. FERC, 59 F.4th 1287 (D.C. Cir. 2023). · cites it 2× “See 18 C.F.R. § 292.207 (a)–(b). One notable benefit to being a qualifying facility is the mandatory purchase obligation.”
Sugarloaf Citizens Ass'n. v. Fed. Energy Regulatory Comm'n, 959 F.2d 508 (4th Cir. 1992). · cites it 3× “18 C.F.R. § 292.207 (b). However, the FERC regulations permit a facility to choose to by-pass the procedure for certification by the FERC and instead opt for self-certification.”
N. Laramie Range All. v. Fed. Energy Regulatory Comm'n, 733 F.3d 1030 (10th Cir. 2013). “The opposition stems from the statutory cap of 80 megawatts on the volume of wind power that a production facility can generate and still be considered small enough to *1033 qualify for statutory benefits. 16 U.S.C. § 796 (17)(A)(ii).”
Power Resource Grp., Inc. v. Pub. Util. Comm'n, 422 F.3d 231 (5th Cir. 2005). “The Lewisville Power Project was certified as a QF on September 20, 1996 pursuant to 18 C.F.R. § 292.207 (a)(1). PRG secured sources of equity, identified a site, held zoning discussions, and undertook various other steps in furtherance of the Lewisville Power Pro *234 ject.”
Resource Tech. Corp. v. Illinois Com. Comm'n, 822 N.E.2d 50 (Ill. App. Ct. 2004). “b) In demonstrating compliance with 18 CFR 292, the owner(s) or operator of a facility must file with the Commission a copy of: 1) the notice filed with [FERC] pursuant to 18 CFR 292.207, or 2) certification as a qualifying facility issued by the [FERC] or a successor agency.”
Niagara Mohawk Power Corp. v. Megan Racine Assocs., Inc. (In Re Megan-Racine Assocs., Inc.), 180 B.R. 375 (Bankr. N.D.N.Y. 1995). “On November 22, 1988, Debtor filed with FERC an Application for Commission Certification of Qualifying Status of A Cogeneration Facility pursuant to 18 C.F.R. § 292.207 . On January 27, 1989, FERC issued an Order Granting Application for Certification as a Qualifying Status of A…”
In Re Megan-Racine Assocs., Inc., 203 B.R. 873 (Bankr. N.D.N.Y. 1996). “On November 22, 1988, Debtor filed with the Federal Energy Regulatory Commission (“FERC”) an Application for Commission Certification of Qualifying Status of a Cogeneration Facility pursuant to 18 C.F.R. § 292.207 . On January 27, 1989, FERC issued an Order granting Debtor’s…”
Potomac Elec. Power Co. v. Panda Brandywine, L.P., 99 F. Supp. 2d 681 (D. Maryland 2000). · cites it 2× “Unless this Court seriously misreads both Independent Energy Producers, supra, and 18 C.F.R. § 292.207 (d), the FERC is the place for plaintiff to assert and have adjudicated its claim, upon which Count II utterly depends, that Panda “does not meet applicable requirements for…”
Show all 27 citing cases →
— 18 C.F.R. § 292.207(d)(1) — 1 case
Brazos Elec Pwr Coop v. FERC, 205 F.3d 235 (5th Cir. 2000).
— 18 C.F.R. § 292.207(d)(1)(iii) — 1 case
Potomac Elec. Power Co. v. Panda Brandywine, L.P., 99 F. Supp. 2d 681 (D. Maryland 2000). “Unless this Court seriously misreads both Independent Energy Producers, supra, and 18 C.F.R. § 292.207 (d), the FERC is the place for plaintiff to assert and have adjudicated its claim, upon which Count II utterly depends, that Panda “does not meet applicable requirements for…”
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