BILLING CODE 6717-01-P
DEPARTMENT OF ENERGY
Federal Energy Regulatory Commission
18 CFR Part 39
[Docket No. RM21-12-000]
Electric Reliability Organization Performance Assessments; Withdrawal
AGENCY: Federal Energy Regulatory Commission.
ACTION: Withdrawal of notice of proposed rulemaking and termination of rulemaking
proceeding.
SUMMARY: The Federal Energy Regulatory Commission (Commission) is
withdrawing a notice of proposed rulemaking, which proposed to amend its regulations
pursuant to section 215 of the Federal Power Act to require the Commission-certified
Electric Reliability Organization (ERO) to submit performance assessments every three
years; to include in its performance assessment a detailed discussion of any areas of the
ERO’s responsibilities and activities, or a Regional Entity’s delegated functions, beyond
those required by the Commission’s regulations, that the Commission has identified at
least 90 days prior to the expected performance assessment submission date; and to
formalize the method for the ERO and Regional Entities to receive and respond to
recommendations by the users, owners, and operators of the Bulk-Power System, and
other interested parties for improvement of the ERO’s operations, activities, oversight,
and procedures.

DATES: The notice of proposed rulemaking published in the Federal Register at 86 FR
7518 on January 29, 2021, is withdrawn as of [INSERT DATE OF PUBLICATION IN
THE FEDERAL REGISTER].
FOR FURTHER INFORMATION CONTACT:
Michael Gildea (Technical Information)
Office of Electric Reliability
Federal Energy Regulatory Commission
888 First Street, NE
Washington, DC 20426
(202) 502-8420
michael.gildea@ferc.gov
Leigh Anne Faugust (Legal Information)
Office of the General Counsel
Federal Energy Regulatory Commission
888 First Street, NE
Washington, DC 20426
(202) 502-6396
leigh.faugust@ferc.gov
SUPPLEMENTARY INFORMATION:
Withdrawal of Notice of Proposed Rulemaking and Termination of Rulemaking
Proceeding
1.

On January 19, 2021, the Commission issued a notice of proposed rulemaking

(NOPR) proposing to revise its regulations regarding the Electric Reliability
Organization’s (ERO) performance assessments pursuant to section 215 of the Federal
Power Act (FPA).1 The Commission received seven comments in response to the
NOPR.2 After reviewing the comments received, the Commission has decided to retain

Revisions to Regulations on Elec. Reliability Org. Performance Assessments,
Notice of Proposed Rulemaking, 86 FR 7518 (Jan. 29, 2021), 174 FERC ¶ 61,031 (2021).
The North American Electric Reliability Corporation (NERC) and Regional
Entities, jointly; the Western Interconnection Regional Advisory Body (WIRAB); the
ISO/RTO Council; the American Public Power Association, Edison Electric Institute,
its existing regulations regarding the ERO’s performance assessments. For the reasons
set forth below, we are exercising our discretion to withdraw the NOPR and terminate
this rulemaking proceeding.
I.

Background
A.

2.

Commission Regulations on the ERO Performance Assessment

Section 215 of the FPA requires the Commission to issue regulations that, among

other things, provide for the certification of an entity as the ERO if it meets certain
criteria.3 On February 3, 2006, the Commission issued Order No. 672, which amended
the Commission’s regulations to implement the requirements of FPA section 215.4 The
specific requirements for the ERO performance assessments are set out in the
Commission’s regulations in § 39.3(c).5 On July 20, 2006, the Commission certified
NERC as the ERO.6

Electric Power Supply Association, the Large Public Power Council, National Rural
Electric Cooperative Association, and Transmission Access Policy Study Group, jointly
(Joint Trade Associations); Public Citizen, Inc. (Public Citizen); and the Foundation for
Resilient Societies (Resilient Societies).
16 U.S.C. 824o.

Rules Concerning Certification of the Elec. Reliability Org.; and Procedures for
the Establishment, Approval, and Enforcement of Elec. Reliability Standards, Order No.
672, 71 FR 8662 (Feb. 17, 2006), 114 FERC ¶ 61,104, at P 186, order on reh’g, Order
No. 672-A, 114 FERC ¶ 61,328 (2006).
5

18 CFR 39.3(c) (2023).

N. Am. Elec. Reliability Corp., 116 FERC ¶ 61,062, order on reh’g and
compliance, 117 FERC ¶ 61,126 (2006), aff’d sub nom. Alcoa Inc. v. FERC, 564 F.3d
1342 (D.C. Cir. 2009) (ERO Certification Order) (certifying NERC as the ERO
responsible for the development and enforcement of mandatory Reliability Standards).
B.
3.

NOPR

In its NOPR, the Commission proposed to amend its regulations regarding the

ERO performance assessments. First, the Commission proposed to require the ERO to
submit assessments of its performance every three years instead of every five years.
Second, the Commission proposed to add a requirement for the ERO to include in its
performance assessment a detailed discussion of any areas of the ERO’s responsibilities
and activities, or a Regional Entity’s delegated functions, beyond those required by the
Commission’s regulations, that the Commission has identified at least 90 days prior to the
expected performance assessment submission date. Finally, the Commission proposed to
formalize the method for the ERO and Regional Entities to receive and respond to
recommendations by the users, owners, and operators of the Bulk-Power System, and
other interested parties for improvement of the ERO’s operations, activities, oversight,
and procedures.
4.

The Commission explained in the NOPR that it believed that the proposals would

provide better continuity in its review of the ERO’s operations, activities, oversight,
procedures, and evaluation of the effectiveness of each Regional Entity in the
performance of delegated functions. Further, the Commission explained that shorter
performance assessment cycles could provide an opportunity for timelier identification
and implementation of potential improvements to ERO performance and improve the
efficiency of the overall performance assessment process.7
5.

Notice of the NOPR was published in the Federal Register, 86 FR 7518 (Jan. 29,

2021), with comments due by March 1, 2021.

NOPR, 174 FERC ¶ 61,031 at P 1.

C.
6.

Comments

In their joint comments, NERC and the Regional Entities oppose all proposed

modifications. They assert that the proposed changes would place undue burden on ERO
staff by directing their focus away from key activities that “would outweigh any potential
benefits.”8 They explain that the existing five-year performance assessment cycle
provides “greater opportunity to demonstrate evolution of the ERO than a three-year
cycle”9 and allows NERC initiatives to come to fruition and be evaluated.10 NERC and
the Regional Entities explain that, due to the time it takes to coordinate with the Regional
Entities, incorporate stakeholder feedback, present the draft to the NERC Board of
Trustees for approval, and meet with Commission staff on specific questions, a three-year
cycle would mean the process would begin two years after the prior assessment ends.11
7.

Regarding the proposed 90-day advance notice of Commission requested

information, NERC and the Regional Entities believe that the NOPR proposal does not
consider “numerous, existing opportunities for coordination and timely feedback from
industry, FERC Commissioners, and Commission staff.”12 They re-affirm their
commitment to the existing oversight process to provide the Commission with “all

NERC and Regional Entities Joint Comments at 2.

Id. at 6.

Id. at 8.

Id. at 11.

Id. (referencing NERC and Regional Entities Joint Comments, App. A listing
such opportunities (e.g., board meetings, stakeholder meetings, and technical and
Reliability Standards working groups)).
information necessary for [the Commission’s] evaluation” of the ERO’s ongoing
compliance with its certification criteria through the performance assessments.13
8.

Finally, NERC and the Regional Entities oppose a formal solicitation of

stakeholder feedback and recommendations. They say they already provide “extensive
opportunities for stakeholder feedback on ERO operations, activities, oversight, and
procedures, including areas for improvement.”14 NERC and the Regional Entities
explain that they solicit public comment on the draft performance assessment two to three
months prior to its filing—asserting that the draft performance assessment is the “best
vehicle to solicit comments…because such a posting ensures that comments are grounded
in specific activities and issues material to ERO certification and effectiveness.”15
9.

WIRAB, Joint Trade Associations, Public Citizen, and Resilient Societies support

the proposed changes to the Commission’s regulations.16 The ISO/RTO Council supports
the formal solicitation of public feedback.17 Commenters generally agree that the
proposed changes would support the early identification of emerging trends, challenges,
and opportunities regarding the ERO’s assurance of Bulk-Power System reliability and
allow necessary changes to be made in a timelier manner.18

Id. at 2.

Id. at 13.

Id. at 14.

See WIRAB Comments at 3; Joint Trade Associations Comments at 3-4; Public
Citizen Comments at 2-3; and Resilient Societies Comments at 1.
17

ISO/RTO Council Comments at 2.

See, e.g., WIRAB Comments at 3; Resilient Societies Comments at 4-5; Joint
Trade Associations Comments at 3-4.
II.

Discussion

10.

The Commission withdraws the NOPR and terminates this proceeding. We

appreciate the feedback that the Commission received in response to the NOPR.
Considering NERC and the Regional Entities’ concerns regarding the scope and
implementation of the proposal and the increased burden on the ERO, that NERC will
need to expend significant resources to address multiple Commission directives, and that
the Commission will need to expend significant resources considering those responsive
proposals,19 we do not believe that modifying the periodicity or procedural requirements
for the ERO performance assessments is an efficient use of ERO or Commission
resources.

11.

Therefore, we exercise our discretion to withdraw the NOPR and terminate this

rulemaking proceeding.20
The Commission orders:
The NOPR is hereby withdrawn and Docket No. RM21-12-000 is hereby

See, e.g., Reliability Standards to Address Inverter-Based Resources, Order
No. 901, 88 FR 74250 (Oct. 30, 2023), 185 FERC ¶ 61,042 (2023), (directing revisions
to Reliability Standards for inverter-based resources); Transmission Sys. Planning
Performance Requirements for Extreme Weather, Order No. 896, 88 FR 41262 (June 23,
2023), 183 FERC ¶ 61,191 (2023) (directing revisions to Reliability Standards for
transmission system planning); N. Am. Elec. Reliability Corp., 187 FERC ¶ 61,196
(2024) (directing revisions to Reliability Standards to address generator cold weather
preparedness).
20See,

e.g., Revised Public Utility Filing Requirements for Elec. Quarterly
Reports,169 FERC ¶ 61,236 (2019) (order withdrawing NOPR and terminating
rulemaking proceeding); see also, e.g., Fast-Start Pricing in Markets Operated by Reg’l
Transmission Org. and Indep. Sys. Operators, 161 FERC ¶ 61,293 (2017) (order
withdrawing NOPR and terminating rulemaking proceeding).

terminated.
By the Commission. Commissioner Rosner is not participating.
Issued: June 27, 2024.
Debbie-Anne A. Reese,
Acting Secretary.
[FR Doc. 2024-14667 Filed: 7/3/2024 8:45 am; Publication Date: 7/5/2024]