Final Rule Fed. Reg Notice

Federal Register / Vol. 85, No. 200 / Thursday, October 15, 2020 / Rules and Regulations
[FR Doc. 2020–22732 Filed 10–14–20; 8:45 am]
BILLING CODE 4910–13–P

DEPARTMENT OF ENERGY
Federal Energy Regulatory
Commission
18 CFR Part 40
[Docket Nos. RM19–16–000 and RM19–17–
000; Order No. 873]

Electric Reliability Organization
Proposal To Retire Requirements in
Reliability Standards Under the NERC
Standards Efficiency Review
Federal Energy Regulatory
Commission, Department of Energy.
ACTION: Final rule.
AGENCY:

The Federal Energy
Regulatory Commission (Commission)
approves the retirement of 18 Reliability
Standard requirements identified by the
North American Electric Reliability
Corporation (NERC), the Commissioncertified Electric Reliability
Organization. The Commission also
remands proposed Reliability Standard
FAC–008–4 for further consideration by
NERC. The Commission takes no action
at this time on the proposed retirement
of 56 MOD A Reliability Standard
requirements.
DATES: This rule is effective December
14, 2020.
FOR FURTHER INFORMATION CONTACT:
Michael Gandolfo (Technical
Information), Office of Electric
Reliability, Division of Reliability
Standards and Security, Federal
Energy Regulatory Commission, 888
First Street NE, Washington, DC
20426, Telephone: (202) 502–6817
Mark Bennett (Legal Information), Office
of the General Counsel, Federal
Energy Regulatory Commission, 888
First Street NE, Washington, DC
20426, Telephone: (202) 502–8524
SUPPLEMENTARY INFORMATION:
1. Pursuant to section 215(d)(2) of the
Federal Power Act (FPA),1 the
Commission approves 18 of the 76
Reliability Standard requirements
requested for retirement by the North
American Electric Reliability
Corporation (NERC).2 For the reasons
discussed below, we determine that the
retirement of the 18 Reliability Standard
requirements through the retirement of
four Reliability Standards and the
modification of five Reliability

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SUMMARY:

1 16

U.S.C. 824o(d)(2).
withdrew the originally requested
retirement of Reliability Standard VAR–001–6,
Requirement R2 on May 14, 2020.
2 NERC

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Standards is just, reasonable, not
unduly discriminatory or preferential,
and in the public interest.3 The
Commission also approves the
associated violation risk factors,
violation severity levels,
implementation plan, and effective
dates proposed by NERC.
2. As set forth in the petitions, we
conclude that the 18 Reliability
Standard requirements: (1) Provide little
or no reliability benefit; (2) are
administrative in nature or relate
expressly to commercial or business
practices; or (3) are redundant with
other Reliability Standards. These
justifications are consistent with the
Commission-approved rationale for
retiring Reliability Standard
requirements articulated in prior
proceedings.4
3. The approved retirements will
enhance the efficiency of the Reliability
Standards program by reducing
duplicative or otherwise unnecessary
regulatory burdens.
4. In the Notice of Proposed
Rulemaking (NOPR), the Commission
also proposed to approve the retirement
of 56 requirements constituting the socalled MOD A Reliability Standards.5
The NOPR indicated that, if approved,
the Commission intends to coordinate
the effective dates for the retirement of
the MOD A Reliability Standards with
successor North American Energy
Standards Board (NAESB) business
3 The four Reliability Standards being eliminated
in their entirety are Reliability Standards FAC–013–
2 (Assessment of Transfer Capability for the Nearterm Transmission Planning Horizon), INT–004–3.1
(Dynamic Transfers), INT–010–2.1 (Interchange
Initiation and Modification for Reliability), MOD–
020–0 (Providing Interruptible Demands and Direct
Control Load Management Data to System
Operations and Reliability Coordinators). The five
modified Reliability Standards approved herein are
Reliability Standards INT–006–5 (Evaluation of
Interchange Transactions), INT–009–3
(Implementation of Interchange) and PRC–004–6
(Protection System Misoperation Identification and
Correction), IRO–002–7 (Reliability Coordination—
Monitoring and Analysis), TOP–001–5
(Transmission Operations).
4 North American Electric Reliability Corp., 138
FERC ¶ 61,193, at P 81 (March 2012 Order), order
on reh’g and clarification, 139 FERC ¶ 61,168
(2012); Electric Reliability Organization Proposal to
Retire Requirements in Reliability Standards, Order
No. 788, 145 FERC ¶ 61,147, at P 1 (2013) (stating
that the proposed retirements ‘‘meet the
benchmarks set forth in the Commission’s March
15, 2012 Order’’).
5 Electric Reliability Organization Proposal to
Retire Requirements in Reliability Standards Under
the NERC Standards Efficiency Review, 170 FERC
¶ 61,032 (2020) (NOPR). The MOD A Reliability
Standards proposed for retirement are MOD–001–
1a (Available Transmission System Capability),
MOD–004–1 (Capacity Benefit Margin), MOD–008–
1 (Transmission Reliability Margin Calculation
Methodology), MOD–028–2 (Area Interchange
Methodology), MOD–029–2a (Rated System Path
Methodology), and MOD–030–3 (Flowgate
Methodology).

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practice standards.6 On March 30, 2020,
NAESB submitted Version 003.3 of the
Standards for Business Practices and
Communication Protocols for Public
Utilities that, inter alia, include
Modeling business practices. On July
16, 2020, the Commission issued a
NOPR in Docket Nos. RM05–5–029 and
RM05–5–030 proposing to amend its
regulations to incorporate by reference,
with certain enumerated exceptions,
NAESB’s Version 003.3 Business
Practices.7 Comments on the NAESB
NOPR are due on November 3, 2020.8 In
light of these developments, this final
rule does not address the retirement of
the MOD A Reliability Standards. The
Commission will determine the
appropriate action regarding the
proposed retirement of the MOD A
Reliability Standards at a later time.
5. While the Commission approves
the 18 retirements, pursuant to FPA
section 215(d)(4), we remand proposed
Reliability Standard FAC–008–4.9 As
discussed below, we are satisfied with
NERC’s justification for retiring
Reliability Standard FAC–008–3,
Requirement R7. However, for the
reasons discussed below, we are not
persuaded that it is appropriate to retire
Reliability Standard FAC–008–3,
Requirement R8. Because the
Commission, pursuant to FPA section
215(d)(4), must remand to NERC for
further consideration a proposed
modification to a Reliability Standard
that the Commission disapproves in
whole or in part, we remand proposed
Reliability Standard FAC–008–4 to
address our concerns with the
retirement of Requirement R8.
I. Background
A. Section 215 of the FPA
6. Section 215 of the FPA requires the
Commission-certified Electric
Reliability Organization (ERO) to
develop mandatory and enforceable
Reliability Standards, subject to
Commission review and approval. Once
approved, the Reliability Standards may
be enforced in the United States by the
ERO subject to Commission oversight,
or by the Commission independently.10
Pursuant to the requirements of FPA
section 215, the Commission established
6 NOPR,

170 FERC ¶ 61,032, at P 21, n.35.
for Business Practices and
Communication Protocols for Public Utilities,
Notice of Proposed Rulemaking, Order No. 676, 85
FR 10571, 172 FERC ¶ 61,047 (2020).
8 Standards for Business Practices and
Communication Protocols for Public Utilities, 85 FR
55201 (September 4, 2020).
9 16 U.S.C. 824o(d)(4).
10 16 U.S.C. 824o(e)(3).
7 Standards

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a process to select and certify an ERO 11
and, subsequently, certified NERC as the
ERO.12

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B. Prior Retirements of Reliability
Standard Requirements
7. In the March 2012 Order, the
Commission observed that NERC’s
compliance program could be made
more efficient by removing existing
requirements deemed unnecessary for
reliability.13 The Commission stated
that if NERC believes certain Reliability
Standards or requirements should be
revised or removed, ‘‘we invite NERC to
make specific proposals to the
Commission identifying the Standards
or requirements and setting forth in
detail the technical basis for its
belief.’’ 14 Further, the Commission
encouraged NERC ‘‘to propose
appropriate mechanisms to identify and
remove from the Commission-approved
Reliability Standards unnecessary or
redundant requirements.’’ 15
8. In response, in February 2013,
NERC proposed to retire 34
requirements within 19 Reliability
Standards based on the justification that
the requirements ‘‘are redundant or
otherwise unnecessary’’ and that
‘‘violations of these requirements . . .
pose a lesser risk to the reliability of the
Bulk-Power System.’’ 16 NERC
explained that the proposed retirements
were based upon three major criteria: (1)
Whether a proposed retirement would
create a reliability gap; (2) whether the
requirement in question is
administrative; involves data collection,
retention, documentation, periodic
updates or reporting; is a commercial or
business practice; or is redundant; and
(3) consideration of responses to seven
questions regarding the proposed
retirement, including whether the
requirement was part of a ‘‘find, fix and
track’’ filing, the requirement’s violation
risk factor level, and whether the
requirement is part of on-going
standards development project.17
9. On November 21, 2013, the
Commission approved the retirements
that NERC proposed, and determined
11 Rules Concerning Certification of the Electric
Reliability Organization; and Procedures for the
Establishment, Approval, and Enforcement of
Electric Reliability Standards, Order No. 672, 114
FERC ¶ 61,104, order on reh’g, Order No. 672–A,
114 FERC ¶ 61,328 (2006).
12 North American Electric 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 (DC Cir. 2009).
13 March 2012 Order, 138 FERC ¶ 61,193 at P 81.
14 Id.
15 Id.
16 NERC, Petition, Docket No. RM13–8–000, at 2
(filed Feb. 28, 2013).
17 Id. at 4.

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that the retirements ‘‘meet the
benchmarks’’ set forth in the March
2012 Order that ‘‘requirements proposed
for retirement either: (1) Provide little
protection for Bulk-Power System
reliability; or (2) are redundant with
other aspects of the Reliability
Standards.’’ 18

11. NERC contends that the SER
Project ‘‘was conducted in an open and
transparent manner, with broad
industry participation.’’ 24 NERC states
that it initiated the standards
development process to consider the
retirement recommendations generated
by the SER Project.

C. NERC Standards Efficiency Review
Project and Petitions

2. IRO, TOP and VAR Petition (Docket
No. RM19–16–000)
12. On June 7, 2019, in Docket No.
RM19–16–000, NERC submitted for
Commission approval new versions of
three Reliability Standards: IRO–002–7
(Reliability Coordination—Monitoring
and Analysis), TOP–001–5
(Transmission Operations), and VAR–
001–6 (Voltage and Reactive Control).25
NERC explains that approval of the new
versions would result in the retirement
of four requirements from the currentlyeffective versions of the Reliability
Standards.26 NERC proposes to retire
three of the existing requirements in
Reliability Standards IRO–002 and
TOP–001 that require the reliability
coordinator, transmission operator, and
balancing authority to have data
exchange capabilities with entities
having data needed to perform
operational planning analyses and to
develop operating plans for next-day
operations. NERC contends that these
requirements are redundant and not
necessary ‘‘because the performance
required by these requirements is
inherent to the performance of other
Reliability Standard requirements.’’ 27
13. In particular, NERC maintains that
the data exchange capability
requirement in Reliability Standard
IRO–002–5, Requirement R1 is covered
by Reliability Standard IRO–008–2,
Requirement R1, which obligates the
reliability coordinator to perform
operational planning analyses to assess
whether the planned operations for the
next-day will exceed System Operating
Limits and Interconnection Reliability
Operating Limits within its Wide Area.
NERC asserts that ‘‘to perform the
required operational planning analyses,
the Reliability Coordinator must have
the data it deems necessary from those
entities that possess it.’’ 28

1. NERC Standards Efficiency Review
Project
10. NERC states that the proposed
retirements are the product of its
Standards Efficiency Review (SER)
Project. NERC explains that the SER
Project began in 2017 ‘‘to achieve
[NERC’s] long-term strategic goal of
establishing risk-based controls to
minimize [Bulk-Power System]
reliability risk while also driving
operational efficiencies and
effectiveness.’’ 19 NERC states that in
Phase 1 of the SER Project, teams of
industry experts conducted a risk-based
analysis of non-CIP Reliability
Standards.20 The purpose of this review,
according to NERC, was ‘‘to identify
Reliability Standard requirements that
provide little or no benefit to reliability
and should be retired.’’ 21 NERC
maintains that, unlike the periodic
reviews 22 of Reliability Standards
performed by NERC pursuant to the
NERC Rules of Procedure, the SER
Project involved ‘‘exploring the
relationships between the different
Reliability Standards in a deeper way
than would be feasible during a targeted
periodic review . . . [and] allowed
NERC to identify requirements that are
not necessary for reliability or that are
redundant to other requirements.’’ 23
18 Electric Reliability Organization Proposal to
Retire Requirements in Reliability Standards, Order
No. 788, 145 FERC ¶ 61,147 (2013).
19 Docket No. RM19–16–000 Petition at 3; Docket
No. RM19–17–000 Petition at 4.
20 NERC states that Phase 2 of the SER Project will
‘‘consider recommendations for Reliability
Standard revisions that would further improve the
efficiency of the body of NERC Reliability
Standards, such as through consolidation of
Reliability Standard requirements . . . [and will]
consider recommendations for standards-based
improvements that would further reduce
inefficiencies and promote effectiveness.’’ Docket
No. RM19–16–000 Petition at 6–7; Docket No.
RM19–17–000 Petition at 7.
21 Docket No. RM19–16–000 Petition at 5; Docket
No. RM19–17–000 Petition at 6.
22 The NERC Rules of Procedure require a
periodic review of each Reliability Standard; and
they provide for a five-year cyclical review of
Reliability Standards approved by the American
National Standards Institute (ANSI) and 10-year
cyclical review for Reliability Standards not
approved by ANSI. See NERC Rules of Procedure,
Section 317 and Appendix 3A (Standards Process
Manual), section 13.0.
23 Docket No. RM19–16–000 Petition at 5; Docket
No. RM19–17–000 Petition at 6.

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24 Docket No. RM19–16–000 Petition at 5–6;
Docket No. RM19–17–000 Petition at 7.
25 On May 14, 2020, NERC withdrew its request
to retire Reliability Standard VAR–001–6,
Requirement R2.
26 The revised versions of the IRO and TOP
Reliability Standards are not attached to this final
rule. The complete text of the Reliability Standards
is available on the Commission’s eLibrary
document retrieval system in Docket No. RM19–16–
000 and is posted on the ERO’s website, http://
www.nerc.com.
27 Docket No. RM19–16–000 Petition at 7.
28 Id. at 14–15.

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14. Additionally, regarding data
exchange, NERC cites Reliability
Standard IRO–010–2 (Reliability
Coordinator Data Specification and
Collection) and its stated purpose of
preventing instability, uncontrolled
separation, or cascading outages ‘‘by
ensuring the Reliability Coordinator has
the data it needs to monitor and assess
the operation of its Reliability
Coordinator Area.’’ 29 NERC states that
under Reliability Standard IRO–010–2,
Requirements R1, R2 and R3, the
reliability coordinator must specify the
data necessary for it to perform its
operational planning analyses and
provide the specifications to the entities
from which it needs data who then must
comply with the data request using a
mutually agreeable format and security
protocols.
15. NERC states that the performance
of Reliability Standard IRO–010–2,
Requirements R1, R2 and R3 is
premised on the existence of data
exchange capabilities, ‘‘regardless of
whether a separate requirement
expressly requires the Reliability
Coordinator to have data exchange
capabilities in place.’’ 30 NERC therefore
asserts that Reliability Standard IRO–
002–5, Requirement R1 provides no
additional reliability benefit and ‘‘is
therefore unnecessary and redundant
and should be retired.’’ 31
16. NERC also proposes to retire
Reliability Standards TOP–001–4,
Requirements R19 and R22. NERC
explains that Requirements R19 and R22
of Reliability Standard TOP–001–4
require transmission operators and
balancing authorities respectively to
have data exchange capabilities with
entities from which they need data to
perform operational planning analyses
(transmission operators) and next-day
Operating Plans (balancing authorities).
NERC notes, however, that Reliability
Standard TOP–002–4, Requirement R1
requires a transmission operator to
perform an operational planning
analyses to determine whether next-day
operations within its area will exceed
System Operating Limits. NERC also
states that TOP–002–4, Requirement R4
requires each balancing authority to
have a next-day Operating Plan
addressing expected generation resource
commitment and dispatch, Interchange
scheduling and related matters. NERC
asserts that to satisfy these
requirements, ‘‘each Transmission
Operator and Balancing Authority must
29 Id.

at 15.

30 Id.
31 Id.

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have the data it deems necessary from
those entities that possess it.’’ 32
17. NERC also points to Reliability
Standard TOP–003–3 (Operational
Reliability Data) whose purpose is ‘‘to
ensure that the Transmission Operator
and Balancing Authority have data
needed to fulfill their operational and
planning responsibilities.’’ NERC
contends that the requirements in
Reliability Standard TOP–003–3 largely
mirror the requirements in Reliability
Standard IRO–010–2 discussed above,
and thus, as with Reliability Standard
IRO–010–2, transmission operators and
balancing authorities must have data
exchange capabilities with its reporting
entities to satisfy the requirements of
Reliability TOP–003–3. For these
reasons, NERC contends that Reliability
Standards TOP–001–4, Requirements
R19 and R22 are unnecessary and
redundant and should be retired.
18. NERC requests that the
Commission approve the
implementation plan, attached to
NERC’s petition as Exhibit B, and the
associated violation risk factors and
violation severity levels described in
Exhibit D. The implementation plan
provides that proposed Reliability
Standards IRO–002–7 and TOP–001–5
would become effective on the first day
of the first calendar quarter that is three
months after regulatory approval. The
currently effective versions of the
Reliability Standards would be retired
immediately prior to the effective date
of the revised Reliability Standards.
NERC explains that the requested
timeline accounts for the time entities
will need to update their systems and
related documentation.
3. FAC, INT, MOD and PRC Petition
(Docket No. RM19–17–000)
19. On June 7, 2019, in Docket No.
RM19–17–000, NERC submitted for
Commission approval the proposed
retirement of 10 currently-effective FAC,
INT, MOD and PRC Reliability
Standards in their entirety without
replacement.33 Additionally, NERC
proposed modifications to four
Reliability Standards reflecting the
32 Id.

at 16.

33 Reliability

Standards FAC–013–2 (Assessment
of Transfer Capability for the Near-term
Transmission Planning Horizon), INT–004–3.1
(Dynamic Transfers), INT–010–2.1 (Interchange
Initiation and Modification for Reliability), MOD–
001–1a (Available Transmission System Capability),
MOD–004–1 (Capacity Benefit Margin), MOD–008–
1 (Transmission Reliability Margin Calculation
Methodology), MOD–020–0 (Providing Interruptible
Demands and Direct Control Load Management
Data to System Operations and Reliability
Coordinators), MOD–028–2 (Area Interchange
Methodology), MOD–029–2a (Rated System Path
Methodology), and MOD–030–3 (Flowgate
Methodology).

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retirement of certain requirements from
the currently-effective versions: FAC–
008–4 (Facility Ratings), INT–006–5
(Evaluation of Interchange
Transactions), INT–009–3
(Implementation of Interchange) and
PRC–004–6 (Protection System
Misoperation Identification and
Correction).34 NERC asserts that its
proposals would not adversely impact
reliability, but rather they ‘‘would
benefit reliability by allowing entities to
focus their resources on those
Reliability Standard requirements that
promote the reliable operation and
planning of the BPS [Bulk-Power
System] and avoid unnecessary
regulatory burden.’’ 35
20. Regarding the full FAC, INT, MOD
and PRC Reliability Standards proposed
for retirement, NERC contends that they
are not necessary and that removing
them would not adversely affect
reliability. NERC states that retirement
of the ten full Reliability Standards is
justified because they are primarily
administrative in nature or largely
related to commercial or business
practices, and therefore no longer serve
a reliability purpose.36 For example,
NERC states that the transfer capability
assessment required under Reliability
Standard FAC–013–2 ‘‘serves only a
market function’’ and ‘‘is not an
indicator of [bulk electric system]
reliability.’’ 37 In supporting its
conclusion that Reliability Standard
INT–010–2.1 primarily relates to
commercial and business practices,
NERC notes that in 2013 the NERC
Independent Experts Review Panel
recommended retiring the previous
version of the Reliability Standard ‘‘due
to overlap with the NAESB Electronic
Tagging Functional Specification.’’ 38
21. Similarly, regarding the MOD
Reliability Standards, NERC states that
‘‘[Available Transfer Capability] and
[Available Flowgate Methodology], as
well as e-Tags, are commerciallyfocused elements facilitating
interchange and balancing of
interchange,’’ and that system operators
maintain reliability by monitoring Realtime flows based on System Operating
Limits and Interconnection Reliability
Operating Limits.39 In particular, NERC
34 The revised versions of the FAC, INT and PRC
Reliability Standards are not attached to this final
rule. The complete text of the Reliability Standards
is available on the Commission’s eLibrary
document retrieval system in Docket No. RM19–17–
000 and is posted on the ERO’s website, http://
www.nerc.com.
35 Docket No. RM19–17–000 Petition at 7.
36 Docket No. RM19–17–000 Petition at 13–24.
37 Id. at 13.
38 Id. at 16–19.
39 Id. at 21.

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explains that information on
Interruptible Demands and Direct
Control Load Management required
under Reliability Standard MOD–020–0
is not useful for transmission operators
and reliability coordinators, ‘‘who must
plan and operate the [Bulk-Power
System] within System Operating Limits
and Interconnection Reliability
Operating Limits under the TOP and
IRO Reliability Standards.’’ 40
22. Regarding NERC’s proposed
modified Reliability Standards, NERC
states that the data provision obligations
of currently effective Reliability
Standard FAC–008–3, Requirements R7
and R8 are redundant with Reliability
Standards MOD–032–1, IRO–010–2 and
TOP–003–3. NERC asserts that
Requirements R3.1, R4 and R5 of
currently-effective Reliability Standard
INT–006–4 ‘‘provide little, if any,
benefit or protection to the reliability
operation of the [Bulk-Power
System]’’ 41 and that the substance of
Requirements R4 and R5 in particular
relate to commercial or business
practices and are better addressed
through the balancing authority’s e-Tag
Authority Service.42 Also, NERC states
that Requirement R1 of currentlyeffective Reliability Standard INT–009–
2.1 is being revised to remove the
reference to Reliability Standard INT–
010, which is also proposed for
retirement, and Requirement R2 is
redundant with Reliability Standard
BAL–005–1, Requirement R7.43 Finally,
NERC states that it has determined that
rather than the ‘‘specific, recurring and
inflexible timeframe’’ set forth in
Requirement R4 of currently-effective
Reliability Standard PRC–004–5 for
identifying the cause of a protection
system misoperation, ‘‘it would be more
effective to have entities investigate the
causes of misoperations according to
their own internal control policies and
procedures.’’ 44
23. NERC requests that the
Commission approve the
implementation plan, attached to
NERC’s petition as Exhibit B, and the
associated violation risk factors and
violation severity levels, attached to
NERC’s petition as Exhibit D, which are
generally unchanged from the currently
effective versions. For the Reliability
Standards retired in their entirety,
NERC proposes an effective date that is
immediately upon regulatory approval
of the retirement. NERC also seeks to
retire the currently effective Reliability
40 Id.

at 23.
at 29.
42 Id. at 29–31.
43 Id. at 31–32.
44 Id. at 34.
41 Id.

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Standards FAC–008–3, INT–006–4,
INT–009–2.1, and PRC–004–5(i)
immediately prior to the effective date
of their new versions.
D. Notice of Proposed Rulemaking
24. On January 23, 2020, the
Commission issued a NOPR proposing
to approve the retirement of 74 of the 77
Reliability Standard requirements
requested by NERC. However, while
proposing to approve the majority of
Reliability Standard requirement
retirements NERC proposed, the
Commission expressed concern with
NERC’s justification for retirement of
Reliability Standard FAC–008–3,
Requirement R7 and R8 because those
requirements did not appear to be
entirely redundant of other existing
Reliability Standards. Accordingly, the
Commission sought more information
from NERC regarding how other existing
Reliability Standards render Reliability
Standard FAC–008–3, Requirements R7
and R8 redundant, and how retiring
those requirements would not create a
reliability gap.
25. In response to the NOPR, the
Commission received comments from
NERC, Trade Associations (i.e.,
American Public Power Association,
Edison Electric Institute, Large Public
Power Council, National Rural Electric
Cooperative Association, Transmission
Access Policy Study Group), Bonneville
Power Administration, Western Area
Power Administration, and Jonathan
Appelbaum. We address below the
issues raised in the NOPR and
comments.
II. Discussion
A. Approved Retirement of 18
Reliability Standard Requirements
26. Pursuant to section 215(d)(2) of
the FPA, the Commission approves
NERC’s request to retire 18 Reliability
Standard requirements as just,
reasonable, not unduly discriminatory
or preferential, and in the public
interest. NERC’s petitions provide an
adequate basis to conclude that the
requirements proposed for retirement:
(1) Provide little or no reliability benefit;
(2) are administrative in nature or relate
expressly to commercial or business
practices; or (3) are redundant with
other Reliability Standards. NERC’s
justifications for retiring the 18
requirements are consistent with the
retirement guidelines set forth by the
Commission in Order No. 788 and with
the determination that ‘‘requirements
proposed for retirement can be removed
from the Reliability Standards with little
effect on reliability and an increase in

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efficiency of the ERO compliance
program.’’ 45
27. While the Commission approves
the retirement of the 18 Reliability
Standard requirements, pursuant to FPA
section 215(d)(4), we remand proposed
Reliability Standard FAC–008–4. As
discussed below, we are satisfied with
the justification for retiring Reliability
Standard FAC–008–3, Requirement R7
contained in NERC’s comments.
However, for the reasons discussed
below, we are not persuaded that it is
appropriate to retire Reliability
Standard FAC–008–3, Requirement R8.
Because the Commission, pursuant to
FPA section 215(d)(4), must remand to
NERC for further consideration a
proposed modification to a Reliability
Standard that the Commission
disapproves in whole or in part, we
remand proposed Reliability Standard
FAC–008–4 to address our concerns
with the retirement of Requirement R8.
B. Reliability Standard FAC–008–3,
Requirements R7 and R8
1. NERC Petition
28. Reliability Standard FAC–008–3,
Requirements R7 and R8 require
generator owners and transmission
owners, respectively, to provide facility
ratings and related information to
requesting reliability coordinators,
planning coordinators, transmission
planners, transmission owners and
transmission operators. NERC contends
that requirements in Reliability
Standards MOD–032–1, IRO–010–2, and
TOP–003–3 render the data provision
obligations of Requirements R7 and R8
in Reliability Standard FAC–008–3
redundant and, therefore, unnecessary
for reliability.46
29. To support its redundancy claim,
NERC explains that Reliability Standard
MOD–032–1 requires generator owners
and transmission owners to provide
information on power capabilities and
facility ratings (Requirement R2) to
enable planning coordinators and
transmission planners to ‘‘jointly
develop steady-state, dynamics, and
short circuit modeling data
requirements and reporting procedures
for the Planning Coordinator’s planning
area’’ (Requirement R1). NERC further
explains that Reliability Standard IRO–
010–2 requires reliability coordinators
to maintain ‘‘a documented
specification for the data necessary to
perform its Operational Planning
Analyses, Real-time monitoring, and
Real-time Assessments. This data
necessarily includes Facility Ratings as
45 Order

No. 788, 145 FERC ¶ 61,147 at P 1.
No. RM19–17–000 Petition at 15.

46 Docket

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Federal Register / Vol. 85, No. 200 / Thursday, October 15, 2020 / Rules and Regulations
inputs to System Operating Limit
monitoring.’’ 47 NERC notes that under
Requirement R3 of IRO–010–2, the
transmission owner and generator
owner must provide such data. Finally,
NERC points out that Reliability
Standard TOP–003–3 requires the
transmission operator to maintain data
specifications (Requirement R1) and the
transmission owner and generation
owner to provide the requested data
(Requirement R5). Relying on this
framework of data specification and
provision, NERC concludes that
Reliability Standard FAC–008–3,
Requirements R7 and R8 ‘‘are now
redundant to other more robust
Reliability Standards and are no longer
needed for reliability.’’ 48
2. NOPR

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30. While agreeing with NERC that
Reliability Standards MOD–032–1, IRO–
010–2 and TOP–003–3 provide a basis
for retiring certain elements of
Reliability Standard FAC–008–3,
Requirements R7 and R8, the
Commission stated that NERC’s petition
‘‘does not address other elements of
Requirements R7 and R8 that do not
appear to be redundant.’’ 49 The NOPR
explained that Reliability Standard
FAC–008–3, Requirements R7 and R8
require generation owners and
transmission owners to provide facility
ratings to several functional entity
types, including transmission owners.
The Commission observed that the three
Reliability Standards NERC claims to
render Requirements R7 and R8
redundant require generator owners and
transmission owners to provide facility
ratings to other functional entities,
including reliability coordinators,
planning coordinators, transmission
planners, and transmission operators,
they do not require the provision of
facility ratings to transmission owners.
The Commission expressed concern that
eliminating the mandatory exchange of
facility-related information with
transmission owners could ‘‘impact
reliability since these requirements
ensure that all transmission owners
have accurate facility-related
information in the models that they use
to plan and operate the bulk electric
system.’’ 50
31. The Commission also noted that
Reliability Standards MOD–032–1, IRO–
47 Id.

at 28.

48 Id.
49 NOPR,

170 FERC ¶ 61,032 at P 31.

50 Id.

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010–2, and TOP–003–3 do not address
sub-requirement R8.1.2 of Reliability
Standard FAC–008–3, relating to the
identity of the next most limiting
equipment of a requested facility.
Further, the Commission observed that
the Reliability Standards NERC claims
are redundant also do not account for
sub-requirement R8.2, which requires
the identification and thermal rating of
the existing next most limiting
equipment of facilities with a thermal
rating that limits the use of that facility
by causing either an Interconnection
Reliability Operating Limit, a limitation
of Total Transfer Capability, an
impediment to generator deliverability,
or an impediment to service to a major
load center as specified in FAC–008–3
(Requirement R8.2).51
32. Therefore, the Commission stated
that Reliability Standard FAC–008–3,
Requirements R7 and R8 do not appear
to be entirely redundant of the
Reliability Standards cited by NERC
and, if retired, could create reliability
gaps. The Commission sought
clarification from NERC because the
petition does not address these nonredundant elements of Requirements R7
and R8.
3. Comments
33. NERC, Trade Associations and
Appelbaum support the retirement of
Reliability Standard FAC–008–3,
Requirements R7 and R8, maintaining
that transmission owners do not need
facility ratings and related information
to perform their responsibilities.52 In
their view, transmission owners play a
more limited role than the planning and
operation function of the other
applicable entities in Reliability
Standard FAC–008–3. NERC notes that
the NERC Glossary describes
transmission owner as an ‘‘entity that
owns and maintains transmission
facilities’’ and that a transmission owner
is ‘‘not the functional entity directly
responsible for complying with
Reliability Standards for planning and
operating the Bulk Power System.’’ 53
Additionally, Appelbaum notes that ‘‘in
many cases’’ transmission owner and
51 This requirement was developed in response to
a directive in Order No. 693. Mandatory Reliability
Standards for the Bulk-Power System, Order No.
693, 118 FERC ¶ 61,218, at P 756, order on reh’g,
Order No. 693–A, 120 FERC ¶ 61,053 (2007); see
also NERC, Petition, Docket No. RD11–10–000, at
11–13, 20–21 (filed Jun. 15, 2011).
52 As discussed below, Appelbaum supports
retaining sub-requirement R8.2.
53 NERC Comments at 8 (citing NERC Glossary of
Terms Used in NERC Reliability Standards).

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65211

generation owner interconnection
agreements exist and contain provisions
governing how facilities are operated
and maintained, including the
methodology and responsibility for
rating facilities.54 By contrast
Bonneville commented, without
elaboration, that it agrees that Reliability
Standards FAC–008, Requirements R7
and R8 should be retained.55
34. NERC and Trade Associations
assert that entities with the
responsibility to plan and operate the
Bulk-Power System (i.e., transmission
operators and transmission planners)
obtain the information they need under
Reliability Standards MOD–032–1 and
TOP–003–3, and thus they do not
require Reliability Standard FAC–008–
3, Requirements R7 and R8.56 Trade
Associations state that ‘‘from a grid
reliability perspective, it is the
responsible Transmission Planner and
Transmission Operator that need the
facility ratings because they are
accountable for the reliable planning
and operation of the bulk electric
system, not the Transmission
Owner.’’ 57 Further, Trade Associations
note that the Commission previously
approved the retirement of Reliability
Standard FAC–008–3, Requirement R4,
which had similar obligations to
Requirements R7 and R8, based on the
Commission’s conclusion that the
requirement to make available such
facility ratings information was an
administrative task that provides little
protection for bulk electric system
reliability.58
35. In response to the Commission’s
concerns regarding Reliability Standard
FAC–008–3, sub-requirements 8.1.2 and
8.2, NERC and Trade Associations assert
that the ‘‘catch-all’’ provision in
Reliability Standard MOD–032–1,
Attachment 1 Data Reporting
Requirements, requires transmission
owners and generation owners to
provide ‘‘other information requested by
the planning coordinator or
transmission provider necessary for
modeling purposes,’’ which includes
data described in sub-requirements 8.1.2
and 8.2.59 Further, NERC and Trade
54 Appelbaum

Comments at 3.
Comments at 2.
56 NERC Comments at 8; Trade Association
Comments at 6.
57 Trade Association Comments at 7.
58 Id. (citing Order No. 788, 145 FERC ¶ 61,147 at
P 19).
59 NERC Comments at 8–9; Trade Association
Comments at 9.
55 Bonneville

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Associations assert that reliability
coordinators and transmission system
operators obtain this information under
the data specification requirements in
Reliability Standards IRO–010–2 and
TOP–003–3.60 NERC concludes that
‘‘[n]ow that these broader data
specification standards are in place,
NERC has identified no reliability need
to maintain additional requirements
expressly requiring the provision of this
data in the FAC–008 standards.’’ 61
36. Appelbaum contends that subrequirement 8.2 should be retained,
however, because it ‘‘support[s] reliable
operations under very limited
circumstances and very limited
locations, yet it is important enough to
retain.’’ 62 He explains that subrequirement 8.2 focuses on specific
circumstances, wherein having
knowledge of the increase in facility
rating based on the next most limiting
equipment improves system operations,
and therefore reliability, and ‘‘adds
resilience to the operation of the Bulk
Power System.’’ 63
4. Commission Determination

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37. Pursuant to FPA section 215(d)(4),
we remand proposed Reliability
Standard FAC–008–4. As discussed
below, we are satisfied with NERC’s
justification for retiring Reliability
Standard FAC–008–3, Requirement R7.
However, for the reasons discussed
below, we are not persuaded that it is
appropriate to retire Reliability
Standard FAC–008–3, Requirement R8.
Because the Commission, pursuant to
FPA section 215(d)(4), must remand to
NERC for further consideration a
proposed modification to a Reliability
Standard that the Commission
disapproves in whole or in part, we
remand proposed Reliability Standard
FAC–008–4 to address our concerns
with the retirement of Requirement R8.
38. Regarding Reliability Standard
FAC–008–3, Requirement R7, we are
persuaded that retiring Requirement R7
60 NERC Comments at 9; Trade Associations
Comments at 8–9 (‘‘Reliability Standard TOP–003–
3 (Operational Reliability Data) Requirements R3
and R5 require the provision of such information
through data specifications that are issued by
Transmission Operators.’’)
61 NERC Comments at 9.
62 Appelbaum Comments at 7 (referring to load
pockets that contain critical infrastructure, dense
populations, or have large financial impacts).
63 Id. at 6–7.

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will not result in a reliability gap
because Requirement R7 is redundant or
otherwise provides little or no reliability
benefit. We agree with NERC that,
unlike transmission operators and
transmission planners that need and
will continue to receive facility ratings
information under other Reliability
Standards, transmission owners do not
need to exchange facility ratings
because they have a more limited
functional role that does not involve
planning and operating the Bulk-Power
System. Only Bonneville, a registered
transmission owner, supported retaining
Requirement R7, and no transmission
owner submitted comments indicating
that it needed the facility ratings
information required under
Requirement R7.64 Moreover, the
Commission did not direct the inclusion
of transmission owners in Requirement
R7. Reliability Standard FAC–008–3,
Requirement R7 was formerly
designated Reliability Standard FAC–
009–1, Requirement R2. The
Commission approved Reliability
Standard FAC–009–1, Requirement R2
in Order No. 693 and did so without
requiring the sharing of facility ratings
information with transmission
owners.65
39. While we determine that the
retirement of Requirement R7 is
appropriate, we are not convinced that
the retirement of sub-requirements
R8.1.2 and 8.2 will not result in a
reliability gap. By retiring subrequirements R8.1.2 and 8.2,
transmission owners will no longer be
required to communicate ratings
information for solely owned limiting
and next most limiting equipment
present on jointly-owned facilities.
Without ratings information on limiting
and next most limiting equipment,
transmission owners could lack the
necessary information to correctly
calculate the ratings for their jointlyowned facilities. The Commission
recognized the importance of this type
of information exchange in Order No.
693 by directing NERC to require the
sharing of information regarding the
64 While Bonneville submitted comments
supporting the retention of Requirement R7,
Bonneville did not elaborate on its position.
65 Order No. 693, 118 FERC ¶ 61,218 at PP 772–
774. NERC subsequently added transmission
owners as recipients, without elaboration, when
NERC revised Reliability Standard FAC–008 and
retired Reliability Standard FAC–009.

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most limiting and next most limiting
equipment when requested.66
40. The transmission owner’s
obligation under Reliability Standard
FAC–008–3, Requirement R3 is also
impacted by the proposed retirement of
Requirement R8. Reliability Standard
FAC–008–3, Requirement R3 requires
transmission owners to have a
documented facility ratings
methodology for solely and jointly
owned facilities that, pursuant to
Requirement R3.3, includes a
‘‘statement that a Facility Rating shall
respect the most limiting applicable
Equipment Rating of the individual
equipment that comprises that Facility.’’
In order to rate equipment accurately to
avoid mis-ratings of jointly-owned
transmission lines, the transmission
owner needs information about the coowner’s most limiting equipment on
shared facilities. Therefore, under these
circumstances, we conclude that
Requirement R8 is needed to ensure that
limiting and next limiting equipment is
identified and communicated.
III. Information Collection Statement
41. The information collection
requirements contained in this final rule
are subject to review by the Office of
Management and Budget (OMB) under
section 3507(d) of the Paperwork
Reduction Act of 1995.67 OMB’s
regulations require approval of certain
information collection requirements
imposed by agency rules.68 Upon
approval of a collection of information,
OMB will assign an OMB control
number and expiration date.
Respondents subject to the filing
requirements of this 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.
42. The Commission estimates that
the final rule, which would retire 18
requirements of Reliability Standards
without adding any new obligations on
registered entities, would result in a
total reduction in burden for industry of
42,907.44 hours. The Commission based
the burden reduction estimates on staff
experience, knowledge, and expertise.
66 Order

No. 693, 118 FERC ¶ 61,218 at PP 755–

762.
67 44
68 5

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65213

REDUCTIONS DUE TO FINAL RULE IN DOCKET NOS. RM19–16 & RM19–17
Reliability standard & requirement

Type 69 and number
of entity

Number of
annual
responses per
entity

Total number
of responses

Average
number of
burden hours
per response

Total burden
hours

(1)

(2)

(1) * (2) = (3)

(4)

(3) * (4) = (5)

FERC–725A
FAC–013–2 ........................................................
INT–006–4 R3.1, R4, R5, R5.1, R5.2, R5.3,
R5.4, R5.5.
INT–004–3.1 .......................................................
INT–010–2.1 .......................................................
INT–009–2.1 R2 .................................................
MOD–020–0 .......................................................

RC (12) .......................
BA/TSP (169) ..............

8.33
1

100
169

26.67
56.3

2,667
9,514.7

BA (97) ........................
BA(97) .........................
BA (97) ........................
TP/RP/DP/BA (767) ....

1
1
1
1

97
97
97
767

56.3
56.3
56.3
14.4

5,461.1
5,461.1
5,461.1
11,044.8

Sub-Total for FERC–725A ..........................

1,239 ...........................

........................

1,327

........................

39,609.8

.25

426

0.8

340.8

........................

426

........................

340.8

FERC–725A(1C)
TOP–001–4 R19 & R22 .....................................
Sub-Total for FERC–725A(1C) ...................

BA/TO/GO/DP (1,704)
1,704 ...........................

FERC–725G1
PRC–004–5(i) R4 ...............................................

TO/GO/DP (1,607) ......

.41

659

4.36

2,873.24

Sub-Total for FERC–725G1 .......................

1,607 ...........................

........................

659

........................

2,873.24

FERC–725Z
IRO–002–6 R1 ...................................................

RC (12) .......................

1.17

14

5.97

83.6

Sub-Total for FERC–725Z ..........................

12 ................................

........................

14

........................

83.6

Total Reductions Due to Final Rule in
RM19–16 & RM19–17.

.....................................

........................

2,426

........................

42,907.44

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Titles: FERC–725A, Mandatory
Reliability Standards for the Bulk Power
System; FERC–725A(1C), Mandatory
Reliability Standards for Bulk-Power
System: Reliability Standard TOP–001–
4; FERC–725G1, Mandatory Reliability
Standards for the Bulk-Power System:
Reliability Standard PRC–004–5(i);
FERC–725Z, Mandatory Reliability
Standards: IRO Reliability Standards.
Action: Reductions to Existing
Collections of Information FERC–725A,
FERC–725A(1C), and FERC–725Z; and
Elimination of Collections of
Information, and FERC–725G1.
OMB Control Nos: 1902–0244 (FERC–
725A); 1902–0298 (FERC–
725A(1C));1902–0284 (FERC–725G1);
and 1902–0276 (FERC–725Z).
69 RC=Reliability Coordinator; BA=Balancing
Authority; TSP=Transmission Service Provider;
TO=Transmission Owner; GO=Generator Owner;
DP=Distribution Provider; TP=Transmission
Provider; and RP=Resource Planner. Our estimates
are based on the NERC Compliance Registry of July
17, 2020, which indicates there are 974 entities
registered as GOs, 321 entities registered as TOs, 97
entities registered as BAs, 72 entities registered as
TSPs, 198 entities registered as TPs312 entities
registered as DPs, 160 entities registered as RPs, and
12 entities registered as RCs within the United
States.

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Respondents: Business or other for
profit, and not for profit institutions.
Frequency of Responses: On occasion
(and proposed for deletion).
43. Necessity of the Information: This
proceeding approves the retirement of
four Reliability Standards in their
entirety and five revised Reliability
Standards, reflecting a total of 18 retired
requirements identified by NERC. The
approved retirements either: (1) Provide
little or no reliability benefit; (2) are
administrative in nature or relate
expressly to commercial or business
practices; or (3) are redundant with
other Reliability Standards.
44. Internal review: The Commission
has reviewed NERC’s proposal and
determined that its action is necessary
to implement section 215 of the FPA.
The Commission has assured itself, by
means of its internal review, that there
is specific, objective support for the
burden reduction estimates associated
with the information requirements
approved for retirement.
45. Interested persons may obtain
information on the reporting
requirements by contacting the Federal
Energy Regulatory Commission, Office

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of the Executive Director, 888 First
Street NE, Washington, DC 20426
[Attention: Ellen Brown, email:
[email protected], phone: (202)
502–8663, fax: (202) 273–0873].
46. Comments concerning the
information collections and
requirements approved for retirement in
this final rule and the associated burden
estimates, should be sent to the
Commission in this docket and may also
be sent to the Office of Management and
Budget, Office of Information and
Regulatory Affairs [Attention: Desk
Officer for the Federal Energy
Regulatory Commission]. For security
reasons, comments should be sent by
email to OMB at the following email
address: [email protected].
Please refer to the appropriate OMB
Control Number(s) and Docket Nos.
RM19–16–000 and RM19–17–000 in
your submission.

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V. Environmental Analysis

IV. Regulatory Flexibility Act
Certification
47. The Regulatory Flexibility Act of
1980 (RFA) 70 generally requires a
description and analysis of rulemakings
that will have significant economic
impact on a substantial number of small
entities. The RFA mandates
consideration of regulatory alternatives
that accomplish the stated objectives of
a rule and that minimize any significant
economic impact on a substantial
number of small entities. The Small
Business Administration’s Office of Size
Standards develops the numerical
definition of a small business.71 The
Small Business Administration has
established size standards, for the types
of affected entities (noted in the table
above), that range from a maximum of
250–1,000 employees for an entity and
its affiliates to be considered small.
48. The Commission estimates the
total industry reduction in burden for
all entities (large and small) to be
42,907.44 hours (or approximately 18
hours (rounded) per response). The
Commission believes that this will
reduce burden and cost for all affected
entities.
49. Based on the information above,
the Commission certifies that the
reductions will not have a significant
impact on a substantial number of small
entities. Accordingly, no initial
regulatory flexibility analysis is
required.

VI. Document Availability
51. In addition to publishing the full
text of this document in the Federal
Register, the Commission provides all
interested persons an opportunity to
view and/or print the contents of this
document via the internet through the
Commission’s Home Page (http://
www.ferc.gov) and in the Commission’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.
52. From the Commission’s Home
Page on the internet, this information is
available on eLibrary. The full text of
this document is available on eLibrary
in PDF and Microsoft Word format for
viewing, printing, and/or downloading.

VII. Effective Date and Congressional
Notification
54. This final rule is effective
December 14, 2020. The Commission
has determined, with the concurrence of
the Administrator of the Office of
Information and Regulatory Affairs of
OMB, that this rule is not a ‘‘major rule’’
as defined in section 351 of the Small
Business Regulatory Enforcement
Fairness Act of 1996. This final rule is
being submitted to the Senate, House,
and Government Accountability Office.
By direction of the Commission.
Issued: September 17, 2020.
Nathaniel J. Davis, Sr.,
Deputy Secretary.
Note: the following Appendix will not
appear in the Code of Federal Regulations.

Appendix
Commenters

Abbreviation

Commenter

NERC ..................................................................
Trade Associations .............................................

North American Electric Reliability Corporation.
American Public Power Association, Edison Electric Institute, Large Public Power Council, National Rural Electric Cooperative Association, Transmission Policy Study Group.
Bonneville Power Administration.
Western Area Power Administration.
Jonathan Appelbaum.

Bonneville ...........................................................
WAPA .................................................................
Appelbaum ..........................................................

ACTION:

[FR Doc. 2020–20972 Filed 10–14–20; 8:45 am]
BILLING CODE 6717–01–P

29 CFR Parts 1601 and 1626
RIN 3046–AB07

Procedural Regulations Under Title VII,
ADA, and GINA; Procedures—Age
Discrimination in Employment Act
Equal Employment
Opportunity Commission.

AGENCY:

70 5

U.S.C. 601–612.
CFR 121.101.

15:57 Oct 14, 2020

The Equal Employment
Opportunity Commission (EEOC or
Commission) is amending its procedural
regulations to explicitly provide for
digital transmissions of documents, to
clarify the process for deferral to state
and local agencies, to update no cause
determination procedures, and to
correct typographical and textual errors.
DATES: This final rule is effective on
November 16, 2020.
FOR FURTHER INFORMATION CONTACT:
Kathleen Oram, Assistant Legal
Counsel, (202) 663–4681 (voice) or
72 Regulations Implementing the National
Environmental Policy Act of 1969, Order No. 486,

71 13

VerDate Sep<11>2014

Final rule.

SUMMARY:

EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION

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50. The Commission is required to
prepare an Environmental Assessment
or an Environmental Impact Statement
for any action that may have a
significant adverse effect on the human
environment.72 The Commission has
categorically excluded certain actions
from this requirement as not having a
significant effect on the human
environment. Included in the exclusion
are rules that are clarifying, corrective,
or procedural or that do not
substantially change the effect of the
regulations being amended.73 The
actions approved here fall within this
categorical exclusion in the
Commission’s regulations.

To access this document in eLibrary,
type the docket number excluding the
last three digits of this document in the
docket number field.
53. User assistance is available for
eLibrary and the Commission’s website
during normal business hours from the
Commission’s Online Support at (202)
502–6652 (toll free at 1–866–208–3676)
or email at [email protected],
or the Public Reference Room at (202)
502–8371, TTY (202) 502–8659. Email
the Public Reference Room at
[email protected].

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[email protected]; Erin Norris,
Senior Attorney, Office of Legal
Counsel, (980) 296–1286 or erin.norris@
eeoc.gov.
On
February 22, 2019 (84 FR 5624), the
Equal Employment Opportunity
Commission (EEOC) published a notice
of proposed rulemaking (NPRM) in the
Federal Register seeking public
comment on proposed revisions to the
EEOC’s procedural regulations for
charges of employment discrimination.
The revisions are intended to serve
several purposes: First, they recognize

SUPPLEMENTARY INFORMATION:

52 FR 47897 (Dec. 17, 1987), FERC Stats. & Regs.,
Regulations Preambles 1986–1990 ¶ 30,783 (1987).
73 18 CFR 380.4(a)(2)(ii).

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