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Federal Register / Vol. 86, No. 121 / Monday, June 28, 2021 / Rules and Regulations
meter distributed energy resources participating as demand response resources in distributed energy resource aggregations does not constitute double counting, so long as the requirements of Order No. 745, including the net benefits test, are satisfied.104 Order No.
2222 provided that the requirements of Order No. 745 apply to demand response resources participating in heterogeneous aggregations.105 In Order No. 745, the Commission found that when a demand response resource is participating in an RTO/ISO market and dispatch of that demand response resource is cost-effective as determined by the net benefits test, that demand response resource must be compensated in the energy market at the LMP.106
Accordingly, in circumstances in which the net benefits test is satisfied, paying LMP to behind-the-meter distributed energy resources participating as demand response resources in distributed energy resource aggregations, without reflecting the savings load realized from not having to purchase electricity, does not reflect a double payment.107 We will evaluate, on compliance, any proposed distributed energy resource aggregation compensation rules regarding demand response for consistency with the requirements of Order No. 745.
However, with respect to compensation issues beyond the scope of Order No.
745, such as if a behind-the-meter resource participates as another type of distributed energy resource, we will not prejudge RTO/ISO proposals but rather evaluate them on compliance.
44. With respect to the participation of demand response resources in distributed energy resource aggregations, we clarify that, if an individual distributed energy resource is a behind-the-meter generator, it may participate within a distributed energy resource aggregation as a demand response resource or as a different type of distributed energy resource. If the distributed energy resource participates as demand response, the requirements in Order No. 745 would apply, and the RTOs/ISOs are required to allow that distributed energy resource to aggregate with other types of distributed energy resources in a heterogeneous distributed energy resource aggregation.108 If the khammond on DSKJM1Z7X2PROD with RULES

104 See
Order No. 2222, 172 FERC 61,247 at P

145.
105 Id.
106 Order No. 745A, 137 FERC 61,215 at P 64
citing Order No. 745, 134 FERC 61,187 at P 61.
107 See id.
108 See Order No. 2222, 172 FERC 61,247 at P
142 requiring RTOs/ISOs to allow heterogeneous DER aggregations; id. P 145 clarifying that the requirements in Order No. 745 apply to demand
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behind-the-meter resource participates as another type of distributed energy resource i.e., not as a demand response resource, the requirements in Order No.
745 would not apply.
45. We reiterate, however, that we will evaluate each RTOs/ISOs proposal submitted on compliance to determine whether it meets the goals of this final rule to allow distributed energy resources to provide all services that they are technically capable of providing through aggregation, 109 and accordingly, whether it appropriately compensates distributed energy resources for providing such services.
III. Information Collection Statement 46. The burden estimates have not changed from the final rule.
IV. Regulatory Flexibility Act 47. The Regulatory Flexibility Act of 1980 RFA 110 generally requires a description and analysis of final rules that will have significant economic impact on a substantial number of small entities. Pursuant to section 605b of the RFA, we still conclude that this rule will not have a significant economic impact on a substantial number of small entities.
V. Document Availability 48. 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 Commissions Home Page http
www.ferc.gov. At this time, the Commission has suspended access to the Commissions Public Reference Room due to the Presidents March 13, 2020 proclamation declaring a National Emergency concerning the Novel Coronavirus Disease COVID19.
49. From the Commissions 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.
50. User assistance is available for eLibrary and the Commissions website during normal business hours from FERC Online Support at 202502
6652 toll free at 18662083676 or email at ferconlinesupport@ferc.gov, or response resources participating in heterogeneous aggregations.
109 Order No. 2222, 172 FERC 61,247 at P 130.
110 5 U.S.C. 601612.

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the Public Reference Room at 202 502
8371, TTY 202 5028659. Email the Public Reference Room at public.referenceroom@ferc.gov.
VI. Effective Date and Congressional Notification 51. This rule is effective August 27, 2021.
By the Commission.
Commissioner Chatterjee is concurring with a separate statement attached.
Commissioner Danly is concurring with a separate statement attached.
Commissioner Christie is concurring in part and dissenting in part with a separate statement attached.
Issued: June 17, 2021.
Debbie-Anne A. Reese, Deputy Secretary.

Department of Energy Federal Energy Regulatory Commission Participation of Distributed Energy Resource Aggregations in Markets Operated by Regional Transmission Organizations and Independent System Operators Docket No. RM189003
CHATTERJEE, Commissioner, concurring:
1. I concur with todays order because it continues to find that the Commission was under no legal obligation to provide the Order No. 719 opt-out.1
2. I write separately to reiterate and emphasize my support for eliminating the Order No. 719 opt-out, which has for years prevented demand response resources in many states from participating in our wholesale markets.
The outdated Order No. 719 opt-out cannot be reconciled with the competitive principles underpinning Order No. 2222 and the Commissions statutory responsibility to ensure rates subject to the Commissions jurisdiction are just and reasonable and not unduly discriminatory or preferential.2 There is no reasonable explanation as to why the Commission should maintain the Order No. 719 opt-out and treat demand response resources differently from all other distributed energy resources.
1 Participation of Distributed Energy Resource Aggregations in Markets Operated by Regional Transmission Organizations and Independent System Operators, Order No. 2222B, 175 FERC
61,227 at P 27 2021. See Order No. 2222, 172
FERC 61,247 at P 59 explaining that the Commission was not obligated to provide an optout in Order No. 719 but did so as an exercise of its discretion; see also NARUC, 964 F.3d at 1187
Because FERC has the exclusive authority to determine who may participate in the wholesale markets, the Supremacy Clause . . . requires that states not interfere..
2 16 U.S.C. 824e.

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