Grid Security Emergency Orders: Procedures for Issuance, 1174-1182 [2018-00259]

Agencies

• DEPARTMENT OF ENERGY

[Federal Register Volume 83, Number 7 (Wednesday, January 10, 2018)]
[Rules and Regulations]
[Pages 1174-1182]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-00259]


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DEPARTMENT OF ENERGY

10 CFR Part 205

RIN 1901-AB40


Grid Security Emergency Orders: Procedures for Issuance

AGENCY: Office of Electricity Delivery and Energy Reliability, U.S. 
Department of Energy.

ACTION: Final rule.

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SUMMARY: The U.S. Department of Energy (``DOE'') is issuing a final 
rule that establishes procedural regulations concerning the Secretary 
of Energy's issuance of an emergency order under the Federal Power Act. 
The statute authorizes the Secretary of Energy to order emergency 
measures, following a Presidential declaration of a grid security 
emergency, to protect or restore the reliability of critical electric 
infrastructure or defense critical electric infrastructure during the 
emergency. A grid security emergency could result from a physical 
attack, a cyber-attack using electronic communication, an 
electromagnetic pulse (EMP), or a geomagnetic storm event, damaging 
certain electricity infrastructure assets and impairing the reliability 
of the Nation's power grid. The procedures established by this final 
rule will ensure the expeditious issuance of emergency orders under the 
Federal Power Act.

DATES: These procedures are effective as of January 10, 2018.

FOR FURTHER INFORMATION CONTACT: Jeffrey Baumgartner, (202) 586-1411; 
U.S. Department of Energy, Office of Electricity Delivery and Energy 
Reliability, Mailstop OE-20, Room 8G-017, 1000 Independence Avenue SW, 
Washington, DC 20585; or [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    The Fixing America's Surface Transportation Act (FAST Act or the 
Act), Public Law 114-94, contains several provisions designed to 
protect and enhance the Nation's electric power delivery 
infrastructure. Section 61003 adds a new section 215A, titled 
``Critical Electric Infrastructure Security,'' to Part II of the 
Federal Power Act (FPA), codified at 16 U.S.C. 824o-1. New section 
215A(a) defines, among other terms, a ``grid security emergency,'' and 
authorizes the Secretary of Energy to order emergency measures after 
the President declares a grid security emergency. A grid security 
emergency could result from a physical attack, a cyber-attack using 
electronic communication, an electromagnetic pulse (EMP), or a 
geomagnetic storm event, damaging certain electricity infrastructure 
assets and impairing the reliability of the Nation's power grid. 
Emergency orders responding to grid security emergencies would aim to 
mitigate or eliminate threats to reliability as quickly and efficiently 
as possible.
    The statute authorizes the Secretary of Energy to issue orders for 
emergency measures as are necessary, in the Secretary's judgment, to 
protect or restore the reliability of critical electric infrastructure 
or defense critical electric infrastructure during the emergency.

[[Page 1175]]

Critically, the Department's centralized direction following a declared 
grid security emergency will help the Department to coordinate 
resources efficiently to minimize the impact of the emergency.
    The authority granted in section 215A of the FPA supplements the 
Secretary's existing authority, under section 202(c) of the FPA, to 
order temporary emergency measures, if the Secretary finds ``that an 
emergency exists by reason of a sudden increase in the demand for 
electric energy, or a shortage of electric energy or of facilities for 
the generation or transmission of electric energy, or of fuel or water 
for generating facilities, or other causes,'' that the Secretary 
believes ``will best meet the emergency and serve the public 
interest.'' To that end, the Secretary may issue orders under section 
202(c) of the FPA requiring the ``temporary connections of facilities 
and such generation, delivery, interchange, or transmission of electric 
energy'' to best meet the emergency and serve the public interest.
    The new section 215A(b) also directs the Secretary, ``after notice 
and opportunity for comment,'' to ``establish rules of procedure that 
ensure that such authority can be exercised expeditiously.'' To ensure 
that stakeholders and the public understand how the Department would 
issue an order responding to a grid security emergency, the Department 
published a notice of proposed rulemaking in the Federal Register on 
December 7, 2016 (81 FR 88136) to establish procedures to implement 
section 61003 of the FAST Act. After consideration of the comments 
received, as discussed in Section II of this preamble, the Department 
issues this final rule to establish the procedures it would expect to 
follow in the event of such an emergency. These procedures are added to 
the existing subpart W in 10 CFR part 205.
    The final rule establishes a consistent yet flexible set of 
procedures by which the Secretary will engage potentially impacted 
parties in the issuance of emergency orders under new section 215A(b) 
of the FPA.

II. Discussion of Comments

    Comments were submitted by entities representing components of the 
electricity subsector, State governments, the general public, and other 
interested parties. Commenters included the American Public Power 
Association, Berkshire Hathaway Energy, the Edison Electric Institute, 
the EIS Council, Grid Assurance, the Independent System Operator 
Regional Transmission Operator Council, the Large Public Power Council, 
the National Association of State Energy Officials, the Nuclear Energy 
Institute, the North American Electric Reliability Corporation, the 
National Rural Electricity Cooperative Association, the Pennsylvania 
Public Utility Commission, and Transmission Access Policy Study Group. 
The comments expressed support for the proposed rule, sought additional 
clarity, highlighted issues and concerns, or offered suggestions for 
modifications to the proposed rule. DOE has considered all of the 
comments in developing the final rule, and has made changes to the 
proposal as a result of the comments, as described below.
    Many commenters expressed the need to integrate issues pertaining 
to grid security emergencies into the ongoing partnership between DOE 
and the electric subsector to enhance emergency preparedness. The 
electricity industry has implemented, and continues to develop, 
extensive capabilities and procedures, such as cyber mutual aid 
networks, to mitigate impacts from catastrophic events that can cause a 
grid security emergency. The Department is committed to working with 
all necessary parties through existing mechanisms such as the 
Electricity Subsector Coordinating Council (ESCC) and the Electricity 
Information Sharing and Analysis Center (E-ISAC) to align emergency 
measures with ongoing preparedness activities. These efforts, including 
training and exercises, will seek to ensure that the electricity 
subsector and other relevant stakeholders are provided necessary 
information, where appropriate, to inform planning and preparedness for 
potential emergency orders for a grid security emergency, including 
identifying methods to ensure the prompt and secure communication of 
emergency orders. Sustained coordination with these ongoing 
preparedness activities will enhance crisis management activities and 
will help ensure effective integration of capabilities and resources 
during grid security emergencies. DOE intends to conduct additional 
outreach to the electricity subsector subsequent to issuance of this 
final rule. DOE's plans include continuing to organize and participate 
in emergency exercises and discussions at appropriate subsector forums, 
such as those focused on security. The intent is to help subsector 
entities understand their involvement in developing a potential grid 
security emergency order.
    Several commenters asked for revision or clarification of defined 
terms, including the term ``emergency measures'' and the enumeration of 
agencies involved in coordinating responses to grid security emergency 
orders. The final rule defines ``emergency measures'' and ``electric 
reliability organization'' in response to commenters' concerns, and 
Sec. Sec.  205.383 and 205.384 capture the range of entities 
potentially responsible for consultation and response. Another comment 
asked the Department to interpret the bulk-power system according to 
the FERC-approved definition of ``bulk electric system.'' The 
Department declines to adopt an interpretation of ``bulk-power system'' 
different from the statutory definition in the Federal Power Act.
    In defining the procedures for consultation prior to the issuance 
of an emergency order, listed in Sec.  205.383 of the final rule, 
commenters sought assurance that the Department will seek input from 
external parties. Many commenters, particularly those representing the 
electricity industry, expressed the necessity of aligning consultation 
procedures with existing emergency management protocols in the energy 
sector. This included highlighting the important role of the senior DOE 
leadership involvement with the ESCC as a coordinating body that could 
help maximize the effectiveness of any potential emergency order. 
Commenters also sought assurance that appropriate Federal and State 
entities would be engaged prior to the issuance of the order, to ensure 
emergency orders benefit from the expertise of electric grid owners and 
operators, as well as to maintain compliance with existing regulatory 
requirements.
    In response to these concerns, the Department has clarified in the 
final rule its intention to use existing protocols and mechanisms to 
consult and engage with all necessary parties, with the text at Sec.  
205.383 expanded to include State agencies, the Nuclear Regulatory 
Commission, and relevant trade and industry associations, prior to the 
issuance of any emergency order. The procedures established by this 
final rule also continue to ensure the Secretary retains the 
flexibility to act in accordance with the conditions presented by the 
grid security emergency.
    The importance of utilizing existing mechanisms and protocols for 
communicating emergency orders to impacted parties under the procedures 
detailed in Sec.  205.384 was also expressed by commenters. Commenters 
stressed the existence of detailed frameworks for crisis communication 
within the electricity subsector, and sought additional clarity on the 
means by

[[Page 1176]]

which the Department intends to communicate grid security emergency 
orders. The Department is supportive of these suggestions, and has 
adapted Sec.  205.384 of the final rule to more clearly express DOE's 
intention to align any orders with existing frameworks, such as 
Emergency Support Function (ESF) #12 and the National Response 
Framework. The Department also intends to work with the electricity 
subsector to identify options for most effectively communicating 
emergency orders under a range of potential scenarios.
    Concerns were raised about procedures for governing interactions 
between the Department and potentially impacted parties after the 
issuance of an emergency order covered under Sec. Sec.  205.385 to 
205.389 of the final rule. These sections in the final rule are 
intended to supplement existing authorities, including federal electric 
reliability standards, to ensure the expeditious issuance of emergency 
orders by the Secretary under the FPA. To ensure consistency between 
the procedures for the utilization of various authorities held by the 
Department under the FPA, DOE will consider comments submitted in 
response to the proposed rule in any review of procedures governing the 
issuance of emergency orders under section 202(c) of the FPA.
    A number of changes were made to Sec. Sec.  205.385 to 205.389 of 
the final rule to address comments specific to the process for issuing 
emergency orders in response to a grid security emergency. Language was 
added to Sec.  205.385 of the final rule to encourage any entity that 
believes that an issued emergency order lacks necessary clarity for 
implementation, or conflicts with the technically feasible operations 
of the electric grid or existing regulatory requirements, to seek 
immediate clarification from DOE. Section 205.386 of the final rule was 
expanded to provide additional clarity on the treatment of sensitive 
information, particularly critical electric infrastructure information 
(CEII), which will be addressed in accordance with DOE Freedom of 
Information Act (FOIA) procedural regulations. Revisions to Sec.  
205.387 of the final rule provide the Secretary with the flexibility to 
align the requirements for tracking compliance with an emergency order 
to the conditions presented by the grid security emergency. In response 
to comments concerning DOE's enforcement authorities, Sec.  205.388 was 
revised to clarify that DOE may pursue all legally authorized 
enforcement authorities. DOE does not resolve specific questions about 
its enforcement authorities in this procedural rule. Procedures for 
rehearing and judicial review under Sec.  205.389 of the final rule 
were revised to more closely align with Sec.  205.385 of the final 
rule--specifically, to allow a filing entity to request clarification 
or reconsideration, as well as rehearing, in a single filing if so 
designated. In addition, Sec.  205.391 of the proposed rule regarding 
cost recovery has been omitted to avoid confusion with the statutory 
text, which is sufficiently detailed. Section 205.386 of the proposed 
rule, concerning termination of an order, was moved to Sec.  205.391 of 
the final rule to follow a more chronological order.
    One commenter suggested that the final rule set out methods of 
communication to ensure that, in the event of a maliciously motivated 
grid security emergency, evidence of criminal activity is not 
accidentally or deliberately destroyed. In accordance with Presidential 
Policy Directive 41 (United States Cyber Incident Coordination), DOE 
will defer to the Department of Justice regarding communications to 
ensure preservation of evidence of criminal activity.
    Comments were also received that supported restricting the 
Department's ability to issue an emergency order responding to a grid 
security emergency, such that the Department could not use the full 
statutory authority granted by the FAST Act to respond to such 
emergencies. For example, a commenter sought clarification on exactly 
how a request for an emergency order should be carried out, and another 
commenter urged vetting by the ESCC before issuance of an order. Given 
the need for flexibility to respond to any grid security emergency that 
may arise, DOE did not revise the proposal in light of those comments.

III. Summary of Final Rule

A. Definitions

    The final rule defines key terms in Sec.  205.380. Further 
explanation for the defined terms is provided in the paragraphs that 
follow.
    ``Bulk-power system'' encompasses the facilities used to transmit 
electricity and energy needed to maintain the reliability of that 
system of interconnected facilities--in essence, the electric power 
grid for which the President might declare a grid security emergency 
and authorize the Secretary to issue emergency orders to protect or 
restore its reliability. The term excludes facilities used in local 
electric distribution.
    ``Electric Reliability Organization'' refers to the organization, 
certified by the Federal Energy Regulatory Commission (FERC) under 
section 215(c) of the FPA, which establishes and enforces reliability 
standards with FERC oversight. As of this rulemaking, the FERC's 
designated Electric Reliability Organization is the North American 
Electric Reliability Corporation (NERC).
    ``Electricity Information Sharing and Analysis Center'' (E-ISAC) 
refers to the organization, operated on behalf of the electricity 
subsector by the North American Electric Reliability Corporation, that 
gathers and analyzes security information, coordinates incident 
management, and communicates mitigation strategies with stakeholders 
within the electricity subsector, across interdependent sectors, and 
with government partners. E-ISAC is one of the organizations with which 
the Secretary will consult, to the extent practicable, in issuing an 
emergency order.
    The ``Electricity Subsector Coordinating Council'' (ESCC) refers to 
the organization that aims to foster and facilitate the coordination of 
sector-wide, policy-related activities and initiatives designed to 
improve the reliability and resilience of the electricity subsector, 
including physical and cyber security infrastructure. The ESCC is one 
of the organizations with which the Secretary will consult, to the 
extent practicable, in issuing an emergency order.
    ``Electricity subsector'' means both commercial and industrial 
actors who generate and deliver electric power, along with the 
facilities those actors use to generate and deliver electric power.
    ``Electromagnetic pulse'' means one (1) or more pulses of 
electromagnetic energy emitted by a device capable of disabling or 
disrupting operation of, or destroying, electronic devices or 
communications networks, including hardware, software, and data, by 
means of such a pulse.
    The ``Emergency & Incident Management Council'' (EIMC) refers to 
the organization, internal to the Department and chaired by the Deputy 
Secretary of Energy, designed to increase cooperation and coordination 
across the Department to prepare for, mitigate, respond to, and recover 
from emergencies. The EIMC plays a central role in grid security 
emergency orders, as it will meet, if practicable, after the President 
declares a grid security emergency to prepare recommendations to the 
Secretary.
    ``Geomagnetic storm'' means a temporary disturbance of the Earth's

[[Page 1177]]

magnetic field resulting from solar activity. These natural phenomena 
are sometimes powerful enough to disrupt the bulk-power system. If the 
disruption is sufficiently severe, a grid security emergency could 
result.
    ``Regional entity'' refers to organizations responsible for 
enforcing reliability standards for the bulk-power system in certain, 
defined regions. These organizations operate under NERC and FERC 
oversight.

B. Summary of Final Rule

    The final rule establishes procedures by which the Secretary 
intends to issue emergency orders in response to a grid security 
emergency. The Secretary is authorized to issue emergency orders 
``[w]henever the President issues and provides to the Secretary [of 
Energy] a written directive or determination identifying a grid 
security emergency.'' The purpose of an emergency order is to designate 
``emergency measures as are necessary in the judgment of the Secretary 
to protect or restore the reliability of critical electric 
infrastructure or of defense critical electric infrastructure during 
such emergency.'' The declaration of a grid security emergency does not 
preclude electric utilities from taking time-sensitive action to secure 
the safety, security, or reliability of the electric grid prior to the 
issuance of an emergency order.
    Responses to grid disruptions will need to be tailored to the 
particular circumstances of any event, and this final rule will assist 
the Department in exercising its authority to respond as necessary to 
mitigate the effects of a grid security emergency. Because the nature 
of a grid security emergency is uncertain, the procedures allow for 
flexibility in response measures and, as the statute requires, to 
``ensure that such authority can be exercised expeditiously.'' While 
the procedures in this final rule are expected to produce the most 
efficient and effective emergency response possible under the 
circumstances, the Secretary has final authority to issue appropriate 
grid security emergency orders.
    In this final rule, the Department details procedures for outreach; 
consultation; communication of orders; clarification or reconsideration 
of orders; temporary access to classified and sensitive information; 
termination of orders; tracking compliance with an order; enforcement; 
rehearing and judicial review; and liability exemption pertinent to the 
issuance of orders resulting from a grid security emergency. These 
procedures are intended to establish a common framework for engagement 
with all potentially impacted entities, while providing the Department 
with the maximum flexibility necessary to best respond to the unique 
conditions presented by any action that may constitute a grid security 
emergency.
    As described in Sec.  205.381 of the final rule, emergency orders 
issued under section 215A(b) of the FPA may apply to the pertinent 
Electric Reliability Organization (NERC, as of this rulemaking), 
regional entity or entities, or ``any owner, user, or operator of 
critical electric infrastructure or of defense critical electric 
infrastructure within the United States.''
    In the event of a grid security emergency, DOE will immediately 
activate its unified command structure and coordinate outreach efforts. 
DOE expects that the EIMC will anchor the Department's proposed 
response via its recommendations to the Secretary. Based on the nature 
and timing of the grid security emergency, however, the Secretary 
maintains discretion, based on a judgment of the relevant 
circumstances, to issue an emergency order without EIMC input. To the 
extent practicable, DOE will promptly alert stakeholders impacted by 
the grid security emergency through existing alert mechanisms, such as 
the NERC alert system and ESCC communication coordination processes.
    Section 205.382 of the final rule outlines the EIMC procedures. 
When the Department is notified, in writing, that the President has 
declared a grid security emergency and has directed the Secretary to 
order emergency response measures, the EIMC will be activated. The EIMC 
will create ad hoc task groups, assign recommendation development tasks 
to these groups, and coordinate the Department's consultation efforts. 
The EIMC may take other actions but only as necessary and practicable 
to develop the Department's recommendations to the Secretary. After the 
EIMC makes its recommendations, the Secretary will issue the emergency 
order.
    Consistent with the Department's longstanding practice, all 
reasonable efforts will be made to consult with stakeholders prior to 
the issuance of an emergency order. The statute also requires the 
Secretary to consult with other governmental authorities and non-
governmental entities before issuing emergency orders, ``to the extent 
practicable in light of the nature of the grid security emergency and 
the urgency of the need for action.'' The Department understands that 
electric reliability organizations and private industry will likely be 
impacted by grid security emergencies, and can offer important 
situational awareness and expertise to assist the Department in 
identifying mitigation or protection measures. The Department also 
recognizes the importance of aligning consultation efforts with the 
existing ESF #12 structure, Presidential Policy Directive 41, emergency 
management practices under the National Response Framework, and 
existing entities for coordination between government and industry, 
such as the ESCC and E-ISAC.
    Section 205.383 outlines how the Department will coordinate its 
communication with other entities. Within the Department, the Office of 
Electricity Delivery and Energy Reliability (OE) will be the lead 
program office supporting the Secretary in issuing grid security 
emergency orders. As set forth in this final rule, OE would be 
responsible for conducting the required consultations under the 
statute. Consultation would include the Department's effort to obtain 
information and recommended emergency measures from government 
entities,\1\ electric reliability organization, and owners, users, or 
operators of critical electric infrastructure or of defense critical 
electric infrastructure--including private-sector entities--impacted by 
the grid security emergency. Historically, the Department has 
collaborated with other Federal agencies in an energy emergency to 
obtain waivers or special permits to facilitate expedited restoration. 
The Department also intends to work with other Federal agencies during 
grid security emergencies to obtain waivers or special permits 
necessary to comply with the Secretary's order.
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    \1\ DOE notes that the regulatory text of Sec.  205.383 
discusses consultation with agencies supporting ESF #12. For 
clarification, ESF #12 outlines the Department of Energy's 
responsibilities to help reestablish damaged energy systems and 
components when an incident requires a coordinated Federal response. 
The scope of ESF #12 includes providing technical expertise; 
collecting, evaluating, and sharing information on energy system 
damage; estimating the impact of system outages locally, regionally, 
and nationally; helping government and private sector entities 
overcome challenges in reestablishing energy systems; and providing 
information about the status of energy reestablishment efforts.
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    After the Secretary issues an emergency order, the Department will 
communicate the emergency order's content to the entities subject to 
the emergency order, as noted in Sec.  205.384 of the final rule. The 
Department will also align communication with the existing ESF #12 
structure and emergency management procedures under the National 
Response Framework, and enlist the ESCC and E-

[[Page 1178]]

ISAC to communicate the emergency order's content to those affected, 
when appropriate. The Department will also use any other form of 
communication most appropriate under the circumstances. Optimal 
communication on grid security emergencies will be paramount during 
such emergencies, and the Department will work to ensure that 
information is shared that will help it to respond most effectively. 
For that reason, according to Sec.  205.384 of the final rule, and 
consistent with obligations to protect classified information and the 
procedures established in Sec.  205.386 of the final rule, the 
Secretary may declassify information eligible for that change in status 
to ensure maximum distribution of information critical to the emergency 
response. CEII will be handled in accordance with DOE FOIA regulations 
at 10 CFR part 1004.
    This final rule is limited to the Department's procedures for 
issuing an emergency order in response to a grid security emergency. 
Should the Secretary issue such an emergency order, the order itself 
would set out the requirements and procedures for impacted entities to 
seek clarification or reconsideration of that particular order. Section 
205.385 of the final rule provides general requirements for such 
requests. In particular, this section of the final rule provides that 
anyone subject to a particular order may submit a request for 
clarification or reconsideration in writing to the Secretary, and 
encourages this in cases where the ordered entity believes the 
emergency order lacks necessary clarity for implementation, or 
conflicts with the technically feasible operations of the electric grid 
or existing regulatory requirements. Such requests would be posted on 
the Department's website consistent with criteria established for 
treatment of critical electric infrastructure information. In acting on 
a request for clarification or reconsideration, the Secretary may grant 
or deny the request, or may abrogate or modify the final order, in 
whole or in part, with or without further proceedings, as soon as 
practicable. Such a request would not stay an emergency order unless 
the Secretary so determined.
    Section 205.386 of the final rule provides that, as warranted and 
to the extent practicable and consistent with obligations to protect 
classified information, the Secretary may allow key personnel of 
ordered entities temporary access to classified information.
    As described in Sec.  205.387 of the final rule, the Department 
also plans to determine compliance with grid security emergency orders. 
At the time the Department issues an emergency order, or shortly after 
such issuance, the Department may require the ordered party to provide 
a detailed account of compliance actions.
    As noted in Sec.  205.388 of the final rule, the Department may 
take enforcement action for failure to comply with orders issued under 
section 215A. For appeal purposes, as noted in Sec.  205.389 of the 
final rule, the FPA includes the requirements for a rehearing request 
and the process for an appeal of a decision.
    Finally, the FAST Act shields parties affected by emergency orders 
from liability for what would otherwise be violations of the FPA or 
FERC-approved reliability standards, except in cases of gross 
negligence. New section 215A(f) of the FPA states that any action or 
omission taken to comply with an emergency order that causes 
noncompliance ``with any rule, order, regulation, or provision'' of the 
FPA, as well as any FERC-approved reliability standard, ``shall not be 
considered a violation'' of that legal requirement. The same subsection 
of the Federal Power Act incorporates the liability protection for 
emergency orders issued under section 202(c) of the FPA. That 
protection, for actions or omissions resulting in noncompliance with 
``any Federal, State, or local environmental law or regulation,'' not 
only frees the ordered party from violations of those laws or 
regulations, but also shields the ordered party from ``any requirement, 
civil or criminal liability, or a citizen suit under such environmental 
law or regulation,'' even if a court subsequently stays, modifies, or 
sets aside the order. Section 205.390 of the final rule describes all 
of these protections.
    Section 205.391 of the final rule describes termination of 
emergency orders. An emergency order remains effective for up to 
fifteen (15) days and may be extended for subsequent periods of up to 
15 days if the President issues another directive to the Secretary that 
the original grid security emergency has not ended or that the 
emergency measures already ordered are still required. If warranted, 
the Secretary may also terminate an emergency order before the 15 days 
have elapsed. The entity or entities subject to the emergency order may 
also request that the Secretary terminate an emergency order if the 
entity or entities believes that the grid security emergency ceases to 
exist and that protection or restoration of the grid has been achieved.

IV. Regulatory Review

A. Executive Order 12866

    This final rule has been determined to be a significant regulatory 
action under Executive Order 12866, ``Regulatory Planning and Review,'' 
58 FR 51,735 (Oct. 4, 1993). Accordingly, this action was subject to 
review under that Executive Order by the Office of Information and 
Regulatory Affairs of the Office of Management and Budget.

B. National Environmental Policy Act

    DOE has determined that this final rule is covered under 
Categorical Exclusions found in the DOE's National Environmental Policy 
Act regulations at appendix A to subpart D, 10 CFR part 1021, 
specifically A1, A6, A9, A11, A12, and A13. Accordingly, neither an 
environmental assessment nor an environmental impact statement is 
required.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires 
preparation of an initial regulatory flexibility analysis for any rule 
that by law must be proposed for public comment, unless the agency 
certifies that the rule, if promulgated, will not have a significant 
economic impact on a substantial number of small entities. As required 
by Executive Order 13272, ``Proper Consideration of Small Entities in 
Agency Rulemaking,'' 67 FR 53461 (Aug. 16, 2002), DOE published 
procedures and policies on February 19, 2003, to ensure that the 
potential impacts of its rules on small entities are properly 
considered during the rulemaking process (68 FR 7990). DOE's procedures 
and policies are available on the Office of General Counsel's website: 
https://www.energy.gov/gc/downloads/executive-order-13272-consideration-small-entities-agency-rulemaking.
    DOE has reviewed this final rule under the provisions of the 
Regulatory Flexibility Act and the procedures and policies published on 
February 19, 2003. This final rule sets forth procedures that DOE 
expects to use to issue an emergency order in the event of a declared 
grid security emergency. The procedures govern DOE activities in the 
issuance of an emergency order and therefore impact DOE, a Federal 
agency, rather than any small entities.
    DOE further expects that these emergency orders would be issued 
rarely. In addition, the FAST Act authorizes DOE to issue emergency 
orders only to specific entities--namely, the pertinent Electric 
Reliability Organization (NERC, as of this rulemaking), regional entity 
or entities,

[[Page 1179]]

or any owner, user or operator of critical energy infrastructure or 
defense critical energy infrastructure. DOE has determined that these 
entities most likely fall under NAICS code 221121, ``Electric Bulk 
Power Transmission and Control.'' To be considered a small entity, 
these businesses must have 500 employees or less. Due to the nature of 
the orders to protect and/or restore infrastructure, DOE has determined 
that it is likely to consult with large businesses.
    An entity subject to an emergency order may request clarification 
or rehearing of an emergency order, or the termination of an emergency 
order. DOE does not expect that these provisions, which would help an 
entity to understand an emergency order or, in the case of a 
termination granted by the Secretary, end the applicability of an 
emergency order, to impose a significant impact on any entity. DOE may 
also consult with any of these entities to understand a grid security 
emergency and to obtain recommendations to address such emergency. DOE 
also does not expect these consultations to result in a significant 
impact on any entity because the interaction would not order the entity 
to perform any action, but would rather be an exchange of information 
to help DOE understand the grid security emergency and consider 
measures to protect and/or restore infrastructure. In addition, it is 
likely that only entities with equities that could be impacted by 
emergency orders would be consulted. In the event that an emergency 
order is issued to address a grid security emergency, because the 
contents of any such order would be highly dependent upon the nature of 
the particular grid security emergency, DOE again emphasizes that the 
emergency order itself, rather than these procedures, would specify the 
requirements necessary to address that grid security emergency.
    DOE's certification of no significant impact on a substantial 
number of small entities and its supporting statement of factual basis 
were provided to the Chief Counsel for Advocacy of the Small Business 
Administration subsequent to issuance of the proposed procedures, 
pursuant to 5 U.S.C. 605(b). DOE made only minor changes to the 
proposal that did not affect the initial regulatory flexibility 
analysis prepared for the proposed rule. DOE did not receive comments 
on the certification, and any comments on the economic impact of the 
rule were addressed elsewhere in the preamble. DOE made only minor 
changes to the proposal that did not affect the certification and 
factual basis prepared for the proposed rule.
    On the basis of the foregoing, DOE certifies that this final rule 
will not have a significant economic impact on a substantial number of 
small entities. Accordingly, DOE has not prepared a regulatory 
flexibility analysis for this rulemaking.

D. Paperwork Reduction Act

    This final rule does not contain information collection 
requirements subject to approval by the Office of Management and Budget 
pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et 
seq.) and the procedures implementing that Act at 5 CFR part 1320. A 
person is not required to respond to a collection of information unless 
it displays a currently valid OMB control number.

E. Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) generally 
requires Federal agencies to examine closely the impacts of regulatory 
actions on State, local, and tribal governments. Section 101(5) of 
title I of that law defines a Federal intergovernmental mandate to 
include any regulation that would impose upon State, local, or tribal 
governments an enforceable duty, except a condition of Federal 
assistance or a duty arising from participating in a voluntary federal 
program. Title II of that law requires each Federal agency to assess 
the effects of Federal regulatory actions on State, local, and tribal 
governments, in the aggregate, or to the private sector, other than to 
the extent such actions merely incorporate requirements specifically 
set forth in a statute. Section 202 of that title requires a Federal 
agency to perform a detailed assessment of the anticipated costs and 
benefits of any rule that includes a Federal mandate which may result 
in costs to State, local, or tribal governments, or to the private 
sector, of $100 million or more in any one year (adjusted annually for 
inflation). 2 U.S.C. 1532(a) and (b). Section 204 of that title 
requires each agency that proposes a rule containing a significant 
Federal intergovernmental mandate to develop an effective process for 
obtaining meaningful and timely input from elected officers of State, 
local, and tribal governments. 2 U.S.C. 1534.
    This final rule will establish the procedures DOE expects to use 
issue an emergency order in the event of a declared grid security 
emergency. In the event that an emergency order is issued to address a 
grid security emergency, the order itself, rather than these 
procedures, would specify the requirements necessary to address the 
grid security emergency. The final rule will not result in the 
expenditure by State, local, and tribal governments in the aggregate, 
or by the private sector, of $100 million or more in any one year. 
Accordingly, no assessment or analysis is required under the Unfunded 
Mandates Reform Act of 1995.

F. Treasury and General Government Appropriations Act, 1999

    Section 654 of the Treasury and General Government Appropriations 
Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family 
Policymaking Assessment for any proposed rule that may affect family 
well-being. The final rule will not have any impact on the autonomy or 
integrity of the family as an institution. Accordingly, DOE has 
concluded that it is not necessary to prepare a Family Policymaking 
Assessment.

G. Executive Order 13132

    Executive Order 13132, ``Federalism,'' 64 FR 43255 (Aug. 4, 1999), 
imposes certain requirements on agencies formulating and implementing 
policies or regulations that preempt State law or that have federalism 
implications. Agencies are required to examine the constitutional and 
statutory authority supporting any action that would limit the 
policymaking discretion of the States and carefully assess the 
necessity for such actions. DOE has examined this final rule and has 
determined that it will not preempt State law and will not have a 
substantial direct effect on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government. This final 
rule would establish the procedures DOE expects to use issue an 
emergency order in the event of a declared grid security emergency. In 
the event that an emergency order is issued to address a grid security 
emergency, the order itself, rather than these procedures, would 
specify the requirements necessary to address that grid security 
emergency. No further action is required by Executive Order 13132.

H. Executive Order 12988

    With respect to the review of existing regulations and the 
promulgation of new regulations, section 3(a) of Executive Order 12988, 
``Civil Justice Reform,'' 61 FR 4729 (Feb. 7, 1996), imposes on 
Executive agencies the general duty to adhere to the following 
requirements: (1) Eliminate drafting errors and ambiguity; (2) write 
regulations to minimize litigation; and (3) provide a clear legal 
standard for

[[Page 1180]]

affected conduct rather than a general standard and promote 
simplification and burden reduction. With regard to the review required 
by section 3(a), section 3(b) of Executive Order 12988 specifically 
requires that Executive agencies make every reasonable effort to ensure 
that the regulation: (1) Clearly specifies the preemptive effect, if 
any; (2) clearly specifies any effect on existing Federal law or 
regulation; (3) provides a clear legal standard for affected conduct 
while promoting simplification and burden reduction; (4) specifies the 
retroactive effect, if any; (5) adequately defines key terms; and (6) 
addresses other important issues affecting clarity and general 
draftsmanship under any guidelines issued by the Attorney General. 
Section 3(c) of Executive Order 12988 requires Executive agencies to 
review regulations in light of applicable standards in section 3(a) and 
section 3(b) to determine whether they are met or whether it is 
unreasonable to meet one or more of them. DOE has completed the 
required review and determined that, to the extent permitted by law, 
the final rule meets the relevant standards of Executive Order 12988.

I. Treasury and General Government Appropriations Act, 2001

    The Treasury and General Government Appropriations Act, 2001 (44 
U.S.C. 3516 note) provides for agencies to review most disseminations 
of information to the public under guidelines established by each 
agency pursuant to general guidelines issued by OMB.
    OMB's guidelines were published at 67 FR 8452 (Feb. 22, 2002), and 
DOE's guidelines were published at 67 FR 62446 (Oct. 7, 2002). DOE has 
reviewed this final rule under the OMB and DOE guidelines and has 
concluded that it is consistent with applicable policies in those 
guidelines.

J. Executive Order 13211

    Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use,'' 66 FR 28355 
(May 22, 2001) requires Federal agencies to prepare and submit to the 
OMB a Statement of Energy Effects for any proposed significant energy 
action. A ``significant energy action'' is defined as any action by an 
agency that promulgated or is expected to lead to promulgation of a 
final rule, and that (1) is a significant regulatory action under 
Executive Order 12866, or any successor order; and (2) is likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy, or (3) is designated by the Administrator of OIRA as a 
significant energy action. For any proposed significant energy action, 
the agency must give a detailed statement of any adverse effects on 
energy supply, distribution, or use should the proposal be implemented, 
and of reasonable alternatives to the action and their expected 
benefits on energy supply, distribution, and use.
    This regulatory action will not have a significant adverse effect 
on the supply, distribution, or use of energy. The final rule would 
establish the procedures DOE expects to use issue an emergency order in 
the event of a declared grid security emergency. In the event that an 
emergency order is issued to address a grid security emergency, the 
order itself, rather than these procedures, would specify the 
requirements necessary to address that grid security emergency. In 
addition, the statute requires that the emergency order must ``protect 
or restore'' critical electric infrastructure or defense critical 
electric infrastructure. Therefore, the final rule is not a significant 
energy action. Accordingly, DOE has not prepared a Statement of Energy 
Effects.

K. Approval by the Office of the Secretary

    The Secretary of Energy has approved publication of this final 
rule.

L. Congressional Notification

    As required by 5 U.S.C. 801, DOE will report to Congress on the 
promulgation of this rule prior to its effective date. The report will 
state that it has been determined that the rule is not a ``major rule'' 
as defined by 5 U.S.C. 804(2).

List of Subjects in 10 CFR Part 205

    Administrative practice and procedure, Energy, and Recordkeeping 
and reporting requirements.

    Issued in Washington, DC, on January 4, 2018.
Mark W. Menezes,
Under Secretary of Energy.

    For the reasons stated in the preamble, DOE amends part 205 of 
chapter II, subchapter A, of Title 10 of the Code of Federal 
Regulations as set forth below:

PART 205--ADMINISTRATIVE PROCEDURES AND SANCTIONS

0
1. The authority citation for part 205 continues to read as follows:

    Authority: Department of Energy Organization Act, Pub. L. 95-91, 
91 Stat. 565 (42 U.S.C. Section 7101). Federal Power Act, Pub. L. 
66-280, 41 Stat. 1063 (16 U.S.C. Section 792) et seq., Department of 
Energy Delegation Order No. 0204-4 (42 FR 60726). E.O. 10485, 18 FR 
5397, 3 CFR, 1949-1953, Comp., p. 970 as amended by E.O. 12038, 43 
FR 4957, 3 CFR 1978 Comp., p. 136.

0
2. Subpart W is amended by revising the heading, adding an undesignated 
center heading after Sec.  205.379, and adding Sec. Sec.  205.80 
through 205.391 to read as follows:

Subpart W--Electric Power System Permits and Reports; Applications; 
Administrative Procedures and Sanctions; Grid Security Emergency 
Orders

Sec.
* * * * *

Internal Procedures for Issuance of a Grid Security Emergency Order

205.380 Definitions.
205.381 Applicability of emergency order.
205.382 Issuing an emergency order.
205.383 Consultation.
205.384 Communication of orders.
205.385 Clarification or reconsideration.
205.386 Temporary access to classified and sensitive information.
205.387 Tracking compliance.
205.388 Enforcement.
205.389 Rehearing and judicial review.
205.390 Liability exemptions.
205.391 Termination of an emergency order.


Sec.  205.380  Definitions.

    As used in this subpart:
    Bulk-power system means the same as the definition of such term in 
paragraph (1) of section 215(a) of the Federal Power Act.
    Critical electric infrastructure means the same as the definition 
of such term in paragraph (2) of section 215A(a) of the Federal Power 
Act.
    Defense critical electric infrastructure means the same as the 
definition of such term in paragraph (4) of section 215A(a) of the 
Federal Power Act.
    Department means the United States Department of Energy.
    Electric Reliability Organization means the same as the definition 
of such term in paragraph (2) of section 215(a) of the Federal Power 
Act.
    Electricity Information Sharing and Analysis Center (E-ISAC) means 
the organization, operated on behalf of the electricity subsector by 
the Electric Reliability Organization, that gathers and analyzes 
security information, coordinates incident management, and communicates 
mitigation strategies with stakeholders within the electricity 
subsector, across interdependent sectors, and with government partners. 
The E-ISAC, in collaboration with the Department of Energy and the 
Electricity Subsector Coordinating Council, serves as the primary 
security communications channel for the

[[Page 1181]]

electricity subsector and enhances the subsector's ability to prepare 
for and respond to cyber and physical threats, vulnerabilities, and 
incidents.
    Electricity subsector means both commercial and industrial actors 
who generate and deliver electric power.
    Electricity Subsector Coordinating Council (ESCC) means the 
organization that aims to foster and facilitate the coordination of 
sector-wide, policy-related activities and initiatives designed to 
improve the reliability and resilience of the electricity subsector, 
including physical and cyber security infrastructure.
    Electromagnetic pulse means the same as the definition of such term 
in paragraph (5) of section 215A(a) of the Federal Power Act.
    Emergency & Incident Management Council (EIMC) means the 
organization, internal to the Department of Energy and chaired by the 
Deputy Secretary of Energy, designed to increase cooperation and 
coordination across the Department to prepare for, mitigate, respond 
to, and recover from emergencies.
    Emergency measures means measures necessary in the judgment of the 
Secretary to protect or restore the reliability of critical electric 
infrastructure or of defense critical electric infrastructure during a 
grid security emergency as defined in section 215A(a) of the Federal 
Power Act.
    Emergency order means an order for emergency measures under section 
215A(b) of the Federal Power Act.
    Geomagnetic storm means a temporary disturbance of the Earth's 
magnetic field resulting from solar activity.
    Grid security emergency means the same as the definition of such 
term in paragraph (7) of section 215A(a) of the Federal Power Act. A 
grid security emergency is ``declared'' once the President of the 
United States has issued and provided to the Secretary a written 
directive or determination identifying the emergency.
    Regional entity means an entity having enforcement authority under 
section 215(e)(4) of the Federal Power Act, 16 U.S.C. 824o(e)(4).
    Secretary means the Secretary of Energy.


Sec.  205.381  Applicability of emergency orders.

    An order for emergency measures under section 215A(b) of the 
Federal Power Act (emergency order) may apply to the Electric 
Reliability Organization, a regional entity or entities, or any owner, 
user, or operator of critical electric infrastructure or of defense 
critical electric infrastructure within the United States. Emergency 
measures may be issued if deemed necessary in the judgment of the 
Secretary to protect or restore the reliability of critical electric 
infrastructure or of defense critical electric infrastructure during a 
presidentially-declared grid security emergency.


Sec.  205.382  Issuing an emergency order.

    (a) The Secretary will use the procedures outlined in this section 
in issuing emergency orders, unless the Secretary determines that 
alternative procedures are more appropriate for the unique 
circumstances presented by the emergency. In all instances, the 
Secretary has final authority on the procedures to be used in issuing 
an emergency order.
    (b) Upon the Department's receipt of the President's written 
directive or determination identifying a grid security emergency, the 
Emergency & Incident Management Council (EIMC) will convene at least 
one emergency meeting. Resulting from this meeting, the EIMC's 
responsibilities will include, but not be limited to:
    (1) Assigning consultation and situational awareness tasks;
    (2) Creating ad hoc task groups;
    (3) Assigning recommendation development tasks to the ad hoc task 
groups it has created; and
    (4) Presenting its recommendations to the Secretary as 
expeditiously as possible and practicable.
    (c) Following receipt of the EIMC's recommendations, unless the 
Secretary has determined alternative procedures are appropriate, the 
Secretary will issue an emergency order as quickly as the Secretary 
determines that the situation requires.


Sec.  205.383  Consultation.

    (a) To obtain information related to a particular grid security 
emergency and recommended emergency measures from those government 
entities, electric reliability organizations, and private sector 
companies, and their respective associations where applicable, affected 
by the emergency, the Department of Energy's Office of Electricity 
Delivery and Energy Reliability will conduct consultation related to 
each emergency order. Before an emergency order is put into effect and, 
to the extent practicable in light of the nature of the grid security 
emergency and the urgency of the need for action, efforts will be made 
to consult with at least the following, as appropriate:
    (1) The Electricity Subsector Coordinating Council;
    (2) The Electricity Information Sharing and Analysis Center;
    (3) The Electric Reliability Organization;
    (4) Regional entities; and
    (5) Owners, users, or operators of critical electric infrastructure 
or of defense critical electric infrastructure within the United 
States; and
    (6) At least the following government entities:
    (i) Authorities in the government of Canada;
    (ii) Authorities in the government of Mexico;
    (iii) Appropriate Federal and State agencies including, but not 
limited to, those supporting Emergency Support Function No. 12;
    (iv) The Federal Energy Regulatory Commission; and
    (v) The Nuclear Regulatory Commission.
    (b) The Department recognizes the expertise of electric grid owners 
and operators and other consulted entities in seeking to ensure that 
emergency orders result in the safe and effective operation of the 
electric grid, align with additional priorities including evidence 
collection, and comply with existing regulatory requirements, where 
required. The Department will endeavor, to the extent practicable, to 
conduct consultation in alignment with the existing Emergency Support 
Function No. 12 structure and established emergency management 
processes under the National Response Framework.


Sec.  205.384  Communication of orders.

    The Department will communicate the contents of an emergency order 
to the entities subject to the order, utilizing the most expedient form 
or forms of communication under the circumstances. The Department will 
attempt to conduct communication of emergency orders in alignment with 
the existing Emergency Support Function No. 12 structure and 
established emergency management procedures under the National Response 
Framework by relying on existing coordinating bodies, such as the ESCC 
and the E-ISAC, and, recognizing the existence of established crisis 
communication procedures, any other form or forms of communication most 
expedient under the particular circumstances. To the extent practicable 
under the particular circumstances, efforts will be made to declassify 
eligible information to ensure maximum distribution.


Sec.  205.385  Clarification or reconsideration.

    (a) Any entity subject to an emergency order may request 
clarification or

[[Page 1182]]

reconsideration of the emergency order. All such requests must be 
submitted in writing to the Secretary. The Department will post all 
such requests on the DOE website consistent with 10 CFR part 1004. To 
the extent the ordered entity believes the grid security emergency 
order lacks necessary clarity for implementation, or conflicts with the 
technically feasible operations of the electric grid or existing 
regulatory requirements, the ordered entity should seek immediate 
clarification from the Department.
    (b) Upon receipt of a request for clarification or reconsideration, 
the Secretary may, in his or her sole discretion, order a stay of the 
emergency order for which such clarification or rehearing is sought. 
The Secretary will act as soon as practicable on each request, with or 
without further proceedings. Such responsive actions may include 
granting or denying the request or abrogating or modifying the order, 
in whole or in part.


Sec.  205.386  Temporary access to classified and sensitive 
information.

    (a) To the extent practicable, and consistent with obligations to 
protect classified and sensitive information, the Secretary may provide 
temporary access to classified and sensitive information, at the level 
necessary in light of the conditions of the incident, related to a grid 
security emergency for which emergency measures are issued to key 
personnel of any entity subject to such emergency measures, to the 
extent the Secretary deems necessary under the circumstances. The 
purpose of this access, as defined under section 215A(b)(7) of the 
Federal Power Act, is to enable optimum communication between the 
entity and the Secretary and other appropriate Federal agencies 
regarding the grid security emergency.
    (b) CEII will be shared, where deemed necessary by the Secretary, 
in accordance with 10 CFR part 1004.


Sec.  205.387  Tracking compliance.

    Beginning at the time the Secretary issues an emergency order, the 
Department may, at the discretion of the Secretary, require the entity 
or entities subject to an emergency order to provide a detailed account 
of actions taken to comply with the terms of the emergency order.


Sec.  205.388  Enforcement.

    In accordance with available enforcement authorities, the Secretary 
may take or seek enforcement action against any entity subject to an 
emergency order who fails to comply with the terms of that emergency 
order.


Sec.  205.389  Rehearing and judicial review.

    The procedures of Part III of the Federal Power Act apply to 
motions for rehearing of an emergency order. A request for 
clarification or reconsideration filed under Sec.  205.385 of this 
subpart, if the filling entity so designates, may serve as a request 
for rehearing pursuant to section 313(a) of the Federal Power Act.


Sec.  205.390  Liability exemptions.

    (a) To the extent any action or omission taken by an entity that is 
necessary to comply with an emergency order issued pursuant to section 
215A(b)(1) of the Federal Power Act and this Part, including any action 
or omission taken to voluntarily comply with such order, results in 
noncompliance with, or causes such entity not to comply with any rule, 
order, regulation, or provision of or under the Federal Power Act, 
including any reliability standard approved by the Federal Energy 
Regulatory Commission pursuant to section 215 of the Federal Power Act, 
the Department will not consider such action or omission to be a 
violation of such rule, order, regulation, or provision.
    (b) The Department will treat an action or omission by an owner, 
operator, or user of critical electric infrastructure or of defense 
critical electric infrastructure to comply with an emergency order 
issued pursuant to section 215A(b)(1) of the Federal Power Act as the 
functional equivalent of an action or omission taken to comply with an 
order issued under section 202(c) of the Federal Power Act for purposes 
of section 202(c).
    (c) The liability exemptions specified in paragraphs (a) and (b) of 
this section do not apply to an entity that, in the course of complying 
with an emergency order by taking an action or omission for which the 
entity would otherwise be liable, takes such action or omission in a 
grossly negligent manner.


Sec.  205.391  Termination of an emergency order.

    (a) An emergency order will expire no later than 15 days after its 
issuance. The Secretary may reissue an emergency order for subsequent 
periods, not to exceed 15 days for each such period, provided that the 
President, for each such period, issues and provides to the Secretary a 
written directive or determination that the grid security emergency for 
which the Secretary intends to reissue an emergency order continues to 
exist or that the emergency measures continue to be required.
    (b) The Secretary may rescind an emergency order after finding that 
the grid security emergency for which that order was issued has ended, 
and that protective or mitigation measures required by that order have 
been sufficiently taken.
    (c) An entity or entities subject to an emergency order issued 
under this subpart may, at any time, request termination of the 
emergency order by demonstrating, in a petition to the Secretary, that 
the emergency no longer exists and that protective or mitigation 
measures required by the order have been sufficiently taken.

[FR Doc. 2018-00259 Filed 1-9-18; 8:45 am]
BILLING CODE 6450-01-P