Protect American Power Infrastructure Act

II 117TH CONGRESS 1ST SESSION S. 2269 To secure the bulk-power system in the United States. IN THE SENATE OF THE UNITED STATES JUNE 24, 2021 Mr. SCOTT of Florida (for himself, Mr. RUBIO, Mr. MARSHALL, and Mr. COT- TON) introduced the following bill; which was read twice and referred to the Committee on Energy and Natural Resources A BILL To secure the bulk-power system in the United States. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Protect American 4 Power Infrastructure Act’’. 5 SEC. 2. SECURING THE BULK-POWER SYSTEM. 6 (a) DEFINITIONS.—In this section: 7 (1) BULK-POWER SYSTEM.— 8 (A) IN GENERAL.—The term ‘‘bulk-power 9 system’’ has the meaning given the term in sec- 10 VerDate Sep 11 2014 17:11 Jul 08, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S2269.IS S2269 khammond on DSKJM1Z7X2PROD with BILLS 2 •S 2269 IS tion 215(a) of the Federal Power Act (16 1 U.S.C. 824o(a)). 2 (B) INCLUSION.—The term ‘‘bulk-power 3 system’’ includes transmission lines rated at 4 69,000 volts (69 kV) or higher. 5 (2) COVERED EQUIPMENT.—The term ‘‘covered 6 equipment’’ means items used in bulk-power system 7 substations, control rooms, or power generating sta- 8 tions, including— 9 (A)(i) power transformers with a low-side 10 voltage rating of 69,000 volts (69 kV) or high- 11 er; and 12 (ii) associated control and protection sys- 13 tems, such as load tap changers, cooling sys- 14 tems, and sudden pressure relays; 15 (B)(i) generator step-up (GSU) trans- 16 formers with a high-side voltage rating of 17 69,000 volts (69 kV) or higher; and 18 (ii) associated control and protection sys- 19 tems, such as load tap changers, cooling sys- 20 tems, and sudden pressure relays; 21 (C) circuit breakers operating at 69,000 22 volts (69 kV) or higher; 23 (D) reactive power equipment rated at 24 69,000 volts (69 kV) or higher; and 25 VerDate Sep 11 2014 17:11 Jul 08, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S2269.IS S2269 khammond on DSKJM1Z7X2PROD with BILLS 3 •S 2269 IS (E) microprocessing software and firmware 1 that— 2 (i) is installed in any equipment de- 3 scribed in subparagraphs (A) through (D); 4 or 5 (ii) is used in the operation of any of 6 the items described in those subpara- 7 graphs. 8 (3) CRITICAL DEFENSE FACILITY.— 9 (A) IN GENERAL.—The term ‘‘critical de- 10 fense facility’’ means a facility that— 11 (i) is critical to the defense of the 12 United States; and 13 (ii) is vulnerable to a disruption of the 14 supply of electric energy provided to that 15 facility by an external provider. 16 (B) INCLUSION.—The term ‘‘critical de- 17 fense facility’’ includes a facility designated as 18 a critical defense facility by the Secretary of 19 Energy under section 215A(c) of the Federal 20 Power Act (16 U.S.C. 824o–1(c)). 21 (4) CRITICAL ELECTRIC INFRASTRUCTURE.— 22 The term ‘‘critical electric infrastructure’’ has the 23 meaning given the term in section 215A(a) of the 24 Federal Power Act (16 U.S.C. 824o–1(a)). 25 VerDate Sep 11 2014 17:11 Jul 08, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S2269.IS S2269 khammond on DSKJM1Z7X2PROD with BILLS 4 •S 2269 IS (5) DEFENSE CRITICAL ELECTRIC INFRASTRUC- 1 TURE.—The term ‘‘defense critical electric infra- 2 structure’’ has the meaning given the term in section 3 215A(a) of the Federal Power Act (16 U.S.C. 824o– 4 1(a)). 5 (6) ENTITY.—The term ‘‘entity’’ means a part- 6 nership, association, trust, joint venture, corpora- 7 tion, group, subgroup, or other organization. 8 (7) FOREIGN ADVERSARY.—The term ‘‘foreign 9 adversary’’ means any foreign government or foreign 10 nongovernment person engaged in a long-term pat- 11 tern or serious instances of conduct significantly ad- 12 verse to— 13 (A) the national security of— 14 (i) the United States; or 15 (ii) allies of the United States; or 16 (B) the security and safety of United 17 States persons. 18 (8) PERSON.—The term ‘‘person’’ means an in- 19 dividual or entity. 20 (9) PROCUREMENT.—The term ‘‘procurement’’ 21 means the process of acquiring, through purchase, 22 by contract and through the use of appropriated 23 funds, supplies or services, including installation 24 VerDate Sep 11 2014 17:11 Jul 08, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S2269.IS S2269 khammond on DSKJM1Z7X2PROD with BILLS 5 •S 2269 IS services, by and for the use of the Federal Govern- 1 ment. 2 (10) TRANSACTION.—The term ‘‘transaction’’ 3 means the acquisition, importation, transfer, or in- 4 stallation of any bulk-power system electric equip- 5 ment by any person, or with respect to any property, 6 subject to the jurisdiction of the United States. 7 (11) UNITED STATES PERSON.—The term 8 ‘‘United States person’’ means— 9 (A) an individual who is— 10 (i) a citizen of the United States; or 11 (ii) an alien lawfully admitted for per- 12 manent residence in the United States; 13 (B) an entity organized under the laws of 14 the United States or any jurisdiction within the 15 United States, including a foreign branch of 16 such an entity; and 17 (C) any person in the United States. 18 (b) PROHIBITION.— 19 (1) IN GENERAL.—Except as otherwise pro- 20 vided in this subsection, no person that is the owner 21 or operator of defense critical electric infrastructure 22 may engage in any transaction relating to that de- 23 fense critical electric infrastructure that involves any 24 covered equipment in which a foreign adversary has 25 VerDate Sep 11 2014 17:11 Jul 08, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S2269.IS S2269 khammond on DSKJM1Z7X2PROD with BILLS 6 •S 2269 IS an ownership or any other interest, including 1 through an interest in a contract for the provision 2 of the covered equipment, over which a foreign ad- 3 versary has control, or with respect to which a for- 4 eign adversary exercises influence, including any 5 transaction that— 6 (A) is initiated after the date of enactment 7 of this Act; and 8 (B) the Secretary of Energy, in coordina- 9 tion with the Director of the Office of Manage- 10 ment and Budget and in consultation with the 11 Secretary of Defense, the Secretary of Home- 12 land Security, the Director of National Intel- 13 ligence, and the heads of other appropriate 14 Federal agencies, as determined by the Sec- 15 retary of Energy, determines— 16 (i) involves covered equipment de- 17 signed, developed, manufactured, or sup- 18 plied by persons owned by, controlled by, 19 or subject to the jurisdiction or direction of 20 a foreign adversary; and 21 (ii) poses an undue risk of cata- 22 strophic effects on the security or resil- 23 iency of defense critical electric infrastruc- 24 ture in the United States. 25 VerDate Sep 11 2014 17:11 Jul 08, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S2269.IS S2269 khammond on DSKJM1Z7X2PROD with BILLS 7 •S 2269 IS (2) MITIGATION MEASURES.— 1 (A) IN GENERAL.—The Secretary of En- 2 ergy, in consultation with the heads of other 3 Federal agencies, as appropriate, may— 4 (i) in accordance with subparagraph 5 (B), approve a transaction or class of 6 transactions prohibited under paragraph 7 (1); and 8 (ii) design or negotiate measures to 9 mitigate any concerns identified in making 10 determinations under paragraph (1)(B) 11 with respect to that transaction or class of 12 transactions. 13 (B) PRECONDITION TO APPROVAL OF OTH- 14 ERWISE PROHIBITED TRANSACTION.—The Sec- 15 retary of Energy shall implement the measures 16 described in subparagraph (A)(ii) before ap- 17 proving a transaction or class of transactions 18 that would otherwise be prohibited under para- 19 graph (1). 20 (3) APPLICATION.— 21 (A) IN GENERAL.—The prohibition de- 22 scribed in paragraph (1) shall apply to a trans- 23 action described in that paragraph regardless of 24 whether— 25 VerDate Sep 11 2014 17:11 Jul 08, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S2269.IS S2269 khammond on DSKJM1Z7X2PROD with BILLS 8 •S 2269 IS (i) a contract has been entered into 1 with respect to that transaction before the 2 date of enactment of this Act; or 3 (ii) a license or permit has been 4 issued or granted with respect to that 5 transaction before the date of enactment of 6 this Act. 7 (B) CONTRARY LAW.—The prohibition de- 8 scribed in paragraph (1) shall apply to each 9 transaction described in that paragraph only to 10 the extent not otherwise provided by— 11 (i) another statute; or 12 (ii) a regulation, order, directive, or li- 13 cense issued pursuant to this section. 14 (4) PREQUALIFICATION.— 15 (A) IN GENERAL.—The Secretary of En- 16 ergy, in consultation with the heads of other 17 Federal agencies, as appropriate, may— 18 (i) establish and publish criteria for 19 recognizing particular covered equipment 20 and particular vendors in the market for 21 covered equipment as prequalified for fu- 22 ture transactions; and 23 VerDate Sep 11 2014 17:11 Jul 08, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S2269.IS S2269 khammond on DSKJM1Z7X2PROD with BILLS 9 •S 2269 IS (ii) apply those criteria to establish 1 and publish, and update, as necessary, a 2 list of prequalified equipment and vendors. 3 (B) SAVINGS PROVISION.—Nothing in this 4 paragraph limits the authority of the Secretary 5 of Energy under this subsection to prohibit or 6 otherwise regulate any transaction involving 7 prequalified equipment or vendors. 8 (c) IMPLEMENTATION.— 9 (1) IMPLEMENTATION BY THE SECRETARY OF 10 ENERGY.—The Secretary of Energy shall take such 11 actions as the Secretary determines to be necessary 12 to implement this section, including— 13 (A) directing the timing and manner of the 14 cessation of pending and future transactions 15 prohibited under subsection (b)(1); 16 (B) adopting appropriate rules and regula- 17 tions; and 18 (C) exercising any applicable power grant- 19 ed to the President by the International Emer- 20 gency Economic Powers Act (50 U.S.C. 1701 et 21 seq.) and delegated to the Secretary. 22 (2) REQUIRED RULEMAKING.— 23 (A) IN GENERAL.—Not later than 150 24 days after the date of enactment of this Act, 25 VerDate Sep 11 2014 17:11 Jul 08, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S2269.IS S2269 khammond on DSKJM1Z7X2PROD with BILLS 10 •S 2269 IS the Secretary of Energy, in consultation with 1 the Secretary of Defense, the Secretary of 2 Homeland Security, the Director of National 3 Intelligence, and the heads of other appropriate 4 Federal agencies, as determined by the Sec- 5 retary of Energy, shall issue rules or regula- 6 tions to implement this section. 7 (B) AUTHORITY.—A rule or regulation 8 issued under subparagraph (A) may— 9 (i) determine that particular countries 10 or persons are foreign adversaries exclu- 11 sively for the purposes of this section; 12 (ii) identify persons owned by, con- 13 trolled by, or subject to the jurisdiction or 14 direction of, foreign adversaries exclusively 15 for the purposes of this section; 16 (iii) identify particular equipment or 17 countries with respect to which trans- 18 actions involving covered equipment war- 19 rant particular scrutiny under this section; 20 and 21 (iv) identify a mechanism and relevant 22 factors for the negotiation of agreements 23 to mitigate concerns identified in making 24 determinations under subsection (b)(1)(B). 25 VerDate Sep 11 2014 17:11 Jul 08, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S2269.IS S2269 khammond on DSKJM1Z7X2PROD with BILLS 11 •S 2269 IS (3) IDENTIFICATION OF CERTAIN EQUIP- 1 MENT.—As soon as practicable after the date of en- 2 actment of this Act, the Secretary of Energy, in con- 3 sultation with the Secretary of Defense, the Sec- 4 retary of the Interior, the Secretary of Homeland 5 Security, the Director of National Intelligence, the 6 Board of Directors of the Tennessee Valley Author- 7 ity, and the heads of other appropriate Federal 8 agencies, as determined by the Secretary of Energy, 9 shall— 10 (A) identify existing covered equipment 11 that— 12 (i) is designed, developed, manufac- 13 tured, or supplied by persons owned by, 14 controlled by, or subject to the jurisdiction 15 or direction of a foreign adversary; and 16 (ii) poses an undue risk of cata- 17 strophic effects on the security or resil- 18 iency of critical electric infrastructure in 19 the United States; and 20 (B) develop recommendations on ways to 21 identify, isolate, monitor, or replace any covered 22 equipment identified under subparagraph (A) 23 as soon as practicable. 24 VerDate Sep 11 2014 17:11 Jul 08, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S2269.IS S2269 khammond on DSKJM1Z7X2PROD with BILLS 12 •S 2269 IS (4) COORDINATION AND INFORMATION SHAR- 1 ING.—The Secretary of Energy shall work with the 2 Secretary of Defense, the Secretary of the Interior, 3 the Secretary of Homeland Security, the Director of 4 National Intelligence, the Board of Directors of the 5 Tennessee Valley Authority, and the heads of other 6 appropriate Federal agencies, as determined by the 7 Secretary of Energy, to protect critical defense fa- 8 cilities from national security threats through— 9 (A) the coordination of the procurement of 10 energy infrastructure by the Federal Govern- 11 ment; and 12 (B) the sharing of risk information and 13 risk management practices to inform that pro- 14 curement. 15 (5) REQUIREMENT.—This section shall be im- 16 plemented— 17 (A) in a manner that is consistent with all 18 other applicable laws; and 19 (B) subject to the availability of appropria- 20 tions. 21 (d) REPORTS TO CONGRESS.—The Secretary of En- 22 ergy shall submit to Congress periodic reports describing 23 VerDate Sep 11 2014 17:11 Jul 08, 2021 Jkt 019200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S2269.IS S2269 khammond on DSKJM1Z7X2PROD with BILLS 13 •S 2269 IS any progress made in implementing, or otherwise relating 1 to the implementation of, this section. 2 Æ VerDate Sep 11 2014 17:11 Jul 08, 2021 Jkt 019200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6301 E:\BILLS\S2269.IS S2269 khammond on DSKJM1Z7X2PROD with BILLS