Energy Infrastructure Protection Act of 2020

II 116TH CONGRESS 2D SESSION S. 3688 To amend the Federal Power Act to authorize the Federal Energy Regulatory Commission and the Secretary of Energy to offer assistance in securing the assets of the owners and operators of energy infrastructure against threats and increasing the security of the electric grid, and for other purposes. IN THE SENATE OF THE UNITED STATES MAY 12, 2020 Ms. MURKOWSKI (for herself and Mr. RISCH) introduced the following bill; which was read twice and referred to the Committee on Energy and Nat- ural Resources A BILL To amend the Federal Power Act to authorize the Federal Energy Regulatory Commission and the Secretary of En- ergy to offer assistance in securing the assets of the owners and operators of energy infrastructure against threats and increasing the security of the electric grid, and for other purposes. 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 ‘‘Energy Infrastructure 4 Protection Act of 2020’’. 5 VerDate Sep 11 2014 21:56 May 27, 2020 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S3688.IS S3688 jbell on DSKJLSW7X2PROD with BILLS 2 •S 3688 IS SEC. 2. SENSE OF CONGRESS. 1 It is the sense of Congress that— 2 (1) electrical energy is essential to civil society; 3 (2) the infrastructure that delivers electrical en- 4 ergy to the people of the United States has been vul- 5 nerable to attacks of varying scope for more than 6 100 years; 7 (3) with the ready availability of information 8 about electric infrastructure, and the ease of inter- 9 national travel for individuals who seek to harm the 10 United States, threats to electric infrastructure have 11 multiplied in recent years; 12 (4) the geographic barriers of the Pacific Ocean 13 and the Atlantic Ocean no longer provide sufficient 14 protection for the people of the United States 15 against threats to electric infrastructure, especially 16 for threats coming from cyberspace; 17 (5) electric infrastructure around the world has 18 been attacked during times of war and times of 19 peace, on the ground and in cyberspace, by— 20 (A) individuals; 21 (B) criminal organizations; and 22 (C) foreign countries; 23 (6) like electric infrastructure, the fuel sup- 24 pliers and other vendors who supply the electricity 25 VerDate Sep 11 2014 21:56 May 27, 2020 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S3688.IS S3688 jbell on DSKJLSW7X2PROD with BILLS 3 •S 3688 IS industry are vulnerable to attacks designed to dis- 1 rupt electricity service; 2 (7) before and during World War II, the Fed- 3 eral Power Commission assisted owners and opera- 4 tors of energy infrastructure in defending the assets 5 of those owners and operators; 6 (8) the Department of Energy and the Federal 7 Energy Regulatory Commission carry on the legacy 8 of security assistance established by the Federal 9 Power Commission; 10 (9) the Department of Energy, assisted by the 11 expertise at the National Laboratories, and utilizing 12 the statutory role of the Department as the lead 13 Federal agency for cybersecurity in the energy sec- 14 tor, has acted to assist owners and operators of elec- 15 tric infrastructure when those owners and operators 16 defend their assets; 17 (10) the Federal Energy Regulatory Commis- 18 sion, utilizing the jurisdiction of the Commission 19 over matters of cost recovery and electric reliability, 20 has acted to assist owners and operators of electric 21 infrastructure when those owners and operators de- 22 fend their assets; 23 (11) owners and operators of electric infrastruc- 24 ture, entities involved with electric infrastructure, 25 VerDate Sep 11 2014 21:56 May 27, 2020 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S3688.IS S3688 jbell on DSKJLSW7X2PROD with BILLS 4 •S 3688 IS the Federal Energy Regulatory Commission, the De- 1 partment of Energy, other Federal departments and 2 agencies, States, and units of local government have 3 information that— 4 (A) can be used by those who seek to harm 5 the United States to disrupt electricity service; 6 and 7 (B) should be protected from excessive dis- 8 closure; and 9 (12) owners and operators of electric infrastruc- 10 ture— 11 (A) have been acting to reduce the vulner- 12 ability of their assets; and 13 (B) should have better opportunities to 14 further reduce the vulnerability of their assets. 15 SEC. 3. PROTECTING ENERGY INFRASTRUCTURE. 16 (a) IN GENERAL.—Part II of the Federal Power Act 17 (16 U.S.C. 824 et seq.) is amended— 18 (1) by adding at the end the following: 19 ‘‘Subpart B—Protecting Energy Infrastructure’’; 20 (2) by redesignating section 215A (16 U.S.C. 21 824o–1) as section 230, and moving that section so 22 as to appear at the beginning of subpart B (as 23 added by paragraph (1)); and 24 VerDate Sep 11 2014 21:56 May 27, 2020 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S3688.IS S3688 jbell on DSKJLSW7X2PROD with BILLS 5 •S 3688 IS (3) by inserting after section 201 (16 U.S.C. 1 824) the following: 2 ‘‘Subpart A—General Requirements’’. 3 (b) DEFINITIONS.—Section 230 of the Federal Power 4 Act (as redesignated by subsection (a)(2)) is amended— 5 (1) in the section heading, by striking 6 ‘‘CRITICAL ELECTRIC INFRASTRUCTURE SECU- 7 RITY’’ and inserting ‘‘DEFINITIONS’’; 8 (2) in subsection (a)— 9 (A) in the matter preceding paragraph (1), 10 by striking the subsection designation and 11 heading and all that follows through ‘‘this sec- 12 tion:’’ and inserting the following: 13 ‘‘In this subpart:’’; 14 (B) in paragraph (1), by striking ‘‘such 15 terms’’ and all that follows through ‘‘respec- 16 tively.’’ and inserting ‘‘the terms in section 17 215(a).’’; 18 (C) by redesignating paragraphs (2), (3), 19 (4), (5), (6), (7), and (8) as paragraphs (3), 20 (4), (5), (6), (8), (9), and (12), respectively; 21 (D) by inserting after paragraph (1) the 22 following: 23 VerDate Sep 11 2014 21:56 May 27, 2020 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S3688.IS S3688 jbell on DSKJLSW7X2PROD with BILLS 6 •S 3688 IS ‘‘(2) COMMISSION.—The term ‘Commission’ 1 means the Federal Energy Regulatory Commis- 2 sion.’’; 3 (E) in paragraph (3) (as so redesignated), 4 by inserting ‘‘energy infrastructure or’’ after 5 ‘‘means’’; 6 (F) by striking paragraph (4) (as so redes- 7 ignated) and inserting the following: 8 ‘‘(4) CRITICAL ELECTRIC INFRASTRUCTURE IN- 9 FORMATION.— 10 ‘‘(A) IN GENERAL.—The term ‘critical 11 electric infrastructure information’ means infor- 12 mation relating to critical electric infrastruc- 13 ture, or proposed critical electric infrastructure, 14 that— 15 ‘‘(i) is generated by, or provided to, 16 the Secretary, the Commission, or any 17 other Federal department or agency; 18 ‘‘(ii) is not classified national security 19 information; and 20 ‘‘(iii) is designated as critical electric 21 infrastructure information by the Secretary 22 or the Commission under section 231(c) or 23 235. 24 VerDate Sep 11 2014 21:56 May 27, 2020 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S3688.IS S3688 jbell on DSKJLSW7X2PROD with BILLS 7 •S 3688 IS ‘‘(B) INCLUSIONS.—The term ‘critical elec- 1 tric infrastructure information’ includes any in- 2 formation that qualified as critical energy infra- 3 structure information under the regulations of 4 the Commission in effect on the day before the 5 date of enactment of the Energy Infrastructure 6 Protection Act of 2020.’’; 7 (G) in paragraph (5) (as so redesignated), 8 by striking ‘‘subsection (c)’’ and inserting ‘‘sec- 9 tion 231(b)’’; 10 (H) by inserting after paragraph (6) (as so 11 redesignated) the following: 12 ‘‘(7) ENERGY INFRASTRUCTURE.—The term 13 ‘energy infrastructure’ includes— 14 ‘‘(A) systems or assets comprising the 15 bulk-power system; 16 ‘‘(B) systems or assets owned by electric 17 utilities; 18 ‘‘(C) systems or assets that— 19 ‘‘(i) allow for the transportation of 20 fuel, electricity, water, steam, heat, cold, or 21 any commodity that is used in the provi- 22 sion of electricity service; and 23 ‘‘(ii) facilitate the delivery of— 24 VerDate Sep 11 2014 21:56 May 27, 2020 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S3688.IS S3688 jbell on DSKJLSW7X2PROD with BILLS 8 •S 3688 IS ‘‘(I) electrical energy to con- 1 sumers; 2 ‘‘(II) wholesale transactions in 3 electrical energy; or 4 ‘‘(III) the import or export of 5 electrical energy; and 6 ‘‘(D) all systems or assets subject to the 7 jurisdiction of the Commission, including— 8 ‘‘(i) pipelines for the transportation of 9 oil; 10 ‘‘(ii) natural gas pipelines; and 11 ‘‘(iii) water resources.’’; 12 (I) by inserting after paragraph (9) (as so 13 redesignated) the following: 14 ‘‘(10) NATURAL GAS; NATURAL-GAS COM- 15 PANY.—The terms ‘natural gas’ and ‘natural-gas 16 company’ have the meanings given the terms in sec- 17 tion 2 of the Natural Gas Act (15 U.S.C. 717a). 18 ‘‘(11) OIL; OIL PIPELINE.—The terms ‘oil’ and 19 ‘oil pipeline’ have the meanings given the terms in 20 section 1804 of the Energy Policy Act of 1992 (42 21 U.S.C. 7172 note; Public Law 102–486).’’; and 22 (J) by inserting after paragraph (12) (as 23 so redesignated) the following: 24 VerDate Sep 11 2014 21:56 May 27, 2020 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S3688.IS S3688 jbell on DSKJLSW7X2PROD with BILLS 9 •S 3688 IS ‘‘(13) SOURCE OF THE INFORMATION.—The 1 term ‘source of the information’ means— 2 ‘‘(A) the electric utility, Transmission Or- 3 ganization, natural-gas company, licensee, or oil 4 pipeline that provides to the Secretary or the 5 Commission, as applicable, critical electric in- 6 frastructure information, including— 7 ‘‘(i) critical electric infrastructure in- 8 formation that is provided directly to the 9 Secretary or the Commission by the elec- 10 tric utility, Transmission Organization, 11 natural-gas company, licensee, or oil pipe- 12 line; and 13 ‘‘(ii) critical electric infrastructure in- 14 formation that is provided to the Secretary 15 or the Commission by an intermediary; 16 ‘‘(B) the Secretary, with respect to critical 17 electric infrastructure information that is cre- 18 ated by the Secretary; 19 ‘‘(C) the Commission, with respect to crit- 20 ical electric infrastructure information that is 21 created by the Commission; and 22 ‘‘(D) with respect to any critical electric 23 infrastructure information not described in sub- 24 paragraphs (A) through (C), the individual or 25 VerDate Sep 11 2014 21:56 May 27, 2020 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S3688.IS S3688 jbell on DSKJLSW7X2PROD with BILLS 10 •S 3688 IS entity that provides to the Secretary or the 1 Commission, as applicable, the critical electric 2 infrastructure information.’’; and 3 (3) by inserting before subsection (b) the fol- 4 lowing: 5 ‘‘SEC. 231. CRITICAL ELECTRIC INFRASTRUCTURE SECU- 6 RITY.’’. 7 (c) CRITICAL ELECTRIC INFRASTRUCTURE SECU- 8 RITY.—Section 231 of the Federal Power Act (as des- 9 ignated by subsection (b)(3)) is amended— 10 (1) by redesignating subsections (b) through (f) 11 as subsections (a) through (e), respectively; 12 (2) in paragraph (6)(B) of subsection (a) (as so 13 redesignated), by striking ‘‘subsection (c)’’ and in- 14 serting ‘‘subsection (b)’’; 15 (3) in subsection (c) (as so redesignated)— 16 (A) in paragraph (2)— 17 (i) in the matter preceding subpara- 18 graph (A), by striking ‘‘Not later’’ and all 19 that follows through ‘‘shall’’ and inserting 20 ‘‘Each of the Secretary and the Commis- 21 sion, after consultation with the other, 22 shall’’; 23 (ii) in subparagraph (A), by adding 24 ‘‘and’’ at the end after the semicolon; 25 VerDate Sep 11 2014 21:56 May 27, 2020 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S3688.IS S3688 jbell on DSKJLSW7X2PROD with BILLS 11 •S 3688 IS (iii) in subparagraph (B), by striking 1 the semicolon at the end and inserting a 2 period; and 3 (iv) by striking subparagraphs (C) 4 and (D); 5 (B) by striking paragraph (3) and insert- 6 ing the following: 7 ‘‘(3) AUTHORITY TO DESIGNATE.— 8 ‘‘(A) IN GENERAL.—The Secretary and the 9 Commission may each designate information as 10 critical electric infrastructure information pur- 11 suant to the criteria and procedures established 12 by the Secretary or the Commission, as applica- 13 ble, under paragraph (2)(A). 14 ‘‘(B) SUBMISSION OF REQUEST FOR DES- 15 IGNATION.— 16 ‘‘(i) IN GENERAL.—Any individual or 17 entity may request that— 18 ‘‘(I) the Secretary designate in- 19 formation in the possession of the 20 Secretary as critical electric infra- 21 structure information; and 22 ‘‘(II) the Commission designate 23 information in the possession of the 24 VerDate Sep 11 2014 21:56 May 27, 2020 Jkt 099200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S3688.IS S3688 jbell on DSKJLSW7X2PROD with BILLS 12 •S 3688 IS Commission as critical electric infra- 1 structure information. 2 ‘‘(ii) TREATMENT OF INFORMATION 3 SUBMITTED FOR DESIGNATION.—On re- 4 ceipt of a request under clause (i), the Sec- 5 retary or the Commission, as applicable, 6 shall treat the information that is the sub- 7 ject of the request as critical electric infra- 8 structure information until the earlier of— 9 ‘‘(I) the date on which the Sec- 10 retary or the Commission, as applica- 11 ble, designates the information as crit- 12 ical electric infrastructure informa- 13 tion; and 14 ‘‘(II) the date that is 21 days 15 after the date on which the Secretary 16 or the Commission, as applicable, pro- 17 vides written notice to the individual 18 or entity that submitted the request 19 that the request is denied. 20 ‘‘(C) CONFLICTS BETWEEN DESIGNATIONS 21 BY THE SECRETARY AND THE COMMISSION.— 22 ‘‘(i) INITIAL MEETING.—In the event 23 of a conflict between a designation made 24 by the Secretary and a designation made 25 VerDate Sep 11 2014 21:56 May 27, 2020 Jkt 099200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S3688.IS S3688 jbell on DSKJLSW7X2PROD with BILLS 13 •S 3688 IS by the Commission as to whether certain 1 information is critical electric infrastruc- 2 ture information, and the conflict has a 3 material impact on the work of the Sec- 4 retary or the Commission, the Secretary 5 and the Commission shall confer to resolve 6 the conflict for the purpose of achieving 7 consistency across the Federal Government 8 in the designation of the information. 9 ‘‘(ii) UNRESOLVED CONFLICTS.—If 10 the Secretary and the Commission are un- 11 able to resolve a conflict under clause (i)— 12 ‘‘(I) the Commission may con- 13 tinue to designate any information in 14 the possession of the Commission ac- 15 cording to the criteria and procedures 16 established by the Commission u [Text truncated for display. 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