[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[H.R. 668 Introduced in House (IH)]

112th CONGRESS
  1st Session
                                H. R. 668

  To amend the Federal Power Act to protect the bulk-power system and 
 electric infrastructure critical to the defense and well-being of the 
    United States against natural and manmade electromagnetic pulse 
                 (``EMP'') threats and vulnerabilities.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                           February 11, 2011

    Mr. Franks of Arizona (for himself, Mr. Bartlett, Mr. Hall, Mr. 
    Lamborn, Mr. King of Iowa, Mr. Akin, Mr. Broun of Georgia, Mr. 
 Marchant, Mr. Posey, Mr. West, Mr. LoBiondo, Mr. Bishop of Utah, Mr. 
Hunter, Mr. Terry, Mr. Kline, Mr. Daniel E. Lungren of California, Mr. 
Stearns, Mr. King of New York, Mr. Turner, Ms. Clarke of New York, Mr. 
 Garamendi, Mr. Sam Johnson of Texas, Mr. Johnson of Ohio, Mr. Jordan, 
and Mr. Royce) introduced the following bill; which was referred to the 
 Committee on Energy and Commerce, and in addition to the Committee on 
the Budget, for a period to be subsequently determined by the Speaker, 
 in each case for consideration of such provisions as fall within the 
                jurisdiction of the committee concerned

_______________________________________________________________________

                                 A BILL


 
  To amend the Federal Power Act to protect the bulk-power system and 
 electric infrastructure critical to the defense and well-being of the 
    United States against natural and manmade electromagnetic pulse 
                 (``EMP'') threats and vulnerabilities.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Secure High-voltage Infrastructure 
for Electricity from Lethal Damage Act'' or the ``SHIELD Act''.

SEC. 2. FINDINGS.

    The Congress makes the following findings:
            (1) According to the Report of the Commission to Assess the 
        Threat to the United States from Electromagnetic Pulse Attack 
        (in this Act referred to as the ``EMP Commission Report''), the 
        society and economy of the United States are ``critically 
        dependent upon the availability of electricity.''.
            (2) According to the EMP Commission Report, ``continued 
        electrical supply is necessary for sustaining water supplies, 
        production and distribution of food, fuel, communications, and 
        everything else that is part of our economy''.
            (3) According to the EMP Commission Report, ``contemporary 
        U.S. society is not structured, nor does it have the means, to 
        provide for the needs of nearly 300 million Americans without 
        electricity.''.
            (4) According to the EMP Commission Report, due to the 
        existing electrical system operating at or near its physical 
        capacity, ``a relatively modest upset to the system can cause 
        functional collapse.''.
            (5) According to the EMP Commission Report, electromagnetic 
        pulse (in this Act referred to as ``EMP'') is a threat to the 
        overall electrical power system.
            (6) According to the EMP Commission Report, EMP occurs both 
        naturally, such as geomagnetic storms, and via manmade devices.
            (7) According to the EMP Commission Report, while the 
        electric infrastructure ``has a degree of durability against . 
        . . the failure of one or a small number of [electric] 
        components,'' the current strategy for recovery leaves the 
        United States ill-prepared to respond effectively to an EMP 
        attack that would potentially result in damage to vast numbers 
        of components nearly simultaneously over an unprecedented 
        geographic scale.
            (8) According to the EMP Commission Report, EMP ``may 
        couple ultimately unmanageable currents and voltages into an 
        electrical system routinely operated with little margin and 
        cause the collapse of large portions of the electrical 
        system.''.
            (9) According to the EMP Commission Report, a collapse of 
        large portions of the electrical system will result in 
        significant periods of power-outage and ``restoration from 
        collapse or loss of significant portions of the system [will 
        be] exceedingly difficult.''.
            (10) According to the EMP Commission Report, ``should the 
        electrical power system be lost for any substantial period of 
        time . . . the consequences are likely to be catastrophic to 
        civilian society.''.
            (11) According to the EMP Commission Report, ``the 
        Commission is deeply concerned that [negative] impacts [on the 
        electric infrastructure] are certain in an EMP event unless 
        practical steps are taken to provide protection for critical 
        elements of the electric system.''.

SEC. 3. AMENDMENT TO THE FEDERAL POWER ACT.

    (a) Critical Electric Infrastructure Security.--Part II of the 
Federal Power Act (16 U.S.C. 824 et seq.) is amended by adding after 
section 215 the following new section:

``SEC. 215A. CRITICAL ELECTRIC INFRASTRUCTURE SECURITY.

    ``(a) Definitions.--For purposes of this section:
            ``(1) Bulk-power system; electric reliability organization; 
        regional entity.--The terms `bulk-power system', `Electric 
        Reliability Organization', and `regional entity' have the 
        meanings given such terms in paragraphs (1), (2), and (7) of 
        section 215(a), respectively.
            ``(2) Defense critical electric infrastructure.--The term 
        `defense critical electric infrastructure' means any 
        infrastructure located in the United States (including the 
        territories) used for the generation, transmission, or 
        distribution of electric energy that--
                    ``(A) is not part of the bulk-power system; and
                    ``(B) serves a facility designated by the President 
                pursuant to subsection (d)(1), but is not owned or 
                operated by the owner or operator of such facility.
            ``(3) Defense critical electric infrastructure 
        vulnerability.--The term `defense critical electric 
        infrastructure vulnerability' means a weakness in defense 
        critical electric infrastructure that, in the event of a 
        malicious act using an electromagnetic pulse, would pose a 
        substantial risk of disruption of those electrical or 
        electronic devices or communications networks, including 
        hardware, software, and data, that are essential to the 
        reliability of defense critical electric infrastructure.
            ``(4) Electromagnetic pulse.--The term `electromagnetic 
        pulse' means 1 or more pulses of electromagnetic energy 
        generated or emitted by a device capable of disabling, 
        disrupting, or destroying electronic equipment by means of such 
        a pulse.
            ``(5) Geomagnetic storm.--The term `geomagnetic storm' 
        means a temporary disturbance of the Earth's magnetic field 
        resulting from solar activity.
            ``(6) Grid security threat.--The term `grid security 
        threat' means a substantial likelihood of--
                    ``(A) a malicious act using an electromagnetic 
                pulse, or a geomagnetic storm event, that could disrupt 
                the operation of those electrical or electronic devices 
                or communications networks, including hardware, 
                software, and data, that are essential to the 
                reliability of the bulk-power system or of defense 
                critical electric infrastructure; and
                    ``(B) disruption of the operation of such devices 
                or networks, with significant adverse effects on the 
                reliability of the bulk-power system or of defense 
                critical electric infrastructure, as a result of such 
                act or event.
            ``(7) Grid security vulnerability.--The term `grid security 
        vulnerability' means a weakness that, in the event of a 
        malicious act using an electromagnetic pulse, would pose a 
        substantial risk of disruption to the operation of those 
        electrical or electronic devices or communications networks, 
        including hardware, software, and data, that are essential to 
        the reliability of the bulk-power system.
            ``(8) Large transformer.--The term `large transformer' 
        means an electric transformer that is part of the bulk-power 
        system.
            ``(9) Protected information.--The term `protected 
        information' means information, other than classified national 
        security information, designated as protected information by 
        the Commission under subsection (e)(2)--
                    ``(A) that was developed or submitted in connection 
                with the implementation of this section;
                    ``(B) that specifically discusses grid security 
                threats, grid security vulnerabilities, defense 
                critical electric infrastructure vulnerabilities, or 
                plans, procedures, or measures to address such threats 
                or vulnerabilities; and
                    ``(C) the unauthorized disclosure of which could be 
                used in a malicious manner to impair the reliability of 
                the bulk-power system or of defense critical electric 
                infrastructure.
            ``(10) Secretary.--The term `Secretary' means the Secretary 
        of Energy.
            ``(11) Security.--The definition of `security' in section 
        3(16) shall not apply to the provisions in this section.
    ``(b) Emergency Response Measures.--
            ``(1) Authority to address grid security threats.--Whenever 
        the President issues and provides to the Commission (either 
        directly or through the Secretary) a written directive or 
        determination identifying an imminent grid security threat, the 
        Commission may, with or without notice, hearing, or report, 
        issue such orders for emergency measures as are necessary in 
        its judgment to protect the reliability of the bulk-power 
        system or of defense critical electric infrastructure against 
        such threat. As soon as practicable, but not later than 180 
        days after the date of enactment of this section, the 
        Commission shall, after notice and opportunity for comment, 
        establish rules of procedure that ensure that such authority 
        can be exercised expeditiously.
            ``(2) Notification of congress.--Whenever the President 
        issues and provides to the Commission (either directly or 
        through the Secretary) a written directive or determination 
        under paragraph (1), the President (or the Secretary, as the 
        case may be) shall promptly notify congressional committees of 
        relevant jurisdiction, including the Committee on Energy and 
        Commerce of the House of Representatives and the Committee on 
        Energy and Natural Resources of the Senate, of the contents of, 
        and justification for, such directive or determination.
            ``(3) Consultation.--Before issuing an order for emergency 
        measures under paragraph (1), the Commission shall, to the 
        extent practicable in light of the nature of the grid security 
        threat and the urgency of the need for such emergency measures, 
        consult with appropriate governmental authorities in Canada and 
        Mexico, entities described in paragraph (4), the Secretary, and 
        other appropriate Federal agencies regarding implementation of 
        such emergency measures.
            ``(4) Application.--An order for emergency measures under 
        this subsection may apply to--
                    ``(A) the Electric Reliability Organization;
                    ``(B) a regional entity; or
                    ``(C) any owner, user, or operator of the bulk-
                power system or of defense critical electric 
                infrastructure within the United States.
            ``(5) Discontinuance.--The Commission shall issue an order 
        discontinuing any emergency measures ordered under this 
        subsection, effective not later than 30 days after the earliest 
        of the following:
                    ``(A) The date upon which the President issues and 
                provides to the Commission (either directly or through 
                the Secretary) a written directive or determination 
                that the grid security threat identified under 
                paragraph (1) no longer exists.
                    ``(B) The date upon which the Commission issues a 
                written determination that the emergency measures are 
                no longer needed to address the grid security threat 
                identified under paragraph (1), including by means of 
                Commission approval of a reliability standard under 
                section 215 that the Commission determines adequately 
                addresses such threat.
                    ``(C) The date that is 1 year after the issuance of 
                an order under paragraph (1).
            ``(6) Cost recovery.--If the Commission determines that 
        owners, operators, or users of the bulk-power system or of 
        defense critical electric infrastructure have incurred 
        substantial costs to comply with an order under this subsection 
        or subsection (c) and that such costs were prudently incurred 
        and cannot reasonably be recovered through regulated rates or 
        market prices for the electric energy or services sold by such 
        owners, operators, or users, the Commission shall, after notice 
        and an opportunity for comment, establish a mechanism that 
        permits such owners, operators, or users to recover such costs.
    ``(c) Measures To Address Grid Security Vulnerabilities.--
            ``(1) Commission authority.--If the Commission, in 
        consultation with appropriate Federal agencies, identifies a 
        grid security vulnerability that the Commission determines has 
        not adequately been addressed through a reliability standard 
        developed and approved under section 215, the Commission shall, 
        after notice and opportunity for comment and after consultation 
        with the Secretary, other appropriate Federal agencies, and 
        appropriate governmental authorities in Canada and Mexico, 
        promulgate a rule or issue an order requiring implementation, 
        by any owner, operator, or user of the bulk-power system in the 
        United States, of measures to protect the bulk-power system 
        against such vulnerability. Any such rule or order shall 
        include a protection plan, including automated hardware-based 
        solutions. Before promulgating a rule or issuing an order under 
        this paragraph, the Commission shall, to the extent practicable 
        in light of the urgency of the need for action to address the 
        grid security vulnerability, request and consider 
        recommendations from the Electric Reliability Organization 
        regarding such rule or order. The Commission may establish an 
        appropriate deadline for the submission of such 
        recommendations.
            ``(2) Rescission.--The Commission shall approve a 
        reliability standard developed under section 215 that addresses 
        a grid security vulnerability that is the subject of a rule or 
        order under paragraph (1), unless the Commission determines 
        that such reliability standard does not adequately protect 
        against such vulnerability or otherwise does not satisfy the 
        requirements of section 215. Upon such approval, the Commission 
        shall rescind the rule promulgated or order issued under 
        paragraph (1) addressing such vulnerability, effective upon the 
        effective date of the newly approved reliability standard.
            ``(3) Geomagnetic storms and electromagnetic pulse.--Not 
        later than 6 months after the date of enactment of this 
        section, the Commission shall, after notice and an opportunity 
        for comment and after consultation with the Secretary and other 
        appropriate Federal agencies, issue an order directing the 
        Electric Reliability Organization to submit to the Commission 
        for approval under section 215, not later than 6 months after 
        the issuance of such order, reliability standards adequate to 
        protect the bulk-power system from any reasonably foreseeable 
        geomagnetic storm or electromagnetic pulse event. The 
        Commission's order shall specify the nature and magnitude of 
        the reasonably foreseeable events against which such standards 
        must protect. Such standards shall appropriately balance the 
        risks to the bulk-power system associated with such events, 
        including any regional variation in such risks, and the costs 
        of mitigating such risks. If the Commission determines that the 
        reliability standards submitted by the Electric Reliability 
        Organization pursuant to this paragraph are inadequate, the 
        Commission shall promulgate a rule or issue an order adequate 
        to protect the bulk-power system from geomagnetic storms or 
        electromagnetic pulse as required under paragraph (1).
            ``(4) Large transformer availability.--Not later than 1 
        year after the date of enactment of this section, the 
        Commission shall, after notice and an opportunity for comment 
        and after consultation with the Secretary and other appropriate 
        Federal agencies, issue an order directing the Electric 
        Reliability Organization to submit to the Commission for 
        approval under section 215, not later than 1 year after the 
        issuance of such order, reliability standards addressing 
        availability of large transformers. Such standards shall 
        require entities that own or operate large transformers to 
        ensure, individually or jointly, adequate availability of large 
        transformers to promptly restore the reliable operation of the 
        bulk-power system in the event that any such transformer is 
        destroyed or disabled as a result of a geomagnetic storm event 
        or electromagnetic pulse event. The Commission's order shall 
        specify the nature and magnitude of the reasonably foreseeable 
        events that shall provide the basis for such standards. Such 
        standards shall--
                    ``(A) provide entities subject to the standards 
                with the option of meeting such standards individually 
                or jointly; and
                    ``(B) appropriately balance the risks associated 
                with a reasonably foreseeable event, including any 
                regional variation in such risks, and the costs of 
                ensuring adequate availability of spare transformers.
    ``(d) Critical Defense Facilities.--
            ``(1) Designation.--Not later than 180 days after the date 
        of enactment of this section, the President shall designate, in 
        a written directive or determination provided to the 
        Commission, facilities located in the United States (including 
        the territories) that are--
                    ``(A) critical to the defense of the United States; 
                and
                    ``(B) vulnerable to a disruption of the supply of 
                electric energy provided to such facility by an 
                external provider.
        The number of facilities designated by such directive or 
        determination shall not exceed 100. The President may 
        periodically revise the list of designated facilities through a 
        subsequent written directive or determination provided to the 
        Commission, provided that the total number of designated 
        facilities at any time shall not exceed 100.
            ``(2) Commission authority.--If the Commission identifies a 
        defense critical electric infrastructure vulnerability that the 
        Commission, in consultation with owners and operators of any 
        facility or facilities designated by the President pursuant to 
        paragraph (1), determines has not adequately been addressed 
        through measures undertaken by owners or operators of defense 
        critical electric infrastructure, the Commission shall, after 
        notice and an opportunity for comment and after consultation 
        with the Secretary and other appropriate Federal agencies, 
        promulgate a rule or issue an order requiring implementation, 
        by any owner or operator of defense critical electric 
        infrastructure, of measures to protect the defense critical 
        electric infrastructure against such vulnerability. The 
        Commission shall exempt from any such rule or order any 
        specific defense critical electric infrastructure that the 
        Commission determines already has been adequately protected 
        against the identified vulnerability. The Commission shall make 
        any such determination in consultation with the owner or 
        operator of the facility designated by the President pursuant 
        to paragraph (1) that relies upon such defense critical 
        electric infrastructure.
            ``(3) Cost recovery.--An owner or operator of defense 
        critical electric infrastructure shall be required to take 
        measures under paragraph (2) only to the extent that the owners 
        or operators of a facility or facilities designated by the 
        President pursuant to paragraph (1) that rely upon such 
        infrastructure agree to bear the full incremental costs of 
        compliance with a rule promulgated or order issued under 
        paragraph (2).
    ``(e) Protection of Information.--
            ``(1) Prohibition of public disclosure of protected 
        information.--Protected information shall--
                    ``(A) be exempt from disclosure under section 
                552(b)(3) of title 5, United States Code; and
                    ``(B) not be made available pursuant to any State, 
                local, or tribal law requiring disclosure of 
                information or records.
            ``(2) Information sharing.--
                    ``(A) In general.--Consistent with the Controlled 
                Unclassified Information framework established by the 
                President, the Commission shall promulgate such 
                regulations and issue such orders as necessary to 
                designate protected information and to prohibit the 
                unauthorized disclosure of such protected information.
                    ``(B) Sharing of protected information.--The 
                regulations promulgated and orders issued pursuant to 
                subparagraph (A) shall provide standards for and 
                facilitate the appropriate sharing of protected 
                information with, between, and by Federal, State, 
                local, and tribal authorities, the Electric Reliability 
                Organization, regional entities, and owners, operators, 
                and users of the bulk-power system in the United States 
                and of defense critical electric infrastructure. In 
                promulgating such regulations and issuing such orders, 
                the Commission shall take account of the role of State 
                commissions in reviewing the prudence and cost of 
                investments within their respective jurisdictions. The 
                Commission shall consult with appropriate Canadian and 
                Mexican authorities to develop protocols for the 
                sharing of protected information with, between, and by 
                appropriate Canadian and Mexican authorities and 
                owners, operators, and users of the bulk-power system 
                outside the United States.
            ``(3) Submission of information to congress.--Nothing in 
        this section shall permit or authorize the withholding of 
        information from Congress, any committee or subcommittee 
        thereof, or the Comptroller General.
            ``(4) Disclosure of nonprotected information.--In 
        implementing this section, the Commission shall protect from 
        disclosure only the minimum amount of information necessary to 
        protect the reliability of the bulk-power system and of defense 
        critical electric infrastructure. The Commission shall 
        segregate protected information within documents and electronic 
        communications, wherever feasible, to facilitate disclosure of 
        information that is not designated as protected information.
            ``(5) Duration of designation.--Information may not be 
        designated as protected information for longer than 5 years, 
        unless specifically redesignated by the Commission.
            ``(6) Removal of designation.--The Commission may remove 
        the designation of protected information, in whole or in part, 
        from a document or electronic communication if the unauthorized 
        disclosure of such information could no longer be used to 
        impair the reliability of the bulk-power system or of defense 
        critical electric infrastructure.
            ``(7) Judicial review of designations.--Notwithstanding 
        subsection (f) of this section or section 313, a person or 
        entity may seek judicial review of a determination by the 
        Commission concerning the designation of protected information 
        under this subsection exclusively in the district court of the 
        United States in the district in which the complainant resides, 
        or has his principal place of business, or in the District of 
        Columbia. In such a case the court shall determine the matter 
        de novo, and may examine the contents of documents or 
        electronic communications designated as protected information 
        in camera to determine whether such documents or any part 
        thereof were improperly designated as protected information. 
        The burden is on the Commission to sustain its designation.
    ``(f) Judicial Review.--The Commission shall act expeditiously to 
resolve all applications for rehearing of orders issued pursuant to 
this section that are filed under section 313(a). Any party seeking 
judicial review pursuant to section 313 of an order issued under this 
section may obtain such review only in the United States Court of 
Appeals for the District of Columbia Circuit.
    ``(g) Provision of Assistance to Industry in Meeting Grid Security 
Protection Needs.--
            ``(1) Expertise and resources.--The Secretary shall 
        establish a program, in consultation with other appropriate 
        Federal agencies, to develop technical expertise in the 
        protection of systems for the generation, transmission, and 
        distribution of electric energy against geomagnetic storms or 
        malicious acts using electromagnetic pulse that would pose a 
        substantial risk of disruption to the operation of those 
        electronic devices or communications networks, including 
        hardware, software, and data, that are essential to the 
        reliability of such systems. Such program shall include the 
        identification and development of appropriate technical and 
        electronic resources, including hardware, software, and system 
        equipment.
            ``(2) Sharing expertise.--As appropriate, the Secretary 
        shall offer to share technical expertise developed under the 
        program under paragraph (1), through consultation and 
        assistance, with owners, operators, or users of systems for the 
        generation, transmission, or distribution of electric energy 
        located in the United States and with State commissions. In 
        offering such support, the Secretary shall assign higher 
        priority to systems serving facilities designated by the 
        President pursuant to subsection (d)(1) and other critical-
        infrastructure facilities, which the Secretary shall identify 
        in consultation with the Commission and other appropriate 
        Federal agencies.
            ``(3) Security clearances and communication.--The Secretary 
        shall facilitate and, to the extent practicable, expedite the 
        acquisition of adequate security clearances by key personnel of 
        any entity subject to the requirements of this section to 
        enable optimum communication with Federal agencies regarding 
        grid security threats, grid security vulnerabilities, and 
        defense critical electric infrastructure vulnerabilities. The 
        Secretary, the Commission, and other appropriate Federal 
        agencies shall, to the extent practicable and consistent with 
        their obligations to protect classified and protected 
        information, share timely actionable information regarding grid 
        security threats, grid security vulnerabilities, and defense 
        critical electric infrastructure vulnerabilities with 
        appropriate key personnel of owners, operators, and users of 
        the bulk-power system and of defense critical electric 
        infrastructure.
    ``(h) Certain Federal Entities.--For the 11-year period commencing 
on the date of enactment of this section, the Tennessee Valley 
Authority and the Bonneville Power Administration shall be exempt from 
any requirement under subsection (b) or (c).''.
    (b) Conforming Amendments.--
            (1) Jurisdiction.--Section 201(b)(2) of the Federal Power 
        Act (16 U.S.C. 824(b)(2)) is amended by inserting ``215A,'' 
        after ``215,'' each place it appears.
            (2) Public utility.--Section 201(e) of the Federal Power 
        Act (16 U.S.C. 824(e)) is amended by inserting ``215A,'' after 
        ``215,''.

SEC. 4. BUDGETARY COMPLIANCE.

    The budgetary effects of this Act, for the purpose of complying 
with the Statutory Pay-As-You-Go Act of 2010, shall be determined by 
reference to the latest statement titled ``Budgetary Effects of PAYGO 
Legislation'' for this Act, submitted for printing in the Congressional 
Record by the Chairman of the House Budget Committee, provided that 
such statement has been submitted prior to the vote on passage.
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