[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[S. 3688 Introduced in Senate (IS)]

<DOC>






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 
                           Natural Resources

_______________________________________________________________________

                                 A BILL


 
    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.

    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 ``Energy Infrastructure Protection Act 
of 2020''.

SEC. 2. SENSE OF CONGRESS.

    It is the sense of Congress that--
            (1) electrical energy is essential to civil society;
            (2) the infrastructure that delivers electrical energy to 
        the people of the United States has been vulnerable to attacks 
        of varying scope for more than 100 years;
            (3) with the ready availability of information about 
        electric infrastructure, and the ease of international travel 
        for individuals who seek to harm the United States, threats to 
        electric infrastructure have multiplied in recent years;
            (4) the geographic barriers of the Pacific Ocean and the 
        Atlantic Ocean no longer provide sufficient protection for the 
        people of the United States against threats to electric 
        infrastructure, especially for threats coming from cyberspace;
            (5) electric infrastructure around the world has been 
        attacked during times of war and times of peace, on the ground 
        and in cyberspace, by--
                    (A) individuals;
                    (B) criminal organizations; and
                    (C) foreign countries;
            (6) like electric infrastructure, the fuel suppliers and 
        other vendors who supply the electricity industry are 
        vulnerable to attacks designed to disrupt electricity service;
            (7) before and during World War II, the Federal Power 
        Commission assisted owners and operators of energy 
        infrastructure in defending the assets of those owners and 
        operators;
            (8) the Department of Energy and the Federal Energy 
        Regulatory Commission carry on the legacy of security 
        assistance established by the Federal Power Commission;
            (9) the Department of Energy, assisted by the expertise at 
        the National Laboratories, and utilizing the statutory role of 
        the Department as the lead Federal agency for cybersecurity in 
        the energy sector, has acted to assist owners and operators of 
        electric infrastructure when those owners and operators defend 
        their assets;
            (10) the Federal Energy Regulatory Commission, utilizing 
        the jurisdiction of the Commission over matters of cost 
        recovery and electric reliability, has acted to assist owners 
        and operators of electric infrastructure when those owners and 
        operators defend their assets;
            (11) owners and operators of electric infrastructure, 
        entities involved with electric infrastructure, the Federal 
        Energy Regulatory Commission, the Department of Energy, other 
        Federal departments and agencies, States, and units of local 
        government have information that--
                    (A) can be used by those who seek to harm the 
                United States to disrupt electricity service; and
                    (B) should be protected from excessive disclosure; 
                and
            (12) owners and operators of electric infrastructure--
                    (A) have been acting to reduce the vulnerability of 
                their assets; and
                    (B) should have better opportunities to further 
                reduce the vulnerability of their assets.

SEC. 3. PROTECTING ENERGY INFRASTRUCTURE.

    (a) In General.--Part II of the Federal Power Act (16 U.S.C. 824 et 
seq.) is amended--
            (1) by adding at the end the following:

            ``Subpart B--Protecting Energy Infrastructure'';

            (2) by redesignating section 215A (16 U.S.C. 824o-1) as 
        section 230, and moving that section so as to appear at the 
        beginning of subpart B (as added by paragraph (1)); and
            (3) by inserting after section 201 (16 U.S.C. 824) the 
        following:

                  ``Subpart A--General Requirements''.

    (b) Definitions.--Section 230 of the Federal Power Act (as 
redesignated by subsection (a)(2)) is amended--
            (1) in the section heading, by striking ``Critical electric 
        infrastructure security'' and inserting ``Definitions'';
            (2) in subsection (a)--
                    (A) in the matter preceding paragraph (1), by 
                striking the subsection designation and heading and all 
                that follows through ``this section:'' and inserting 
                the following:
``In this subpart:'';
                    (B) in paragraph (1), by striking ``such terms'' 
                and all that follows through ``respectively.'' and 
                inserting ``the terms in section 215(a).'';
                    (C) by redesignating paragraphs (2), (3), (4), (5), 
                (6), (7), and (8) as paragraphs (3), (4), (5), (6), 
                (8), (9), and (12), respectively;
                    (D) by inserting after paragraph (1) the following:
            ``(2) Commission.--The term `Commission' means the Federal 
        Energy Regulatory Commission.'';
                    (E) in paragraph (3) (as so redesignated), by 
                inserting ``energy infrastructure or'' after ``means'';
                    (F) by striking paragraph (4) (as so redesignated) 
                and inserting the following:
            ``(4) Critical electric infrastructure information.--
                    ``(A) In general.--The term `critical electric 
                infrastructure information' means information relating 
                to critical electric infrastructure, or proposed 
                critical electric infrastructure, that--
                            ``(i) is generated by, or provided to, the 
                        Secretary, the Commission, or any other Federal 
                        department or agency;
                            ``(ii) is not classified national security 
                        information; and
                            ``(iii) is designated as critical electric 
                        infrastructure information by the Secretary or 
                        the Commission under section 231(c) or 235.
                    ``(B) Inclusions.--The term `critical electric 
                infrastructure information' includes any information 
                that qualified as critical energy infrastructure 
                information under the regulations of the Commission in 
                effect on the day before the date of enactment of the 
                Energy Infrastructure Protection Act of 2020.'';
                    (G) in paragraph (5) (as so redesignated), by 
                striking ``subsection (c)'' and inserting ``section 
                231(b)'';
                    (H) by inserting after paragraph (6) (as so 
                redesignated) the following:
            ``(7) Energy infrastructure.--The term `energy 
        infrastructure' includes--
                    ``(A) systems or assets comprising the bulk-power 
                system;
                    ``(B) systems or assets owned by electric 
                utilities;
                    ``(C) systems or assets that--
                            ``(i) allow for the transportation of fuel, 
                        electricity, water, steam, heat, cold, or any 
                        commodity that is used in the provision of 
                        electricity service; and
                            ``(ii) facilitate the delivery of--
                                    ``(I) electrical energy to 
                                consumers;
                                    ``(II) wholesale transactions in 
                                electrical energy; or
                                    ``(III) the import or export of 
                                electrical energy; and
                    ``(D) all systems or assets subject to the 
                jurisdiction of the Commission, including--
                            ``(i) pipelines for the transportation of 
                        oil;
                            ``(ii) natural gas pipelines; and
                            ``(iii) water resources.'';
                    (I) by inserting after paragraph (9) (as so 
                redesignated) the following:
            ``(10) Natural gas; natural-gas company.--The terms 
        `natural gas' and `natural-gas company' have the meanings given 
        the terms in section 2 of the Natural Gas Act (15 U.S.C. 717a).
            ``(11) Oil; oil pipeline.--The terms `oil' and `oil 
        pipeline' have the meanings given the terms in section 1804 of 
        the Energy Policy Act of 1992 (42 U.S.C. 7172 note; Public Law 
        102-486).''; and
                    (J) by inserting after paragraph (12) (as so 
                redesignated) the following:
            ``(13) Source of the information.--The term `source of the 
        information' means--
                    ``(A) the electric utility, Transmission 
                Organization, natural-gas company, licensee, or oil 
                pipeline that provides to the Secretary or the 
                Commission, as applicable, critical electric 
                infrastructure information, including--
                            ``(i) critical electric infrastructure 
                        information that is provided directly to the 
                        Secretary or the Commission by the electric 
                        utility, Transmission Organization, natural-gas 
                        company, licensee, or oil pipeline; and
                            ``(ii) critical electric infrastructure 
                        information that is provided to the Secretary 
                        or the Commission by an intermediary;
                    ``(B) the Secretary, with respect to critical 
                electric infrastructure information that is created by 
                the Secretary;
                    ``(C) the Commission, with respect to critical 
                electric infrastructure information that is created by 
                the Commission; and
                    ``(D) with respect to any critical electric 
                infrastructure information not described in 
                subparagraphs (A) through (C), the individual or entity 
                that provides to the Secretary or the Commission, as 
                applicable, the critical electric infrastructure 
                information.''; and
            (3) by inserting before subsection (b) the following:

``SEC. 231. CRITICAL ELECTRIC INFRASTRUCTURE SECURITY.''.

    (c) Critical Electric Infrastructure Security.--Section 231 of the 
Federal Power Act (as designated by subsection (b)(3)) is amended--
            (1) by redesignating subsections (b) through (f) as 
        subsections (a) through (e), respectively;
            (2) in paragraph (6)(B) of subsection (a) (as so 
        redesignated), by striking ``subsection (c)'' and inserting 
        ``subsection (b)'';
            (3) in subsection (c) (as so redesignated)--
                    (A) in paragraph (2)--
                            (i) in the matter preceding subparagraph 
                        (A), by striking ``Not later'' and all that 
                        follows through ``shall'' and inserting ``Each 
                        of the Secretary and the Commission, after 
                        consultation with the other, shall'';
                            (ii) in subparagraph (A), by adding ``and'' 
                        at the end after the semicolon;
                            (iii) in subparagraph (B), by striking the 
                        semicolon at the end and inserting a period; 
                        and
                            (iv) by striking subparagraphs (C) and (D);
                    (B) by striking paragraph (3) and inserting the 
                following:
            ``(3) Authority to designate.--
                    ``(A) In general.--The Secretary and the Commission 
                may each designate information as critical electric 
                infrastructure information pursuant to the criteria and 
                procedures established by the Secretary or the 
                Commission, as applicable, under paragraph (2)(A).
                    ``(B) Submission of request for designation.--
                            ``(i) In general.--Any individual or entity 
                        may request that--
                                    ``(I) the Secretary designate 
                                information in the possession of the 
                                Secretary as critical electric 
                                infrastructure information; and
                                    ``(II) the Commission designate 
                                information in the possession of the 
                                Commission as critical electric 
                                infrastructure information.
                            ``(ii) Treatment of information submitted 
                        for designation.--On receipt of a request under 
                        clause (i), the Secretary or the Commission, as 
                        applicable, shall treat the information that is 
                        the subject of the request as critical electric 
                        infrastructure information until the earlier 
                        of--
                                    ``(I) the date on which the 
                                Secretary or the Commission, as 
                                applicable, designates the information 
                                as critical electric infrastructure 
                                information; and
                                    ``(II) the date that is 21 days 
                                after the date on which the Secretary 
                                or the Commission, as applicable, 
                                provides written notice to the 
                                individual or entity that submitted the 
                                request that the request is denied.
                    ``(C) Conflicts between designations by the 
                secretary and the commission.--
                            ``(i) Initial meeting.--In the event of a 
                        conflict between a designation made by the 
                        Secretary and a designation made by the 
                        Commission as to whether certain information is 
                        critical electric infrastructure information, 
                        and the conflict has a material impact on the 
                        work of the Secretary or the Commission, the 
                        Secretary and the Commission shall confer to 
                        resolve the conflict for the purpose of 
                        achieving consistency across the Federal 
                        Government in the designation of the 
                        information.
                            ``(ii) Unresolved conflicts.--If the 
                        Secretary and the Commission are unable to 
                        resolve a conflict under clause (i)--
                                    ``(I) the Commission may continue 
                                to designate any information in the 
                                possession of the Commission according 
                                to the criteria and procedures 
                                established by the Commission under 
                                paragraph (2)(A); and
                                    ``(II) the Secretary may continue 
                                to designate any information in the 
                                possession of the Department of Energy 
                                according to the criteria and 
                                procedures established by the Secretary 
                                under paragraph (2)(A).'';
                    (C) in paragraph (8)--
                            (i) by striking ``In implementing'' and all 
                        that follows through ``shall'' and inserting 
                        the following:
                    ``(A) In general.--In implementing this section, 
                the Secretary and the Commission shall reasonably 
                attempt to''; and
                            (ii) by adding at the end the following:
                    ``(B) Effect of failure to segregate information.--
                A failure to segregate any particular information under 
                subparagraph (A) shall not result in an inference or 
                finding that the information should not be entitled to 
                protection as critical electric infrastructure 
                information.'';
                    (D) by striking paragraphs (9) and (10) and 
                inserting the following:
            ``(9) Duration of designation.--
                    ``(A) In general.--Except as provided in 
                subparagraph (B), information may not be designated as 
                critical electric infrastructure information for a 
                period longer than the information is related to energy 
                infrastructure in service.
                    ``(B) Redesignation.--Any information may be 
                redesignated by the Secretary or the Commission as 
                critical electric infrastructure information before, 
                on, or after the date on which an earlier designation 
                has expired.
                    ``(C) Vulnerabilities and threats.--Information 
                about a vulnerability or threat to energy 
                infrastructure, or the planning and construction of a 
                system or asset that is intended to address a 
                vulnerability or threat to energy infrastructure, may 
                be designated as critical electric infrastructure 
                information--
                            ``(i) for the period during which the 
                        vulnerability or threat exists; and
                            ``(ii) for any additional period determined 
                        to be appropriate by the Secretary or the 
                        Commission, as applicable.
            ``(10) Removal of designation.--The Secretary or the 
        Commission, as applicable, shall remove the designation of 
        critical electric infrastructure information, in whole or in 
        part, from a document or electronic communication if the 
        Secretary or the Commission, as applicable, determines that the 
        unauthorized disclosure of the information so designated could 
        no longer be used to impair the security or reliability of 
        energy infrastructure, the bulk-power system, or distribution 
        facilities.''; and
                    (E) by adding at the end the following:
            ``(12) No immediate obligation to designate.--Any request 
        for designation submitted to the Secretary or the Commission 
        need not be considered by the Secretary or the Commission, as 
        applicable, until the information that is the subject of the 
        request for designation becomes the subject of any request to 
        disclose, including a request under--
                    ``(A) section 552 of title 5, United States Code; 
                or
                    ``(B) any applicable law (including any Federal, 
                State, political subdivision, or Tribal law) requiring 
                public disclosure of information or records.
            ``(13) Effect of prior determinations.--A prior 
        determination by the Secretary or the Commission that certain 
        information is not critical electric infrastructure information 
        shall not affect the authority of the Secretary or the 
        Commission to later designate that information as critical 
        electric infrastructure information.''; and
            (4) in subsection (e) (as so redesignated)--
                    (A) in paragraph (1), by striking ``subsection 
                (b)(1)'' and inserting ``subsection (a)(1)'';
                    (B) in paragraph (2), by striking ``subsection 
                (b)(1)'' and inserting ``subsection (a)(1)'';
                    (C) in paragraph (3), by striking ``subsection 
                (d)'' and inserting ``subsection (c) or any of sections 
                232 through 235, as applicable''; and
                    (D) in paragraph (4)--
                            (i) by striking ``subsection (b)(1)'' and 
                        inserting ``subsection (a)(1)''; and
                            (ii) by striking ``paragraph (1) or (2 )'' 
                        and inserting ``paragraph (1) or (2)''.
    (d) Assistance, Access, and Enforcement.--Subpart B of part II of 
the Federal Power Act (as added by subsection (a)(1)) is amended by 
adding at the end the following:

``SEC. 232. AUTHORITY OF THE COMMISSION TO OFFER ASSISTANCE TO OWNERS 
              AND OPERATORS OF ENERGY INFRASTRUCTURE.

    ``(a) Definition of Eligible Entity.--In this section, the term 
`eligible entity' means--
            ``(1) an authority of a State, political subdivision, or 
        Indian Tribe;
            ``(2) a Transmission Organization;
            ``(3) an electric utility;
            ``(4) a natural-gas company;
            ``(5) an oil pipeline; and
            ``(6) any other owner or operator of energy infrastructure.
    ``(b) Voluntary Assistance on Request.--On request of an eligible 
entity, the Commission may provide assistance to the eligible entity--
            ``(1) by reviewing the configuration of the assets of the 
        eligible entity against threats;
            ``(2) by reviewing the capability of the eligible entity to 
        operate its assets after attacks on those assets;
            ``(3) by providing information about methods and tools that 
        owners and operators of energy infrastructure may use to defend 
        assets against threats;
            ``(4) by providing information regarding other resources 
        that may be available to assist the eligible entity; and
            ``(5) by reviewing data and other assets in the possession 
        of the eligible entity--
                    ``(A) for evidence that the data or other asset--
                            ``(i) has been tampered with; or
                            ``(ii) has otherwise been the subject of 
                        threat activity; and
                    ``(B) while ensuring an adequate chain of custody 
                to enable criminal investigation and prosecution.
    ``(c) Release of Information.--
            ``(1) Protection of information.--Any information collected 
        or created by the Commission in carrying out activities under 
        subsection (b), including any report prepared under subsection 
        (g)(1)(A)--
                    ``(A) to the extent that the information is not 
                already designated as critical electric infrastructure 
                information, shall be handled by the Commission as if 
                it had been designated by the Commission as critical 
                electric infrastructure information under this subpart;
                    ``(B) shall be exempt from disclosure under section 
                552(b)(3) of title 5, United States Code; and
                    ``(C) shall not be made available by any Federal, 
                State, political subdivision, or Tribal authority under 
                any applicable law requiring public disclosure of 
                information or records.
            ``(2) Voluntary release.--
                    ``(A) Consent required.--Subject to subparagraph 
                (C), if the source of any information described in 
                paragraph (1) provides consent, the Commission may 
                share that information with--
                            ``(i) the Electric Reliability 
                        Organization;
                            ``(ii) a regional entity;
                            ``(iii) an information sharing and analysis 
                        center; or
                            ``(iv) an authority of a State, political 
                        subdivision, or Indian Tribe that is involved 
                        in protecting energy infrastructure from 
                        threats.
                    ``(B) Advance consent.--Consent to the disclosure 
                of information by the Commission under subparagraph (A) 
                may--
                            ``(i) be provided in advance of the 
                        disclosure of that information to, or the 
                        creation of that information by, the 
                        Commission; and
                            ``(ii) be a condition precedent to 
                        obtaining assistance from the Commission under 
                        this section.
                    ``(C) Limitation.--Any information that is shared 
                with an authority described in subparagraph (A)(iv) 
                shall be exempt from disclosure by the authority as if 
                that information were in the possession of the 
                Commission under this subsection.
            ``(3) Release to federal authorities.--
                    ``(A) Consent not required.--The Commission may 
                share any information described in paragraph (1) with a 
                Federal authority regardless of whether the source of 
                that information consents to the disclosure.
                    ``(B) Limitation.--Any information that is shared 
                with a Federal authority under subparagraph (A) shall 
                be exempt from disclosure by the Federal authority as 
                if that information were in the possession of the 
                Commission under this subsection.
    ``(d) Withdrawal of Request.--
            ``(1) In general.--An eligible entity may withdraw a 
        request for assistance under subsection (b) at any time.
            ``(2) Effect.--On withdrawal of a request under paragraph 
        (1), the Commission shall--
                    ``(A) terminate all assistance; and
                    ``(B) to the maximum extent practicable, and 
                subject to any Federal law applicable to the Commission 
                regarding retention of records, return to the eligible 
                entity all information that the Commission received 
                from the eligible entity.
    ``(e) Use of Information.--
            ``(1) Information provided for assistance.--Any information 
        that is provided by an eligible entity to the Commission for 
        the purpose of obtaining assistance under subsection (b) may 
        not be used as a basis for any order, rule, opinion, or 
        decision of the Commission.
            ``(2) Information obtained by other means.--Subject to 
        applicable law, if the information described in paragraph (1) 
        is obtained by the Commission in a manner other than the manner 
        described in that paragraph, the Commission may use that 
        information in any manner that the Commission determines to be 
        appropriate if--
                    ``(A) the Commission segregates the information 
                described in paragraph (1) from information that is 
                obtained by the Commission in a manner not described in 
                that paragraph; and
                    ``(B) the information described in paragraph (1) 
                has been and is reviewed only by individuals authorized 
                by the Commission to provide assistance under 
                subsection (b).
            ``(3) Informal staff advice.--An officer, employee, agent, 
        or contractor of the Commission may advise an eligible entity 
        that information provided to the Commission for the purpose of 
        obtaining assistance under subsection (b) should also be 
        provided to the Commission for purposes unrelated to assistance 
        under subsection (b).
    ``(f) Effect.--Nothing in this section--
            ``(1) authorizes the Commission to require any eligible 
        entity to adopt any advice, report, recommendation, best 
        practice, finding, model, tool, method, plan, analysis, or 
        assessment made by the Commission under this section; or
            ``(2) relieves an eligible entity from any obligation to 
        comply with a lawful order or rule of the Commission.
    ``(g) Reports for Eligible Entities.--
            ``(1) In general.--The Commission may prepare reports--
                    ``(A) for an eligible entity that requests 
                assistance under subsection (b); and
                    ``(B) for eligible entities generally.
            ``(2) Authority.--The Commission shall have sole discretion 
        to prepare a report under paragraph (1).
            ``(3) Requirement.--A report under paragraph (1) shall not 
        identify an eligible entity without the consent of that 
        eligible entity.
            ``(4) Effect.--A report under paragraph (1)--
                    ``(A) shall not be binding on the Commission; and
                    ``(B) shall not relieve an eligible entity from any 
                obligation to comply with any applicable order or rule 
                of the Commission.
    ``(h) Savings Clause.--Nothing in this section affects in any 
manner the authority, existing on the day before the date of enactment 
of the Energy Infrastructure Protection Act of 2020, of--
            ``(1) the Electric Reliability Organization;
            ``(2) a regional entity;
            ``(3) an information sharing and analysis center; or
            ``(4) a component of any Federal department or agency other 
        than the Commission, including the authority provided to--
                    ``(A) the Cybersecurity and Infrastructure Security 
                Agency;
                    ``(B) the national cybersecurity and communications 
                integration center established under section 2209(b) of 
                the Homeland Security Act of 2002 (6 U.S.C. 659(b)); 
                and
                    ``(C) the Sector-Specific Agency specified in 
                section 61003(c)(2) of the FAST Act (6 U.S.C. 121 note; 
                Public Law 114-94).

``SEC. 233. AUTHORITY OF THE SECRETARY TO OFFER ASSISTANCE TO OWNERS 
              AND OPERATORS OF ENERGY INFRASTRUCTURE.

    ``(a) Definition of Eligible Entity.--In this section, the term 
`eligible entity' means--
            ``(1) an authority of a State, political subdivision, or 
        Indian Tribe;
            ``(2) a Transmission Organization;
            ``(3) an electric utility;
            ``(4) a natural-gas company;
            ``(5) an oil pipeline; and
            ``(6) any other owner or operator of energy infrastructure.
    ``(b) Voluntary Assistance on Request.--On the request of an 
eligible entity, the Secretary may provide assistance to the eligible 
entity--
            ``(1) by reviewing the configuration of the assets of the 
        eligible entity against threats;
            ``(2) by reviewing the capability of the eligible entity to 
        operate its assets after attacks on those assets;
            ``(3) by providing information about methods and tools that 
        owners and operators of energy infrastructure may use to defend 
        their assets against threats;
            ``(4) by providing information regarding other resources 
        that may be available to assist the eligible entity;
            ``(5) by reviewing data and other assets in the possession 
        of the eligible entity--
                    ``(A) for evidence that the data or other asset--
                            ``(i) has been tampered with; or
                            ``(ii) has otherwise been the subject of 
                        threat activity; and
                    ``(B) while ensuring an adequate chain of custody 
                to enable criminal investigation and prosecution;
            ``(6) by monitoring sensor data and other information flows 
        of the eligible entity; and
            ``(7) by testing equipment and other assets of the eligible 
        entity.
    ``(c) Research and Planning.--The Secretary shall carry out a 
program--
            ``(1) to gather information about the tools and methods 
        that have been used to penetrate or defend any eligible entity 
        or industrial control system, including information about those 
        tools and methods that is available from--
                    ``(A) the Department of Homeland Security;
                    ``(B) the Department of Defense;
                    ``(C) any other Federal department or agency; and
                    ``(D) any eligible entity;
            ``(2) to research and plan to ensure that the Federal 
        Government has access to energy infrastructure during a time of 
        war or national crisis; and
            ``(3) to research and plan the response of the Secretary in 
        the event that owners and operators of energy infrastructure 
        are attacked.
    ``(d) Release of Information.--
            ``(1) Protection of information.--Any information collected 
        or created by the Secretary in carrying out activities under 
        subsection (b), including any report prepared under subsection 
        (h)(1)(A)--
                    ``(A) to the extent that the information is not 
                already designated as critical electric infrastructure 
                information, shall be handled by the Secretary as if it 
                had been designated by the Secretary as critical 
                electric infrastructure information under this subpart;
                    ``(B) shall be exempt from disclosure under section 
                552(b)(3) of title 5, United States Code; and
                    ``(C) shall not be made available by any Federal, 
                State, political subdivision, or Tribal authority under 
                any applicable law requiring public disclosure of 
                information or records.
            ``(2) Voluntary release.--
                    ``(A) Consent required.--Subject to subparagraph 
                (C), if the source of any information described in 
                paragraph (1) provides consent, the Secretary may share 
                that information with--
                            ``(i) the Electric Reliability 
                        Organization;
                            ``(ii) a regional entity;
                            ``(iii) an information sharing and analysis 
                        center; or
                            ``(iv) an authority of a State, political 
                        subdivision, or Indian Tribe that is involved 
                        in protecting energy infrastructure from 
                        threats.
                    ``(B) Advance consent.--Consent to the disclosure 
                of information by the Secretary under subparagraph (A) 
                may--
                            ``(i) be provided in advance of the 
                        disclosure of that information to, or the 
                        creation of that information by, the Secretary; 
                        and
                            ``(ii) be a condition precedent to 
                        obtaining assistance from the Secretary under 
                        this section.
                    ``(C) Limitation.--Any information that is shared 
                with an authority described in subparagraph (A)(iv) 
                shall be exempt from disclosure by the authority as if 
                that information were in the possession of the 
                Secretary under this subsection.
            ``(3) Release to federal authorities.--
                    ``(A) Consent not required.--The Secretary may 
                share any information described in paragraph (1) with a 
                Federal authority regardless of whether the source of 
                that information consents to the disclosure.
                    ``(B) Limitation.--Any information that is shared 
                with a Federal authority under subparagraph (A) shall 
                be exempt from disclosure by the Federal authority as 
                if that information were in the possession of the 
                Secretary under this subsection.
    ``(e) Withdrawal of Request.--
            ``(1) In general.--An eligible entity may withdraw a 
        request for assistance under subsection (b) at any time.
            ``(2) Effect.--On withdrawal of a request under paragraph 
        (1), the Secretary shall--
                    ``(A) terminate all assistance; and
                    ``(B) to the maximum extent practicable, and 
                subject to any Federal law applicable to the Secretary 
                regarding retention of records, return to the eligible 
                entity all information that the Secretary received from 
                the eligible entity.
    ``(f) Use of Information.--
            ``(1) Information provided for assistance.--Any information 
        that is provided by an eligible entity to the Secretary for the 
        purpose of obtaining assistance under subsection (b) may not be 
        used as a basis for any order, rule, opinion, or decision of 
        the Secretary.
            ``(2) Information obtained by other means.--Subject to 
        applicable law, if the information described in paragraph (1) 
        is obtained by the Secretary in a manner other than the manner 
        described in that paragraph, the Secretary may use that 
        information in any manner that the Secretary determines to be 
        appropriate if--
                    ``(A) the Secretary segregates the information 
                described in paragraph (1) from information that is 
                obtained by the Secretary in a manner not described in 
                that paragraph; and
                    ``(B) the information described in paragraph (1) 
                has been and is reviewed only by individuals authorized 
                by the Secretary to provide assistance under subsection 
                (b).
            ``(3) Informal staff advice.--An officer, employee, agent, 
        or contractor of the Secretary may advise an eligible entity 
        that information provided to the Secretary for the purpose of 
        obtaining assistance under subsection (b) should also be 
        provided to the Secretary for purposes unrelated to assistance 
        under subsection (b).
    ``(g) Effect.--Nothing in this section--
            ``(1) authorizes the Secretary to require any eligible 
        entity to adopt any advice, report, recommendation, best 
        practice, finding, model, tool, method, plan, analysis, or 
        assessment made by the Secretary under this section; or
            ``(2) relieves an eligible entity from any obligation to 
        comply with a lawful order or rule of the Secretary.
    ``(h) Reports for Eligible Entities.--
            ``(1) In general.--The Secretary may prepare reports--
                    ``(A) for an eligible entity that requests 
                assistance under subsection (b); and
                    ``(B) for eligible entities generally.
            ``(2) Authority.--The Secretary shall have sole discretion 
        to prepare a report under paragraph (1).
            ``(3) Requirement.--A report under paragraph (1) shall not 
        identify an eligible entity without the consent of that 
        eligible entity.
            ``(4) Effect.--A report under paragraph (1)--
                    ``(A) shall not be binding on the Secretary; and
                    ``(B) shall not relieve an eligible entity from any 
                obligation to comply with any applicable order or rule 
                of the Secretary.
    ``(i) Savings Clause.--Nothing in this section affects in any 
manner the authority, existing on the day before the date of enactment 
of the Energy Infrastructure Protection Act of 2020, of--
            ``(1) the Electric Reliability Organization;
            ``(2) a regional entity;
            ``(3) an information sharing and analysis center; or
            ``(4) a component of any Federal department or agency other 
        than the Department of Energy, including the authority provided 
        to--
                    ``(A) the Cybersecurity and Infrastructure Security 
                Agency; and
                    ``(B) the national cybersecurity and communications 
                integration center established under section 2209(b) of 
                the Homeland Security Act of 2002 (6 U.S.C. 659(b)).

``SEC. 234. ACCESS TO CRITICAL ELECTRIC INFRASTRUCTURE INFORMATION.

    ``(a) Access.--
            ``(1) In general.--Except as provided in paragraph (2), and 
        subject to subsections (c) and (e), the Secretary or the 
        Commission, as applicable, shall not disclose or release 
        critical electric infrastructure information to any individual 
        or entity.
            ``(2) Exceptions.--
                    ``(A) In general.--Subject to subparagraph (B), the 
                Secretary or the Commission, as applicable, may 
                disclose critical electric infrastructure information--
                            ``(i) to the source of the information;
                            ``(ii) to a party or participant in a 
                        proceeding before the Secretary or the 
                        Commission, if--
                                    ``(I) the information is relevant 
                                to that proceeding; and
                                    ``(II) each individual seeking 
                                access to the information has entered 
                                into a nondisclosure agreement with the 
                                source of the information;
                            ``(iii) to an individual who is an officer, 
                        employee, agent, or contractor of the Secretary 
                        or the Commission;
                            ``(iv) to an officer, employee, agent, or 
                        contractor of--
                                    ``(I) the Electric Reliability 
                                Organization;
                                    ``(II) a regional entity; or
                                    ``(III) an information sharing and 
                                analysis center;
                            ``(v) to an officer, employee, agent, or 
                        contractor of the Federal Government;
                            ``(vi) to the President, the National 
                        Security Council, a member of Congress, a 
                        Federal judge or magistrate, or any officer of 
                        the United States appointed by the President 
                        with the advice and consent of the Senate;
                            ``(vii) to an individual who is an officer, 
                        employee, agent, or contractor of Congress, the 
                        Executive Office of the President, or a court 
                        created under article I or III of the 
                        Constitution of the United States;
                            ``(viii) to a landowner the property of 
                        which has a boundary that is crossed by, or 
                        located within the vicinity of, energy 
                        infrastructure, as determined by the Secretary 
                        or the Commission, as applicable, if--
                                    ``(I) the landowner provides to the 
                                Secretary or the Commission, as 
                                applicable, proof of the property 
                                interest of the landowner; and
                                    ``(II) the critical electric 
                                infrastructure information consists of 
                                detailed alignment sheets concerning 
                                actual or proposed energy 
                                infrastructure within the vicinity of 
                                the property boundary, as determined by 
                                the Secretary or the Commission, as 
                                applicable;
                            ``(ix) to an officer, employee, agent, or 
                        contractor of an authority of a State, 
                        political subdivision, or Indian Tribe, if each 
                        individual seeking access to the information 
                        has entered into a nondisclosure agreement with 
                        the Secretary or Commission, as applicable;
                            ``(x) to an individual holding a security 
                        clearance at the level of top secret or higher; 
                        or
                            ``(xi) to any other individual, if--
                                    ``(I) the source of the information 
                                has given express consent to the 
                                disclosure of the information to the 
                                individual; and
                                    ``(II) a nondisclosure agreement 
                                between the source of the information 
                                and each individual seeking access to 
                                the information has been approved by--
                                            ``(aa) an administrative 
                                        law judge of, or assigned to, 
                                        the Department of Energy; or
                                            ``(bb) an administrative 
                                        law judge of, or assigned to, 
                                        the Commission.
                    ``(B) Disclosure for academic, scientific, or 
                research purposes.--The Secretary or the Commission, as 
                applicable, may disclose critical electric 
                infrastructure information to an individual for 
                academic, scientific, or research purposes, including 
                academic, scientific, or research work that is 
                conducted by the Department of Energy at any laboratory 
                of the Department of Energy, if--
                            ``(i) the individual holds a security 
                        clearance at the level of top secret or higher; 
                        or
                            ``(ii)(I) the source of the information 
                        expressly consents to the disclosure of the 
                        information to the individual for the academic, 
                        scientific, or research work; and
                            ``(II) a nondisclosure agreement between 
                        the source of the information and each 
                        individual seeking access to the information 
                        has been approved by--
                                    ``(aa) an administrative law judge 
                                of, or assigned to, the Department of 
                                Energy; or
                                    ``(bb) an administrative law judge 
                                of, or assigned to, the Commission.
                    ``(C) Authority to retain information.--
                            ``(i) In general.--The Secretary or the 
                        Commission, as applicable--
                                    ``(I) shall have no obligation to 
                                disclose critical electric 
                                infrastructure information to any 
                                individual or entity; and
                                    ``(II) may withhold disclosure of 
                                critical electric infrastructure 
                                information at any time, for any 
                                reason, at the sole discretion of the 
                                Secretary or the Commission, as 
                                applicable.
                            ``(ii) Requirement.--
                                    ``(I) In general.--If the Secretary 
                                or the Commission, as applicable, 
                                determines that the disclosure of 
                                critical electric infrastructure 
                                information to an individual or entity 
                                may jeopardize the common defense and 
                                security of the United States, the 
                                information shall not be disclosed to 
                                that individual or entity.
                                    ``(II) Coordination.--The Secretary 
                                shall share appropriate information and 
                                coordinate resources with the 
                                Commission to ensure compliance with 
                                the requirement described in subclause 
                                (I).
    ``(b) Nondisclosure Agreements.--
            ``(1) In general.--Each nondisclosure agreement entered 
        into or approved under this section shall--
                    ``(A) reflect the individual circumstances 
                concerning the parties to the agreement;
                    ``(B) permit the auditing of compliance with the 
                agreement; and
                    ``(C) be enforceable in law and equity by any 
                district court of the United States.
            ``(2) Modification of standardized forms; dispute 
        resolution.--
                    ``(A) Standardized forms.--
                            ``(i) Use of standardized forms 
                        permitted.--Potential parties to a 
                        nondisclosure agreement may use a standardized 
                        form of agreement if that form is appropriate 
                        for the particular circumstances.
                            ``(ii) Modification by the parties.--
                        Notwithstanding any policy or rule of the 
                        Secretary or the Commission relating to 
                        standardized forms of nondisclosure agreements, 
                        the express terms of a nondisclosure agreement 
                        shall be subject to appropriate revision by the 
                        parties to the agreement.
                    ``(B) Dispute resolution.--
                            ``(i) In general.--Any dispute regarding a 
                        nondisclosure agreement, including any dispute 
                        regarding the terms of a proposed nondisclosure 
                        agreement or compliance with an existing 
                        nondisclosure agreement, shall be resolved by--
                                    ``(I) a district court of the 
                                United States;
                                    ``(II) an administrative law judge 
                                of, or assigned to, the Department of 
                                Energy; or
                                    ``(III) an administrative law judge 
                                of, or assigned to, the Commission.
                            ``(ii) Judicial review.--
                                    ``(I) In general.--Any party to a 
                                proceeding to resolve a dispute 
                                described in clause (i) who is 
                                aggrieved by an order issued by an 
                                administrative law judge under that 
                                clause may obtain review of that order 
                                in a district court of the United 
                                States by filing, in accordance with 
                                subclause (II), a petition for review 
                                in--
                                            ``(aa) the United States 
                                        District Court for the District 
                                        of Columbia; or
                                            ``(bb) the district court 
                                        of the United States for the 
                                        judicial district in which any 
                                        party to the nondisclosure 
                                        agreement resides.
                                    ``(II) Petition for review.--A 
                                petition for review of any order 
                                subject to review under subclause (I) 
                                shall--
                                            ``(aa) be filed not later 
                                        than 30 days after the date on 
                                        which the administrative law 
                                        judge issues the order; and
                                            ``(bb) request that the 
                                        order be modified or set aside 
                                        in whole or in part.
            ``(3) Option for federal form of nondisclosure agreement.--
        The Secretary or the Commission, as applicable, may require an 
        individual seeking access to critical electric infrastructure 
        information from the Secretary or the Commission to enter into 
        a nondisclosure agreement with the Secretary or the Commission, 
        as applicable, in addition to any nondisclosure agreement 
        entered into by that individual with the source of the 
        information.
    ``(c) Disclosure of Indicators, Methods, and Tools.--
Notwithstanding subsection (a)(1), the Secretary or the Commission, as 
applicable, may disclose indicators, methods, and tools that have been 
used in penetrating or defending energy infrastructure if--
            ``(1) the source of the information consents to the release 
        of that information; and
            ``(2) the Secretary or the Commission, as applicable, 
        removes all information that would enable an individual to 
        identify the source of the information.
    ``(d) Protection of Information.--Any critical electric 
infrastructure information that is disclosed by the Secretary or the 
Commission under subsection (a)(2), or that is required to be disclosed 
under a rule issued pursuant to subsection (e)(2)--
            ``(1) shall be protected from disclosure by the recipient;
            ``(2) shall be exempt from disclosure under section 
        552(b)(3) of title 5, United States Code; and
            ``(3) shall not be made available by any Federal, State, 
        political subdivision, or Tribal authority under any applicable 
        law requiring public disclosure of information or records.
    ``(e) Savings Clauses.--
            ``(1) Information controlled by owners and operators of 
        energy infrastructure.--Nothing in this section limits the 
        ability of an owner or operator of energy infrastructure to 
        handle the information controlled by that owner or operator, 
        including information that could be designated as critical 
        electric infrastructure information, in whatever manner the 
        owner or operator believes will best serve the interests of the 
        owner or operator, including--
                    ``(A) by exchanging that information with other 
                owners or operators of energy infrastructure; and
                    ``(B) by providing that information to officers, 
                employees, agents, and contractors of the owner or 
                operator.
            ``(2) Disclosure to certain individuals and entities.--
                    ``(A) In general.--Except as provided in 
                subparagraph (C), nothing in this section limits the 
                ability of the Commission to issue or enforce a rule of 
                general applicability requiring a public utility to 
                disclose certain critical electric infrastructure 
                information to an eligible recipient described in 
                subparagraph (B) that requests the information.
                    ``(B) Eligible recipient described.--An eligible 
                recipient referred to in subparagraph (A) is--
                            ``(i) an electric utility;
                            ``(ii) a potential or existing 
                        interconnection customer of the public utility;
                            ``(iii) a potential or existing 
                        transmission customer of the public utility;
                            ``(iv) a State regulatory authority; or
                            ``(v) a member of the public.
                    ``(C) Requirements.--Any rule described in 
                subparagraph (A) issued or enforced by the Commission 
                shall--
                            ``(i) require that each request for 
                        critical electric infrastructure information be 
                        disclosed to the source of the information;
                            ``(ii) require disclosure only if each 
                        individual seeking access to critical electric 
                        infrastructure information has entered into a 
                        nondisclosure agreement with the source of the 
                        information;
                            ``(iii) provide that the source of the 
                        information shall have no liability for damages 
                        associated with misuse of the critical electric 
                        infrastructure information that results in an 
                        attack on energy infrastructure; and
                            ``(iv) with respect to a request submitted 
                        by a member of the public, require disclosure 
                        only after each individual seeking access to 
                        critical electric infrastructure information 
                        has entered into a nondisclosure agreement with 
                        the source of the information that has been 
                        approved by--
                                    ``(I) an administrative law judge 
                                of, or assigned to, the Department of 
                                Energy; or
                                    ``(II) an administrative law judge 
                                of, or assigned to, the Commission.

``SEC. 235. DESIGNATING INFORMATION HELD BY OTHER GOVERNMENTAL 
              AUTHORITIES.

    ``(a) Definition of Eligible Entity.--In this section:
            ``(1) In general.--The term `eligible entity' means--
                    ``(A) a Federal, State, political subdivision, or 
                Tribal authority; and
                    ``(B) a utility owned or operated by 1 or more of 
                the authorities described in subparagraph (A), 
                including a joint action agency or similar entity.
            ``(2) Exclusions.--The term `eligible entity' does not 
        include--
                    ``(A) the Secretary; or
                    ``(B) the Commission.
    ``(b) Request for Designation.--An eligible entity may submit to 
the Secretary or the Commission a request to designate information that 
is in the possession and control of the eligible entity as critical 
electric infrastructure information by providing to the Secretary or 
the Commission, as applicable, a description of--
            ``(1) the nature of the information for which the 
        designation is requested; and
            ``(2) the basis for the designation.
    ``(c) Timing; Effect; Future Information.--
            ``(1) Timing.--
                    ``(A) Submission.--A request under subsection (b) 
                may be submitted to the Secretary or the Commission at 
                any time, including after disclosure of the relevant 
                information has been requested under any applicable law 
                requiring public disclosure of information or records.
                    ``(B) Treatment of submitted information.--On 
                receipt of a request under subsection (b), the 
                Secretary or the Commission, as applicable, shall treat 
                the information that is the subject of the request as 
                critical electric infrastructure information until the 
                earlier of--
                            ``(i) the date on which the Secretary or 
                        the Commission, as applicable, designates the 
                        information as critical electric infrastructure 
                        information; and
                            ``(ii) the date that is 21 days after the 
                        date on which the Secretary or Commission, as 
                        applicable, provides written notice to the 
                        eligible entity that submitted the request that 
                        the request is denied.
            ``(2) Effect.--
                    ``(A) Effect of request for public disclosure.--The 
                submission of a request to the Secretary or the 
                Commission under subsection (b) after a request for 
                public disclosure of the relevant information has been 
                made shall not prejudice any decision with respect to 
                whether the information should be designated as 
                critical electric infrastructure information.
                    ``(B) Effect of failure to timely act on 
                submission.--If the Secretary or the Commission, as 
                applicable, fails to grant or deny a request submitted 
                under subsection (b) by the date that is 1 year after 
                the date on which the request is submitted, the 
                information that is the subject of the request shall be 
                designated as critical electric infrastructure 
                information for a period of 10 years beginning on the 
                date on which the request is submitted.
            ``(3) Future information.--A submission to the Secretary or 
        the Commission under subsection (b) may concern--
                    ``(A) existing information; or
                    ``(B) information that is expected to be created 
                after the date of the submission, including any 
                information that is expected to be created on a 
                periodic or ongoing basis.
    ``(d) Responsibility for a Defense.--An eligible entity for which 
the Secretary or the Commission, as applicable, has granted a request 
to designate certain information as critical electric infrastructure 
information under this section, or for which information has been 
designated as critical electric infrastructure information for a period 
of 10 years under subsection (c)(2)(B)--
            ``(1) shall not request that the Secretary or the 
        Commission provide a defense against any claim for disclosure 
        of the designated information; and
            ``(2) shall be entirely responsible for a defense, 
        including by paying for a defense, against any claim for 
        disclosure of the designated information under--
                    ``(A) section 552 of title 5, United States Code; 
                or
                    ``(B) any other applicable law (including any 
                Federal, State, political subdivision, or Tribal law) 
                requiring public disclosure of information or records.
    ``(e) Disclosure and Release of Information.--
            ``(1) In general.--Except as provided in paragraph (2)--
                    ``(A) any information that is in the possession and 
                control of an eligible entity shall not be subject to 
                section 234(d); and
                    ``(B) an eligible entity may establish standards 
                for the disclosure or release of information in the 
                possession and control of the eligible entity.
            ``(2) Protection of certain information.--Any critical 
        electric infrastructure information that is disclosed to an 
        eligible entity by the Secretary or the Commission under 
        section 234(a)(2) or by a public utility under a rule issued 
        pursuant to section 234(e)(2) shall be subject to section 
        234(d).

``SEC. 236. WARTIME CLEARANCE.

    ``(a) In General.--Whenever Congress declares that a state of war 
exists, or in the event of a national disaster due to enemy attack, the 
Secretary and the Commission are authorized, during the state of war or 
period of national disaster due to enemy attack, to confer with 
individuals and grant individuals access to critical electric 
infrastructure information pending further investigation of those 
individuals.
    ``(b) Limitation.--The Secretary and the Commission may confer with 
individuals and grant individuals access to critical electric 
infrastructure information under subsection (a) only to the extent 
that, and for so long as, the Secretary or the Commission finds that 
such action is required to prevent impairment of the activities of the 
Secretary or the Commission that are in furtherance of the common 
defense and security.

``SEC. 237. ENFORCEMENT AND SANCTIONS.

    ``(a) Enforcement.--Any individual who fails to return critical 
electric infrastructure information by the date that is 90 days after 
the date on which the individual is served with a demand by the 
Secretary or the Commission to return that critical electric 
infrastructure information shall be subject to enforcement under 
sections 314, 316, and 316A.
    ``(b) Sanctions.--
            ``(1) Sanctions by the commission.--The Commission shall 
        ensure that appropriate sanctions are in place for--
                    ``(A) any Commissioner or former Commissioner who 
                knowingly and willfully discloses critical electric 
                infrastructure information in a manner that is not 
                authorized under this subpart, with sanctions to 
                include, at a minimum--
                            ``(i) the potential loss of access to 
                        critical electric infrastructure information; 
                        and
                            ``(ii) the potential public issuance of 
                        letters of reprimand; and
                    ``(B) any officer, employee, agent, or contractor 
                of the Commission who knowingly and willfully discloses 
                critical electric infrastructure information in a 
                manner that is not authorized under this subpart.
            ``(2) Sanctions by the secretary.--The Secretary shall 
        ensure that appropriate sanctions are in place for any officer, 
        employee, agent, or contractor of the Secretary who knowingly 
        and willfully discloses critical electric infrastructure 
        information in a manner that is not authorized under this 
        subpart.''.
    (e) Conforming Amendments.--
            (1) Section 201 of the Federal Power Act (16 U.S.C. 824) is 
        amended--
                    (A) in subsection (b)(2)--
                            (i) by striking ``215A,'' each place it 
                        appears;
                            (ii) in the first sentence, by inserting 
                        ``and subpart B'' after ``and 222''; and
                            (iii) in the second sentence, by striking 
                        ``222,'' and inserting ``222 or subpart B''; 
                        and
                    (B) in subsection (e)--
                            (i) by striking ``215A,''; and
                            (ii) by inserting ``or subpart B'' after 
                        ``or 222''.
            (2) Section 6003(c)(1)(A) of the FAST Act (6 U.S.C. 121 
        note; Public Law 114-94) is amended by striking ``section 
        215A'' and inserting ``section 230''.
                                 <all>