[Federal Register Volume 81, Number 146 (Friday, July 29, 2016)]
[Rules and Regulations]
[Pages 49878-49894]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-17842]


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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Part 40

[Docket No. RM15-14-002; Order No. 829]


Revised Critical Infrastructure Protection Reliability Standards

AGENCY:  Federal Energy Regulatory Commission.

ACTION:  Final rule.

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SUMMARY:  The Federal Energy Regulatory Commission (Commission) directs 
the North American Electric Reliability Corporation to develop a new or 
modified Reliability Standard that addresses supply chain risk 
management for industrial control system hardware, software, and 
computing and networking services

[[Page 49879]]

associated with bulk electric system operations. The new or modified 
Reliability Standard is intended to mitigate the risk of a 
cybersecurity incident affecting the reliable operation of the Bulk-
Power System.

DATES:  This rule is effective September 27, 2016.

FOR FURTHER INFORMATION CONTACT: Daniel Phillips (Technical 
Information), Office of Electric Reliability, Federal Energy Regulatory 
Commission, 888 First Street NE., Washington, DC 20426, (202) 502-6387, 
[email protected].
    Simon Slobodnik (Technical Information), Office of Electric 
Reliability, Federal Energy Regulatory Commission, 888 First Street 
NE., Washington, DC 20426, (202) 502-6707, [email protected].
    Kevin Ryan (Legal Information), Office of the General Counsel, 
Federal Energy Regulatory Commission, 888 First Street NE., Washington, 
DC 20426, (202) 502-6840, [email protected].

SUPPLEMENTARY INFORMATION:

Order No. 829

Final Rule

    1. Pursuant to section 215(d)(5) of the Federal Power Act (FPA),\1\ 
the Commission directs the North American Electric Reliability 
Corporation (NERC) to develop a new or modified Reliability Standard 
that addresses supply chain risk management for industrial control 
system hardware, software, and computing and networking services 
associated with bulk electric system operations. The new or modified 
Reliability Standard is intended to mitigate the risk of a 
cybersecurity incident affecting the reliable operation of the Bulk-
Power System.
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    \1\ 16 U.S.C. 824o(d)(5).
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    2. The record developed in this proceeding supports our 
determination under FPA section 215(d)(5) that it is appropriate to 
direct the creation of mandatory requirements that protect aspects of 
the supply chain that are within the control of responsible entities 
and that fall within the scope of our authority under FPA section 215. 
Specifically, we direct NERC to develop a forward-looking, objective-
based Reliability Standard to require each affected entity to develop 
and implement a plan that includes security controls for supply chain 
management for industrial control system hardware, software, and 
services associated with bulk electric system operations.\2\ The new or 
modified Reliability Standard should address the following security 
objectives, discussed in detail below: (1) Software integrity and 
authenticity; (2) vendor remote access; (3) information system 
planning; and (4) vendor risk management and procurement controls. In 
making this directive, the Commission does not require NERC to impose 
any specific controls, nor does the Commission require NERC to propose 
``one-size-fits-all'' requirements. The new or modified Reliability 
Standard should instead require responsible entities to develop a plan 
to meet the four objectives, or some equally efficient and effective 
means to meet these objectives, while providing flexibility to 
responsible entities as to how to meet those objectives.
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    \2\ Revised Critical Infrastructure Protection Reliability 
Standards, Notice of Proposed Rulemaking, 80 FR 43,354 (Jul. 22, 
2015), 152 FERC ] 61,054, at P 66 (2015) (NOPR).
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I. Background

A. Section 215 and Mandatory Reliability Standards

    3. Section 215 of the FPA requires a Commission-certified Electric 
Reliability Organization (ERO) to develop mandatory and enforceable 
Reliability Standards, subject to Commission review and approval. 
Reliability Standards may be enforced by the ERO, subject to Commission 
oversight, or by the Commission independently.\3\ Pursuant to section 
215 of the FPA, the Commission established a process to select and 
certify an ERO,\4\ and subsequently certified NERC.\5\
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    \3\ 16 U.S.C. 824o(e).
    \4\ Rules Concerning Certification of the Electric Reliability 
Organization; and Procedures for the Establishment, Approval, and 
Enforcement of Electric Reliability Standards, Order No. 672, FERC 
Stats. & Regs. ] 31,204, order on reh'g, Order No. 672-A, FERC 
Stats. & Regs. ] 31,212 (2006).
    \5\ North American Electric Reliability Corp., 116 FERC ] 
61,062, order on reh'g and compliance, 117 FERC ] 61,126 (2006), 
aff'd sub nom. Alcoa, Inc. v. FERC, 564 F.3d 1342 (D.C. Cir. 2009).
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B. Notice of Proposed Rulemaking

    4. The NOPR, inter alia, identified as a reliability concern the 
potential risks to bulk electric system reliability posed by the 
``supply chain'' (i.e., the sequence of processes involved in the 
production and distribution of, inter alia, industrial control system 
hardware, software, and services). The NOPR explained that changes in 
the bulk electric system cyber threat landscape, exemplified by recent 
malware campaigns targeting supply chain vendors, have highlighted a 
gap in the Critical Infrastructure Protection (CIP) Reliability 
Standards.\6\ To address this gap, the NOPR proposed to direct that 
NERC develop a forward-looking, objective-driven Reliability Standard 
that provides security controls for supply chain management for 
industrial control system hardware, software, and services associated 
with bulk electric system operations.\7\
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    \6\ NOPR, 152 FERC ] 61,054 at P 63.
    \7\ Id. P 66.
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    5. Recognizing that developing supply chain management requirements 
would likely be a significant undertaking and require extensive 
engagement with stakeholders to define the scope, content, and timing 
of the Reliability Standard, the Commission sought comment on: (1) the 
general proposal to direct that NERC develop a Reliability Standard to 
address supply chain management; (2) the anticipated features of, and 
requirements that should be included in, such a standard; and (3) a 
reasonable timeframe for development of a Reliability Standard.\8\
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    \8\ Id.
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    6. In response to the NOPR, thirty-four entities submitted comments 
on the NOPR proposal regarding supply chain risk management. A list of 
these commenters appears in Appendix A.

C. January 28, 2016 Technical Conference

    7. On January 28, 2016, Commission staff led a Technical Conference 
to facilitate a dialogue on supply chain risk management issues that 
were identified by the Commission in the NOPR. The January 28 Technical 
Conference addressed: (1) The need for a new or modified Reliability 
Standard; (2) the scope and implementation of a new or modified 
Reliability Standard; and (3) current supply chain risk management 
practices and collaborative efforts.
    8. Twenty-four entities representing industry, government, vendors, 
and academia participated in the January 28 Technical Conference 
through written comments and/or presentations.\9\
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    \9\ Written presentations at the January 28, 2016 Technical 
Conference and the Technical Conference transcript referenced in 
this Final Rule are accessible through the Commission's eLibrary 
document retrieval system in Docket No. RM15-14-000.
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    9. We address below the comments submitted in response to the NOPR 
and comments made as part of the January 28 Technical Conference.

II. Discussion

    10. Pursuant to section 215(d)(5) of the FPA, the Commission 
determines that it is appropriate to direct NERC to develop a new or 
modified Reliability Standard(s) that address supply chain risk 
management for industrial control system hardware, software, and 
computing and networking services associated with bulk electric system

[[Page 49880]]

operations.\10\ Based on the comments received in response to the NOPR 
and at the technical conference, we determine that the record in this 
proceeding supports the development of mandatory requirements for the 
protection of aspects of the supply chain that are within the control 
of responsible entities and that fall within the scope of our authority 
under FPA section 215.
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    \10\ 16 U.S.C. 824o(d)(5) (``The Commission . . . may order the 
[ERO] to submit to the Commission a proposed reliability standard or 
a modification to a reliability standard that addresses as specific 
matter if the Commission considers such a new or modified 
reliability standard appropriate to carry out this section.'').
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    11. In its NOPR comments, NERC acknowledges that ``supply chains 
for information and communications technology and industrial control 
systems present significant risks to [Bulk-Power System] security, 
providing various opportunities for adversaries to initiate 
cyberattacks.'' \11\ Several other commenters also recognized the risks 
posed to the bulk electric system by supply chain security issues and 
generally support, or at least do not oppose, Commission action to 
address the reliability gap.\12\ For example, in prepared remarks 
submitted for the January 28 Technical Conference, one panelist noted 
that attacks targeting the supply chain are on the rise, particularly 
attacks involving third party service providers.\13\ In addition, it 
was noted that, while many responsible entities are already 
independently assessing supply chain risks and asking vendors to 
address the risks, these individual efforts are likely to be less 
effective than a mandatory Reliability Standard.\14\
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    \11\ NERC NOPR Comments at 8.
    \12\ See Peak NOPR Comments at 3-6; ITC NOPR Comments at 13-15; 
CyberArk NOPR Comments at 4; Ericsson NOPR Comments at 2; Isologic 
and Resilient Societies Joint NOPR Comments at 9-12; ACS NOPR 
Comments at 4; ISO NE NOPR Comments at 2-3; NEMA NOPR Comments at 1-
2.
    \13\ Olcott Technical Conference Comments at 1-2.
    \14\ Galloway Technical Conference Comments at 1 (``. . . ISO-NE 
supports the Commission's proposal to direct NERC to develop 
requirements relating to supply chain risk management. We believe 
that the risks to the reliability of the Bulk Electric System that 
result from compromised third-party software are real, significant 
and largely unaddressed by existing reliability standards. While 
many public utilities are already assessing these risks and asking 
vendors to address them, these one-off efforts are far less likely 
to be effective than an industry-wide reliability standard.'').
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    12. We recognize, however, that most commenters oppose development 
of Reliability Standards addressing supply chain management for various 
reasons. These commenters contend that Commission action on supply 
chain risk management would, among other things, address or influence 
activities beyond the scope of the Commission's FPA section 215 
jurisdiction.\15\ Commenters also assert that the existing CIP 
Reliability Standards adequately address potential risks to the bulk 
electric system from supply chain issues.\16\ In addition, commenters 
claim that responsible entities have minimal control over their 
suppliers and are not able to identify all potential vulnerabilities 
associated with each of their products or parts; therefore, even if a 
responsible entity identifies a vulnerability created by a supplier, 
the responsible entity does not necessarily have any authority, 
influence or means to require the supplier to apply mitigation.\17\ 
Other commenters argue that the Commission's proposal may 
unintentionally inhibit innovation.\18\ A number of commenters assert 
that voluntary guidelines would be more effective at addressing the 
Commission's concerns.\19\ Finally, commenters are concerned that the 
contractual flexibility necessary to effectively address supply chain 
concerns does not fit well with a mandatory Reliability Standard.\20\
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    \15\ See Trade Associations NOPR Comments at 24; Southern NOPR 
Comments at 14-16; CEA NOPR Comments at 4-5; NIPSCO NOPR Comments at 
7.
    \16\ See Trade Associations NOPR Comments at 20-25; Gridwise 
NOPR Comments at 3; Arkansas NOPR Comments at 6; G&T Cooperatives 
NOPR Comments at 8-9; NEI NOPR Comments at 3-5; NIPSCO NOPR Comments 
at 5-6; Luminant NOPR Comments at 4-5; SCE NOPR Comments at 4.
    \17\ See Arkansas NOPR Comments at 5-6; G&T Cooperatives NOPR 
Comments at 9; Trade Associations NOPR Comments at 25.
    \18\ See Arkansas NOPR Comments at 6; G&T Cooperatives NOPR 
Comments at 9; NERC NOPR Comments at 13.
    \19\ See Trade Associations NOPR Comments at 23; Southern NOPR 
Comments at 13; AEP NOPR Comments at 5; NextEra NOPR Comments at 4-
5; Luminant NOPR Comments at 5.
    \20\ See Arkansas NOPR Comments at 6; Southern NOPR Comments at 
13.
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    13. As discussed below, we conclude that our directive falls within 
the Commission's authority under FPA section 215. We also determine 
that, notwithstanding the concerns raised by commenters opposed to the 
NOPR proposal, it is appropriate to direct the development of mandatory 
requirements to protect industrial control system hardware, software, 
and computing and networking services associated with bulk electric 
system operations. Many of the commenters' concerns are addressed by 
the flexibility inherent in our directive to develop a forward-looking, 
objective-based Reliability Standard that includes specific security 
objectives that a responsible entity must achieve, but affords 
flexibility in how to meet these objectives. The Commission does not 
require NERC to impose any specific controls nor does the Commission 
require NERC to propose ``one-size-fits-all'' requirements. The new or 
modified Reliability Standard should instead require responsible 
entities to develop a plan to meet the four objectives, or some equally 
efficient and effective means to meet these objectives, while providing 
flexibility to responsible entities as to how to meet those objectives. 
Moreover, our directive comports well with the NOPR comments submitted 
by NERC, in which NERC explained what it believes would be the features 
of a workable supply chain management Reliability Standard.\21\
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    \21\ NERC NOPR Comments at 8-9. The record evidence on which the 
directive in this Final Rule is based is either comparable or 
superior to past instances in which the Commission has directed, 
pursuant to FPA section 215(d)(5), that NERC propose a Reliability 
Standard to address a gap in existing Reliability Standards. See, 
e.g., Reliability Standards for Physical Security Measures, 146 FERC 
] 61,166 (2014) (directing, without seeking comment, that NERC 
develop proposed Reliability Standards to protect against physical 
security risks related to the Bulk-Power System).
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    14. We address below the following issues raised in the NOPR, NOPR 
comments, and January 28 Technical Conference comments: (1) the 
Commission's authority to direct the ERO to develop supply chain 
management Reliability Standards under FPA section 215(d)(5); and (2) 
the need for supply chain management Reliability Standards, including 
the risks posed by the supply chain, objectives of a supply chain 
management Reliability Standard, existing CIP Reliability Standards, 
and responsible entities' ability to affect the supply chain.

A. Commission Authority To Direct the ERO To Develop Supply Chain 
Management Reliability Standards Under FPA Section 215(d)(5)

NOPR
    15. In the NOPR, the Commission stated that it anticipates that a 
Reliability Standard addressing supply chain management security would, 
inter alia, respect FPA Section 215 jurisdiction by only addressing the 
obligations of responsible entities and not directly imposing 
obligations on suppliers, vendors, or other entities that provide 
products or services to responsible entities.\22\
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    \22\ NOPR, 152 FERC ] 61,054 at P 66.
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Comments
    16. Commenters contend that the Commission's proposal to direct 
NERC to develop mandatory Reliability Standards to address supply chain 
risks could exceed the Commission's

[[Page 49881]]

jurisdiction under FPA section 215. The Trade Associations state that 
the NOPR discussion ``appears to suggest a new mandate, over and above 
Section 215 for energy security, integrity, quality, and supply chain 
resilience, and the future acquisition of products and services.'' \23\ 
The Trade Associations assert that the Commission's NOPR proposal does 
not provide any reasoning that connects energy security and integrity 
with reliable operations for Bulk-Power System reliability. The Trade 
Associations seek clarification that the Commission does not intend to 
define energy security as a new policy mandate.\24\
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    \23\ Trade Associations NOPR Comments at 24.
    \24\ Id.
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    17. Southern states that it agrees with the Trade Associations that 
expanding the focus of the NERC Reliability Standards ``to include 
concepts such as security, integrity, and supply chain resilience is 
beyond the statutory authority granted in Section 215.'' \25\ Southern 
contends that while these areas ``have an impact on the reliable 
operation of the bulk power system, [. . .] they are areas that are 
beyond the scope of [the Commission's] jurisdiction under Section 
215.'' \26\ NIPSCO raises a similar argument, stating that the existing 
CIP Reliability Standards should address the Commission's concerns 
``without involving processes and industries outside of the 
Commission's jurisdiction under section 215 of the Federal Power Act.'' 
\27\
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    \25\ Southern NOPR Comments at 16.
    \26\ Southern NOPR Comments at 16; see also Trade Association 
NOPR Comments at 24.
    \27\ NIPSCO NOPR Comments at 7.
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    18. Southern questions how a mandatory Reliability Standard that 
achieves all of the objectives specified in the NOPR ``could 
effectively address [the Commission's] concerns and still stay within 
the bounds of [the Commission's] scope and mission under Section 215.'' 
\28\ Southern asserts that ``a reading of Section 215 indicates that 
[the Commission's] mission and authority under Section 215 is focused 
on the operation of the bulk power system elements, not on the 
acquisition of those elements and associated procurement practices.'' 
\29\ In support of its assertion, Southern points to the definition in 
FPA section 215 of ``reliability standard,'' noting the use and meaning 
of the terms ``reliable operation'' and ``operation.'' Southern 
contends that ``Section 215 standards should ensure that a given BES 
Cyber System asset is protected from vulnerabilities once connected to 
the BES, and should not be concerned about how the Responsible Entity 
works with its vendors and suppliers to ensure such reliability (such 
as higher financial incentives or greater contractual penalties).'' 
\30\
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    \28\ Southern NOPR Comments at 14-15.
    \29\ Id. at 15 (emphasis in original).
    \30\ Id. at 16.
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    19. The Trade Associations and Southern also observe that, while 
the NOPR indicates that the Commission has no direct oversight 
authority over third-party suppliers or vendors and cannot indirectly 
assert authority over them through jurisdictional entities, the NOPR 
proposal appears to assert that authority.\31\ The Trade Associations 
maintain that such an extension of the Commission's authority would be 
unlawful and, therefore, seek clarification that ``the Commission will 
avoid seeking to extend its authority since such an extension would set 
a troubling precedent.'' \32\ CEA raises a concern that the NOPR 
proposal ``appears to lend itself to the interpretation that authority 
is indirectly being asserted over non-jurisdictional entities.'' \33\
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    \31\ Trade Associations NOPR Comments at 24-25; Southern NOPR 
Comments at 17; see also Trade Associations Post-Technical 
Conference Comments at 20-21.
    \32\ Trade Associations NOPR Comments at 24-25.
    \33\ CEA NOPR Comments at 5.
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    20. The Trade Associations also maintain that the Commission's use 
of the term ``industrial control system'' in the scope of its proposal 
suggests that the Commission is seeking to address issues beyond CIP 
and cybersecurity-related issues. The Trade Associations seek 
clarification that the Commission does not intend for NERC broadly to 
address industrial control systems, such as fuel procurement and 
delivery systems or system protection devices, but intends for its 
proposal to be limited to CIP and cybersecurity-related issues.\34\
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    \34\ Trade Associations NOPR Comments at 25.
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Discussion
    21. We are satisfied that FPA section 215 provides the Commission 
with the authority to direct NERC to address the reliability gap 
concerning supply chain management risks identified in the NOPR. We 
reject the contention that our directive could be read to address 
issues outside of the Commission's FPA section 215 jurisdiction. 
However, to be clear, we reiterate the statement in the NOPR that any 
action taken by NERC in response to the Commission's directive to 
address the supply chain-related reliability gap should respect 
``section 215 jurisdiction by only addressing the obligations of 
responsible entities'' and ``not directly impose obligations on 
suppliers, vendors or other entities that provide products or services 
to responsible entities.'' \35\ The Commission expects that NERC will 
adhere to this instruction as it works with stakeholders to develop a 
new or modified Reliability Standard to address the Commission's 
directive. As discussed below, we reject the remaining comments 
regarding the Commission's authority to direct the development of 
supply chain management Reliability Standards under FPA section 
215(d)(5).
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    \35\ NOPR, 152 FERC ] 61,054 at P 66.
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    22. Our directive does not suggest, as the Trade Associations 
contend, a new mandate above and beyond FPA section 215. The 
Commission's directive to NERC to address supply chain risk management 
for industrial control system hardware, software, and computing and 
networking services associated with bulk electric system operations is 
not intended to ``define `energy security' as a new policy mandate'' 
under the CIP Reliability Standards.\36\ Instead, our directive is 
meant to enhance bulk electric system cybersecurity by addressing the 
gap in the CIP Reliability Standards identified in the NOPR relating to 
supply chain risk management for industrial control system hardware, 
software, and computing and networking services associated with bulk 
electric system operations. This directive is squarely within the 
statutory definition of a ``reliability standard,'' which includes 
requirements for ``cybersecurity protection.'' \37\
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    \36\ See Trade Associations NOPR Comments at 24.
    \37\ See 16 U.S.C. 824o(a)(3) (defining ``reliability standard'' 
to mean ``a requirement, approved by the Commission under [section 
215 of the FPA] to provide for the reliable operation of the bulk-
power system. The term includes requirements for the operation of 
existing bulk-power system facilities, including cybersecurity 
protection, and the design of planned additions or modifications to 
such facilities to the extent necessary to provide for reliable 
operation . . .'') (emphasis added).
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    23. We reject Southern's argument that FPA section 215 limits the 
scope of the NERC Reliability Standards to ``ensur[ing] that a given 
BES Cyber System asset is protected from vulnerabilities once 
connected'' to the bulk electric system.\38\ While Southern's comment 
implies that the Commission should only be concerned with real-time 
operations based on the definition of the term ``reliable operation,'' 
the definition of ``reliability standard'' in FPA section 215 also 
includes requirements for ``the design of planned additions or 
modifications'' to bulk electric system facilities ``necessary to 
provide for reliable operation of the bulk-power

[[Page 49882]]

system.'' \39\ Moreover, as noted, FPA section 215 is clear that 
maintaining reliable operation also includes protecting the bulk 
electric system from cybersecurity incidents.\40\ Indeed, our findings 
and directives in the Final Rule are intended to better protect the 
Bulk-Power System from potential cybersecurity incidents that could 
adversely affect reliable operation of the Bulk-Power System. 
Accordingly, we would not be carrying out our obligations under FPA 
section 215 if the Commission determined that cybersecurity incidents 
resulting from gaps in supply chain risk management were outside the 
scope of FPA section 215.
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    \38\ See Southern NOPR Comments at 16.
    \39\ See 16 U.S.C. 824o(a)(4) (defining ``reliable operation''); 
see also 16 U.S.C. 824o(a)(3).
    \40\ See 16 U.S.C. 824o(a)(4).
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    24. With regard to concerns that the NOPR's use of the term 
``industrial control system'' signals the Commission's intent to 
address issues beyond the CIP Reliability Standards or cybersecurity 
controls, we clarify that our directive is only intended to address the 
protection of hardware, software, and computing and networking services 
associated with bulk electric system operations from supply chain-
related cybersecurity threats and vulnerabilities.

B. Need for a New or Modified Reliability Standard

1. Cyber Risks Posed by the Supply Chain
NOPR
    25. In the NOPR, the Commission observed that the global supply 
chain, while providing an opportunity for significant benefits to 
customers, enables opportunities for adversaries to directly or 
indirectly affect the operations of companies that may result in risks 
to the end user. The NOPR identified supply chain risks including the 
insertion of counterfeits, unauthorized production, tampering, theft, 
or insertion of malicious software, as well as poor manufacturing and 
development practices. The NOPR pointed to changes in the bulk electric 
system cyber threat landscape, evidenced by recent malware campaigns 
targeting supply chain vendors, which highlighted a gap in the 
protections under the current CIP Reliability Standards.\41\
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    \41\ NOPR, 152 FERC ] 61,054 at PP 61-62.
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    26. Specifically, the NOPR identified two focused malware campaigns 
identified by the Department of Homeland Security's Industry Control 
System--Computer Emergency Readiness Team (ICS-CERT) in 2014.\42\ The 
NOPR stated that this new type of malware campaign is based on the 
injection of malware while a product or service remains in the control 
of the hardware or software vendor, prior to delivery to the 
customer.\43\
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    \42\ Id. P 63 (citing ICS-CERT, Alert: ICS Focused Malware 
(Update A), https://ics-cert.us-cert.gov/alerts/ICS-ALERT-14-176-02A; ICS-CERT, Alert Ongoing Sophisticated Malware Campaign 
Compromising ICS (Update E), https://ics-cert.us-cert.gov/alerts/ICS-ALERT-14-281-01B). ICS-CERT is a division of the Department of 
Homeland Security that works to reduce risks within and across all 
critical infrastructure sectors by partnering with law enforcement 
agencies and the intelligence community.
    \43\ NOPR, 152 FERC ] 61,054 at P 63.
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Comments
    27. NERC acknowledges the NOPR's concerns regarding the threats 
posed by supply chain management risks to the Bulk-Power System. NERC 
states that ``the supply chains for information and communications 
technology and industrial control systems present significant risks to 
[Bulk-Power System] security, providing various opportunities for 
adversaries to initiate cyberattacks.'' \44\ NERC further explains that 
``supply chains risks are . . . complex, multidimensional, and 
constantly evolving, and may include, as the Commission states, 
insertion of counterfeits, unauthorized production, tampering, theft, 
insertion of malicious software and hardware, as well as poor 
manufacturing and development practices.'' \45\ NERC states, however, 
that as to these supply chains, there are ``significant challenges to 
developing a mandatory Reliability Standard consistent with [FPA] 
Section 215 . . . .'' \46\
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    \44\ NERC NOPR Comments at 8.
    \45\ Id. at 10.
    \46\ Id. at 2.
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    28. IRC, Peak, Idaho Power, CyberArk, NEMA, Resilient Societies and 
other commenters share the NOPR's concern that supply chain risks pose 
a threat to bulk electric system reliability. IRC states that it 
supports the Commission's efforts to address the risks associated with 
supply chain management.\47\ Peak explains that ``the security risk of 
supply chain management is a real threat, and . . . a CIP standard for 
supply chain management may be necessary.'' \48\ Peak notes, for 
example, that it is possible for a malware campaign to infect 
industrial control software with malicious code while the product or 
service is in the control of the hardware and software vendor, and 
states that, ``[w]ithout proper controls, the vendor may deliver this 
infected product or service, unknowingly passing the risk onto the 
utility industry customer.'' \49\ Isologic and Resilient Societies 
comments that supply chain vulnerabilities are one of the most 
difficult areas of cybersecurity because, among other concerns, 
entities ``are seldom aware of the risks [supply chain vulnerabilities] 
pose.'' \50\
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    \47\ IRC NOPR Comments at 1-2.
    \48\ Peak NOPR Comments at 3.
    \49\ Id. at 3.
    \50\ Isologic and Resilient Societies Joint NOPR Comments at 9.
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    29. Idaho Power agrees ``that the supply chain could pose an attack 
vector for certain risks to the bulk electric system.'' \51\ CyberArk 
states that ``infection of vendor Web sites is just one of the 
potential ways a supply chain management attack could be executed'' and 
notes that network communications links between a vendor and its 
customer could be used as well.\52\ NEMA agrees with the NOPR that 
``keeping the electric sector supply chain free from malware and other 
cybersecurity risks is essential.'' \53\ NEMA highlights a number of 
principles it represents as vendor best practices, and encourages the 
Commission and NERC to reference those principles as the effort to 
address supply chain risks progresses.\54\
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    \51\ Idaho Power NOPR Comments at 3.
    \52\ CyberArk NOPR Comments at 4.
    \53\ NEMA NOPR Comments at 1.
    \54\ Id. at 2.
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    30. Other commenters do not agree that the risks identified in the 
NOPR support the Commission's NOPR proposal. The Trade Associations, 
Southern, and NIPSCO contend that the two malware campaigns identified 
by ICS-CERT and cited in the NOPR do not actually represent a changed 
threat landscape that defines a reliability gap. Specifically, the 
Trade Associations state that the two identified malware campaigns 
``seek to inject malware, while a product is in the control of and in 
use by the customer and not, as the NOPR suggests, the vendor.'' \55\ 
In support of this position, the Trade Associations note that the ICS-
CERT mitigation measures for the two alerts ``focused on the customer 
and do not address security controls, while the products are under 
control of the vendors.'' \56\
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    \55\ Trade Associations NOPR Comments at 20-21.
    \56\ Trade Associations NOPR Comments at 21; see also NIPSCO 
NOPR Comments at 6.
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    31. The Trade Associations and Southern also contend that there is 
no information from various NERC programs and activities that leads to 
a reasonable conclusion that supply chain management issues have caused 
events or disturbances on the bulk electric

[[Page 49883]]

system.\57\ Luminant states that it ``does not perceive the same 
reliability gap that is expressed in the NOPR concerning risks 
associated with supply chain management'' and contends that it is 
important to understand the potential risks and cost impacts related to 
any potential mitigation efforts before developing any additional 
security controls.\58\ KCP&L states that it does not share the 
Commission's view of the supply chain-related reliability gap described 
in the NOPR and, therefore, does not support the Commission's 
proposal.\59\
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    \57\ Trade Associations NOPR Comments at 21; Southern Comments 
at 11.
    \58\ Luminant NOPR Comments at 4.
    \59\ KCP&L NOPR Comments at 7.
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Discussion
    32. We find ample support in the record to conclude that supply 
chain management risks pose a threat to bulk electric system 
reliability. As NERC commented, ``the supply chains for information and 
communications technology and industrial control systems present 
significant risks to [Bulk-Power System] security, providing various 
opportunities for adversaries to initiate cyberattacks.'' \60\ The 
malware campaigns analyzed by ICS-CERT and identified in the NOPR are 
only examples of such risks (i.e., supply chain attacks targeting 
supply chain vendors). Commenters identified additional supply chain-
related threats,\61\ including events targeting electric utility 
vendors.\62\
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    \60\ NERC NOPR Comments at 8.
    \61\ Commenters reference tools and information security 
frameworks, such as ES-C2M2, NIST-SP-800-161 and NIST-SP-800-53, 
which describe the scope of supply chain risk that could impact bulk 
electric system operations. See Department of Energy, Electricity 
Subsector Cybersecurity Capability Maturity Model (February 2014), 
http://energy.gov/sites/prod/files/2014/02/f7/ES-C2M2-v1-1-Feb2014.pdf; NIST Special Publication 800-161, Supply Chain Risk 
Management Practices for Federal Information Systems and 
Organizations at 51, http://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-161.pdf; NIST Special Publication 
800-53, Security and Privacy Controls for Federal Information 
Systems and Organizations, http://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-53r4.pdf. These risks include the 
insertion of counterfeits, unauthorized production and modification 
of products, tampering, theft, intentional insertion of tracking 
software, as well as poor manufacturing and development practices. 
One technical conference participant noted that supply chain attacks 
can target either (1) the hardware/software components of a system 
(thereby creating vulnerabilities that can be exploited by a remote 
attacker) or (2) a third party service provider who has access to 
sensitive IT infrastructure or holds/maintains sensitive data. See 
Olcott Technical Conference Comments at 1.
    \62\ Olcott discusses two events targeting electric utility 
vendors and service providers. Olcott Technical Conference Comments 
at 2. Specific recent examples of attacks on third party vendors 
include: (1) unauthorized code found in Juniper Firewalls in 2015; 
(2) the 2013 Target incident involving stolen vendor credentials; 
(3) the 2015 Office of Personnel Management incident also involving 
stolen vendor credentials; and (4) two events targeting electric 
utility vendors. See id. at 1-4.
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    33. Even among the comments opposed to the NOPR, there is 
acknowledgment that supply chain reliability risks exist. The Trade 
Associations state that their ``respective members have identified 
security issues associated with potential supply chain disruption or 
compromise as being a significant threat.'' \63\ Recognizing that such 
risks exist, we reject the assertion by the Trade Associations and 
Southern that there is an inadequate basis for the Commission to take 
action because ``[t]he Trade Associations can find nothing within 
various NERC programs and activities that lead to a reasonable 
conclusion that supply chain management issues have caused events or 
disturbances on the bulk power system.'' \64\
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    \63\ Trade Associations NOPR Comments at 17.
    \64\ See Trade Associations NOPR Comments at 21.
---------------------------------------------------------------------------

    34. We disagree with the Trade Associations' arguments suggesting 
that the two malware campaigns identified in the NOPR do not represent 
a change in the threat landscape to the bulk electric system. First, 
while the Trade Associations are correct that the ICS-CERT alerts 
referenced in the NOPR describe remediation steps for customers to take 
in the event of a breach, the vulnerabilities exploited by those 
campaigns were the direct result of vendor decisions about: (1) How to 
deliver software patches to their customers and (2) the necessary 
degree of remote access functionality for their information and 
communications technology products.\65\ Second, the malware campaigns 
also demonstrate that attackers have expanded their efforts to include 
the execution of broad access campaigns targeting vendors and software 
applications, rather than just individual entities. The targeting of 
vendors and software applications with potentially broad access to BES 
Cyber Systems \66\ marks a turning point in that it is no longer 
sufficient to focus protection strategies exclusively on post-
acquisition activities at individual entities. Instead, we believe that 
attention should also be focused on minimizing the attack surfaces of 
information and communications technology products procured to support 
bulk electric system operations.
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    \65\ The ICS-CERT alert regarding ICS Focused Malware indicated 
that ``the software installers for . . . vendors were infected with 
malware known as the Havex Trojan.''
    \66\ Cyber systems are referred to as ``BES Cyber Systems'' in 
the CIP Reliability Standards. The NERC Glossary defines BES Cyber 
Systems as ``One or more BES Cyber Assets logically grouped by a 
responsible entity to perform one or more reliability tasks for a 
functional entity.'' NERC Glossary of Terms Used in Reliability 
Standards (May 17, 2016) at 15 (NERC Glossary). The NERC Glossary 
defines ``BES Cyber Asset'' as ``A Cyber Asset that if rendered 
unavailable, degraded, or misused would, within 15 minutes of its 
required operation, misoperation, or non-operation, adversely impact 
one or more Facilities, systems, or equipment, which, if destroyed, 
degraded, or otherwise rendered unavailable when needed, would 
affect the reliable operation of the Bulk Electric System. 
Redundancy of affected Facilities, systems, and equipment shall not 
be considered when determining adverse impact. Each BES Cyber Asset 
is included in one or more BES Cyber Systems.'' Id.
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2. Objectives of a Supply Chain Management Reliability Standard
NOPR
    35. The NOPR stated that the reliability goal of a supply chain 
risk management Reliability Standard should be a forward-looking, 
objective-driven Reliability Standard that encompasses activities in 
the system development life cycle: from research and development, 
design and manufacturing stages (where applicable), to acquisition, 
delivery, integration, operations, retirement, and eventual disposal of 
the responsible entity's information and communications technology and 
industrial control system supply chain equipment and services. The NOPR 
explained that the Reliability Standard should support and ensure 
security, integrity, quality, and resilience of the supply chain and 
the future acquisition of products and services.\67\
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    \67\ NOPR, 152 FERC ] 61,054 at P 64.
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    36. The NOPR recognized that, due to the breadth of the topic and 
the individualized nature of many aspects of supply chain management, a 
Reliability Standard pertaining to supply chain management security 
should:
     Respect FPA section 215 jurisdiction by only addressing 
the obligations of responsible entities. A Reliability Standard should 
not directly impose obligations on suppliers, vendors or other entities 
that provide products or services to responsible entities.
     Be forward-looking in the sense that the Reliability 
Standard should not dictate the abrogation or re-negotiation of 
currently-effective contracts with vendors, suppliers or other 
entities.
     Recognize the individualized nature of many aspects of 
supply chain management by setting goals (the ``what''), while allowing 
flexibility in how a responsible entity subject to the

[[Page 49884]]

Reliability Standard achieves that goal (the ``how'').
     Given the types of specialty products involved and the 
diversity of acquisition processes, the Reliability Standard may need 
to allow exceptions (e.g., to meet safety requirements and fill 
operational gaps if no secure products are available).
     Provide enough specificity so that compliance obligations 
are clear and enforceable. In particular, the Commission anticipated 
that a Reliability Standard that simply requires a responsible entity 
to ``have a plan'' addressing supply chain management would not 
suffice. Rather, to adequately address the concerns identified in the 
NOPR, the Commission stated a Reliability Standard should identify 
specific controls.\68\
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    \68\ Id. P 66.
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    37. The NOPR recognized that, because security controls for supply 
chain management likely vary greatly with each responsible entity due 
to variations in individual business practices, the right set of supply 
chain management security controls should accommodate, inter alia, an 
entity's: (1) Procurement process; (2) vendor relations; (3) system 
requirements; (4) information technology implementation; and (5) 
privileged commercial or financial information. As examples of controls 
that may be instructional in the development of any new Reliability 
Standard, the NOPR identified the following Supply Chain Risk 
Management controls from NIST SP 800-161: (1) Access Control Policy and 
Procedures; (2) Security Assessment Authorization; (3) Configuration 
Management; (4) Identification and Authentication; (5) System 
Maintenance Policy and Procedures; (6) Personnel Security Policy and 
Procedures; (7) System and Services Acquisition; (8) Supply Chain 
Protection; and (9) Component Authenticity.\69\
---------------------------------------------------------------------------

    \69\ NOPR, 152 FERC ] 61,054 at P 65 (citing NIST Special 
Publication 800-161 at 51).
---------------------------------------------------------------------------

Comments
    38. NERC states that a Commission directive requiring the 
development of a supply chain risk management Reliability Standard: (1) 
Should provide a minimum of two years for Reliability Standard 
development activities; (2) should clarify that any such Reliability 
Standard build on existing protections in the CIP Reliability Standards 
and the practices of responsible entities, and focus primarily on those 
procedural controls that responsible entities can reasonably be 
expected to implement during the procurement of products and services 
associated with bulk electric system operations to manage supply chain 
risks; and (3) must be flexible to account for differences in the needs 
and characteristics of responsible entities, the diversity of bulk 
electric system environments, technologies, risks, and issues related 
to the limited applicability of mandatory NERC Reliability 
Standards.\70\
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    \70\ NERC NOPR Comments at 8-9.
---------------------------------------------------------------------------

    39. While sharing the Commission's concern that supply chain risks 
pose a threat to bulk electric system reliability, some commenters 
suggest that the Commission address certain threshold issues before 
moving forward with the NOPR proposal. IRC notes its concern that the 
NOPR proposal is overly broad, which IRC states could hamper industry's 
ability to address the Commission's concerns.\71\ Idaho Power expresses 
a concern ``that tightening purchasing controls too tightly could also 
pose a risk because there are limited vendors'' available to 
industry.\72\ Idaho Power states that any supply chain Reliability 
Standard ``should be laid out in terms of requirements built around 
controls that are developed by the regulated entity rather than 
prescriptive requirements like many other CIP standards.'' \73\ ISO-NE 
supports the development of procedural controls ``such as requirements 
that Registered Entities must transact with organizations that meet 
certain criteria, use specified procurement language in contracts, and 
review and validate vendors' security practices.'' \74\ Peak notes that 
``the number of vendors for certain hardware, software and services may 
be limited'' and, therefore, a supply chain-related Reliability 
Standard should grant responsible entities the flexibility ``to show 
preference for, but not the obligation to use, vendors who demonstrate 
sound supply chain security practices.'' \75\
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    \71\ IRC NOPR Comments at 2.
    \72\ Idaho Power NOPR Comments at 3.
    \73\ Id. at 3-4.
    \74\ ISO-NE NOPR Comments at 2 (citing NERC NOPR Comments at 17-
18).
    \75\ Peak NOPR Comments at 4.
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    40. NERC, the Trade Associations, Southern, Gridwise, and other 
commenters request that, should the Commission find it reasonable to 
direct NERC to develop a new or modified Reliability Standard for 
supply chain management, the Commission adopt certain principles for 
NERC to follow in the standards development process. As an initial 
matter, NERC and other commenters state that the Commission should 
identify the risks that it intends NERC to address.\76\ In addition, 
NERC, SPP RE, and AEP state that the Commission should ensure that any 
new or modified supply chain-related Reliability Standard carefully 
considers the risk being addressed against the cost of mitigating that 
risk.\77\
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    \76\ NERC NOPR Comments at 9-11; Trade Associations NOPR 
Comments at 26; Gridwise NOPR Comments at 5; AEP NOPR Comments at 8; 
SPP RE NOPR Comments at 11; EnergySec NOPR Comments at 4.
    \77\ NERC NOPR Comments at 11-12; SPP RE NOPR Comments at 11; 
AEP NOPR Comments at 9.
---------------------------------------------------------------------------

    41. NERC states that the focus of any supply chain risk management 
Reliability Standard ``should be a set of requirements outlining those 
procedural controls that entities should take, as purchasers of 
products and services, to design more secure products and modify the 
security practices of suppliers, vendors, and other parties throughout 
the supply chain.'' \78\ Similarly, SPP RE notes that, while one 
responsible entity alone may not have adequate leverage to make a 
vendor or supplier adopt adequate security practices, ``the collective 
application of the procurement language across a broad collection of 
Responsible Entities may achieve the intended improvement in security 
safeguards.'' \79\ Isologic and Resilient Societies recommends limiting 
the Reliability Standard requirements to a few that are immediately 
necessary, such as: (1) Preventing the installation of cyber related 
system or grid components which have been reported by ICS-CERT to be 
provably vulnerable to a supply chain attack, unless the vulnerability 
has been corrected; (2) removing from operation any system or component 
reported by ICS-CERT as containing an exploitable vulnerability; and 
(3) subjecting hardware and software to penetration testing prior to 
installation on the grid.\80\
---------------------------------------------------------------------------

    \78\ NERC NOPR Comments at 17.
    \79\ SPP RE NOPR Comments at 12.
    \80\ Isologic and Resilient Societies Joint NOPR Comments at 11.
---------------------------------------------------------------------------

    42. In post-technical conference comments, while still opposing the 
NOPR proposal, APPA suggests certain parameters that should govern the 
development of any supply chain-related Reliability Standard.\81\ 
Specifically, APPA states that a supply chain-related Reliability 
Standard should be risk-based and ``must embody an approach that 
enables utilities to perform a risk assessment of the hardware and 
systems that create potential vulnerabilities,'' similar to the 
approach taken in Reliability Standard CIP-014-2, Requirement R1 
(Physical

[[Page 49885]]

Security).\82\ In addition, APPA states that a supply chain-related 
Reliability Standard should not require responsible entities to 
actively manage third-party vendors or their processes since that would 
risk involving utilities in areas that are outside of their core 
expertise. APPA also argues that ``it would be unreasonable for any 
standard that FERC directs to hold utilities liable for the actions of 
third-party vendors or suppliers.'' \83\ Finally, APPA states that 
responsible entities should be able to rely on a credible attestation 
by a vendor or supplier that it complied with identified supply chain 
security process. APPA contends that this would be the most efficient 
way to ``establish a standard of care on the suppliers' part.'' \84\
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    \81\ APPA's post-technical conference comments were submitted 
jointly with LPPC and TAPS.
    \82\ APPA Post-Technical Conference Comments at 3-4.
    \83\ Id. at 4-5.
    \84\ Id. at 5.
---------------------------------------------------------------------------

Discussion
    43. We direct that NERC, pursuant to section 215(d)(5) of the FPA, 
develop a forward-looking, objective-driven new or modified Reliability 
Standard to require each affected entity to develop and implement a 
plan that includes security controls for supply chain management for 
industrial control system hardware, software, and services associated 
with bulk electric system operations. Our directive is consistent with 
the NOPR comments advocating flexibility as to what form the 
Commission's directive should take.
    44. We agree with NERC and other commenters that a supply chain 
risk management Reliability Standard should be flexible and fall within 
the scope of what is possible using Reliability Standards under FPA 
section 215. The directive discussed below, we believe, is consistent 
with both points. In particular, the flexibility inherent in our 
directive should account for, among other things, differences in the 
needs and characteristics of responsible entities and the diversity of 
BES Cyber System environments, technologies and risks. For example, the 
new or modified Reliability Standard may allow a responsible entity to 
meet the security objectives discussed below by having a plan to apply 
different controls based on the criticality of different assets. And by 
directing NERC to develop a new or modified Reliability Standard, the 
Commission affords NERC the option of modifying existing Reliability 
Standards to satisfy our directive. Finally, we direct NERC to submit 
the new or modified Reliability Standard within one year of the 
effective date of this Final Rule.\85\
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    \85\ We note that the Trade Associations request that the 
Commission allow ``at least one year for discussion, development, 
and approval by the NERC Board of Trustees.'' See Trade Associations 
Post-Technical Conference Comments at 22. NERC should submit an 
informational filing within ninety days of the effective date of 
this Final Rule with a plan to address the Commission's directive.
---------------------------------------------------------------------------

    45. The plan required by the new or modified Reliability Standard 
developed by NERC should address, at a minimum, the following four 
specific security objectives in the context of addressing supply chain 
management risks: (1) Software integrity and authenticity; (2) vendor 
remote access; (3) information system planning; and (4) vendor risk 
management and procurement controls. Responsible entities should be 
required to achieve these four objectives but have the flexibility as 
to how to reach the objective (i.e., the Reliability Standard should 
set goals (the ``what''), while allowing flexibility in how a 
responsible entity subject to the Reliability Standard achieves that 
goal (the ``how'')).\86\ Alternatively, NERC can propose an equally 
effective and efficient approach to address the issues raised in the 
objectives identified below. In addition, while in the discussion below 
we identify four objectives, NERC may address additional supply chain 
management objectives in the standards development process, as it deems 
appropriate.
---------------------------------------------------------------------------

    \86\ See Order No. 672, FERC Stats. & Regs. ] 31,204 at P 260.
---------------------------------------------------------------------------

    46. The new or modified Reliability Standard should also require a 
periodic reassessment of the utility's selected controls. Consistent 
with or similar to the requirement in Reliability Standard CIP-003-6, 
Requirement R1, the Reliability Standard should require the responsible 
entity's CIP Senior Manager to review and approve the controls adopted 
to meet the specific security objectives identified in the Reliability 
Standard at least every 15 months. This periodic assessment should 
better ensure that the required plan remains up-to-date, addressing 
current and emerging supply chain-related concerns and vulnerabilities.
    47. Also, consistent with this reliance on an objectives-based 
approach, and as part of this periodic review and approval, the 
responsible entity's CIP Senior Manager should consider any guidance 
issued by NERC, the U.S. Department of Homeland Security (DHS) or other 
relevant authorities for the planning, procurement, and operation of 
industrial control systems and supporting information systems equipment 
since the prior approval, and identify any changes made to address the 
recent guidance. This periodic reconsideration will help ensure an 
ongoing, affirmative process for reviewing and, when appropriate, 
incorporating such guidance.
First Objective: Software Integrity and Authenticity
    48. The new or modified Reliability Standard must address 
verification of: (1) The identity of the software publisher for all 
software and patches that are intended for use on BES Cyber Systems; 
and (2) the integrity of the software and patches before they are 
installed in the BES Cyber System environment.
    49. This objective is intended to reduce the likelihood that an 
attacker could exploit legitimate vendor patch management processes to 
deliver compromised software updates or patches to a BES Cyber System. 
One of the two focused malware campaigns identified by ICS-CERT in 2014 
utilized similar tactics, executing what is commonly referred to as a 
``Watering Hole'' attack \87\ to exploit affected information systems. 
Similar tactics appear to have been used in a recently disclosed attack 
targeting electric sector infrastructure in Japan.\88\ These types of 
attacks might have been prevented had the affected entities applied 
adequate integrity and authenticity controls to their patch management 
processes.
---------------------------------------------------------------------------

    \87\ ``Watering Hole'' attacks exploit poor vendor/client 
patching and updating processes. Attackers generally compromise a 
vendor of the intended victim and then use the vendor's information 
system as a jumping off point for their attack. Attackers will often 
inject malware or replace legitimate files with corrupted files 
(usually a patch or update) on the vendor's Web site as part of the 
attack. The victim then downloads the files without verifying each 
file's legitimacy believing that it is included in a legitimate 
patch or update.
    \88\ See Cylance, Operation DustStorm, https://www.cylance.com/hubfs/2015_cylance_website/assets/operation-dust-storm/Op_Dust_Storm_Report.pdf.
---------------------------------------------------------------------------

    50. As NERC recognizes in its NOPR comments, NIST SP-800-161 
``establish[es] instructional reference points for NERC and its 
stakeholders to leverage in evaluating the appropriate framework for 
and security controls to include in any mandatory supply chain 
management Reliability Standard.'' \89\ NIST SP-800-161 includes a 
number of security controls which, when taken together, reduce the 
probability of a successful Watering Hole or similar cyberattack in the 
industrial control system environment and thus could assist in 
addressing this objective. For example, in the System and Information

[[Page 49886]]

Integrity (SI) control family, control SI-7 suggests that the integrity 
of information systems and components should be tested and verified 
using controls such as digital signatures and obtaining software 
directly from the developer. In the Configuration Management (CM) 
control family, control CM-5(3) requires that the information system 
prevent the installation of firmware or software without verification 
that the component has been digitally signed to ensure that hardware 
and software components are genuine and valid. NIST SP-800-161, while 
not meant to be definitive, provides examples of controls for 
addressing the Commission's directive regarding this first objective. 
Other security controls also could meet this objective.
---------------------------------------------------------------------------

    \89\ NERC NOPR Comments at 16-17; see also Resilient Societies 
NOPR Comments at 11.
---------------------------------------------------------------------------

Second Objective: Vendor Remote Access to BES Cyber Systems
    51. The new or modified Reliability Standard must address 
responsible entities' logging and controlling all third-party (i.e., 
vendor) initiated remote access sessions. This objective covers both 
user-initiated and machine-to-machine vendor remote access.
    52. This objective addresses the threat that vendor credentials 
could be stolen and used to access a BES Cyber System without the 
responsible entity's knowledge, as well as the threat that a compromise 
at a trusted vendor could traverse over an unmonitored connection into 
a responsible entity's BES Cyber System. The theft of legitimate user 
credentials appears to have been a critical aspect to the successful 
execution of the 2015 cyberattack on Ukraine's power grid.\90\ In 
addition, controls adopted under this objective should give responsible 
entities the ability to rapidly disable remote access sessions in the 
event of a system breach.
---------------------------------------------------------------------------

    \90\ See E-ISAC, Analysis of the Cyber Attack on the Ukrainian 
Power Grid at 3 (Mar. 18, 2016), http://www.nerc.com/pa/CI/ESISAC/Documents/E-ISAC_SANS_Ukraine_DUC_18Mar2016.pdf.
---------------------------------------------------------------------------

    53. DHS noted the importance of controlling vendor remote access in 
its alert on the Ukrainian cyberattack: ``Remote persistent vendor 
connections should not be allowed into the control network. Remote 
access should be operator controlled, time limited, and procedurally 
similar to ``lock out, tag out.'' The same remote access paths for 
vendor and employee connections can be used; however, double standards 
should not be allowed.'' \91\
---------------------------------------------------------------------------

    \91\ See ICS-CERT Alert, Cyber-Attack Against Ukrainian Critical 
Infrastructure, https://ics-cert.us-cert.gov/alerts/IR-ALERT-H-16-056-01.
---------------------------------------------------------------------------

    54. NIST SP-800-53 and NIST SP-800-161 provide several security 
controls which, when taken together, reduce the probability that an 
attacker could use legitimate third-party access to compromise 
responsible entity information systems. In the Systems and 
Communications (SC) control family, for example, control SC-7 
addressing boundary protection requires that an entity implement 
appropriate monitoring and control mechanisms and processes at the 
boundary between the entity and its suppliers, and that provisions for 
boundary protections should be incorporated into agreements with 
suppliers. These protections are applied regardless of whether the 
remote access session is user-initiated or interactive in nature.
    55. In the Access Control (AC) control family, control AC-17 
requires usage restrictions, configuration/connection requirements, and 
monitoring and control for remote access sessions, including the 
entity's ability to expeditiously disconnect or disable remote access. 
In the Identification and Authentication (IA) control family, control 
IA-5 requires changing default ``authenticators'' (e.g., passwords) 
prior to information system installation. In the System and Information 
Integrity (SI) control family, control SI-4 addresses monitoring of 
vulnerabilities resulting from past information and communication 
technology supply chain compromises, such as malicious code implanted 
during software development and set to activate after deployment. These 
sources, while not meant to be definitive, provide examples of controls 
for addressing the Commission's directive regarding objective two. 
Other security controls also could meet this objective.
Third Objective: Information System Planning and Procurement
    56. The new or modified Reliability Standard must address how a 
responsible entity will include security considerations as part of its 
information system planning and system development lifecycle processes. 
As part of this objective, the new or modified Reliability Standard 
must address a responsible entity's CIP Senior Manager's (or 
delegate's) identification and documentation of the risks of proposed 
information system planning and system development actions. This 
objective is intended to ensure adequate consideration of these risks, 
as well as the available options for hardening the responsible entity's 
information system and minimizing the attack surface.
    57. This third objective addresses the risk that responsible 
entities could unintentionally plan to procure and install unsecure 
equipment or software within their information systems, or could 
unintentionally fail to anticipate security issues that may arise due 
to their network architecture or during technology and vendor 
transitions. For example, the BlackEnergy malware campaign identified 
by ICS-CERT and referenced in the NOPR resulted from the remote 
exploitation of previously unidentified vulnerabilities, which allowed 
attackers to remotely execute malicious code on remotely accessible 
devices.\92\ According to ICS-CERT, this attack might have been 
mitigated if affected entities had taken steps during system 
development and planning to: (1) Minimize network exposure for all 
control system devices/subsystems; (2) ensure that devices were not 
accessible from the internet; (3) place devices behind firewalls; and 
(4) utilize secure remote access techniques.\93\ The third objective 
also supports, where appropriate, the need for strategic technology 
refreshes as recommended by ICS-CERT in response to the 2015 Ukraine 
cybersecurity incident.\94\
---------------------------------------------------------------------------

    \92\ See ICS-CERT Alert, Ongoing Sophisticated Malware Campaign 
Compromising ICS (Update E).
    \93\ See ICS-CERT Advisory, GE Proficy Vulnerabilities, https://ics-cert.us-cert.gov/advisories/ICSA-14-023-01.
    \94\ See ICS-CERT Alert, Cyber-Attack Against Ukrainian Critical 
Infrastructure.
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    58. NIST SP 800-53 and SP 800-161 provide several controls which, 
when taken together, reduce the likelihood that an information system 
will be deployed and/or remain in service with potential 
vulnerabilities that have not been identified or adequately considered. 
For example, in the NIST SP 800-53 Systems Acquisition (SA) control 
family, control SA-3 provides that organizations should: (1) Manage 
information systems using an organizationally-defined system 
development life cycle that incorporates information security 
considerations; and (2) integrate the organizational information 
security risk management process into system development life cycle 
activities.\95\ Similarly, control SA-8 recommends using secure 
engineering principles during the planning and acquisition phases of 
future projects such as: (1) Developing layered protections; (2) 
establishing sound security policy, architecture, and controls as the 
foundation for design; (3) incorporating security requirements into the 
system development life cycle; and (4) reducing risk to acceptable 
levels, thus enabling informed risk

[[Page 49887]]

management decisions.\96\ Finally, control SA-22 provides controls to 
address unsupported system components, recommending the replacement of 
information and communication technology components when support is no 
longer available, or the justification and approval of an unsupported 
system component to meet specific business needs. These sources, while 
not meant to be definitive, provide examples of controls for addressing 
the Commission's directive regarding objective three. Other security 
controls also could meet this objective.
---------------------------------------------------------------------------

    \95\ NIST Special Publication 800-53, Appendix F (Security 
Control Catalog) at 157.
    \96\ Id. at 162.
---------------------------------------------------------------------------

Fourth Objective: Vendor Risk Management and Procurement Controls
    59. The new or modified Reliability Standard must address the 
provision and verification of relevant security concepts in future 
contracts for industrial control system hardware, software, and 
computing and networking services associated with bulk electric system 
operations. Specifically, NERC must address controls for the following 
topics: (1) Vendor security event notification processes; (2) vendor 
personnel termination notification for employees with access to remote 
and onsite systems; (3) product/services vulnerability disclosures, 
such as accounts that are able to bypass authentication or the presence 
of hardcoded passwords; (4) coordinated incident response activities; 
and (5) other related aspects of procurement. NERC should also consider 
provisions to help responsible entities obtain necessary information 
from their vendors to minimize potential disruptions from vendor-
related security events.
    60. This fourth objective addresses the risk that responsible 
entities could enter into contracts with vendors who pose significant 
risks to their information systems, as well as the risk that products 
procured by a responsible entity fail to meet minimum security 
criteria. In addition, this objective addresses the risk that a 
compromised vendor would not provide adequate notice and related 
incident response to responsible entities with whom that vendor is 
connected.
    61. The Department of Energy (DOE) Cybersecurity Procurement 
Language for Energy Delivery Systems document outlines security 
principles and controls for entities to consider when designing and 
procuring control system products and services (e.g., software, 
systems, maintenance, and networks), and provides example language that 
could be incorporated into procurement specifications. The procurement 
language encourages buyers to incorporate baseline procurement language 
that ensures the supplier establishes, documents and implements risk 
management practices for supply chain delivery of hardware, software, 
and firmware.\97\ In addition, NIST SP 800-161 encourages buyers to use 
the Information and Communications Technology supply chain risk 
management (ICT SCRM) plans for their respective systems and missions 
throughout their acquisition activities.\98\ The controls in the ICT 
SCRM plans can be applied in different life cycle processes.
---------------------------------------------------------------------------

    \97\ See Energy Sector Control Systems Working Group, 
Cybersecurity Procurement Language--Energy Delivery Systems at 27, 
http://www.energy.gov/sites/prod/files/2014/04/f15/CybersecProcurementLanguage-EnergyDeliverySystems_040714_fin.pdf.
    \98\ See NIST Special Publication 800-161 at 51.
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    62. NIST SP 800-161 also provides specific recommendations in 
control SA-4 pertaining to systems acquisition processes, which are 
relevant for consideration during the standards development process, 
including but not limited to: (1) Defining requirements that cover 
regulatory requirements (i.e., telecommunications or IT), technical 
requirements, chain of custody, transparency and visibility, sharing 
information on supply chain security incidents throughout the supply 
chain, rules for disposal or retention of elements such as components, 
data, or intellectual property, and other relevant requirements; (2) 
defining requirements for critical elements in the supply chain to 
demonstrate a capability to remediate emerging vulnerabilities based on 
open source information and other sources; and (3) defining 
requirements for the expected life span of the system and ensuring that 
suppliers can provide insights into their plans for the end-of-life of 
components. Other relevant provisions can be found in the System and 
Communications Protection (SC) control family under control SC-18 
addressing SCRM guidance for mobile code, which recommends that 
organizations employ rigorous supply chain protection techniques in the 
acquisition, development, and use of mobile code to be deployed in 
information systems.\99\ These sources, while not meant to be 
definitive, provide examples of controls for addressing the 
Commission's directive regarding objective four. Other security 
controls also could meet this objective.
---------------------------------------------------------------------------

    \99\ Mobile code is a software program or parts of a program 
obtained from remote information systems, transmitted across a 
network, and executed on a local information system without explicit 
installation or execution by the recipient. NIST Special Publication 
800-53, Appendix B (Glossary) at 14. Mobile code technologies 
include, for example, Java, JavaScript, ActiveX, Postscript, PDF, 
Shockwave movies, Flash animations, and VBScript. Id.
---------------------------------------------------------------------------

3. Existing CIP Reliability Standards
Comments
    63. NERC comments that although the CIP Reliability Standards do 
not explicitly address supply chain procurement practices, existing 
requirements mitigate the supply chain risks identified in the NOPR. In 
particular, NERC states that requirements in Reliability Standards CIP-
004-6, CIP-005-5, CIP-006-6, CIP-007-6, CIP-008-5, CIP-009-6, CIP-010-
2, and CIP-011-2 ``include controls that correspond to controls in NIST 
SP 800-161.'' \100\
---------------------------------------------------------------------------

    \100\ NERC NOPR Comments at 15-16.
---------------------------------------------------------------------------

    64. For example, NERC explains that responsible entity compliance 
with Reliability Standard CIP-004-6, addressing the implementation of 
cybersecurity awareness programs, may include reinforcement of 
cybersecurity practices to mitigate supply chain risks. NERC also 
states that requirements in Reliability Standard CIP-004-6 (addressing 
personnel risk assessment) and requirements in Reliability Standards 
CIP-004-6, CIP-005-5, CIP-006-6, CIP-007-6, and CIP-010-2 (addressing 
electronic and physical access) apply to any outside vendors or 
contractors.
    65. The Trade Associations, Arkansas, G&T Cooperatives, NIPSCO, 
Luminant, Southern, NextEra, and SCE contend that the existing CIP 
Reliability Standards, at least partly, address supply chain risks that 
are within a responsible entity's control.
    66. The Trade Associations state that, while the existing CIP 
Reliability Standards do not contain explicit provisions addressing 
supply chain management, ``transmission owners and operators already 
have significant responsibilities to perform under various Commission-
approved CIP standards that already address supply chain issues.'' 
\101\ Specifically, the Trade Associations, NIPSCO, and others state 
that Reliability Standard CIP-010-2 establishes requirements for cyber 
asset change management that mandate extensive baseline configuration 
testing and change monitoring, as well as vulnerability assessments, 
prior to connecting a new cyber asset to a High Impact BES Cyber 
Asset.\102\
---------------------------------------------------------------------------

    \101\ Trade Associations NOPR Comments at 19-20.
    \102\ Trade Associations NOPR Comments at 20; NIPSCO NOPR 
Comments at 5; Southern NOPR Comments at 12; Luminant NOPR Comments 
at 4-5; SCE NOPR Comments at 6.

---------------------------------------------------------------------------

[[Page 49888]]

    67. The Trade Associations also contend that the CIP Reliability 
Standards provide adequate vendor remote access protections by 
mandating: (1) Controls that restrict personnel access (physical and 
electronic) to protected information systems; (2) controls that prevent 
direct access to applicable systems for interactive remote access 
sessions using routable protocols; (3) the use of encryption for 
connections extending outside of an electronic security perimeter; (4) 
the use of two factor authentication when accessing medium and high 
impact systems; and (5) integration controls which require changing 
known default accounts and passwords.\103\
---------------------------------------------------------------------------

    \103\ Trade Associations Post-Technical Conference Comments at 
6.
---------------------------------------------------------------------------

    68. NIPSCO, Luminant, and G&T Cooperatives point to Reliability 
Standard CIP-007-6 as an existing Reliability Standard that addresses 
supply chain risks. Reliability Standard CIP-007-6 requires responsible 
entities to have processes under which only necessary ports and 
services should be enabled; security patches should be tracked, 
evaluated, and installed on applicable BES Cyber Systems; and anti-
virus software or other prevention tools should be used to prevent the 
introduction and propagation of malicious software on all Cyber Assets 
within an Electronic Security Perimeter.\104\
---------------------------------------------------------------------------

    \104\ NIPSCO NOPR Comments at 5; Luminant NOPR Comments at 4; 
G&T Cooperatives NOPR Comments at 8-9.
---------------------------------------------------------------------------

    69. Commenters also identify existing voluntary guidelines that, 
they contend, augment the existing CIP Reliability Standards to further 
address any potential risks posed by the supply chain. Southern points 
to voluntary cybersecurity procurement guidance materials developed by 
the DHS and the DOE as examples of procurement language that could be 
used in the course of vendor negotiations. Southern states that the DHS 
and DOE guidelines recognize the need for flexibility and allow for 
multiple contractual approaches.\105\
---------------------------------------------------------------------------

    \105\ Southern NOPR Comments at 13.
---------------------------------------------------------------------------

    70. Commenters suggest that the Commission direct NERC to develop 
cybersecurity procurement guidance documents as opposed to a mandatory 
Reliability Standard. AEP, NextEra, and Southern state that the 
Commission could direct NERC to develop guidance documents addressing 
supply chain risk management based, in part, on the DHS and DOE 
voluntary cybersecurity procurement guidance materials.\106\ Luminant 
asserts that NERC-developed guidance ``would effectively communicate 
key issues while permitting industry the flexibility to effectively 
protect their BES Cyber Systems in a way most effective for that entity 
and at the lowest cost.'' \107\
---------------------------------------------------------------------------

    \106\ AEP NOPR Comments at 7-8; NextEra NOPR Comments at 4-5; 
Southern NOPR Comments at 12-13.
    \107\ Luminant NOPR Comments at 5.
---------------------------------------------------------------------------

Discussion
    71. While we recognize that existing CIP Reliability Standards 
include requirements that address aspects of supply chain management, 
we determine that existing Reliability Standards do not adequately 
protect against supply chain risks that are within a responsible 
entity's control. Specifically, we find that existing CIP Reliability 
Standards do not provide adequate protection for the four aspects of 
supply chain risk management that underlie the four objectives for a 
new or modified Reliability Standard discussed above.\108\ Moreover, a 
fundamental premise of cyber security is ``defense in depth,'' and 
addressing issues in the supply chain (to the extent a utility 
reasonably can) is an important component of a strong, multi-layered 
defense.
---------------------------------------------------------------------------

    \108\ Since the directive to NERC to develop a new or modified 
Reliability Standard is limited to the four objectives discussed 
above, we limit our analysis of the existing CIP Reliability 
Standards to requirements that relate to those objectives.
---------------------------------------------------------------------------

Software Integrity and Authenticity
    72. With regard to software integrity and authenticity, we agree 
with commenters who state that the existing CIP Reliability Standards 
contain requirements for responsible entities to implement a patch 
management process for tracking, evaluating, and installing 
cybersecurity patches and to implement processes to detect, prevent, 
and mitigate the threat of malicious code. These provisions, however, 
do not require responsible entities to verify the identity of the 
software publisher for all software and patches that are intended for 
use on their BES Cyber Systems or to verify the integrity of the 
software and patches before they are installed in the BES Cyber System 
environment.\109\ As discussed above, the CIP Reliability Standards 
should address compromised software or patches that a responsible 
entity receives from a vendor, in order to protect the bulk electric 
system from Watering-Hole or similar cyberattacks. These concerns are 
not addressed by existing CIP Reliability Standards.
---------------------------------------------------------------------------

    \109\ See Trade Associations NOPR Comments at 38 (indicating 
that integrity checking mechanisms used to verify software, 
firmware, and information integrity found in the NIST SP-800-161 
System and Information Integrity (SI) control family are not 
addressed in the CIP version 5 Reliability Standards).
---------------------------------------------------------------------------

    73. Mandatory controls in the existing CIP Reliability Standards 
referenced by commenters do not provide sufficient protection against 
attacks that compromise software and software patch integrity and 
authenticity. For example, while Reliability Standard CIP-007-6, 
Requirement R2 requires responsible entities to enforce a patch 
management process for tracking, evaluating, and installing cyber 
security patches for applicable systems, including evaluating security 
patches for applicability, the requirement does not address mechanisms 
to acquire the patch file from a vendor in a secure manner and methods 
to validate the integrity of a patch file before installation.
    74. With respect to mandatory configuration controls, Reliability 
Standard CIP-010-2, Requirement R1 requires responsible entities to 
authorize and document all changes to baseline configurations and, 
where technically feasible, test patches in a test environment before 
installing. However, NERC's technical guidance document for CIP-010-2, 
Requirement R1, Part 1.2 does not require the authorizer to first 
verify the authenticity of a patch. Similarly, the testing of patches 
in a test environment under Requirement R1.5 would likely provide 
insufficient protection as many malware variants are programmed to 
execute only after the system is rebooted several times. Regarding 
patch source monitoring, the guidelines and technical basis section for 
Reliability Standard CIP-007-6 suggests that responsible entities 
should obtain security patches from original sources, where possible, 
and indicates that patches should be approved or certified by another 
source before being assessed and applied.\110\ The Reliability 
Standard, however, does not require the use of these techniques. 
Implementing controls that verify integrity and authenticity of 
software and its publishers may help mitigate security gaps listed 
above.
---------------------------------------------------------------------------

    \110\ Reliability Standard CIP-007-6 (Cyber Security--Systems 
Security Management), Guidelines and Technical Basis at 42-43.
---------------------------------------------------------------------------

    75. In sum, the current CIP Reliability Standards do contain 
certain controls addressing the risks posed by malware, as stated by 
commenters. Verifying software integrity and authenticity, however, is 
a reasonable and appropriate complement to these controls, is not 
required by the current Standards, and is supported by the

[[Page 49889]]

principle of defense-in-depth. In fact, this verification can be viewed 
as the first line of defense against malware-infected software.
Vendor Remote Access to BES Cyber Systems
    76. On the subject of vendor remote access, which includes vendor 
user-initiated Interactive Remote Access and vendor machine-to-machine 
remote access, existing CIP Reliability Standards contain system access 
requirements, including a requirement for security event monitoring. 
However, the CIP Reliability Standards do not require remote access 
session logging for machine-to-machine remote access, nor do they 
address the ability to monitor or close unsafe remote connections for 
both vendor Interactive Remote Access and vendor machine-to-machine 
remote access.\111\ The CIP Reliability Standards should address 
enhanced session logging requirements for vendor remote access in order 
to improve visibility of activity on BES Cyber Systems and give 
responsible entities the ability to rapidly disable remote access 
sessions in the event of a system breach.
---------------------------------------------------------------------------

    \111\ See Trade Association NOPR Comments at 43 (indicating that 
mechanisms for monitoring for unauthorized personnel, connections, 
devices, and software found in the NIST SP-800-161 System and 
Information Integrity (SI) control family are not addressed in the 
CIP version 5 Reliability Standards).
---------------------------------------------------------------------------

    77. The existing requirements referenced by NERC, the Trade 
Associations, and other commenters do not adequately address access 
restrictions for vendors. For example, while Reliability Standard CIP-
004-6, Requirements R4 and R5 provide controls that must be applied to 
vendors such as restricting access to individuals ``based on need,'' 
these Requirements do not include post-authorization logging or control 
of remote access. The existing CIP Reliability Standards do not require 
a responsible entity to monitor data traffic that traverses remote 
communication to their BES Cyber Systems. The absence of post-
authorization monitoring and logging presents an opportunity for 
unmonitored malicious or otherwise inappropriate remote communication 
to or from a BES Cyber System. The inability of a responsible entity to 
rapidly terminate a connection may allow malicious or otherwise 
inappropriate communication to propagate, contributing to a degradation 
of a BES Cyber Asset's function. Enhanced visibility into remote 
communications and the ability to rapidly terminate a remote 
communication could mitigate such a vulnerability.
    78. Reliability Standard CIP-005-5, Requirement R1 provides 
controls for vendor machine-to-machine and vendor user-initiated 
Interactive Remote Access sessions by restricting all inbound and 
outbound communications through an identified Electronic Access Point 
for bi-directional routable protocol connections. Reliability Standard 
CIP-005-5, Requirement R2 provides controls for vendor interactive 
remote access sessions by requiring the use of encryption and requiring 
multi-factor authentication. However, the provisions of Reliability 
Standard CIP-005-5, Requirement R2 addressing interactive remote access 
management do not apply to vendor machine-to-machine remote access. The 
Reliability Standard CIP-005-5, Requirement R2 controls addressing 
interactive remote access management only apply to remote connections 
that are user-initiated (i.e., initiated by a person). Machine-to-
machine connections are not user-initiated and, therefore, are not 
subject to the requirements of Reliability Standard CIP-005-5, 
Requirement R2. When the interactive remote access management controls 
of Reliability Standard CIP-005-5, Requirement R2 do not apply, a 
machine-to-machine remote communication may access a BES Cyber System 
without any access credentials, over an unencrypted channel, and 
without going through an Intermediate System.
    79. For both Interactive Remote Access and machine-to-machine 
remote access, Reliability Standard CIP-007-6, Requirement R3 requires 
monitoring for malicious code and Requirement R4 requires logging of 
successful and unsuccessful login attempts, as well as logging detected 
malicious code. However, Reliability Standard CIP-007-6 does not 
address the risks posed by inappropriate activity that could occur 
during a remote communication. The lack of a requirement addressing the 
detection of inappropriate activity represents a risk because the 
responsible entity may not be aware if an authorized user is performing 
inappropriate activity on a BES Cyber Asset via a remote connection. 
This risk is higher for machine-to-machine communication due to the 
lack of authentication and encryption requirements in the existing CIP 
Reliability Standards, lowering the threshold for a malicious actor to 
execute a man-in-the-middle attack to gain access to a BES Cyber System 
and conduct inappropriate activity such as reconnaissance or code 
modification.
    80. Therefore, we recognize that the current CIP Reliability 
Standards do contain certain controls addressing the risks posed by 
vendor remote access, as noted by commenters. However, the current CIP 
Reliability Standards do not require monitoring remote access sessions 
or closing unsafe remote connections for either vendor Interactive 
Remote Access and vendor machine-to-machine remote access. Accordingly, 
we determine that vendor remote access is not adequately addressed in 
the approved CIP Reliability Standards and, therefore, is an objective 
that must be addressed in the supply chain management plans directed in 
this final rule.
Information System Planning and Procurement
    81. The existing CIP Reliability Standards do not address 
information system planning. Recent cybersecurity incidents \112\ have 
made it apparent that overall system planning is as important to 
overall BES Cyber System security and reliability as any other 
component of security architecture. In general, the CIP Reliability 
Standards do not provide a framework for maintaining ongoing awareness 
of information security, vulnerabilities, and threats to support 
organization risk management decisions; \113\ nor do they address the 
concept of integrating continuous improvement of organizational 
security posture with supply chain risk management as recommended by 
NIST SP 800-161.\114\ Based on the threats evidenced by recent 
cybersecurity incidents, the absence of security considerations in 
system lifecycle processes constitutes a gap in the CIP Reliability 
Standards that could contribute to pervasive and systemic 
vulnerabilities that threaten bulk electric system reliability.
---------------------------------------------------------------------------

    \112\ See E-ISAC, Analysis of the Cyber Attack on the Ukrainian 
Power Grid at 3 (March 18, 2016); see also Dell, Dell Security 
Annual Threat Report (2015) at 7, https://software.dell.com/docs/2015-dell-security-annual-threat-report-white-paper-15657.pdf; 
Olcott Technical Conference Comments at 2.
    \113\ See NIST Special Publication 800-137, Information Security 
Continuous Monitoring (ISCM) for Federal Information Systems and 
Organizations at vi, http://nvlpubs.nist.gov/nistpubs/Legacy/SP/nistspecialpublication800-137.pdf.
    \114\ NIST Special Publication 800-161 at 46.
---------------------------------------------------------------------------

    82. The existing CIP Reliability Standards also do not provide for 
procurement controls for industrial control system hardware, software, 
and computing and networking services. As discussed above, procurement 
controls are intended to address the threat that responsible entities 
could enter into contracts with vendors who pose significant risks to 
their information systems or procure products that fail to

[[Page 49890]]

meet minimum security criteria, as well as the risk that a compromised 
vendor would not provide adequate notice and related incident response 
to responsible entities with whom that vendor is connected.
    83. With regard to commenters' suggestion that the Commission 
direct NERC to develop cybersecurity procurement guidance documents as 
opposed to a mandatory Reliability Standard, we agree that the 
voluntary efforts identified by commenters could provide guidance or 
otherwise inform NERC's standard development process. We conclude, 
however, that relying on voluntary guidelines to address the supply 
chain risks described above is not sufficient to fulfill the 
Commission's responsibilities under FPA section 215.
4. Vendor Risk Management and Procurement Controls
Comments
    84. NERC, G&T Cooperatives, Arkansas and others state that 
responsible entities have limited influence over vendors and 
contractors, and, therefore, a limited ability to affect the supply 
chain for industrial control system hardware, software, and computing 
and networking services associated with bulk electric system 
operations.\115\ NERC contends that any supply chain management 
Reliability Standard ``must balance the reliability need to implement 
supply chain management security controls with entities' business need 
to obtain products and services at a reasonable cost.'' \116\ NERC 
maintains that responsible entities lack bargaining power to persuade 
vendors or suppliers to implement cybersecurity controls without 
significantly increasing the cost of their products or services. NERC 
points to NIST SP 800-161 to highlight that implementing supply chain 
security management controls ``will require financial and human 
resources, not just from the [acquirer] directly but also potentially 
from their system integrators, suppliers, and external service 
providers that would also result in increased cost to the acquirer.'' 
\117\
---------------------------------------------------------------------------

    \115\ NERC NOPR Comments at 11-12; G&T Cooperatives NOPR 
Comments at 9; Arkansas NOPR Comments at 5.
    \116\ NERC NOPR Comments at 11-12.
    \117\ Id. (citing NIST Special Publication 800-161 at 3).
---------------------------------------------------------------------------

    85. G&T Cooperatives contend that they ``have minimal control over 
their suppliers and are not able to identify all potential 
vulnerabilities associated with each and every supplier and their 
products/parts.'' \118\ G&T Cooperatives and Arkansas maintain that 
responsible entities do not have the ability to force a vendor to 
address all potential vulnerabilities. G&T Cooperatives assert that 
even if a contract between a responsible entity and a supplier ``could 
include'' language requiring the supplier to implement security 
controls, ``it is not feasible for contractual terms . . . to address 
all potential vulnerabilities related to supply chain management.'' 
\119\
---------------------------------------------------------------------------

    \118\ G&T Cooperatives NOPR Comments at 9.
    \119\ Id. at 9.
---------------------------------------------------------------------------

    86. NERC, Trade Associations, G&T Cooperatives and Arkansas also 
raise a concern that the Commission's proposal could place compliance 
risk on responsible entities for actions beyond their control and, 
ultimately, incent responsible entities to avoid upgrades that could 
trigger such compliance risk.\120\ NERC states that any supply chain 
management Reliability Standard should be drafted so that it ``creates 
affirmative obligations to implement supply chain management security 
controls without holding entities strictly liable for any failure of 
those controls to eliminate all supply chain threats and 
vulnerabilities.'' \121\ NERC explains that if a supply chain 
management Reliability Standard is not reasonably scoped to avoid 
unreasonable compliance risk, it could create a disincentive for 
responsible entities to purchase and install new technologies and 
equipment.
---------------------------------------------------------------------------

    \120\ NERC NOPR Comments at 13; Trade Associations NOPR Comments 
at 24-25; G&T Cooperatives NOPR Comments at 9-10; Arkansas NOPR 
Comments at 6.
    \121\ NERC NOPR Comments at 13.
---------------------------------------------------------------------------

    87. G&T Cooperatives state that ``placing the compliance risk of 
vendor and supplier security vulnerability on Responsible Entities 
could incent Responsible Entities to avoid upgrades to their industrial 
control system hardware, software, and other services.'' G&T 
Cooperatives explain that there are three primary incentives for a 
responsible entity to avoid upgrades if faced with compliance risks: 
(1) New regulations would result in additional costs for vendors and 
suppliers that would be passed on to the end-user; (2) since security 
patches are not issued by vendors for unsupported hardware and 
software, there is less security patch management responsibility for 
the responsible entity; and (3) avoiding new hardware and software 
reduces the risk of introducing undetected security threats.\122\
---------------------------------------------------------------------------

    \122\ G&T Cooperatives NOPR Comments at 9.
---------------------------------------------------------------------------

Discussion
    88. Our directive to NERC to develop a new or modified Reliability 
Standard that addresses the objectives outlined above balances the 
supply chain risks facing the bulk electric system against any 
potential challenges raised by vendor relationships. We believe that 
the concerns raised in comments with respect to responsible entities' 
relationships with vendors in relation to supply chain risks are valid. 
Our directive is informed by this concern and reflects a reasonable 
balance between the risks facing bulk electric system reliability from 
the supply chain and concerns over vendor relationships. The directive 
strikes this balance by addressing supply chain risks that are within 
responsible entities' control, and we do not expect a new or modified 
supply chain Reliability Standard to impose obligations directly on 
vendors. Moreover, entities will not be responsible for vendor errors 
beyond the scope of the controls implemented to comply with the 
Reliability Standards.
    89. With respect to concerns that the Commission's proposal could 
place compliance risk on responsible entities for actions beyond their 
control, which some commenters argue would prompt responsible entities 
to avoid upgrades that could trigger such compliance risk, we reiterate 
that the intent of the directive is to address supply chain risks that 
are within the responsible entities' control. As part of NERC's 
standard development process, we expect NERC to establish provisions 
addressing compliance obligations in a manner that avoids shifting 
liability from a vendor for its mistakes to a responsible entity. 
Finally, we view the argument that a new or modified Reliability 
Standard will result in a substantial increase in costs to be 
speculative because, beyond requiring NERC to address the four 
objectives discussed above, or some equally effective and efficient 
alternatives, our directive does not require NERC to develop a 
Reliability Standard that mandates any particular controls or actions.

III. Information Collection Statement

    90. The Paperwork Reduction Act (PRA) \123\ requires each federal 
agency to seek and obtain Office of Management and Budget (OMB) 
approval before undertaking a collection of information directed to ten 
or more persons or contained in a rule of general applicability. OMB 
regulations \124\ require approval of certain information collection 
requirements imposed by agency rules. Upon approval of a collection of 
information, OMB will

[[Page 49891]]

assign an OMB control number and an expiration date. Respondents 
subject to the filing requirements of an agency rule will not be 
penalized for failing to respond to the collection of information 
unless the collection of information displays a valid OMB control 
number.
---------------------------------------------------------------------------

    \123\ 44 U.S.C. 3507(d).
    \124\ 5 CFR 1320.
---------------------------------------------------------------------------

    91. The Commission will submit the information collection 
requirements to OMB for its review and approval. The Commission 
solicits public comments on its need for this information, whether the 
information will have practical utility, the accuracy of burden and 
cost estimates, ways to enhance the quality, utility, and clarity of 
the information to be collected or retained, and any suggested methods 
for minimizing respondents' burden, including the use of automated 
information techniques.
    92. The information collection requirements in this Final Rule in 
Docket No. RM15-14-002 for NERC to develop a new or to modify a 
Reliability Standard for supply chain risk management, should be part 
of FERC-725 (Certification of Electric Reliability Organization; 
Procedures for Electric Reliability Standards (OMB Control No. 1902-
0225)). However, there is an unrelated item which is currently pending 
OMB review under FERC-725, and only one item per OMB Control No. can be 
pending OMB review at a time. Therefore, the requirements in this Final 
Rule in RM15-14-002 are being submitted under a new temporary or 
interim collection number FERC-725(1A) to ensure timely submittal to 
OMB. In the long-term, Commission staff plans to administratively move 
the requirements and associated burden of FERC-725(1A) to FERC-725.
    93. Burden Estimate and Information Collection Costs: The 
requirements for the ERO to develop Reliability Standards and to 
provide data to the Commission are included in the existing FERC-725. 
FERC-725 includes information used by the Commission to implement the 
statutory provisions of section 215 of the FPA. FERC-725 includes the 
burden, reporting and recordkeeping requirements associated with: (a) 
Self-Assessment and ERO Application, (b) Reliability Assessments, (c) 
Reliability Standards Development, (d) Reliability Compliance, (e) 
Stakeholder Survey, and (f) Other Reporting. In addition, the Final 
Rule will not result in a substantive increase in burden because this 
requirement to develop standards is covered under FERC-725. However 
because FERC is using the temporary information collection number, 
FERC-725(1A), FERC will use ``placeholder'' estimates of 1 response and 
1 burden hour for the burden calculation.

IV. Regulatory Flexibility Act Analysis

    94. The Regulatory Flexibility Act of 1980 (RFA) \125\ generally 
requires a description and analysis of final rules that will have 
significant economic impact on a substantial number of small entities. 
The Small Business Administration (SBA) revised its size standard 
(effective January 22, 2014) for electric utilities from a standard 
based on megawatt hours to a standard based on the number of employees, 
including affiliates.\126\ The entities subject to the Reliability 
Standards developed by the North American Electric Reliability 
Corporation (NERC) include users, owners, and operators of the Bulk-
Power System, which serves more than 334 million people. In addition, 
NERC's current responsibilities include the development of Reliability 
Standards. Accordingly, the Commission certifies that the requirements 
in this Final Rule will not have a significant economic impact on a 
substantial number of small entities, and no regulatory flexibility 
analysis is required.
---------------------------------------------------------------------------

    \125\ 5 U.S.C. 601-612.
    \126\ SBA Final Rule on ``Small Business Size Standards: 
Utilities,'' 78 FR 77,343 (Dec. 23, 2013).
---------------------------------------------------------------------------

V. Environmental Analysis

    95. The Commission is required to prepare an Environmental 
Assessment or an Environmental Impact Statement for any action that may 
have a significant adverse effect on the human environment.\127\ The 
Commission has categorically excluded certain actions from this 
requirement as not having a significant effect on the human 
environment. Included in the exclusion are rules that are clarifying, 
corrective, or procedural or that do not substantially change the 
effect of the regulations being amended.\128\ The actions proposed 
herein fall within this categorical exclusion in the Commission's 
regulations.
---------------------------------------------------------------------------

    \127\ Regulations Implementing the National Environmental Policy 
Act of 1969, Order No. 486, FERC Stats. & Regs. ] 30,783 (1987).
    \128\ 18 CFR 380.4(a)(2)(ii).
---------------------------------------------------------------------------

VI. Effective Date and Congressional Notification

    96. This Final Rule is effective September 27, 2016. The Commission 
has determined, with the concurrence of the Administrator of the Office 
of Information and Regulatory Affairs of OMB, that this rule is not a 
``major rule'' as defined in section 351 of the Small Business 
Regulatory Enforcement Fairness Act of 1996. This Final Rule is being 
submitted to the Senate, House, and Government Accountability Office.

VII. Document Availability

    97. In addition to publishing the full text of this document in the 
Federal Register, the Commission provides all interested persons an 
opportunity to view and/or print the contents of this document via the 
Internet through the Commission's Home Page (http://www.ferc.gov) and 
in the Commission's Public Reference Room during normal business hours 
(8:30 a.m. to 5:00 p.m. Eastern time) at 888 First Street NE., Room 2A, 
Washington, DC 20426.
    98. From the Commission's Home Page on the Internet, this 
information is available on eLibrary. The full text of this document is 
available on eLibrary in PDF and Microsoft Word format for viewing, 
printing, and/or downloading. To access this document in eLibrary, type 
the docket number of this document, excluding the last three digits, in 
the docket number field.
    User assistance is available for eLibrary and the Commission's Web 
site during normal business hours from the Commission's Online Support 
at (202) 502-6652 (toll free at 1-866-208-3676) or email at 
[email protected], or the Public Reference Room at (202) 502-
8371, TTY (202) 502-8659. Email the Public Reference Room at 
[email protected].

    By the Commission.

    Issued: July 21, 2016.
Nathaniel J. Davis, Sr.,
Deputy Secretary.

    Note:  The following Appendix will not appear in the Code of 
Federal Regulations.


                          Appendix--Commenters
------------------------------------------------------------------------
           Abbreviation                           Commenter
------------------------------------------------------------------------
AEP...............................  American Electric Power Service
                                     Corporation.
ACS...............................  Applied Control Solutions, LLC.
APS...............................  Arizona Public Service Company.

[[Page 49892]]

 
Arkansas..........................  Arkansas Electric Cooperative.
BPA...............................  Bonneville Power Administration.
CEA...............................  Canadian Electricity Association.
Consumers Energy..................  Consumers Energy Company.
CyberArk..........................  CyberArk.
EnergySec.........................  Energy Sector Security Consortium,
                                     Inc.
Ericsson..........................  Ericsson.
Resilient Societies...............  Foundation for Resilient Societies.
G&T Cooperatives..................  Associated Electric Cooperative,
                                     Inc., Basin Electric Power
                                     Cooperative, and Tri-State
                                     Generation and Transmission
                                     Association, Inc.
Gridwise..........................  Gridwise Alliance.
Idaho Power.......................  Idaho Power Company.
Indegy............................  Indegy.
IESO..............................  Independent Electricity System
                                     Operator.
IRC...............................  ISO/RTO Council.
ISO New England...................  ISO New England Inc.
ITC...............................  ITC Companies.
Isologic..........................  Isologic, LLC.
KCP&L.............................  Kansas City Power & Light Company
                                     and KCP&L Greater Missouri
                                     Operations Company.
Luminant..........................  Luminant Generation Company, LLC.
NEMA..............................  National Electrical Manufacturers
                                     Association.
NERC..............................  North American Electric Reliability
                                     Corporation.
NextEra...........................  NextEra Energy, Inc.
NIPSCO............................  Northern Indiana Public Service Co.
NWPPA.............................  Northwest Public Power Association.
Peak..............................  Peak Reliability.
PNM...............................  PNM Resources.
Reclamation.......................  Department of Interior Bureau of
                                     Reclamation.
SIA...............................  Security Industry Association.
SCE...............................  Southern California Edison Company.
Southern..........................  Southern Company Services.
SPP RE............................  Southwest Power Pool Regional
                                     Entity.
SWP...............................  California Department of Water
                                     Resources State Water Project.
TVA...............................  Tennessee Valley Authority.
Trade Associations................  Edison Electric Institute, American
                                     Public Power Association, National
                                     Rural Electric Cooperative
                                     Association, Electric Power Supply
                                     Association, Transmission Access
                                     Policy Study Group, and Large
                                     Public Power Council.
UTC...............................  Utilities Telecom Council.
Waterfall.........................  Waterfall Security Solutions, Ltd.
Wisconsin.........................  Wisconsin Electric Power Company.
------------------------------------------------------------------------

UNITED STATES OF AMERICA

FEDERAL ENERGY REGULATORY COMMISSION

Revised Critical Infrastructure Protection, Reliability Standards 
Docket No. RM15-14-002
    (Issued July 21, 2016)
    LaFLEUR, Commissioner dissenting:

    In today's order, the Commission elects to proceed directly to a 
Final Rule and require the development of a new reliability standard 
on supply chain risk management for industrial control system 
hardware, software, and computing and networking services associated 
with bulk electric system operations. I fully support the 
Commission's continued attention to the threat of inadequate supply 
chain risk management procedures, which pose a very real threat to 
grid reliability.
    However, in my view, the importance and complexity of this issue 
should guide the Commission to proceed cautiously and thoughtfully 
in directing the development of a reliability standard to address 
these threats. I am concerned that the Commission has not adequately 
considered or vetted the Final Rule, which could hamper the 
development and implementation of an effective, auditable, and 
enforceable standard. I believe that the more prudent course of 
action would be to issue today's Final Rule as a Supplemental Notice 
of Proposed Rulemaking (Supplemental NOPR), which would provide 
NERC, industry, and stakeholders the opportunity to comment on the 
Commission's proposed directives. Accordingly, and as discussed 
below, I dissent from today's order.\1\
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    \1\ I do agree with one holding in the order: That the 
Commission has authority under section 215 of the Federal Power Act 
to promulgate a standard on this issue.
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I. The Commission's Decision To Proceed Directly to Final Rule Is 
Flawed and Could Delay Protection of the Grid Against Supply Chain 
Risks

    Last July, as part of its NOPR addressing revisions to its 
cybersecurity critical infrastructure protection (CIP) standards, 
the Commission raised for the first time the prospect of directing 
the development of a standard to address risks posed by lack of 
controls for supply chain management.\2\ The Commission indicated 
that new threats might warrant directing NERC to develop a standard 
to address those risks. While the Commission noted a variety of 
considerations that might shape the standard, including, among 
others, jurisdictional limits and the individualized nature of 
companies' supply chain management procedures, the Commission 
notably did not propose a specific standard for comment. Instead, 
the Commission sought comment on (1) the general proposal to require 
a standard, (2) the anticipated features of, and requirements that 
should be included in, such a standard, and (3) a reasonable 
timeframe for development of a standard.\3\
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    \2\ Revised Critical Infrastructure Protection Reliability 
Standards, Notice of Proposed Rulemaking, 80 FR 43,354 (July 22, 
2015), 152 FERC ] 61,054 (2015). I will refer to the section of that 
order addressing supply chain issues as the ``Supply Chain NOPR,'' 
and the remainder of the order as the ``CIP NOPR.''
    \3\ Id. P 66.
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    The record developed in comments responding to the Supply Chain 
NOPR and through the January 28, 2016 technical conference reflects 
a wide diversity of views

[[Page 49893]]

regarding the need for, and possible content of, a reliability 
standard addressing supply chain management. Notwithstanding these 
diverse views, there was broad consensus on one point: That 
effectively addressing cybersecurity threats in supply chain 
management is tremendously complicated, due to a host of 
jurisdictional, technical, economic, and business relationship 
issues. Indeed, in the Supply Chain NOPR, the Commission recognized 
``that developing a supply chain management standard would likely be 
a significant undertaking and require extensive engagement with 
stakeholders to define the scope, content, and timing of the 
standard.'' \4\
---------------------------------------------------------------------------

    \4\ Id.
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    Yet, the Commission is proceeding straight to a Final Rule 
without in my view engaging in sufficient outreach regarding, or 
adequately vetting, the contents of the Final Rule. As to those 
contents, it is worth noting that the four objectives that will 
define the scope and content of the standard were not identified in 
the Supply Chain NOPR. Therefore, even though the Final Rule 
reflects feedback received on the Supply Chain NOPR, and is not 
obviously inconsistent with the Supply Chain NOPR, no party has yet 
had an opportunity to comment on those objectives or consider how 
they could be translated into an effective and enforceable 
standard.\5\ This is a consequence of: (1) The lack of outreach on 
supply chain threats prior to issuing the Supply Chain NOPR; (2) the 
lack of detail in the Supply Chain NOPR regarding what a standard 
might look like; and (3) the decision today to proceed straight to a 
Final Rule rather than provide additional opportunities for public 
feedback.
---------------------------------------------------------------------------

    \5\ To be clear, I am less concerned about whether the Final 
Rule satisfies minimal notice requirements than whether the Final 
Rule represents reasoned decision making by the Commission.
---------------------------------------------------------------------------

A. The Commission and the Public's Consideration of Supply Chain Risks 
Would Benefit From Additional Stakeholder Engagement

    First, I believe that meaningful stakeholder input on the 
content of any proposed rule is essential to the Commission's 
deliberative process. This is especially important in our 
reliability work, as any standard developed by NERC must be approved 
by stakeholder consensus before it may be filed at the Commission. I 
do not believe that the record developed to date establishes that 
the Final Rule will lead to an appropriate solution to address 
supply chain risks. I note that much of the feedback we received in 
response to the Supply Chain NOPR was not focused on the merits of 
particular approaches to address supply chain threats. Yet, in this 
order, the Commission directs the development of a standard based on 
objectives not reflected in the Supply Chain NOPR, depriving the 
public of the ability to comment, and the Commission of the benefit 
of that public comment.
    In retrospect, given both the preliminary nature of the 
consideration of the issue and the lack of a concrete idea regarding 
what a proposed standard would look like, I believe that the Supply 
Chain NOPR was, in substance, a de facto Notice of Inquiry and 
should have been issued as such, rather than as a subsection of the 
broader CIP NOPR on changes to the CIP standards. For example, it is 
instructive to compare the Supply Chain NOPR with two other 
documents: (1) The Notice of Inquiry being issued today on 
cybersecurity issues arising from the recent incident in Ukraine,\6\ 
and (2) the NOPR concerning the proposed development of a 
reliability standard to address geomagnetic disturbances.\7\ The 
level of detail and consideration of the issues presented in the 
Supply Chain NOPR are much more consistent with that in a Notice of 
Inquiry than a traditional NOPR. As a result, I am concerned that 
the Commission, by styling its prior action as a NOPR, has skipped a 
critical step in the rulemaking process: The opportunity for public 
comment on its directive to develop a standard and the objectives 
that will frame the design and development of that standard. As 
explained below, I believe this procedural decision actually makes 
it less likely that an effective, auditable, and enforceable 
standard will be implemented on a reasonable schedule, particularly 
given the acknowledged complexity of this issue.\8\
---------------------------------------------------------------------------

    \6\ Cyber Systems in Control Centers, Notice of Inquiry, Docket 
No. RM16-18-000.
    \7\ Reliability Standards for Geomagnetic Disturbances, Notice 
of Proposed Rulemaking, 77 FR 64,935 (Oct. 24, 2012), 141 FERC 
61,045 (2012).
    \8\ I believe that Reliability Standards for Physical Security 
Measures, 146 FERC ] 61,166 (2014) (Physical Security Directive 
Order), which is cited in the Final Rule as support for today's 
action, is primarily relevant to demonstrate a different point than 
the order indicates. The Physical Security Directive Order followed 
focused outreach with NERC and other stakeholders to discuss how a 
physical security standard could be designed and implemented within 
the parameters of section 215 of the Federal Power Act. As a result 
of that outreach, the directives in the Physical Security Directive 
Order were clear, targeted, and reflected shared priorities between 
the Commission and NERC. Physical Security Directive Order, 146 FERC 
] 61,166 at PP 6-9. Consequently, NERC was able to develop and file 
a physical security standard with the Commission in less than three 
months, and the Commission ultimately approved that standard in 
November 2014, only roughly eight months after directing its 
development. Physical Security Reliability Standard, 149 FERC ] 
61,140 (2014). In my view, this example demonstrates how essential 
outreach is to the timely and effective development of NERC 
standards.
---------------------------------------------------------------------------

B. The Lack of Adequate Stakeholder Engagement Will Have Negative 
Consequences for the Standards Development Process

    I am also concerned about the consequences for the standards 
development process of the Commission's decision to proceed straight 
to a Final Rule. In particular, I am concerned that the combination 
of insufficient process and discussion to develop the record and 
inadequate time for standards development (since the Commission 
substantially truncated NERC's suggested timeline) \9\ will handicap 
NERC's ability to develop an effective and enforceable proposed 
standard for the Commission to consider. As noted above, NERC, 
industry, and other stakeholders will have no meaningful opportunity 
before initiating their work to provide feedback on the contents of 
the rule, to seek clarification from the Commission, or to propose 
revisions to the rule. Yet, this type of feedback is a critical 
component of the rulemaking process, to ensure that the entities 
tasked with implementing the Commission's directive have been heard 
and understand what they are supposed to do. I believe that the 
Commission is essentially giving the standards development team a 
homework assignment without adequately explaining what it expects 
them to hand in.
---------------------------------------------------------------------------

    \9\ In its comments responding to the Supply Chain NOPR, NERC 
requested that, if the Commission decides to direct the development 
of a standard, the Commission provide a minimum of two years for the 
standards development process. However, the Commission disregards 
that request and directs NERC to develop a standard in just one 
year, apparently based solely on the Trade Associations' request 
that the Commission allow at least one year for the standards 
development process. I believe this timeline is inconsistent with 
the Commission's own recognition of the complexity of this issue, 
and, as discussed herein, likely to delay rather than expedite the 
implementation of an effective, auditable, and enforceable standard.
---------------------------------------------------------------------------

    I do not believe that the Final Rule's flexibility is a 
justification for proceeding straight to a Final Rule. Indeed, given 
the inadequate process to date, I fear that the flexibility is in 
fact a lack of guidance and will therefore be a double-edged sword. 
The Commission is issuing a general directive in the Final Rule, in 
the hope that the standards team will do what the Commission clearly 
could not do: translate general supply chain concerns into a clear, 
auditable, and enforceable standard within the framework of section 
215 of the Federal Power Act. While the Commission need not be 
prescriptive in its standards directives, the Commission's order 
assumes that the standards development team will be able to take the 
``objectives'' of the Final Rule and translate them into a standard 
that the Commission will ultimately find acceptable. I believe that 
issuing a Supplemental NOPR would benefit the standards development 
process by enabling additional discussion and feedback regarding the 
design of a workable standard.

C. By Failing To Engage in Adequate Stakeholder Outreach Before 
Directing Development of a Standard, the Commission Increases the 
Likelihood That Implementation of a Standard Will Be Delayed

    A compressed and possibly compromised standards development 
process also has real consequences for the Commission's 
consideration of that proposed standard, whenever it is filed for 
our review. Unlike our authority under section 206 of the FPA, the 
Commission lacks authority under section 215 to directly modify a 
flawed reliability standard. Instead, to correct any flaws, the 
statute requires that we remand the standard to NERC and the 
standards development process.\10\ Thus, notwithstanding the 
majority's desire to quickly proceed to Final Rule, the statutory

[[Page 49894]]

construct constrains our ability to timely address a flawed 
standard, which could actually delay implementation of the 
protections the Commission seeks to put in place.
---------------------------------------------------------------------------

    \10\ 18 U.S.C. 824o(d)(4).
---------------------------------------------------------------------------

    Given the realities of the standards development and approval 
process, we are likely years away from a supply chain standard being 
implemented, even under the aggressive schedule contemplated in the 
order. I believe that the Commission should endeavor to provide as 
much advance guidance as possible before mandating the development 
of a standard, to increase the likelihood that NERC develops a 
standard that will be satisfactory to the Commission and reduce the 
need for a remand. I worry that the limited process that preceded 
the Final Rule and the expedited timetable will make it extremely 
difficult for NERC to file a standard that the Commission can 
cleanly approve. Had the Commission committed itself to conducting 
adequate outreach, I believe we could have mitigated the likelihood 
of that outcome, and more effectively and promptly addressed the 
supply chain threat in the long term. ``Delaying'' action for a few 
months thus would, in the long run, lead to prompter and stronger 
protection for the grid.

II. Conclusion

    The choice the Commission faces today on supply chain risk 
management is not between action and inaction. Rather, given the 
importance of this issue, I believe that more considered action and 
a more developed Commission order, even if delayed by a few months, 
is better than a quick decision to ``do something.'' Ultimately, an 
effective, auditable, and enforceable standard on supply chain 
management will require thoughtful consideration of the complex 
challenges of addressing cybersecurity threats posed through the 
supply chain within the structure of the FERC/NERC reliability 
process. In my view, the Commission gains very little and does not 
meaningfully advance the security of the grid by proceeding straight 
to a Final Rule, rather than taking the time to build a record to 
support a workable standard.

    Accordingly, I respectfully dissent.

Cheryl A. LaFleur,
Commissioner.
[FR Doc. 2016-17842 Filed 7-28-16; 8:45 am]
 BILLING CODE 6717-01-P