[Federal Register Volume 81, Number 235 (Wednesday, December 7, 2016)]
[Proposed Rules]
[Pages 88136-88143]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-28974]


 ========================================================================
 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 81, No. 235 / Wednesday, December 7, 2016 / 
Proposed Rules  

[[Page 88136]]



DEPARTMENT OF ENERGY

10 CFR Part 205

RIN 1901-AB40


Grid Security Emergency Orders: Procedures for Issuance

AGENCY: Office of Electricity Delivery and Energy Reliability, U.S. 
Department of Energy.

ACTION: Notice of proposed rulemaking and request for comment.

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SUMMARY: The U.S. Department of Energy is proposing to issue procedural 
regulations concerning the Secretary of Energy's issuance of an 
emergency order following the President's declaration of a Grid 
Security Emergency, under the Federal Power Act, as amended. The 
proposed procedures, if adopted, are intended to ensure the expeditious 
issuance of emergency orders under the Federal Power Act.

DATES: Public comment on this proposed rule will be accepted until 
February 6, 2017.

ADDRESSES: You may submit comments, identified by RIN 1901-AB40, by any 
of the following methods:
    1. Follow the instructions for submitting comments on the Federal 
eRulemaking Portal at http://www.regulations.gov.
    2. Send email to [email protected]. Include RIN 1901-AB40 in the 
subject line of the email. Please include the full body of your 
comments in the text of the message or as an attachment.
    3. Address postal mail to U.S. Department of Energy, Office of 
Electricity Delivery and Energy Reliability, Mailstop OE-20, Room 8G-
017, 1000 Independence Avenue SW., Washington, DC 20585.
    Due to potential delays in the delivery of postal mail, we 
encourage respondents to submit comments electronically to ensure 
timely receipt.
    This notice of proposed rulemaking, and any comments that DOE 
receives will be made available on regulations.gov. You may request a 
hardcopy of the comments be sent to you via postal mail by contacting 
[email protected] or the DOE's Office of Electricity Delivery and 
Energy Reliability at Mailstop OE-20, Room 8G-017, 1000 Independence 
Avenue SW., Washington, DC 20585.

FOR FURTHER INFORMATION CONTACT: Jeffrey Baumgartner, (202) 586-1411; 
U.S. Department of Energy, Office of Electricity Delivery and Energy 
Reliability, Mailstop OE-20, Room 8G-017, 1000 Independence Avenue SW., 
Washington, DC 20585; or [email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Introduction and Background
II. Synopsis of the Notice of Proposed Rulemaking
    A. General
    B. Definitions
    C. Summary of Proposed Rule
III. Public Participation
    A. Submission of Comments
IV. Regulatory Review
    A. Executive Order No. 12,866
    B. National Environmental Policy Act
    C. Regulatory Flexibility Act
    D. Paperwork Reduction Act
    E. Unfunded Mandates Reform Act of 1995
    F. Treasury and General Government Appropriations Act, 1999
    G. Executive Order No. 13,132
    H. Executive Order No. 12,988
    I. Treasury and General Government Appropriations Act, 2001
    J. Executive Order No. 13,211
V. Approval of the Office of the Secretary

I. Introduction and Background

    On December 4, 2015, the President signed into law the Fixing 
America's Surface Transportation Act (``FAST Act'' or ``The Act''), 
Public Law 114-94. The Act contains several provisions designed to 
protect and enhance the Nation's electric power delivery 
infrastructure. Section 61003 of the Act adds a new section 215A, 
titled ``Critical Electric Infrastructure Security,'' to Part II of the 
Federal Power Act, codified at 16 U.S.C. 824o-1. New section 215A(a) 
defines, among other terms, a ``grid security emergency.'' New section 
215A(b) authorizes the Secretary of Energy to order emergency measures 
after the President declares a grid security emergency. A grid security 
emergency could result from a physical attack, a cyber-attack using 
electronic communication or an electromagnetic pulse (EMP), or a 
geomagnetic storm event, damaging certain electricity infrastructure 
assets and impairing the reliability of the Nation's power grid. 
Emergency orders responding to grid security emergencies would aim to 
mitigate or eliminate threats to reliability as quickly and efficiently 
as possible. The statute authorizes the Secretary of Energy to issue 
orders for emergency measures as are necessary, in the Secretary's 
judgment, to protect or restore the reliability of critical electric 
infrastructure or defense critical electric infrastructure during the 
emergency. Critically, the Department's centralized direction following 
a declared grid security emergency will help the Department to 
coordinate resources efficiently to minimize the impact of the 
emergency.
    The authority granted in section 215A of the Federal Power Act 
supplements the Secretary's existing authority, under section 202(c) of 
the Federal Power Act, to order temporary emergency measures if the 
Secretary finds ``that an emergency exists by reason of a sudden 
increase in the demand for electric energy, or a shortage of electric 
energy or of facilities for the generation or transmission of electric 
energy, or of fuel or water for generating facilities, or other 
causes,'' that the Secretary believes ``will best meet the emergency 
and serve the public interest.'' To that end, the Secretary may issue 
orders under section 202(c) requiring the ``temporary connections of 
facilities[,] generation, delivery, interchange, or transmission of 
electric energy.''
    The FAST Act also directs the Secretary, ``after notice and 
opportunity for comment,'' to ``establish rules of procedure that 
ensure that such authority can be exercised expeditiously.'' To ensure 
that stakeholders and the public understand how the Department would 
issue an order responding to a grid security emergency, the Department 
proposes in this notice of proposed rulemaking the procedures it would 
expect to follow in the event of such emergency. DOE proposes to add 
these procedures to the existing subpart W in 10 CFR part 205.

Synopsis of the Notice of Proposed Rulemaking

A. General

    Both natural and artificial events can disrupt the Nation's power 
grid. Geomagnetic storm events are

[[Page 88137]]

unavoidable natural phenomena, and an event of sufficient strength 
could compromise the grid. EMPs pose another significant threat. Cyber- 
and physical attacks on infrastructure could also damage or disrupt 
critical grid components. The Department is committed to minimizing any 
disruptions from an attack on, or natural damage to, the Nation's power 
grid. Responses to grid disruptions will need to be tailored to the 
particular circumstances, and the Department now has the authority to 
respond as necessary to mitigate the effects of a grid security 
emergency.
    If the President should declare a grid security emergency, the 
Department intends to follow the procedures established in this 
rulemaking proceeding. The Secretary is authorized to issue emergency 
orders ``[w]henever the President issues and provides to the Secretary 
[of Energy] a written directive or determination identifying a grid 
security emergency.'' The purpose of an emergency order is to designate 
``emergency measures as are necessary in the judgment of the Secretary 
to protect or restore the reliability of critical electric 
infrastructure or of defense critical electric infrastructure during 
such emergency.''

B. Definitions

    The proposed rule begins with definitions of key terms in Sec.  
205.380. Further explanations for certain definitions and terms appear 
below.
    ``Bulk-power system'' encompasses the facilities used to transmit 
electricity and energy needed to maintain the reliability of that 
system of interconnected facilities--in essence, the electric power 
grid for which the President might declare a grid security emergency 
and authorize the Secretary to issue emergency orders to protect or 
restore its reliability. The term excludes facilities used in local 
electric distribution. This definition is drawn from the statutory 
definition applicable throughout section 215A of the Federal Power Act.
    ``Commission'' refers to the Federal Energy Regulatory Commission, 
which is responsible for approving applicable reliability standards. 
This term does not apply here to State regulatory commissions or to the 
former Federal Power Commission.
    ``Electric Reliability Organization'' refers to the organization, 
certified by the Commission under section 215(c) of the Federal Power 
Act, which establishes and enforces reliability standards with 
Commission oversight. As of this rulemaking, the Commission's 
designated Electric Reliability Organization is the North American 
Electric Reliability Corporation (NERC).
    ``Electricity Information Sharing and Analysis Center'' (E-ISAC) 
refers to the organization, operated on behalf of the electricity 
subsector by the North American Electric Reliability Corporation, that 
gathers and analyzes security information, coordinates incident 
management, and communicates mitigation strategies with stakeholders 
within the electricity subsector, across interdependent sectors, and 
with government partners. E-ISAC is one of the organizations with which 
the Secretary will consult, to the extent practicable, in issuing an 
emergency order.
    The ``Electricity Subsector Coordinating Council'' (ESCC) refers to 
the organization that aims to foster and facilitate the coordination of 
sector-wide, policy-related activities and initiatives designed to 
improve the reliability and resilience of the electricity subsector, 
including physical and cyber security infrastructure. The ESCC is 
another of the organizations with which the Secretary will consult, to 
the extent practicable, in issuing an emergency order. DOE considers 
the ``electricity subsector'' to include commercial and industrial 
actors who generate and deliver electric power, along with the 
facilities those actors use to generate and deliver the power.
    An ``Electromagnetic pulse'' is one (1) or more pulses of 
electromagnetic energy emitted by a device capable of disabling or 
disrupting operation of, or destroying, electronic devices or 
communications networks, including hardware, software, and data, by 
means of such a pulse. The pulse can be accidental, incidental, or 
malicious.
    The ``Emergency & Incident Management Council'' (EIMC) is the 
organization, internal to the Department and chaired by the Deputy 
Secretary of Energy, designed to increase cooperation and coordination 
across the Department to prepare for, mitigate, respond to, and recover 
from emergencies. The EIMC plays a central role in Grid Security 
Emergency orders, as it will meet, if practicable, after the President 
declares the emergency to prepare recommendations to the Secretary.
    ``Geomagnetic storm'' refers to a temporary disturbance of the 
Earth's magnetic field resulting from solar activity. These natural 
phenomena are sometimes powerful enough to disrupt the Bulk-power 
system. If the disruption is sufficiently severe, a Grid Security 
Emergency could result.
    ``Regional entity'' refers to organizations responsible for 
enforcing reliability standards for the Bulk-power system in certain, 
defined regions. These organizations operate under NERC and Commission 
oversight.

C. Summary of Proposed Rule

    As described in proposed Sec.  205.381, orders issued under section 
215A(b) of the Federal Power Act may apply to the pertinent Electric 
Reliability Organization (NERC, as of this rulemaking), regional 
entity, or ``any owner, user, or operator of critical electric 
infrastructure or of defense critical electric infrastructure within 
the United States.''
    The procedures are designed to allow the Secretary to address a 
declared grid security emergency. The statute authorizes the Secretary 
to order response measures that the Secretary believes are necessary to 
protect or restore the reliability of certain infrastructure in a grid 
security emergency. Because the nature of a grid security emergency is 
uncertain, the procedures allow for flexibility in response measures 
and, as the statute requires, to ``ensure that such authority can be 
exercised expeditiously.'' While the procedures are expected to produce 
the most efficient and effective emergency response possible under the 
circumstances, the Secretary has final authority to issue appropriate 
grid security emergency orders.
    In the event of a grid security emergency, DOE will immediately 
activate its unified command structure and coordinate outreach efforts. 
DOE expects that the EIMC will anchor the Department's proposed 
response via its recommendations to the Secretary. Based on the nature 
and timing of the emergency, however, the Secretary would maintain 
discretion, based on a judgment of the relevant circumstances, to issue 
an emergency order without EIMC input. To the extent practicable, DOE 
will promptly alert stakeholders of the grid security emergency through 
existing alert mechanisms, such as the NERC alert system and ESCC 
communication coordination processes.
    Proposed Sec.  205.382 outlines the EIMC procedures. When the 
Department is notified, in writing, that the President has declared a 
grid security emergency and has directed the Secretary to order 
emergency response measures, the EIMC will be activated. The EIMC will 
create ad hoc task groups, assign recommendation development tasks to 
these groups, and coordinate the Department's consultation efforts. The 
EIMC may take other actions but only as necessary and practicable to 
develop the Department's recommendations to the Secretary. After the 
EIMC makes its

[[Page 88138]]

recommendations, the Secretary will issue the emergency order. Again, 
the Department would follow these procedures to the extent practicable, 
but subject to the Secretary's judgment of the urgency of the situation 
and the best approach under the circumstances.
    Consistent with the Department's longstanding practice, all 
reasonable efforts will be made to consult with stakeholders prior to 
the issuance of an emergency order. The statute also requires the 
Secretary to consult with other governmental authorities and non-
governmental entities before issuing emergency orders, ``to the extent 
practicable in light of the nature of the grid security emergency and 
the urgency of the need for action.'' The Department understands that 
electric reliability entities and private industry will likely be 
impacted by the emergency and have important situational awareness to 
assist the Department in identifying mitigation or protection measures. 
Proposed Sec.  205.383 outlines how the Department will coordinate its 
communication with other entities. Within the Department, the Office of 
Electricity Delivery and Energy Reliability (OE) will be the lead 
program office supporting the Secretary in issuing grid security 
emergency orders. As set forth in this proposed rule, OE would be 
responsible for conducting the required consultations under the 
statute. Consultation would include the Department's effort to obtain 
information and recommended emergency measures from those government 
entities,\1\ electric reliability entities, and owners, users, or 
operators of critical electric infrastructure or of defense critical 
electric infrastructure--including private-sector entities--impacted by 
the emergency. Historically, the Department has collaborated with other 
Federal agencies in an energy emergency to obtain waivers or special 
permits to facilitate expedited restoration. Here, the Department also 
intends to work with other Federal agencies to obtain waivers or 
special permits necessary to comply with the Secretary's order.
---------------------------------------------------------------------------

    \1\ DOE notes that the regulatory text of proposed Sec.  205.383 
discusses consultation with agencies supporting Emergency Support 
Function (ESF) #12. For clarification, ESF #12 is the Department of 
Energy's responsibility to help reestablish damaged energy systems 
and components when an incident requires a coordinated Federal 
response. The scope of ESF #12 includes providing technical 
expertise; collecting, evaluating, and sharing information on energy 
system damage; estimating the impact of system outages locally, 
regionally, and nationally; helping government and private sector 
entities overcome challenges in reestablishing energy system; and 
providing information about the status of energy reestablishment 
efforts.
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    After the Secretary issues an emergency order, the Department will 
communicate the order's content to the entities subject to the order, 
as noted in proposed Sec.  205.384. The Department will also enlist the 
ESCC and E-ISAC to communicate the order's content to those affected. 
The Department will also use any other form of communication most 
appropriate under the circumstances. Optimal communication on grid 
security emergencies will be paramount during the emergency, and the 
Department will work to ensure that information is shared that will 
help it to respond most effectively. For that reason, according to 
proposed Sec.  205.384 and consistent with obligations to protect 
classified information, the Secretary may declassify information 
eligible for that change in status to ensure maximum distribution of 
information critical to the emergency response.
    This proposed rule is limited to the Department's procedures for 
issuing an emergency order in response to a grid security emergency. 
Should the Secretary issue such an order, the order itself would set 
out the requirements and procedures for impacted entities to seek 
clarification or reconsideration of that particular order. Proposed 
Sec.  205.385 provides general requirements for such requests. In 
particular, DOE proposes that anyone subject to a particular order may 
submit a request for clarification or reconsideration in writing to the 
Secretary. The requests would be posted on the Department's Web site 
consistent with criteria established for treatment of critical electric 
infrastructure information. In acting on a request for clarification or 
reconsideration, the Secretary may grant or deny the request or may 
abrogate or modify the final order, in whole or in part, with or 
without further proceedings, as soon as practicable. Such a request 
would not stay an emergency order unless the Secretary so determined.
    As warranted, and to the extent practicable and consistent with 
obligations to protect classified information, the Secretary may allow 
key personnel of ordered entities temporary access to classified 
information. Proposed Sec.  205.386 sets out this approach.
    Proposed Sec.  205.387 describes termination of grid security 
emergency orders. An emergency order remains effective for up to 
fifteen (15) days and may be extended for subsequent periods of up to 
15 days if the President issues another directive to the Secretary that 
the original emergency has not ended or that the emergency measures 
already ordered are still required. If warranted, the Secretary may 
also terminate an order before the 15 days have elapsed. The entity or 
entities subject to the emergency order may also request that the 
Secretary terminate an order if the entity or entities believes that 
the grid security emergency ceases to exist and that protection or 
restoration of the grid has been achieved.
    The Department also plans to determine compliance with grid 
security emergency orders, as described in proposed Sec.  205.388. At 
the time the Department issues an emergency order, or shortly after the 
issuance, the Department may require the ordered party to provide a 
detailed account of compliance actions. As noted in proposed Sec.  
205.389, enforcement provisions in Part III of the Federal Power Act 
also apply to orders issued under section 215A. See 42 U.S.C. 7151(b) & 
7172(a)(2)(A). For appeal purposes, as noted in proposed Sec.  205.390, 
the Federal Power Act includes the requirements for a rehearing request 
and the process for an appeal of a decision.
    As indicated in proposed Sec.  205.391, the Department will not 
adjudicate cost recovery under an emergency order, as that 
determination is reserved for the Commission, state regulators, or the 
United States Court of Federal Claims. Specifically, the FAST Act 
allows the Commission to ``establish a mechanism'' allowing an 
aggrieved party to recover costs, but only if it determines that such a 
party has ``incurred substantial costs to comply with an order for 
emergency measures issued under [section 215A] and that such costs were 
prudently incurred and cannot reasonably be recovered through regulated 
rates or market prices for the electric energy or services sold by'' 
the aggrieved party.
    Finally, the FAST Act shields parties affected by emergency orders 
from liability for what would otherwise be violations of the Federal 
Power Act or the reliability standards, except in cases of gross 
negligence. New section 215A(f) of the Federal Power Act states that 
any action or omission taken to comply with an emergency order that 
causes noncompliance ``with any rule, order, regulation, or provision'' 
of the Federal Power Act, as well as any FERC-approved reliability 
standard, ``shall not be considered a violation'' of that legal 
requirement. The same subsection incorporates the liability protection 
for emergency orders issued under section 202(c) of the Federal Power 
Act. That protection, for actions or omissions resulting in 
noncompliance with ``any Federal, State, or local environmental law or 
regulation,'' not only frees the ordered party from violations of those 
laws or regulations, but also shields the

[[Page 88139]]

ordered party from ``any requirement, civil or criminal liability, or a 
citizen suit under such environmental law or regulation,'' even if a 
court subsequently stays, modifies, or sets aside the order. Proposed 
Sec.  205.392 describes all of these protections.

III. Public Participation

A. Submission of Comments

    DOE will accept comments, data, and information regarding this 
proposed rule before or after the public meeting, but no later than the 
date provided in the DATES section at the beginning of this proposed 
rule. Interested parties may submit comments using any of the methods 
described in the ADDRESSES section at the beginning of this proposed 
rule.
    Submitting comments via regulations.gov. The regulations.gov Web 
page will require you to provide your name and contact information. 
Your contact information will be viewable to DOE Building Technologies 
staff only. Your contact information will not be publicly viewable 
except for your first and last names, organization name (if any), and 
submitter representative name (if any). If your comment is not 
processed properly because of technical difficulties, DOE will use this 
information to contact you. If DOE cannot read your comment due to 
technical difficulties and cannot contact you for clarification, DOE 
may not be able to consider your comment.
    However, your contact information will be publicly viewable if you 
include it in the comment or in any documents attached to your comment. 
Any information that you do not want to be publicly viewable should not 
be included in your comment, nor in any document attached to your 
comment. Persons viewing comments will see only first and last names, 
organization names, correspondence containing comments, and any 
documents submitted with the comments.
    Do not submit to regulations.gov information for which disclosure 
is restricted by statute, such as trade secrets and commercial or 
financial information (hereinafter referred to as Confidential Business 
Information (CBI)). Comments submitted through regulations.gov cannot 
be claimed as CBI. Comments received through the Web site will waive 
any CBI claims for the information submitted. For information on 
submitting CBI, see the Confidential Business Information section.
    DOE processes submissions made through regulations.gov before 
posting. Normally, comments will be posted within a few days of being 
submitted. However, if large volumes of comments are being processed 
simultaneously, your comment may not be viewable for up to several 
weeks. Please keep the comment tracking number that regulations.gov 
provides after you have successfully uploaded your comment.
    Submitting comments via email, hand delivery, or mail. Comments and 
documents submitted via email, hand delivery, or mail also will be 
posted to regulations.gov. If you do not want your personal contact 
information to be publicly viewable, do not include it in your comment 
or any accompanying documents. Instead, provide your contact 
information on a cover letter. Include your first and last names, email 
address, telephone number, and optional mailing address. The cover 
letter will not be publicly viewable as long as it does not include any 
comments.
    Include contact information each time you submit comments, data, 
documents, and other information to DOE. If you submit via mail or hand 
delivery, please provide all items on a CD, if feasible. It is not 
necessary to submit printed copies. No facsimiles (faxes) will be 
accepted.
    Comments, data, and other information submitted to DOE 
electronically should be provided in PDF (preferred), Microsoft Word or 
Excel, WordPerfect, or text (ASCII) file format. Provide documents that 
are not secured, written in English and free of any defects or viruses. 
Documents should not contain special characters or any form of 
encryption and, if possible, they should carry the electronic signature 
of the author.
    Campaign form letters. Please submit campaign form letters by the 
originating organization in batches of between 50 to 500 form letters 
per PDF or as one form letter with a list of supporters' names compiled 
into one or more PDFs. This reduces comment processing and posting 
time.
    Confidential Business Information. According to 10 CFR 1004.11, any 
person submitting information that he or she believes to be 
confidential and exempt by law from public disclosure should submit via 
email, postal mail, or hand delivery two well-marked copies: One copy 
of the document marked confidential including all the information 
believed to be confidential, and one copy of the document marked non-
confidential with the information believed to be confidential deleted. 
Submit these documents via email or on a CD, if feasible. DOE will make 
its own determination about the confidential status of the information 
and treat it according to its determination.
    Factors of interest to DOE when evaluating requests to treat 
submitted information as confidential include: (1) A description of the 
items; (2) whether and why such items are customarily treated as 
confidential within the industry; (3) whether the information is 
generally known by or available from other sources; (4) whether the 
information has previously been made available to others without 
obligation concerning its confidentiality; (5) an explanation of the 
competitive injury to the submitting person which would result from 
public disclosure; (6) when such information might lose its 
confidential character due to the passage of time; and (7) why 
disclosure of the information would be contrary to the public interest.
    It is DOE's policy that all comments may be included in the public 
docket, without change and as received, including any personal 
information provided in the comments (except information deemed to be 
exempt from public disclosure).

IV. Regulatory Review

A. Executive Order No. 12,866

    This proposed rule has been determined to be a significant 
regulatory action under Executive Order No. 12,866, ``Regulatory 
Planning and Review,'' 58 FR 51,735 (Oct. 4, 1993). Accordingly, this 
action was subject to review under that Executive Order by the Office 
of Information and Regulatory Affairs of the Office of Management and 
Budget.

B. National Environmental Policy Act

    DOE has determined that this proposed rule is covered under the 
Categorical Exclusion found in the DOE's National Environmental Policy 
Act regulations at paragraph A6 Rulemakings, procedural of appendix A 
to subpart D, 10 CFR part 1021, which applies to Rulemakings that are 
strictly procedural, such as rulemaking (under 48 CFR part 9) 
establishing procedures for technical and pricing proposals and 
establishing contract clauses and contracting practices for the 
purchase of goods and services, and rulemaking (under 10 CFR part 600) 
establishing application and review procedures for, and administration, 
audit, and closeout of, grants and cooperative agreements. Accordingly, 
neither an environmental assessment nor an environmental impact 
statement is required.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires 
preparation

[[Page 88140]]

of an initial regulatory flexibility analysis for any rule that by law 
must be proposed for public comment, unless the agency certifies that 
the rule, if promulgated, will not have a significant economic impact 
on a substantial number of small entities. As required by Executive 
Order No. 13,272, ``Proper Consideration of Small Entities in Agency 
Rulemaking,'' 67 FR 53,461 (Aug. 16, 2002), DOE published procedures 
and policies on February 19, 2003, to ensure that the potential impacts 
of its rules on small entities are properly considered during the 
rulemaking process (68 FR 7990). DOE's procedures and policies are 
available on the Office of General Counsel's Web site: http://www.energy.gov/gc/downloads/executive-order-13272-consideration-small-entities-agency-rulemaking.
    DOE has reviewed this proposed rule under the provisions of the 
Regulatory Flexibility Act and the procedures and policies published on 
February 19, 2003. This proposed rule sets forth procedures that DOE 
expects to use to issue an order in the event of a declared grid 
security emergency. The procedures govern DOE activities in the 
issuance of an order and therefore impact DOE, a Federal agency, rather 
than any small entities.
    DOE further expects that these orders would be issued rarely. In 
addition, the FAST Act authorizes DOE to issue orders only to specific 
entities--namely, the pertinent Electric Reliability Organization 
(NERC, as of this rulemaking), regional entity, or any owner, user or 
operator of critical energy infrastructure or defense critical energy 
infrastructure. DOE has determined that these entities most likely fall 
under NAICS code 221121, ``Electric Bulk Power Transmission and 
Control.'' To be considered a small entity, these businesses must have 
500 employees or less. Due to the nature of the orders to protect or 
restore and/or infrastructure, DOE has determined that it is likely to 
consult with large businesses.
    An entity subject to an order may request the clarification or 
rehearing of an order, or the termination of an order. DOE does not 
expect that these provisions, which would help an entity to understand 
an order or, in the case of a termination granted by the Secretary, end 
the applicability of an order, to impose a significant impact on any 
entity. DOE may also consult with any of these entities to understand 
the grid security emergency and obtain recommendations to address the 
emergency. DOE also does not expect these consultations to result in a 
significant impact on any entity because the interaction would not 
order the entity to perform any action, but would rather be an exchange 
of information to help DOE understand the emergency and consider 
measures to protect and/or restore infrastructure. In addition, it is 
likely that only entities with equities that could be impacted by 
potential orders would be consulted. In the event that an order is 
issued to address a grid security emergency, because the contents of 
any order would be highly dependent upon the nature of the grid 
security emergency, DOE again emphasizes that the order itself, rather 
than these procedures, would specify the requirements necessary to 
address the grid security emergency.
    On the basis of the foregoing, DOE certifies that this proposed 
rule will not have a significant economic impact on a substantial 
number of small entities. Accordingly, DOE has not prepared a 
regulatory flexibility analysis for this rulemaking. DOE's 
certification and supporting statement of factual basis will be 
provided to the Chief Counsel for Advocacy of the Small Business 
Administration pursuant to 5 U.S.C. 605(b).

D. Paperwork Reduction Act

    This proposed rule does not contain information collection 
requirements subject to approval by the Office of Management and Budget 
pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et 
seq.) and the procedures implementing that Act at 5 CFR part 1320. A 
person is not required to respond to a collection of information unless 
it displays a currently valid OMB control number.

E. Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) generally 
requires Federal agencies to examine closely the impacts of regulatory 
actions on State, local, and tribal governments. Section 101(5) of 
title I of that law defines a Federal intergovernmental mandate to 
include any regulation that would impose upon State, local, or tribal 
governments an enforceable duty, except a condition of Federal 
assistance or a duty arising from participating in a voluntary federal 
program. Title II of that law requires each Federal agency to assess 
the effects of Federal regulatory actions on State, local, and tribal 
governments, in the aggregate, or to the private sector, other than to 
the extent such actions merely incorporate requirements specifically 
set forth in a statute. Section 202 of that title requires a Federal 
agency to perform a detailed assessment of the anticipated costs and 
benefits of any rule that includes a Federal mandate which may result 
in costs to State, local, or tribal governments, or to the private 
sector, of $100 million or more in any one year (adjusted annually for 
inflation). 2 U.S.C. 1532(a) and (b). Section 204 of that title 
requires each agency that proposes a rule containing a significant 
Federal intergovernmental mandate to develop an effective process for 
obtaining meaningful and timely input from elected officers of State, 
local, and tribal governments. 2 U.S.C. 1534.
    This proposed rule will establish the procedures DOE expects to use 
issue an order in the event of a declared grid security emergency. In 
the event that an order is issued to address a grid security emergency, 
the order itself, rather than these procedures, would specify the 
requirements necessary to address the grid security emergency. The 
proposed rule will not result in the expenditure by State, local, and 
tribal governments in the aggregate, or by the private sector, of $100 
million or more in any one year. Accordingly, no assessment or analysis 
is required under the Unfunded Mandates Reform Act of 1995.

F. Treasury and General Government Appropriations Act, 1999

    Section 654 of the Treasury and General Government Appropriations 
Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family 
Policymaking Assessment for any proposed rule that may affect family 
well-being. The proposed rule will not have any impact on the autonomy 
or integrity of the family as an institution. Accordingly, DOE has 
concluded that it is not necessary to prepare a Family Policymaking 
Assessment.

G. Executive Order No. 13,132

    Executive Order No. 13,132, ``Federalism,'' 64 FR 43,255 (Aug. 4, 
1999) imposes certain requirements on agencies formulating and 
implementing policies or regulations that preempt State law or that 
have federalism implications. Agencies are required to examine the 
constitutional and statutory authority supporting any action that would 
limit the policymaking discretion of the States and carefully assess 
the necessity for such actions. DOE has examined this proposed rule and 
has determined that it will not preempt State law and will not have a 
substantial direct effect on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government. This 
proposed

[[Page 88141]]

rule would establish the procedures DOE expects to use issue an order 
in the event of a declared grid security emergency. In the event that 
an order is issued to address a grid security emergency, the order 
itself, rather than these procedures, would specify the requirements 
necessary to address the grid security emergency. No further action is 
required by Executive Order No. 13,132.

H. Executive Order No. 12,988

    With respect to the review of existing regulations and the 
promulgation of new regulations, section 3(a) of Executive Order No. 
12,988, ``Civil Justice Reform,'' 61 FR 4729 (Feb. 7, 1996), imposes on 
Executive agencies the general duty to adhere to the following 
requirements: (1) Eliminate drafting errors and ambiguity; (2) write 
regulations to minimize litigation; and (3) provide a clear legal 
standard for affected conduct rather than a general standard and 
promote simplification and burden reduction. With regard to the review 
required by section 3(a), section 3(b) of Executive Order No. 12,988 
specifically requires that Executive agencies make every reasonable 
effort to ensure that the regulation: (1) Clearly specifies the 
preemptive effect, if any; (2) clearly specifies any effect on existing 
Federal law or regulation; (3) provides a clear legal standard for 
affected conduct while promoting simplification and burden reduction; 
(4) specifies the retroactive effect, if any; (5) adequately defines 
key terms; and (6) addresses other important issues affecting clarity 
and general draftsmanship under any guidelines issued by the Attorney 
General. Section 3(c) of Executive Order No. 12,988 requires Executive 
agencies to review regulations in light of applicable standards in 
section 3(a) and section 3(b) to determine whether they are met or 
whether it is unreasonable to meet one or more of them. DOE has 
completed the required review and determined that, to the extent 
permitted by law, the proposed rule meets the relevant standards of 
Executive Order No. 12,988.

I. Treasury and General Government Appropriations Act, 2001

    The Treasury and General Government Appropriations Act, 2001 (44 
U.S.C. 3516 note) provides for agencies to review most disseminations 
of information to the public under guidelines established by each 
agency pursuant to general guidelines issued by OMB.
    OMB's guidelines were published at 67 FR 8452 (Feb. 22, 2002), and 
DOE's guidelines were published at 67 FR 62,446 (Oct. 7, 2002). DOE has 
reviewed this proposed rule under the OMB and DOE guidelines and has 
concluded that it is consistent with applicable policies in those 
guidelines.

J. Executive Order No. 13,211

    Executive Order No. 13,211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use,'' 66 FR 
28,355 (May 22, 2001) requires Federal agencies to prepare and submit 
to the OMB a Statement of Energy Effects for any proposed significant 
energy action. A ``significant energy action'' is defined as any action 
by an agency that promulgated or is expected to lead to promulgation of 
a final rule, and that (1) is a significant regulatory action under 
Executive Order No. 12,866, or any successor order; and (2) is likely 
to have a significant adverse effect on the supply, distribution, or 
use of energy, or (3) is designated by the Administrator of OIRA as a 
significant energy action. For any proposed significant energy action, 
the agency must give a detailed statement of any adverse effects on 
energy supply, distribution, or use should the proposal be implemented, 
and of reasonable alternatives to the action and their expected 
benefits on energy supply, distribution, and use. This regulatory 
action will not have a significant adverse effect on the supply, 
distribution, or use of energy. The proposed rule would establish the 
procedures DOE expects to use issue an order in the event of a declared 
grid security emergency. In the event that an order is issued to 
address a grid security emergency, the order itself, rather than these 
procedures, would specify the requirements necessary to address the 
grid security emergency. In addition, the statute requires that the 
order must ``protect or restore'' critical electric infrastructure or 
defense critical electric infrastructure. Therefore, the rule is not a 
significant energy action. Accordingly, DOE has not prepared a 
Statement of Energy Effects.

V. Approval of the Office of the Secretary

    The Secretary of Energy has approved publication of this proposed 
rule.

List of Subjects in 10 CFR Part 205

    Administrative practice and procedure, Energy, and Recordkeeping 
and reporting requirements.

    Issued in Washington, DC, on November 23, 2016.
Patricia Hoffman,
Assistant Secretary, Office of Electricity Delivery and Energy 
Reliability.
    For the reasons stated in the preamble, DOE proposes to amend part 
205 of chapter II, subchapter A, of Title 10 of the Code of Federal 
Regulations, as set forth below:

PART 205--ADMINISTRATIVE PROCEDURES AND SANCTIONS

0
1. The authority citation for part 205 continues to read as follows:

    Authority: Department of Energy Organization Act, Pub. L. 95-91, 
91 Stat. 565 (42 U.S.C. Section 7101). Federal Power Act, Pub. L. 
66-280, 41 Stat. 1063 (16 U.S.C. Section 792) et seq., Department of 
Energy Delegation Order No. 0204-4 (42 FR 60726). E.O. 10485, 18 FR 
5397, 3 CFR, 1949-1953, Comp., p. 970 as amended by E.O. 12038, 43 
FR 4957, 3 CFR 1978 Comp., p. 136.

0
2. Part 205 is amended by revising the heading of subpart W to read as 
follows:

Subpart W--Electric Power System Permits and Reports; Applications; 
Administrative Procedures and Sanctions; Grid Security Emergency 
Orders

0
3. Subpart W is amended by adding an undesignated center heading after 
Sec.  205.379 to read as follows:
* * * * *

Internal Procedures for Issuance of a Grid Security Emergency Order

0
4. Sections 205.380 through 250.392 are added to subpart W to read as 
follows:

Sec.
Sec.  205.380 Definitions.
Sec.  205.381 Application of emergency order.
Sec.  205.382 Procedures for issuing an emergency order.
Sec.  205.383 Outreach and consultation.
Sec.  205.384 Communication of orders.
Sec.  205.385 Clarification or reconsideration.
Sec.  205.386 Temporary access to classified information.
Sec.  205.387 Termination of an emergency order.
Sec.  205.388 Tracking compliance.
Sec.  205.389 Enforcement.
Sec.  205.391 Cost recovery.
Sec.  205.392 Liability exemptions.


Sec.  205.380  Definitions.

    As used in this part:
    Bulk-power system means:
    (1) Facilities and control systems necessary for operating an 
interconnected electric energy transmission network (or any portion 
thereof); and
    (2) Electric energy from generation facilities needed to maintain 
transmission system reliability.

[[Page 88142]]

    (3) The term does not include facilities used in the local 
distribution of electric energy.
    Commission means the Federal Energy Regulatory Commission.
    Critical electric infrastructure means a system or asset of the 
bulk-power system, whether physical or virtual, the incapacity or 
destruction of which would negatively affect national security, 
economic security, public health or safety, or any combination of such 
matters.
    Defense critical electric infrastructure means any electric 
infrastructure located in any of the 48 contiguous States or the 
District of Columbia that serves a facility designated by the Secretary 
as:
    (1) Critical to the defense of the United States; and
    (2) Vulnerable to a disruption of the supply of electric energy 
provided to such facility by an external provider, but that is not 
owned or operated by the owner or operator of such facility.
    Department means the United States Department of Energy.
    Electric reliability organization means the organization, certified 
by the Commission under section 215(c) of the Federal Power Act, 16 
U.S.C. 824o(c), the purpose of which is to establish and enforce 
reliability standards for the bulk-power system, subject to Commission 
review.
    Electricity information sharing and analysis center means the 
organization, operated on behalf of the electricity subsector by the 
Electric Reliability Organization, that gathers and analyzes security 
information, coordinates incident management, and communicates 
mitigation strategies with stakeholders within the electricity 
subsector, across interdependent sectors, and with government partners. 
The E-ISAC, in collaboration with the Department of Energy and the 
Electricity Subsector Coordinating Council (ESCC), serves as the 
primary security communications channel for the electricity subsector 
and enhances the subsector's ability to prepare for and respond to 
cyber and physical threats, vulnerabilities, and incidents.
    Electricity subsector coordinating council means the organization 
that aims to foster and facilitate the coordination of sector-wide, 
policy-related activities and initiatives designed to improve the 
reliability and resilience of the electricity subsector, including 
physical and cyber security infrastructure.
    Electromagnetic pulse means one or more pulses of electromagnetic 
energy emitted by a device capable of disabling or disrupting operation 
of, or destroying, electronic devices or communications networks, 
including hardware, software, and data, by means of such a pulse.
    Emergency & incident management council means the organization, 
internal to the Department of Energy and chaired by the Deputy 
Secretary of Energy, designed to increase cooperation and coordination 
across the Department to prepare for, mitigate, respond to, and recover 
from emergencies.
    Geomagnetic storm means a temporary disturbance of the Earth's 
magnetic field resulting from solar activity.
    Grid security emergency means the occurrence or imminent danger of:
    (1) A malicious act using electronic communication or an 
electromagnetic pulse, or a geomagnetic storm event, that could disrupt 
the operation of those electronic devices or communications networks, 
including hardware, software, and data, that are essential to the 
reliability of critical electric infrastructure or of defense critical 
electric infrastructure; and
    (2) Disruption of the operation of such devices or networks, with 
significant adverse effects on the reliability of critical electric 
infrastructure or of defense critical electric infrastructure, as a 
result of such act or event; or
    (3) A direct physical attack on critical electric infrastructure or 
on defense critical electric infrastructure; and
    (4) Significant adverse effects on the reliability of critical 
electric infrastructure or of defense critical electric infrastructure 
as a result of such physical attack.
    Regional entity means an entity having enforcement authority under 
section 215(e)(4) of the Federal Power Act, 16 U.S.C. 824o(e)(4).
    Secretary means the Secretary of Energy.


Sec.  205.381  Application of emergency order.

    An order for emergency measures under section 215A(b) of the 
Federal Power Act may apply to the Electric Reliability Organization, a 
regional entity, or any owner, user, or operator of critical electric 
infrastructure or of defense critical electric infrastructure within 
the United States.


Sec.  205.382  Procedures for issuing an emergency order.

    (a) The Secretary has final authority and may act as quickly as 
necessary to address the emergency. The Secretary will adhere to these 
procedures unless, in the Secretary's judgment, the emergency requires 
alternative procedures.
    (b) Upon the Department's receipt of the President's written 
directive or determination identifying a Grid Security Emergency, the 
Emergency & Incident Management Council (Council) will convene at least 
one emergency meeting. Resulting from this meeting, the Council's 
responsibilities will include, but not be limited to:
    (1) Assigning consultation and situational awareness tasks;
    (2) Creating ad hoc task groups; and
    (3) Assigning recommendation development tasks to the ad hoc task 
groups it has created.
    (c) The Council will present its recommendations to the Secretary 
as expeditiously as possible and practicable. As quickly as the 
situation requires, following presentation of the Council's 
recommendations, the Secretary will issue the emergency order.


Sec.  205.383  Outreach and consultation.

    The Department of Energy's Office of Electricity Delivery and 
Energy Reliability will conduct consultation related to any order 
issued by the Secretary in response to a declared Grid Security 
Emergency. Before the issuance of any order, to the extent practicable 
in light of the nature of the Grid Security Emergency and the urgency 
of the need for action, outreach efforts will be made to consult at 
least the following: Authorities in the government of Canada; 
authorities in the government of Mexico; appropriate Federal agencies 
including, but not limited to, those supporting Emergency Support 
Function No. 12; the Commission; and at least the following non-
government entities: The Electricity Subsector Coordinating Council, 
the Electric Reliability Organization, regional entities, and owners, 
users, or operators of Critical Electric Infrastructure or of Defense 
Critical Electric Infrastructure within the United States. Consultation 
will include the Department's effort to obtain information related to 
the Grid Security Emergency and recommended emergency measures from 
those governments, electric reliability entities, and private sector 
companies impacted by the emergency.


Sec.  205.384  Communication of orders.

    The Department will communicate the content of emergency orders 
issued by the Secretary to the parties subject to the order. The 
Department will also rely on existing coordinating bodies, such as the 
Electricity Subsector Coordinating Council and the Electricity 
Information Sharing and Analysis Center, in addition to any other form 
or forms of communication most expedient under the circumstances, to 
communicate the content of emergency orders issued by

[[Page 88143]]

the Secretary. To the extent practicable under the circumstances, 
efforts will be made to declassify information to ensure maximum 
distribution.


Sec.  205.385   Clarification or reconsideration.

    Any request for clarification or reconsideration of an emergency 
order issued under section 215A(b) of the Federal Power Act must be 
submitted in writing to the Secretary, and will be posted on the DOE 
Web site consistent with CEII criteria. The Secretary may, in his sole 
discretion, order a stay of the emergency order for which such 
clarification or rehearing is sought. The Secretary may grant or deny 
the request for clarification or reconsideration, or may abrogate or 
modify the order, in whole or in part, with or without further 
proceedings, as soon as practicable.


Sec.  205.386  Temporary access to classified information.

    To the extent practicable, and consistent with obligations to 
protect classified information, the Secretary may provide temporary 
access to classified information, related to a Grid Security Emergency 
for which emergency measures are issued, to key personnel of any entity 
subject to such emergency measures. The purpose of this access is to 
enable optimum communication between the entity and the Secretary and 
other appropriate Federal agencies regarding the Grid Security 
Emergency.


Sec.  205.387  Termination of an emergency order.

    (a) An order for emergency measures shall expire no later than 15 
days after its issuance. The Secretary may reissue an order for 
emergency measures for subsequent periods, not to exceed 15 days for 
each such period, provided that the President, for each such period, 
issues and provides to the Secretary a written directive or 
determination that the Grid Security Emergency for which the Secretary 
intends to reissue an emergency order continues to exist or that the 
emergency measures continue to be required.
    (b) The Secretary may rescind an emergency order after finding that 
the Grid Security Emergency for which that order was issued has ended 
and that protective or mitigation measures required by the order have 
been sufficiently taken.
    (c) An entity or entities subject to an emergency order under this 
rule may, at any time, request termination of the emergency order by 
demonstrating, in a petition to the Secretary, that the emergency no 
longer exists and that protective or mitigation measures required by 
the order have been sufficiently taken.


Sec.  205.388  Tracking compliance.

    Beginning at the time the Secretary issues an emergency order, the 
Department may require the ordered party to provide a detailed account 
of actions taken to comply with the terms of the order.


Sec.  205.389  Enforcement.

    In accordance with Part III of the Federal Power Act, the Secretary 
may take or seek enforcement action against ordered parties who fail to 
comply with the terms of an order issued under section 215A(b) of that 
Act.


Sec.  205.390  Rehearing and Judicial Review.

    The procedures of Part III of the Federal Power Act apply to 
motions for rehearing of orders issued under section 215A(b) of that 
Act filed for the purpose of preserving appellate rights.


Sec.  205.391  Cost recovery.

    A party seeking recovery of costs associated with compliance with 
an order issued under section 215A(b) of the Federal Power Act must 
petition the appropriate State regulatory agency, the United States 
Court of Federal Claims, or the Commission for relief.


Sec.  205.392  Liability exemptions.

    To the extent any action or omission taken by an entity that is 
necessary to comply with an order for emergency measures issued by 
authority of section 215A(b) of the Federal Power Act and pursuant to 
this Part, including any action or omission taken to voluntarily comply 
with such order, results in noncompliance with, or causes such entity 
not to comply with any rule, order, regulation, or provision of or 
under that Act, including any reliability standard approved by the 
Commission pursuant to section 215 of that Act, such action or omission 
shall not be considered a violation of such rule, order, regulation, or 
provision. Further, an action or omission by an owner, operator, or 
user of Critical Electric Infrastructure or of Defense Critical 
Electric Infrastructure to comply with an order for emergency measures 
issued under section 215A(b) of the Federal Power Act shall be treated 
as an action or omission taken to comply with an order issued under 
section 202(c) of that Act for purposes of such section. These 
liability exemptions shall not apply to an entity that, in the course 
of complying with an order for emergency measures issued under section 
215A(b) of the Federal Power Act by taking an action or omission for 
which the entity would otherwise be liable, takes such action or 
omission in a grossly negligent manner.

[FR Doc. 2016-28974 Filed 12-6-16; 8:45 am]
 BILLING CODE 6450-01-P