[Federal Register Volume 82, Number 248 (Thursday, December 28, 2017)]
[Proposed Rules]
[Pages 61499-61505]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-28083]


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Proposed Rules
                                                Federal Register
________________________________________________________________________

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. 82, No. 248 / Thursday, December 28, 2017 / 
Proposed Rules

[[Page 61499]]



DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Part 40

[Docket Nos. RM18-2-000 and AD17-9-000]


Cyber Security Incident Reporting Reliability Standards

AGENCY: Federal Energy Regulatory Commission, DOE.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Federal Energy Regulatory Commission (Commission) proposes 
to direct the North American Electric Reliability Corporation (NERC), 
the Commission-certified Electric Reliability Organization, to develop 
and submit modifications to the NERC Reliability Standards to improve 
mandatory reporting of Cyber Security Incidents, including incidents 
that might facilitate subsequent efforts to harm the reliable operation 
of the bulk electric system.

DATES: Comments are due February 26, 2018.

ADDRESSES: Comments, identified by docket number, may be filed in the 
following ways:
     Electronic Filing through http://www.ferc.gov. Documents 
created electronically using word processing software should be filed 
in native applications or print-to-PDF format and not in a scanned 
format.
     Mail/Hand Delivery: Those unable to file electronically 
may mail or hand-deliver comments to: Federal Energy Regulatory 
Commission, Secretary of the Commission, 888 First Street NE, 
Washington, DC 20426.
    Instructions: For detailed instructions on submitting comments and 
additional information on the rulemaking process, see the Comment 
Procedures Section of this document.

FOR FURTHER INFORMATION CONTACT: 
Margaret Scott (Technical Information), Office of Electric Reliability, 
Federal Energy Regulatory Commission, 888 First Street NE, Washington, 
DC 20426, (202) 502-6704, margaret.scott@ferc.gov.
Kevin Ryan (Legal Information), Office of the General Counsel, Federal 
Energy Regulatory Commission, 888 First Street NE, Washington, DC 
20426, (202) 502-6840, kevin.ryan@ferc.gov.

SUPPLEMENTARY INFORMATION: 
    1. The Foundation for Resilient Societies filed a petition asking 
the Commission to require additional measures for malware detection, 
mitigation, removal and reporting. We decline to propose additional 
Reliability Standard measures at this time for malware detection, 
mitigation and removal, based on the scope of existing Reliability 
Standards, Commission-directed improvements already being developed and 
other ongoing efforts. However, we propose to direct broader reporting 
requirements. Currently, incidents must be reported only if they have 
``compromised or disrupted one or more reliability tasks,'' and we 
propose to require reporting of certain incidents even before they have 
caused such harm or if they did not themselves cause any harm.
    2. Specifically, pursuant to section 215(d)(5) of the Federal Power 
Act (FPA),\1\ the Commission proposes to direct the North American 
Electric Reliability Corporation (NERC), the Commission-certified 
Electric Reliability Organization (ERO), to develop and submit 
modifications to the Critical Infrastructure Protection (CIP) 
Reliability Standards to improve the reporting of Cyber Security 
Incidents, including incidents that might facilitate subsequent efforts 
to harm the reliable operation of the bulk electric system. The 
proposed development of modified mandatory reporting requirements is 
intended to improve awareness of existing and future cyber security 
threats and potential vulnerabilities. We propose to continue having 
the reports go to the Electricity Information Sharing and Analysis 
Center (E-ISAC) instead of the Commission, but we propose to require 
that reports also be sent to the Industrial Control Systems Cyber 
Emergency Response Team (ICS-CERT) and that NERC file an annual, 
public, and anonymized summary of the reports.
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    \1\ 16 U.S.C. 824o(d)(5).
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    3. The current reporting threshold for Cyber Security Incidents, as 
set forth in Reliability Standard CIP-008-5 (Cyber Security--Incident 
Reporting and Response Planning) together with the definition of 
Reportable Cyber Security Incident, may understate the true scope of 
cyber-related threats facing the Bulk-Power System. The reporting of 
cyber-related incidents, in particular the lack of any reported 
incidents in 2015 and 2016, suggests a gap in the current mandatory 
reporting requirements. This reporting gap may result in a lack of 
timely awareness for responsible entities subject to compliance with 
the CIP Reliability Standards, NERC, and the Commission. As discussed 
below, NERC's 2017 State of Reliability report echoed this concern in 
stating that the ``mandatory reporting process does not create an 
accurate picture of cyber security risk . . .'' \2\
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    \2\ NERC, 2017 State of Reliability Report at 4 (June 2017), 
http://www.nerc.com/pa/RAPA/PA/Performance%20Analysis%20DL/SOR_2017_MASTER_20170613.pdf.
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    4. To address this gap, pursuant to section 215(d)(5) of the FPA, 
the Commission proposes to direct NERC to develop modifications to the 
CIP Reliability Standards to include the mandatory reporting of Cyber 
Security Incidents that compromise, or attempt to compromise, a 
responsible entity's Electronic Security Perimeter (ESP) or associated 
Electronic Access Control or Monitoring Systems (EACMS).\3\ Such 
modifications will enhance awareness for NERC, industry, the 
Commission, other federal and state entities, and interested 
stakeholders regarding existing or developing cyber security threats. 
In addition, we propose to direct NERC to modify the CIP Reliability 
Standards to specify the required information in Cyber Security 
Incident reports to improve the quality of reporting and allow for ease 
of comparison by ensuring that each report includes specified fields of 
information. Finally, we propose to direct NERC to

[[Page 61500]]

modify the CIP Reliability Standards to establish a deadline for filing 
a report once a compromise or disruption to reliable bulk electric 
system operation, or an attempted compromise or disruption, is 
identified by a responsible entity.
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    \3\ The NERC Glossary of Terms Used in NERC Reliability 
Standards (October 6, 2017) (NERC Glossary) defines ``ESP'' as 
``[t]he logical border surrounding a network to which BES Cyber 
Systems are connected using a routable protocol.'' The NERC Glossary 
defines ``EACMS'' as ``Cyber Assets that perform electronic access 
control or electronic access monitoring of the Electronic Security 
Perimeter(s) or BES Cyber Systems. This includes Intermediate 
Systems.''
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I. Background

A. Section 215 and Mandatory Reliability Standards

    5. Section 215 of the FPA requires a Commission-certified 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.\4\ Pursuant to section 215 of the FPA, the Commission 
established a process to select and certify an ERO,\5\ and subsequently 
certified NERC.\6\
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    \4\ 16 U.S.C. 824o(e).
    \5\ 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 (cross-referenced at 114 FERC ] 61,104), 
order on reh'g, Order No. 672-A, FERC Stats. & Regs. ] 31,212 
(cross-referenced at 114 FERC ] 61,328) (2006).
    \6\ 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 (DC Cir. 2009).
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B. Foundation for Resilient Societies' Petition

    6. On January 13, 2017, the Foundation for Resilient Societies 
(Resilient Societies) filed a petition requesting that the Commission 
initiate a rulemaking to require an enhanced Reliability Standard for 
malware detection, reporting, mitigation and removal from the Bulk-
Power System.\7\ Resilient Societies stated that the Bulk-Power System 
is increasingly at risk from malware. Resilient Societies also 
maintained that current mandatory and voluntary reporting methods 
underreport the actual annual rate of occurrence of cybersecurity 
incidents in the U.S. electric grid.
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    \7\ Resilient Societies' filings and responsive comments are 
available on the Commission's eLibrary document retrieval system in 
Docket No. AD17-9-000.
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    7. In support of its petition, Resilient Societies asserted that 
evidence in the public domain shows that electric grids in the U.S. and 
critical infrastructure that depends upon reliable power are 
increasingly at risk from malware, resulting in a threat of widespread, 
long-term blackouts. Resilient Societies asserted that Bulk-Power 
System assets are interconnected with the public internet, which could 
allow foreign adversaries to implant malware in electric utility 
computer systems. Resilient Societies stated that malware can infect 
high, medium, and low impact BES Cyber Systems,\8\ and, once inserted, 
can be a pathway for cyber-attackers.\9\ Resilient Societies further 
stated that an infected low impact BES Cyber System can serve as an 
entry point from where an adversary can attack medium and high impact 
BES Cyber Systems. Resilient Societies asserted that a ``simultaneous 
cyberattack on many low impact assets may cause greater impact than an 
attack on a single high impact asset.'' \10\
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    \8\ Reliability Standard CIP-002-5.1a (Cyber Security System 
Categorization) provides a ``tiered'' approach to cybersecurity 
requirements, based on classifications of high, medium and low 
impact BES Cyber Systems.
    \9\ BES Cyber System is defined by NERC as ``[o]ne or more BES 
Cyber Assets logically grouped by a responsible entity to perform 
one or more reliability tasks for a functional entity.'' NERC 
Glossary. The acronym BES refers to the bulk electric system.
    \10\ Resilient Societies Petition at 2-3.
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    8. Resilient Societies alleged that it has found gaps relating to 
malware protection requirements in the current Commission-approved CIP 
Reliability Standards. In particular, Resilient Societies maintained 
that the ESP concept, used in the CIP Reliability Standards, suffers 
from several fundamental flaws. Specifically, Resilient Societies 
asserted that: (1) Cyber attacks on systems outside the ESP can take 
down systems within it; (2) passwords and other user credentials 
associated with BES Cyber Systems may be stored on systems outside the 
ESP; and (3) Electronic Access Points that control access to systems 
within the ESP may be breached. Resilient Societies also raised a 
concern that there is currently no required reporting of malware 
infections, both inside and outside the ESP.\11\
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    \11\ Id. at 10-12.
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    9. Based on its analysis, Resilient Societies offered several 
suggestions for the essential components of an enhanced malware 
Reliability Standard and what the technical elements of an enhanced 
malware standard might include. The essentials identified by Resilient 
Societies include: (1) Malware detection; (2) malware reporting 
(regardless of whether reliability tasks of a functional entity have 
been compromised or disrupted); (3) malware mitigation; and (4) 
mandatory malware removal. Resilient Societies also provided a list of 
possible technical elements for an enhanced malware Reliability 
Standard.\12\
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    \12\ Id. at 14-15.
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    10. In support of its request for an enhanced Reliability Standard 
for malware reporting, Resilient Societies asserted that current 
mandatory and voluntary cybersecurity incident reporting methodologies 
are not representative of the actual annual rate of occurrence of 
cybersecurity incidents in the U.S. electric grid. Resilient Societies 
cited NERC's State of Reliability Reports for 2014 and 2015, noting 
that NERC identified only three Reportable Cyber Security Incidents in 
2014 and zero Reportable Cyber Security Incidents in 2015. In addition, 
Resilient Societies observed that according to Department of Energy 
(DOE) Disturbance Reports (OE-417), there were three reported 
cybersecurity incidents in 2014, zero in 2015, and two in 2016. 
Finally, Resilient Societies stated that in contrast to the number of 
cybersecurity incidents reported through NERC and DOE Form OE-417, ICS-
CERT responded to 79 cybersecurity incidents in 2014 and 46 
cybersecurity incidents in 2015.\13\
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    \13\ Id. at 8-9.
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    11. On February 17, 2017, Resilient Societies filed supplemental 
comments that included an appendix containing a February 10, 2017 
Department of Homeland Security (DHS) Report, ``Enhanced Analysis of 
GRIZZLY STEPPE Activity,'' which, Resilient Societies alleged, 
``provides independent validation of the need for a mandatory standard 
to detect, report, mitigate, and remove identified malware from the 
Bulk Power System.'' \14\
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    \14\ Resilient Societies Supplemental Comments at 4.
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Comments on Petition
    12. The Commission received five sets of comments in response to 
Resilient Societies' petition. Among the commenters, NERC, Trade 
Associations \15\ and International Transmission Company (ITC) stated 
that the Commission should not act on Resilient Societies' petition, 
claiming that the issues raised therein are adequately addressed in the 
currently-effective CIP Reliability Standards or are, in response to 
outstanding Commission directives, the subject of ongoing standards 
projects. The other two commenters, Kaspersky Lab, and David Bardin, 
supported Resilient Societies' petition to better address the 
detection, reporting and mitigation of malware.
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    \15\ American Public Power Association, Edison Electric 
Institute, Electricity Consumers Resource Council, Electric Power 
Supply Association, Large Public Power Council, National Rural 
Electric Cooperative Association, and Transmission Access Policy 
Study Group.
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    13. NERC opposed Resilient Societies' petition because, NERC 
asserted,

[[Page 61501]]

existing CIP Reliability Standards, current standard development 
activity and other cyber security efforts adequately address the 
threats, vulnerabilities and risks associated with malware detailed in 
the Resilient Societies' petition. Accordingly, NERC concluded that a 
new Reliability Standard to address malware detection, reporting, 
mitigation and removal is not necessary at this time.\16\ With regard 
to the Commission-approved CIP Reliability Standards, NERC stated that 
several existing requirements require responsible entities to implement 
protections to address the threat of malware.\17\ NERC identified seven 
currently-effective CIP requirements that it alleged address the risks 
associated with malware.\18\
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    \16\ NERC Comments at 1-2.
    \17\ Id. at 2.
    \18\ Id. at 5-6.
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    14. With regard to current standard development activity, NERC 
observed that modifications to the CIP Reliability Standards being 
developed in response to Commission Order Nos. 822 and 829 will further 
mitigate the risks posed by malware.\19\ Specifically, NERC stated that 
the modifications under development in response to Order No. 822 
address malware protections for assets containing low impact BES Cyber 
Systems and protections for communication links and sensitive data 
communicated between bulk electric system control centers. In 
particular, NERC identified proposed Reliability Standard CIP-003-7 and 
stated that the proposed Reliability Standard clarifies electronic 
access controls and mitigates the introduction of malicious code from 
transient devices for assets containing low impact BES Cyber 
Systems.\20\
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    \19\ Revised Critical Infrastructure Protection Reliability 
Standards, Order No. 822, 154 FERC ] 61,037, reh'g denied, Order No. 
822-A, 156 FERC ] 61,052 (2016); Revised Critical Infrastructure 
Protection Reliability Standards, Order No. 829, 156 FERC ] 61,050 
(2016).
    \20\ NERC Comments at 8. On October 19, 2017, the Commission 
issued a notice of proposed rulemaking proposing to approve proposed 
Reliability Standard CIP-003-7. See Revised Critical Infrastructure 
Protection Reliability Standard CIP-003-7--Cyber Security--Security 
Management Controls, Notice of Proposed Rulemaking, 82 FR 49,541 
(October 26, 2017), 161 FERC ] 61,047 (2017).
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    15. NERC stated that proposed Reliability Standard CIP-013-1 (Cyber 
Security--Supply Chain Risk Management), developed in response to Order 
No. 829, requires responsible entities to, among other things, 
implement at least one process to verify the integrity and authenticity 
of certain software and firmware and implement at least one process to 
control vendor remote access to high and medium impact BES Cyber 
Systems.\21\ For low impact BES Cyber Systems, NERC explained that the 
proposed Reliability Standard requires responsible entities to have at 
least one cyber security policy that addresses integrity and 
authenticity of software and hardware and to adopt controls for vendor-
initiated remote access. NERC states that this proposed Reliability 
Standard shows NERC and industry ``are taking significant steps in 
addressing the risks posed by malware campaigns targeting supply chain 
vendors.'' \22\
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    \21\ On September 26, 2017, NERC submitted proposed Reliability 
Standards CIP-013-1, CIP-005-6 and CIP-010-3 for Commission 
approval. NERC's filing is available on the Commission's eLibrary 
document retrieval system in Docket No. RM17-13-000 and on the NERC 
website, www.nerc.com.
    \22\ NERC Comments at 9.
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    16. With regard to other ongoing cyber security efforts, NERC noted 
the activities of the E-ISAC. Specifically, NERC stated that, through 
the E-ISAC, NERC has ``fostered an information sharing culture that 
promotes a proactive approach towards identification of malware, 
pooling of resources to combat malware, and sharing of best practices 
based on lessons learned, among other things.'' \23\ In addition, NERC 
maintained that it facilitates industry information sharing in two 
other ways: NERC Alerts and the activities of the Critical 
Infrastructure Protection Committee (CIPC). NERC concluded that these 
activities promote necessary information sharing of cyber security 
threats and help foster the type of incident reporting requested in 
Resilient Societies' petition.\24\
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    \23\ Id.
    \24\ Id. at 12-13.
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    17. While acknowledging the validity of concerns regarding the 
threat malware poses to the bulk electric system, ITC asserted that 
Resilient Societies' conclusion that existing CIP Reliability Standards 
contain gaps with respect to malware defense is inaccurate. ITC stated 
that, contrary to Resilient Societies' conclusions, the lack of 
specific malware-related controls in the CIP Reliability Standards 
``reflects a critically important objectives-based approach which the 
Commission has intentionally adopted.'' \25\ ITC explained that the 
existing CIP Reliability Standards ``collectively mandate robust and 
effective malware security measures, through both direct security 
measures that thwart malware attacks, and through complementary 
measures, such as personnel training against social engineering 
attacks.'' \26\ ITC concluded that the specific controls in Resilient 
Societies' requests that the Commission mandate are duplicative, 
unnecessary and/or overly and unreasonably burdensome, and would make 
the bulk electric system less reliable and more vulnerable compared to 
the existing protections.\27\
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    \25\ ITC Comments at 2-3.
    \26\ Id. at 3.
    \27\ Id. at 2-3.
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    18. Trade Associations stated that the risks raised in Resilient 
Societies' petition are addressed under the current CIP Reliability 
Standards and in ongoing Commission dockets and standards development 
efforts. Trade Associations observed that Reliability Standard CIP-007-
6, Requirement R3 is the primary existing Reliability Standard 
addressing the risks posed by malware. Trade Associations explained 
that the Reliability Standard requires responsible entities to deter, 
detect, or prevent malicious code; mitigate the threat of detected 
malicious code; and have a process to update signatures or patterns 
associated with malicious code. Trade Associations asserted that other 
relevant requirements are spread throughout the currently-effective CIP 
Reliability Standards, including Reliability Standards CIP-005-5, 
Requirement R1 (Electronic Security Perimeter); CIP-005-5, Requirement 
R2 (Protections for Interactive Remote Access); CIP-007-6, Requirement 
R1 (limiting and protecting accessible ports); and CIP-007-6, 
Requirement R2 (patch management required to detect software 
vulnerabilities).\28\
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    \28\ Trade Associations Comments at 5-6.
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    19. In addition, Trade Associations noted recently-approved new CIP 
Reliability Standards addressing transient devices associated with high 
and medium impact BES Cyber Systems, as well as the Commission's 
directive in Order No. 822 for the development of similar protections 
for low impact BES Cyber Systems. Trade Associations also identified 
the Commission's directives in Order No. 829 relating to cybersecurity 
risks posed by vendors as open initiatives that will help protect 
against the introduction of malware into BES Cyber Systems.\29\
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    \29\ Id. at 7.
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    20. Kaspersky Lab supported the development of an enhanced 
Reliability Standard for malware detection, reporting, mitigation and 
removal. Kaspersky Lab stated that the current CIP Reliability 
Standards ``do not sufficiently address malware protection as a 
critical component in securing BES Cyber Assets and Systems.'' \30\ 
Kaspersky Lab offered a list of reasons why it believes that electric 
utilities face

[[Page 61502]]

an increased risk of being infiltrated by malware, highlighting, among 
other issues, that information concerning exploitable vulnerabilities 
is increasingly becoming public. Kaspersky Lab noted that it recognizes 
that the CIP Reliability Standards ``strive to address the complex 
cyber and physical security needs of the [bulk electric system]'' and 
that cybersecurity standards ``must be flexible and not overly 
prescriptive to address threats as they evolve,'' but it states that 
the current CIP Reliability Standards only address malware protection 
``in a cursory fashion.'' \31\
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    \30\ Kaspersky Lab Comments at 1.
    \31\ Id. at 2.
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    21. David Bardin supported the goals in Resilient Societies' 
petition and suggested that the Commission initiate one or more 
proceedings to facilitate a conversation on malware protections. In 
support of his position, Bardin presented a list of questions that 
could be raised in such discussions.\32\
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    \32\ Bardin Comments at 1.
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C. NERC 2017 State of Reliability Report

    22. In June 2017, NERC published the 2017 NERC State of Reliability 
Report which, among other things, indicates that there were no 
Reportable Cyber Security Incidents in 2016. The report also lists 
``key findings'' regarding reliability performance observed over the 
previous year and recommendations for improvements. Key Finding 4 of 
the report addresses the reporting of Cyber Security Incidents. In 
particular, NERC states that the current ``mandatory reporting process 
does not create an accurate picture of cyber security risk since most 
of the cyber threats detected by the electricity industry manifest 
themselves in . . . email, websites, smart phone applications . . . 
rather than the control system environment where impacts could cause 
loss of load and result in a mandatory report.'' \33\ Based on that 
finding, the report includes a recommendation that NERC and industry 
should ``redefine reportable incidents to be more granular and include 
zero-consequence incidents that might be precursors to something more 
serious.'' \34\
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    \33\ 2017 NERC State of Reliability Report at 4.
    \34\ Id.
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II. Discussion

    23. Pursuant to section 215(d)(5) of the FPA, the Commission 
proposes to direct NERC to develop modifications to the CIP Reliability 
Standards to address the Commission's concerns regarding mandatory 
reporting requirements. Based on our review of the comments received in 
response to Resilient Societies' petition, however, we conclude that 
the current Commission-approved CIP Reliability Standards, ongoing NERC 
efforts to address open Commission directives, and other industry 
efforts have addressed or will address the malware detection and 
mitigation issues raised by Resilient Societies. For example, 
provisions of currently effective Reliability Standards, including CIP-
005-5 and CIP-007-6, address malware detection and mitigation. Ongoing 
efforts described by NERC and other commenters, such as the development 
of a supply chain risk management standard, should also address malware 
concerns. Thus, the Commission declines to act on this aspect of the 
petition.\35\
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    \35\ While the Commission proposes that NERC develop 
modifications to the NERC Reliability Standards under section 
215(d)(5) of the FPA in Docket No. RM18-2-000, we exercise our 
discretion to terminate the proceeding in Docket No. AD17-9-000.
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    24. We believe that the current reporting threshold for Cyber 
Security Incidents, as set forth in the current definition of 
Reportable Cyber Security Incident, may not reflect the true scope of 
cyber-related threats facing the Bulk-Power System, consistent with 
NERC's view. Accordingly, pursuant to section 215(d)(5) of the FPA, the 
Commission proposes to direct that NERC develop modifications to the 
CIP Reliability Standards to improve the mandatory reporting of Cyber 
Security Incidents, including incidents that might facilitate 
subsequent efforts to harm the reliable operation of the bulk electric 
system, to improve awareness of existing and future cyber security 
threats and potential vulnerabilities.
    25. Below, we discuss the following elements of the proposed 
directive: (A) Cyber Security Incident reporting threshold; (B) 
information in Cyber Security Incident reports; and (C) timing of Cyber 
Security Incident reports.

A. Cyber Security Incident Reporting Threshold

    26. Cyber-related event reporting is currently addressed in 
Reliability Standard CIP-008-5, Requirement R1, Part 1.2, which 
requires that each responsible entity shall document one or more Cyber 
Security Incident Plan(s) with one or more processes to determine if an 
identified Cyber Security Incident is a Reportable Cyber Security 
Incident. Where a cyber-related event is determined to qualify as a 
Reportable Cyber Security Incident, responsible entities are required 
to notify the E-ISAC with initial notification to be made within one 
hour from the determination of a Reportable Cyber Security 
Incident.\36\
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    \36\ See Reliability Standard CIP-008-5 (Cyber Security--
Incident Reporting and Response Planning), Requirement R1, Part 1.2. 
This requirement pertains to high impact BES Cyber Systems and 
medium impact BES Cyber Systems.
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    27. A Cyber Security Incident is defined in the NERC Glossary as:

    A malicious act or suspicious event that:
     Compromises, or was an attempt to compromise, the 
Electronic Security Perimeter or Physical Security Perimeter or,
     Disrupts, or was an attempt to disrupt, the operation of a 
BES Cyber System.

This is similar, but not identical, to the definition of a 
cybersecurity incident in FPA section 215, which is ``a malicious act 
or suspicious event that disrupts, or was an attempt to disrupt, the 
operation of those programmable electronic devices and communication 
networks including hardware, software and data that are essential to 
the reliable operation of the bulk power system.'' \37\ A Reportable 
Cyber Security Incident, however, is defined more narrowly in the NERC 
Glossary as ``[a] Cyber Security Incident that has compromised or 
disrupted one or more reliability tasks of a functional entity.'' 
Therefore, in order for a cyber-related event to be considered 
reportable under the existing CIP Reliability Standards, it must 
compromise or disrupt a core activity (e.g., a reliability task) of a 
responsible entity that is intended to maintain bulk electric system 
reliability.\38\ Under these definitions, unsuccessful attempts to 
compromise or disrupt a responsible entity's core activities are not 
subject to the current reporting requirements in Reliability Standard 
CIP-008-5.
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    \37\ 16 U.S.C. 824o(a)(8).
    \38\ The NERC Functional Model ``describes a set of Functions 
that are performed to ensure the reliability of the Bulk Electric 
System. Each Function consists of a set of related reliability 
Tasks. The Model assigns each Function to a functional entity, that 
is, the entity that performs the function. The Model also describes 
the interrelationships between that functional entity and other 
functional entities (that perform other Functions).'' NERC, 
Reliability Functional Model: Function Definitions and Functional 
Entities, Version 5 at 7 (November 2009), http://www.nerc.com/pa/Stand/Functional%20Model%20Archive%201/Functional_Model_V5_Final_2009Dec1.pdf.
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    28. As discussed above, recent NERC State of Reliability Reports 
indicate that there were no Reportable Cyber Security Incidents in 2015 
and 2016. As noted by NERC, ``[w]hile there were no reportable cyber 
security incidents during 2016 and therefore none that caused a loss of 
load, this does not necessarily suggest that the risk of a cyber 
security incident

[[Page 61503]]

is low.'' \39\ In contrast, the 2016 annual summary of DOE's Electric 
Disturbance Reporting Form OE-417 contained four cybersecurity 
incidents reported in 2016: Two suspected cyber attacks and two actual 
cyber attacks.\40\ Moreover, ICS-CERT responded to fifty-nine 
cybersecurity incidents within the Energy Sector in 2016.\41\
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    \39\ 2017 NERC State of Reliability Report at 4.
    \40\ 2016 DOE Electric Disturbance Events (OE-417) Annual 
Summary Archives, https://www.oe.netl.doe.gov/OE417_annual_summary.aspx.
    \41\ ICS-CERT cybersecurity incident statistics for the Energy 
Sector combine statistics from the electric subsector and the oil 
and natural gas subsector. ICS-CERT does not break out the 
cybersecurity incidents that only impact the electric subsector. 
2016 ICS-CERT Year in Review, https://ics-cert.us-cert.gov/Year-Review-2016.
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    29. Based on this comparison, the current reporting threshold in 
Reliability Standard CIP-008-5 may not reflect the true scope and scale 
of cyber-related threats facing responsible entities. The disparity in 
the reporting of cyber-related incidents under existing reporting 
requirements, in particular the lack of any incidents reported to NERC 
in 2015 and 2016, suggests a gap in the current reporting requirements. 
We are concerned that this apparent reporting gap results in a lack of 
awareness for NERC, responsible entities, and the Commission. This 
concern is echoed in the 2017 NERC State of Reliability Report, which 
includes a recommendation that NERC and industry should ``redefine 
reportable incidents to be more granular and include zero-consequence 
incidents that might be precursors to something more serious.'' \42\ We 
agree with NERC's recommendation. The disparity highlights the need to 
improve the reporting obligation under the CIP Reliability Standards.
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    \42\ 2017 NERC State of Reliability Report at 4.
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    30. The Commission proposes to direct NERC to address the gap in 
cyber-related incident reporting. Specifically, we propose to direct 
NERC to modify the CIP Reliability Standards to include the mandatory 
reporting of Cyber Security Incidents that compromise, or attempt to 
compromise, a responsible entity's ESP or associated EACMS. Enhanced 
mandatory reporting of cyber-related incidents will provide better 
awareness to NERC, industry and the Commission regarding existing or 
developing cyber security threats.
    31. Reporting of attempts to compromise, instead of only successful 
compromises, is consistent with current monitoring requirements. For 
example, Reliability Standard CIP-007-6, Requirement R4.1, mandates 
logging of detected successful login attempts, detected failed access 
attempts, and failed login attempts. Also, the Guidelines and Technical 
Basis for this requirement state that events should be logged even if 
access attempts were blocked or otherwise unsuccessful.\43\
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    \43\ See Reliability Standard CIP-007-6 (Cyber Security--Systems 
Security Management), Requirement R4, Part 1.
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    32. Similarly, DHS defines a ``cyber incident'' as ``attempts 
(either failed or successful) to gain unauthorized access to a system 
or its data . . . .'' \44\ The E-ISAC defines a ``cyber incident'' as 
including unauthorized access through the electronic perimeter as well 
as ``a detected effort . . . without obvious success.'' \45\ Also, ICS-
CERT defines a ``cyber incident'' as an ``occurrence that actually or 
potentially results in adverse consequences . . . .'' \46\
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    \44\ See United States Computer Emergency Readiness Team (US-
CERT) Incident Definition: https://www.us-cert.gov/government-users/compliance-and-reporting/incident-definition.
    \45\ See E-ISAC Incident Reporting Fact Sheet document: http://www.nerc.com/files/Incident-Reporting.pdf.
    \46\ See ICS-CERT Published ``Common Cyber Security Language'' 
document: https://ics-cert.us-cert.gov/About-Industrial-Control-Systems-Cyber-Emergency-Response-Team.
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    33. We propose to establish a compromise or an attempt to 
compromise a responsible entity's ESP or associated EACMS, due to their 
close association with ESPs, as the boundary point for a reportable 
Cyber Security Incident. An ESP is defined in the NERC Glossary as the 
``logical border surrounding a network to which BES Cyber Systems are 
connected using a routable protocol.'' The purpose of an ESP is to 
manage electronic access to BES Cyber Systems to support the protection 
of the BES Cyber Systems against compromise that could lead to 
misoperation or instability in the bulk electric system.\47\ EACMS are 
defined in the NERC Glossary as ``Cyber Assets that perform electronic 
access control or electronic access monitoring of the Electronic 
Security Perimeter(s) or BES Cyber Systems. This includes Intermediate 
Systems.'' More specifically, EACMS include, for example, firewalls, 
authentication servers, security event monitoring systems, intrusion 
detection systems and alerting systems.\48\ Therefore, EACMS control 
electronic access into the ESP and play a significant role in the 
protection of high and medium impact BES Cyber Systems.\49\ Once an 
EACMS is compromised, an attacker could more easily enter the ESP and 
effectively control the BES Cyber System or Protected Cyber Asset.
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    \47\ See Reliability Standard CIP-005-5 (Cyber Security--
Electronic Security Perimeter(s)).
    \48\ See Reliability Standard CIP-002-5.1 (Cyber Security--BES 
Cyber System Categorization), Background at 6; Reliability Standard 
CIP-007-6 (Cyber Security--System Security Management), Background 
at 4.
    \49\ See Reliability Standard CIP-002-5.1a (Cyber Security--BES 
Cyber System Categorization), Background at 5-6 (``BES Cyber Systems 
have associated Cyber Assets, which, if compromised, pose a threat 
to the BES Cyber System by virtue of: (a) Their location within the 
Electronic Security Perimeter (Protected Cyber Assets), or (b) the 
security control function they perform (Electronic Access Control or 
Monitoring Systems and Physical Access Control Systems'').
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    34. Since an ESP is intended to protect BES Cyber Systems and EACMS 
are intended to control electronic access into an ESP, we believe it is 
reasonable to establish the compromise of, or attempt to compromise, an 
ESP or its associated EACMS as the minimum reporting threshold.
    35. In sum, pursuant to section 215(d)(5) of the FPA, we propose to 
direct NERC to develop modifications to the CIP Reliability Standards 
described above to improve the reporting of Cyber Security Incidents, 
including incidents that did not cause any harm but could facilitate 
subsequent efforts to harm the reliable operation of the bulk electric 
system. The Commission seeks comment on this proposal.
    36. In addition, the Commission seeks comment on whether to exclude 
EACMS from any Commission directive and, instead, establish the 
compromise, or attempt to compromise, an ESP as the minimum reporting 
threshold. The Commission also seeks comment on potential alternatives 
to modifying the mandatory reporting requirements in the NERC 
Reliability Standards. Specifically, we seek comment on whether a 
request for data or information pursuant to Section 1600 of the NERC 
Rules of Procedure would effectively address the reporting gap and 
current lack of awareness of cyber-related incidents, discussed above, 
among NERC, responsible entities and the Commission, and satisfy the 
goals of the proposed directive.

B. Content of Cyber Security Incident Reports

    37. Currently-effective Reliability Standard CIP-008-5, Requirement 
R1, Part 1.2 requires that a responsible entity provide an initial 
notification of a Reportable Cyber Security Incident to the E-ISAC 
within one hour of the determination that a Cyber Security Incident is 
reportable, unless prohibited by law. The initial notification may be 
made by phone call, email, or through

[[Page 61504]]

a Web-based notice.\50\ Reliability Standard CIP-008-5 does not specify 
the content of a report.
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    \50\ See Reliability Standard CIP-008-5 (Cyber Security--
Incident Reporting and Response Planning), Guidelines and Technical 
Basis at 19.
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    38. The Commission proposes to direct that NERC modify the CIP 
Reliability Standards to specify the required content in a Cyber 
Security Incident report. We propose that the minimum set of attributes 
to be reported should include: (1) The functional impact, when 
identifiable, that the Cyber Security Incident achieved or attempted to 
achieve; (2) the attack vector that was used to achieve or attempted to 
achieve the Cyber Security Incident; and (3) the level of intrusion 
that was achieved or attempted as a result of the Cyber Security 
Incident. Knowledge of these attributes regarding a specific Cyber 
Security Incident will improve awareness of cyber threats to bulk 
electric system reliability. These attributes are the same as 
attributes already used by DHS for its multi-sector reporting and 
summarized by DHS in an annual report.\51\ Specifying the required 
content should improve the quality of reporting by ensuring that basic 
information is provided and allows for ease of comparison across 
reports by ensuring that each report includes specified fields of 
information.
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    \51\ 2016 ICS-CERT Year in Review, https://ics-cert.us-cert.gov/Year-Review-2016.
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    39. Functional impact is a measure of the actual, ongoing impact to 
the organization, the affected BES Cyber System(s), and the responsible 
entity's ability to protect and/or operate the affected BES Cyber 
System(s) to ensure reliable bulk electric system operations. In many 
cases, such as scans and probes by attackers or a successfully defended 
attack, there is little or no impact on the responsible entity as a 
result of the incident. The attack vector is the method used by the 
attacker to exploit a vulnerability, such as a phishing attack for user 
credentials or a virus designed to exploit a known vulnerability. The 
level of intrusion reflects the extent of the penetration into a 
responsible entity's ESP, EACMS as applicable, or BES Cyber Systems 
within the ESP, that was achieved as a result of the Cyber Security 
Incident.
    40. The Commission seeks comment on this proposal and, more 
generally, the appropriate content for Cyber Security Incident 
reporting to improve awareness of existing and future cyber security 
threats and potential vulnerabilities.

C. Timing of Cyber Security Incident Reports

    41. In addition to addressing the specific content for Cyber 
Security Incident reports, the Commission proposes that NERC establish 
requirements outlining deadlines for filing a report once a compromise 
or disruption to reliable bulk electric system operation, or an 
attempted compromise or disruption, is identified by a responsible 
entity. While currently-effective Reliability Standard CIP-008-5, 
Requirement R1, Part 1.2 requires that a responsible entity provide an 
initial notification of a Reportable Cyber Security Incident to the E-
ISAC within one hour of the determination that a Cyber Security 
Incident is reportable, unless prohibited by law, the Reliability 
Standard ``does not require a specific timeframe for completing the 
full report.'' \52\ The reporting timeline should reflect the actual or 
potential threat to reliability, with more serious incidents reported 
in a more timely fashion. A reporting timeline that takes into 
consideration the severity of a Cyber Security Incident should minimize 
potential burdens on responsible entities. The intent of this directive 
is to provide NERC with the information necessary to maintain awareness 
regarding cyber threats to bulk electric system reliability. We propose 
that the reports submitted under the enhanced mandatory reporting 
requirements would be provided to E-ISAC, similar to the current 
reporting scheme, as well as ICS-CERT. The detailed incident reporting 
would not be submitted to the Commission.
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    \52\ See Reliability Standard CIP-008-5 (Cyber Security--
Incident Reporting and Response Planning), Guidelines and Technical 
Basis at 19.
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    42. The Commission and others will also benefit from enhanced Cyber 
Security Incident reporting as we continue to evaluate the 
effectiveness of the CIP Reliability Standards. Currently, NERC 
identifies the number of Reportable Cyber Security Incidents in its 
annual State of Reliability report. In that regard, however, we propose 
to direct NERC to file publicly an annual report reflecting the Cyber 
Security Incidents reported to NERC during the previous year. 
Specifically, we propose to direct NERC to file annually an anonymized 
report providing an aggregated summary of the reported information. We 
believe that the ICS-CERT annual report, which includes pie charts 
reflecting the energy sector's cybersecurity incidents by level of 
intrusion, threat vector and functional impact, would be a reasonable 
model for what NERC reports to the Commission.\53\
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    \53\ ICS-CERT, https://ics-cert.us-cert.gov/sites/default/files/FactSheets/ICS-CERT_FactSheet_IR_Pie_Chart_FY2016_S508C.pdf.
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    43. The Commission seeks comment on the appropriate timing for 
Cyber Security Incident reporting to better ensure timely sharing of 
information and thereby enhance situational awareness. In addition, the 
Commission seeks comment on the proposal to direct NERC to file an 
annual report with the Commission.

III. Information Collection Statement

    44. The Paperwork Reduction Act (PRA) requires each federal agency 
to seek and obtain approval from the Office of Management and Budget 
(OMB) before undertaking a collection of information directed to ten or 
more persons, or contained in a rule of general applicability. OMB's 
implementing regulations require approval of certain information 
collection requirements imposed by agency rules.\54\ Upon approval of a 
collection(s) of information, OMB will 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 these 
collections of information unless the collections of information 
display a valid OMB control number.
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    \54\ See 5 CFR 1320.
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    45. The Commission is submitting these proposed reporting 
requirements to OMB for its review and approval under section 3507(d) 
of the PRA. Comments are solicited on the Commission's need for the 
information proposed to be reported, whether the information will have 
practical utility, ways to enhance the quality, utility, and clarity of 
the information to be collected, and any suggested methods for 
minimizing the respondent's burden, including the use of automated 
information techniques.
    46. The Public Reporting Burden and cost related to the proposed 
rule in Docket No. RM18-2-000 are covered by, and already included in, 
the existing FERC-725, Certification of Electric Reliability 
Organization; Procedures for Electric Reliability Standards (OMB 
Control No. 1902-0225). FERC-725 includes the ERO's overall 
responsibility for developing Reliability Standards, such as any 
Reliability Standards that relate to Cyber Security Incident reporting.
    47. Internal review: The Commission has reviewed the proposed 
changes and has determined that the changes are

[[Page 61505]]

necessary to ensure the reliability and integrity of the Nation's Bulk-
Power System.
    48. Interested persons may obtain information on the reporting 
requirements by contacting: Federal Energy Regulatory Commission, 888 
First Street NE, Washington, DC 20426 [Attention: Ellen Brown, Office 
of the Executive Director, email: DataClearance@ferc.gov, Phone: (202) 
502-8663, fax: (202) 273-0873]. Comments on the requirements of this 
rule may also be sent to the Office of Information and Regulatory 
Affairs, Office of Management and Budget, Washington, DC 20503 
[Attention: Desk Officer for the Federal Energy Regulatory Commission]. 
For security reasons, comments should be sent by email to OMB at 
oira_submission@omb.eop.gov. Please refer to OMB Control No. 1902-0225 
and FERC-725 in your submission.

IV. Environmental Analysis

    49. 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.\55\ 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.\56\ The actions proposed 
herein fall within this categorical exclusion in the Commission's 
regulations.
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    \55\ Regulations Implementing the National Environmental Policy 
Act of 1969, Order No. 486, FERC Stats. & Regs. ] 30,783 (1987) 
(cross-referenced at 41 FERC ] 61,284).
    \56\ 18 CFR 380.4(a)(2)(ii).
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V. Regulatory Flexibility Act Analysis

    50. The Regulatory Flexibility Act of 1980 (RFA) \57\ generally 
requires a description and analysis of proposed rules that will have 
significant economic impact on a substantial number of small entities.
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    \57\ 5 U.S.C. 601-612.
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    51. By only proposing to direct NERC, the Commission-certified ERO, 
to develop modified Reliability Standards for Cyber Security Incident 
reporting, this Notice of Proposed Rulemaking will not have a 
significant or substantial impact on entities other than NERC. 
Therefore, the Commission certifies that this Notice of Proposed 
Rulemaking will not have a significant economic impact on a substantial 
number of small entities.
    52. Any Reliability Standards proposed by NERC in compliance with 
this rulemaking will be considered by the Commission in future 
proceedings. As part of any future proceedings, the Commission will 
make determinations pertaining to the Regulatory Flexibility Act based 
on the content of the Reliability Standards proposed by NERC.

VI. Comment Procedures

    53. The Commission invites interested persons to submit comments on 
the matters and issues proposed in this notice to be adopted, including 
any related matters or alternative proposals that commenters may wish 
to discuss. Comments are due February 26, 2018. Comments must refer to 
Docket No. RM18-2-000, and must include the commenter's name, the 
organization they represent, if applicable, and address.
    54. The Commission encourages comments to be filed electronically 
via the eFiling link on the Commission's website at http://www.ferc.gov. The Commission accepts most standard word processing 
formats. Documents created electronically using word processing 
software should be filed in native applications or print-to-PDF format 
and not in a scanned format. Commenters filing electronically do not 
need to make a paper filing.
    55. Commenters that are not able to file comments electronically 
must send an original of their comments to: Federal Energy Regulatory 
Commission, Secretary of the Commission, 888 First Street NE, 
Washington, DC 20426.
    56. All comments will be placed in the Commission's public files 
and may be viewed, printed, or downloaded remotely as described in the 
Document Availability section below. Commenters on this proposal are 
not required to serve copies of their comments on other commenters.

VII. Document Availability

    57. 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.
    58. 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.
    59. User assistance is available for eLibrary and the Commission's 
website during normal business hours from the Commission's Online 
Support at 202-502-6652 (toll free at 1-866-208-3676) or email at 
ferconlinesupport@ferc.gov, or the Public Reference Room at (202) 502-
8371, TTY (202) 502-8659. Email the Public Reference Room at 
public.referenceroom@ferc.gov.

    By direction of the Commission.

    Issued: December 21, 2017.
Nathaniel J. Davis, Sr.,
Deputy Secretary.
[FR Doc. 2017-28083 Filed 12-27-17; 8:45 am]
 BILLING CODE 6717-01-P