1174 Federal Register / Vol. 83, No. 7 / Wednesday, January 10, 2018 / Rules and Regulations 

B. Regulatory Impact Analysis: E.O. 

12866 

The MSPB has determined that this is 

not a significant regulatory action under 

E.O. 12866. Therefore, no regulatory 

impact analysis is required. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA) 

requires an agency to prepare a 

regulatory flexibility analysis for rules 

unless the agency certifies that the rule 

will not have a significant economic 

impact on a substantial number of small 

entities. The RFA applies only to rules 

for which an agency is required to first 

publish a proposed rule. See 5 U.S.C. 

603(a) and 604(a). As discussed above, 

the 2015 Act does not require agencies 

to first publish a proposed rule when 

adjusting CMPs within their 

jurisdiction. Thus, the RFA does not 

apply to this final rule. 

D. Small Business Regulatory 

Enforcement Fairness Act of 1996 

This rule is not a major rule under the 

Small Business Regulatory Enforcement 

Fairness Act (5 U.S.C. 804(2)). This rule: 

(a) Does not have an annual effect on 

the economy of $100 million or more; 

(b) Will not cause a major increase in 

costs or prices for consumers, 

individual industries, Federal, State, or 

local government agencies, or 

geographic regions; and 

(c) Does not have significant adverse 

effects on competition, employment, 

investment, productivity, innovation, or 

the ability of United States-based 

enterprises to compete with foreignbased enterprises. 

E. Unfunded Mandates Reform Act of 

1995 

This rule does not involve a Federal 

mandate that may result in the 

expenditure by State, local, and tribal 

governments, in the aggregate, or by the 

private sector, of $100 million or more 

and that such rulemaking will not 

significantly or uniquely affect small 

governments. Therefore, no actions were 

deemed necessary under the provisions 

of the Unfunded Mandates Reform Act 

of 1995 (2 U.S.C. 1532). 

F. E.O. 12630, Government Actions and 

Interference With Constitutionally 

Protected Property Rights 

This rule does not have takings 

implications. 

G. E.O. 13132, Federalism 

This rule does not have Federalism 

implications. The rule does not have 

substantial direct effects 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. 

H. E.O. 12988, Civil Justice Reform 

The MSPB has reviewed this rule in 

light of E.O. 12988 to eliminate 

ambiguity, minimize litigation, establish 

clear legal standards, and reduce 

burden. 

I. E.O. 13175, Consultation and 

Coordination With Indian Tribal 

Governments 

In accordance with E.O. 13175, the 

MSPB has evaluated this rule and 

determined that it has no tribal 

implications. 

J. Paperwork Reduction Act 

This document does not contain 

information collection requirements 

subject to the Paperwork Reduction Act 

of 1995, Public Law 104–13 (44 U.S.C. 

Chapter 35). 

List of Subjects in 5 CFR Part 1201 

Administrative practice and 

procedure, Civil rights, Government 

employees. 

For the reasons set forth above, 5 CFR 

part 1201 is amended as follows: 

PART 1201—PRACTICES AND 

PROCEDURES 

■ 1. The authority citation for part 1201 

continues to read as follows: 

Authority: 5 U.S.C. 1204, 1305, and 7701, 

and 38 U.S.C. 4331, unless otherwise noted. 

§ 1201.126 [Amended] 

■ 2. Section 1201.126 is amended in 

paragraph (a) by removing ‘‘$1,045’’ and 

adding in its place ‘‘$1,066.’’ 

Jennifer Everling, 

Acting Clerk of the Board. 

[FR Doc. 2018–00290 Filed 1–9–18; 8:45 am] 

BILLING CODE 7400–01–P 

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: Final rule. 

SUMMARY: The U.S. Department of 

Energy (‘‘DOE’’) is issuing a final rule 

that establishes procedural regulations 

concerning the Secretary of Energy’s 

issuance of an emergency order under 

the Federal Power Act. The statute 

authorizes the Secretary of Energy to 

order emergency measures, following a 

Presidential declaration of a grid 

security emergency, to protect or restore 

the reliability of critical electric 

infrastructure or defense critical electric 

infrastructure during the emergency. A 

grid security emergency could result 

from a physical attack, a cyber-attack 

using electronic communication, an 

electromagnetic pulse (EMP), or a 

geomagnetic storm event, damaging 

certain electricity infrastructure assets 

and impairing the reliability of the 

Nation’s power grid. The procedures 

established by this final rule will ensure 

the expeditious issuance of emergency 

orders under the Federal Power Act. 

DATES: These procedures are effective as 

of January 10, 2018. 

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 oeregs@

hq.doe.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

The Fixing America’s Surface 

Transportation Act (FAST Act or the 

Act), Public Law 114–94, contains 

several provisions designed to protect 

and enhance the Nation’s electric power 

delivery infrastructure. Section 61003 

adds a new section 215A, titled ‘‘Critical 

Electric Infrastructure Security,’’ to Part 

II of the Federal Power Act (FPA), 

codified at 16 U.S.C. 824o–1. New 

section 215A(a) defines, among other 

terms, a ‘‘grid security emergency,’’ and 

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, 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. 


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Federal Register / Vol. 83, No. 7 / Wednesday, January 10, 2018 / Rules and Regulations 1175 

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 FPA supplements the Secretary’s 

existing authority, under section 202(c) 

of the FPA, 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) of the 

FPA requiring the ‘‘temporary 

connections of facilities and such 

generation, delivery, interchange, or 

transmission of electric energy’’ to best 

meet the emergency and serve the 

public interest. 

The new section 215A(b) 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 published a 

notice of proposed rulemaking in the 

Federal Register on December 7, 2016 

(81 FR 88136) to establish procedures to 

implement section 61003 of the FAST 

Act. After consideration of the 

comments received, as discussed in 

Section II of this preamble, the 

Department issues this final rule to 

establish the procedures it would expect 

to follow in the event of such an 

emergency. These procedures are added 

to the existing subpart W in 10 CFR part 

205. 

The final rule establishes a consistent 

yet flexible set of procedures by which 

the Secretary will engage potentially 

impacted parties in the issuance of 

emergency orders under new section 

215A(b) of the FPA. 

II. Discussion of Comments 

Comments were submitted by entities 

representing components of the 

electricity subsector, State governments, 

the general public, and other interested 

parties. Commenters included the 

American Public Power Association, 

Berkshire Hathaway Energy, the Edison 

Electric Institute, the EIS Council, Grid 

Assurance, the Independent System 

Operator Regional Transmission 

Operator Council, the Large Public 

Power Council, the National Association 

of State Energy Officials, the Nuclear 

Energy Institute, the North American 

Electric Reliability Corporation, the 

National Rural Electricity Cooperative 

Association, the Pennsylvania Public 

Utility Commission, and Transmission 

Access Policy Study Group. The 

comments expressed support for the 

proposed rule, sought additional clarity, 

highlighted issues and concerns, or 

offered suggestions for modifications to 

the proposed rule. DOE has considered 

all of the comments in developing the 

final rule, and has made changes to the 

proposal as a result of the comments, as 

described below. 

Many commenters expressed the need 

to integrate issues pertaining to grid 

security emergencies into the ongoing 

partnership between DOE and the 

electric subsector to enhance emergency 

preparedness. The electricity industry 

has implemented, and continues to 

develop, extensive capabilities and 

procedures, such as cyber mutual aid 

networks, to mitigate impacts from 

catastrophic events that can cause a grid 

security emergency. The Department is 

committed to working with all 

necessary parties through existing 

mechanisms such as the Electricity 

Subsector Coordinating Council (ESCC) 

and the Electricity Information Sharing 

and Analysis Center (E–ISAC) to align 

emergency measures with ongoing 

preparedness activities. These efforts, 

including training and exercises, will 

seek to ensure that the electricity 

subsector and other relevant 

stakeholders are provided necessary 

information, where appropriate, to 

inform planning and preparedness for 

potential emergency orders for a grid 

security emergency, including 

identifying methods to ensure the 

prompt and secure communication of 

emergency orders. Sustained 

coordination with these ongoing 

preparedness activities will enhance 

crisis management activities and will 

help ensure effective integration of 

capabilities and resources during grid 

security emergencies. DOE intends to 

conduct additional outreach to the 

electricity subsector subsequent to 

issuance of this final rule. DOE’s plans 

include continuing to organize and 

participate in emergency exercises and 

discussions at appropriate subsector 

forums, such as those focused on 

security. The intent is to help subsector 

entities understand their involvement in 

developing a potential grid security 

emergency order. 

Several commenters asked for 

revision or clarification of defined 

terms, including the term ‘‘emergency 

measures’’ and the enumeration of 

agencies involved in coordinating 

responses to grid security emergency 

orders. The final rule defines 

‘‘emergency measures’’ and ‘‘electric 

reliability organization’’ in response to 

commenters’ concerns, and §§ 205.383 

and 205.384 capture the range of entities 

potentially responsible for consultation 

and response. Another comment asked 

the Department to interpret the bulkpower system according to the FERCapproved definition of ‘‘bulk electric 

system.’’ The Department declines to 

adopt an interpretation of ‘‘bulk-power 

system’’ different from the statutory 

definition in the Federal Power Act. 

In defining the procedures for 

consultation prior to the issuance of an 

emergency order, listed in § 205.383 of 

the final rule, commenters sought 

assurance that the Department will seek 

input from external parties. Many 

commenters, particularly those 

representing the electricity industry, 

expressed the necessity of aligning 

consultation procedures with existing 

emergency management protocols in the 

energy sector. This included 

highlighting the important role of the 

senior DOE leadership involvement 

with the ESCC as a coordinating body 

that could help maximize the 

effectiveness of any potential emergency 

order. Commenters also sought 

assurance that appropriate Federal and 

State entities would be engaged prior to 

the issuance of the order, to ensure 

emergency orders benefit from the 

expertise of electric grid owners and 

operators, as well as to maintain 

compliance with existing regulatory 

requirements. 

In response to these concerns, the 

Department has clarified in the final 

rule its intention to use existing 

protocols and mechanisms to consult 

and engage with all necessary parties, 

with the text at § 205.383 expanded to 

include State agencies, the Nuclear 

Regulatory Commission, and relevant 

trade and industry associations, prior to 

the issuance of any emergency order. 

The procedures established by this final 

rule also continue to ensure the 

Secretary retains the flexibility to act in 

accordance with the conditions 

presented by the grid security 

emergency. 

The importance of utilizing existing 

mechanisms and protocols for 

communicating emergency orders to 

impacted parties under the procedures 

detailed in § 205.384 was also expressed 

by commenters. Commenters stressed 

the existence of detailed frameworks for 

crisis communication within the 

electricity subsector, and sought 

additional clarity on the means by 


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1176 Federal Register / Vol. 83, No. 7 / Wednesday, January 10, 2018 / Rules and Regulations 

which the Department intends to 

communicate grid security emergency 

orders. The Department is supportive of 

these suggestions, and has adapted 

§ 205.384 of the final rule to more 

clearly express DOE’s intention to align 

any orders with existing frameworks, 

such as Emergency Support Function 

(ESF) #12 and the National Response 

Framework. The Department also 

intends to work with the electricity 

subsector to identify options for most 

effectively communicating emergency 

orders under a range of potential 

scenarios. 

Concerns were raised about 

procedures for governing interactions 

between the Department and potentially 

impacted parties after the issuance of an 

emergency order covered under 

§§ 205.385 to 205.389 of the final rule. 

These sections in the final rule are 

intended to supplement existing 

authorities, including federal electric 

reliability standards, to ensure the 

expeditious issuance of emergency 

orders by the Secretary under the FPA. 

To ensure consistency between the 

procedures for the utilization of various 

authorities held by the Department 

under the FPA, DOE will consider 

comments submitted in response to the 

proposed rule in any review of 

procedures governing the issuance of 

emergency orders under section 202(c) 

of the FPA. 

A number of changes were made to 

§§ 205.385 to 205.389 of the final rule to 

address comments specific to the 

process for issuing emergency orders in 

response to a grid security emergency. 

Language was added to § 205.385 of the 

final rule to encourage any entity that 

believes that an issued emergency order 

lacks necessary clarity for 

implementation, or conflicts with the 

technically feasible operations of the 

electric grid or existing regulatory 

requirements, to seek immediate 

clarification from DOE. Section 205.386 

of the final rule was expanded to 

provide additional clarity on the 

treatment of sensitive information, 

particularly critical electric 

infrastructure information (CEII), which 

will be addressed in accordance with 

DOE Freedom of Information Act (FOIA) 

procedural regulations. Revisions to 

§ 205.387 of the final rule provide the 

Secretary with the flexibility to align the 

requirements for tracking compliance 

with an emergency order to the 

conditions presented by the grid 

security emergency. In response to 

comments concerning DOE’s 

enforcement authorities, § 205.388 was 

revised to clarify that DOE may pursue 

all legally authorized enforcement 

authorities. DOE does not resolve 

specific questions about its enforcement 

authorities in this procedural rule. 

Procedures for rehearing and judicial 

review under § 205.389 of the final rule 

were revised to more closely align with 

§ 205.385 of the final rule—specifically, 

to allow a filing entity to request 

clarification or reconsideration, as well 

as rehearing, in a single filing if so 

designated. In addition, § 205.391 of the 

proposed rule regarding cost recovery 

has been omitted to avoid confusion 

with the statutory text, which is 

sufficiently detailed. Section 205.386 of 

the proposed rule, concerning 

termination of an order, was moved to 

§ 205.391 of the final rule to follow a 

more chronological order. 

One commenter suggested that the 

final rule set out methods of 

communication to ensure that, in the 

event of a maliciously motivated grid 

security emergency, evidence of 

criminal activity is not accidentally or 

deliberately destroyed. In accordance 

with Presidential Policy Directive 41 

(United States Cyber Incident 

Coordination), DOE will defer to the 

Department of Justice regarding 

communications to ensure preservation 

of evidence of criminal activity. 

Comments were also received that 

supported restricting the Department’s 

ability to issue an emergency order 

responding to a grid security emergency, 

such that the Department could not use 

the full statutory authority granted by 

the FAST Act to respond to such 

emergencies. For example, a commenter 

sought clarification on exactly how a 

request for an emergency order should 

be carried out, and another commenter 

urged vetting by the ESCC before 

issuance of an order. Given the need for 

flexibility to respond to any grid 

security emergency that may arise, DOE 

did not revise the proposal in light of 

those comments. 

III. Summary of Final Rule 

A. Definitions 

The final rule defines key terms in 

§ 205.380. Further explanation for the 

defined terms is provided in the 

paragraphs that follow. 

‘‘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. 

‘‘Electric Reliability Organization’’ 

refers to the organization, certified by 

the Federal Energy Regulatory 

Commission (FERC) under section 

215(c) of the FPA, which establishes 

and enforces reliability standards with 

FERC oversight. As of this rulemaking, 

the FERC’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 sectorwide, 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 one of the organizations with 

which the Secretary will consult, to the 

extent practicable, in issuing an 

emergency order. 

‘‘Electricity subsector’’ means both 

commercial and industrial actors who 

generate and deliver electric power, 

along with the facilities those actors use 

to generate and deliver electric power. 

‘‘Electromagnetic pulse’’ means 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 ‘‘Emergency & Incident 

Management Council’’ (EIMC) refers to 

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 a grid security 

emergency to prepare recommendations 

to the Secretary. 

‘‘Geomagnetic storm’’ means a 

temporary disturbance of the Earth’s 


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Federal Register / Vol. 83, No. 7 / Wednesday, January 10, 2018 / Rules and Regulations 1177 

1 DOE notes that the regulatory text of § 205.383 

discusses consultation with agencies supporting 

ESF #12. For clarification, ESF #12 outlines the 

Department of Energy’s responsibilities 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 systems; and 

providing information about the status of energy 

reestablishment efforts. 

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 FERC oversight. 

B. Summary of Final Rule 

The final rule establishes procedures 

by which the Secretary intends to issue 

emergency orders in response to a grid 

security emergency. 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.’’ The declaration of a grid 

security emergency does not preclude 

electric utilities from taking timesensitive action to secure the safety, 

security, or reliability of the electric grid 

prior to the issuance of an emergency 

order. 

Responses to grid disruptions will 

need to be tailored to the particular 

circumstances of any event, and this 

final rule will assist the Department in 

exercising its authority to respond as 

necessary to mitigate the effects of 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 in 

this final rule 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 this final rule, the Department 

details procedures for outreach; 

consultation; communication of orders; 

clarification or reconsideration of 

orders; temporary access to classified 

and sensitive information; termination 

of orders; tracking compliance with an 

order; enforcement; rehearing and 

judicial review; and liability exemption 

pertinent to the issuance of orders 

resulting from a grid security 

emergency. These procedures are 

intended to establish a common 

framework for engagement with all 

potentially impacted entities, while 

providing the Department with the 

maximum flexibility necessary to best 

respond to the unique conditions 

presented by any action that may 

constitute a grid security emergency. 

As described in § 205.381 of the final 

rule, emergency orders issued under 

section 215A(b) of the FPA may apply 

to the pertinent Electric Reliability 

Organization (NERC, as of this 

rulemaking), regional entity or entities, 

or ‘‘any owner, user, or operator of 

critical electric infrastructure or of 

defense critical electric infrastructure 

within the United States.’’ 

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 

grid security emergency, however, the 

Secretary maintains 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 impacted by the grid 

security emergency through existing 

alert mechanisms, such as the NERC 

alert system and ESCC communication 

coordination processes. 

Section 205.382 of the final rule 

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 recommendations, 

the Secretary will issue the emergency 

order. 

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 nongovernmental 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 

organizations and private industry will 

likely be impacted by grid security 

emergencies, and can offer important 

situational awareness and expertise to 

assist the Department in identifying 

mitigation or protection measures. The 

Department also recognizes the 

importance of aligning consultation 

efforts with the existing ESF #12 

structure, Presidential Policy Directive 

41, emergency management practices 

under the National Response 

Framework, and existing entities for 

coordination between government and 

industry, such as the ESCC and E–ISAC. 

Section 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 final 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 government 

entities,1 electric reliability 

organization, and owners, users, or 

operators of critical electric 

infrastructure or of defense critical 

electric infrastructure—including 

private-sector entities—impacted by the 

grid security emergency. Historically, 

the Department has collaborated with 

other Federal agencies in an energy 

emergency to obtain waivers or special 

permits to facilitate expedited 

restoration. The Department also 

intends to work with other Federal 

agencies during grid security 

emergencies to obtain waivers or special 

permits necessary to comply with the 

Secretary’s order. 

After the Secretary issues an 

emergency order, the Department will 

communicate the emergency order’s 

content to the entities subject to the 

emergency order, as noted in § 205.384 

of the final rule. The Department will 

also align communication with the 

existing ESF #12 structure and 

emergency management procedures 

under the National Response 

Framework, and enlist the ESCC and E– 


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1178 Federal Register / Vol. 83, No. 7 / Wednesday, January 10, 2018 / Rules and Regulations 

ISAC to communicate the emergency 

order’s content to those affected, when 

appropriate. 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 such emergencies, 

and the Department will work to ensure 

that information is shared that will help 

it to respond most effectively. For that 

reason, according to § 205.384 of the 

final rule, and consistent with 

obligations to protect classified 

information and the procedures 

established in § 205.386 of the final rule, 

the Secretary may declassify 

information eligible for that change in 

status to ensure maximum distribution 

of information critical to the emergency 

response. CEII will be handled in 

accordance with DOE FOIA regulations 

at 10 CFR part 1004. 

This final 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 emergency 

order, the order itself would set out the 

requirements and procedures for 

impacted entities to seek clarification or 

reconsideration of that particular order. 

Section 205.385 of the final rule 

provides general requirements for such 

requests. In particular, this section of 

the final rule provides that anyone 

subject to a particular order may submit 

a request for clarification or 

reconsideration in writing to the 

Secretary, and encourages this in cases 

where the ordered entity believes the 

emergency order lacks necessary clarity 

for implementation, or conflicts with 

the technically feasible operations of the 

electric grid or existing regulatory 

requirements. Such requests would be 

posted on the Department’s website 

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. 

Section 205.386 of the final rule 

provides that, 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. 

As described in § 205.387 of the final 

rule, the Department also plans to 

determine compliance with grid 

security emergency orders. At the time 

the Department issues an emergency 

order, or shortly after such issuance, the 

Department may require the ordered 

party to provide a detailed account of 

compliance actions. 

As noted in § 205.388 of the final rule, 

the Department may take enforcement 

action for failure to comply with orders 

issued under section 215A. For appeal 

purposes, as noted in § 205.389 of the 

final rule, the FPA includes the 

requirements for a rehearing request and 

the process for an appeal of a decision. 

Finally, the FAST Act shields parties 

affected by emergency orders from 

liability for what would otherwise be 

violations of the FPA or FERC-approved 

reliability standards, except in cases of 

gross negligence. New section 215A(f) of 

the FPA 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 FPA, as 

well as any FERC-approved reliability 

standard, ‘‘shall not be considered a 

violation’’ of that legal requirement. The 

same subsection of the Federal Power 

Act incorporates the liability protection 

for emergency orders issued under 

section 202(c) of the FPA. 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 

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. 

Section 205.390 of the final rule 

describes all of these protections. 

Section 205.391 of the final rule 

describes termination of 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 grid security emergency has 

not ended or that the emergency 

measures already ordered are still 

required. If warranted, the Secretary 

may also terminate an emergency order 

before the 15 days have elapsed. The 

entity or entities subject to the 

emergency order may also request that 

the Secretary terminate an emergency 

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. 

IV. Regulatory Review 

A. Executive Order 12866 

This final rule has been determined to 

be a significant regulatory action under 

Executive Order 12866, ‘‘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 final 

rule is covered under Categorical 

Exclusions found in the DOE’s National 

Environmental Policy Act regulations at 

appendix A to subpart D, 10 CFR part 

1021, specifically A1, A6, A9, A11, A12, 

and A13. 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 

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 13272, ‘‘Proper 

Consideration of Small Entities in 

Agency Rulemaking,’’ 67 FR 53461 

(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 website: 

http://www.energy.gov/gc/downloads/ 

executive-order-13272-considerationsmall-entities-agency-rulemaking. 

DOE has reviewed this final rule 

under the provisions of the Regulatory 

Flexibility Act and the procedures and 

policies published on February 19, 

2003. This final rule sets forth 

procedures that DOE expects to use to 

issue an emergency order in the event 

of a declared grid security emergency. 

The procedures govern DOE activities in 

the issuance of an emergency order and 

therefore impact DOE, a Federal agency, 

rather than any small entities. 

DOE further expects that these 

emergency orders would be issued 

rarely. In addition, the FAST Act 

authorizes DOE to issue emergency 

orders only to specific entities—namely, 

the pertinent Electric Reliability 

Organization (NERC, as of this 

rulemaking), regional entity or entities, 


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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 and/or restore 

infrastructure, DOE has determined that 

it is likely to consult with large 

businesses. 

An entity subject to an emergency 

order may request clarification or 

rehearing of an emergency order, or the 

termination of an emergency order. DOE 

does not expect that these provisions, 

which would help an entity to 

understand an emergency order or, in 

the case of a termination granted by the 

Secretary, end the applicability of an 

emergency order, to impose a significant 

impact on any entity. DOE may also 

consult with any of these entities to 

understand a grid security emergency 

and to obtain recommendations to 

address such 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 

grid security 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 emergency orders 

would be consulted. In the event that an 

emergency order is issued to address a 

grid security emergency, because the 

contents of any such order would be 

highly dependent upon the nature of the 

particular grid security emergency, DOE 

again emphasizes that the emergency 

order itself, rather than these 

procedures, would specify the 

requirements necessary to address that 

grid security emergency. 

DOE’s certification of no significant 

impact on a substantial number of small 

entities and its supporting statement of 

factual basis were provided to the Chief 

Counsel for Advocacy of the Small 

Business Administration subsequent to 

issuance of the proposed procedures, 

pursuant to 5 U.S.C. 605(b). DOE made 

only minor changes to the proposal that 

did not affect the initial regulatory 

flexibility analysis prepared for the 

proposed rule. DOE did not receive 

comments on the certification, and any 

comments on the economic impact of 

the rule were addressed elsewhere in 

the preamble. DOE made only minor 

changes to the proposal that did not 

affect the certification and factual basis 

prepared for the proposed rule. 

On the basis of the foregoing, DOE 

certifies that this final 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. 

D. Paperwork Reduction Act 

This final 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 final rule will establish the 

procedures DOE expects to use issue an 

emergency order in the event of a 

declared grid security emergency. In the 

event that an emergency 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 final 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 final 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 13132 

Executive Order 13132, ‘‘Federalism,’’ 

64 FR 43255 (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 

final 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 final rule 

would establish the procedures DOE 

expects to use issue an emergency order 

in the event of a declared grid security 

emergency. In the event that an 

emergency order is issued to address a 

grid security emergency, the order itself, 

rather than these procedures, would 

specify the requirements necessary to 

address that grid security emergency. 

No further action is required by 

Executive Order 13132. 

H. Executive Order 12988 

With respect to the review of existing 

regulations and the promulgation of 

new regulations, section 3(a) of 

Executive Order 12988, ‘‘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 


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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 12988 

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 12988 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 final 

rule meets the relevant standards of 

Executive Order 12988. 

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 

62446 (Oct. 7, 2002). DOE has reviewed 

this final rule under the OMB and DOE 

guidelines and has concluded that it is 

consistent with applicable policies in 

those guidelines. 

J. Executive Order 13211 

Executive Order 13211, ‘‘Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use,’’ 66 FR 28355 (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 12866, 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 final 

rule would establish the procedures 

DOE expects to use issue an emergency 

order in the event of a declared grid 

security emergency. In the event that an 

emergency order is issued to address a 

grid security emergency, the order itself, 

rather than these procedures, would 

specify the requirements necessary to 

address that grid security emergency. In 

addition, the statute requires that the 

emergency order must ‘‘protect or 

restore’’ critical electric infrastructure or 

defense critical electric infrastructure. 

Therefore, the final rule is not a 

significant energy action. Accordingly, 

DOE has not prepared a Statement of 

Energy Effects. 

K. Approval by the Office of the 

Secretary 

The Secretary of Energy has approved 

publication of this final rule. 

L. Congressional Notification 

As required by 5 U.S.C. 801, DOE will 

report to Congress on the promulgation 

of this rule prior to its effective date. 

The report will state that it has been 

determined that the rule is not a ‘‘major 

rule’’ as defined by 5 U.S.C. 804(2). 

List of Subjects in 10 CFR Part 205 

Administrative practice and 

procedure, Energy, and Recordkeeping 

and reporting requirements. 

Issued in Washington, DC, on January 4, 

2018. 

Mark W. Menezes, 

Under Secretary of Energy. 

For the reasons stated in the 

preamble, DOE amends 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 

■ 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. 

■ 2. Subpart W is amended by revising 

the heading, adding an undesignated 

center heading after § 205.379, and 

adding §§ 205.80 through 205.391 to 

read as follows: 

Subpart W—Electric Power System 

Permits and Reports; Applications; 

Administrative Procedures and 

Sanctions; Grid Security Emergency 

Orders 

Sec. 

* * * * * 

Internal Procedures for Issuance of a Grid 

Security Emergency Order 

205.380 Definitions. 

205.381 Applicability of emergency order. 

205.382 Issuing an emergency order. 

205.383 Consultation. 

205.384 Communication of orders. 

205.385 Clarification or reconsideration. 

205.386 Temporary access to classified and 

sensitive information. 

205.387 Tracking compliance. 

205.388 Enforcement. 

205.389 Rehearing and judicial review. 

205.390 Liability exemptions. 

205.391 Termination of an emergency 

order. 

§ 205.380 Definitions. 

As used in this subpart: 

Bulk-power system means the same as 

the definition of such term in paragraph 

(1) of section 215(a) of the Federal 

Power Act. 

Critical electric infrastructure means 

the same as the definition of such term 

in paragraph (2) of section 215A(a) of 

the Federal Power Act. 

Defense critical electric infrastructure 

means the same as the definition of such 

term in paragraph (4) of section 215A(a) 

of the Federal Power Act. 

Department means the United States 

Department of Energy. 

Electric Reliability Organization 

means the same as the definition of such 

term in paragraph (2) of section 215(a) 

of the Federal Power Act. 

Electricity Information Sharing and 

Analysis Center (E–ISAC) 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, serves as the primary security 

communications channel for the 


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electricity subsector and enhances the 

subsector’s ability to prepare for and 

respond to cyber and physical threats, 

vulnerabilities, and incidents. 

Electricity subsector means both 

commercial and industrial actors who 

generate and deliver electric power. 

Electricity Subsector Coordinating 

Council (ESCC) means the organization 

that aims to foster and facilitate the 

coordination of sector-wide, policyrelated activities and initiatives 

designed to improve the reliability and 

resilience of the electricity subsector, 

including physical and cyber security 

infrastructure. 

Electromagnetic pulse means the 

same as the definition of such term in 

paragraph (5) of section 215A(a) of the 

Federal Power Act. 

Emergency & Incident Management 

Council (EIMC) 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. 

Emergency measures means measures 

necessary in the judgment of the 

Secretary to protect or restore the 

reliability of critical electric 

infrastructure or of defense critical 

electric infrastructure during a grid 

security emergency as defined in section 

215A(a) of the Federal Power Act. 

Emergency order means an order for 

emergency measures under section 

215A(b) of the Federal Power Act. 

Geomagnetic storm means a 

temporary disturbance of the Earth’s 

magnetic field resulting from solar 

activity. 

Grid security emergency means the 

same as the definition of such term in 

paragraph (7) of section 215A(a) of the 

Federal Power Act. A grid security 

emergency is ‘‘declared’’ once the 

President of the United States has 

issued and provided to the Secretary a 

written directive or determination 

identifying the emergency. 

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. 

§ 205.381 Applicability of emergency 

orders. 

An order for emergency measures 

under section 215A(b) of the Federal 

Power Act (emergency order) may apply 

to the Electric Reliability Organization, 

a regional entity or entities, or any 

owner, user, or operator of critical 

electric infrastructure or of defense 

critical electric infrastructure within the 

United States. Emergency measures may 

be issued if deemed necessary in the 

judgment of the Secretary to protect or 

restore the reliability of critical electric 

infrastructure or of defense critical 

electric infrastructure during a 

presidentially-declared grid security 

emergency. 

§ 205.382 Issuing an emergency order. 

(a) The Secretary will use the 

procedures outlined in this section in 

issuing emergency orders, unless the 

Secretary determines that alternative 

procedures are more appropriate for the 

unique circumstances presented by the 

emergency. In all instances, the 

Secretary has final authority on the 

procedures to be used in issuing an 

emergency order. 

(b) Upon the Department’s receipt of 

the President’s written directive or 

determination identifying a grid security 

emergency, the Emergency & Incident 

Management Council (EIMC) will 

convene at least one emergency 

meeting. Resulting from this meeting, 

the EIMC’s responsibilities will include, 

but not be limited to: 

(1) Assigning consultation and 

situational awareness tasks; 

(2) Creating ad hoc task groups; 

(3) Assigning recommendation 

development tasks to the ad hoc task 

groups it has created; and 

(4) Presenting its recommendations to 

the Secretary as expeditiously as 

possible and practicable. 

(c) Following receipt of the EIMC’s 

recommendations, unless the Secretary 

has determined alternative procedures 

are appropriate, the Secretary will issue 

an emergency order as quickly as the 

Secretary determines that the situation 

requires. 

§ 205.383 Consultation. 

(a) To obtain information related to a 

particular grid security emergency and 

recommended emergency measures 

from those government entities, electric 

reliability organizations, and private 

sector companies, and their respective 

associations where applicable, affected 

by the emergency, the Department of 

Energy’s Office of Electricity Delivery 

and Energy Reliability will conduct 

consultation related to each emergency 

order. Before an emergency order is put 

into effect and, to the extent practicable 

in light of the nature of the grid security 

emergency and the urgency of the need 

for action, efforts will be made to 

consult with at least the following, as 

appropriate: 

(1) The Electricity Subsector 

Coordinating Council; 

(2) The Electricity Information 

Sharing and Analysis Center; 

(3) The Electric Reliability 

Organization; 

(4) Regional entities; and 

(5) Owners, users, or operators of 

critical electric infrastructure or of 

defense critical electric infrastructure 

within the United States; and 

(6) At least the following government 

entities: 

(i) Authorities in the government of 

Canada; 

(ii) Authorities in the government of 

Mexico; 

(iii) Appropriate Federal and State 

agencies including, but not limited to, 

those supporting Emergency Support 

Function No. 12; 

(iv) The Federal Energy Regulatory 

Commission; and 

(v) The Nuclear Regulatory 

Commission. 

(b) The Department recognizes the 

expertise of electric grid owners and 

operators and other consulted entities in 

seeking to ensure that emergency orders 

result in the safe and effective operation 

of the electric grid, align with additional 

priorities including evidence collection, 

and comply with existing regulatory 

requirements, where required. The 

Department will endeavor, to the extent 

practicable, to conduct consultation in 

alignment with the existing Emergency 

Support Function No. 12 structure and 

established emergency management 

processes under the National Response 

Framework. 

§ 205.384 Communication of orders. 

The Department will communicate 

the contents of an emergency order to 

the entities subject to the order, utilizing 

the most expedient form or forms of 

communication under the 

circumstances. The Department will 

attempt to conduct communication of 

emergency orders in alignment with the 

existing Emergency Support Function 

No. 12 structure and established 

emergency management procedures 

under the National Response 

Framework by relying on existing 

coordinating bodies, such as the ESCC 

and the E–ISAC, and, recognizing the 

existence of established crisis 

communication procedures, any other 

form or forms of communication most 

expedient under the particular 

circumstances. To the extent practicable 

under the particular circumstances, 

efforts will be made to declassify 

eligible information to ensure maximum 

distribution. 

§ 205.385 Clarification or reconsideration. 

(a) Any entity subject to an emergency 

order may request clarification or 


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1Public Law 114–74, 129 Stat. 599 (2015) 

(codified at 28 U.S.C. 2461 note). 

reconsideration of the emergency order. 

All such requests must be submitted in 

writing to the Secretary. The 

Department will post all such requests 

on the DOE website consistent with 10 

CFR part 1004. To the extent the 

ordered entity believes the grid security 

emergency order lacks necessary clarity 

for implementation, or conflicts with 

the technically feasible operations of the 

electric grid or existing regulatory 

requirements, the ordered entity should 

seek immediate clarification from the 

Department. 

(b) Upon receipt of a request for 

clarification or reconsideration, the 

Secretary may, in his or her sole 

discretion, order a stay of the emergency 

order for which such clarification or 

rehearing is sought. The Secretary will 

act as soon as practicable on each 

request, with or without further 

proceedings. Such responsive actions 

may include granting or denying the 

request or abrogating or modifying the 

order, in whole or in part. 

§ 205.386 Temporary access to classified 

and sensitive information. 

(a) To the extent practicable, and 

consistent with obligations to protect 

classified and sensitive information, the 

Secretary may provide temporary access 

to classified and sensitive information, 

at the level necessary in light of the 

conditions of the incident, related to a 

grid security emergency for which 

emergency measures are issued to key 

personnel of any entity subject to such 

emergency measures, to the extent the 

Secretary deems necessary under the 

circumstances. The purpose of this 

access, as defined under section 

215A(b)(7) of the Federal Power Act, is 

to enable optimum communication 

between the entity and the Secretary 

and other appropriate Federal agencies 

regarding the grid security emergency. 

(b) CEII will be shared, where deemed 

necessary by the Secretary, in 

accordance with 10 CFR part 1004. 

§ 205.387 Tracking compliance. 

Beginning at the time the Secretary 

issues an emergency order, the 

Department may, at the discretion of the 

Secretary, require the entity or entities 

subject to an emergency order to 

provide a detailed account of actions 

taken to comply with the terms of the 

emergency order. 

§ 205.388 Enforcement. 

In accordance with available 

enforcement authorities, the Secretary 

may take or seek enforcement action 

against any entity subject to an 

emergency order who fails to comply 

with the terms of that emergency order. 

§ 205.389 Rehearing and judicial review. 

The procedures of Part III of the 

Federal Power Act apply to motions for 

rehearing of an emergency order. A 

request for clarification or 

reconsideration filed under § 205.385 of 

this subpart, if the filling entity so 

designates, may serve as a request for 

rehearing pursuant to section 313(a) of 

the Federal Power Act. 

§ 205.390 Liability exemptions. 

(a) To the extent any action or 

omission taken by an entity that is 

necessary to comply with an emergency 

order issued pursuant to section 

215A(b)(1) of the Federal Power Act and 

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 the Federal Power Act, including 

any reliability standard approved by the 

Federal Energy Regulatory Commission 

pursuant to section 215 of the Federal 

Power Act, the Department will not 

consider such action or omission to be 

a violation of such rule, order, 

regulation, or provision. 

(b) The Department will treat an 

action or omission by an owner, 

operator, or user of critical electric 

infrastructure or of defense critical 

electric infrastructure to comply with an 

emergency order issued pursuant to 

section 215A(b)(1) of the Federal Power 

Act as the functional equivalent of an 

action or omission taken to comply with 

an order issued under section 202(c) of 

the Federal Power Act for purposes of 

section 202(c). 

(c) The liability exemptions specified 

in paragraphs (a) and (b) of this section 

do not apply to an entity that, in the 

course of complying with an emergency 

order by taking an action or omission for 

which the entity would otherwise be 

liable, takes such action or omission in 

a grossly negligent manner. 

§ 205.391 Termination of an emergency 

order. 

(a) An emergency order will expire no 

later than 15 days after its issuance. The 

Secretary may reissue an emergency 

order 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 that order have been 

sufficiently taken. 

(c) An entity or entities subject to an 

emergency order issued under this 

subpart 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. 

[FR Doc. 2018–00259 Filed 1–9–18; 8:45 am] 

BILLING CODE 6450–01–P 

FEDERAL RESERVE SYSTEM 

12 CFR Part 263 

[Docket No. R–1595] 

RIN 7100 AE 95 

Rules of Practice for Hearings 

AGENCY: Board of Governors of the 

Federal Reserve System. 

ACTION: Final rule. 

SUMMARY: The Board of Governors of the 

Federal Reserve System (the ‘‘Board’’) is 

issuing a final rule amending its rules of 

practice and procedure to adjust the 

amount of each civil money penalty 

(‘‘CMP’’) provided by law within its 

jurisdiction to account for inflation as 

required by the Federal Civil Penalties 

Inflation Adjustment Act Improvements 

Act of 2015. 

DATES: This final rule is effective on 

January 10, 2018. 

FOR FURTHER INFORMATION CONTACT: 

Patrick M. Bryan, Assistant General 

Counsel, (202) 974–7093, or Thomas O. 

Kelly, Senior Attorney, (202) 974–7059, 

Legal Division, Board of Governors of 

the Federal Reserve System, 20th Street 

and Constitution Ave. NW, Washington, 

DC 20551. For users of 

Telecommunication Device for the Deaf 

(TDD) only, contact (202) 263–4869. 

SUPPLEMENTARY INFORMATION: 

Federal Civil Penalties Inflation 

Adjustment Act 

The Federal Civil Penalties Inflation 

Adjustment Act of 1990, 28 U.S.C. 2461 

note (‘‘FCPIA Act’’), requires federal 

agencies to adjust, by regulation, the 

CMPs within their jurisdiction to 

account for inflation. The Federal Civil 

Penalties Inflation Adjustment Act 

Improvements Act of 2015 (the ‘‘2015 

Act’’) 1 amended the FCPIA Act to 


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