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[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[H.R. 5026 Reported in House (RH)]

                                                 Union Calendar No. 281
111th CONGRESS
  2d Session
                                H. R. 5026

                          [Report No. 111-493]

  To amend the Federal Power Act to protect the bulk-power system and 
 electric infrastructure critical to the defense of the United States 
       from cybersecurity and other threats and vulnerabilities.

_______________________________________________________________________

                    IN THE HOUSE OF REPRESENTATIVES

                             April 14, 2010

Mr. Markey of Massachusetts (for himself and Mr. Upton) introduced the 
   following bill; which was referred to the Committee on Energy and 
                                Commerce

                              May 25, 2010

Reported with amendments, committed to the Committee of the Whole House 
          on the State of the Union, and ordered to be printed
 [Strike out all after the enacting clause and insert the part printed 
                               in italic]
 [For text of introduced bill, see copy of bill as introduced on April 
                               14, 2010]

_______________________________________________________________________

                                 A BILL

 
  To amend the Federal Power Act to protect the bulk-power system and 
 electric infrastructure critical to the defense of the United States 
       from cybersecurity and other threats and vulnerabilities.

 

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Grid Reliability and Infrastructure 
Defense Act'' or the ``GRID Act''.

SEC. 2. AMENDMENT TO THE FEDERAL POWER ACT.

    (a) Critical Electric Infrastructure Security.--Part II of the 
Federal Power Act (16 U.S.C. 824 et seq.) is amended by adding after 
section 215 the following new section:

``SEC. 215A. CRITICAL ELECTRIC INFRASTRUCTURE SECURITY.

    ``(a)  Definitions.--For purposes of this section:
            ``(1) Bulk-power system; electric reliability organization; 
        regional entity.--The terms `bulk-power system', `Electric 
        Reliability Organization', and `regional entity' have the 
        meanings given such terms in paragraphs (1), (2), and (7) of 
        section 215(a), respectively.
            ``(2) Defense critical electric infrastructure.--The term 
        `defense critical electric infrastructure' means any 
        infrastructure located in the United States (including the 
        territories) used for the generation, transmission, or 
        distribution of electric energy that--
                    ``(A) is not part of the bulk-power system; and
                    ``(B) serves a facility designated by the President 
                pursuant to subsection (d)(1), but is not owned or 
                operated by the owner or operator of such facility.
            ``(3) Defense critical electric infrastructure 
        vulnerability.--The term `defense critical electric 
        infrastructure vulnerability' means a weakness in defense 
        critical electric infrastructure that, in the event of a 
        malicious act using electronic communication or an 
        electromagnetic pulse, would pose a substantial risk of 
        disruption of those electronic devices or communications 
        networks, including hardware, software, and data, that are 
        essential to the reliability of defense critical electric 
        infrastructure.
            ``(4) Electromagnetic pulse.--The term `electromagnetic 
        pulse' means 1 or more pulses of electromagnetic energy emitted 
        by a device capable of disabling, disrupting, or destroying 
        electronic equipment by means of such a pulse.
            ``(5) Geomagnetic storm.--The term `geomagnetic storm' 
        means a temporary disturbance of the Earth's magnetic field 
        resulting from solar activity.
            ``(6) Grid security threat.--The term `grid security 
        threat' means a substantial likelihood of--
                    ``(A)(i) a malicious act using electronic 
                communication or an electromagnetic pulse, or a 
                geomagnetic storm event, that could disrupt the 
                operation of those electronic devices or communications 
                networks, including hardware, software, and data, that 
                are essential to the reliability of the bulk-power 
                system or of defense critical electric infrastructure; 
                and
                    ``(ii) disruption of the operation of such devices 
                or networks, with significant adverse effects on the 
                reliability of the bulk-power system or of defense 
                critical electric infrastructure, as a result of such 
                act or event; or
                    ``(B)(i) a direct physical attack on the bulk-power 
                system or on defense critical electric infrastructure; 
                and
                    ``(ii) significant adverse effects on the 
                reliability of the bulk-power system or of defense 
                critical electric infrastructure as a result of such 
                physical attack.
            ``(7) Grid security vulnerability.--The term `grid security 
        vulnerability' means a weakness that, in the event of a 
        malicious act using electronic communication or an 
        electromagnetic pulse, would pose a substantial risk of 
        disruption to the operation of those electronic devices or 
        communications networks, including hardware, software, and 
        data, that are essential to the reliability of the bulk-power 
        system.
            ``(8) Large transformer.--The term `large transformer' 
        means an electric transformer that is part of the bulk-power 
        system.
            ``(9) Protected information.--The term `protected 
        information' means information, other than classified national 
        security information, designated as protected information by 
        the Commission under subsection (e)(2)--
                    ``(A) that was developed or submitted in connection 
                with the implementation of this section;
                    ``(B) that specifically discusses grid security 
                threats, grid security vulnerabilities, defense 
                critical electric infrastructure vulnerabilities, or 
                plans, procedures, or measures to address such threats 
                or vulnerabilities; and
                    ``(C) the unauthorized disclosure of which could be 
                used in a malicious manner to impair the reliability of 
                the bulk-power system or of defense critical electric 
                infrastructure.
            ``(10) Secretary.--The term `Secretary' means the Secretary 
        of Energy.
            ``(11) Security.--The definition of `security' in section 
        3(16) shall not apply to the provisions in this section.
    ``(b) Emergency Response Measures.--
            ``(1) Authority to address grid security threats.--Whenever 
        the President issues and provides to the Commission (either 
        directly or through the Secretary) a written directive or 
        determination identifying an imminent grid security threat, the 
        Commission may, with or without notice, hearing, or report, 
        issue such orders for emergency measures as are necessary in 
        its judgment to protect the reliability of the bulk-power 
        system or of defense critical electric infrastructure against 
        such threat. As soon as practicable but not later than 180 days 
        after the date of enactment of this section, the Commission 
        shall, after notice and opportunity for comment, establish 
        rules of procedure that ensure that such authority can be 
        exercised expeditiously.
            ``(2) Notification of congress.--Whenever the President 
        issues and provides to the Commission (either directly or 
        through the Secretary) a written directive or determination 
        under paragraph (1), the President (or the Secretary, as the 
        case may be) shall promptly notify congressional committees of 
        relevant jurisdiction, including the Committee on Energy and 
        Commerce of the House of Representatives and the Committee on 
        Energy and Natural Resources of the Senate, of the contents of, 
        and justification for, such directive or determination.
            ``(3) Consultation.--Before issuing an order for emergency 
        measures under paragraph (1), the Commission shall, to the 
        extent practicable in light of the nature of the grid security 
        threat and the urgency of the need for such emergency measures, 
        consult with appropriate governmental authorities in Canada and 
        Mexico, entities described in paragraph (4), the Secretary, and 
        other appropriate Federal agencies regarding implementation of 
        such emergency measures.
            ``(4) Application.--An order for emergency measures under 
        this subsection may apply to--
                    ``(A) the Electric Reliability Organization;
                    ``(B) a regional entity; or
                    ``(C) any owner, user, or operator of the bulk-
                power system or of defense critical electric 
                infrastructure within the United States.
            ``(5) Discontinuance.--The Commission shall issue an order 
        discontinuing any emergency measures ordered under this 
        subsection, effective not later than 30 days after the earliest 
        of the following:
                    ``(A) The date upon which the President issues and 
                provides to the Commission (either directly or through 
                the Secretary) a written directive or determination 
                that the grid security threat identified under 
                paragraph (1) no longer exists.
                    ``(B) The date upon which the Commission issues a 
                written determination that the emergency measures are 
                no longer needed to address the grid security threat 
                identified under paragraph (1), including by means of 
                Commission approval of a reliability standard under 
                section 215 that the Commission determines adequately 
                addresses such threat.
                    ``(C) The date that is 1 year after the issuance of 
                an order under paragraph (1).
            ``(6) Cost recovery.--If the Commission determines that 
        owners, operators, or users of the bulk-power system or of 
        defense critical electric infrastructure have incurred 
        substantial costs to comply with an order under this subsection 
        and that such costs were prudently incurred and cannot 
        reasonably be recovered through regulated rates or market 
        prices for the electric energy or services sold by such owners, 
        operators, or users, the Commission shall, after notice and an 
        opportunity for comment, establish a mechanism that permits 
        such owners, operators, or users to recover such costs.
    ``(c) Measures to Address Grid Security Vulnerabilities.--
            ``(1) Commission authority.--If the Commission, in 
        consultation with appropriate Federal agencies, identifies a 
        grid security vulnerability that the Commission determines has 
        not adequately been addressed through a reliability standard 
        developed and approved under section 215, the Commission shall, 
        after notice and opportunity for comment and after consultation 
        with the Secretary, other appropriate Federal agencies, and 
        appropriate governmental authorities in Canada and Mexico, 
        promulgate a rule or issue an order requiring implementation, 
        by any owner, operator, or user of the bulk-power system in the 
        United States, of measures to protect the bulk-power system 
        against such vulnerability. Before promulgating a rule or 
        issuing an order under this paragraph, the Commission shall, to 
        the extent practicable in light of the urgency of the need for 
        action to address the grid security vulnerability, request and 
        consider recommendations from the Electric Reliability 
        Organization regarding such rule or order. The Commission may 
        establish an appropriate deadline for the submission of such 
        recommendations.
            ``(2) Certain existing cybersecurity vulnerabilities.--Not 
        later than 180 days after the date of enactment of this 
        section, the Commission shall, after notice and opportunity for 
        comment and after consultation with the Secretary, other 
        appropriate Federal agencies, and appropriate governmental 
        authorities in Canada and Mexico, promulgate a rule or issue an 
        order requiring the implementation, by any owner, user, or 
        operator of the bulk-power system in the United States, of such 
        measures as are necessary to protect the bulk-power system 
        against the vulnerabilities identified in the June 21, 2007, 
        communication to certain `Electricity Sector Owners and 
        Operators' from the North American Electric Reliability 
        Corporation, acting in its capacity as the Electricity Sector 
        Information and Analysis Center.
            ``(3) Rescission.--The Commission shall approve a 
        reliability standard developed under section 215 that addresses 
        a grid security vulnerability that is the subject of a rule or 
        order under paragraph (1) or (2), unless the Commission 
        determines that such reliability standard does not adequately 
        protect against such vulnerability or otherwise does not 
        satisfy the requirements of section 215. Upon such approval, 
        the Commission shall rescind the rule promulgated or order 
        issued under paragraph (1) or (2) addressing such 
        vulnerability, effective upon the effective date of the newly 
        approved reliability standard.
            ``(4) Geomagnetic storms.--Not later than 1 year after the 
        date of enactment of this section, the Commission shall, after 
        notice and an opportunity for comment and after consultation 
        with the Secretary and other appropriate Federal agencies, 
        issue an order directing the Electric Reliability Organization 
        to submit to the Commission for approval under section 215, not 
        later than 1 year after the issuance of such order, reliability 
        standards adequate to protect the bulk-power system from any 
        reasonably foreseeable geomagnetic storm event. The 
        Commission's order shall specify the nature and magnitude of 
        the reasonably foreseeable events against which such standards 
        must protect. Such standards shall appropriately balance the 
        risks to the bulk-power system associated with such events, 
        including any regional variation in such risks, and the costs 
        of mitigating such risks.
            ``(5) Large transformer availability.--Not later than 1 
        year after the date of enactment of this section, the 
        Commission shall, after notice and an opportunity for comment 
        and after consultation with the Secretary and other appropriate 
        Federal agencies, issue an order directing the Electric 
        Reliability Organization to submit to the Commission for 
        approval under section 215, not later than 1 year after the 
        issuance of such order, reliability standards addressing 
        availability of large transformers. Such standards shall 
        require entities that own or operate large transformers to 
        ensure, individually or jointly, adequate availability of large 
        transformers to promptly restore the reliable operation of the 
        bulk-power system in the event that any such transformer is 
        destroyed or disabled as a result of a reasonably foreseeable 
        physical or other attack or geomagnetic storm event. The 
        Commission's order shall specify the nature and magnitude of 
        the reasonably foreseeable attacks or events that shall provide 
        the basis for such standards. Such standards shall--
                    ``(A) provide entities subject to the standards 
                with the option of meeting such standards individually 
                or jointly; and
                    ``(B) appropriately balance the risks associated 
                with a reasonably foreseeable attack or event, 
                including any regional variation in such risks, and the 
                costs of ensuring adequate availability of spare 
                transformers.
    ``(d) Critical Defense Facilities.--
            ``(1) Designation.--Not later than 180 days after the date 
        of enactment of this section, the President shall designate, in 
        a written directive or determination provided to the 
        Commission, facilities located in the United States (including 
        the territories) that are--
                    ``(A) critical to the defense of the United States; 
                and
                    ``(B) vulnerable to a disruption of the supply of 
                electric energy provided to such facility by an 
                external provider.
        The number of facilities designated by such directive or 
        determination shall not exceed 100. The President may 
        periodically revise the list of designated facilities through a 
        subsequent written directive or determination provided to the 
        Commission, provided that the total number of designated 
        facilities at any time shall not exceed 100.
            ``(2) Commission authority.--If the Commission identifies a 
        defense critical electric infrastructure vulnerability that the 
        Commission, in consultation with owners and operators of any 
        facility or facilities designated by the President pursuant to 
        paragraph (1), determines has not adequately been addressed 
        through measures undertaken by owners or operators of defense 
        critical electric infrastructure, the Commission shall, after 
        notice and an opportunity for comment and after consultation 
        with the Secretary and other appropriate Federal agencies, 
        promulgate a rule or issue an order requiring implementation, 
        by any owner or operator of defense critical electric 
        infrastructure, of measures to protect the defense critical 
        electric infrastructure against such vulnerability. The 
        Commission shall exempt from any such rule or order any 
        specific defense critical electric infrastructure that the 
        Commission determines already has been adequately protected 
        against the identified vulnerability. The Commission shall make 
        any such determination in consultation with the owner or 
        operator of the facility designated by the President pursuant 
        to paragraph (1) that relies upon such defense critical 
        electric infrastructure.
            ``(3) Cost recovery.--An owner or operator of defense 
        critical electric infrastructure shall be required to take 
        measures under paragraph (2) only to the extent that the owners 
        or operators of a facility or facilities designated by the 
        President pursuant to paragraph (1) that rely upon such 
        infrastructure agree to bear the full incremental costs of 
        compliance with a rule promulgated or order issued under 
        paragraph (2).
    ``(e) Protection of Information.--
            ``(1) Prohibition of public disclosure of protected 
        information.--Protected information--
                    ``(A) shall be exempt from disclosure under section 
                552(b)(3) of title 5, United States Code; and
                    ``(B) shall not be made available pursuant to any 
                State, local, or tribal law requiring disclosure of 
                information or records.
            ``(2) Information sharing.--
                    ``(A) In general.--Consistent with the Controlled 
                Unclassified Information framework established by the 
                President, the Commission shall promulgate such 
                regulations and issue such orders as necessary to 
                designate protected information and to prohibit the 
                unauthorized disclosure of such protected information.
                    ``(B) Sharing of protected information.--The 
                regulations promulgated and orders issued pursuant to 
                subparagraph (A) shall provide standards for and 
                facilitate the appropriate sharing of protected 
                information with, between, and by Federal, State, 
                local, and tribal authorities, the Electric Reliability 
                Organization, regional entities, and owners, operators, 
                and users of the bulk-power system in the United States 
                and of defense critical electric infrastructure. In 
                promulgating such regulations and issuing such orders, 
                the Commission shall take account of the role of State 
                commissions in reviewing the prudence and cost of 
                investments within their respective jurisdictions. The 
                Commission shall consult with appropriate Canadian and 
                Mexican authorities to develop protocols for the 
                sharing of protected information with, between, and by 
                appropriate Canadian and Mexican authorities and 
                owners, operators, and users of the bulk-power system 
                outside the United States.
            ``(3) Submission of information to congress.--Nothing in 
        this section shall permit or authorize the withholding of 
        information from Congress, any committee or subcommittee 
        thereof, or the Comptroller General.
            ``(4) Disclosure of non-protected information.--In 
        implementing this section, the Commission shall protect from 
        disclosure only the minimum amount of information necessary to 
        protect the reliability of the bulk-power system and of defense 
        critical electric infrastructure. The Commission shall 
        segregate protected information within documents and electronic 
        communications, wherever feasible, to facilitate disclosure of 
        information that is not designated as protected information.
            ``(5) Duration of designation.--Information may not be 
        designated as protected information for longer than 5 years, 
        unless specifically redesignated by the Commission.
            ``(6) Removal of designation.--The Commission may remove 
        the designation of protected information, in whole or in part, 
        from a document or electronic communication if the unauthorized 
        disclosure of such information could no longer be used to 
        impair the reliability of the bulk-power system or of defense 
        critical electric infrastructure.
            ``(7) Judicial review of designations.--Notwithstanding 
        subsection (f) of this section or section 313, a person or 
        entity may seek judicial review of a determination by the 
        Commission concerning the designation of protected information 
        under this subsection exclusively in the district court of the 
        United States in the district in which the complainant resides, 
        or has his principal place of business, or in the District of 
        Columbia. In such a case the court shall determine the matter 
        de novo, and may examine the contents of documents or 
        electronic communications designated as protected information 
        in camera to determine whether such documents or any part 
        thereof were improperly designated as protected information. 
        The burden is on the Commission to sustain its designation.
    ``(f) Judicial Review.--The Commission shall act expeditiously to 
resolve all applications for rehearing of orders issued pursuant to 
this section that are filed under section 313(a). Any party seeking 
judicial review pursuant to section 313 of an order issued under this 
section may obtain such review only in the United States Court of 
Appeals for the District of Columbia Circuit.
    ``(g) Provision of Assistance to Industry in Meeting Grid Security 
Protection Needs.--
            ``(1) Expertise and resources.--The Secretary shall 
        establish a program, in consultation with other appropriate 
        Federal agencies, to develop technical expertise in the 
        protection of systems for the generation, transmission, and 
        distribution of electric energy against geomagnetic storms or 
        malicious acts using electronic communications or 
        electromagnetic pulse that would pose a substantial risk of 
        disruption to the operation of those electronic devices or 
        communications networks, including hardware, software, and 
        data, that are essential to the reliability of such systems. 
        Such program shall include the identification and development 
        of appropriate technical and electronic resources, including 
        hardware, software, and system equipment.
            ``(2) Sharing expertise.--As appropriate, the Secretary 
        shall offer to share technical expertise developed under the 
        program under paragraph (1), through consultation and 
        assistance, with owners, operators, or users of systems for the 
        generation, transmission, or distribution of electric energy 
        located in the United States and with State commissions. In 
        offering such support, the Secretary shall assign higher 
        priority to systems serving facilities designated by the 
        President pursuant to subsection (d)(1) and other critical-
        infrastructure facilities, which the Secretary shall identify 
        in consultation with the Commission and other appropriate 
        Federal agencies.
            ``(3) Security clearances and communication.--The Secretary 
        shall facilitate and, to the extent practicable, expedite the 
        acquisition of adequate security clearances by key personnel of 
        any entity subject to the requirements of this section to 
        enable optimum communication with Federal agencies regarding 
        grid security threats, grid security vulnerabilities, and 
        defense critical electric infrastructure vulnerabilities. The 
        Secretary, the Commission, and other appropriate Federal 
        agencies shall, to the extent practicable and consistent with 
        their obligations to protect classified and protected 
        information, share timely actionable information regarding grid 
        security threats, grid security vulnerabilities, and defense 
        critical electric infrastructure vulnerabilities with 
        appropriate key personnel of owners, operators, and users of 
        the bulk-power system and of defense critical electric 
        infrastructure.''.
    (b) Conforming Amendments.--
            (1) Jurisdiction.--Section 201(b)(2) of the Federal Power 
        Act (16 U.S.C. 824(b)(2)) is amended by inserting ``215A,'' 
        after ``215,'' each place it appears.
            (2) Public utility.--Section 201(e) of the Federal Power 
        Act (16 U.S.C. 824(e)) is amended by inserting ``215A,'' after 
        ``215,''.
            Amend the title so as to read: ``A bill to amend the 
        Federal Power Act to protect the bulk-power system and electric 
        infrastructure critical to the defense of the United States 
        against cybersecurity and other threats and vulnerabilities.''.
                                                 Union Calendar No. 281

111th CONGRESS

  2d Session

                               H. R. 5026

                          [Report No. 111-493]

_______________________________________________________________________

                                 A BILL

  To amend the Federal Power Act to protect the bulk-power system and 
 electric infrastructure critical to the defense of the United States 
       from cybersecurity and other threats and vulnerabilities.

_______________________________________________________________________

                              May 25, 2010

Reported with amendments, committed to the Committee of the Whole House 
          on the State of the Union, and ordered to be printed
```