Bill Summary
The Energy Infrastructure Protection Act of 2020 seeks to protect energy infrastructure by amending the Federal Power Act and authorizing the Federal Energy Regulatory Commission and the Secretary of Energy to provide assistance in securing assets and increasing security of the electric grid. This includes defining key terms related to the legislation, such as "energy infrastructure" and "critical electric infrastructure information," and establishing procedures for designating and protecting critical electric infrastructure information. The legislation also outlines the role of the Commission and the Secretary in providing assistance to owners and operators of energy infrastructure, as well as restrictions and exceptions for the disclosure of critical electric infrastructure information. It also specifies enforcement measures and sanctions for individuals who fail to return or disclose critical electric infrastructure information. The legislation also includes conforming amendments to other sections of the Federal Power Act and the FAST Act.
Possible Impacts
1. The Energy Infrastructure Protection Act of 2020 will affect energy infrastructure owners and operators by allowing them to receive voluntary assistance from the Federal Energy Regulatory Commission and the Secretary of Energy in securing their assets against threats and increasing the security of the electric grid.
2. The legislation also includes provisions for the protection of critical electric infrastructure information and outlines the process for designating and sharing this information. This will affect individuals and entities involved in the protection of energy infrastructure, as well as those seeking assistance and sharing information for academic or research purposes.
3. Additionally, the legislation includes enforcement and sanctions for unauthorized disclosure of critical electric infrastructure information, which will affect individuals who fail to return this information within a specified time frame or who knowingly and willfully disclose it without authorization. This includes commissioners and other government officials.
[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[S. 3688 Introduced in Senate (IS)]
<DOC>
116th CONGRESS
2d Session
S. 3688
To amend the Federal Power Act to authorize the Federal Energy
Regulatory Commission and the Secretary of Energy to offer assistance
in securing the assets of the owners and operators of energy
infrastructure against threats and increasing the security of the
electric grid, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
May 12, 2020
Ms. Murkowski (for herself and Mr. Risch) introduced the following
bill; which was read twice and referred to the Committee on Energy and
Natural Resources
_______________________________________________________________________
A BILL
To amend the Federal Power Act to authorize the Federal Energy
Regulatory Commission and the Secretary of Energy to offer assistance
in securing the assets of the owners and operators of energy
infrastructure against threats and increasing the security of the
electric grid, and for other purposes.
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 ``Energy Infrastructure Protection Act
of 2020''.
SEC. 2. SENSE OF CONGRESS.
It is the sense of Congress that--
(1) electrical energy is essential to civil society;
(2) the infrastructure that delivers electrical energy to
the people of the United States has been vulnerable to attacks
of varying scope for more than 100 years;
(3) with the ready availability of information about
electric infrastructure, and the ease of international travel
for individuals who seek to harm the United States, threats to
electric infrastructure have multiplied in recent years;
(4) the geographic barriers of the Pacific Ocean and the
Atlantic Ocean no longer provide sufficient protection for the
people of the United States against threats to electric
infrastructure, especially for threats coming from cyberspace;
(5) electric infrastructure around the world has been
attacked during times of war and times of peace, on the ground
and in cyberspace, by--
(A) individuals;
(B) criminal organizations; and
(C) foreign countries;
(6) like electric infrastructure, the fuel suppliers and
other vendors who supply the electricity industry are
vulnerable to attacks designed to disrupt electricity service;
(7) before and during World War II, the Federal Power
Commission assisted owners and operators of energy
infrastructure in defending the assets of those owners and
operators;
(8) the Department of Energy and the Federal Energy
Regulatory Commission carry on the legacy of security
assistance established by the Federal Power Commission;
(9) the Department of Energy, assisted by the expertise at
the National Laboratories, and utilizing the statutory role of
the Department as the lead Federal agency for cybersecurity in
the energy sector, has acted to assist owners and operators of
electric infrastructure when those owners and operators defend
their assets;
(10) the Federal Energy Regulatory Commission, utilizing
the jurisdiction of the Commission over matters of cost
recovery and electric reliability, has acted to assist owners
and operators of electric infrastructure when those owners and
operators defend their assets;
(11) owners and operators of electric infrastructure,
entities involved with electric infrastructure, the Federal
Energy Regulatory Commission, the Department of Energy, other
Federal departments and agencies, States, and units of local
government have information that--
(A) can be used by those who seek to harm the
United States to disrupt electricity service; and
(B) should be protected from excessive disclosure;
and
(12) owners and operators of electric infrastructure--
(A) have been acting to reduce the vulnerability of
their assets; and
(B) should have better opportunities to further
reduce the vulnerability of their assets.
SEC. 3. PROTECTING ENERGY INFRASTRUCTURE.
(a) In General.--Part II of the Federal Power Act (16 U.S.C. 824 et
seq.) is amended--
(1) by adding at the end the following:
``Subpart B--Protecting Energy Infrastructure'';
(2) by redesignating section 215A (16 U.S.C. 824o-1) as
section 230, and moving that section so as to appear at the
beginning of subpart B (as added by paragraph (1)); and
(3) by inserting after section 201 (16 U.S.C. 824) the
following:
``Subpart A--General Requirements''.
(b) Definitions.--Section 230 of the Federal Power Act (as
redesignated by subsection (a)(2)) is amended--
(1) in the section heading, by striking ``Critical electric
infrastructure security'' and inserting ``Definitions'';
(2) in subsection (a)--
(A) in the matter preceding paragraph (1), by
striking the subsection designation and heading and all
that follows through ``this section:'' and inserting
the following:
``In this subpart:'';
(B) in paragraph (1), by striking ``such terms''
and all that follows through ``respectively.'' and
inserting ``the terms in section 215(a).'';
(C) by redesignating paragraphs (2), (3), (4), (5),
(6), (7), and (8) as paragraphs (3), (4), (5), (6),
(8), (9), and (12), respectively;
(D) by inserting after paragraph (1) the following:
``(2) Commission.--The term `Commission' means the Federal
Energy Regulatory Commission.'';
(E) in paragraph (3) (as so redesignated), by
inserting ``energy infrastructure or'' after ``means'';
(F) by striking paragraph (4) (as so redesignated)
and inserting the following:
``(4) Critical electric infrastructure information.--
``(A) In general.--The term `critical electric
infrastructure information' means information relating
to critical electric infrastructure, or proposed
critical electric infrastructure, that--
``(i) is generated by, or provided to, the
Secretary, the Commission, or any other Federal
department or agency;
``(ii) is not classified national security
information; and
``(iii) is designated as critical electric
infrastructure information by the Secretary or
the Commission under section 231(c) or 235.
``(B) Inclusions.--The term `critical electric
infrastructure information' includes any information
that qualified as critical energy infrastructure
information under the regulations of the Commission in
effect on the day before the date of enactment of the
Energy Infrastructure Protection Act of 2020.'';
(G) in paragraph (5) (as so redesignated), by
striking ``subsection (c)'' and inserting ``section
231(b)'';
(H) by inserting after paragraph (6) (as so
redesignated) the following:
``(7) Energy infrastructure.--The term `energy
infrastructure' includes--
``(A) systems or assets comprising the bulk-power
system;
``(B) systems or assets owned by electric
utilities;
``(C) systems or assets that--
``(i) allow for the transportation of fuel,
electricity, water, steam, heat, cold, or any
commodity that is used in the provision of
electricity service; and
``(ii) facilitate the delivery of--
``(I) electrical energy to
consumers;
``(II) wholesale transactions in
electrical energy; or
``(III) the import or export of
electrical energy; and
``(D) all systems or assets subject to the
jurisdiction of the Commission, including--
``(i) pipelines for the transportation of
oil;
``(ii) natural gas pipelines; and
``(iii) water resources.'';
(I) by inserting after paragraph (9) (as so
redesignated) the following:
``(10) Natural gas; natural-gas company.--The terms
`natural gas' and `natural-gas company' have the meanings given
the terms in section 2 of the Natural Gas Act (15 U.S.C. 717a).
``(11) Oil; oil pipeline.--The terms `oil' and `oil
pipeline' have the meanings given the terms in section 1804 of
the Energy Policy Act of 1992 (42 U.S.C. 7172 note; Public Law
102-486).''; and
(J) by inserting after paragraph (12) (as so
redesignated) the following:
``(13) Source of the information.--The term `source of the
information' means--
``(A) the electric utility, Transmission
Organization, natural-gas company, licensee, or oil
pipeline that provides to the Secretary or the
Commission, as applicable, critical electric
infrastructure information, including--
``(i) critical electric infrastructure
information that is provided directly to the
Secretary or the Commission by the electric
utility, Transmission Organization, natural-gas
company, licensee, or oil pipeline; and
``(ii) critical electric infrastructure
information that is provided to the Secretary
or the Commission by an intermediary;
``(B) the Secretary, with respect to critical
electric infrastructure information that is created by
the Secretary;
``(C) the Commission, with respect to critical
electric infrastructure information that is created by
the Commission; and
``(D) with respect to any critical electric
infrastructure information not described in
subparagraphs (A) through (C), the individual or entity
that provides to the Secretary or the Commission, as
applicable, the critical electric infrastructure
information.''; and
(3) by inserting before subsection (b) the following:
``SEC. 231. CRITICAL ELECTRIC INFRASTRUCTURE SECURITY.''.
(c) Critical Electric Infrastructure Security.--Section 231 of the
Federal Power Act (as designated by subsection (b)(3)) is amended--
(1) by redesignating subsections (b) through (f) as
subsections (a) through (e), respectively;
(2) in paragraph (6)(B) of subsection (a) (as so
redesignated), by striking ``subsection (c)'' and inserting
``subsection (b)'';
(3) in subsection (c) (as so redesignated)--
(A) in paragraph (2)--
(i) in the matter preceding subparagraph
(A), by striking ``Not later'' and all that
follows through ``shall'' and inserting ``Each
of the Secretary and the Commission, after
consultation with the other, shall'';
(ii) in subparagraph (A), by adding ``and''
at the end after the semicolon;
(iii) in subparagraph (B), by striking the
semicolon at the end and inserting a period;
and
(iv) by striking subparagraphs (C) and (D);
(B) by striking paragraph (3) and inserting the
following:
``(3) Authority to designate.--
``(A) In general.--The Secretary and the Commission
may each designate information as critical electric
infrastructure information pursuant to the criteria and
procedures established by the Secretary or the
Commission, as applicable, under paragraph (2)(A).
``(B) Submission of request for designation.--
``(i) In general.--Any individual or entity
may request that--
``(I) the Secretary designate
information in the possession of the
Secretary as critical electric
infrastructure information; and
``(II) the Commission designate
information in the possession of the
Commission as critical electric
infrastructure information.
``(ii) Treatment of information submitted
for designation.--On receipt of a request under
clause (i), the Secretary or the Commission, as
applicable, shall treat the information that is
the subject of the request as critical electric
infrastructure information until the earlier
of--
``(I) the date on which the
Secretary or the Commission, as
applicable, designates the information
as critical electric infrastructure
information; and
``(II) the date that is 21 days
after the date on which the Secretary
or the Commission, as applicable,
provides written notice to the
individual or entity that submitted the
request that the request is denied.
``(C) Conflicts between designations by the
secretary and the commission.--
``(i) Initial meeting.--In the event of a
conflict between a designation made by the
Secretary and a designation made by the
Commission as to whether certain information is
critical electric infrastructure information,
and the conflict has a material impact on the
work of the Secretary or the Commission, the
Secretary and the Commission shall confer to
resolve the conflict for the purpose of
achieving consistency across the Federal
Government in the designation of the
information.
``(ii) Unresolved conflicts.--If the
Secretary and the Commission are unable to
resolve a conflict under clause (i)--
``(I) the Commission may continue
to designate any information in the
possession of the Commission according
to the criteria and procedures
established by the Commission under
paragraph (2)(A); and
``(II) the Secretary may continue
to designate any information in the
possession of the Department of Energy
according to the criteria and
procedures established by the Secretary
under paragraph (2)(A).'';
(C) in paragraph (8)--
(i) by striking ``In implementing'' and all
that follows through ``shall'' and inserting
the following:
``(A) In general.--In implementing this section,
the Secretary and the Commission shall reasonably
attempt to''; and
(ii) by adding at the end the following:
``(B) Effect of failure to segregate information.--
A failure to segregate any particular information under
subparagraph (A) shall not result in an inference or
finding that the information should not be entitled to
protection as critical electric infrastructure
information.'';
(D) by striking paragraphs (9) and (10) and
inserting the following:
``(9) Duration of designation.--
``(A) In general.--Except as provided in
subparagraph (B), information may not be designated as
critical electric infrastructure information for a
period longer than the information is related to energy
infrastructure in service.
``(B) Redesignation.--Any information may be
redesignated by the Secretary or the Commission as
critical electric infrastructure information before,
on, or after the date on which an earlier designation
has expired.
``(C) Vulnerabilities and threats.--Information
about a vulnerability or threat to energy
infrastructure, or the planning and construction of a
system or asset that is intended to address a
vulnerability or threat to energy infrastructure, may
be designated as critical electric infrastructure
information--
``(i) for the period during which the
vulnerability or threat exists; and
``(ii) for any additional period determined
to be appropriate by the Secretary or the
Commission, as applicable.
``(10) Removal of designation.--The Secretary or the
Commission, as applicable, shall remove the designation of
critical electric infrastructure information, in whole or in
part, from a document or electronic communication if the
Secretary or the Commission, as applicable, determines that the
unauthorized disclosure of the information so designated could
no longer be used to impair the security or reliability of
energy infrastructure, the bulk-power system, or distribution
facilities.''; and
(E) by adding at the end the following:
``(12) No immediate obligation to designate.--Any request
for designation submitted to the Secretary or the Commission
need not be considered by the Secretary or the Commission, as
applicable, until the information that is the subject of the
request for designation becomes the subject of any request to
disclose, including a request under--
``(A) section 552 of title 5, United States Code;
or
``(B) any applicable law (including any Federal,
State, political subdivision, or Tribal law) requiring
public disclosure of information or records.
``(13) Effect of prior determinations.--A prior
determination by the Secretary or the Commission that certain
information is not critical electric infrastructure information
shall not affect the authority of the Secretary or the
Commission to later designate that information as critical
electric infrastructure information.''; and
(4) in subsection (e) (as so redesignated)--
(A) in paragraph (1), by striking ``subsection
(b)(1)'' and inserting ``subsection (a)(1)'';
(B) in paragraph (2), by striking ``subsection
(b)(1)'' and inserting ``subsection (a)(1)'';
(C) in paragraph (3), by striking ``subsection
(d)'' and inserting ``subsection (c) or any of sections
232 through 235, as applicable''; and
(D) in paragraph (4)--
(i) by striking ``subsection (b)(1)'' and
inserting ``subsection (a)(1)''; and
(ii) by striking ``paragraph (1) or (2 )''
and inserting ``paragraph (1) or (2)''.
(d) Assistance, Access, and Enforcement.--Subpart B of part II of
the Federal Power Act (as added by subsection (a)(1)) is amended by
adding at the end the following:
``SEC. 232. AUTHORITY OF THE COMMISSION TO OFFER ASSISTANCE TO OWNERS
AND OPERATORS OF ENERGY INFRASTRUCTURE.
``(a) Definition of Eligible Entity.--In this section, the term
`eligible entity' means--
``(1) an authority of a State, political subdivision, or
Indian Tribe;
``(2) a Transmission Organization;
``(3) an electric utility;
``(4) a natural-gas company;
``(5) an oil pipeline; and
``(6) any other owner or operator of energy infrastructure.
``(b) Voluntary Assistance on Request.--On request of an eligible
entity, the Commission may provide assistance to the eligible entity--
``(1) by reviewing the configuration of the assets of the
eligible entity against threats;
``(2) by reviewing the capability of the eligible entity to
operate its assets after attacks on those assets;
``(3) by providing information about methods and tools that
owners and operators of energy infrastructure may use to defend
assets against threats;
``(4) by providing information regarding other resources
that may be available to assist the eligible entity; and
``(5) by reviewing data and other assets in the possession
of the eligible entity--
``(A) for evidence that the data or other asset--
``(i) has been tampered with; or
``(ii) has otherwise been the subject of
threat activity; and
``(B) while ensuring an adequate chain of custody
to enable criminal investigation and prosecution.
``(c) Release of Information.--
``(1) Protection of information.--Any information collected
or created by the Commission in carrying out activities under
subsection (b), including any report prepared under subsection
(g)(1)(A)--
``(A) to the extent that the information is not
already designated as critical electric infrastructure
information, shall be handled by the Commission as if
it had been designated by the Commission as critical
electric infrastructure information under this subpart;
``(B) shall be exempt from disclosure under section
552(b)(3) of title 5, United States Code; and
``(C) shall not be made available by any Federal,
State, political subdivision, or Tribal authority under
any applicable law requiring public disclosure of
information or records.
``(2) Voluntary release.--
``(A) Consent required.--Subject to subparagraph
(C), if the source of any information described in
paragraph (1) provides consent, the Commission may
share that information with--
``(i) the Electric Reliability
Organization;
``(ii) a regional entity;
``(iii) an information sharing and analysis
center; or
``(iv) an authority of a State, political
subdivision, or Indian Tribe that is involved
in protecting energy infrastructure from
threats.
``(B) Advance consent.--Consent to the disclosure
of information by the Commission under subparagraph (A)
may--
``(i) be provided in advance of the
disclosure of that information to, or the
creation of that information by, the
Commission; and
``(ii) be a condition precedent to
obtaining assistance from the Commission under
this section.
``(C) Limitation.--Any information that is shared
with an authority described in subparagraph (A)(iv)
shall be exempt from disclosure by the authority as if
that information were in the possession of the
Commission under this subsection.
``(3) Release to federal authorities.--
``(A) Consent not required.--The Commission may
share any information described in paragraph (1) with a
Federal authority regardless of whether the source of
that information consents to the disclosure.
``(B) Limitation.--Any information that is shared
with a Federal authority under subparagraph (A) shall
be exempt from disclosure by the Federal authority as
if that information were in the possession of the
Commission under this subsection.
``(d) Withdrawal of Request.--
``(1) In general.--An eligible entity may withdraw a
request for assistance under subsection (b) at any time.
``(2) Effect.--On withdrawal of a request under paragraph
(1), the Commission shall--
``(A) terminate all assistance; and
``(B) to the maximum extent practicable, and
subject to any Federal law applicable to the Commission
regarding retention of records, return to the eligible
entity all information that the Commission received
from the eligible entity.
``(e) Use of Information.--
``(1) Information provided for assistance.--Any information
that is provided by an eligible entity to the Commission for
the purpose of obtaining assistance under subsection (b) may
not be used as a basis for any order, rule, opinion, or
decision of the Commission.
``(2) Information obtained by other means.--Subject to
applicable law, if the information described in paragraph (1)
is obtained by the Commission in a manner other than the manner
described in that paragraph, the Commission may use that
information in any manner that the Commission determines to be
appropriate if--
``(A) the Commission segregates the information
described in paragraph (1) from information that is
obtained by the Commission in a manner not described in
that paragraph; and
``(B) the information described in paragraph (1)
has been and is reviewed only by individuals authorized
by the Commission to provide assistance under
subsection (b).
``(3) Informal staff advice.--An officer, employee, agent,
or contractor of the Commission may advise an eligible entity
that information provided to the Commission for the purpose of
obtaining assistance under subsection (b) should also be
provided to the Commission for purposes unrelated to assistance
under subsection (b).
``(f) Effect.--Nothing in this section--
``(1) authorizes the Commission to require any eligible
entity to adopt any advice, report, recommendation, best
practice, finding, model, tool, method, plan, analysis, or
assessment made by the Commission under this section; or
``(2) relieves an eligible entity from any obligation to
comply with a lawful order or rule of the Commission.
``(g) Reports for Eligible Entities.--
``(1) In general.--The Commission may prepare reports--
``(A) for an eligible entity that requests
assistance under subsection (b); and
``(B) for eligible entities generally.
``(2) Authority.--The Commission shall have sole discretion
to prepare a report under paragraph (1).
``(3) Requirement.--A report under paragraph (1) shall not
identify an eligible entity without the consent of that
eligible entity.
``(4) Effect.--A report under paragraph (1)--
``(A) shall not be binding on the Commission; and
``(B) shall not relieve an eligible entity from any
obligation to comply with any applicable order or rule
of the Commission.
``(h) Savings Clause.--Nothing in this section affects in any
manner the authority, existing on the day before the date of enactment
of the Energy Infrastructure Protection Act of 2020, of--
``(1) the Electric Reliability Organization;
``(2) a regional entity;
``(3) an information sharing and analysis center; or
``(4) a component of any Federal department or agency other
than the Commission, including the authority provided to--
``(A) the Cybersecurity and Infrastructure Security
Agency;
``(B) the national cybersecurity and communications
integration center established under section 2209(b) of
the Homeland Security Act of 2002 (6 U.S.C. 659(b));
and
``(C) the Sector-Specific Agency specified in
section 61003(c)(2) of the FAST Act (6 U.S.C. 121 note;
Public Law 114-94).
``SEC. 233. AUTHORITY OF THE SECRETARY TO OFFER ASSISTANCE TO OWNERS
AND OPERATORS OF ENERGY INFRASTRUCTURE.
``(a) Definition of Eligible Entity.--In this section, the term
`eligible entity' means--
``(1) an authority of a State, political subdivision, or
Indian Tribe;
``(2) a Transmission Organization;
``(3) an electric utility;
``(4) a natural-gas company;
``(5) an oil pipeline; and
``(6) any other owner or operator of energy infrastructure.
``(b) Voluntary Assistance on Request.--On the request of an
eligible entity, the Secretary may provide assistance to the eligible
entity--
``(1) by reviewing the configuration of the assets of the
eligible entity against threats;
``(2) by reviewing the capability of the eligible entity to
operate its assets after attacks on those assets;
``(3) by providing information about methods and tools that
owners and operators of energy infrastructure may use to defend
their assets against threats;
``(4) by providing information regarding other resources
that may be available to assist the eligible entity;
``(5) by reviewing data and other assets in the possession
of the eligible entity--
``(A) for evidence that the data or other asset--
``(i) has been tampered with; or
``(ii) has otherwise been the subject of
threat activity; and
``(B) while ensuring an adequate chain of custody
to enable criminal investigation and prosecution;
``(6) by monitoring sensor data and other information flows
of the eligible entity; and
``(7) by testing equipment and other assets of the eligible
entity.
``(c) Research and Planning.--The Secretary shall carry out a
program--
``(1) to gather information about the tools and methods
that have been used to penetrate or defend any eligible entity
or industrial control system, including information about those
tools and methods that is available from--
``(A) the Department of Homeland Security;
``(B) the Department of Defense;
``(C) any other Federal department or agency; and
``(D) any eligible entity;
``(2) to research and plan to ensure that the Federal
Government has access to energy infrastructure during a time of
war or national crisis; and
``(3) to research and plan the response of the Secretary in
the event that owners and operators of energy infrastructure
are attacked.
``(d) Release of Information.--
``(1) Protection of information.--Any information collected
or created by the Secretary in carrying out activities under
subsection (b), including any report prepared under subsection
(h)(1)(A)--
``(A) to the extent that the information is not
already designated as critical electric infrastructure
information, shall be handled by the Secretary as if it
had been designated by the Secretary as critical
electric infrastructure information under this subpart;
``(B) shall be exempt from disclosure under section
552(b)(3) of title 5, United States Code; and
``(C) shall not be made available by any Federal,
State, political subdivision, or Tribal authority under
any applicable law requiring public disclosure of
information or records.
``(2) Voluntary release.--
``(A) Consent required.--Subject to subparagraph
(C), if the source of any information described in
paragraph (1) provides consent, the Secretary may share
that information with--
``(i) the Electric Reliability
Organization;
``(ii) a regional entity;
``(iii) an information sharing and analysis
center; or
``(iv) an authority of a State, political
subdivision, or Indian Tribe that is involved
in protecting energy infrastructure from
threats.
``(B) Advance consent.--Consent to the disclosure
of information by the Secretary under subparagraph (A)
may--
``(i) be provided in advance of the
disclosure of that information to, or the
creation of that information by, the Secretary;
and
``(ii) be a condition precedent to
obtaining assistance from the Secretary under
this section.
``(C) Limitation.--Any information that is shared
with an authority described in subparagraph (A)(iv)
shall be exempt from disclosure by the authority as if
that information were in the possession of the
Secretary under this subsection.
``(3) Release to federal authorities.--
``(A) Consent not required.--The Secretary may
share any information described in paragraph (1) with a
Federal authority regardless of whether the source of
that information consents to the disclosure.
``(B) Limitation.--Any information that is shared
with a Federal authority under subparagraph (A) shall
be exempt from disclosure by the Federal authority as
if that information were in the possession of the
Secretary under this subsection.
``(e) Withdrawal of Request.--
``(1) In general.--An eligible entity may withdraw a
request for assistance under subsection (b) at any time.
``(2) Effect.--On withdrawal of a request under paragraph
(1), the Secretary shall--
``(A) terminate all assistance; and
``(B) to the maximum extent practicable, and
subject to any Federal law applicable to the Secretary
regarding retention of records, return to the eligible
entity all information that the Secretary received from
the eligible entity.
``(f) Use of Information.--
``(1) Information provided for assistance.--Any information
that is provided by an eligible entity to the Secretary for the
purpose of obtaining assistance under subsection (b) may not be
used as a basis for any order, rule, opinion, or decision of
the Secretary.
``(2) Information obtained by other means.--Subject to
applicable law, if the information described in paragraph (1)
is obtained by the Secretary in a manner other than the manner
described in that paragraph, the Secretary may use that
information in any manner that the Secretary determines to be
appropriate if--
``(A) the Secretary segregates the information
described in paragraph (1) from information that is
obtained by the Secretary in a manner not described in
that paragraph; and
``(B) the information described in paragraph (1)
has been and is reviewed only by individuals authorized
by the Secretary to provide assistance under subsection
(b).
``(3) Informal staff advice.--An officer, employee, agent,
or contractor of the Secretary may advise an eligible entity
that information provided to the Secretary for the purpose of
obtaining assistance under subsection (b) should also be
provided to the Secretary for purposes unrelated to assistance
under subsection (b).
``(g) Effect.--Nothing in this section--
``(1) authorizes the Secretary to require any eligible
entity to adopt any advice, report, recommendation, best
practice, finding, model, tool, method, plan, analysis, or
assessment made by the Secretary under this section; or
``(2) relieves an eligible entity from any obligation to
comply with a lawful order or rule of the Secretary.
``(h) Reports for Eligible Entities.--
``(1) In general.--The Secretary may prepare reports--
``(A) for an eligible entity that requests
assistance under subsection (b); and
``(B) for eligible entities generally.
``(2) Authority.--The Secretary shall have sole discretion
to prepare a report under paragraph (1).
``(3) Requirement.--A report under paragraph (1) shall not
identify an eligible entity without the consent of that
eligible entity.
``(4) Effect.--A report under paragraph (1)--
``(A) shall not be binding on the Secretary; and
``(B) shall not relieve an eligible entity from any
obligation to comply with any applicable order or rule
of the Secretary.
``(i) Savings Clause.--Nothing in this section affects in any
manner the authority, existing on the day before the date of enactment
of the Energy Infrastructure Protection Act of 2020, of--
``(1) the Electric Reliability Organization;
``(2) a regional entity;
``(3) an information sharing and analysis center; or
``(4) a component of any Federal department or agency other
than the Department of Energy, including the authority provided
to--
``(A) the Cybersecurity and Infrastructure Security
Agency; and
``(B) the national cybersecurity and communications
integration center established under section 2209(b) of
the Homeland Security Act of 2002 (6 U.S.C. 659(b)).
``SEC. 234. ACCESS TO CRITICAL ELECTRIC INFRASTRUCTURE INFORMATION.
``(a) Access.--
``(1) In general.--Except as provided in paragraph (2), and
subject to subsections (c) and (e), the Secretary or the
Commission, as applicable, shall not disclose or release
critical electric infrastructure information to any individual
or entity.
``(2) Exceptions.--
``(A) In general.--Subject to subparagraph (B), the
Secretary or the Commission, as applicable, may
disclose critical electric infrastructure information--
``(i) to the source of the information;
``(ii) to a party or participant in a
proceeding before the Secretary or the
Commission, if--
``(I) the information is relevant
to that proceeding; and
``(II) each individual seeking
access to the information has entered
into a nondisclosure agreement with the
source of the information;
``(iii) to an individual who is an officer,
employee, agent, or contractor of the Secretary
or the Commission;
``(iv) to an officer, employee, agent, or
contractor of--
``(I) the Electric Reliability
Organization;
``(II) a regional entity; or
``(III) an information sharing and
analysis center;
``(v) to an officer, employee, agent, or
contractor of the Federal Government;
``(vi) to the President, the National
Security Council, a member of Congress, a
Federal judge or magistrate, or any officer of
the United States appointed by the President
with the advice and consent of the Senate;
``(vii) to an individual who is an officer,
employee, agent, or contractor of Congress, the
Executive Office of the President, or a court
created under article I or III of the
Constitution of the United States;
``(viii) to a landowner the property of
which has a boundary that is crossed by, or
located within the vicinity of, energy
infrastructure, as determined by the Secretary
or the Commission, as applicable, if--
``(I) the landowner provides to the
Secretary or the Commission, as
applicable, proof of the property
interest of the landowner; and
``(II) the critical electric
infrastructure information consists of
detailed alignment sheets concerning
actual or proposed energy
infrastructure within the vicinity of
the property boundary, as determined by
the Secretary or the Commission, as
applicable;
``(ix) to an officer, employee, agent, or
contractor of an authority of a State,
political subdivision, or Indian Tribe, if each
individual seeking access to the information
has entered into a nondisclosure agreement with
the Secretary or Commission, as applicable;
``(x) to an individual holding a security
clearance at the level of top secret or higher;
or
``(xi) to any other individual, if--
``(I) the source of the information
has given express consent to the
disclosure of the information to the
individual; and
``(II) a nondisclosure agreement
between the source of the information
and each individual seeking access to
the information has been approved by--
``(aa) an administrative
law judge of, or assigned to,
the Department of Energy; or
``(bb) an administrative
law judge of, or assigned to,
the Commission.
``(B) Disclosure for academic, scientific, or
research purposes.--The Secretary or the Commission, as
applicable, may disclose critical electric
infrastructure information to an individual for
academic, scientific, or research purposes, including
academic, scientific, or research work that is
conducted by the Department of Energy at any laboratory
of the Department of Energy, if--
``(i) the individual holds a security
clearance at the level of top secret or higher;
or
``(ii)(I) the source of the information
expressly consents to the disclosure of the
information to the individual for the academic,
scientific, or research work; and
``(II) a nondisclosure agreement between
the source of the information and each
individual seeking access to the information
has been approved by--
``(aa) an administrative law judge
of, or assigned to, the Department of
Energy; or
``(bb) an administrative law judge
of, or assigned to, the Commission.
``(C) Authority to retain information.--
``(i) In general.--The Secretary or the
Commission, as applicable--
``(I) shall have no obligation to
disclose critical electric
infrastructure information to any
individual or entity; and
``(II) may withhold disclosure of
critical electric infrastructure
information at any time, for any
reason, at the sole discretion of the
Secretary or the Commission, as
applicable.
``(ii) Requirement.--
``(I) In general.--If the Secretary
or the Commission, as applicable,
determines that the disclosure of
critical electric infrastructure
information to an individual or entity
may jeopardize the common defense and
security of the United States, the
information shall not be disclosed to
that individual or entity.
``(II) Coordination.--The Secretary
shall share appropriate information and
coordinate resources with the
Commission to ensure compliance with
the requirement described in subclause
(I).
``(b) Nondisclosure Agreements.--
``(1) In general.--Each nondisclosure agreement entered
into or approved under this section shall--
``(A) reflect the individual circumstances
concerning the parties to the agreement;
``(B) permit the auditing of compliance with the
agreement; and
``(C) be enforceable in law and equity by any
district court of the United States.
``(2) Modification of standardized forms; dispute
resolution.--
``(A) Standardized forms.--
``(i) Use of standardized forms
permitted.--Potential parties to a
nondisclosure agreement may use a standardized
form of agreement if that form is appropriate
for the particular circumstances.
``(ii) Modification by the parties.--
Notwithstanding any policy or rule of the
Secretary or the Commission relating to
standardized forms of nondisclosure agreements,
the express terms of a nondisclosure agreement
shall be subject to appropriate revision by the
parties to the agreement.
``(B) Dispute resolution.--
``(i) In general.--Any dispute regarding a
nondisclosure agreement, including any dispute
regarding the terms of a proposed nondisclosure
agreement or compliance with an existing
nondisclosure agreement, shall be resolved by--
``(I) a district court of the
United States;
``(II) an administrative law judge
of, or assigned to, the Department of
Energy; or
``(III) an administrative law judge
of, or assigned to, the Commission.
``(ii) Judicial review.--
``(I) In general.--Any party to a
proceeding to resolve a dispute
described in clause (i) who is
aggrieved by an order issued by an
administrative law judge under that
clause may obtain review of that order
in a district court of the United
States by filing, in accordance with
subclause (II), a petition for review
in--
``(aa) the United States
District Court for the District
of Columbia; or
``(bb) the district court
of the United States for the
judicial district in which any
party to the nondisclosure
agreement resides.
``(II) Petition for review.--A
petition for review of any order
subject to review under subclause (I)
shall--
``(aa) be filed not later
than 30 days after the date on
which the administrative law
judge issues the order; and
``(bb) request that the
order be modified or set aside
in whole or in part.
``(3) Option for federal form of nondisclosure agreement.--
The Secretary or the Commission, as applicable, may require an
individual seeking access to critical electric infrastructure
information from the Secretary or the Commission to enter into
a nondisclosure agreement with the Secretary or the Commission,
as applicable, in addition to any nondisclosure agreement
entered into by that individual with the source of the
information.
``(c) Disclosure of Indicators, Methods, and Tools.--
Notwithstanding subsection (a)(1), the Secretary or the Commission, as
applicable, may disclose indicators, methods, and tools that have been
used in penetrating or defending energy infrastructure if--
``(1) the source of the information consents to the release
of that information; and
``(2) the Secretary or the Commission, as applicable,
removes all information that would enable an individual to
identify the source of the information.
``(d) Protection of Information.--Any critical electric
infrastructure information that is disclosed by the Secretary or the
Commission under subsection (a)(2), or that is required to be disclosed
under a rule issued pursuant to subsection (e)(2)--
``(1) shall be protected from disclosure by the recipient;
``(2) shall be exempt from disclosure under section
552(b)(3) of title 5, United States Code; and
``(3) shall not be made available by any Federal, State,
political subdivision, or Tribal authority under any applicable
law requiring public disclosure of information or records.
``(e) Savings Clauses.--
``(1) Information controlled by owners and operators of
energy infrastructure.--Nothing in this section limits the
ability of an owner or operator of energy infrastructure to
handle the information controlled by that owner or operator,
including information that could be designated as critical
electric infrastructure information, in whatever manner the
owner or operator believes will best serve the interests of the
owner or operator, including--
``(A) by exchanging that information with other
owners or operators of energy infrastructure; and
``(B) by providing that information to officers,
employees, agents, and contractors of the owner or
operator.
``(2) Disclosure to certain individuals and entities.--
``(A) In general.--Except as provided in
subparagraph (C), nothing in this section limits the
ability of the Commission to issue or enforce a rule of
general applicability requiring a public utility to
disclose certain critical electric infrastructure
information to an eligible recipient described in
subparagraph (B) that requests the information.
``(B) Eligible recipient described.--An eligible
recipient referred to in subparagraph (A) is--
``(i) an electric utility;
``(ii) a potential or existing
interconnection customer of the public utility;
``(iii) a potential or existing
transmission customer of the public utility;
``(iv) a State regulatory authority; or
``(v) a member of the public.
``(C) Requirements.--Any rule described in
subparagraph (A) issued or enforced by the Commission
shall--
``(i) require that each request for
critical electric infrastructure information be
disclosed to the source of the information;
``(ii) require disclosure only if each
individual seeking access to critical electric
infrastructure information has entered into a
nondisclosure agreement with the source of the
information;
``(iii) provide that the source of the
information shall have no liability for damages
associated with misuse of the critical electric
infrastructure information that results in an
attack on energy infrastructure; and
``(iv) with respect to a request submitted
by a member of the public, require disclosure
only after each individual seeking access to
critical electric infrastructure information
has entered into a nondisclosure agreement with
the source of the information that has been
approved by--
``(I) an administrative law judge
of, or assigned to, the Department of
Energy; or
``(II) an administrative law judge
of, or assigned to, the Commission.
``SEC. 235. DESIGNATING INFORMATION HELD BY OTHER GOVERNMENTAL
AUTHORITIES.
``(a) Definition of Eligible Entity.--In this section:
``(1) In general.--The term `eligible entity' means--
``(A) a Federal, State, political subdivision, or
Tribal authority; and
``(B) a utility owned or operated by 1 or more of
the authorities described in subparagraph (A),
including a joint action agency or similar entity.
``(2) Exclusions.--The term `eligible entity' does not
include--
``(A) the Secretary; or
``(B) the Commission.
``(b) Request for Designation.--An eligible entity may submit to
the Secretary or the Commission a request to designate information that
is in the possession and control of the eligible entity as critical
electric infrastructure information by providing to the Secretary or
the Commission, as applicable, a description of--
``(1) the nature of the information for which the
designation is requested; and
``(2) the basis for the designation.
``(c) Timing; Effect; Future Information.--
``(1) Timing.--
``(A) Submission.--A request under subsection (b)
may be submitted to the Secretary or the Commission at
any time, including after disclosure of the relevant
information has been requested under any applicable law
requiring public disclosure of information or records.
``(B) Treatment of submitted information.--On
receipt of a request under subsection (b), the
Secretary or the Commission, as applicable, shall treat
the information that is the subject of the request as
critical electric infrastructure information until the
earlier of--
``(i) the date on which the Secretary or
the Commission, as applicable, designates the
information as critical electric infrastructure
information; and
``(ii) the date that is 21 days after the
date on which the Secretary or Commission, as
applicable, provides written notice to the
eligible entity that submitted the request that
the request is denied.
``(2) Effect.--
``(A) Effect of request for public disclosure.--The
submission of a request to the Secretary or the
Commission under subsection (b) after a request for
public disclosure of the relevant information has been
made shall not prejudice any decision with respect to
whether the information should be designated as
critical electric infrastructure information.
``(B) Effect of failure to timely act on
submission.--If the Secretary or the Commission, as
applicable, fails to grant or deny a request submitted
under subsection (b) by the date that is 1 year after
the date on which the request is submitted, the
information that is the subject of the request shall be
designated as critical electric infrastructure
information for a period of 10 years beginning on the
date on which the request is submitted.
``(3) Future information.--A submission to the Secretary or
the Commission under subsection (b) may concern--
``(A) existing information; or
``(B) information that is expected to be created
after the date of the submission, including any
information that is expected to be created on a
periodic or ongoing basis.
``(d) Responsibility for a Defense.--An eligible entity for which
the Secretary or the Commission, as applicable, has granted a request
to designate certain information as critical electric infrastructure
information under this section, or for which information has been
designated as critical electric infrastructure information for a period
of 10 years under subsection (c)(2)(B)--
``(1) shall not request that the Secretary or the
Commission provide a defense against any claim for disclosure
of the designated information; and
``(2) shall be entirely responsible for a defense,
including by paying for a defense, against any claim for
disclosure of the designated information under--
``(A) section 552 of title 5, United States Code;
or
``(B) any other applicable law (including any
Federal, State, political subdivision, or Tribal law)
requiring public disclosure of information or records.
``(e) Disclosure and Release of Information.--
``(1) In general.--Except as provided in paragraph (2)--
``(A) any information that is in the possession and
control of an eligible entity shall not be subject to
section 234(d); and
``(B) an eligible entity may establish standards
for the disclosure or release of information in the
possession and control of the eligible entity.
``(2) Protection of certain information.--Any critical
electric infrastructure information that is disclosed to an
eligible entity by the Secretary or the Commission under
section 234(a)(2) or by a public utility under a rule issued
pursuant to section 234(e)(2) shall be subject to section
234(d).
``SEC. 236. WARTIME CLEARANCE.
``(a) In General.--Whenever Congress declares that a state of war
exists, or in the event of a national disaster due to enemy attack, the
Secretary and the Commission are authorized, during the state of war or
period of national disaster due to enemy attack, to confer with
individuals and grant individuals access to critical electric
infrastructure information pending further investigation of those
individuals.
``(b) Limitation.--The Secretary and the Commission may confer with
individuals and grant individuals access to critical electric
infrastructure information under subsection (a) only to the extent
that, and for so long as, the Secretary or the Commission finds that
such action is required to prevent impairment of the activities of the
Secretary or the Commission that are in furtherance of the common
defense and security.
``SEC. 237. ENFORCEMENT AND SANCTIONS.
``(a) Enforcement.--Any individual who fails to return critical
electric infrastructure information by the date that is 90 days after
the date on which the individual is served with a demand by the
Secretary or the Commission to return that critical electric
infrastructure information shall be subject to enforcement under
sections 314, 316, and 316A.
``(b) Sanctions.--
``(1) Sanctions by the commission.--The Commission shall
ensure that appropriate sanctions are in place for--
``(A) any Commissioner or former Commissioner who
knowingly and willfully discloses critical electric
infrastructure information in a manner that is not
authorized under this subpart, with sanctions to
include, at a minimum--
``(i) the potential loss of access to
critical electric infrastructure information;
and
``(ii) the potential public issuance of
letters of reprimand; and
``(B) any officer, employee, agent, or contractor
of the Commission who knowingly and willfully discloses
critical electric infrastructure information in a
manner that is not authorized under this subpart.
``(2) Sanctions by the secretary.--The Secretary shall
ensure that appropriate sanctions are in place for any officer,
employee, agent, or contractor of the Secretary who knowingly
and willfully discloses critical electric infrastructure
information in a manner that is not authorized under this
subpart.''.
(e) Conforming Amendments.--
(1) Section 201 of the Federal Power Act (16 U.S.C. 824) is
amended--
(A) in subsection (b)(2)--
(i) by striking ``215A,'' each place it
appears;
(ii) in the first sentence, by inserting
``and subpart B'' after ``and 222''; and
(iii) in the second sentence, by striking
``222,'' and inserting ``222 or subpart B'';
and
(B) in subsection (e)--
(i) by striking ``215A,''; and
(ii) by inserting ``or subpart B'' after
``or 222''.
(2) Section 6003(c)(1)(A) of the FAST Act (6 U.S.C. 121
note; Public Law 114-94) is amended by striking ``section
215A'' and inserting ``section 230''.
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