Electricity Markets

DOE issues final rule related to issuance of emergency orders

The Department of Energy on Jan. 10 issued a final rule establishing procedural regulations for the issuance of emergency orders by the Secretary of Energy under a section of the Federal Power Act (FPA).

Section 215A was added to the FPA in 2015 by the Fixing America’s Surface Transportation Act.

Under section 215A(b), if the President of the United States declares a “grid security emergency,” the Secretary of Energy is authorized to issue orders for “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.”  

As defined in section 215A, a grid security emergency could result from a physical attack, a cyber-attack using electronic communication or an electromagnetic pulse, or a geomagnetic storm event.

FPA section 215A(b)(1) requires the DOE to implement procedural rules so that the Secretary’s emergency order “authority can be exercised expeditiously.” In order to satisfy this statutory requirement, DOE issued proposed regulations in December 2016.

Association, others filed comments

In February 2017, the American Public Power Association filed joint comments on the proposed rules with the Large Public Power Council, National Rural Electric Cooperative Association, and Transmission Access Policy Study Group.

The final rule describes procedures for:

  • Outreach to industry;
  • Consultation prior to issuance of an emergency order;
  • Communication of orders;
  • Clarification or reconsideration of orders;
  • Temporary access to classified and sensitive information;
  • Termination of orders;
  • Tracking compliance with an order;
  • Enforcement of orders;
  • Rehearing and judicial review of emergency orders; and
  • Liability exemptions

The final rule does not address the specific measures the Secretary might implement in an emergency order.

The DOE adopted a number of the recommendations included in the comments submitted by the Association and the other three groups including a pledge to conduct additional industry outreach, clarification of the consultation and order communication processes and revision of some of the more technical aspects of the procedural rules.