Security and Resilience (Cyber and Physical)

Infrastructure bill addresses several issues of importance to public power

Legislation recently introduced by Sens. Lisa Murkowski, R-Alaska, and Jim Risch, R-Idaho, includes a provision that would allow public power utilities to ask the Department of Energy (DOE) or the Federal Energy Regulatory Commission (FERC) to designate information as critical electric infrastructure information (CEII).

The Energy Infrastructure Protection Act of 2020, S. 3688, also addresses three of four issues included in an American Public Power Association policy resolution, “In Support of Protecting Critical Electric Infrastructure from Public Disclosure,” which was unanimously approved by APPA’s membership at the 2020 Legislative Rally.

The bill is intended to increase protections for CEII and APPA provided extensive comments on multiple rounds of drafts of the bill.

“APPA appreciates the willingness of Chairman Lisa Murkowski and her staff to include our feedback in the Energy Infrastructure Protection Act of 2020,” said Joy Ditto, President and CEO of APPA.  “We will continue to work closely with Chairman Murkowski and advocate on behalf of public power’s interests as the bill advances in the Senate,” she said.

Murkowski is Chairman of the Senate Energy and Natural Resources Committee.

The Fixing America's Surface Transportation Act of 2015, or FAST Act, defined the terms “critical electric infrastructure” (CEI), CEII, and “defense critical electric infrastructure information” (DCEI) and directed FERC to establish criteria and procedures to protect such information from disclosure.

FERC and the DOE were both given authority to designate information as CEII. FERC and DOE have taken the position that the FAST Act allows them to share CEII with members of the public, although FERC and DOE make such sharing subject to non-disclosure agreements and impose other requirements intended to limit wider distribution).

The Energy Infrastructure Protection Act of 2020 would place important parameters over with whom FERC and DOE can share CEII and address a number of other concerns regarding protection of CEII that have arisen under the FAST Act.

Bill would set up process for public power utilities to seek CEII designations

The bill includes a provision that sets up a process for public power utilities to ask the DOE or FERC to designate information as CEII, even if that information is not normally in the possession of the federal government.

The CEII designation serves to exempt the information from state, local, and tribal public records laws.

As units of state and local governments, public power utilities are often subject to state and local open records laws, and the CEII designation process proposed in the legislation would make it easier for public power utilities to protect sensitive information from being disclosed to those who may seek to do the electric system and its employees harm.

Bill addresses issues included in APPA policy resolution

In addition, the bill addresses three of the four issues in the APPA policy resolution approved at the Legislative Rally earlier this year:

  • It would clarify that DOE has the authority to write its own regulations establishing the criteria and procedures for designating information as CEII;
  • It would direct DOE and FERC to treat information submitted for designation as CEII upon receipt until either (a) DOE/FERC designates it as CEII; or (b) 21 days after DOE/FERC provides written notice to the individual or entity that submitted the request that the request is denied; and
  • It would extend the length of time CEII is protected from disclosure from five years to as long as the asset is in service and further specifies that CEII related to a vulnerability or threat shall be designated CEII as long as that threat or vulnerability exists.

The Senate Energy and Natural Resources Committee may hold a hearing on the bill sometime in June.