This is the second post about the introduction of S 3688,
the Energy Infrastructure Protection Act of 2020. In the initial
post I talked about the organizational changes the bill proposes for the
Federal Power Act and the definitional changes proposed. In this post I will
look at the changes the bill would make in the Critical Electric Infrastructure
Information (CEII) program.
CEII Designation
Section 3(c) of the bill would revise §215(d), “Protection
and sharing of critical electric infrastructure information”, of the Federal
Power Act {16
USC 824o-1(d)(2)} [after changing the designation of that subsection to §231(c)].
First, paragraph (2), “Designation and sharing of critical
electric infrastructure information”, is re-written, removing reference to
sanctions {existing (2)(C)} and the ‘standards of the Electric Reliability
Organization’ {existing (2)(D)}.
Then, paragraph (3), “Authority to designate”, is greatly
expanded. The existing language is essentially rewritten as subparagraph (A). Then
two new subparagraphs were added:
(B) Submission of request for
designation, and
(C) Conflicts between designations
by the secretary and the commission
Subparagraph (B) would allow anyone to request that either
the Secretary or FERC designate any information in the respective agency’s possession
as CEII. Upon receipt of such a request the agency would be required to treat
the requested information as CEII until it is actually designated as such or 21
days after the agency notifies the requestor that the information was not so
designated.
Subparagraph (C) would require the Department and FERC to
confer anytime that there was a conflicting decision made on whether a specific
piece of information would be designated as CEII. Absent a mutual resolution of
such conflicts, each agency would be allowed to rely on its own designation in
the protection of the information.
Segregation of CEII
Changes would also be made to the existing §215(d)(8), “Disclosure
of nonprotected information” [re-designated §231(c)(8)]. The poorly named
paragraph currently requires DOE and FERC to “segregate critical electric
infrastructure information or information that reasonably could be expected to lead
to the disclosure” of CEII within documents or communications. The new language
would ease that requirement somewhat by changing “shall segregate” to “shall
reasonably attempt to segregate”.
A new subparagraph (B) was added to provide legal cover for
that easing of the segregation requirement by specifically noting that any such
failure to segregate CEII in a document “shall not result in an inference or
finding that the information should not be entitled to protection as critical
electric infrastructure information”.
Duration of Designation
Paragraph §215(d)(9), “Duration of designation” [re-designated
§231(d)(9)], is completely rewritten. The reference to the ‘5 year’ limitation on
CEII designation is removed. The replacing limitation in the new subparagraph
(A) would be not “for a period longer than the information is related to energy
infrastructure in service”. Even for that broader limit an exception is
provided, allowing DOE or FERC to re-designate information as CEII “before, on,
or after the date on which an earlier designation has expired”.
An even broader duration designation is provided in
subparagraph (C) for 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”. This
subparagraph allows DOE or FERC to designate such information as CEII “for the
period during which the vulnerability or threat exists” {new §231(d)(9)(C)(i)}
and “for any additional period determined to be appropriate” {new §231(d)(9)(C)(ii)}.
Removal of Designation
The bill deletes the current language of §215(d)(10), “Removal
of designation” and provides ‘substitute’ language for §231(c)(10), “Removal of
designation”. That is somewhat misleading though as the only actual change to
the existing language is the insertion of the term ‘energy infrastructure’
before the words “the bulk-power system, or distribution facilities” at the end
of the paragraph. This was necessary because of the expansion of the definition
of term ‘critical electric infrastructure’ used in the definition of CEII.
Two New Paragraphs Added
The bill also adds two new paragraphs to §231(c):
(12) No immediate obligation to
designate, and
(13) Effect of prior determinations
The first specifically allows DOE or FERC to sit on a CEII
designation request until a request for disclosure of the information is made
under 5 USC 552 (Freedom of Information Act) or any other law “requiring public
disclosure of information or records”. Since, as noted above, lacking a
determination, information is required to be treated as CEII upon request, this
has little legal effect on the duty of DOE or FERC to protect the information as
CEII.
The second new paragraph specifically allows DOE or FERC to
designate information as CEII even if a previous decision had been made not to
make such a designation in the past.
This is another good stopping point even though there are
CEII changes in subsequent portions of this bill.
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