Friday, June 5, 2020

S 3688 Introduced – Energy Infrastructure Security

Last month Sen Murkowski (R,AK) introduced S 3688, the Energy Infrastructure Protection Act of 2020. The bill revises and expands the scope of 16 USC 824o-1, Critical electric infrastructure security, to include a wider range of energy production and delivery infrastructure.

Sense of Congress

Section 2 of the bill provides an outline of the importance of energy production and delivery infrastructure in the United States and the threats currently facing that infrastructure. It comes to two separate conclusions that inform the scope of this legislation. First {§2(11)}:

Owners and operators of electric infrastructure, entities involved with electric infrastructure, he Federal Energy Regulatory Commission, the Department of Energy, other Federal departments and agencies, States, and units of local government have information that can be used by those who seek to harm the United States to disrupt electricity service and should be protected from excessive dis- closure.

That conclusion is the reason for the existence of the current §824o-1, which among other things establishes the energy sector sensitive but unclassified information program, critical electric infrastructure information (CEII).

The second conclusion opines that {§2(12)}:

Owners and operators of electric infrastructure have been acting to reduce the vulnerability of their assets; and should have better opportunities to further reduce the vulnerability of their assets.

This second conclusion provides the basis for the expansion of the scope and coverage of the existing statute.

Regulatory Structure

The language of the bill takes the existing provisions of Part II of the Federal Power Act (16 USC 824 et seq) and labels that “Subpart A—General Requirements”. It then establishes a new Subpart B, Protecting Energy Infrastructure. The initial section of that new subpart, §230, is taken from the current §215(a) (§824o-1(a)) and re-titled as “Definitions”. The remaining paragraphs of 215 are moves to §231, Critical Electric Infrastructure Security. Additional new sections added to the new Subpart B are:

§232. Authority of the Commission to Offer Assistance to Owners and Operators of Energy Infrastructure,
§233. Authority of the Secretary to Offer Assistance to Owners and Operators of Energy Infrastructure,
§234. Access to Critical Electric Infrastructure Information,
§235. Designating Information Held by Other Governmental Authorities,
§236. Wartime Clearance, and
§237. Enforcement and Sanctions

All of this is going to cause some consternation amongst those responsible for the maintenance of the US Code. Currently most of Part II of the Federal Power Act is found in 16 USC Chapter 12, Subchapter II (§824 et seq). That subchapter already goes through §824w and includes such oddities as the aforementioned §824o-1. Shoehorning the new Subpart B into that structure would be difficult. I suspect that what will be done instead is to start a new Subchapter V, Protecting Energy Infrastructure, starting with §829 and call §232 thru §237 above §829a thru §829f.


The new §230 includes the current definitions found in §215A(a). The bill would also add the following definitions:

• Commission {§230(2)},
• Critical electric infrastructure information {§230(4)},
• Energy infrastructure {§230(7)},
• Natural gas and natural-gas company {§230(10)},
• Oil and oil pipeline {§230(11)}, and
• Source of the information {§230(13)}

The key new term here is ‘energy infrastructure’. The definition provides the following list of ‘all systems or assets that’ {§230(7)}:

• Comprising the bulk-power system,
• Are owned by electric utilities,
• Allow for the transportation of fuel, electricity, water, steam, heat, cold, or any commodity that is used in the provision of electricity service,
• Facilitate the delivery of electrical energy to consumers, wholesale transactions in electrical energy, or the import or export of electrical energy, or
• Are subject to the jurisdiction of the Commission.

That new term is also added to the definition of the existing term ‘critical electric infrastructure’ so that would be defined as {§230(3)} “energy infrastructure or a system or asset of the bulk-power system, whether physical or virtual, the incapacity or destruction of which would negatively affect national security, economic security, public health or safety, or any combination of such matters. That, in turn, would make the Critical Electric Infrastructure Information’ (CEII) program apply to all of the defined energy infrastructure.

Future Posts

This is a long enough post for today, especially since the bill just gets more complicated from here. I will address the remaining portions of the legislation in future blog posts.

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