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Electronic Code of Federal Regulations

e-CFR data is current as of February 19, 2020

Title 10Chapter IISubchapter APart 205Subpart W → Subject Group


Title 10: Energy
PART 205—ADMINISTRATIVE PROCEDURES AND SANCTIONS
Subpart W—Electric Power System Permits and Reports; Applications; Administrative Procedures and Sanctions; Grid Security Emergency Orders


Internal Procedures for Issuance of a Grid Security Emergency Order

Source: Sections 205.380 through 205.391 were added at 83 FR 1180, Jan. 10, 2018, unless otherwise noted.

§205.380   Definitions.

As used in this subpart:

Bulk-power system means the same as the definition of such term in paragraph (1) of section 215(a) of the Federal Power Act.

Critical electric infrastructure means the same as the definition of such term in paragraph (2) of section 215A(a) of the Federal Power Act.

Defense critical electric infrastructure means the same as the definition of such term in paragraph (4) of section 215A(a) of the Federal Power Act.

Department means the United States Department of Energy.

Electric Reliability Organization means the same as the definition of such term in paragraph (2) of section 215(a) of the Federal Power Act.

Electricity Information Sharing and Analysis Center (E-ISAC) means the organization, operated on behalf of the electricity subsector by the Electric Reliability Organization, that gathers and analyzes security information, coordinates incident management, and communicates mitigation strategies with stakeholders within the electricity subsector, across interdependent sectors, and with government partners. The E-ISAC, in collaboration with the Department of Energy and the Electricity Subsector Coordinating Council, serves as the primary security communications channel for the electricity subsector and enhances the subsector's ability to prepare for and respond to cyber and physical threats, vulnerabilities, and incidents.

Electricity subsector means both commercial and industrial actors who generate and deliver electric power.

Electricity Subsector Coordinating Council (ESCC) means the organization that aims to foster and facilitate the coordination of sector-wide, policy-related activities and initiatives designed to improve the reliability and resilience of the electricity subsector, including physical and cyber security infrastructure.

Electromagnetic pulse means the same as the definition of such term in paragraph (5) of section 215A(a) of the Federal Power Act.

Emergency & Incident Management Council (EIMC) means the organization, internal to the Department of Energy and chaired by the Deputy Secretary of Energy, designed to increase cooperation and coordination across the Department to prepare for, mitigate, respond to, and recover from emergencies.

Emergency measures means measures necessary in the judgment of the Secretary to protect or restore the reliability of critical electric infrastructure or of defense critical electric infrastructure during a grid security emergency as defined in section 215A(a) of the Federal Power Act.

Emergency order means an order for emergency measures under section 215A(b) of the Federal Power Act.

Geomagnetic storm means a temporary disturbance of the Earth's magnetic field resulting from solar activity.

Grid security emergency means the same as the definition of such term in paragraph (7) of section 215A(a) of the Federal Power Act. A grid security emergency is “declared” once the President of the United States has issued and provided to the Secretary a written directive or determination identifying the emergency.

Regional entity means an entity having enforcement authority under section 215(e)(4) of the Federal Power Act, 16 U.S.C. 824o(e)(4).

Secretary means the Secretary of Energy.

§205.381   Applicability of emergency orders.

An order for emergency measures under section 215A(b) of the Federal Power Act (emergency order) may apply to the Electric Reliability Organization, a regional entity or entities, or any owner, user, or operator of critical electric infrastructure or of defense critical electric infrastructure within the United States. Emergency measures may be issued if deemed necessary in the judgment of the Secretary to protect or restore the reliability of critical electric infrastructure or of defense critical electric infrastructure during a presidentially-declared grid security emergency.

§205.382   Issuing an emergency order.

(a) The Secretary will use the procedures outlined in this section in issuing emergency orders, unless the Secretary determines that alternative procedures are more appropriate for the unique circumstances presented by the emergency. In all instances, the Secretary has final authority on the procedures to be used in issuing an emergency order.

(b) Upon the Department's receipt of the President's written directive or determination identifying a grid security emergency, the Emergency & Incident Management Council (EIMC) will convene at least one emergency meeting. Resulting from this meeting, the EIMC's responsibilities will include, but not be limited to:

(1) Assigning consultation and situational awareness tasks;

(2) Creating ad hoc task groups;

(3) Assigning recommendation development tasks to the ad hoc task groups it has created; and

(4) Presenting its recommendations to the Secretary as expeditiously as possible and practicable.

(c) Following receipt of the EIMC's recommendations, unless the Secretary has determined alternative procedures are appropriate, the Secretary will issue an emergency order as quickly as the Secretary determines that the situation requires.

§205.383   Consultation.

(a) To obtain information related to a particular grid security emergency and recommended emergency measures from those government entities, electric reliability organizations, and private sector companies, and their respective associations where applicable, affected by the emergency, the office that is delegated the authority by the Secretary will conduct consultation related to each emergency order. Before an emergency order is put into effect and, to the extent practicable in light of the nature of the grid security emergency and the urgency of the need for action, efforts will be made to consult with at least the following, as appropriate:

(1) The Electricity Subsector Coordinating Council;

(2) The Electricity Information Sharing and Analysis Center;

(3) The Electric Reliability Organization;

(4) Regional entities; and

(5) Owners, users, or operators of critical electric infrastructure or of defense critical electric infrastructure within the United States; and

(6) At least the following government entities:

(i) Authorities in the government of Canada;

(ii) Authorities in the government of Mexico;

(iii) Appropriate Federal and State agencies including, but not limited to, those supporting Emergency Support Function No. 12;

(iv) The Federal Energy Regulatory Commission; and

(v) The Nuclear Regulatory Commission.

(b) The Department recognizes the expertise of electric grid owners and operators and other consulted entities in seeking to ensure that emergency orders result in the safe and effective operation of the electric grid, align with additional priorities including evidence collection, and comply with existing regulatory requirements, where required. The Department will endeavor, to the extent practicable, to conduct consultation in alignment with the existing Emergency Support Function No. 12 structure and established emergency management processes under the National Response Framework.

[83 FR 1180, Jan. 10, 2018, as amended at 85 FR 3232, Jan. 21, 2020]

§205.384   Communication of orders.

The Department will communicate the contents of an emergency order to the entities subject to the order, utilizing the most expedient form or forms of communication under the circumstances. The Department will attempt to conduct communication of emergency orders in alignment with the existing Emergency Support Function No. 12 structure and established emergency management procedures under the National Response Framework by relying on existing coordinating bodies, such as the ESCC and the E-ISAC, and, recognizing the existence of established crisis communication procedures, any other form or forms of communication most expedient under the particular circumstances. To the extent practicable under the particular circumstances, efforts will be made to declassify eligible information to ensure maximum distribution.

§205.385   Clarification or reconsideration.

(a) Any entity subject to an emergency order may request clarification or reconsideration of the emergency order. All such requests must be submitted in writing to the Secretary. The Department will post all such requests on the DOE website consistent with 10 CFR part 1004. To the extent the ordered entity believes the grid security emergency order lacks necessary clarity for implementation, or conflicts with the technically feasible operations of the electric grid or existing regulatory requirements, the ordered entity should seek immediate clarification from the Department.

(b) Upon receipt of a request for clarification or reconsideration, the Secretary may, in his or her sole discretion, order a stay of the emergency order for which such clarification or rehearing is sought. The Secretary will act as soon as practicable on each request, with or without further proceedings. Such responsive actions may include granting or denying the request or abrogating or modifying the order, in whole or in part.

§205.386   Temporary access to classified and sensitive information.

(a) To the extent practicable, and consistent with obligations to protect classified and sensitive information, the Secretary may provide temporary access to classified and sensitive information, at the level necessary in light of the conditions of the incident, related to a grid security emergency for which emergency measures are issued to key personnel of any entity subject to such emergency measures, to the extent the Secretary deems necessary under the circumstances. The purpose of this access, as defined under section 215A(b)(7) of the Federal Power Act, is to enable optimum communication between the entity and the Secretary and other appropriate Federal agencies regarding the grid security emergency.

(b) CEII will be shared, where deemed necessary by the Secretary, in accordance with 10 CFR part 1004.

§205.387   Tracking compliance.

Beginning at the time the Secretary issues an emergency order, the Department may, at the discretion of the Secretary, require the entity or entities subject to an emergency order to provide a detailed account of actions taken to comply with the terms of the emergency order.

§205.388   Enforcement.

In accordance with available enforcement authorities, the Secretary may take or seek enforcement action against any entity subject to an emergency order who fails to comply with the terms of that emergency order.

§205.389   Rehearing and judicial review.

The procedures of Part III of the Federal Power Act apply to motions for rehearing of an emergency order. A request for clarification or reconsideration filed under §205.385 of this subpart, if the filling entity so designates, may serve as a request for rehearing pursuant to section 313(a) of the Federal Power Act.

§205.390   Liability exemptions.

(a) To the extent any action or omission taken by an entity that is necessary to comply with an emergency order issued pursuant to section 215A(b)(1) of the Federal Power Act and this Part, including any action or omission taken to voluntarily comply with such order, results in noncompliance with, or causes such entity not to comply with any rule, order, regulation, or provision of or under the Federal Power Act, including any reliability standard approved by the Federal Energy Regulatory Commission pursuant to section 215 of the Federal Power Act, the Department will not consider such action or omission to be a violation of such rule, order, regulation, or provision.

(b) The Department will treat an action or omission by an owner, operator, or user of critical electric infrastructure or of defense critical electric infrastructure to comply with an emergency order issued pursuant to section 215A(b)(1) of the Federal Power Act as the functional equivalent of an action or omission taken to comply with an order issued under section 202(c) of the Federal Power Act for purposes of section 202(c).

(c) The liability exemptions specified in paragraphs (a) and (b) of this section do not apply to an entity that, in the course of complying with an emergency order by taking an action or omission for which the entity would otherwise be liable, takes such action or omission in a grossly negligent manner.

§205.391   Termination of an emergency order.

(a) An emergency order will expire no later than 15 days after its issuance. The Secretary may reissue an emergency order for subsequent periods, not to exceed 15 days for each such period, provided that the President, for each such period, issues and provides to the Secretary a written directive or determination that the grid security emergency for which the Secretary intends to reissue an emergency order continues to exist or that the emergency measures continue to be required.

(b) The Secretary may rescind an emergency order after finding that the grid security emergency for which that order was issued has ended, and that protective or mitigation measures required by that order have been sufficiently taken.

(c) An entity or entities subject to an emergency order issued under this subpart may, at any time, request termination of the emergency order by demonstrating, in a petition to the Secretary, that the emergency no longer exists and that protective or mitigation measures required by the order have been sufficiently taken.

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