16 USC 824(o)

§ 824o–1

TITLE 16—CONSERVATION

(h) Coordination with Canada and Mexico
The President is urged to negotiate international agreements with the governments of
Canada and Mexico to provide for effective compliance with reliability standards and the effectiveness of the ERO in the United States and
Canada or Mexico.
(i) Savings provisions
(1) The ERO shall have authority to develop
and enforce compliance with reliability standards for only the bulk-power system.
(2) This section does not authorize the ERO or
the Commission to order the construction of additional generation or transmission capacity or
to set and enforce compliance with standards for
adequacy or safety of electric facilities or services.
(3) Nothing in this section shall be construed
to preempt any authority of any State to take
action to ensure the safety, adequacy, and reliability of electric service within that State, as
long as such action is not inconsistent with any
reliability standard, except that the State of
New York may establish rules that result in
greater reliability within that State, as long as
such action does not result in lesser reliability
outside the State than that provided by the reliability standards.
(4) Within 90 days of the application of the
Electric Reliability Organization or other affected party, and after notice and opportunity
for comment, the Commission shall issue a final
order determining whether a State action is inconsistent with a reliability standard, taking
into consideration any recommendation of the
ERO.
(5) The Commission, after consultation with
the ERO and the State taking action, may stay
the effectiveness of any State action, pending
the Commission’s issuance of a final order.
(j) Regional advisory bodies
The Commission shall establish a regional advisory body on the petition of at least twothirds of the States within a region that have
more than one-half of their electric load served
within the region. A regional advisory body
shall be composed of one member from each participating State in the region, appointed by the
Governor of each State, and may include representatives of agencies, States, and provinces
outside the United States. A regional advisory
body may provide advice to the Electric Reliability Organization, a regional entity, or the
Commission regarding the governance of an existing or proposed regional entity within the
same region, whether a standard proposed to
apply within the region is just, reasonable, not
unduly discriminatory or preferential, and in
the public interest, whether fees proposed to be
assessed within the region are just, reasonable,
not unduly discriminatory or preferential, and
in the public interest and any other responsibilities requested by the Commission. The Commission may give deference to the advice of any
such regional advisory body if that body is organized on an Interconnection-wide basis.
(k) Alaska and Hawaii
The provisions of this section do not apply to
Alaska or Hawaii.

Page 1290

(June 10, 1920, ch. 285, pt. II, § 215, as added Pub.
L. 109–58, title XII, § 1211(a), Aug. 8, 2005, 119
Stat. 941.)
STATUS OF ERO
Pub. L. 109–58, title XII, § 1211(b), Aug. 8, 2005, 119
Stat. 946, provided that: ‘‘The Electric Reliability Organization certified by the Federal Energy Regulatory
Commission under section 215(c) of the Federal Power
Act [16 U.S.C. 824o(c)] and any regional entity delegated
enforcement authority pursuant to section 215(e)(4) of
that Act [16 U.S.C. 824o(e)(4)] are not departments,
agencies, or instrumentalities of the United States
Government.’’
ACCESS APPROVALS BY FEDERAL AGENCIES
Pub. L. 109–58, title XII, § 1211(c), Aug. 8, 2005, 119
Stat. 946, provided that: ‘‘Federal agencies responsible
for approving access to electric transmission or distribution facilities located on lands within the United
States shall, in accordance with applicable law, expedite any Federal agency approvals that are necessary
to allow the owners or operators of such facilities to
comply with any reliability standard, approved by the
[Federal Energy Regulatory] Commission under section
215 of the Federal Power Act [16 U.S.C. 824o], that pertains to vegetation management, electric service restoration, or resolution of situations that imminently
endanger the reliability or safety of the facilities.’’

§ 824o–1. Critical electric infrastructure security
(a) Definitions
For purposes of this section:
(1) Bulk-power system; Electric Reliability Organization; regional entity
The terms ‘‘bulk-power system’’, ‘‘Electric
Reliability Organization’’, and ‘‘regional entity’’ have the meanings given such terms in
paragraphs (1), (2), and (7) of section 824o(a) of
this title, respectively.
(2) Critical electric infrastructure
The term ‘‘critical electric infrastructure’’
means 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.
(3) Critical electric infrastructure information
The term ‘‘critical electric infrastructure information’’ means information related to critical electric infrastructure, or proposed critical electrical infrastructure, generated by or
provided to the Commission or other Federal
agency, other than classified national security
information, that is designated as critical
electric infrastructure information by the
Commission or the Secretary pursuant to subsection (d). Such term includes information
that qualifies as critical energy infrastructure
information under the Commission’s regulations.
(4) Defense critical electric infrastructure
The term ‘‘defense critical electric infrastructure’’ means any electric infrastructure
located in any of the 48 contiguous States or
the District of Columbia that serves a facility
designated by the Secretary pursuant to subsection (c), but is not owned or operated by
the owner or operator of such facility.

Page 1291

TITLE 16—CONSERVATION

(5) Electromagnetic pulse
The term ‘‘electromagnetic pulse’’ means 1
or more pulses of electromagnetic energy
emitted by a device capable of disabling or disrupting operation of, or destroying, electronic
devices or communications networks, including hardware, software, and data, by means of
such a pulse.
(6) Geomagnetic storm
The term ‘‘geomagnetic storm’’ means a
temporary disturbance of the Earth’s magnetic field resulting from solar activity.
(7) Grid security emergency
The term ‘‘grid security emergency’’ means
the occurrence or imminent danger of—
(A)(i) a malicious act using electronic
communication or an electromagnetic pulse,
or a geomagnetic storm event, that could
disrupt the operation of those electronic devices or communications networks, including hardware, software, and data, that are
essential to the reliability of critical electric infrastructure or of defense critical electric infrastructure; and
(ii) disruption of the operation of such devices or networks, with significant adverse
effects on the reliability of critical electric
infrastructure or of defense critical electric
infrastructure, as a result of such act or
event; or
(B)(i) a direct physical attack on critical
electric infrastructure or on defense critical
electric infrastructure; and
(ii) significant adverse effects on the reliability of critical electric infrastructure or
of defense critical electric infrastructure as
a result of such physical attack.
(8) Secretary
The term ‘‘Secretary’’ means the Secretary
of Energy.
(b) Authority to address grid security emergency
(1) Authority
Whenever the President issues and provides
to the Secretary a written directive or determination identifying a grid security emergency, the Secretary may, with or without notice, hearing, or report, issue such 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 soon as
practicable but not later than 180 days after
December 4, 2015, the Secretary shall, after notice and opportunity for comment, establish
rules of procedure that ensure that such authority can be exercised expeditiously.
(2) Notification of Congress
Whenever the President issues and provides
to the Secretary a written directive or determination under paragraph (1), the President
shall promptly notify congressional committees of relevant jurisdiction, including the
Committee on Energy and Commerce of the
House of Representatives and the Committee
on Energy and Natural Resources of the Senate, of the contents of, and justification for,
such directive or determination.

§ 824o–1

(3) Consultation
Before issuing an order for emergency measures under paragraph (1), the Secretary shall,
to the extent practicable in light of the nature
of the grid security emergency and the urgency of the need for action, consult with appropriate governmental authorities in Canada
and Mexico, entities described in paragraph
(4), the Electricity Sub-sector Coordinating
Council, the Commission, and other appropriate Federal agencies regarding implementation of such emergency measures.
(4) Application
An order for emergency measures under this
subsection may apply to—
(A) the Electric Reliability Organization;
(B) a regional entity; or
(C) any owner, user, or operator of critical
electric infrastructure or of defense critical
electric infrastructure within the United
States.
(5) Expiration and reissuance
(A) In general
Except as provided in subparagraph (B), an
order for emergency measures issued under
paragraph (1) shall expire no later than 15
days after its issuance.
(B) Extensions
The Secretary may reissue an order for
emergency measures issued under paragraph
(1) 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 identified under paragraph (1)
continues to exist or that the emergency
measure continues to be required.
(6) Cost recovery
(A) Critical electric infrastructure
If the Commission determines that owners,
operators, or users of critical electric infrastructure have incurred substantial costs to
comply with an order for emergency measures issued under this subsection and that
such costs were prudently incurred and cannot reasonably be recovered through regulated rates or market prices for the electric
energy or services sold by such owners, operators, or users, the Commission shall, consistent with the requirements of section 824d
of this title, after notice and an opportunity
for comment, establish a mechanism that
permits such owners, operators, or users to
recover such costs.
(B) Defense critical electric infrastructure
To the extent the owner or operator of defense critical electric infrastructure is required to take emergency measures pursuant to an order issued under this subsection,
the owners or operators of a critical defense
facility or facilities designated by the Secretary pursuant to subsection (c) that rely
upon such infrastructure shall bear the full
incremental costs of the measures.
(7) Temporary access to classified information
The Secretary, and other appropriate Federal agencies, shall, to the extent practicable

§ 824o–1

TITLE 16—CONSERVATION

and consistent with their obligations to protect classified information, provide temporary
access to classified information related to a
grid security emergency for which emergency
measures are issued under paragraph (1) to key
personnel of any entity subject to such emergency measures to enable optimum communication between the entity and the Secretary
and other appropriate Federal agencies regarding the grid security emergency.
(c) Designation of critical defense facilities
Not later than 180 days after December 4, 2015,
the Secretary, in consultation with other appropriate Federal agencies and appropriate owners,
users, or operators of infrastructure that may be
defense critical electric infrastructure, shall
identify and designate facilities located in the 48
contiguous States and the District of Columbia
that are—
(1) critical to the defense of the United
States; and
(2) vulnerable to a disruption of the supply
of electric energy provided to such facility by
an external provider.
The Secretary may, in consultation with appropriate Federal agencies and appropriate owners,
users, or operators of defense critical electric infrastructure, periodically revise the list of designated facilities as necessary.
(d) Protection and sharing of critical electric infrastructure information
(1) Protection of critical electric infrastructure
information
Critical electric infrastructure information—
(A) shall be exempt from disclosure under
section 552(b)(3) of title 5; and
(B) shall not be made available by any
Federal, State, political subdivision or tribal
authority pursuant to any Federal, State,
political subdivision or tribal law requiring
public disclosure of information or records.
(2) Designation and sharing of critical electric
infrastructure information
Not later than one year after December 4,
2015, the Commission, after consultation with
the Secretary, shall promulgate such regulations as necessary to—
(A) establish criteria and procedures to
designate information as critical electric infrastructure information;
(B) prohibit the unauthorized disclosure of
critical electric infrastructure information;
(C) ensure there are appropriate sanctions
in place for Commissioners, officers, employees, or agents of the Commission or the Department of Energy who knowingly and willfully disclose critical electric infrastructure
information in a manner that is not authorized under this section; and
(D) taking into account standards of the
Electric Reliability Organization, facilitate
voluntary sharing of critical electric infrastructure information with, between, and
by—
(i) Federal, State, political subdivision,
and tribal authorities;
(ii) the Electric Reliability Organization;

Page 1292

(iii) regional entities;
(iv) information sharing and analysis
centers established pursuant to Presidential Decision Directive 63;
(v) owners, operators, and users of critical electric infrastructure in the United
States; and
(vi) other entities determined appropriate by the Commission.
(3) Authority to designate
Information may be designated by the Commission or the Secretary as critical electric
infrastructure information pursuant to the
criteria and procedures established by the
Commission under paragraph (2)(A).
(4) Considerations
In exercising their respective authorities
under this subsection, the Commission and the
Secretary shall take into consideration the
role of State commissions in reviewing the
prudence and cost of investments, determining
the rates and terms of conditions for electric
services, and ensuring the safety and reliability of the bulk-power system and distribution
facilities within their respective jurisdictions.
(5) Protocols
The Commission and the Secretary shall, in
consultation with Canadian and Mexican authorities, develop protocols for the voluntary
sharing of critical electric infrastructure information with Canadian and Mexican authorities and owners, operators, and users of
the bulk-power system outside the United
States.
(6) No required sharing of information
Nothing in this section shall require a person or entity in possession of critical electric
infrastructure information to share such information with Federal, State, political subdivision, or tribal authorities, or any other
person or entity.
(7) Submission of information to Congress
Nothing in this section shall permit or authorize the withholding of information from
Congress, any committee or subcommittee
thereof, or the Comptroller General.
(8) Disclosure of nonprotected information
In implementing this section, the Commission and the Secretary shall segregate critical
electric infrastructure information or information that reasonably could be expected to
lead to the disclosure of the critical electric
infrastructure information within documents
and electronic communications, wherever feasible, to facilitate disclosure of information
that is not designated as critical electric infrastructure information.
(9) Duration of designation
Information may not be designated as critical electric infrastructure information for
longer than 5 years, unless specifically re-designated by the Commission or the Secretary,
as appropriate.
(10) Removal of designation
The Commission or the Secretary, as appropriate, shall remove the designation of critical

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TITLE 16—CONSERVATION

electric infrastructure information, in whole
or in part, from a document or electronic communication if the Commission or the Secretary, as appropriate, determines that the unauthorized disclosure of such information
could no longer be used to impair the security
or reliability of the bulk-power system or distribution facilities.
(11) Judicial review of designations
Notwithstanding section 825l(b) of this title,
with respect to a petition filed by a person to
which an order under this section applies, any
determination by the Commission or the Secretary concerning the designation of critical
electric infrastructure information under this
subsection shall be subject to review under
chapter 7 of title 5, except that such review
shall be brought in the district court of the
United States in the district in which the
complainant resides, or has his principal place
of business, or in the District of Columbia. In
such a case the court shall examine in camera
the contents of documents or electronic communications that are the subject of the determination under review to determine whether
such documents or any part thereof were improperly designated or not designated as critical electric infrastructure information.
(e) Security clearances
The Secretary shall facilitate and, to the extent practicable, expedite the acquisition of adequate security clearances by key personnel of
any entity subject to the requirements of this
section, to enable optimum communication with
Federal agencies regarding threats to the security of the critical electric infrastructure. The
Secretary, the Commission, and other appropriate Federal agencies shall, to the extent practicable and consistent with their obligations to
protect classified and critical electric infrastructure information, share timely actionable
information regarding grid security with appropriate key personnel of owners, operators, and
users of the critical electric infrastructure.
(f) Clarifications of liability
(1) Compliance with or violation of this chapter
Except as provided in paragraph (4), to the
extent any action or omission taken by an entity that is necessary to comply with an order
for emergency measures issued under subsection (b)(1), 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 this
chapter, including any reliability standard approved by the Commission pursuant to section
824o of this title, such action or omission shall
not be considered a violation of such rule,
order, regulation, or provision.
(2) Relation to section 824a(c) of this title
Except as provided in paragraph (4), an action or omission taken by an owner, operator,
or user of critical electric infrastructure or of
defense critical electric infrastructure to comply with an order for emergency measures issued under subsection (b)(1) shall be treated as

§ 824p

an action or omission taken to comply with an
order issued under section 824a(c) of this title
for purposes of such section.
(3) Sharing or receipt of information
No cause of action shall lie or be maintained
in any Federal or State court for the sharing
or receipt of information under, and that is
conducted in accordance with, subsection (d).
(4) Rule of construction
Nothing in this subsection shall be construed to require dismissal of a cause of action
against an entity that, in the course of complying with an order for emergency measures
issued under subsection (b)(1) by taking an action or omission for which they would be liable but for paragraph (1) or (2), takes such action or omission in a grossly negligent manner.
(June 10, 1920, ch. 285, pt. II, § 215A, as added Pub.
L. 114–94, div. F, § 61003(a), Dec. 4, 2015, 129 Stat.
1773.)
§ 824p. Siting of interstate electric transmission
facilities
(a) Designation of national interest electric
transmission corridors
(1) Not later than 1 year after August 8, 2005,
and every 3 years thereafter, the Secretary of
Energy (referred to in this section as the ‘‘Secretary’’), in consultation with affected States,
shall conduct a study of electric transmission
congestion.
(2) After considering alternatives and recommendations from interested parties (including
an opportunity for comment from affected
States), the Secretary shall issue a report, based
on the study, which may designate any geographic area experiencing electric energy transmission capacity constraints or congestion that
adversely affects consumers as a national interest electric transmission corridor.
(3) The Secretary shall conduct the study and
issue the report in consultation with any appropriate regional entity referred to in section 824o
of this title.
(4) In determining whether to designate a national interest electric transmission corridor
under paragraph (2), the Secretary may consider
whether—
(A) the economic vitality and development
of the corridor, or the end markets served by
the corridor, may be constrained by lack of
adequate or reasonably priced electricity;
(B)(i) economic growth in the corridor, or
the end markets served by the corridor, may
be jeopardized by reliance on limited sources
of energy; and
(ii) a diversification of supply is warranted;
(C) the energy independence of the United
States would be served by the designation;
(D) the designation would be in the interest
of national energy policy; and
(E) the designation would enhance national
defense and homeland security.
(b) Construction permit
Except as provided in subsection (i), the Commission may, after notice and an opportunity
for hearing, issue one or more permits for the