Lawmakers propose giving Energy authority over utilities during cyber emergencies

Federal officials, lawmakers and industry leaders have reached consensus that any forthcoming cybersecurity legislation should grant the Energy Department authority to order utilities to take action when there is an emergency threat to critical elements of the electricity grid. Energy is one of many agencies currently brokering a sweeping proposal to guard the government, consumers and international partners against cyber predators.

"We're in agreement that when we are talking about the imminent threats, it's DOE that has that authority; they don't need to wait for anyone," said Sen. Lisa Murkowski, R-Alaska, ranking member of the Energy and Natural Resources Committee, at a hearing on a draft bill to protect the nation's power supply from cyberattacks.

On April 15, Murkowski and committee Chairman Jeff Bingaman, D-N.M., released a 12-page bipartisan draft of legislation aimed at protecting bulk power systems and electric infrastructure from cyberattacks. If the panel approves a final draft, it would become part of a larger package after the Senate receives the Obama administration's plan, Murkowski said. Other items in the committee's draft are still being debated.

The panel's emergency proposal covers so-called critical electrical infrastructure, or systems that generate and distribute electricity for interstate commerce, which if impaired would harm national security.

If faced with an immediate threat, "the [Energy] secretary may require, by order, with or without notice, persons subject to the jurisdiction of the [Federal Energy Regulatory Commission] under this section to take such actions as the secretary determines will best avert or mitigate the cybersecurity threat," the language stated.

The government would reimburse companies for costs incurred if they are instructed to implement immediate actions.

The draft bill exempts Alaska and Hawaii from such emergency orders. However, it calls for the Pentagon to come up with a plan for protecting power supplies at Defense Department facilities against imminent cyber threats in Alaska, Hawaii and Guam.

The electric sector "already is subject to a set of mandatory and enforceable cybersecurity standards that are developed by industry stakeholders and approved by the Federal Energy Regulatory Commission," Bingaman said. "This fundamentally distinguishes the electric sector from virtually all other critical infrastructure sectors. However, I do not believe that the existing suite of reliability standards and the process for developing them is sufficient to defend the electric infrastructure against deliberate cyberattacks."

While the Obama administration has not taken a position on the proposal, Patricia Hoffman, Energy's assistant secretary for the Office of Electricity Delivery and Energy, said she had no objections to the provision regarding urgent situations.

The language also has the backing of the North American Electric Reliability Corporation, a private organization responsible, by law, for enforcing standards that regulate bulk power system users, owners and operators. "NERC has consistently supported legislation to address cyber emergencies," said Gerry Cauley, the corporation's president and chief executive officer.

Some industry groups said, however, the provision needs to be more precise in defining a crisis situation.

"Any additional federal emergency authority in this area should be used judiciously," said David Owens, an executive vice president at the Edison Electric Institute, a trade association comprised of U.S. electric companies, along with international affiliates. "Legislation granting such authority should be narrowly crafted and limited to address circumstances where the president or his senior intelligence or national security advisers determine there is an imminent threat to national security or public welfare."

Throughout the hearing, lawmakers and witnesses cited one complex menace that already has proved destructive to power operations in Iran, as a reason why legislation is needed. Stuxnet, malicious software designed to turn machinery against itself, reportedly crippled the industrial systems controlling Iran's nuclear program.

After Stuxnet, "the industry took the actions to install patches and blocks to keep that from penetrating our control systems," Cauley said. Those risks "are very real -- they are very scary."