

[Federal Register: August 6, 2007 (Volume 72, Number 150)]
[Proposed Rules]               
[Page 43969-44013]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06au07-28]                         


[[Page 43969]]

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Part IV





Department of Energy





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Federal Energy Regulatory Commission



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18 CFR Part 39



Mandatory Reliability Standards for Critical Infrastructure Protection; 
Proposed Rule


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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Part 39

[Docket No. RM06-22-000]

 
Mandatory Reliability Standards for Critical Infrastructure 
Protection

July 20, 2007.
AGENCY: Federal Energy Regulatory Commission, Department of Energy.

ACTION: Notice of proposed rulemaking.

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SUMMARY: Pursuant to section 215 of the Federal Power Act (FPA), the 
Federal Energy Regulatory Commission (Commission), proposes to approve 
eight Critical Infrastructure Protection (CIP) Reliability Standards 
submitted to the Commission for approval by the North American Electric 
Reliability Corporation (NERC). The CIP Reliability Standards require 
certain users, owners, and operators of the Bulk-Power System to comply 
with specific requirements to safeguard critical cyber assets. In 
addition, pursuant to section 215(d)(5) of the FPA, the Commission 
proposes to direct NERC to develop modifications to the CIP Reliability 
Standards to address specific concerns identified by the Commission. 
Approval of these standards will help protect the nation's Bulk-Power 
System against potential disruptions from cyber attacks.

DATES: Comments are due October 5, 2007.

ADDRESSES: You may submit comments, identified by docket number by any 
of the following methods:
     Agency Web Site: http://ferc.gov. Follow the instructions 

for submitting comments via the eFiling link found in the Comment 
Procedures section of the preamble.
     Mail/Hand Delivery: Commenters unable to file comments 
electronically must mail or hand deliver an original and 14 copies of 
their comments to the Federal Energy Regulatory Commission, Secretary 
of the Commission, 888 First Street, NE., Washington, DC 20426. Please 
refer to the Comment Procedures section of the preamble for additional 
information on how to file paper comments.

FOR FURTHER INFORMATION CONTACT: Gary Cohen (Legal Information), Office 
of the General Counsel, Federal Energy Regulatory Commission, 888 First 
Street, NE., Washington, DC 20426, (202) 502-8321.
    Paul Silverman (Legal Information), Office of the General Counsel, 
Federal Energy Regulatory Commission, 888 First Street, NE., 
Washington, DC 20426, (202) 502-8683.
    Regis Binder (Technical Issues), Office of Energy Markets and 
Reliability, Federal Energy Regulatory Commission, 888 First Street, 
NE., Washington, DC 20426, (202) 502-6460.
    Jan Bargen (Technical Issues), Office of Energy Markets and 
Reliability, Federal Energy Regulatory Commission, 888 First Street, 
NE., Washington, DC 20426, (202) 502-6333.

SUPPLEMENTARY INFORMATION:

                            Table of Contents

                                                               Paragraph
                                                                Numbers

I. Background...............................................          2.
    A. EPAct 2005 and Mandatory Reliability Standards.......          2.
    B. Development of CIP Reliability Standards.............          7.
    C. CIP Assessment.......................................         11.
II. Discussion..............................................         13.
    A. General Issues.......................................         13.
        1. Cyber Security Challenges........................         13.
        2. Applicability....................................         21.
        3. Compliance Measured by Outcome...................         32.
        4. Implementation Plan..............................         42.
        5. Issues Presented by Terminology..................         50.
        6. Guidance for Improving CIP Reliability Standards.         87.
    B. Discussion of Each CIP Reliability Standard..........         89.
        1. CIP-002-1--Critical Cyber Asset Identification...         89.
        2. CIP-003-1--Security Management Controls..........        120.
        3. CIP-004-1--Personnel and Training................        149.
        4. CIP-005-1--Electronic Security Perimeter(s)......        176.
        5. CIP-006-1--Physical Security of Critical Cyber           204.
         Assets.............................................
        6. CIP-007-1--Systems Security Management...........        223.
        7. CIP-008-1--Incident Reporting and Response               265.
         Planning...........................................
        8. CIP-009-1--Recovery Plans for Critical Cyber             289.
         Assets.............................................
    C. Violation Risk Factors...............................        321.
        1. Background.......................................        321.
        2. Commission Proposal..............................        324.
III. Information Collection Statement.......................        332.
IV. Environmental Analysis..................................        339.
V. Regulatory Flexibility Act Certification.................        340.
VI. Comment Procedures......................................        350.
VII. Document Availability..................................        353.
Appendix A List of Commenters...............................  ..........
Appendix B Violation Risk Factors: Proposed Dispositions....  ..........


Before Commissioners: Joseph T. Kelliher, Chairman; Suedeen G. 
Kelly, Marc Spitzer, Philip D. Moeller, and Jon Wellinghoff.
    1. Pursuant to section 215 of the Federal Power Act (FPA), the 
Commission proposes to approve eight Critical Infrastructure Protection 
(CIP) Reliability Standards submitted to the Commission for approval by 
the North American Electric Reliability Corporation (NERC). The CIP 
Reliability Standards require certain users, owners, and operators of 
the Bulk-Power System to comply with specific requirements to safeguard 
critical cyber assets.\1\ In

[[Page 43971]]

addition, pursuant to section 215(d)(5) of the FPA, the Commission 
proposes to direct NERC to develop modifications to the CIP Reliability 
Standards to address specific concerns identified by the Commission.
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    \1\ In the context of the CIP Reliability Standards, cyber 
assets are programmable electronic devices and communication 
networks including hardware, software, and data. See note 69, infra.
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I. Background

A. EPAct 2005 and Mandatory Reliability Standards

    2. On August 8, 2005, the Electricity Modernization Act of 2005, 
which is Title XII, Subtitle A, of the Energy Policy Act of 2005 (EPAct 
2005), was enacted into law.\2\ EPAct 2005 adds a new section 215 to 
the FPA, which requires a Commission-certified Electric Reliability 
Organization (ERO) to develop mandatory and enforceable Reliability 
Standards, which are subject to Commission review and approval. Once 
approved, the Reliability Standards may be enforced by the ERO subject 
to Commission oversight, or the Commission can independently enforce 
Reliability Standards.\3\
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    \2\ Energy Policy Act of 2005, Pub. L. No. 109-58, Title XII, 
Subtitle A, 119 Stat. 594, 941 (2005), to be codified at 16 U.S.C. 
824o.
    \3\ 16 U.S.C. 824o(e)(3).
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    3. On February 3, 2006, the Commission issued Order No. 672, 
implementing section 215 of the FPA.\4\ Pursuant to Order No. 672, the 
Commission certified one organization, NERC, as the ERO.\5\ The 
Reliability Standards developed by the ERO and approved by the 
Commission will apply to users, owners and operators of the Bulk-Power 
System, as set forth in each Reliability Standard.
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    \4\ Rules Concerning Certification of the Electric Reliability 
Organization; Procedures for the Establishment, Approval and 
Enforcement of Electric Reliability Standards, Order No. 672, 71 FR 
8662 (Feb. 17, 2006), FERC Stats. & Regs. ] 31,204 (2006), order on 
reh'g, Order No. 672-A, 71 FR 19814 (Apr. 18, 2006), FERC Stats. & 
Regs. ] 31,212 (2006).
    \5\ North American Electric Reliability Corp., 116 FERC ] 61,062 
(ERO Certification Order), order on reh'g & compliance, 117 FERC ] 
61,126 (ERO Rehearing Order) (2006), order on compliance, 118 FERC ] 
61,030 (2007) (Jan. 2007 Compliance Order), appeal docket sub nom. 
Alcoa, Inc. v. FERC, No. 06-1426 (D.C. Cir. Dec. 29, 2006).
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    4. Pursuant to section 215(d)(2) of the FPA and Sec.  39.5(c) of 
the Commission's regulations, the Commission is required to give due 
weight to the technical expertise of the ERO with respect to the 
content of a Reliability Standard or to a Regional Entity organized on 
an Interconnection-wide basis with respect to a proposed Reliability 
Standard or a proposed modification to a Reliability Standard to be 
applicable within that Interconnection.\6\
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    \6\ 18 CFR 39.5(c)(1), to be codified at 16 U.S.C.824o.
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    5. The ERO must file with the Commission each new or modified 
Reliability Standard that it proposes to be made effective under 
section 215 of the FPA. The Commission can then approve or remand the 
Reliability Standard. The Commission also can, among other actions, 
direct the ERO to modify an approved Reliability Standard to address a 
specific matter if it considers this appropriate to carry out section 
215 of the FPA.\7\ Only Reliability Standards approved by the 
Commission will become mandatory and enforceable.
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    \7\ Section 215(d)(5) of the FPA.
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    6. On April 4, 2006, as modified on August 28, 2006, NERC submitted 
to the Commission a petition seeking approval of 107 proposed 
Reliability Standards. On March 16, 2007, the Commission issued a final 
rule, Order No. 693, approving 83 of these 107 Reliability Standards 
and directing other action related to these Reliability Standards.\8\
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    \8\ Mandatory Reliability Standards for the Bulk-Power System, 
Order No. 693, 72 FR 16416 (Apr. 4, 2007), FERC Stats. & Regs. ] 
31,242 (2007); reh'g pending.
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B. Development of CIP Reliability Standards

    7. In August 2003, NERC approved the Urgent Action 1200 standard, 
which was the first comprehensive cyber security standard for the 
electric industry. This voluntary standard applied to control areas 
(i.e., balancing authorities), transmission owners and operators, and 
generation owners and operators that perform defined functions. 
Specifically, it established a self-certification process relating to 
the security of system control centers of the applicable entities. The 
Urgent Action 1200 standard remained in effect on a voluntary basis 
until June 1, 2006, at which time the eight CIP Reliability Standards 
that are the subject of the current rulemaking replaced the Urgent 
Action 1200 standard.
    8. On August 28, 2006, NERC submitted to the Commission for 
approval the following eight proposed CIP Reliability Standards:\9\
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    \9\ The proposed Reliability Standards are not proposed to be 
codified in the CFR and are not attached to the NOPR. They are, 
however, available on the Commission's eLibrary document retrieval 
system in Docket No. RM06-22-000 and are available on the ERO's Web 
site, http://www.nerc.com/filez/standards/Reliability_Standards.html#Critical_Infrastructure_Protection
.

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     CIP-002-1--Cyber Security--Critical Cyber Asset 
Identification: Requires a responsible entity to identify its critical 
assets and critical cyber assets using a risk-based assessment 
methodology.
     CIP-003-1--Cyber Security--Security Management Controls: 
Requires a responsible entity to develop and implement security 
management controls to protect critical cyber assets identified 
pursuant to CIP-002-1.
     CIP-004-1--Cyber Security--Personnel & Training: Requires 
personnel with access to critical cyber assets to have an identity 
verification and a criminal check. It also requires employee training.
     CIP-005-1--Cyber Security--Electronic Security Perimeters: 
Requires the identification and protection of an electronic security 
perimeter and access points. The electronic security perimeter is to 
encompass the critical cyber assets identified pursuant to the risk-
based assessment methodology required by CIP-002-1.
     CIP-006-1--Cyber Security--Physical Security of Critical 
Cyber Assets: Requires a responsible entity to create and maintain a 
physical security plan that ensures that all cyber assets within an 
electronic security perimeter are kept in an identified physical 
security perimeter.
     CIP-007-1--Cyber Security--Systems Security Management: 
Requires a responsible entity to define methods, processes, and 
procedures for securing the systems identified as critical cyber 
assets, as well as the non-critical cyber assets within an electronic 
security perimeter.
     CIP-008-1--Cyber Security--Incident Reporting and Response 
Planning: Requires a responsible entity to identify, classify, respond 
to, and report cyber security incidents related to critical cyber 
assets.
     CIP-009-1--Cyber Security--Recovery Plans for Critical 
Cyber Assets: Requires the establishment of recovery plans for critical 
cyber assets using established business continuity and disaster 
recovery techniques and practices.
    9. NERC stated that these Reliability Standards provide a 
comprehensive set of requirements to protect the Bulk-Power System from 
malicious cyber attacks.\10\ They require Bulk-Power System users, 
owners, and operators to establish a risk-based vulnerability 
assessment methodology and use that methodology to identify and 
prioritize critical assets and critical cyber assets. Once the critical 
cyber assets are identified, the CIP Reliability Standards require, 
among other things, that the responsible entities establish plans,

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protocols, and controls to safeguard physical and electronic access, to 
train personnel on security matters, to report security incidents, and 
to be prepared for recovery actions. Further, NERC explained that, 
because of the expanded scope of facilities and entities covered by the 
eight CIP Reliability Standards, and the investment in security 
upgrades required in many cases, NERC has also developed an 
implementation plan that provides for a three-year phase-in to achieve 
full compliance with all requirements.\11\
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    \10\ NERC Filing at 24.
    \11\ Id. at 24: Exhibit B (Implementation Plan for Cyber 
Security Standards).
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    10. Each proposed Reliability Standard uses a common organizational 
format that includes five sections, as follows: (A) Introduction, which 
includes ``Purpose'' and ``Applicability'' sub-sections; (B) 
Requirements; (C) Measures; (D) Compliance; and (E) Regional 
Differences. In this NOPR, these section titles are capitalized when 
referencing a designated provision of a Reliability Standard.

C. CIP Assessment

    11. On December 11, 2006, the Commission released a ``Staff 
Preliminary Assessment of the North American Electric Reliability 
Corporation's Proposed Mandatory Reliability Standards on Critical 
Infrastructure Protection'' (CIP Assessment). The CIP Assessment 
identified staff's preliminary observations and concerns regarding the 
eight proposed CIP Reliability Standards. The CIP Assessment described 
issues common to a number of the proposed CIP Reliability Standards. It 
also reviewed and identified issues regarding each individual CIP 
Reliability Standard but did not make specific recommendations 
regarding the appropriate action on a particular proposal.
    12. Comments on the CIP Assessment were due by February 12, 2007. 
Entities that filed comments are listed in Appendix A to this NOPR.

II. Discussion

A. General Issues

1. Cyber Security Challenges
    13. The CIP Reliability Standards represent the most thorough 
attempt to date to address cyber security issues that relate to the 
Bulk-Power System. For many years the control systems for the Bulk-
Power System have operated in a stand-alone environment without 
computer or communication links to an external Information Technology 
(IT) infrastructure. However, over recent years, such stand-alone 
enclaves have been increasingly connected to both the corporate 
environment and the external world.
    14. Modern computer and communication network interconnection 
brings with it the potential for cyber attacks on these systems. These 
concerns become particularly critical when several entities come under 
attack simultaneously. The CIP Assessment identified ``defense in 
depth'' as a widely recognized strategy to address cyber threats. 
Defense in depth involves the layering of various defense mechanisms in 
a way that either discourages an adversary from continuing an attack or 
aids in early detection of cyber threats.
    15. A major challenge to preserving system protection is that 
changes occur rapidly in system architectures, technology, and threats. 
As a result, cyber security strategies must comprise a layered, 
interwoven approach to vigilantly protect the Bulk-Power System against 
evolving cyber security threats.
    16. Cyber security involves a careful balance of the technologies 
available with the existing control equipment and the functions they 
perform. Cyber security does have purely technical components, which 
consist of the various available technologies to defend computer 
systems. The task of balancing technical options comes into play as one 
selects and combines the various available technologies into a 
comprehensive architecture to protect the specific computer 
environment.
    17. A key to the successful cyber protection of the Bulk-Power 
System will be the establishment of CIP Reliability Standards that 
provide sound, reliable direction on how to choose among alternatives 
to achieve an adequate level of security, and the flexibility to make 
those choices. This conclusion is consistent with the lessons learned 
from the August 2003 blackout occurring in the central and northeastern 
United States. The identification of the causes of that and other 
previous major blackouts helped determine where existing Reliability 
Standards need modification or new Reliability Standards need to be 
developed to improve Bulk-Power System reliability. The U.S.--Canada 
Power System Blackout Task Force, in its Blackout Report, developed 
specific recommendations for the improving the then-current voluntary 
standards and development of new Reliability Standards.\12\
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    \12\ U.S.--Canada Power System Blackout Task Force, Final Report 
on the August 14, 2003 Blackout in the United States and Canada: 
Causes and Recommendations (April 2004) (Blackout Report). The 
Blackout Report is available on the Internet at http://www.ferc.gov/industries/electric/indus-act/blackout.asp
.

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    18. Thirteen of the 46 Blackout Report Recommendations relate to 
cyber security. They address topics such as the development of cyber 
security policies and procedures; strict control of physical and 
electronic access to operationally sensitive equipment; assessment of 
cyber security risks and vulnerability at regular intervals; capability 
to detect wireless and remote wireline intrusion and surveillance; 
guidance on employee background checks; procedures to prevent or 
mitigate inappropriate disclosure of information; and improvement and 
maintenance of cyber forensic and diagnostic capabilities.\13\ The 
proposed CIP Reliability Standards address these and related topics.
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    \13\ See Blackout Report at 163-169, Recommendations 32-44.
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    19. As we noted in Order No. 693, the Blackout Report 
recommendations address key issues for assuring Bulk-Power System 
reliability and represent a well-reasoned and sound basis for 
action.\14\ Likewise, in this NOPR, the Commission recognizes the 
merits of specific Blackout Report recommendations as a basis for 
proposing certain modifications to the eight CIP Reliability Standards 
that the Commission proposes to approve.
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    \14\ See Order No. 693 at P 234.
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    20. We recognize that the guidance and directives in the cyber 
security Reliability Standards themselves must also strike a reasonable 
balance. If the provisions are overly prescriptive they tend to become 
a ``one size fits all'' solution, which does not suit this environment, 
where systems vary greatly in architecture, technology, and risk 
profile. However, if Reliability Standards lack sufficient detail, they 
will provide little useful direction, thereby making compliance and 
enforcement difficult, allow flawed implementation of security 
mechanisms, and result in inadequate protection. The Commission will 
evaluate the proposed CIP Reliability Standards in the context of the 
above over-arching considerations.
2. Applicability
    21. The Applicability section of each proposed CIP Reliability 
Standard identifies the following 11 categories of responsible entities 
that must comply

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with the Reliability Standard: reliability coordinators, balancing 
authorities, interchange authorities, transmission service providers, 
transmission owners, transmission operators, generator owners, 
generator operators, load serving entities, NERC, and Regional 
Reliability Organizations.
    22. The CIP Assessment raised two issues regarding applicability of 
the CIP Reliability Standards. First, it stated that, although it is 
likely that NERC and the Regional Entities \15\ are not directly 
subject to mandatory Reliability Standards, their compliance with the 
CIP Reliability Standards is important to the extent that they have 
cyber communications with users, owners or operators of the Bulk-Power 
System.\16\ The CIP Assessment suggested that NERC and Regional Entity 
compliance could be required pursuant to NERC's Rules of Procedure. 
Some commenters pointed out that NERC out-sources critical application 
systems that are relied upon by many responsible entities, such as the 
Interchange Distribution Calculator, and suggest that the out-source 
provider should be contractually compelled to comply with the CIP 
Reliability Standards, with NERC ultimately responsible for non-
compliance.\17\
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    \15\ In Order No. 693, at P 157, the Commission directed NERC to 
remove all references to the Regional Reliability Organization and 
replace them with a reference to the Regional Entity where 
appropriate. This directive should apply to the CIP Reliability 
Standards as well.
    \16\ See CIP Assessment at 12-14.
    \17\ E.g., ISO-NE, ISO/RTO Council, and SPP.
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    23. Second, the CIP Assessment raised concerns about the 
appropriateness of a size threshold, below which small entities would 
be exempt from compliance. It explained that, while the assets and 
operations of a smaller entity may not have a major day-to-day 
operational impact on the Bulk-Power System, such an entity can provide 
a cyber gateway to compromise larger users, owners, or operators of the 
Bulk-Power System. When attacked simultaneously with the facilities of 
other small entities, the aggregate result could have an adverse impact 
on the reliability of the Bulk-Power System. Thus, the CIP Assessment 
suggested that a key to any determination of whether an entity should 
be subject to the CIP Reliability Standards is whether or not it is a 
user, owner, or operator of the Bulk-Power System and whether it has a 
cyber connection to other users, owners or operators of the Bulk-Power 
System. The CIP Assessment concluded that the CIP Reliability Standards 
should apply to all users, owners, or operators regardless of size, 
because a relatively small entity could have critical importance from a 
cyber security perspective.
    24. A number of commenters stated that the focus should be on those 
entities that own or operate critical assets, rather than being 
addressed in terms of ``large'' or ``small'' size of entities.\18\ 
These commenters warn that a blanket waiver that uniformly exempts 
small entities from compliance with certain provisions of the proposed 
CIP Reliability Standards therefore would not be appropriate. NERC and 
other commenters maintain that applicability should not be determined 
based on cyber connections but, rather by identifying those users, 
owners and operators of the Bulk-Power System that own or operate 
critical assets and associated critical cyber assets. Another group of 
commenters urge that the Commission not impose the same compliance 
obligations on smaller entities as on larger entities when a violation 
by the smaller entity would not have a critical impact on the Bulk-
Power System. They maintain that adverse impacts on the grid from small 
entities would be an uncommon occurrence and urge a case-by-case 
approach to granting waivers from compliance with the CIP Reliability 
Standards.\19\
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    \18\ E.g., Allegheny, California PUC, EEI, Georgia System, ISO-
NE, MidAmerican, NERC, ReliabilityFirst, Northeast Utilities, NRECA, 
Ontario IESO, Tampa Electric, and Xcel.
    \19\ E.g., APPA/LPPC and Santa Clara.
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Commission Proposal
    25. With regard to the applicability of the CIP Reliability 
Standards to the ERO, NERC has modified its Rules of Procedure to 
provide that the ERO will comply with each Reliability Standard that 
identifies the ERO as an applicable entity.\20\ Similarly, the 
delegation agreements between NERC and each of the eight Regional 
Entities expressly state that the Regional Entity is committed to 
comply with approved Reliability Standards.\21\ The Commission believes 
that this approach is sufficient and, accordingly, does not propose any 
additional measures or revisions on this issue.
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    \20\ See NERC Rules of Procedure, section 100.
    \21\ See North American Electric Reliability Corp., 119 FERC ] 
61,060 at P 4-5 (2007) (approving the delegation agreements and 
directing certain modifications).
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    26. The Commission's determinations in Order No. 693 are relevant 
to deciding the applicability of the CIP Reliability Standards to small 
entities. In Order No. 693, the Commission approved NERC's compliance 
registry process as a reasonable means ``to ensure that the proper 
entities are registered and that each knows which Commission-approved 
Reliability Standard(s) are applicable to it.'' \22\ Further, the 
Commission approved NERC registry criteria that identify specific 
categories of users, owners and operators of the Bulk-Power System and 
criteria for registering entities within each of the categories.\23\
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    \22\ Order No. 693 at P 92, quoting ERO Certification Order, 116 
FERC ] 61,062 at P 689.
    \23\ Order No. 693 at P 93-95. NERC's Statement of Compliance 
Registry Criteria (Revision 3), approved by the Commission in Order 
No. 693, is available on NERC's Web site at: ftp://www.nerc.com/pub/sys/all_updl/ero/Statement_of_Compliance_
 Registry--Criteria--

Rev3.pdf.
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    27. The Commission will also rely on the NERC registration process 
to determine applicability with the CIP Reliability Standards. In other 
words, an entity would be responsible to comply with the CIP 
Reliability Standards if the entity is (1) registered by NERC under one 
or more functional categories and (2) within a functional category for 
which the entity is registered as identified in the Applicability 
section of the CIP Reliability Standards. However, even though it is 
the Commission's present intention to rely on the NERC registration 
process to identify appropriate entities, we remain concerned about the 
possibility of entities not identified by the registration process 
becoming a weakness in the security of the Bulk-Power System. In this 
regard, we note that, in Order No. 693, the Commission explained that, 
``if there is an entity that is not registered and NERC later discovers 
that the entity should have been subject to the Reliability Standards, 
NERC has the ability to add the entity, and possibly other entities of 
a similar class, to the registration list * * *.'' \24\ In addition, in 
Order No. 693, the Commission indicated that it would further examine 
applicability issues under section 215 of the FPA in a future 
proceeding, and notes the same intention here.\25\
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    \24\ Order No. 693 at P 97.
    \25\ Id. at P 77.
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    28. Regarding our concern about small entities becoming a gateway 
for cyber attacks, some commenters argue that the Commission should not 
focus on cyber connections to determine applicability of the CIP 
Reliability Standards. Others state that it would be uncommon for a 
small entity to cause an adverse impact upon the grid. The Commission's 
reliance upon the NERC registration process to determine the 
applicability of the CIP Reliability Standards is in part based upon 
our expectation that industry will use the ``mutual distrust'' posture 
discussed below regarding CIP-

[[Page 43974]]

003-1. The term ``mutual distrust'' is used to denote how these 
``outside world'' systems are treated by those inside the control 
system. A mutual distrust posture requires each responsible entity that 
has identified critical cyber assets to protect itself and not trust 
any communication crossing an electronic security perimeter, regardless 
of where that communication originates.
    29. Similarly, the Commission is relying on the NERC registration 
process to include all critical assets and associated critical cyber 
assets. For example, if assets are important to the reliability of the 
Bulk-Power System, such as black start units, we would expect that the 
NERC registration process would identify the owners or operators of 
those units as critical, and require them to register, even though the 
facilities may be ``smaller'' or at low voltages. Demand side 
aggregators might also need to be included in the NERC registration 
process if their load shedding capacity would affect the reliability or 
operability of the Bulk-Power System.
    30. As discussed later, as an initial compliance step, each entity 
that is responsible for compliance with the CIP Reliability Standards 
must identify critical assets through the application of a risk-based 
assessment as required by CIP-002-1. Whether that entity must comply 
with the remainder of the requirements in the CIP Reliability Standards 
would depend on the outcome of that assessment and the subsequent 
identification of critical cyber assets, also required by CIP-002-1. 
Thus, CIP-002-1 acts as a filter, determining which entities must 
comply with the remaining CIP requirements (i.e., CIP-003-1 through 
CIP-009-1).
    31. The Commission agrees with the commenters that access to 
information essential to the operation of critical cyber assets by out-
sourced entities that are not otherwise subject to the CIP Reliability 
Standards presents a potential vulnerability to the Bulk-Power System. 
We understand that, on occasion, NERC negotiates contracts with such 
third party vendors, and the products developed by the vendors are then 
used by responsible entities that, as owners of the critical cyber 
assets, are ultimately responsible for their cyber security protection 
under the CIP Reliability Standards. The Commission invites comment on 
whether and how such out-sourced entities should be contractually 
obligated to comply with the CIP Reliability Standards while satisfying 
their other contractual obligations.
3. Compliance Measured by Outcome
a. Performance-Based Standards
    32. The CIP Assessment expressed concern that the lack of 
specificity within the proposed CIP Reliability Standards could result 
in inadequate implementation efforts and inconsistent results.\26\ 
NERC, along with a number of other commenters, states that the CIP 
Reliability Standards are not prescriptive, positing that the level of 
specificity they embody is appropriate. NERC explains that the use of a 
performance-based structure frames the CIP Reliability Standards in 
terms of required results or outcomes with criteria for verifying 
compliance, but without prescribing the methods for achieving the 
required results. In other words, the specific means to achieve that 
outcome are left to the discretion of the responsible entity. Such an 
approach contrasts with a prescribed or design-based standard. NERC 
concludes that, when taken together, the proposed Reliability Standards 
constitute a comprehensive set of cyber security activities, stating 
that it is more important that a pre-defined, desirable outcome is 
achieved than prescribing the means to that end.
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    \26\ CIP Assessment at 3.
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    33. The Commission generally agrees that use of performance-based 
standards is a part of the design of cyber security safeguards for the 
Bulk-Power System's critical assets. However, as we indicated in Order 
No. 672, performance-based standards may not always be appropriate, for 
example, in situations where ``the `how' may be inextricably linked to 
the Reliability Standard and may need to be specified to ensure the 
enforceability of the standard.'' \27\ Accordingly, where necessary, 
the Commission proposes to direct NERC to modify the CIP Reliability 
Standards to address the ``how.'' Moreover, the Commission is concerned 
that, while NERC explains that the CIP Reliability Standards are 
performance-based, the CIP Reliability Standards do not provide a 
mechanism to measure performance or otherwise determine whether a 
responsible entity has met the goals of a particular requirement set 
forth in the standards.
---------------------------------------------------------------------------

    \27\ Order No. 672 at P 260. The Commission also explained that, 
for some Reliability Standards, ``leaving out implementation 
features could [inter alia] sacrifice necessary uniformity in 
implementation * * *''.
---------------------------------------------------------------------------

    34. The Commission believes that monitoring the performance of 
responsible entities identified in the CIP Reliability Standards 
involves three strategies. First, it is important that there be both 
internal and external oversight of the responsible entity's activities. 
While the proposed Reliability Standards embody internal management 
oversight strategies, there should also be oversight that embodies a 
wide-area view. Second, when flexibility is exercised in a way that 
excepts an entity from a Requirement, such action should be monitored, 
documented, and periodically revisited to determine consistency and 
effectiveness of the implementation. Third, reporting certain wide-area 
information and analysis to the Commission is vital to its role in 
ensuring that approved CIP Reliability Standards achieve on an ongoing 
basis an adequate level of cyber security protection to the Bulk-Power 
System. These three strategies are applied in our discussion below of 
various provisions of the CIP Reliability Standards.
b. Adequacy of Outcomes
    35. The CIP Assessment explained that many of the Requirements in 
the proposed CIP Reliability Standards consist of broad directives, and 
that the Measures and Compliance provisions focus largely on proper 
documentation. The Reliability Standards themselves do not explain the 
interplay between the Requirements, on one hand, and the Measures and 
Levels of Non-Compliance, on the other.
    36. The CIP Assessment expressed the view that the focus of the 
Measures and Compliance provisions on documentation could be 
interpreted to suggest that possession of documentation can demonstrate 
compliance, regardless of the quality of its contents. It suggested 
that compliance with the CIP Reliability Standards must be understood 
in terms of compliance with the Requirements, which, according to NERC, 
define what an entity must do to be compliant and establishes an 
enforceable obligation.
Comments
    37. NERC and others do not share the CIP Assessment concern 
regarding the focus on documentation.\28\ NERC and ReliabilityFirst 
acknowledge the extensive use of documentation throughout the CIP 
Reliability Standards, but note that the majority of this documentation 
is used to demonstrate that the Requirements have been met. NERC 
indicates that, while the ``mere possession of documentation'' does not 
guarantee compliance, appropriate documentation is essential to 
demonstrate that steps to comply with the Requirements have been taken 
and will streamline after-the-

[[Page 43975]]

fact compliance audits. Similarly, EEI believes that the quality of the 
documentation is an important factor for assessing compliance and 
should be the subject of an audit. FirstEnergy and Santa Clara state 
that it would be helpful for NERC to provide guidance on what 
constitutes reasonable documentation.
---------------------------------------------------------------------------

    \28\ E.g., ReliabilityFirst, APPA/LPPC, and SPP.
---------------------------------------------------------------------------

    38. Others raise concerns regarding the emphasis on documentation. 
For example, Duke Energy agrees with the CIP Assessment that the CIP 
Reliability Standards rely heavily on documentation to verify 
compliance. Duke Energy believes that the accumulation of documentation 
to facilitate audits may prove to be less than optimum for the CIP 
Reliability Standards and suggests that efforts to improve the CIP 
Requirements should gradually focus less on documentation, and more on 
the actual level of cyber security to be implemented by the responsible 
entity. ISA Group states that the CIP Reliability Standards do not 
specify clear Requirements and do not provide sufficient guidance. ISA 
Group believes that the clarity and detail of the Levels of Non-
Compliance in terms of documentation give the impression that the 
documentation is the focus of the CIP Reliability Standards.
Commission Proposal
    39. The Commission agrees with NERC that, while documentation is 
necessary, the documentation by itself does not satisfy the 
Requirements of a Reliability Standard. Rather, implementation of the 
substance of the Requirements is most important in determining 
compliance. As we explained in Order No. 693, ``while Measures and 
Levels of Non-Compliance provide useful guidance to the industry, 
compliance will in all cases be measured by determining whether a party 
met or failed to meet the Requirement given the specific facts and 
circumstances of its use, ownership or operation of the Bulk-Power 
System.'' \29\ Moreover, the Commission recognized that:
---------------------------------------------------------------------------

    \29\ Order No. 693 at P 253.

    The most critical element of a Reliability Standard is the 
Requirements. As NERC explains, ``the Requirements within a standard 
define what an entity must do to be compliant * * * [and] binds an 
entity to certain obligations of performance under section 215 of 
the FPA.'' If properly drafted, a Reliability Standard may be 
enforced in the absence of specified Measures or Levels of Non-
Compliance.\30\
---------------------------------------------------------------------------

    \30\ Id., quoting NOPR at P 105 (footnote omitted).

    40. To reiterate, while documentation set forth in the Measures and 
Levels of Non-Compliance plays an important role in assuring that a 
responsible entity is able to demonstrate to an auditor or others that 
it has complied with the substantive Requirement of a Reliability 
Standard, adequate documentation does not substitute for substantive 
compliance with the obligations and responsibilities set forth in the 
Requirement.
    41. Related, certain Requirements of the CIP Reliability Standards 
obligate a responsible entity to develop and maintain a plan, policy or 
procedure. However, such Requirements do not always explicitly require 
implementation of the plan, policy or procedure.\31\ The Commission 
interprets such provisions to include an implicit requirement to 
implement the plan, policy or procedure; and to make a responsible 
entity subject to a non-compliance action for failing to implement the 
policy. Such an interpretation is reasonable to prevent the scenario in 
which the ERO, Regional Entity or the Commission could assess a penalty 
against a responsible entity for failure to develop a plan, policy or 
procedure that satisfies the Requirements of the Reliability Standard, 
but unable to assess a penalty against a responsible entity that has 
developed an adequate plan but fails to implement it. Further, the 
Commission proposes that the ERO, in developing modifications to the 
CIP Reliability Standards, include explicitly in such Requirements that 
a responsible entity must implement a plan, policy or procedure that it 
is required to develop.
---------------------------------------------------------------------------

    \31\ See, e.g., CIP-006-1, Requirement R1 (requiring a 
responsible entity to ``create and maintain a `physical security 
plan'' '); cf. CIP-003-1, Requirement R1 (requiring a responsible 
entity to ``document and implement a cyber security policy'').
---------------------------------------------------------------------------

 4. Implementation Plan
    42. Unlike the Reliability Standards approved in Order No. 693, 
which NERC formulated based on existing voluntary standards, the CIP 
Reliability Standards are new and require applicable entities in many 
cases to develop new cyber security systems and procedures, which will 
take time to develop and implement. To address this task, NERC 
developed an implementation plan that includes a proposed four-stage 
schedule for implementing the proposed CIP Reliability Standards over a 
three-year period.\32\
---------------------------------------------------------------------------

    \32\ NERC August 28, 2006 Filing, Exhibit B ``Implementation 
Plan for Cyber Security Standards'' (Implementation Plan).
---------------------------------------------------------------------------

    43. The Implementation Plan sets out a proposed schedule for 
accomplishing the various tasks associated with compliance with the CIP 
Reliability Standards. The schedule gives a timeline by calendar 
quarters for completing various tasks and prescribes milestones for 
when a responsible entity must: (1) ``Begin work;'' (2) ``be 
substantially compliant'' with a requirement; (3) ``be compliant'' with 
a requirement; and (4) ``be auditably compliant'' with a requirement.
    44. According to the implementation plan, ``auditably compliant'' 
must be achieved in 2009 for certain Requirements by certain 
responsible entities, and in 2010 for the remainder.
CIP Assessment
    45. The CIP Assessment suggested that it may be possible to assess 
a responsible entity's level of compliance prior to the time when it 
achieves its ``auditably compliant'' status. It noted that, if a 
responsible entity is in the ``begin work'' phase, it has: (1) 
Developed and approved a plan to address the Requirements of a 
Reliability Standard; (2) identified and planned for necessary 
resources; and (3) begun implementing the Requirements. These are 
specific steps that an audit can examine. The CIP Assessment observed 
that the difference between the ``compliant'' and ``auditably 
compliant'' status for many of the Requirements is the accumulation of 
12 months of compliance records. It sought comment on whether it would 
be beneficial to audit a responsible entity at the ``begin work'' and 
``compliant'' stages, even though the responsible entity may not have 
the full 12 month accumulation of compliance records.
Comments
    46. A number of commenters agree that some type of assessment, 
although not necessarily in the form of an audit, is both possible and 
potentially beneficial prior to the time an entity achieves ``auditably 
compliant'' status.\33\ NERC agrees that there is a benefit to ensuring 
that responsible entities are moving timely toward ``auditably 
compliant'' status. While NERC believes that audits at an interim stage 
are not possible, it states that it plans to monitor progress through 
self-certification without assessing penalties. Other commenters oppose 
interim audits, stating that they could interfere with implementation 
plans and lead to penalties for non-compliance.\34\
---------------------------------------------------------------------------

    \33\ E.g., Santa Clara, SPP, APPA/LPPC, NERC, Allegheny, Georgia 
Operators, ISO RTO Council, MidAmerican, SoCal Edison, and NRECA.
    \34\ E.g., ATC, EEI, National Grid, Tampa Electric, and 
FirstEnergy.

---------------------------------------------------------------------------

[[Page 43976]]

Commission Proposal
    47. The Commission proposes to approve NERC's Implementation Plan, 
including the proposed timelines for achieving compliance. NERC 
indicates that the proposed timelines were developed with input from 
all sectors of the electric industry. Further, while some responsible 
entities have already installed the necessary equipment and software to 
address cyber security, the Commission recognizes that many responsible 
entities must purchase and install new equipment and software to 
achieve compliance. Based on these considerations, the Commission 
believes that the timetable proposed by NERC sets reasonable deadlines 
for industry compliance.
    48. However, the Commission is concerned whether the industry will 
be fully prepared for compliance upon reaching the implementation 
deadline and will take reasonable action to protect the Bulk-Power 
System during this interim period. The Commission believes that NERC's 
plans to require self-certification during the interim period are 
helpful. NERC, however, does not indicate the interval for self-
certification. We believe that an annual certification would not allow 
adequate monitoring of progress and propose to direct that the ERO 
develop a self-certification process with more frequent certifications, 
either tied to target dates in the schedule or perhaps quarterly or 
semi-annual certifications. While we agree with NERC that an entity 
should not be subject to a monetary penalty if it is unable to certify 
that it is on schedule, such an entity should explain to the ERO the 
reason it is unable to self-certify. The ERO and the Regional Entities 
should then work with such an entity either informally or, if 
appropriate, by requiring a remedial plan to assist such an entity in 
achieving full compliance in a timely manner. Further, the ERO and the 
Regional Entities should provide informational guidance, upon request, 
to assist a responsible entity in assessing its progress in reaching 
``auditably compliant'' status.
    49. To further address our concerns about the period prior to when 
responsible entities achieve full compliance with the CIP Reliability 
Standards, the Commission also proposes to direct the ERO to add a 
cyber security assessment to NERC's existing readiness reviews. In this 
readiness assessment process, the ERO should assist in the 
identification of best practices and deficiencies of the reviewed 
entities, both to help them prepare for implementation of the CIP 
Reliability Standards and to assess the status of their compliance 
efforts. The readiness reviews will also help the Commission to 
evaluate the potential effectiveness of the cyber security Reliability 
Standards before they are implemented by disclosing the progress made 
by reviewed entities in their CIP Reliability Standards implementation 
efforts.
5. Issues Presented by Terminology
a. Business Judgment
NERC Proposal
    50. Each of the proposed CIP Reliability Standards incorporates the 
concept of ``reasonable business judgment'' as a guide for determining 
what constitutes appropriate compliance with those Reliability 
Standards. The Purpose statement of Reliability Standard CIP-002-1 
provides that:

    These standards recognize the differing roles of each entity in 
the operation of the Bulk Electric System, the criticality and 
vulnerability of the assets needed to manage Bulk Electric System 
reliability, and the risks to which they are exposed. Responsible 
entities should interpret and apply Standards CIP-002 through CIP-
009 using reasonable business judgment.

    Each of the subsequent CIP Reliability Standards includes a 
statement that ``Responsible Entities should interpret and apply the 
Reliability Standard using reasonable business judgment.''
    51. NERC's Glossary of Terms Used in Reliability Standards (NERC 
glossary) does not define the term ``reasonable business judgment,'' 
and the CIP Reliability Standards do not otherwise suggest how the term 
is to be interpreted. NERC's Frequently Asked Questions (FAQ) document 
that accompanies the CIP Reliability Standards provides the only 
available guidance on the issue.\35\ It states that the phrase is meant 
``to reflect--and to inform--any regulatory body or ultimate judicial 
arbiter of disputes regarding interpretation of these Standards--that 
responsible entities have a significant degree of flexibility in 
implementing these Standards.'' The FAQ document notes that there is a 
long history of judicial interpretation of the business judgment rule 
and suggests that this history is relevant to the use of this rule in 
the context of the CIP Reliability Standards. The document goes on to 
say:
---------------------------------------------------------------------------

    \35\ NERC included the FAQ document in its August 28, 2006 
filing. The FAQ document is also available at ftp://www.nerc.com/pub/sys/all_updl/standards/sar/Revised_CIP-002-009_FAQs_06Mar06.pdf
.


    Courts generally hold that the phrase indicates reviewing 
tribunals should not substitute their own judgment for that of the 
entity under review other than in extreme circumstances. A common 
formulation indicates the business judgment of an entity--even if 
incorrect in hindsight--should not be overturned as long as it was 
made (1) in good faith (not an abuse or indiscretion), (2) without 
improper favor or bias, (3) using reasonably complete (if imperfect) 
information as available at the time of the decision, (4) based on a 
rational belief that the decision is in the entity's business 
interest. This principle, however, does not protect an entity from 
---------------------------------------------------------------------------
simply failing to make a decision.

CIP Assessment
    52. The CIP Assessment acknowledged the importance of flexibility 
and discretion in implementing cyber security strategies. However, it 
expressed skepticism about the appropriateness of the business judgment 
rule in this context, given the unusually broad discretion it permits. 
The CIP Assessment thus expressed concern that such an approach to 
flexibility and discretion would unduly compromise the effectiveness of 
the CIP Reliability Standards and the ability to enforce compliance 
with them.
    53. The CIP Assessment sought comment on: (1) Specific examples of 
the differing roles of entities in relationship to their potential 
impact on cyber security risks to Bulk-Power System reliability; (2) 
alternatives to reliance on the reasonable business judgment rule that 
would allow for recognition of differing roles of entities, 
vulnerability of assets, and exposure to risk but also permit effective 
enforcement of the CIP Reliability Standards; and (3) the ramifications 
of removing the ``reasonable business judgment'' language from the 
proposed CIP Reliability Standards while an alternative approach is 
developed using the ERO's Reliability Standards development process.
Comments
    54. A number of commenters stress the importance of flexibility and 
discretion in implementing the CIP Reliability Standards, but agree 
that it would not be reasonable to give the term ``business judgment'' 
the meaning it has in the context of corporate fiduciary 
responsibility.\36\ Other commenters state that the use of reasonable 
business judgment was not meant to allow entities to evade application 
of the CIP Reliability Standards, but they acknowledge that legal 
precedent

[[Page 43977]]

suggests that inclusion of the term could increase the potential for 
disputes.\37\ These commenters support the use of alternative terms to 
acknowledge the need for flexibility and discretion, such as 
``reasonableness,'' ``good utility practice,'' or ``good engineering 
practices.''
---------------------------------------------------------------------------

    \36\ E.g., California PUC, APPA/LPPC, EPSA, and Progress Energy.
    \37\ E.g., Duke, Progress Energy, Xcel, and National Grid.
---------------------------------------------------------------------------

    55. Other commenters argue that the ``reasonable business 
judgment'' language is essential to provide balance in the 
implementation of the CIP Reliability Standards and should not be 
removed. Some indicate that use of the term was intended to allow 
consideration of cost or business implications of an action.\38\ For 
instance, NERC states that, if business considerations are left out of 
account, the CIP Reliability Standards would describe an impossibly 
high level of technical content, and the cost of implementing such a 
solution would approach an infinite amount of time, money, and 
resources. Commenters also state that use of reasonable business 
judgment allows every entity the flexibility to make the best choice 
for its unique situation.\39\ Finally, some commenters believe that the 
term reasonable business judgment will ensure that the CIP Reliability 
Standards are enforceable by permitting development of a record of 
industry practices over time that provides a body of reasonable, 
industry cyber security practices.\40\
---------------------------------------------------------------------------

    \38\ E.g., NERC, Southern, and PG&E.
    \39\ E.g., NERC, NU, PJM, Santa Clara, and Cleveland Public 
Power.
    \40\ E.g., IRC and Tampa Electric.
---------------------------------------------------------------------------

    56. Some commenters argue that use of the term ``reasonable 
business judgment'' was not intended to trigger the exculpatory 
``business judgment rule'' as used in connection with the actions of 
corporate directors.\41\ They contend the term was intended as a 
``reasonableness'' standard that was meant to add a defined and 
objective measure for assessing an entity's actions in implementing the 
CIP Reliability Standards based on the entity's particular system and 
assets. EEI argues that while the NERC FAQ accurately describes 
traditional use of the reasonable business judgment rule in the context 
of corporate law, it does not articulate how this language is being 
used in the context of cyber security standards. EEI also states that 
it is unlikely that the FAQ document would control interpretation of 
the CIP Reliability Standards.
---------------------------------------------------------------------------

    \41\ E.g., Arizona Public Service, EEI, Progress Energy, SoCal, 
TEC, Duke, ReliabilityFirst and National Grid.
---------------------------------------------------------------------------

    57. Finally, some commenters acknowledge that the traditional 
corporate business judgment rule does grant officers and directors 
broad discretion, but also contains elements that temper this 
discretion.\42\ To receive the benefit of the rule, a business decision 
must be made on an informed basis, in good faith and in honest belief 
that the action taken was in the best interests of the company. In 
addition, the person making the decision must act with the care that an 
ordinarily prudent person would reasonably be expected to exercise in a 
like position with similar circumstances. The commenters argue that 
these requirements permit the term reasonable business judgment to be 
adapted to the cyber security context.
---------------------------------------------------------------------------

    \42\ E.g., EEI and Progress Energy.
---------------------------------------------------------------------------

Commission Proposal
    58. For the reasons discussed below, the Commission proposes to 
direct the ERO to modify the CIP Reliability Standards to remove 
references to the ``reasonable business judgment'' language before 
compliance audits start in 2009.
    59. The Commission agrees with commenters that flexibility and 
discretion are essential in implementing the CIP Reliability Standards 
and that implementing those Reliability Standards must be done on the 
basis of the specific facts and circumstances applicable in the 
individual case at hand. Cyber security problems do not lend themselves 
to one-size-fits-all solutions. In addition, the Commission 
acknowledges that cost can be a valid consideration in implementing the 
CIP Reliability Standards. However, the Commission believes that the 
traditional concept of reasonable business judgment is ill suited to 
the task of implementing an appropriate program of cyber security 
pursuant to FPA section 215. The concept of reasonable business 
judgment addresses the issue of whether a decision-making process 
conforms to certain standards. It was developed specifically to address 
the issue of how courts should approach business decisions made by a 
company's officers or directors, and the answer it provides is based on 
certain assumptions about how our economic system operates and who is 
most likely to have the knowledge and expertise needed to make 
appropriate business decisions. However, the concept of reasonable 
business judgment takes on a very different meaning when removed from 
its original context and applied to a different factual situation where 
very different assumptions apply. As explained below, when transferred 
to the realm of cyber security or Bulk-Power System reliability 
generally, recourse to reasonable business judgment is inconsistent 
with the purpose of FPA section 215.
    60. Cyber standards are essential to protecting the Bulk-Power 
System against attacks by terrorists and others seeking to damage the 
grid. Because of the interconnected nature of the grid, an attack on 
one system can affect the entire grid. It is therefore unreasonable to 
allow each user, owner or operator to determine compliance with the CIP 
Reliability Standards based on its own ``business interests.'' Business 
convenience cannot excuse compliance with mandatory Reliability 
Standards.
    61. While some commenters argue that references to reasonable 
business judgment in the CIP Reliability Standards were not intended to 
trigger the traditional corporate business judgment rule, the FAQ 
document can be read to suggest the contrary. In fact, the FAQ document 
states explicitly that ``reasonable business judgment'' means what the 
courts have said it means in the corporate context. It states that the 
phrase has an almost 200 year history in the common law nations and 
notes that ``[c]ourts generally hold that the phrase indicates 
reviewing tribunals should not substitute their own judgment for that 
of the entity under review other than in extreme circumstances.'' The 
FAQ document then goes on to list the elements of reasonable business 
judgment as the courts generally define it. The FAQ document nowhere 
states or suggests that the meaning and significance of reasonable 
business judgment is subject to some modification or qualification in 
the context of implementing and complying with the CIP Reliability 
Standards.
    62. Moreover, as the FAQ document makes clear, compliance turns on 
whether a decision was ``based on a rational belief that the decision 
is in the entity's business interest.'' That test is fundamentally 
incompatible with Congress' decision to adopt a regime of mandatory 
Reliability Standards. As we stated above, the vulnerability of one 
entity can pose risks to the entire grid. We therefore cannot allow 
each user, owner or operator to determine compliance based on its own 
parochial business interests. The purpose of section 215 is to protect 
the national interest in grid reliability.
    63. The business judgment rule was adopted in a context that is 
simply not appropriate for mandatory Reliability Standards. The 
business judgment rule recognizes that officers and directors

[[Page 43978]]

must have wide latitude if a company is to be managed properly and 
efficiently and that it is not in the interest of shareholders to 
create incentives for officers and directors to be overly cautious.\43\ 
Courts have noted that shareholders voluntarily undertake the risk of 
bad business judgments and investors who are adverse to such risk have 
alternative investment opportunities available to them.\44\ In the 
context of section 215, however, these principles do not apply. The 
issue under section 215 is not whether the management of a business is 
acting in the interest of its own shareholders, but rather whether an 
entity is taking appropriate action to avert risks that could threaten 
the entire grid.
---------------------------------------------------------------------------

    \43\ Cramer v. General Telephone and Electronics Corp., 582 F.2d 
259 (3d Cir. 1978); Joy v. North, 692 F.2d 880 (2d Cir. 1982).
    \44\ Joy v. North, 692 F.2d 880 (2d Cir. 1982).
---------------------------------------------------------------------------

    64. It is also notable that the business judgment rule is invoked, 
in the corporate governance context, only in extreme circumstances. 
Generally, to find an officer or director liable there must be evidence 
establishing that he or she acted fraudulently, in bad faith, or with 
gross or culpable negligence.\45\ Some cases refer to unconscionable 
conduct, illegal or oppressive acts, willful abuse of discretionary 
power or neglect of duty, and recklessness as situations that fall 
outside reasonable business judgment.\46\ While the FAQ document does 
not explain this point clearly, it does allude to it when it notes that 
the ``[c]ourts generally hold that the phrase indicates reviewing 
tribunals should not substitute their own judgment for that of the 
entity under review other than in extreme circumstances.'' (Emphasis 
supplied).
---------------------------------------------------------------------------

    \45\ In Re Bal Harbour Club, Inc., 316 F.3d 1192 (11th Cir. 
2003) (Bal Harbour); Froelich v. Senior Campus Living LLC, 355 F.3d 
802 (4th Cir. 2004); Poth v. Rassey, 281 F. Supp. 2d (E.D. Va. 2003) 
(Poth v. Rassey).
    \46\ Bal Harbour; Poth v. Rassey; Gray v. Manhattan Medical 
Center, Inc., (18 P.3d 291 (Kan. 2001); G & N Aircraft, Inc. v. 
Boehm, 743 N.E.2d 227 (Ind. 2001).
---------------------------------------------------------------------------

    65. These criteria are plainly inappropriate for mandatory CIP 
Reliability Standards. For example, if an inadequate cyber plan caused 
a grid-wide disturbance or blackout, a violation could be established 
only in ``extreme circumstances'' where there was ``unconscionable 
conduct'' or ``recklessness'' or, as discussed above, where the 
entity's plan was not consistent with its ``own business interest.'' 
These highly deferential legal standards are not compatible with a 
mandatory reliability regime under section 215 of the FPA. We therefore 
propose to direct NERC to delete references to ``reasonable business 
judgment'' from the CIP Reliability Standards.
    66. We wish to stress, however, that, even though we propose to 
delete the business judgment rule, we believe flexibility in the 
application of the CIP Reliability Standards remains appropriate. 
First, as discussed throughout this NOPR, the CIP Reliability Standards 
contain specific provisions that explicitly permit various alternative 
courses of action. More importantly, however, the CIP Reliability 
Standards do not simply allow the exercise of flexibility and 
discretion, they require it. Even with the various revisions and 
additions that the Commission is proposing in this NOPR, the CIP 
Reliability Standards constitute a relatively brief document, and the 
Requirements it contains are largely performance based. These 
Requirements for the most part are quite general and do not dictate 
specific solutions to cyber-security problems. Responsible entities 
therefore must interpret and apply them to their specific 
circumstances. The CIP Assessment explained:

    The task of balancing technical options comes into play as one 
selects and combines the various available technologies into a 
comprehensive architecture to protect the specific computer 
environment. The key to success is possessing cyber security 
standards that provide reliable direction on how to choose among 
alternatives to achieve an adequate level of security.\47\

    \47\ CIP Assessment at 8.
---------------------------------------------------------------------------

    67. Based on our careful consideration of this issue as discussed 
above, pursuant to section 215(d)(5) of the FPA and Sec.  39.5(f) of 
our regulations, the Commission proposes to direct that the ERO modify 
each of the proposed CIP Reliability Standards to remove references to 
the ``reasonable business judgment'' language before compliance audits 
start in 2009.
b. ``Technical Feasibility'' and ``Acceptance of Risk''
    68. Two CIP Reliability Standards contain language that provides 
exceptions from compliance with a Requirement. This language takes two 
forms: one focuses on technical feasibility, and the other focuses on 
acceptance of risk.
    69. Some provisions require a responsible entity to take action 
``where technically feasible.'' \48\ The NERC glossary does not define 
the term ``technically feasible,'' and the Reliability Standards 
themselves do not specify how an entity is to determine whether an 
action is technically feasible. NERC's FAQ document provides the 
following guidance on the meaning of the phrase ``where technically 
feasible:''

    \48\ The ``technically feasible'' phrase is found in CIP-005-1, 
Requirements R2.4, R2.6, R3.1, R3.2 and CIP-007-1, Requirements R4, 
R5.3, R6, R6.3. Additionally, CIP-007, Requirement R2.3 uses 
``technical limitations'' to similar effect.
---------------------------------------------------------------------------

    Technical feasibility refers only to engineering possibility and 
is expected to be a ``can/cannot'' determination in every 
circumstance. It is also intended to be determined in light of the 
equipment and facilities already owned by the responsible entity. 
The responsible entity is not required to replace any equipment in 
order to achieve compliance with the Cyber Security Standards. When 
existing equipment is replaced, however, the responsible entity is 
expected to use reasonable business judgment to evaluate the need to 
upgrade the equipment so that the new equipment can perform a 
particular specified technical function in order to meet the 
requirements of these standards.\49\

    \49\ FAQ Document at 1.
---------------------------------------------------------------------------

    Technical feasibility is here related to reasonable business 
judgment, but only in a situation where equipment is being replaced. 
Otherwise, the FAQ document treats technical feasibility in terms of 
objective engineering judgments regarding what is possible with 
existing equipment.
    70. Some Requirements in the CIP Reliability Standards permit an 
entity not to take the actions specified in the Requirement if they 
``document compensating measures applied to mitigate risk exposure or 
an acceptance of risk.'' \50\ The Reliability Standards do not provide 
explicit guidance on the circumstances in which it is appropriate to 
accept the risk of non-compliance.
---------------------------------------------------------------------------

    \50\ See CIP-007-1, Requirements R2.3, R3.2, and R4.1.
---------------------------------------------------------------------------

CIP Assessment
    71. In the discussion of specific Reliability Standards, the CIP 
Assessment expressed concern about the need to reference technical 
feasibility, either because the action in question appeared to be 
clearly technically feasible or because of the extremely limited number 
of situations in which technical feasibility could become an issue.\51\
---------------------------------------------------------------------------

    \51\ See, e.g., CIP Assessment at 26-27, 32-33.
---------------------------------------------------------------------------

    72. The CIP Assessment noted that acceptance of risk raised special 
concern in a cyber environment. Where there are interconnected control 
systems, an acceptance of a cyber risk by one entity would actually be 
tantamount to an acceptance of risk on behalf of all entities connected 
with it because the first entity can serve as a gateway to the others 
as noted above. The entity that initially accepts the risk

[[Page 43979]]

becomes a ``weak link'' in the chain. The CIP Assessment noted that 
there is no provision in the proposed CIP Reliability Standards for 
oversight or consideration of the broader impacts of risk acceptance in 
individual cases. It sought comment on the appropriateness of risk 
acceptance and suggested that, if this concept is appropriate, clear 
guidance is needed to explain the limited circumstances in which it is 
appropriate.
Comments
    73. NERC states that the term ``technical feasibility'' is intended 
to be very limited in scope. It defines the term as the physical 
ability of in-place equipment or software to conform directly to some 
Requirement in the Reliability Standards or the ability of in-place 
equipment or software to perform its required function if modified in a 
way that would most directly conform to some Requirement. The term is 
used to prevent penalizing responsible entities unnecessarily in 
situations where they cannot change immediately or prudently to comply 
with a Requirement. NERC states that where the concept of technical 
feasibility applies, the responsible entity should document the 
technical issue and its mitigation plans or strategies.
    74. Many commenters \52\ emphasize that the phrase ``where 
technically feasible'' is intended to permit flexibility, to permit the 
application of the Reliability Standards to a wide variety of 
situations, and to allow compliance with the Reliability Standards to 
evolve over time as technologies change. Some commenters note that in 
many cases it is not feasible to enhance equipment without replacing 
it. In some cases, off-the-shelf solutions are not available for 
various parts of the system.
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    \52\ E.g., National Grid; ISO/RTO Council; PJM, Ontario IESO, 
SPP, and ISO-NE.
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    75. ISA Group states that the phrase ``where technically feasible'' 
could be eliminated entirely from the CIP Reliability Standards and 
replaced with an exception mechanism that requires a decision to invoke 
technical feasibility to be explicit and reviewable. The exception 
mechanism should require that there be alternative mitigation that 
provides the level of security that would otherwise have been achieved. 
California PUC argues that the phrase ``technically feasible'' should 
be removed unless there is a serious question about the actual 
feasibility of a requirement being imposed.
    76. Most commenters support the ``acceptance of risk'' terminology 
with certain qualifications. NERC states that the concept of risk 
acceptance recognizes that flexibility and judgment are required to 
make prudent decisions, but does not allow an entity to do nothing. It 
also contends that acceptance of risk is a fundamental tenet of an 
audit process, which recognizes that not all systems or implementations 
can be perfect. Other commenters state that acceptance of risk is 
needed to allow for flexibility and that it can be workable if 
decisions to accept risk are documented, compensating or mitigating 
action is taken, and decisions to accept risk are transparent and 
subject to review and oversight.\53\ Some commenters state that any 
invocation of the risk acceptance provision should be subject to a 
sunset date or plan to achieve compliance.\54\ In contrast, Wisconsin 
Electric states that acceptance of risk could seriously endanger 
reliability and supports removal of the option to accept risk.
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    \53\ E.g., Allegheny, MidAmerican and National Grid.
    \54\ E.g., MidAmerican and Allegheny.
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Commission Proposal
    77. For the reasons discussed below, pursuant to section 215(d)(5) 
of the FPA and Sec.  39.5(f) of our regulations, the Commission 
proposes to direct that the ERO: (1) interpret the term ``technical 
feasibility'' narrowly as applying to the technical characteristics of 
existing assets and having no relation to the considerations of 
business judgment discussed above; (2) treat instances where technical 
feasibility is invoked as exceptions that require certain alternative 
courses of action; (3) eliminate the ``acceptance of risk'' option from 
the CIP Reliability Standards; and (4) develop an annual report that 
quantifies, on a wide-area basis, the frequency with which responsible 
entities invoke ``technical feasibility'' or other provisions that 
produce the same outcome. The reason the Commission believes these 
proposed safeguards are necessary, as well as additional details 
regarding these proposals, are provided below.
Technical Feasibility
    78. The Commission acknowledges that, in the near term, exceptions 
from compliance based on the concept of ``technical feasibility'' may 
be appropriate in a limited set of circumstances.\55\ However, 
responsible entities should not be permitted to invoke technical 
feasibility on the basis of ``reasonable business judgment,'' as NERC's 
FAQ suggests. We have already discussed the concerns that reasonable 
business judgment can create for effective cyber security. Nor should a 
responsible entity be able to except itself unilaterally from a 
Requirement of a mandatory Reliability Standard with no oversight. 
Unless invocation of the technical feasibility exception is carefully 
circumscribed, substantial opportunity for abuse, difficulty in 
enforcement and the continued allowance of unacceptable reliability 
risks could result.
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    \55\ For example, it is understandable that some older 
``legacy'' systems are not capable of utilizing certain cyber 
protection strategies needed to fully comply with the Requirements 
of these CIP Reliability Standards. In such a case, the responsible 
entity could be granted an exception upon the satisfactory submittal 
of a mitigation plan leading to compliance, by a date certain.
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    79. Therefore, the Commission proposes to require the ERO to 
establish a structure to require accountability from those who rely on 
``technical feasibility'' as the basis for an exception. Such a 
structure would require a responsible entity to: (1) Develop and 
implement interim mitigation steps to address the vulnerabilities 
associated with each exception; (2) develop and implement a remediation 
plan to eliminate the exception, including interim milestones and a 
reasonable completion date; and (3) obtain written approval of these 
steps by the senior manager assigned with overall responsibility for 
leading and managing the entity's implementation of, and adherence to, 
the CIP Reliability Standards as provided in CIP-003-1, Requirement R2. 
This proposed structure should include a review by senior management of 
the expediency and effectiveness of the manner in which a responsible 
entity has addressed each of these three proposed conditions. In 
addition, the Commission proposes to require a responsible entity to 
report and justify to the ERO and the Regional Entity for approval each 
exception and its expected duration. In situations where any of the 
proposed conditions are not satisfied, the ERO or the Regional Entity 
would inform the responsible entity that its claim to an exception 
based on technical feasibility is insufficient and therefore not 
approved. Failure to timely rectify the deficiency would invalidate the 
exception for compliance purposes.
    80. The Commission believes that it is important that the ERO, 
Regional Entities and the Commission understand the circumstances and 
manner in which responsible entities invoke the technical feasibility 
provision as well as other provisions that function as an exception to 
the CIP Reliability Standards. The Commission,

[[Page 43980]]

therefore, proposes to direct the ERO to submit an annual report that 
would include, at a minimum, the frequency of the use of such 
provisions, the circumstances or justifications that prompt their use, 
the interim mitigation measures used to address the vulnerabilities, 
and the milestone schedule to eliminate them and to bring the entities 
into compliance to eliminate future reliance on the exception. The 
Commission expects that the report would not provide a level of detail 
so as to contain critical energy infrastructure information, but would 
include sufficient information such that it is clear that the 
mitigation measures have addressed the interim vulnerabilities and the 
milestone schedules will be sufficient to bring the entities into 
compliance by a date certain in a timely manner. The report should 
include aggregated information with sufficient detail for the 
Commission to understand the frequency in which specific provisions are 
being invoked as well as mitigation and remediation plans over time and 
by region. Such information would allow the Commission to evaluate 
whether to initiate the development of additional Reliability Standards 
or require new Reliability Standards and/or modifications to existing 
Reliability Standards.
    81. The Commission also seeks comment on additional categories of 
information that should be included in the content of this report that 
would be useful for the Commission, as well as the ERO and Regional 
Entities, in evaluating the invocation of technical feasibility and 
similar provisions, and the impact on protection of critical assets.
    82. The Commission proposes to direct the ERO to consider making 
``technically feasible,'' and derivative forms of that phrase as used 
in the CIP Reliability Standards, defined terms in NERC's glossary, 
pursuant to the prior clarifications, without any reference to 
reasonable business judgment.
Acceptance of Risk
    83. The Commission has several concerns regarding the references to 
``acceptance of risk'' that appear in the CIP Reliability Standards. As 
proposed by NERC, there are no controls or limits on a responsible 
entity's use of this exception. For example, a responsible entity may 
invoke the ``acceptance of risk'' exception without any explanation, 
mitigation efforts, evaluation of the potential ramifications of 
accepting the risk, or other accountability. In essence, the phrase 
``or an acceptance of risk'' allows a responsible Entity to opt out of 
certain provisions of a mandatory Reliability Standard at its 
discretion.
    84. Further, there is no requirement that a responsible entity 
communicate to a responsible authority information related to the 
potential vulnerabilities created by a decision to accept risk and how 
they could affect Bulk-Power System reliability. The resulting 
uncertainty concerning who had invoked ``acceptance of risk'' and in 
what connection would mean that neither the ERO, Regional Entities nor 
others would know whether adequate cyber security precautions are in 
place to protect critical assets. The possibility that appropriate 
security measures for critical assets have not been implemented due to 
acceptance of risk and that no corresponding compensating or mitigating 
steps have been taken presents an undue and unacceptable risk to Bulk-
Power System reliability.
    85. Moreover, the Commission believes the acceptance of risk 
language does not serve any justifiable purpose. To the extent that an 
entity would invoke this exception because compliance is not 
technically feasible, it should rely on that exception, which with the 
Commission's proposal would have specific safeguards and limitations. 
To the extent that a responsible entity would invoke the acceptance of 
risk language because its business preference is not to expend 
resources on cyber vulnerability, we believe that is inappropriate for 
all the reasons discussed previously. A responsible entity should not 
be able to jeopardize critical assets of others, and create a 
significant and unknown risk to Bulk-Power System reliability, simply 
because it is willing to ``accept the risk'' that its own assets may be 
compromised.
    86. Accordingly, the Commission proposes to direct that the ERO 
remove the ``acceptance of risk'' language from the CIP Reliability 
Standards.
6. Guidance for Improving CIP Reliability Standards
    87. Several commenters discussed the proposed CIP Reliability 
Standards in relation to other standards that exist for governmental 
and industrial cyber security. MITRE and NIST suggest that more 
advanced cyber security standards have been developed that could 
provide a model in future improvements to the CIP Reliability 
Standards. In particular, they point to NIST Special Publication 800-53 
Revision 1, Recommended Security Controls for Federal Information 
Systems (SP 800-53). MITRE believes that the relevant NIST 
publications, including Federal Information Processing Standards (FIPS) 
199, FIPS 200, and SP 800-53, constitute a comprehensive and coherent 
basis for cyber security in the electric power sector. NIST recommends 
that the Commission consider a planned transition to cyber security 
standards that are identical to, consistent with, or based on SP 800-53 
and related NIST standards and guidelines.
Commission Proposal
    88. The Commission declines to propose at this time that NERC 
incorporate any provisions of the NIST standards into the CIP 
Reliability Standards. However, the Commission expects NERC to monitor 
the development and implementation of the NIST standards to determine 
if they contain provisions that will better protect the Bulk-Power 
System.\56\ Several federal entities, such as the Tennessee Valley 
Authority and Western Area Power Administration, are subject to both 
the NIST standards and the Reliability Standards, and therefore are 
likely to have unique insights into the NIST standards. The Commission 
expects the ERO to seek and consider comments from those federal 
entities on the effectiveness of the NIST standards and on any 
implementation issues. Any provisions that will better protect the 
Bulk-Power System should be addressed in the ERO's Reliability 
Standards development process. The Commission may revisit this issue in 
future proceedings as part of an evaluation of existing Reliability 
Standards or the need for new Reliability Standards, or as part of 
assessing NERC's performance of its responsibilities as the ERO.\57\
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    \56\ The Commission is also aware that the Instrumentation, 
Systems, and Automation Society (ISA) is developing cyber security 
standards, referred to as ISA SP-99, and that other infrastructure 
sectors are considering adopting the ISA standards for their control 
systems.
    \57\ See Order No. 672 at P 186-91.
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B. Discussion of Each CIP Reliability Standard

1. CIP-002-1--Critical Cyber Asset Identification
    89. Reliability Standard CIP-002-1 deals with the identification of 
critical cyber assets. The NERC glossary defines ``cyber assets'' as 
``programmable electronic devices and communication networks including 
hardware, software, and data.'' It defines ``critical cyber assets'' as 
``cyber assets essential to the reliable operation of critical 
assets.'' NERC defines ``critical assets'' as ``facilities, systems, 
and equipment which, if destroyed, degraded, or otherwise rendered 
unavailable, would

[[Page 43981]]

affect the reliability or operability of the Bulk Electric System.'' 
\58\
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    \58\ ``The term `reliable operation' means operating the 
elements of the bulk-power system within equipment and electric 
system thermal, voltage, and stability limits so that instability, 
uncontrolled separation, or cascading failures of such system will 
not occur as a result of a sudden disturbance, including a 
cybersecurity incident, or unanticipated failure of system 
elements.'' EPAct 2005, section 215(a)(4).
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    90. As the first step in identifying critical cyber assets, CIP-
002-1 requires each responsible entity to develop a risk-based 
assessment methodology to use in identifying its critical assets. 
Requirement R1 specifies certain types of assets that an assessment 
must consider for critical asset status and also allows the 
consideration of additional assets that the responsible entity deems 
appropriate. Requirement R2 requires the responsible entity to develop 
a list of critical assets based on an annual application of the risk-
based assessment methodology. Requirement R3 provides that the 
responsible entity must use the list of critical assets to develop a 
list of associated critical cyber assets that are essential to the 
operation of the critical assets. CIP-002-1 requires an annual re-
evaluation and approval by senior management of the lists of critical 
assets and critical cyber assets.
    91. The CIP Assessment emphasized that, while CIP-002-1 through 
CIP-009-1 function as an integrated whole, CIP-002-1 is a key to the 
success of the cyber security framework that these Reliability 
Standards seek to create.\59\ The CIP Assessment also stressed that, 
because CIP-002-1 addresses the assessment methodology and process for 
identifying critical assets and critical cyber assets, it represents 
the critical first step that can fundamentally affect the chances for 
successful implementation of the remaining CIP Reliability Standards. 
The methodology and process used by a responsible entity must be 
stringent and rigorous. Otherwise, a responsible entity may fail to 
identify some facilities that are critical to effective cyber 
protection and, as a consequence, leave them vulnerable to an attack 
that could threaten the reliability of the Bulk-Power System.
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    \59\ CIP Assessment at 16-17.
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    92. The Commission proposes to approve Reliability Standard CIP-
002-1 as mandatory and enforceable. In addition, the Commission 
proposes to direct the ERO to develop modifications to this Reliability 
Standard. In our discussion below, the Commission addresses its 
concerns in the following topic areas regarding CIP-002-1: (1) The 
proper risk-based assessment methodology for identifying critical 
assets and associated critical cyber assets; (2) internal approval of 
the risk assessment; (3) oversight of critical asset identification; 
and (4) interdependency analysis.
a. Risk-Based Assessment Methodology
    93. As mentioned above, CIP-002-1 requires each responsible entity 
to develop a risk-based assessment methodology to identify critical 
assets.
CIP Assessment
    94. The CIP Assessment noted that, while CIP-002-1 requires use of 
a risk-based assessment methodology, it does not provide direction on 
the nature and scope of that methodology, its basic features or the 
issues it should address. The CIP Assessment expressed concern that the 
absence of such direction could result in the Requirement being 
unevenly executed, which could result in inconsistency and 
inefficiency. It stated that, due to this lack of direction, the 
Reliability Standard does not provide a basis for evaluating whether 
the risk-based assessment methodology adopted by a particular entity 
will permit effective identification of all critical assets.
    95. The CIP Assessment explained that proper risk-based assessment 
methodology is essential to achieve sufficient scope and implementation 
of critical infrastructure protection. Requirement R4 specifically 
contemplates the circumstance that a ``Responsible Entity may determine 
that it has no Critical Assets or Critical Cyber Assets,'' and 
correspondingly requires that a signed and dated record of management 
approval of the list of critical assets and critical cyber assets be 
kept ``even if such lists are null.'' The CIP Assessment pointed out, 
however, that a small entity whose operations may not have a major, 
day-to-day operational impact on the Bulk-Power System can have 
critical importance from a cyber security perspective, especially as a 
gateway to larger entities or when attacked simultaneously with other 
entities. The absence of adequate direction on what constitutes a 
proper risk-based assessment methodology may potentially result in 
entities improperly identifying a limited or ``null set'' of critical 
assets and critical cyber assets. This result could have serious 
adverse effects for Bulk-Power System reliability.
Comments
    96. Commenters generally agree that CIP-002-1 plays a crucial role 
because whether a responsible entity must comply with the substance of 
the remaining CIP Reliability Standards depends on whether it 
identifies critical cyber assets pursuant to CIP-002-1. Commenters also 
agree that the risk assessment methodology is the key to a responsible 
entity accurately identifying its critical assets and critical cyber 
security assets.
    97. While some commenters agree with the CIP Assessment that the 
Requirement for the risk-based assessment methodology would benefit 
from additional guidance or specificity, the majority disagree. Among 
those who support the need for more specificity, Arizona Public Service 
expresses concern that CIP-002-1, as proposed, may place a responsible 
entity in the position of not having enough guidance on whether its 
risk-based methodology will result in the identification of all 
critical assets.
    98. Ontario IESO agrees that the CIP Assessment's reasons for 
concern are valid, which stem from the fact that many assessments will 
be performed by entities not previously subject to compliance with NERC 
Reliability Standards, and from the potential disagreement between 
entities on what constitutes a critical asset. It also shares the 
concern that some entities may avoid declaring critical assets to avoid 
further compliance obligations with the CIP Reliability Standards. 
Ontario IESO emphasizes that an essential feature of a good assessment 
is the quality of the judgments that necessarily must be applied. 
Rather than making modifications to provide more explicit direction, 
Ontario IESO suggests that much of the concern associated with critical 
asset identification could be addressed by modifying the Reliability 
Standard to require that the responsible entity consult with its 
reliability coordinator, and granting the reliability coordinator the 
authority to make the final determination of critical assets within its 
territory.
    99. NERC and others oppose including additional specificity, 
claiming that CIP-002-1 is specifically written to allow each 
responsible entity the flexibility to implement it as it applies to the 
specific circumstances within each organization, and at each location 
containing critical cyber assets.\60\ These commenters are concerned 
that a Commission directive to include additional guidance would 
restrict the needed flexibility. For example, APPA argues that the 
proposed provisions provide an adequate basis for evaluating the 
methodology, stating that prescribing a national-level ``one size fits 
all'' risk-based assessment methodology would

[[Page 43982]]

require a costly effort to comply, but would not result in measurable 
cyber security improvements. APPA adds that every entity's risk-based 
assessment will be subject to challenge by an audit team from time-to-
time, which will include review by peer technical experts who share the 
goal of preventing any successful attack on critical assets. AMP-Ohio 
suggests that it would be inappropriate to divide the Bulk Electric 
System into a large number of small, discrete and in some cases rather 
isolated pieces and then to assign responsibility to each of these 
small pieces to determine what is or is not critical to the reliable 
operation of the Bulk Electric System.
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    \60\ E.g., ReliabilityFirst, EEI, EPSA, and APPA.
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Commission Proposal

    100. Most commenters on the CIP Assessment acknowledge the 
importance of CIP-002-1 in ensuring that an appropriate set of critical 
assets is identified. However, many commenters oppose any modification 
to CIP-002-1 to provide additional specificity regarding the risk 
assessment methodology for identifying critical assets, based on 
concerns that such specificity will impede the needed flexibility that 
is currently provided by the Reliability Standard.
    101. The Commission recognizes the commenters' concerns and is 
mindful of the need for flexibility in the risk assessment process to 
take into account the individual circumstances of a responsible entity. 
Yet, the Commission is concerned that, without some additional 
guidance, each responsible entity will have to devise its own 
assessment methodology without sufficient assurance that the 
methodology is adequate to identify the types of assets necessary to 
protect the reliability of the Bulk-Power System. As explained by 
Ontario IESO, many responsible entities performing the risk assessment 
have not previously been subject to compliance with NERC's Reliability 
Standards. Further, there is a potential for disagreement among 
responsible entities regarding what constitutes a critical asset.
    102. The Commission also is concerned that the risk assessment 
methodologies required by CIP-002-1 must place the proper emphasis on 
the possible consequences from an outage of a particular asset. 
Generically, risk assessments include consideration of both consequence 
(in this case, the effect of loss of availability of an asset on the 
reliable operation of the Bulk-Power System) and threat (the likelihood 
that an outage will occur, naturally or by malicious act). However, in 
this context we believe that the consequence of an outage should be the 
controlling factor. We note that the definition of ``critical assets'' 
is focused on the criticality of the assets, not the likelihood of an 
outage.
    103. Accordingly, the Commission proposes to direct NERC to develop 
modifications to CIP-002-1 to provide some basic guidance on the 
content or considerations to be applied in a risk assessment 
methodology. We are not proposing that NERC develop specific details of 
a methodology that must be applied in all circumstances. However, the 
Commission believes that responsible entities would benefit from NERC 
providing some common understanding regarding the scope, purpose and 
basic direction of the risk assessment methodology. For example, the 
Reliability Standard should indicate that a proper risk-based 
assessment methodology to identify critical assets should examine (1) 
the consequences of the loss of the asset to the Bulk-Power System and 
(2) the consequence to the Bulk-Power System if an adversary gains 
control of the asset for intentional misuse. Such guidance could also 
address how a generation owner, or even a partial owner of generation, 
without a wide-area reliability perspective, should approach a risk-
based assessment.
    104. Further, we are concerned that relatively smaller registered 
entities, such as some resources, load-serving entities, and demand 
side aggregators, may have difficulty in determining whether a 
particular asset is ``critical'' for Bulk-Power System reliability, 
since, for example, the impact of their facilities may be dependent on 
their connection with a transmission owner or operator. We believe that 
such an entity may want to perform an accurate assessment but lack the 
regional view to make a determination on its own. Thus, we propose that 
the ERO and Regional Entities provide reasonable technical support to 
such entities that would assist them in determining whether their 
assets are critical to the Bulk-Power System.
    105. Accordingly, pursuant to section 215(d)(5) of the FPA and 
Sec.  39.5(f) of our regulations, the Commission proposes to direct 
that the ERO develop modifications to CIP-002-1 through its Reliability 
Standards development process to provide additional guidance as to the 
features and functionality of an adequate risk-based assessment 
methodology, as discussed above.
b. Internal Approval of Risk Assessment
    106. Requirement R4 of CIP-002-1 requires that a senior manager 
``or delegate(s)'' must approve annually the list of critical assets 
and critical cyber assets. The CIP Assessment suggested that that this 
senior management involvement should be extended to approving the risk-
based assessment methodology developed pursuant to Requirement R1.\61\ 
Several commenters disagree,\62\ stating that this approval is implied 
by the requirement for senior management approval of the critical asset 
list and the critical cyber asset list. Other commenters generally 
believe that senior management approval of the risk-based assessment 
methodology would be a benefit.\63\
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    \61\ CIP Assessment at 17-18.
    \62\ NERC, ReliabilityFirst, and Santa Clara.
    \63\ E.g., APPA/LPPC, FirstEnergy, National Grid, Progress 
Energy, and Xcel.
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Commission Proposal
    107. The Commission believes that senior management approval of the 
risk-based assessment methodology has clear benefits that exceed any 
additional burden placed on the responsible entities, and the rigor 
that the senior management approval would encourage is worth the 
effort. As explained in the CIP Assessment, since a poor methodology 
will likely result in an inadequate identification of critical assets 
and critical cyber assets, senior management awareness and approval of 
the chosen risk-based assessment methodology is of critical 
importance.\64\ It is not clear to the Commission that, as some 
commenters suggest, senior management approval of the risk-based 
assessment methodology is implicit in the requirement that senior 
management approve the critical asset list and critical cyber asset 
list. Commenters did not object to the concept, but only believed that 
it might be redundant. We believe this additional layer of oversight is 
important and should be made explicit. The Commission also notes that 
requiring this senior management approval helps to implement the 
Blackout Report's Recommendation 43, which calls for establishing 
``clear authority and ownership for physical and cyber security.'' \65\
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    \64\ CIP Assessment at 18.
    \65\ See Blackout Report at 169, Recommendation 43.
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    108. Thus, pursuant to section 215(d)(5) of the FPA and Sec.  
39.5(f) of our regulations, the Commission proposes to direct that the 
ERO develop a modification to CIP-002-1 through its Reliability 
Standards development process to include a requirement that a senior 
manager annually review and approve the risk-based assessment 
methodology.

[[Page 43983]]

c. Oversight of Critical Assets Identification
    109. The CIP Assessment emphasized the underlying importance that 
each responsible entity develop accurate lists of critical assets and 
critical cyber assets. Several commenters note that responsible 
entities currently lack a wide-area view that would enable them to 
better assess the risks associated with certain assets.\66\ They 
suggest that guidance or oversight from an external organization could 
help ensure that responsible entities have properly identified critical 
assets from a regional perspective. Cleveland Public Power suggests 
that the Regional Entities should assume this role. Similarly, AMP-Ohio 
recommends that the Regional Entities should be responsible for 
identifying critical assets, with input from reliability coordinators 
and transmission planners. EPSA indicates that independent system 
operators (ISOs) and regional transmission organizations (RTOs) could 
provide guidance to individual companies in assessing critical assets 
and their vulnerability, in coordination with NERC and the Commission.
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    \66\ E.g., AMP-Ohio, EPSA, and Cleveland Public Power.
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    110. NERC, however, opposes regional oversight, stating that ``[i]t 
is not the function of the standards to implement an oversight or 
hierarchical organization for determining risks or vulnerabilities.'' 
\67\ NERC suggests that regional perspective is gained through 
information sharing forums such as the Electricity Sector Information 
Sharing and Analysis Center (ESISAC) \68\ and NERC's Critical 
Infrastructure Protection Committee.
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    \67\ NERC Comments, Attachment 1 at 17 (in response to a CIP 
Assessment suggestion regarding the need for regional perspective in 
CIP-003-1).
    \68\ The Electric Sector Information Sharing and Analysis Center 
was created based on a recommendation of Presidential Decision 
Directive 63, which defined specific infrastructures critical to the 
national economy and public well-being. ESISAC serves the 
Electricity Sector by facilitating communications between 
electricity sector participants, governmental entities, and other 
critical infrastructures. It is the job of the ESISAC to promptly 
disseminate threat indications, analyses, and warnings, together 
with interpretations, to assist electricity sector participants to 
take protective actions. NERC is functioning as the operator of the 
ESISAC.
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Commission Proposal

    111. The Commission disagrees with commenters that suggest that the 
responsibility for identifying critical assets should be placed on the 
Regional Entities or another organization instead of the categories of 
applicable entities currently identified in CIP-002-1. Such an approach 
would shift primary responsibility away from the asset owner or 
operator. We believe that such a shift would not improve the 
identification of critical assets, but more likely overwhelm the 
Regional Entities.
    112. On the other hand, the Commission believes that a formal or 
systematic approach to external oversight of the identification of 
critical assets would assure a wide-area view. Such an approach, on a 
regional basis, would better ensure that responsible entities are 
identifying similar assets. Even taking into account the individual 
circumstances of a responsible entity, we would expect certain trends 
in critical asset identification within a class of responsible 
entities, such as generator owners or transmission owners. If the vast 
majority of transmission owners, for example, identified a certain 
asset as critical, and a few did not, this result could be due to the 
unique circumstances of those transmission owners or from a flawed 
risk-based assessment methodology. However, without external oversight 
using a wide-area view, such trends or deviations would never be 
identified prior to an incident or audit, perhaps precluding a 
necessary adjustment to a particular critical asset list. In addition, 
a wide-area view would help to ensure that assets that have regional 
importance, such as for reactive power supply, are included as critical 
assets.
    113. NERC suggests that such issues can be addressed through 
existing forums for the voluntary exchange of information on cyber 
security issues. The Commission believes that this matter is too 
important to leave to voluntary mechanisms. Accordingly, pursuant to 
section 215(d)(5) of the FPA and Sec.  39.5(f) of our regulations, the 
Commission proposes to direct that the ERO develop a modification to 
CIP-002-1 through its Reliability Standards development process to 
include a mechanism for the external review and approval of critical 
asset lists based on a regional perspective. While we propose that the 
Regional Entities should be responsible for this function, we will not 
exclude the possibility of a critical asset review process that allows 
for participation of other organizations, such as transmission planners 
and reliability coordinators.
    114. Moreover, we note that the definition of ``critical cyber 
assets'' encompasses data.\69\ Thus, marketing or other data essential 
to the proper operation of a critical asset, and possibly the computer 
systems that produce or process that data, would be considered critical 
cyber assets subject to the CIP Reliability Standards. Therefore, the 
Commission proposes to direct the ERO to develop guidance on the steps 
that would be required to apply the CIP Reliability Standards to such 
data and to include computer systems that produce the data.
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    \69\ The NERC Glossary defines ``Critical Cyber Assets'' as 
``Cyber Assets essential to the reliable operation of critical 
assets.'' It defines ``Cyber Assets'' as ``programmable electronic 
devices and communication networks including hardware, software, and 
data.'' Therefore, marketing data or other system data that are 
essential to the proper operation of the critical asset may confer 
critical cyber asset status to those data and the computer systems 
that process them.
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    115. The Commission is concerned that all critical assets are 
identified, and interprets the phrase, ``[t]he risk-based assessment 
shall consider the following assets:'' in Requirement R1.2 to mean that 
a responsible entity must be able to show, based on the risk-based 
assessment methodology used, why specific assets were or were not 
chosen as critical assets. The Commission is also concerned that 
sufficient rigor is applied in examining whether control systems are 
determined to be critical assets. While it seems obvious that an 
evaluation of a control system for critical asset status would consider 
the potential loss of operability of the control center due to power or 
communications failure, we also believe that such an evaluation should 
include an examination of any misuse of the control system, the impact 
this misuse could have on any electric facilities that the responsible 
entity controls, and the combined impact of such facilities. Therefore, 
the Commission proposes to direct the ERO to modify Requirement R1.2 to 
clarify the requirement to show why specific assets were or were not 
chosen as critical assets, and to require the consideration of misuse 
of control systems.
d. Interdependency
    116. The CIP Assessment noted that CIP-002-1 does not address the 
issue of interdependency with other infrastructures and explained that 
there may be occasions where an electric sector asset, while not 
critical to Bulk-Power System reliability, may be crucial to the 
operation of another critical infrastructure.\70\ The CIP Assessment 
asked (1) whether this issue is appropriate for inclusion in CIP-002-1 
and (2) whether this topic is an area for future coordination and 
collaboration with other industries and government agencies.
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    \70\ CIP Assessment at 17.
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    117. Commenters generally agree that this issue is worthy of 
consideration and coordination and cooperation could be

[[Page 43984]]

advantageous. However, most commenters consider the topic outside the 
scope of CIP-002-1.\71\ By contrast, one commenter posits that there is 
a clear need to articulate that this type of interdependency analysis 
should be part of the responsible entity's determination of critical 
assets.\72\
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    \71\ E.g., APPA/LPPC, Duke, EEI, Georgia System, National Grid, 
NERC, ReliabilityFirst, SPP, Xcel, SoCal Edison, Progress Energy, 
and MidAmerican.
    \72\ ISA Group.
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Commission Proposal
    118. Reliability Standard CIP-002-1 pertains to the identification 
of assets critical to Bulk-Power System reliability. While broader 
interdependency issues cannot be ignored, the Commission intends to 
revisit this matter through future proceedings and with other agencies. 
This work will help to inform the electric sector and this Commission 
about the need for future Reliability Standards, especially when the 
interdependent infrastructures affect generating capabilities, such as 
through fuel transportation.
e. Commission Proposal Summary
    119. In summary,\73\ the Commission proposes to approve Reliability 
Standard CIP-002-1 as mandatory and enforceable. In addition, the 
Commission proposes to direct the ERO, pursuant to section 215(d)(5) of 
the FPA and Sec.  39.5(f) of our regulations, to develop modifications 
to CIP-002-1 through its Reliability Standards development process 
that: (1) Provide some basic guidance on the content or considerations 
to be applied in a risk-based assessment methodology; (2) include a 
requirement that a senior manager annually review and approve the risk-
based assessment methodology; (3) include a mechanism for the external 
review and approval of critical asset lists based on a regional 
perspective; and (4) modify Requirement R1.2 to (a) clarify the 
requirement to show why specific assets were or were not chosen as 
critical assets and (b) require the consideration of misuse of control 
systems.
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    \73\ This summary should be read in conjunction with the 
discussion above.
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2. CIP-003-1--Security Management Controls
    120. Reliability Standard CIP-003-1 seeks to ensure that each 
responsible entity has minimum security management controls in place to 
protect critical cyber assets identified pursuant to CIP-002-1. To 
achieve this goal, a responsible entity first must develop a cyber 
security policy that represents management's commitment and ability to 
secure its critical cyber assets. The responsible entity must designate 
a senior manager to lead and direct the responsible entity's cyber 
security program. This senior manager will also be the person 
authorized to approve any exception set out in the entity's cyber 
security policy.
    121. Further, a responsible entity must implement an information 
protection program to identify, classify and protect sensitive 
information concerning critical cyber assets, as well as an access 
control program to designate who may have access to such information. 
Finally, the responsible entity must establish a change control and 
configuration management program to oversee changes made to the 
critical cyber assets' hardware or software.
    122. The Commission proposes to approve Reliability Standard CIP-
003-1 as mandatory and enforceable. In addition, we propose to direct 
the ERO to develop modifications to this Reliability Standard. In our 
discussion below, the Commission addresses its concerns in the 
following topic areas regarding CIP-003-1: (1) Adequacy of policy 
guidance; (2) discretion to grant exceptions; (3) leadership; (4) 
access authorization; (5) change control and configuration management; 
and (6) interconnected networks.
a. Adequacy of Policy Guidance
    123. Requirement R1 of Reliability Standard CIP-003-1 directs the 
responsible entity to ``document and implement a cyber security policy 
that represents management's commitment and ability to secure its 
critical cyber assets.'' The only guidance that is given with regard to 
the nature and scope of the cyber security policy is that it 
``addresses the Requirements in CIP-002-1 through CIP-009-1, including 
the provisions for emergency situations.'' The Requirement also 
requires that a senior manager annually review and approve the policy.
    124. The CIP Assessment stated that senior management involvement 
should improve the prioritization of control system security within the 
entity, including allocation of resources.\74\ It explained that, since 
many of the Requirements in the CIP Reliability Standards leave 
considerable discretion to each responsible entity, the scope and 
thoroughness of the cyber security policies could vary widely. Thus, 
the CIP Assessment expressed concern that, because Requirement R1 does 
not address the policy's adequacy, this Requirement could actually mask 
certain security vulnerabilities.
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    \74\ CIP Assessment at 19.
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    125. APPA/LPPC are not convinced that the variation allowed in 
cyber security policies means that plans lack a sufficient level of 
protection. They believe that the Reliability Standard allows an 
appropriate level of variation as to how specific requirements will be 
met. Likewise, Georgia System does not share the CIP Assessment's 
concern that Requirement R1 could allow responsible entities to mask 
vulnerabilities, positing that it is in a utility's self-interest to 
take actions that improve reliability. Thus, it does not see a need for 
any additional guarantee that the involvement of senior management will 
result in improvements to the responsible entity's cyber security 
policy.
Commission Proposal
    126. The Commission acknowledges that details of particular 
security policies will vary due to the different cyber architectures 
and equipment used by the responsible entities. However, in addition to 
consideration of every Requirement in Reliability Standards CIP-002-1 
through CIP-009-1, the Commission expects that responsible entities' 
security policies will address issues that are not currently reflected 
in the CIP Reliability Standards, but are important to the security of 
the control system. For instance, currently data networks and 
communication networks are not covered by any CIP Reliability Standard. 
Yet these networks play an important role in the proper functioning of 
the control systems. The Commission would expect a security policy for 
control systems to address the responsible entity's actions to protect 
communication networks. Other possible topics for guidance here are the 
appropriate use of defense in depth strategy; the use of wireless 
communications for control systems; uninterruptible power supplies; and 
heating, ventilation, and air-conditioning equipment for critical cyber 
assets. We note that Recommendation 34 of the Blackout Report states 
that ``grid-related organizations should have a planned and documented 
security strategy, governance model, and architecture for EMS [energy 
management systems] automation systems.'' \75\
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    \75\ See Blackout Report at 165, Recommendation 34.
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    127. The Commission proposes to direct the ERO to modify CIP-003-1 
to provide additional guidance for the topics and processes that the 
required cyber security policy should address to ensure that the 
responsible entity

[[Page 43985]]

reasonably protects its critical cyber assets.
b. Discretion to Grant Exceptions
    128. Requirement R3 of CIP-003-1 provides that a responsible entity 
must document as an exception, with senior manager authorization, each 
instance where a responsible entity cannot conform to its security 
policy developed pursuant to Requirement R1. Documentation of the 
exception must include ``an explanation as to why the exception is 
necessary and any compensating measures, or a statement accepting 
risk.'' An exception to the cyber security policy must be documented 
within 30 days of senior management approval. An authorized exception 
must be reviewed and approved annually to ensure that the exception is 
still required and valid.
    129. The CIP Assessment expressed concern that this provision 
allows for broad discretion and may serve as a disincentive for 
upgrading to control systems that fully comply with cyber security 
Reliability Standards.\76\ With regard to a responsible entity's option 
to ``accept the risk,'' it pointed out that, for interconnected control 
systems of various entities, acceptance of risk by one entity is 
actually an acceptance of risk for all those that are interconnected. 
Yet, other entities may not be aware of the vulnerability, particularly 
absent any oversight or regional perspective of the risks or 
vulnerabilities that may exist.
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    \76\ CIP Assessment at 20.
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    130. Most commenters believe that it is appropriate to provide 
latitude for management to document exceptions to the responsible 
entity's established policies, select alternative and mitigating 
solutions, and ultimately accept residual risk. APPA/LPPC expect that 
the exercise of discretion will be one of the areas that will draw the 
most attention from auditors.
    131. Others, such as California PUC agree with the CIP Assessment's 
concern that the broad discretion allowed for exceptions could act as a 
disincentive for upgrading control systems. California PUC also agrees 
that acceptance of the risk in a cyber environment is actually an 
acceptance of risk for all connected entities because the entity that 
initially accepts the risk becomes the ``weak link'' in the chain. 
Santa Clara suggests that a responsible entity that makes exceptions 
and ``accepts risks'' is responsible for communicating such exceptions 
to its Regional Entity, which can then evaluate the overall ``risk,'' 
if any, to the bulk electric system. The Regional Entity, in turn, can 
then communicate appropriately to any interconnected entities so that 
they might take any necessary action.
Commission Proposal
    132. The Commission is concerned that CIP-003-1 allows a 
responsible entity too much latitude in excusing itself from compliance 
with its cyber security policy. While there may be valid reasons for 
exceptions to a cyber security policy, and it is helpful that 
exceptions must be explained in writing and approved by a designated 
senior manager, the Commission does not believe that the ``exceptions'' 
provision provides sufficient rigor or external accountability 
regarding the decision of a responsible entity to except itself from 
the cyber security policy. Accordingly, the Commission proposes to 
direct that NERC develop a modification to Requirement R3 of CIP-003-1 
to require a responsible entity to periodically submit to the Regional 
Entity the documentation of exceptions to the cyber security policy. 
The Commission believes that the external review of this documentation 
will provide added assurance that each responsible entity adequately 
justifies the exceptions to its cyber security policy.
    133. In addition, the Commission believes that there is a 
distinction between situations where a responsible entity excepts 
itself from its cyber security policy, rather than from specific 
Requirements of the CIP Reliability Standards based on technical 
feasibility. An exception to a cyber security policy provision does not 
also excuse compliance with a Requirement of a CIP Reliability 
Standard. Generally, a responsible entity has no authority to excuse 
itself from compliance with a mandatory Reliability Standard. As 
discussed above in section II.B.1.6, the CIP Reliability Standards do 
include several Requirements that allow an exception based on technical 
feasibility. However, the Commission has proposed to direct NERC to 
modify such provisions so that a responsible entity can only invoke the 
technical feasibility exception after fulfilling specific conditions 
including receiving approval from the ERO or the relevant Regional 
Entity. In contrast, an exception to a cyber security policy would 
require only senior manager approval and after-the-fact reporting to 
the Regional Entity. Accordingly, the Commission proposes to direct 
NERC to clarify that the exceptions mentioned in Reliability Standard 
CIP-003-1, Requirements R2.3 and R3, do not except responsible entities 
from the requirements of the CIP Reliability Standards.
c. Leadership
    134. The CIP Assessment notes that senior management involvement in 
security issues is important to ensure that responsible entities 
achieve compliance as quickly as possible and to ensure that it 
exercises any necessary discretion in an appropriate manner.\77\
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    \77\ CIP Assessment at 20.
---------------------------------------------------------------------------

    135. While National Grid concurs with the CIP Assessment, it also 
suggests that given the wide variety of critical assets, critical cyber 
assets and physical security requirements, no single senior manager has 
the expertise or authority to ensure compliance with all of the CIP 
Reliability Standards.
Commission Proposal
    136. The Commission's view is that Requirement R2 of CIP-003-1 
should be interpreted to require the designation of a single manager 
who has direct and comprehensive responsibility for the implementation 
and ongoing compliance with the CIP Reliability Standards. While this 
senior manager must have authority to delegate tasks and 
responsibilities within the entity's management structure, we believe 
that the senior manager must remain accountable for the responsible 
entity's compliance with the CIP Reliability Standards. In our view, it 
is essential to make clear both the ``authority and ownership'' for 
security, as Recommendation 43 of the Blackout Report states.\78\ 
Therefore, the Commission proposes to direct the ERO to modify CIP-003-
1, to make clear the senior manager's ultimate responsibility.
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    \78\ See Blackout Report at 169, Recommendation 43.
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d. Access Authorization
    137. Requirement R5 of CIP-003-1 directs the responsible entity to 
implement a program for managing access to protected critical cyber 
asset information. The CIP Assessment suggested that an annual review 
of personnel access to this information appears insufficient and could 
result in unnecessary vulnerability, especially since there is no 
requirement that a responsible entity revise access privileges to such 
protected information upon employee termination or job reassignment.
    138. Many commenters agree with the CIP Assessment's concern that 
an employee who leaves the company or who no longer performs job 
functions that require access to critical cyber assets should have that 
access revoked

[[Page 43986]]

promptly.\79\ NERC, Xcel, FirstEnergy and ReliabilityFirst note that 
this Requirement seeks establishment of ``a program for managing access 
to protected critical cyber asset information.'' They stress that CIP-
003-1, Requirement R5 relates to the governance and approval process, 
not the implementation and review of individual access (the oversight 
responsibility of which lies with the senior manager of the responsible 
entity). NERC asserts that the three requirements work together. The 
implementation provisions are in Requirement R5 of CIP-007-1, the 
revocation requirements are in Requirement R4 of CIP-004-1, and the 
management review and approval requirements are in Requirement R5 of 
CIP-003-1. NERC argues that, together, these provisions serve as a 
check that the CIP-004-1 revocation provision has been implemented.
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    \79\ E.g., APPA/LPPC and California PUC.
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Commission Proposal
    139. The Commission believes that the language of CIP-007-1, 
Requirement R5, CIP-004-1, Requirement R4, and CIP-003-1, Requirement 
R5 does not interlink these related provisions as clearly as some 
commenters assert. We are not persuaded by commenters who claim these 
Requirements adequately address the access issues related to employee 
turnover. We believe that the interrelationship among these provisions 
must be made clearer. We note that CIP-007-1, Requirement R5.1.3, which 
specifically refers to CIP-003-1, Requirement R5, addresses ``user 
accounts.'' Likewise, CIP-004-1, Requirement R4 addresses authorization 
for unescorted physical or cyber access to ``critical cyber assets.'' 
However, the information for which Requirement R4 of CIP-003-1 requires 
protection appears to be broader than ``user accounts'' and ``critical 
cyber assets.'' According to CIP-003-1, Requirement R4, protected 
information includes lists of critical cyber assets, floor plans, and 
security configuration information. While the concept of access 
authorization is similar across these provisions, there is no explicit 
mention in them of revoking access to ``information'' about critical 
cyber assets. While the priority must be on granting and revoking 
access to the critical cyber assets themselves, access to information 
concerning the critical cyber assets should also be adequately 
protected, and revocations always should be made promptly. We also note 
that Recommendation 44 of the Blackout Report stresses the need to 
prevent inappropriate disclosure of information.\80\ Thus, the 
Commission proposes to direct the ERO to modify Reliability Standards 
CIP-003-1, CIP-004-1, and/or CIP-007-1, to ensure and make clear that 
access to protected information is revoked promptly.
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    \80\ See Blackout Report at 169, Recommendation 44.
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e. Change Control and Configuration Management
    140. Requirement R6 requires the responsible entity to establish a 
process of change control and configuration management for adding, 
modifying, replacing, or removing critical cyber asset hardware or 
software.
    141. The CIP Assessment noted that entities often rely on 
commercial vendors to test and certify that electronic security patches 
they provide will not adversely affect other electronic systems already 
in place. It is not clear how a responsible entity could otherwise 
verify that a problem does not exist without burdensome testing each 
time a patch is implemented. Such a testing requirement may also 
inhibit or delay the use of security patches and thereby prolong 
vulnerabilities that would otherwise be relatively easy to fix.
    142. Santa Clara submits that electric utilities, like all ``cyber 
users,'' must rely on information technology vendors for accurate and 
reliable ``emergency or normal modifications.'' It suggests that it is 
not only unrealistic, but unnecessary, to expect that all responsible 
entities under the CIP Reliability Standards should, or could, possess 
the technical expertise to understand an IT vendor's code in enough 
detail to ensure that any modifications made by the IT vendor are 
accurate and reliable.
    143. SPP believes that the purpose of the change management program 
is to ensure the entity is aware of all changes being made to a 
critical cyber asset and, in being aware, readily recognizes when an 
unapproved change is made. An unapproved change could be an indication 
of a cyber attack in progress. SPP comments that Requirement R6 may 
fall short because it does not specify the need for detection and 
monitoring controls to determine when changes occur. SPP also asserts 
that a proper change management program includes provisions for 
routine, planned changes and emergency, unplanned changes.
Commission Proposal
    144. While Requirement R6 of Reliability Standard CIP-003-1 
captures the essence of managing changes intentionally made to critical 
cyber assets, it fails to address accidental consequences or malicious 
actions by individuals. Thus, the Commission believes that this 
Requirement needs to go further and we propose to direct the ERO to 
make two changes. First, we propose additional wording to require 
verification that authorized changes made to critical cyber assets, 
which include software and data, only affect processes that are 
intended. Our concern here includes both accidental consequences and 
malicious actions by individuals performing the changes. Second, we 
propose a requirement for responsible entities to take actions to 
detect unauthorized changes to critical cyber assets. Such changes 
could result from malicious actions originating either outside or 
inside the responsible entity. No electronic security perimeter is 100 
percent effective, especially when a malicious action is performed by 
an insider, and detection must be part of a good cyber security 
program. Therefore, the Commission proposes, as suggested by SPP, to 
direct the ERO to modify Requirement R6 of Reliability Standard CIP-
003-1 to include in the process of change control and configuration 
management a requirement for detection and monitoring controls to 
determine if changes are made as intended and to investigate whether 
any unintended or unplanned changes have been made.
f. Interconnected Networks
    145. The CIP Assessment also raised a concern that interconnected 
control system networks are more susceptible to infiltration by a cyber 
intruder. Georgia Operators responds that every responsible entity must 
protect its critical cyber assets by guarding its electronic access 
points against the spread of harm from external interconnected 
entities. This task can only be accomplished by assuming that such 
external entities are themselves unprotected.
    146. NERC and ReliabilityFirst claim that the purpose of 
establishing policy and procedure is for a responsible entity to 
protect itself from the ``outside world'' wherever that ``outside 
world'' might exist. It does not matter if the ``outside'' is an 
internally connected corporate network, or a completely separate 
entity. These commenters explain that the CIP Reliability Standards 
address a responsible entity's area of responsibility--the equipment it 
owns and controls. All interconnected control system network 
communications will traverse through electronic access points; 
therefore, there exists a need for ``security'' on the

[[Page 43987]]

interconnection points. Both commenters state that the electronic 
security perimeter effectively implements a model of mutual distrust 
between any collection of critical cyber assets within an electronic 
security perimeter, and any and all other cyber assets.
Commission Proposal
    147. The Commission agrees with commenters who caution that a 
responsible entity should protect itself from whatever is outside its 
control system. The phrase ``mutual distrust'' has been used to denote 
how these ``outside world'' systems are treated by those inside the 
control system. However, there is very little guidance for how a 
responsible entity would configure an architecture under a ``mutual 
distrust'' posture to handle both interactive login-type connectivity 
between the outside world and the control system as well as direct 
application communications (data shared between programs) that also 
occur between the control system and the outside world (both internal 
and external to the responsible entity). In addition, the Commission 
notes that, in our earlier discussion regarding the applicability of 
the CIP Reliability Standards to small entities, we relied in part upon 
the expectation that the responsible entities would adopt ``mutual 
distrust'' postures when receiving communications from others that 
impact the functioning of control systems. Therefore, the Commission 
proposes to direct the ERO to modify Reliability Standard CIP-003-1 to 
provide direction regarding the issues and concerns that a ``mutual 
distrust'' posture must address to protect the control system from the 
``outside world.'' \81\
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    \81\ An architecture with a mutual distrust posture could 
involve various hardware or software mechanisms or manual procedures 
to restrict and verify access to the control system from these 
outside sources. Examples include: Firewalls; data checking 
software(s); or procedures for manually implementing a connection to 
allow a vendor to perform maintenance work.
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g. Commission Proposal Summary
    148. In summary, the Commission proposes to approve Reliability 
Standard CIP-003-1 as mandatory and enforceable. In addition, the 
Commission proposes to direct the ERO, pursuant to section 215(d)(5) of 
the FPA and Sec.  39.5(f) of our regulations, to develop modifications 
to CIP-003-1 through its Reliability Standards development process that 
(1) provide additional guidance for the topics and processes that 
should be addressed by the required cyber security policy in order to 
ensure that the responsible entity reasonably protects its critical 
cyber assets; (2) require a responsible entity to submit periodically 
to the Regional Entity the documentation of exceptions to the cyber 
security policy; (3) clarify that the exceptions mentioned in 
Requirements R2.3 and R3 of CIP-003-1 do not except responsible 
entities from the requirements of the CIP Reliability Standards; (4) 
make clear that the senior manager ultimately remains responsible for 
the responsible entity's compliance with the CIP Reliability Standards; 
(5) ensure and make clear that access to protected critical cyber asset 
information is revoked promptly (and make parallel modifications to 
CIP-004-1 and CIP-007-1 as needed); (6) include in the process of 
change control and configuration management a requirement for detection 
and monitoring controls to determine if changes were made as intended 
and to investigate whether any unintended or unplanned changes have 
occurred; and (7) provide direction regarding the issues and concerns 
that a ``mutual distrust'' posture must address in order to protect a 
responsible entity's control system from the ``outside world.''
3. CIP-004-1--Personnel and Training
    149. Reliability Standard CIP-004-1 requires that personnel having 
authorized cyber access or unescorted physical access to critical cyber 
assets must have an appropriate level of personnel risk assessment, 
training and security awareness. Responsible entities must develop and 
implement a security awareness program that addresses concerns related 
to cyber security; a cyber security training program for affected 
personnel that addresses policies, access controls, procedures for the 
proper use of critical cyber assets, physical and electronic access to 
critical cyber assets, proper handling of asset information, and 
recovery methods after a Cyber Security Incident; and a personnel risk 
assessment program for all personnel having access to critical cyber 
assets.
    150. The Commission proposes to approve Reliability Standard CIP-
004-1 as mandatory and enforceable. In addition, we propose to direct 
the ERO to develop modifications to this Reliability Standard. In our 
discussion below, the Commission addresses its concerns in the 
following topic areas regarding CIP-004-1: (1) Training; (2) personnel 
risk assessments; (3) access; and (4) jointly owned facilities.
a. Training
    151. The CIP Assessment noted that the training requirements 
specified in Requirement R2 apply to all personnel, contractors, and 
service vendors who have authorized cyber access or unescorted physical 
access to critical cyber assets.\82\ It then expressed concern that 
this requirement does not clearly address the interconnectivity of 
systems; i.e., the required training programs should address not only 
the critical cyber assets themselves, but also any networking hardware 
or software linking them. It noted that the importance of network 
support to overall security environment may not be understood by 
personnel if the training does not encompass the related non-critical 
cyber assets, such as switches and routers that can impact the security 
of the critical cyber assets. Moreover, it pointed out that while this 
requirement specifies the minimum topics that training should cover, it 
does not provide criteria for assessing the quality and adequacy of the 
training. With regard to both the awareness program of Requirement R1 
and the training program of Requirement R2, the CIP Assessment noted 
that certain NIST publications provide guidance on training of 
personnel and practices that enhance the security posture of 
information systems.\83\
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    \82\ CIP Assessment at 23.
    \83\ See NIST Special Publication 800-16, Information Technology 
Security Training Requirements: A Role- and Performance-Based Model 
(1998); and NIST Special Publication 800-50, Building an Information 
Technology Security Awareness Training Program (2003), available at: 
http://csrc.nist.gov/publications/nistpubs/.

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    152. NERC states that a subset of networking hardware and software 
is included in Requirement R2 to the extent active communications 
hardware and software reside within the defined electronic security 
perimeter, and because hardware and software acts as an electronic 
access control, defining the electronic security perimeter. NERC draws 
attention to the fact that communication networks and data 
communication links between discrete electronic security perimeters are 
specifically excluded by Applicability section 4.2.2 of this 
Reliability Standard.
    153. APPA/LPPC believe that most, if not all, networking hardware 
and software will be essential to the operation and control of critical 
cyber assets and therefore will be subject to the Reliability Standard 
and encompassed by the security training requirement. FirstEnergy notes 
the Measures and Compliance provisions currently require only 
documentation of

[[Page 43988]]

the requirements and states that NERC should focus on developing 
Reliability Standards to maintain the quality of personnel training in 
this area. FirstEnergy states that training requirements should be 
appropriate to each employee's experience and access level.
    154. The CIP Assessment also questioned whether it is appropriate 
to allow personnel to have access to critical cyber assets for up to 90 
days prior to receiving any cyber security training, as Requirement 
R2.1 allows. It suggested that personnel should receive the training 
prior to such access.
    155. NERC and ReliabilityFirst state that the sub-requirements of 
Requirement R2 list specific expected outcomes from the training. NERC 
and ReliabilityFirst state that the 90-day period is based on the 
belief that certain conditions may require that personnel receive 
access prior to specific additional training in cyber security 
processes and procedures in order to maintain or restore the reliable 
operation of the Bulk-Power System. They explain that standard industry 
practice ensures anyone with access to sensitive systems has had 
adequate training, but that such training may not have been specific to 
the systems or environment to which they receive access, such as when, 
in an emergency restoration, personnel with specialized knowledge may 
be required to access systems outside their normal assignments.\84\
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    \84\ APPA/LPPC, SPP and Xcel agree that this flexibility is 
needed in emergency situations, and comment that training beforehand 
would not always be practical.
---------------------------------------------------------------------------

    156. APPA/LPPC agree with the CIP Assessment that, whenever 
possible, personnel should receive their cyber security training and 
undergo the required personnel risk assessment before being allowed 
access to critical cyber assets. However, APPA/LPPC favor retention of 
the 90-day period for conducting training so that responsible entities 
will not risk a technical violation of the Reliability Standard when 
emergency conditions require that personnel obtain access before they 
are trained or authorized with access.
    157. ISA Group agrees with the CIP Assessment that training in 
critical security practices should occur prior to an individual having 
the corresponding access and suggests making a distinction between the 
training that is needed before access is granted and the remaining 
training that is not critical for access but still significant. The ISA 
Group also states that training and awareness programs should be 
specific to the critical cyber assets to be protected and that persons 
who provide the training should be adequately trained to address the 
cyber security of the systems. SPP and ISO-NE agree with the CIP 
Assessment that allowing unescorted access to critical cyber assets 
prior to security training introduces an unnecessary risk. SPP suggests 
that, under normal circumstances, training prior to access should be 
the requirement with provisions made for emergency conditions.
Commission Proposal
    158. Training is clearly integral to the protection of critical 
cyber assets. Allowing personnel to access critical cyber assets prior 
to receiving training increases the vulnerability of and risk to such 
assets. Thus, such access should not be the norm under the Reliability 
Standard. Accordingly, we propose to direct the ERO to modify this 
provision to require affected personnel to receive the required 
training before obtaining access to critical cyber assets (rather than 
within 90 days of access authorization), but allowing limited 
exceptions, such as during emergencies, subject to documentation and 
mitigation.
    159. Alternate provisions for emergencies and certain other 
conditions could be designed, such as requiring documentation of all 
personnel who received access to particular equipment during the 
emergency and whether they received a briefing or any other training 
prior to their access concerning the specific facilities; the extent to 
which people needed for the emergency had received general training and 
possessed appropriate specialized expertise for the circumstance; and 
any risk mitigation steps taken during the emergency access, as 
discussed by commenters in this proceeding. To facilitate 
communications in emergency situations, the Commission proposes to 
direct the ERO to require responsible entities to identify ``core 
training'' elements to ensure that essential training elements will not 
go unheeded in an emergency and other contingency situations where full 
training prior to access will not best serve the reliability of the 
Bulk-Power System. We note that during ``emergency conditions,'' the 
Bulk-Power System could be particularly vulnerable to mischief or 
mistakes, and we propose to require the ERO to consider this when 
developing the modification. We also propose to direct the ERO to 
consider what, if any, modifications to CIP-004-1 should be made to 
address the concern raised by the ISA Group that security trainers be 
adequately trained themselves.
    160. In addition, we propose to direct the ERO to modify the CIP-
004-1 to clarify that the cyber security training programs required by 
Requirement R2 are intended to encompass training on the networking 
hardware and software and other issues of electronic interconnectivity 
supporting the operation and control of the critical cyber assets. As 
indicated by the comments, it is not clear whether interconnectivity 
issues are already included in the proposed language of the training 
requirement of CIP-004-1. One method of clarification the ERO should 
consider is the addition of a provision such as that contained in CIP-
005-1, Requirement R1.4, which specifically subjects any non-critical 
cyber asset within a defined electronic security perimeter to the 
Reliability Standard. CIP-004-1 should leave no doubt that cyber 
security training concerning a critical cyber asset should encompass 
the electronic environment in which the asset is situated and the 
attendant vulnerabilities.
    161. Finally, we propose to direct the ERO to increase the guidance 
in the Reliability Standard as to the scope and quality of training. We 
note that part of the goal for training, in conjunction with awareness 
programs, is to keep security practices on the minds of employees, 
contractors, and vendors. Examples of some areas where the inclusion of 
guidance can be considered are: control of electronic devices (such as 
laptop computers), the appropriate audiences for the training, delivery 
methods, and updates of training materials. In our view, the awareness 
and training programs, addressed separately by Requirements R1 and R2, 
complement each other and work in tandem. In parallel with the security 
awareness program, we expect the ERO to consider relevant aspects of 
the cited NIST Special Publications, as well as other relevant models, 
to improve CIP-004-1 and prevent a lowest common denominator result.
b. Personnel Risk Assessment
    162. Requirement R3 of CIP-004-1 requires each responsible entity 
to have a documented personnel risk assessment program. It also 
requires that a personnel risk assessment, including a criminal check, 
be conducted within 30 days after a person receives cyber access or 
unescorted physical access to critical cyber assets. The CIP Assessment 
noted that Requirement R3 would allow access to critical cyber assets 
while investigation is still underway, and even before an investigation 
has started.

[[Page 43989]]

    163. NERC and ReliabilityFirst assert that certain conditions 
affecting the reliable operation of the Bulk-Power System may require 
that personnel be allowed to access the critical cyber assets prior to 
completing the personnel risk assessment process, although they may be 
subject to escort and review during the investigative period.
    164. Several commenters agree with the CIP Assessment that an 
appropriate personnel risk assessment should be completed before an 
employee (especially a newly hired employee or vendor) is granted 
access to critical cyber assets. SPP states that emergency contingency 
procedures can be developed to handle situations where access must be 
granted prior to completing the required background check.
    165. However, NERC and other commenters have concerns about 
existing personnel. NERC and ReliabilityFirst assert that certain 
conditions affecting the reliable operation of the Bulk-Power System 
may require that personnel be allowed to access the critical cyber 
assets prior to the completion of the personnel risk assessment 
process, although they may be subject to escort and review during the 
investigative period. National Grid expresses concern that, since the 
Requirement appears to apply to a significant portion of existing 
utility workforce, any attempt to revoke access to such employees while 
completing their personnel risk assessments would create more 
reliability concerns than simply allowing such employees to remain on 
the job. FirstEnergy states that the 30-day window may be appropriate 
for employees and vendors with which the responsible entity has had a 
working relationship. FirstEnergy comments that Requirement R3 does not 
provide sufficient detail on what constitutes an adequate personnel 
risk assessment, which could cause variable interpretations of this 
Requirement. ISO-NE agrees with the CIP Assessment that the Reliability 
Standard provides insufficient direction regarding the elements of an 
appropriate awareness program.
Commission Proposal
    166. Similar to our concerns regarding the training provisions of 
Requirement R2, we believe that allowing applicable personnel, 
including vendors, to access critical cyber assets prior to the 
completion of their personnel risk assessment increases the 
vulnerability of, and risk to, these assets. We also observe that 
Recommendation 41 of the Blackout Report emphasizes the need for 
guidance on implementing background checks.\85\ At the same time, we 
believe that commenters have raised a valid concern regarding the 
disruptions that would result if current employees and vendors with 
established involvement were denied access to critical cyber assets for 
a 30-day period. Accordingly, we propose that the ERO develop 
modifications to Requirement R2 to provide that newly-hired personnel 
and vendors should not have access to critical cyber assets, except in 
specified circumstances such as an emergency. The ERO should determine 
the parameters of such exceptional circumstances in developing the 
proposed modification through its Reliability Standards development 
process. However, to avoid disruptions, we propose that the 30-day 
window allowing access before the personnel risk assessment is 
completed remain in effect for current employees and vendors with 
existing contractual relationships with the responsible entity as of 
the effective date of the Reliability Standard. We propose to direct 
that the ERO include, in developing modifications to CIP-004-1, 
criteria that address circumstances in which current personnel can 
continue access to critical cyber assets during the 30-day 
investigative period during initial compliance with CIP-004-1.
---------------------------------------------------------------------------

    \85\ See Blackout Report at 167-168, Recommendation 41, where 
the Blackout Report recommends that NERC provide guidance on 
background checks to be completed on contractor and sub-contractor 
employees in advance of allowing access to secure facilities.
---------------------------------------------------------------------------

c. Access
    167. Requirement R4 directs the responsible entity to maintain 
list(s) of personnel with authorized cyber or authorized unescorted 
physical access to critical cyber assets. The CIP Assessment observed 
that the lists do not serve to deny personnel access from critical 
cyber assets prior to completion of a personnel risk assessment. 
However, Requirement R4.2 requires that access to critical cyber assets 
be revoked within 24 hours for personnel terminated for cause and 
within seven calendar days for personnel who no longer require such 
access.
    168. NERC states that while the access list itself does not prevent 
access, it does provide for identification of personnel for which 
additional levels of review and escort may be assigned. California PUC 
suggests amending the Reliability Standard to require immediate updates 
when an employee is transferred, retires, or is terminated.
Commission Proposal
    169. Timely system updates to access rights are important. 
Employee, contractor, or vendor access to critical cyber assets when 
the employee, contractor, or vendor no longer has a need for such 
access, due for example to a transfer or termination, represents a gap 
in security. Moreover, while Requirement R4 of CIP-004-1 requires a 
responsible entity to maintain a list of authorized personnel, it does 
not indicate what the responsible entity must do with the list. 
Accordingly, the Commission proposes to direct that NERC develop 
modifications to CIP-004-1 to require immediate revocation of access 
privileges when an employee, contractor, or vendor no longer performs a 
function that requires authorized physical or electronic access to a 
critical cyber asset for any reason (including disciplinary action, 
transfer, retirement or termination). Because an organization is 
typically aware in advance of personnel action dates, timely updating 
of the authorization list should not be unduly burdensome. Further, we 
propose to direct that NERC modify Requirement R4 to make clear that 
unescorted physical access should be denied to individuals that are not 
identified on the authorization list.
d. Question of Jointly Owned Facilities
    170. APPA/LPPC request that the Commission direct NERC to consider 
clarifications for entities with facilities governed by existing joint 
use or joint ownership agreements. They explain that most of there 
members have joint facilities with neighboring entities (e.g., a 
transmission substation at a point of interconnection with an adjacent 
system), and that joint facility agreements often prohibit individual 
co-owners from blocking the other co-owners' use of, or access to, such 
facilities. APPA/LPPC state that CIP-004-1 obligates individual 
responsible entities to block certain persons from their facilities, 
possibly including persons with existing contractual rights of access. 
APPA/LPPC believe that one joint facility owner should not be able to 
block another unaffiliated entity's existing contractual rights of 
access. APPA/LPPC also ask that entities with joint facilities not be 
subject to sanctions solely because an unaffiliated entity that is a 
party to one of its joint facility agreements failed to comply with 
CIP-004-1 when acting independently.
Commission Proposal
    171. The Commission views joint owners of critical cyber assets as 
being

[[Page 43990]]

equally subject to the CIP Reliability Standards as other responsible 
entities. If an asset is designated as a critical cyber asset by one 
joint owner, it must be treated likewise by the other owner(s). Thus, 
each entity that possesses an interest in a jointly-owned facility 
would be responsible to develop a list of its authorized personnel and 
to respect each other joint owner's corresponding list.
    172. APPA/LPPC also raise the issue of ``joint use'' arrangements. 
For example, an owner of a critical cyber asset substation may well 
house electronic or other equipment on its premises that belongs to 
another entity that may or may not be subject to these Reliability 
Standards. The Commission believes that, in principle, the owner of a 
critical cyber asset is responsible under the Reliability Standards for 
ensuring that all persons having access to the critical cyber asset 
meet the requirements of these Reliability Standards, much as the owner 
is responsible to ensure that vendor personnel have the required levels 
of security training, awareness and background checks.
    173. Nevertheless, we can appreciate that even with this general 
guidance, further clarification regarding how ``joint use'' 
arrangements should be addressed. Therefore, we propose to direct the 
ERO to address the ``joint use'' concerns expressed by APPA/LPPC while 
developing any modifications to these Reliability Standards directed in 
a final rule. Regardless of whether a facility subject to CIP-004-1 is 
jointly owned or not, all entities that have access to it must comply 
with CIP-004-1. Each entity, however, is responsible for only its 
compliance and may not attempt to block or limit another's access on 
the basis of its perception that the other entity has not complied with 
CIP-004-1. In the event non-compliance is suspected, it must be 
promptly reported to the Regional Entity or ERO.
e. Commission Proposal Summary
    174. In summary, the Commission proposes to approve Reliability 
Standard CIP-004-1 as mandatory and enforceable. In addition, the 
Commission proposes to direct the ERO, pursuant to section 215(d)(5) of 
the FPA and Sec.  39.5(f) of our regulations, to develop modifications 
to CIP-004-1 through its Reliability Standards development process 
that: (1) Require affected personnel, with limited exceptions, to 
receive required training before obtaining access to critical cyber 
assets (rather than within 90 days of access authorization); (2) 
require responsible entities to identify ``core training'' elements to 
ensure that essential training elements will not go unheeded in an 
emergency and other contingency situations where full training prior to 
access will not best serve the reliability of the Bulk-Power System; 
(3) clarify that the cyber security training programs required by 
Requirement R2 are intended to encompass training on networking 
hardware and software and other issues of electronic interconnectivity 
supporting the operation and control of critical cyber assets; (4) 
provide increased guidance on the scope and quality of training; (5) 
make modifications to Requirement R2 to provide that newly-hired 
personnel and vendors should not have access to critical cyber assets, 
except in specified circumstances such as an emergency; (6) address 
circumstances in which current personnel can continue access to 
critical cyber assets during the 30-day investigative period during 
initial compliance with CIP-004-1; and (7) require immediate revocation 
of both physical and electronic access privileges when an employee, for 
any reason (including disciplinary action, transfer, termination, or 
retirement), no longer performs a function that requires access to 
critical cyber assets.
    175. In addition, the Commission proposes to direct the ERO to (1) 
consider what, if any, modifications to CIP-004-1 should be made to 
address the concern raised by the ISA Group that security trainers be 
adequately trained; (2) consider relevant aspects of certain NIST 
Special Publications, as well as other relevant models, to improve CIP-
004-1; and (3) address the ``joint use'' concerns expressed by APPA/
LPPC and discussed herein by the Commission when developing 
modifications to the Reliability Standards that the Commission may 
direct when we issue our final rule.
4. CIP-005-1--Electronic Security Perimeter(s)
    176. Reliability Standard CIP-005-1 requires identification and 
protection of the electronic security perimeters inside which all 
critical cyber assets are located, as well as all access points. The 
electronic security perimeters are to encompass all the critical cyber 
assets that are identified using the risk-based assessment methodology 
required by Reliability Standard CIP-002-1. Multiple electronic 
security perimeters may be required; for example, one may be needed 
around a control room while another may be established around a 
substation. Once each electronic security perimeter has been 
established, the responsible entity must develop mechanisms to control 
and monitor electronic access to all electronic access points. 
Furthermore, the responsible entity must assess the electronic security 
perimeter's cyber vulnerability and test every electronic access point 
at least annually.
    177. The Commission proposes to approve Reliability Standard CIP-
005-1 as mandatory and enforceable. In addition, we propose to direct 
the ERO to develop modifications to this Reliability Standard. Further, 
the Commission also proposes to require the ERO to consider various 
other matters of clarification, guidance, and modification. In our 
discussion below, the Commission addresses its concerns in the 
following topic areas regarding CIP-005-1: (1) Adequacy of electronic 
security perimeters; (2) protecting access points and controls; (3) 
monitoring access logs; (4) vulnerability assessments; and (5) document 
updates.
a. Adequacy of Electronic Security Perimeters
    178. Requirement R1 of CIP-005-1 addresses the identification of 
electronic security perimeters to ensure that every critical cyber 
asset resides within one. The CIP Assessment explained that the 
electronic security perimeter constitutes the appropriate first line of 
defense. However, a responsible entity should use a cyber security 
protection program that contains additional security measures to detect 
and stop intrusions that penetrate the outer shell of the defense 
(i.e., a defense in depth approach).
    179. APPA/LPPC and Xcel agree with the CIP Assessment's concept of 
defense in depth and when possible, securing the non-critical cyber 
assets outside the electronic security perimeter. However, APPA/LPPC 
state that the use of ``defense in depth'' may not be practical for all 
critical cyber assets, such as assets supplied by vendors that are no 
longer in business.
    180. Xcel notes that a line needs to be drawn in order to avoid 
responsible entities taking expensive precautions that are not cost-
effective. It further adds that CIP-005-1 should not be extended to 
equipment and systems beyond the electronic security perimeter.
Commission Proposal
    181. The Commission recognizes that there is a point at which 
having multiple defense layers would not be cost effective. However, 
the effectiveness of any one defense measure is often dependent upon 
the quality of active human maintenance, and there is no one perfect 
defense measure that will guarantee the

[[Page 43991]]

protection of the Bulk-Power System. Therefore, we believe that a 
responsible entity must implement two or more distinct security 
measures when constructing an electronic security perimeter. Thus, the 
Commission proposes to direct the ERO to develop a requirement to 
implement a defensive security approach including two or more defensive 
measures in a defense in depth posture. This approach should not 
inhibit, but instead supplement the establishment of an electronic 
security perimeter. While such layers/measures are generally integrated 
within and constitute part of a system or program, many are also 
effectively, and more feasibly, placed ``in front of'' a system, such 
as an older, legacy system.
b. Protecting Access Points and Controls
    182. Requirement R2 of CIP-005-1 requires a responsible entity to 
implement organizational processes and technical and procedural 
mechanisms for control of electronic access at all electronic access 
points to the electronic security perimeter. Requirement R2.4 requires 
``strong procedural and technical controls'' at enabled external access 
points ``to ensure authenticity of the accessing party, where 
technically feasible.''
    183. The CIP Assessment raised concerns regarding the qualifier 
``where technically feasible'' in Requirement R2.4. The CIP Assessment 
also cautioned that keeping pace with advances in cyber security is a 
necessary part of the defense strategy needed to protect against 
intrusion by an adversary. The CIP Assessment noted that implementation 
and maintenance of strong controls to ensure authenticity of the 
accessing party is not a question of technical feasibility. It 
represents that the technology currently exists and that every 
responsible entity identifying critical cyber assets should be able to 
implement such controls. Balancing an appropriate mix of protections 
and technology is part of achieving effective cyber security. The CIP 
Assessment also expressed the view that Requirement R2.4 should not 
allow a responsible entity to fail to implement rudimentary procedural 
and technical access controls.
    184. California PUC states that electronic access from outside the 
electronic security perimeter should require strong verification, such 
as digital certificates or two-factor authentication. It suggests that 
such a system is virtually impenetrable and that it, or some similar 
system, should be required in the CIP Reliability Standards.
    185. California PUC comments that access controls should be 
implemented at all access points to the network and that the caveat of 
``technical feasibility'' in the NERC-proposed Reliability Standard is 
inappropriate. California PUC further states that Requirement R2.0 
prescribes, inter alia, that only those ports and services required for 
normal or emergency operations should be enabled, while all others 
should be disabled. Furthermore, it notes that access control, 
including the authorization process and authentication method for each 
access point, should be documented. Access should be monitored twenty-
four hours a day, seven days a week, and disturbances and unauthorized 
access attempts should be identified. All responsible entities should 
conduct vulnerability assessments of their access points, scanning to 
verify that only the proper ports and services are enabled. California 
PUC agrees with the CIP Assessment assertion that ``such (strong access 
control) technology currently exists'' and implementation by every 
entity is feasible.
    186. NERC disagrees with the CIP Assessment comment that a 
``technical feasibility'' caveat is not needed in Requirement R2.4, 
particularly for legacy implementations and substation environments. 
NERC agrees that the CIP Assessment statement may be applicable in a 
modern control center environment, where common IT systems have 
migrated into the control environment. However, NERC states that this 
is not the case for many existing field systems. The technical 
feasibility clause, NERC claims, is needed to accommodate the vast 
majority of legacy systems that cannot be upgraded due to the age and 
nature of their system configurations.\86\
---------------------------------------------------------------------------

    \86\ Progress Energy, ReliabilityFirst, and Santa Clara agree 
with NERC.
---------------------------------------------------------------------------

    187. Given the numerous scenarios surrounding access control, APPA/
LPPC believe that removing the ``technically feasibility'' caveat will 
not provide a solution in every situation. They assert that Requirement 
R2.4 is appropriate as currently written. APPA/LPPC note that some 
access control solutions, such as biometric ones, are still subject to 
failure and may grant access to unauthorized people.
Commission Proposal
    188. Requirement R2.4 of CIP-005-1 calls for the implementation of 
``strong procedural or technical controls'' at access points to ensure 
authenticity of the accessing party. While we agree with the goal of 
Requirement R2.4, we are concerned that requiring ``strong'' controls 
does not provide sufficient guidance and possibly sets subjective 
criteria. Thus, we believe that Requirement R2.4 should provide greater 
clarity regarding the expectation for adequate compliance by 
identifying examples of specific verification technologies that would 
satisfy the Requirement, while also allowing compliance pursuant to 
other technically equivalent measures or technologies. The Commission 
agrees with California PUC that strong verification includes 
technologies such as digital certificates and two-factor 
authentication. We also note that Recommendation 32 of the Blackout 
Report emphasizes the need ``to ensure access is granted only to users 
who have corresponding job responsibilities.'' \87\ We propose to 
direct the ERO to modify this Reliability Standard accordingly.
---------------------------------------------------------------------------

    \87\ See Blackout Report at 164-165, Recommendation 32.
---------------------------------------------------------------------------

    189. The Commission believes that providing such basic security 
measures as access control can be accomplished using/placing measures 
``in front of'' systems as opposed to ``inside'' systems. Such an 
approach can be used to secure even older, yet functioning, legacy 
systems. The Commission proposes to direct the ERO to evaluate the 
issue and provide specific guidance to responsible entities that must 
face such issues.
    190. The Commission is persuaded by commenters that maintain that, 
due to the variety of equipment and systems, some discretion must be 
preserved that would allow responsible entities to control access 
points. Further, in our general discussion of ``technical feasibility'' 
in section II.A.5.b above, we explained that, while we have concerns 
regarding the broad discretion currently allowed in the use of the 
technical feasibility language, we would not propose to eliminate the 
provision but, rather, propose to require specific controls and 
accountability when a responsible entity chooses to invoke the 
provision. Specifically, a responsible entity invoking a technical 
feasibility exception would have to: (1) Develop and implement interim 
mitigation steps to address the vulnerabilities associated with each 
exception; (2) develop and implement a remediation plan to eliminate 
the exception, including interim milestones and a reasonable completion 
date; and (3) obtain written approval of these steps by the senior 
manager responsible for leading and managing compliance with the CIP 
Reliability Standards. As discussed previously, the Commission proposes 
that a responsible entity invoking a

[[Page 43992]]

technical feasibility exception must have a review by senior management 
of the expediency and effectiveness of the manner in which a 
responsible entity has addressed each of these three proposed 
conditions. In addition, the Commission proposes to require a 
responsible entity to report and justify to the ERO and the Regional 
Entity for approval each exception and its expected duration.
    191. Consistent with our earlier discussion, we will not propose 
the removal of the ``technical feasibility'' language from Requirement 
R2.4 of CIP-005-1. However, such discretion will not lie solely with 
the responsible entities. We propose to direct that Regional Entities 
review the application of ``technical feasibility'' as the basis for 
allowing a responsible entity an exception to full compliance with a 
Requirement.
c. Monitoring Access Logs
    192. Requirement R3. of CIP-005-1 requires responsible entities to 
implement electronic or manual processes for monitoring and logging 
access at access points to the electronic security perimeter at all 
times. Further, where technically feasible, the security monitoring 
process must detect and alert for attempts at or actual unauthorized 
access. Where such alerts are not technically feasible, Requirement 
R3.2 requires a responsible entity to review access logs at least every 
90 calendar days.
    193. The CIP Assessment noted that frequent reviews of access logs 
are necessary to look for security breaches that automated alerts do 
not detect. It cautioned that the ``technical feasibility'' caveat in 
Requirement R3.2 can allow a 90-day lapse in review of access logs when 
it is commonplace in the IT industry for logs to be reviewed every one 
or two days. The CIP Assessment also advised that the use of discretion 
to address ``technical feasibility'' permitted in Requirement R3.2 
should not be a basis for failing to implement a process that detects 
attempts to access or actual unauthorized access. Such monitoring 
technology is available \88\ and no responsible entity should be 
excepted due to technical infeasibility.
---------------------------------------------------------------------------

    \88\ Technology that is currently available for monitoring 
access (e.g., network servers, firewalls, Intrusion Detection 
Systems, Intrusion Prevention Systems) has alarm capability built 
into it.
---------------------------------------------------------------------------

    194. NERC agrees with the CIP Assessment that logs should be 
reviewed frequently. However, NERC believes that a strict requirement 
for the review period cannot be specified because of the varied methods 
and technologies used to gather and review the logs. NERC asserts that 
automated alert technology can detect many attempts and breaches, and 
leave a much smaller set of ``questionable'' events which can readily 
be analyzed manually.\89\
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    \89\ FirstEnergy, ReliabilityFirst, ISO/RTO Council, Georgia 
System, Xcel, and Santa Clara agree with NERC.
---------------------------------------------------------------------------

Commission Proposal
    195. The Commission is persuaded by the commenters that varied 
technologies and locations make setting a ``one size fits all'' 
frequency of access log review requirement difficult. However, the 
Commission believes that, while automated review systems provide a 
reasonable day-to-day check of the system and a convenient screening 
for obvious system breaches, periodic manual review provides the 
opportunity to recognize an unanticipated form of malicious activity 
and improve automated detection settings. Thus, regular manual review 
is beneficial.
    196. The Commission believes that frequent reviews of access logs 
are necessary to detect breaches that automated alerts do not detect. 
Moreover, where automated alerts are not used, frequent monitoring 
takes on even greater importance. The Commission recognizes that 
accessibility of an access log may affect the review interval. For 
instance, logs that are readily available, such as those from within a 
control room setting, should be reviewed at least weekly. Those logs 
that are not readily available, such as those located at a remote 
substation, are less accessible and therefore can be read less 
frequently. However, any attempt to differentiate the required 
frequency of review of these logs must be balanced against the 
criticality of the facilities. It is not acceptable to dismiss a 
critical facility from timely review simply because it is remote.
    197. For the reasons discussed above, the Commission believes that 
more frequent review of access logs is important and therefore proposes 
to direct the ERO to develop a bifurcated review requirement of access 
logs at electronic access points in which readily available logs are 
reviewed more frequently than every 90 days. The Commission believes 
such review should be performed at least weekly. As part of developing 
this bifurcated review requirement, the ERO must include in the 
Reliability Standard guidance on how a responsible entity should 
designate individual assets as ``readily accessible'' or ``not readily 
accessible,'' consistent with our discussion above.
d. Vulnerability Assessments
    198. The CIP Assessment stated that Requirement R4 fails to specify 
whether a live vulnerability assessment is required, as opposed to a 
paper assessment.\90\ It recommends performing a ``live'' cyber 
vulnerability assessment at least annually and developing an action 
plan to remediate any weaknesses identified. It also notes that 
permitting a one year window, without any specificity regarding 
updates, could be inadequate.
---------------------------------------------------------------------------

    \90\ A live vulnerability assessment typically involves the use 
of specialized software or hardware to scan electronic access points 
to determine which communications each access point allows to pass 
through.
---------------------------------------------------------------------------

    199. NERC, Progress Energy and ReliabilityFirst state that 
Requirement R4 intentionally allows for either vulnerability assessment 
approach, live or paper-based, to allow a responsible entity to 
determine the approach best suited to its own level of sophistication 
and tolerance for risk. NERC acknowledges that some responsible 
entities already perform live testing but notes that such testing is 
limited to specific systems and circumstances of the responsible 
entity.
    200. Georgia System argues that the existing Requirement R4 is 
well-designed. It suggests, however, that annual testing of each 
electronic access point should not be imposed, because such wide-spread 
``live'' testing could have adverse impacts on system reliability. 
APPA/LPPC disagree with the CIP Assessment and insist that an annual 
testing requirement is sufficient, as long as the responsible entity 
does not make changes to any border devices. APPA/LPPC argue that, if 
changes occur to the perimeter, then the entity should, as a good 
business practice, reassess the vulnerability of that portion of the 
perimeter.
Commission Proposal
    201. The Commission believes that annual vulnerability assessments 
are sufficient, provided that no modifications are made to the 
electronic security perimeter during the year. However, when the 
electronic security perimeter, or another measure in a defense in depth 
strategy, is modified, it is not acceptable to wait a year to test 
modifications. Thus, the Commission proposes to direct the ERO to 
revise the Reliability Standard to require a vulnerability assessment 
of the electronic access points as part of, or contemporaneously with, 
any

[[Page 43993]]

modifications to the electronic security perimeter or defense in depth 
strategy.
    202. In addition, the Commission proposes that Requirement R4 
should provide for the conduct of live vulnerability assessments at 
least once every three years, with subsequent annual paper assessments 
in the intervening years. If such live vulnerability assessments are 
not ``technically feasible,'' consistent with the Commission's earlier 
determination, a responsible entity may seek to be excused from full 
compliance via an application to the Regional Entity fully documenting 
the necessary interim actions, milestone schedule, and mitigation plan.
e. Commission Proposal Summary
    203. In summary, the Commission proposes to approve Reliability 
Standard CIP-005-1 as mandatory and enforceable. In addition, the 
Commission proposes to direct the ERO, pursuant to section 215(d)(5) of 
the FPA and Sec.  39.5(f) of our regulations, to develop modifications 
to CIP-005-1 through its Reliability Standards development process that 
(1) require implementation of a defensive security approach, including 
two or more defensive measures in a defense in depth posture; (2) add 
guidance to Requirement R2 by identifying examples of specific 
verification technologies that would satisfy compliance with the 
``strong controls'' in Requirement R2.4, such as digital certificates 
and two-factor authentication, while also allowing compliance by means 
of technically equivalent measures; (3) evaluates and provides guidance 
regarding the use of access security measures ``in front of'' as 
opposed to ``inside of'' older systems; (4) require additional controls 
and accountability when a responsible entity invokes the ``technical 
feasibility'' exception in Requirement R2.4 consistent with the 
proposal discussion in section II.A.5.b of the NOPR; (5) provide a 
bifurcated review requirement of access logs at electronic access 
points in which readily available logs are reviewed more frequently 
than 90 days including guidance on which assets should be designated 
``readily accessible;'' (6) require a vulnerability assessment of 
electronic access points as part of, or contemporaneously with, any 
modifications to an electronic security perimeter or defense in depth 
strategy; and (7) provide for the conduct of live vulnerability 
assessments at least once every three years, with subsequent annual 
paper assessments in the intervening years.
5. CIP-006-1--Physical Security of Critical Cyber Assets
    204. Reliability Standard CIP-006-1 addresses the physical security 
of the critical cyber assets identified in Reliability Standard CIP-
002-1. In particular, CIP-006-1 requires a responsible entity to create 
and maintain a physical security plan that ensures that all cyber 
assets within an electronic security perimeter also reside within an 
identified physical security perimeter.\91\ The physical security plan 
must be approved by senior management and must contain processes for 
identifying, controlling, and monitoring all access points and 
authorization requests.
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    \91\ As defined in the NERC Glossary, an ``Electronic Security 
Perimeter'' means, ``[t]he logical border surrounding a network to 
which Critical Cyber Assets are connected and for which access is 
controlled. * * * and a Physical Security Perimeter is ``the 
physical, completely enclosed (``six-wall'') border surrounding 
computer rooms, telecommunications rooms, operations centers, and 
other locations in which Critical Cyber Assets means are housed and 
for which access is controlled * * *.''
---------------------------------------------------------------------------

    205. Reliability Standard CIP-006-1 also addresses operational and 
procedural controls to manage physical access at all access points to 
the physical security perimeter at all times by the use of alarm 
systems and/or human observation or video monitoring. The Reliability 
Standard also requires that the logging of physical access must occur 
at all times, and the information logged must be sufficient to uniquely 
identify individuals crossing the perimeter. Finally, the Reliability 
Standard requires responsible entities to test and maintain all 
physical security mechanisms on a three-year cycle.
    206. The Commission proposes to approve Reliability Standard CIP-
006-1 as mandatory and enforceable. In addition, we propose to direct 
the ERO to develop modifications to this Reliability Standard. Further, 
the Commission also proposes to require the ERO to consider various 
other matters of clarification, guidance, and modification. In our 
discussion below, we address our concerns in the following topic areas 
regarding CIP-006-1: (1) Physical security plan; (2) physical access 
controls and monitoring physical access controls; (3) physical security 
breach; and (4) maintenance and testing.
a. Physical Security Plan
    207. Requirement R1.1 of CIP-006-1 addresses processes that a 
responsible entity must include in its physical security plan to ensure 
that all cyber assets within an electronic security perimeter also 
reside within an identified physical security perimeter. The CIP 
Assessment noted that Requirement R1.1 anticipates that there may be 
instances where a completely enclosed border cannot be established and 
that, in such instances, the responsible entity shall deploy and 
document ``alternative measures'' to control physical access to the 
critical cyber assets. It cautioned, however, that Requirement R1.1 
does not provide guidance on how an alternative measure should be 
identified or determined to be adequate.
    208. SPP recognizes the CIP Assessment concern with Requirement 
R1.1, but disagrees that the language of the Requirement needs 
revision. SPP maintains that while the Reliability Standard prescribes 
what must be done, it does not and should not prescribe how a 
particular Requirement is to be implemented. SPP states that NERC's FAQ 
document offers suggestions on how to physically secure critical cyber 
assets when they cannot be enclosed within a restricted access six-wall 
boundary. Progress Energy agrees with the CIP Assessment that NERC 
should provide guidance on how an alternative measure would be 
identified or determined adequate. However, Progress Energy contends 
that this guidance should not be in the Reliability Standard itself, 
but rather in an interpretive document like a FAQ document.
Commission Proposal
    209. The Commission's current view is that the phrase ``alternative 
measures'' as referenced in Requirement R1.1 should be interpreted to 
be a Requirement exception.\92\ Under this Requirement, the responsible 
entity is required to deploy and document alternative measures if a 
completely enclosed ``six-wall'' border cannot be established to 
control physical access to the critical cyber assets. However, the 
Requirements do not provide guidance on how an alternative measure 
should be identified or determined to be adequate. Therefore, the 
Commission proposes to direct the ERO to treat the allowance of 
``alternative measures'' as ``interim actions'' developed and 
implemented as part of a mitigation plan under a ``technical 
feasibility'' exception.
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    \92\ The Commission's discussion elsewhere in this NOPR, 
relating to discretion to make exceptions to a Requirement based on 
technical feasibility applies here.

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[[Page 43994]]

b. Physical Access Controls and Monitoring Physical Access Controls
    210. The CIP Assessment noted that Requirement R2 of the 
Reliability Standard requires the use of at least one of four listed 
physical access control methods, but does not require or suggest that 
the method(s) employed to control physical access consider the 
characteristics of the access point at issue and the criticality of the 
asset being protected.\93\ Requirement R3 requires monitoring at each 
access point to the physical security perimeter, including alarm 
systems and/or human monitoring. For both Requirement R2 and 
Requirement R3, a responsible entity can choose whether to implement 
single or multiple access control methods and monitoring devices. The 
CIP Assessment suggested that, consistent with a defense in depth 
strategy, a layered approach would increase the complexity of an 
intrusion by requiring that multiple security provisions be 
circumvented. The CIP Assessment further suggested that such an 
approach would provide redundancy in case one system requires 
maintenance or unexpectedly fails to function as expected.
---------------------------------------------------------------------------

    \93\ CIP Assessment at 29.
---------------------------------------------------------------------------

    211. Xcel, FirstEnergy and others agree that redundancy and the 
number of layers should be a function of a reasonable risk assessment 
and good utility practice, which provide an objective basis for 
measuring compliance. They also state that unnecessary redundancy would 
take funds and resources away from the assets that need the elaborate 
redundancy.
    212. Xcel agrees with the CIP Assessment that defense in depth is 
an optimal strategy, but states that it is not always practical. For 
example, Xcel notes that where a substation has cyber security 
equipment inside a control building surrounded by a fence, it may not 
be worth the cost or administrative burden to install fence detection 
equipment at a remote substation.
    213. FirstEnergy agrees with the CIP Assessment that Requirement R2 
should include a process for identifying the criticality of critical 
cyber assets and a process for applying an appropriate number of layers 
based on criticality. NERC and ReliabilityFirst point out that, 
throughout the Reliability Standards, assets are classified as either 
critical or non-critical, with no subjectivity involved in determining 
their ``level'' of criticality. They suggest that all assets classified 
as critical must be afforded the same level of protection, regardless 
of their location or perceived level of criticality. Consequently, they 
believe the specific implementation of protection must be functionally 
equivalent and sufficient at all locations.
Commission Proposal
    214. We do not believe that the proposal to require a minimum of 
two different security procedures creates an unreasonable burden. We 
believe that a responsible entity must, at a minimum, implement two or 
more different security procedures when establishing a physical 
security perimeter. Use of a minimum of two different security 
procedures will, for example, enable continuous security protection 
when one of the security protection measures is undergoing maintenance 
and provides redundant security protection in the event that one of the 
measures is breached. Therefore, while the Commission recognizes that 
there is a point at which implementing multiple layers of defense 
becomes an unreasonable burden to responsible entities, the Commission 
proposes to direct the ERO to modify this Reliability Standard to state 
that a responsible entity must, at a minimum, implement two or more 
different security procedures when establishing a physical security 
perimeter around critical cyber assets.
c. Physical Security Breach
    215. The CIP Assessment noted that Reliability Standard CIP-006-1 
does not include actions to be taken in response to a physical security 
breach. Thus, the CIP Assessment suggested that the physical security 
plan specify responsibilities and required communication in such an 
event.
    216. California PUC states that CIP-006-1 is sound, except that it 
does not require a plan in the contingency of a physical security 
breach. California PUC suggests that a guideline for such a plan should 
be incorporated into this Reliability Standard.
Commission Proposal
    217. Below, the Commission proposes, in CIP-008-1, to direct the 
ERO to develop and include (in CIP-008-1) language regarding what 
should be included in the term ``reportable incident.'' The Commission 
proposes to direct the ERO, when it develops its language in 
Reliability Standard CIP-008-1 on the term ``reportable incident,'' to 
include a breach that may occur through cyber or physical means. Thus, 
the Commission expects that the issue of a physical security breach 
will be fully addressed through that proposed modification and no 
revision of CIP-006-1 is needed to address this issue.
d. Maintenance and Testing
    218. Requirement R6, which requires a maintenance and testing 
program, to ensure that all physical security systems under 
Requirements R2, R3, and R4 function properly, is critical for the 
overall success of CIP-006-1. The CIP Assessment explained that, if the 
system's outer physical security perimeter fails to secure critical 
assets, the electronic access controls may be rendered ineffective. The 
CIP Assessment questioned whether consideration should be given to 
testing the more important physical security mechanisms and systems 
more frequently, with testing and maintenance records maintained for 
the full three-year testing cycle.
    219. NERC and ReliabilityFirst reiterate that the Reliability 
Standards do not make a distinction between levels of criticality. 
These commenters assert that testing of more important systems cannot 
be performed, because all critical assets have the same level of 
criticality. Xcel states that a more frequent testing of the physical 
security perimeter is not needed because most of the equipment will be 
used on a weekly basis. Xcel maintains that since the equipment will be 
in regular use, a Requirement for additional testing of the equipment 
appears redundant.
    220. SPP agrees with the CIP Assessment, stating that a three-year 
inspection cycle of physical access control is too infrequent if a 
critical asset has high potential impact on reliability and where such 
testing is not inconvenient. SPP argues that, while it may be 
appropriate to test the physical access controls at a remote substation 
once every three years, the physical access controls at a generating 
plant and a control center can and should be tested far more 
frequently. FirstEnergy also agrees with the CIP Assessment, stating 
that more frequent testing should be required for critical facilities, 
but that the Requirement should specify the form of testing that will 
be considered adequate.
Commission Proposal
    221. Currently, Requirement R6 of CIP-006-1 requires that 
responsible entities implement maintenance and testing programs of 
physical security systems on a cycle no longer than three years and 
retain testing and maintenance records for the same cycle. In addition, 
Requirement R6 requires retention of outage records of certain physical 
security systems for a

[[Page 43995]]

minimum of one year. The Commission agrees with SPP that maintenance 
and testing of physical security systems should occur more frequently 
than once every three years. However, the Commission also agrees with 
SPP that such testing at remote substations should be allowed less 
frequently. Therefore, the Commission proposes to direct the ERO to 
modify this Reliability Standard to require that: (1) A readily 
accessible critical cyber asset be tested every year with a one-year 
record requirement for the retention of testing, maintenance, and 
outage records; and (2) a non-readily accessible critical cyber asset 
be tested in a three-year cycle with a three-year record retention 
requirement. The Commission believes that this approach provides an 
appropriate assurance that security measures for geographically 
dispersed physical assets are functioning properly.
e. Commission Proposal Summary
    222. In summary, the Commission proposes to approve Reliability 
Standard CIP-006-1 as mandatory and enforceable. In addition, the 
Commission proposes to direct the ERO, pursuant to section 215(d)(5) of 
the FPA and Sec.  39.5(f) of our regulations, to develop modifications 
to CIP-006-1 through its Reliability Standards development process that 
require that: (1) The ERO treats the allowance of ``alternative 
measures'' referenced in Requirement R1.1 as ``interim actions'' 
developed and implemented as part of a mitigation plan under a 
``technical feasibility'' exception; (2) a responsible entity must, at 
a minimum, implement two or more different security procedures when 
establishing a physical security perimeter around critical cyber 
assets; (3) the ERO, when it develops its language in Reliability 
Standard CIP-008-1 on the term ``reportable incident,'' include a 
breach that may occur through cyber or physical means; (4) a readily 
accessible critical cyber asset be tested every year with a one-year 
requirement for the retention of testing, maintenance, and outage 
records; and (5) a non-readily accessible critical cyber asset be 
tested in a three-year cycle with a three-year record retention 
requirement.
6. CIP-007-1--Systems Security Management
    223. The Purpose statement in Reliability Standard CIP-007-1 states 
that it requires responsible entities to define methods, processes and 
procedures for securing those systems determined to be critical cyber 
assets, as well as the non-critical cyber assets within the electronic 
security perimeter(s).
    224. The CIP Assessment explained that this Reliability Standard 
deals primarily with changes made to the operating control system \94\ 
and verification that such changes will not inadvertently have adverse 
effects.\95\ The CIP Assessment noted that the operating control system 
is vulnerable during the testing process for an indeterminate period of 
time prior to the installation of a patch, and an attacker could 
exploit the vulnerability. It explained that contracts with vendors 
present another security challenge. Service contracts typically provide 
that the vendor will test patches before allowing an entity to install 
them on its operating control system. The contracts also typically 
prohibit installation before the vendor verifies the patch, at risk of 
voiding the warranty. It explained that the time involved in the 
testing and installation of a patch may provide an attacker a window of 
opportunity to exploit the vulnerability that the patch is designed to 
prevent.
---------------------------------------------------------------------------

    \94\ The term ``operating control system'' is used in this NOPR 
to represent the control system used to control critical assets in 
real time, as opposed to backup, training, or duplicate control 
systems.
    \95\ CIP Assessment at 31.
---------------------------------------------------------------------------

    225. Another challenge the CIP Assessment identified is ensuring 
that the test environment accurately approximates and mirrors the 
operating control system. It noted that an inaccurate test environment 
can allow potential failures of the new product to go undetected. It 
noted that some entities may not have the resources to maintain a 
backup system, let alone a duplicate of their operating control system.
    226. The Commission proposes to approve Reliability Standard CIP-
007-1 as mandatory and enforceable. In addition, we propose to direct 
the ERO to develop modifications to this Reliability Standard. In our 
discussion below, the Commission addresses its concerns in the 
following topic areas regarding CIP-007-1: (1) Test procedures; (2) 
ports and services; (3) security patch management; (4) malicious 
software prevention; (5) security status Monitoring; (6) disposal or 
redeployment; (7) cyber vulnerability assessment; and (8) documentation 
review and maintenance.
a. Test Procedures
    227. Requirement R1 of CIP-007-1 requires a responsible entity to 
ensure that new cyber assets and significant changes to existing cyber 
assets within the electronic security perimeter do not adversely affect 
existing cyber security controls. Responsible entities must create, 
implement, and maintain cyber security test procedures in a manner that 
minimizes adverse effects on the production system or its operation. 
They must document that testing is performed in a manner that reflects 
the production environment and must document test results.
    228. The CIP Assessment suggested that Requirement R1.2 should 
require the responsible entity to document how each significant 
difference between the operation and testing environments is considered 
and addressed.\96\
---------------------------------------------------------------------------

    \96\ CIP Assessment at 32.
---------------------------------------------------------------------------

    229. NERC and ReliabilityFirst comment that any test environment 
that has a ``significant difference'' from the production environment 
is not a true ``reflection'' of the production requirement, as required 
by the Reliability Standard. National Grid states that the need for and 
amount of testing will depend on the nature of the change that needs to 
be implemented. Flexibility to assess each situation is necessary to 
determine the type of testing required. National Grid states that it 
may not be possible to establish an isolated testing environment for 
all security upgrades because cyber assets in production operate 
continuously. A responsible entity therefore may need to take 
substantial steps to configure a test environment, such as taking an 
entire substation out of service.
Commission Proposal
    230. If a testing environment does not accurately reflect the 
operational environment, testing of systems may not be adequate to 
judge impacts on reliability. While, ideally, testing should be 
conducted on a precise duplicate of the production system, the 
Commission acknowledges that this is not always possible. When it is 
not, any differences between the test environment and the production 
system should be documented. In addition, the Commission believes that 
responsible entities should address to the satisfaction of senior 
management these differences and how they propose to mitigate the 
impact of any differences between the testing environment and the 
production system. Therefore, the Commission proposes to direct the ERO 
to modify Requirement R1 and its subparts to require documentation of 
each significant difference between the testing and the production 
environments, and how each such difference is mitigated or otherwise 
addressed.

[[Page 43996]]

b. Ports and Services
    231. Requirement R2 of CIP-007-1 requires a responsible entity to 
establish a process to ensure that only those ports and services 
required for normal and emergency operations are enabled and all others 
are disabled.
    232. The CIP Assessment stressed that the requirement to ``disable 
other ports and services'' is a basic building block of a cyber 
security program, and that it is a generally recognized security 
practice to assume a ``deny all'' stance (i.e., disabling all ports and 
services first) before opening the various ports that are needed only 
for operations. The CIP Assessment expressed concern that Requirement 
R2.3 allows a responsible entity to ``accept risk'' rather than take 
mitigating action where unused ports and services cannot be disabled 
due to ``technical limitations.'' This Requirement specifies that the 
responsible entity must either document (1) compensating measures to 
mitigate exposure or (2) an ``acceptance of risk.'' The CIP Assessment 
noted that in situations where technical limitations prevent unused 
ports and services from being disabled and risk can at best be 
mitigated, acceptance of risk appears to mean acceptance of 
vulnerabilities without further action. The CIP Assessment suggested 
that clear guidance is needed to explain limited circumstances for its 
use, and warned that accepting risk could potentially become an 
exception from compliance that permits unacceptable risks.
    233. NERC and ReliabilityFirst comment that many situations exist 
where ports and services must be left open due to operating system 
requirements, the requirements of equipment manufacturers or vendors or 
the lack of information from vendors that is necessary to determine if 
a port or service can be disabled. APPA/LPPC agree with the CIP 
Assessment that closing unused ports is generally a good business 
practice, but they disagree that it should be mandated. They state that 
in some cases there may be sound technical reasons why an unused port 
cannot be closed. They further comment that this Requirement is 
acceptable as written because it allows the responsible entity to use 
reasonable business judgment.
Commission Proposal
    234. In section II.A.5.b above, the Commission discusses the 
problems presented by acceptance of risk. For the reasons discussed 
there, the Commission proposes to direct the ERO to eliminate the 
acceptance of risk language from Requirement R2.3. At the same time, 
the Commission proposes to leave intact the exception for ``technical 
limitations.'' However, the Commission believes that the ``technical 
limitations'' language of Requirement R2.3 raises the same concerns 
here as the ``technical feasibility'' language referenced in section 
II.A.5.b. While an exception for ``technical limitations'' may be 
appropriate, it must include the same conditions as discussed in the 
context of ``technical feasibility.'' Accordingly, we propose that the 
same conditions and reporting requirements should apply here. Thus, the 
Commission proposes to direct the ERO to revise Requirement R2 and its 
subparts to reflect our determinations discussed above to remove the 
``acceptance of risk'' language and to impose the same conditions and 
reporting requirements here for ``technical limitations'' as imposed 
elsewhere in this NOPR regarding ``technical feasibility.''
c. Security Patch Management
    235. Requirement R3 of CIP-007-1 requires a responsible entity to 
establish and document a security patch management program for 
tracking, evaluating, testing and installing applicable cyber security 
software patches for all cyber assets within an electronic security 
perimeter. Among other things, a responsible entity must document the 
implementation of security patches. Where a patch is not installed, the 
responsible entity must document compensating measure(s) applied to 
mitigate risk exposure or an acceptance of risk.
    236. The CIP Assessment acknowledged that compensating measures are 
necessary at times, especially when patches require vendor support, but 
also expressed concern that Requirement R3.2 permits a wide variation 
of processes for patching a system when it allows an ``acceptance of 
risk'' in lieu of mitigating risk exposure through a patching program. 
The CIP Assessment asserted that an effective Reliability Standard 
cannot simply offer a responsible entity a choice between installing a 
patch or accepting the risk of not doing so, and that at least some 
form of mitigation should always be possible.
    237. NERC and ReliabilityFirst believe that ``acceptance of risk'' 
is not a permanent solution but would be used during a period where 
testing and other required upgrades may be accomplished. In addition, 
they and other commenters are concerned about implementing language in 
the Reliability Standard that would seem to require installation of 
patches on platforms where patches cannot be implemented due to 
architecture, operating environment or warranty issues. Allegheny 
states that if patches were not applied, it is highly unlikely there 
would not be some form of mitigation available such as physical 
protection and/or firewalls. It also states that compensating measures 
should be in place before there is an acceptance of risk. SoCal Edison 
states that acceptance of the risk of non-compliance should be clearly 
documented so that an auditor can see the rationale for this decision.
    238. PG&E comments that older devices have a limited modification 
capability, and as a result the responsible entity must balance the 
risk of replacing devices that currently operate with new, untested, 
and potentially inadequate devices.
Commission Proposal
    239. The Commission has discussed acceptance of risk above and, 
because those remarks and proposals apply equally here, we propose that 
the ``acceptance of risk'' language must be removed here also.\97\ With 
the exception of references to acceptance of risk, the Commission 
considers the provisions of Requirement R3 to be acceptable and 
appropriate. Patch management must be weighed in light of the risks 
involved, with senior management involved in the decision. As discussed 
under Recommendation 33 of the Blackout Report,\98\ using the most up-
to-date patches that deal specifically with security vulnerabilities is 
of the utmost importance, provided it does not degrade the system and 
the patch does not create more vulnerability than the problem it is 
intended to fix.
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    \97\ See supra discussion in section II.A.5.b.
    \98\ See Blackout Report at 164, Recommendation 33.
---------------------------------------------------------------------------

d. Malicious Software Prevention
    240. Requirement R4 of CIP-007-1 requires responsible entities to 
use anti-virus and other malicious software prevention tools. The CIP 
Assessment noted that Reliability Standard CIP-007-1 does not provide 
any direction on how to implement this type of protection or where it 
should be deployed, and that care must be taken to implement and test 
malicious code protection in order to avoid harm to the operating 
control system. The CIP Assessment pointed out that the Reliability 
Standard could suggest the use of a multi-layer, defense in depth 
strategy, to forestall or detect an attacker's penetration of the 
electronic security.\99\
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    \99\ CIP Assessment at 33.

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[[Page 43997]]

    241. Requirement R4 requires the responsible entity to use anti-
virus software and malicious software prevention tools where 
``technically feasible.'' The CIP Assessment questioned this phrase as 
allowing unnecessary discretion to opt out of Requirement R4. It noted 
that Requirement R4.1 raises the same concerns regarding the phrase 
``acceptance of risk'' as in Requirement R3.2, this time in connection 
with cases where anti-virus software and malicious software prevention 
tools are not installed. The CIP Assessment noted a lack of direction 
in the Reliability Standard and sought comment on what types of 
compensating measures are available and what would be an adequate 
justification for accepting risk.
    242. In response to the CIP Assessment observation that Requirement 
R4 does not provide any direction on how to implement anti-virus 
protection or where it should be deployed, NERC and ReliabilityFirst 
comment that the Reliability Standards are performance based; that they 
do not specify how to perform a function, only that the Requirement 
must be met. This comment is similar to the suggestion addressed in 
Order No. 672,\100\ that, ``in general, a Reliability Standard should 
address the `what' and not the `how' of reliability and that the actual 
implementation of a Reliability Standard should be left to entities 
such as control area operators and system planners * * *.'' \101\ NERC 
and ReliabilityFirst conclude that, while the responsible entity must 
implement a solution that meets the Requirement, it should not be 
restricted with regard to how to do so. Thus, they argue the 
Reliability Standard should remain silent as to whether the anti-virus 
solution is implemented at the electronic security perimeter border, on 
an in-line device, or on the critical cyber asset itself, so long as 
the implemented solution meets the stated requirement.
---------------------------------------------------------------------------

    \100\ FERC Stats. & Regs. ] 31,204 at P 260.
    \101\ In Order No. 672, the Commission immediately followed this 
general statement with the caution that, ``in other situations, 
however, the `how' may be inextricably linked to the Reliability 
Standard and may need to be specified by the ERO to ensure the 
enforcement of the Reliability Standard.'' Order No. 672 at P 265.
---------------------------------------------------------------------------

    243. In response to the CIP Assessment comment that the Reliability 
Standard does not suggest the use of a multi-layered, defense in depth 
strategy through the use of various products from multiple vendors, 
NERC and ReliabilityFirst state that a multi-layered defense may be 
appropriate in a best practice document, but not in a mandatory 
Reliability Standard.
Commission Proposal
    244. The Commission has discussed the issues of defense in depth, 
technical feasibility, and risk acceptance elsewhere above in this 
NOPR. The remarks and proposals there apply equally to the issue of 
malicious software prevention. Therefore, the ``acceptance of risk'' 
language must be removed here, and the same conditions and reporting 
requirements regarding ``technical feasibility'' that apply elsewhere 
are applicable here. In addition, the Commission proposes to direct the 
ERO to modify Requirement R4 to include safeguards against personnel 
introducing, either maliciously or unintentionally, viruses or 
malicious software in to a cyber asset within the electronic security 
perimeter through remote access, electronic media, or other means.
e. Security Status Monitoring
    245. Requirement R6 of CIP-007-1 requires responsible entities to 
ensure that all cyber assets within the electronic security perimeter, 
as technically feasible, implement automated tools or organizational 
process controls to monitor system events that are related to cyber 
security. Among other things, a responsible entity must maintain logs 
of system events related to cyber security, where technically feasible, 
to support incident response as required in Reliability Standard CIP-
008-1. Logs must be retained for 90 calendar days, and the responsible 
entity must review logs of system events related to cyber security and 
maintain records documenting review of logs.
    246. The CIP Assessment questioned the need to limit Requirement 
R6.3, which requires logs of system events related to cyber security to 
support incident reporting, as specified in CIP-008-1, to situations 
where this is ``technically feasible.'' The CIP Assessment also raised 
concerns about the record retention requirements for Requirements R6.3 
and R6.4, which pertain to logs of cyber security-related system events 
used to identify reportable incidents and to support incident response, 
as required in CIP-008-1. It noted that, depending upon the frequency 
of log review, the 90-day period specified may be inadequate and that 
frequent review of logs would facilitate the early detection of 
reportable incidents. It also would ensure that current data are 
available for forensics. The CIP Assessment sought comment on whether 
the Reliability Standard should address the frequency and scope of the 
review of system event logs related to cyber security that is required 
by Requirement R6.5. It also noted the lack of guidance on how data 
should be saved, backed up and stored where computerized cyber incident 
monitoring and logging is performed.
    247. Several commenters state that all devices of interest do not 
have the capability to create logs or that they may not provide the 
capability to capture ``security related'' information. They state that 
many installed devices in power plants and substations do not have log 
generation capability. If there is no capacity to generate logs, then 
it is technically infeasible to maintain logs.
    248. NERC and ReliabilityFirst comment that generated logs from 
remote locations may not be readily collected for frequent review. In 
many cases, the telecommunications infrastructure connecting these 
remote locations cannot support the rapid and frequent collection of 
log data, especially if it is voluminous. The remote location of some 
sites makes frequent visits to collect and store log data impractical.
    249. SPP recommends that logs be transferred in real time to a 
separate logging system to mitigate the risk of a successful attack 
destroying evidence of the intrusion. Where possible, the log should be 
readable separately from the device that created it or the device 
should be able to continue logging while in playback mode. Wisconsin 
Electric submits that cyber security logs should be reviewed with the 
frequency necessary to identify a cyber security incident within the 
timeframe established in the entity's cyber security incident response 
plan. The cyber security logs should be stored in a manner that assures 
that information is protected as required in CIP-003-1 and that it is 
available through the 90-day retention period.
Commission Proposal
    250. We have discussed the issue of technical feasibility. Our 
remarks and proposals there apply equally to the technical feasibility 
of monitoring and logging of system events related to cyber security.
    251. The Commission agrees with the CIP Assessment and Wisconsin 
Electric that logs should be reviewed with the frequency necessary to 
ensure timely identification of a cyber security incident. Simply 
reviewing logs at the end of the retention period will not ensure an 
appropriate level of security because it does not permit effective 
response to all incidents. We note that

[[Page 43998]]

this issue of log review touches on Blackout Report Recommendation 35, 
which addresses network monitoring, and Recommendation 37 which 
addresses diagnostic capabilities.\102\ The Commission therefore 
proposes to direct the ERO to revise Requirement R6 to include a 
requirement that logs be reviewed on a weekly basis for readily 
accessible critical assets and reviewed within the retention period for 
assets that are not readily accessible. This direction should be 
completed consistent with our discussion above regarding ``readily 
accessible'' assets.\103\ Accessibility should take into account both 
physical remoteness and available communications channels. We would 
expect control centers to fall within the ``readily accessible'' 
category.
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    \102\ See Blackout Report at 165-166, Recommendations 35 and 37.
    \103\ See section II.B.4.c (Monitoring Access Logs) in this 
NOPR.
---------------------------------------------------------------------------

    252. The Commission also proposes to direct the ERO to revise 
Requirement R6.4 to clarify that while the retention period for all 
logs specified in Requirement R6 is 90 days, the retention period for 
logs mentioned in Requirement R6.3 for the support of incident response 
as required in CIP-008-1 is the retention period required by CIP-008-1, 
i.e., three years. Requirement R6.4 is somewhat unclear and could be 
read to suggest that the 90 day period also applies to logs kept for 
purposes of CIP-008-1, and such an interpretation would conflict with 
the Requirements of that Reliability Standard.
f. Disposal or Redeployment
    253. Requirement R7 of CIP-007-1 requires the responsible entity to 
establish formal methods, processes and procedures for disposal or 
redeployment of cyber assets. The CIP Assessment noted that erasing 
alone may not be adequate because technology exists that allows 
retrieval of ``erased'' data from storage devices, and that effective 
protection requires discarded or redeployed assets to undergo high 
quality degaussing.\104\
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    \104\ CIP Assessment at 34-35. To degauss is to demagnetize. 
Degaussing a magnetic storage medium removes all data stored on it.
---------------------------------------------------------------------------

    254. Allegheny and SPP agree with the CIP Assessment that erasing 
alone may be inadequate because technology currently exists that allows 
retrieval of ``erased'' data from storage devices. SPP also states that 
if the magnetic media is being disposed of, physical destruction of the 
media is also an appropriate technique to render it unreadable.
    255. NERC and ReliabilityFirst state that any method that fails to 
``prevent unauthorized retrieval of sensitive cyber security or 
reliability data'' does not satisfy the Requirement. Likewise, APPA/
LPPC believe that it is clear from the Requirement that ``erase'' means 
that there is no opportunity for unauthorized retrieval of data from a 
cyber asset prior to discarding it or redeploying it. They caution 
against being overly prescriptive regarding the exact process that 
responsible entities must use to meet this Requirement.
Commission Proposal
    256. The Commission agrees with commenters that degaussing is not 
the sole means for achieving the goal of the requirement. As noted by 
commenters, the issue is less one of erasure, which is as much a method 
as it is a goal, than of assuring that there is no opportunity for 
unauthorized retrieval of data from a cyber asset prior to discarding 
it or redeploying it. The Commission therefore proposes to direct the 
ERO to modify this Requirement to clarify this point.
g. Cyber Vulnerability Assessment
    257. Requirement R8 of CIP-007-1 requires a responsible entity to 
perform a cyber vulnerability assessment of all cyber assets within the 
electronic security perimeter at least annually. The CIP Assessment 
noted that this Requirement provides little direction on what features, 
functionality, and vulnerabilities responsible entities should focus on 
in a vulnerability assessment. The CIP Assessment pointed out that a 
poorly chosen vulnerability assessment process could result in a false 
sense of security. The CIP Assessment also noted that while Requirement 
R8.4 requires development of an action plan to remediate or mitigate 
vulnerabilities identified in the assessment, it does not provide a 
timeframe for completion of the action plan.\105\
---------------------------------------------------------------------------

    \105\ CIP Assessment at 35.
---------------------------------------------------------------------------

    258. Several commenters state that a responsible entity must 
determine the approach it will implement based on its own level of 
sophistication and its internal tolerance for risk. These commenters 
state that every environment and implementation is different, and any 
additional specificity would be impossible to describe for all possible 
situations, and, consequently, would not be productive. NERC and 
ReliabilityFirst state that requiring a specific timeframe for 
completion of an action regardless of its complexity serves no useful 
purpose because the timeframe will depend on the actions required. They 
maintain that the requirement to document the ``execution status'' of 
the action plan serves to keep the action plan on track.
    259. ISA Group states that experience shows that most companies do 
not know what devices have actually been installed in the field. It 
maintains that a requirement for a detailed walk-down of all critical 
cyber assets should be mandatory for an acceptable vulnerability 
assessment. Progress and Xcel comment that the scope of the 
vulnerability test should be clearly defined.
Commission Proposal
    260. The Commission believes that vulnerability testing is a 
valuable tool in determining whether actions that were taken to shore 
up the security posture of the electronic security perimeter and other 
areas of responsibility are in fact adequate. The Blackout Report 
recognized the importance of vulnerability assessments in 
Recommendation 38 that called for vulnerability assessment activities 
to identify weaknesses and mitigating actions.\106\ The Commission 
believes, as noted by NERC and ReliabilityFirst, that execution status 
is a good means to keep the action plan on track. Therefore, the 
Commission proposes to require that the ERO provide more direction on 
what features, functionality, and vulnerabilities the responsible 
entities should address when conducting the vulnerability assessments, 
and to revise Requirement R8.4 to require an entity-imposed timeline 
for completion of the already-required action plan.
---------------------------------------------------------------------------

    \106\ See Blackout Report at 167, Recommendation 38.
---------------------------------------------------------------------------

h. Documentation Review and Maintenance
    261. Requirement R9 of CIP-007-1 requires the responsible entity to 
review, update and maintain all documentation needed to support 
compliance with the Requirements of CIP-007-1 at least annually. 
Changes resulting from modifications to the systems or controls must be 
documented within 90 calendar days of the change. The CIP Assessment 
expressed the view that the 90-day timeframe for updating documentation 
appears excessively long, especially when one considers that this 
Reliability Standard establishes a line of defense for protecting 
critical cyber assets and that up-to-date documentation is essential in 
case of an emergency.
    262. NERC and ReliabilityFirst state that the 90-day time period is 
appropriate, given the nature and type of facilities and their 
locations,

[[Page 43999]]

particularly in light of the potential need for internal reviews and 
approvals by a number of people or groups of people before a 
documentation change can be effected. ReliabilityFirst adds that the 
90-day period also takes into account possible management changes or 
extended time out of the office.
Commission Proposal
    263. The Commission proposes to direct the ERO to modify 
Requirement R9 to state that the changes resulting from modifications 
to the system or controls shall be documented within a 30-day time 
period. We believe that the planning and engineering of system and 
control modifications require sufficient lead time to enable the 
documentation of such modifications to take place within a 30 calendar 
day timeframe.
i. Commission Proposal Summary
    264. In summary, the Commission proposes to approve Reliability 
Standard CIP-007-1 as mandatory and enforceable. In addition, the 
Commission proposes to direct the ERO, pursuant to section 215(d)(5) of 
the FPA and Sec.  39.5(f) of our regulations to develop modifications 
to CIP-007-1 through its Reliability Standards development process 
that: (1) Modify Requirement R1 and its subparts to require 
documentation of each significant difference between the testing and 
the production environments, and how each such difference is mitigated 
or otherwise addressed; (2) revise Requirement R2 and its subparts to 
remove the ``acceptance of risk'' language and apply the same 
conditions and reporting requirements here for ``technical 
limitations'' as imposed elsewhere in this NOPR for ``technical 
feasibility;'' (3) remove the ``acceptance of risk'' provision from 
Requirement R3 and R4; (4) modify Requirement R4 to include safeguards 
against personnel introducing, either maliciously or unintentionally, 
viruses or malicious software to a cyber asset within the electronic 
security perimeter through remote access, electronic media, or other 
means; (5) ensure that references to ``technical feasibility'' in CIP-
007-1 are subject to the same conditions and reporting requirements 
discussed elsewhere; (6) revise Requirement R6 to include a requirement 
that logs be reviewed on a weekly basis for readily accessible critical 
assets and reviewed within the retention period for assets that are not 
readily accessible; (7) revise Requirement R6.4 to clarify that while 
the retention period for all logs specified in Requirement R6 is 90 
days, the retention period for logs mentioned in Requirement R6.3 for 
the support of incident response as required in CIP-008-1 is the 
retention period required by CIP-008-1, i.e., three years; (8) revise 
Requirement R7 of the Reliability Standard to clarify that the issue is 
less one of erasure than of assuring that there is no opportunity for 
unauthorized retrieval of data from a cyber asset prior to discarding 
it or redeploying; (9) provide more direction on what features, 
functionality, and vulnerabilities the responsible entities should 
address when conducting the vulnerability assessments; (10) revise 
Requirement R8.4 to require an entity-imposed timeline for completion 
of the already-required action plan; and (11) revise Requirement R9 to 
state that the changes resulting from modifications to the system or 
controls shall be documented in within 30 days.
7. CIP-008-1--Incident Reporting and Response Planning
    265. Proposed Reliability Standard CIP-008-1 requires a responsible 
entity to identify, classify, respond to, and report cyber security 
incidents related to critical cyber assets. Specifically, Requirement 
R1 of CIP-008-1 requires responsible entities to develop and maintain 
an Incident Response Plan that addresses responses to a cyber security 
incident. The plan should characterize and classify pertinent events as 
reportable cyber security incidents and provide corresponding response 
actions. The response actions should include: (1) The roles and 
responsibilities of the incident response teams, (2) procedures for 
handling incidents, and (3) associated communication plans. In 
addition, cyber security incidents must be reported to the ESISAC 
either directly or through an intermediary. The Incident Response Plan 
should be reviewed and tested at least annually. Changes to the 
Incident Response Plan are to be documented within 90 days. Responsible 
entities must retain documentation related to reportable cyber security 
incidents for a period of three years.
    266. The Commission proposes to approve Reliability Standard CIP-
008-1 as mandatory and enforceable. In addition, we propose to direct 
the ERO to develop modifications to this Reliability Standard. In our 
discussion below, the Commission addresses its concerns in the 
following topic areas regarding CIP-008-1: (1) Definition of a 
reportable incident; (2) reporting; and (3) full operational exercises 
and lessons learned.
a. Definition of a Reportable Incident
    267. The CIP Assessment noted that Requirement R1 of CIP-008-1 
makes reference to reportable cyber security incidents, but it does not 
provide a definition of a ``reportable incident.'' Consequently, cyber 
security incidents may go unreported depending upon a responsible 
entity's interpretation of a ``reportable incident.'' \107\
---------------------------------------------------------------------------

    \107\ CIP Assessment at 36. The CIP Assessment recognized that 
NERC's FAQ document answers the question of ``what is a reportable 
incident?'' by referencing definitions in the ESISAC Indications, 
Analysis, and Warnings Program guidelines document entitled 
``Indications, Analysis and Warnings Program Standard Operating 
Procedure'' and the Department of Energy Form OE 417 Report entitled 
``Electric Emergency Incident and Disturbance Report.'' However, 
since these materials are not incorporated into the proposed CIP 
Reliability Standards, CIP-008-1 remains ambiguous in this regard. 
North American Electric Reliability Council, Frequently Asked 
Questions (FAQs) Cyber Security Standards CIP-002-1 through CIP-009-
1, March 6, 2006, page 27, question 1.
---------------------------------------------------------------------------

    268. NERC and ReliabilityFirst affirm the CIP Assessment concern, 
stating that each responsible entity is required to develop the 
required procedures for the determination of a reportable incident. 
They add that the definition of a reportable incident is currently 
undergoing extensive industry debate.
    269. A number of commenters state that FERC should require NERC to 
clarify what types of cyber security incidents are ``reportable 
incidents.'' National Grid points out that the Commission should seek 
to ensure that any further interpretation of what is considered a 
reportable incident be consistent with the reporting obligations of 
utilities under the DOE Form 417. Allegheny suggests that, in order to 
maintain consistency, the DOE Form 417 reporting requirements should be 
referenced as part of the Reliability Standard. Progress Energy, on the 
other hand, states that such increased specificity is not possible and 
would be subject to constant revision in response to ever-changing 
incidents or threats to cyber systems.
Commission Proposal
    270. The Commission believes that guidance regarding what should be 
included in the term ``reportable incident'' can be provided. The 
Blackout Report pointed out the need for ``uniform standards for the 
reporting and sharing of physical and cyber security incident 
information'' in Recommendation 42.\108\ As NERC and ReliabilityFirst 
state, the definition of a ``reportable incident'' is currently 
undergoing extensive industry debate.

[[Page 44000]]

This debate can be a catalyst for developing an appropriate level of 
guidance. As noted in the NERC Glossary, a ``cyber security incident'' 
is defined as a compromise, or an attempt to compromise, the electronic 
security perimeter or physical security perimeter of a critical asset. 
The Commission proposes to direct the ERO to: (1) Develop and include 
in CIP-008-1 language that takes into account a breach that may occur 
through cyber or physical means; \109\ (2) harmonize, but not 
necessarily limit, the meaning of the term reportable incident with 
other reporting mechanisms, such as DOE Form 417; (3) recognize that 
the term should not be triggered by ineffectual and untargeted attacks 
that proliferate on the internet; and (4) ensure that the guidance 
language that is developed results in a Reliability Standard that can 
be audited and enforced.
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    \108\ See also Blackout Report at 168, Recommendation 42.
    \109\ The Commission emphasizes that a cyber security incident 
that does not result in a material loss of physical assets should 
not prevent the incident from being reported.
---------------------------------------------------------------------------

b. Reporting
    271. CIP-008-1, Requirement R1.3, requires that each responsible 
entity establish a process for reporting cyber security incidents to 
the ESISAC. The responsible entity must ensure that all reportable 
cyber security incidents are reported to the ESISAC either directly or 
through an intermediary.
    272. ESISAC procedures require the reporting of a cyber incident 
within one hour of a suspected malicious incident. However, compliance 
with ESISAC's Indications, Analysis and Warnings Program (IAW) Standard 
Operating Procedure (SOP) is voluntary. The CIP Assessment noted the 
importance of other responsible entities receiving timely information 
regarding a reportable cyber security incident, so they can take 
precautions against being the target of a similar incident. The CIP 
Assessment stated that, depending upon the nature of the incident, 
timelines of incident reporting may be critical. It expressed concern 
with regard to the voluntary nature of the one-hour reporting 
requirement associated with ESISAC's IAW SOP. Therefore, the CIP 
Assessment requested comment on whether CIP-008-1 should incorporate 
ESISAC's one-hour reporting limit or another reporting interval that 
would provide adequate time for another responsible entity to take 
meaningful precautions.
    273. NERC and ReliabilityFirst agree that rapid reporting is 
desirable. However, they state that imposing a specific time period is 
not advisable because, when an event occurs, the need to meet a 
reporting deadline should not be the entity's primary concern, rather 
restoration of operations must take precedence. NERC and 
ReliabilityFirst state that ESISAC's IAW SOP is intentionally not a 
part of this Reliability Standard, and is classified as a guideline, 
because it has not been through the ERO standards development process. 
These commenters believe the requirement is to report incidents to the 
ESISAC, with the implication that an established ESISAC reporting 
protocol is to be used.
    274. APPA/LPPC do not believe that incorporating the ESISAC one-
hour reporting limit or any other deadline would provide adequate time 
for another responsible entity to take meaningful precautions to 
prevent a cyber attack. Cyber attacks are designed to occur nearly 
simultaneously in more than one location. Thus, even an extremely short 
deadline, such as one minute, is unlikely to provide other responsible 
entities time to take precautions. Nonetheless, APPA/LPPC suggest that, 
if a deadline is prescribed, it should run from the discovery of the 
incident by the responsible entity, and not from the occurrence of the 
incident.
    275. Several commenters argue against any time limit for reporting 
security incidents. They believe the requirement to report such 
incidents to the ESISAC is sufficient. Wisconsin Electric notes that 
using the same one-hour limit in CIP 008-1 as in the ESISAC IAW SOP 
would not represent a new performance threshold to the industry.
Commission Proposal
    276. The Commission believes that the ESISAC one-hour reporting 
limit is reasonable and proposes that it be incorporated into CIP 008-
1. We reach this conclusion for several reasons. First, although it is 
true that cyber attacks against different entities could occur 
simultaneously, it would still be extremely useful to those attempting 
to defend against those attacks to know what kind of threat they are 
dealing with. The fact that simultaneous attacks are directed at other 
entities would be important information about the nature of the 
attacks.
    277. Second, while the Commission agrees that, in the aftermath of 
a cyber attack, restoring the system is the utmost priority, we do not 
believe that sending this short report would be a time consuming 
distraction, and we judge that its probative value would justify the 
minimal time spent in making this report.
    278. Third, the Commission disagrees with commenters that believe 
that a reporting limit will not provide others with time for responsive 
action to mitigate other potential Cyber Security Incidents. While a 
reporting time limit may not allow such mitigation in every situation, 
it very well could allow such mitigation in many situations.
    279. Fourth, although ESISAC's time limit is voluntary, a one hour 
NERC reporting time limit would match up with the ESISAC reporting time 
limit and, thus, would avoid conflicting requirements and would not 
cause any new reporting burden.
    280. Thus, the Commission proposes to direct the ERO to modify CIP-
008-1 to require a responsible entity to contact appropriate government 
authorities and industry participants in the event of a Cyber Security 
Incident as soon as possible, but, in any event, within one hour of the 
event, even if it is a preliminary report. While we leave development 
of the details to NERC, the Commission agrees with APPA/LPPC that the 
reporting timeframe should run from the discovery of the incident by 
the responsible entity, and not the occurrence of the incident.
c. Full Operational Exercises and Lessons Learned
    281. The CIP Assessment stated that the annual testing of the 
Incident Response Plan should require full operational exercises due to 
the potential for such exercises to uncover unforeseen 
complications.\110\ In addition, it indicated that CIP-008-1 does not 
require documentation or reassessment of a plan's adequacy as a result 
of lessons learned from testing or in response to specific issues.
---------------------------------------------------------------------------

    \110\ CIP Assessment at 37.
---------------------------------------------------------------------------

    282. NERC and ReliabilityFirst state that there are many instances 
in substations or power plants where backup or fully functional test 
systems do not exist, making a full operational exercise an extremely 
risky proposition. Because of this, NERC and ReliabilityFirst believe 
that a universal requirement for a full operational exercise may be 
unduly disruptive and burdensome to reliable operations, and represent 
a threat to the overall reliability of the Bulk-Power System. NERC and 
ReliabilityFirst believe that table-top exercises are sufficient to 
test the effectiveness of an Incident Response Plan. Several commenters 
agree. Ontario IESO posits that there is no evidence that a paper drill 
would be materially inferior to an operational exercise.

[[Page 44001]]

    283. A number of commenters believe that requiring a full 
operational exercise during the three-year documentation cycle and 
paper drills during the other two years should provide the desired 
benefits of testing the Incident Response Plan. An actual incident 
response would satisfy the need for a full operational exercise during 
a three-year cycle. One commenter, the ISA Group, believes that full 
operational exercises should be mandated at least yearly. Wisconsin 
Electric states that, if full drills become a requirement, they should 
be conducted every five years, with paper drills only when the process 
or procedure is created or changed.
    284. Several commenters note that there may be a significant 
benefit in executing an operational exercise over a paper drill, but 
note that an operational exercise also can require expensive back-up 
systems and may unnecessarily risk damaging system functionality in 
case of an error or unforeseen system effect. Georgia System believes 
each responsible entity has to determine whether the incremental 
benefit from a yearly exercise is worth the costs and reliability risks 
associated with the exercise. MidAmerican states it could support full 
operational exercises for a limited number of critical assets, with 
paper exercises for the remaining facilities. National Grid suggests 
that operational drills are more appropriate for actual recovery plans 
under CIP-009-1, and paper drills are more than adequate to assess 
whether the response plans under CIP-008-1 identify and alert the right 
responders. Xcel Energy is concerned that operational drills (like 
vulnerability tests) could cause an inadvertent disruption to EMS and 
SCADA systems.
    285. NERC and ReliabilityFirst state that collection and 
maintenance of lessons learned, and plan improvement are included in 
the ``update'' language of Requirement R1.4. Allegheny states that 
documentation and implementation of lessons learned is a critical part 
of any incident response or drill. As such, Allegheny believes the need 
to maintain a collection of lessons learned as a result of testing the 
Incident Response Plan and to apply them to plan improvements is 
necessary to ensure response plans remain viable. Wisconsin Electric 
submits that lessons learned from incident response exercises should be 
documented as well as audited for completion of any enhancements to the 
process.
Commission Proposal
    286. We understand from commenters that annual testing may be 
costly and disruptive. Nonetheless, periodic operational drills are 
important because they may reveal weaknesses, vulnerabilities, and 
opportunity for improvement that a paper drill would not identify. The 
Commission agrees with the commenters that suggest that a full 
operational exercise should be performed at least once every three 
years, and that tabletop exercises are sufficient for the other two 
years. We believe this strikes an appropriate balance between the 
benefits of executing an operational exercise and the associated costs 
and potential risks of misoperations. Therefore, the Commission 
proposes to direct the ERO to revise the Reliability Standard to 
require responsible entities to perform a ``full operational exercise'' 
at least once every three years, or to fully document its reason for 
not conducting an exercise in full operational mode pursuant to the 
technical feasibility parameters discussed earlier in section II.A.5.b. 
Further, the Commission proposes to direct the ERO to provide guidance 
on the meaning of the term ``full operational exercise.'' \111\
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    \111\ We address the meaning of the term ``full operational 
exercise'' in section II.B.8.c below.
---------------------------------------------------------------------------

    287. The Commission believes that industry will benefit from a 
requirement to document and implement lessons learned from testing or 
responses to actual cyber security incidents. Although NERC and 
ReliabilityFirst suggest that this is included in the ``update'' 
language of Requirement R1.4, we believe that the Reliability Standard 
would be improved by making a ``lessons learned'' requirement explicit. 
Therefore, the Commission proposes to direct that the ERO refine CIP-
008-1, Requirement R2 to require responsible entities to maintain 
documentation of paper drills, full operational drills, and responses 
to actual incidents, all of which must include lessons learned. The 
Commission also proposes to direct the ERO to include language to 
require revisions to the Incident Response Plan to address these 
lessons learned.
d. Commission Proposal Summary
    288. In summary, the Commission proposes to approve Reliability 
Standard CIP-008-1 as mandatory and enforceable. In addition, the 
Commission proposes to direct the ERO, pursuant to section 215(d)(5) of 
the FPA and Sec.  39.5(f) of our regulations to develop modifications 
to CIP-008-1 through its Reliability Standards development process 
that: (1) Develop and include language regarding the term ``reportable 
incident'' that takes into account a breach that may occur through 
cyber or physical means; (2) harmonize, but not necessarily limit, the 
meaning of the term reportable incident with other reporting 
mechanisms, such as DOE Form 417; (3) recognize that the term 
``reportable incident'' should not be triggered by ineffectual and 
untargeted attacks that proliferate on the internet; (4) ensure that 
the guidance language that is developed results in a Reliability 
Standard that can be audited and enforced; (5) require a responsible 
entity to contact appropriate government authorities and industry 
participants in the event of a Cyber Security Incident as soon as 
possible, but at least within one hour of the event, even if it is a 
preliminary report; (6) require responsible entities to perform a 
``full operational exercise'' at least once every three years, or to 
fully document its reason for not conducting an exercise in full 
operational mode pursuant to the technical feasibility parameters 
discussed earlier herein and provide guidance on the meaning of the 
term ``full operational exercise;'' (7) refine Requirement R2 to 
require responsible entities to maintain documentation of paper drills, 
full operational drills, and responses to actual incidents, all of 
which must include lessons learned; and (8) require revisions to the 
Incident Response Plan to address the lessons learned.
8. CIP-009-1--Recovery Plans for Critical Cyber Assets
    289. The purpose of proposed Reliability Standard CIP-009-1 is to 
ensure that recovery plans for critical cyber assets are in place and 
following established business continuity and disaster recovery 
techniques and practices. This Reliability Standard establishes 
required development, updating, and testing of recovery plans, as well 
as storage and testing of associated backup data and backup media.
    290. The Commission proposes to approve Reliability Standard CIP-
009-1 as mandatory and enforceable. In addition, we propose to direct 
the ERO to develop modifications to this Reliability Standard. Further, 
the Commission also proposes to require the ERO to consider various 
other matters of clarification, guidance, and modification. In our 
discussion below, the Commission addresses its concerns in the 
following topic areas regarding CIP-009-1: (1) Recovery plans; (2) 
forensic data collection; (3) operational exercises; (4) recovery plan 
updates; (5) backup and storage of restoration data and (6) testing of 
backup media.

[[Page 44002]]

a. Recovery Plans
    291. Requirement R1 of CIP-009-1 requires the responsible entity to 
create and annually review recovery plans for critical cyber assets. 
The CIP Assessment expressed concern that the ``events or conditions of 
varying duration and severity that would activate the recovery 
plan(s)'' language is very general and does not provide or require a 
definition of what constitutes a precipitating event or triggering 
condition necessary for recovery plan implementation.
    292. NERC, MidAmerican, Xcel, and Allegheny comment that providing 
additional detail will limit the scope of potential ``precipitating 
events'' addressed by recovery plans, and will not provide for the 
needed flexibility. NERC states that the determination of which events 
warrant a recovery plan is intentionally left to the discretion of 
responsible entities. Wisconsin Electric and others agree with the CIP 
Assessment that additional clarification should be added to this 
Requirement.
Commission Proposal
    293. The Commission shares the concern that ``precipitating 
events'' are readily recognized by responsible entities so that 
recovery plans are promptly implemented. While we do not propose to 
require modifications regarding the ``events and conditions'' language 
at this time, we do note that Requirement R1 fails to state that the 
plans it requires must be implemented when needed. That is, it requires 
that recovery plans must be ``created and reviewed'' but does not 
explicitly require actual implementation when the ``events or 
conditions of varying duration and severity'' occur. We propose to 
direct the ERO to modify to CIP-009-1 to include this requirement. In 
the interim period, the Commission will infer that implementation is 
embodied in this Requirement when enforcing it; i.e., if an entity has 
the required recovery plan but does not implement it when the 
anticipated event or conditions occur, the entity will not be in 
compliance with this Reliability Standard.
b. Forensic Data Collection
    294. The CIP Assessment pointed out that Requirement R1 does not 
provide guidance on whether and how the recovery plans should preserve 
data for forensics purposes. In particular, Requirement R1 does not 
specify whether forensics collection should occur prior to, 
contemporaneously with, or after recovery of the critical cyber assets.
    295. NERC, ReliabilityFirst, and PG&E assert that there are no 
Bulk-Power System reliability issues associated with forensic data 
collection, and that there is a possibility that collection of forensic 
data could impede the restoration of cyber assets, which in turn could 
affect the reliable operation of the Bulk-Power System. NERC comments 
that each entity must consider the balance between data collection and 
actions required to rapidly restore the electric power transmission. 
NERC states that after-the-fact recovery of incident data cannot be 
assumed to be technically possible on legacy equipment and that, 
therefore, it cannot be a requirement. Georgia System stresses that 
restoring the Bulk-Power System should remain the foremost objective of 
all immediate efforts, over issues of data collection.
    296. Allegheny comments that forensics collection should also be 
addressed within this range of plans. Noting again that one size does 
not fit all in regards to scenarios for recovery planning, Allegheny 
says that forensic collection should be addressed in each of the plans 
that addresses the various scenarios.
Commission Proposal
    297. The Commission is concerned that Requirement R1 of CIP-009-1 
does not require the collection of forensics data and does not address 
how such collection activities relate to restoration of service 
efforts. The Commission believes that concern for the reliability of 
the Bulk-Power System requires attention to forensics data collection. 
The Blackout Report also emphasized the need to improve forensics and 
diagnostic capabilities in Recommendation 37.\112\ Obtaining forensic 
data will benefit the long-term reliability of the Bulk-Power System 
because the lessons learned from one event assist in eliminating or 
dealing with a repeat (or similar) event. Forensic data collection 
procedures could be as minimal as preserving a corrupted drive, making 
a data mirror of the system before proceeding with recovery, or taking 
the important assessment steps necessary to avoid reintroducing the 
precipitating or corrupted data. Technical capabilities to do so will 
likely vary with the facility, and many legacy systems present 
considerable technical limitations in this regard. In the interest of 
``raising the bar'' above what the least capable equipment can do to 
collect forensic data, the Commission proposes to direct the ERO to 
modify CIP-009-1 to incorporate use of good forensic data collection 
practices into this CIP Reliability Standard.
---------------------------------------------------------------------------

    \112\ See Blackout Report at 166, Recommendation 37.
---------------------------------------------------------------------------

    298. In addition, we agree with commenters that recovery of 
critical cyber assets and the Bulk-Power System is of short-term 
critical importance, and information collection efforts should not 
impede or restrict system restoration. Nonetheless, it is also 
important to long-term reliability interests that responsible entities 
make solid forensic efforts in a given situation, such as collecting 
the data immediately after system restoration or the recovery of 
critical cyber assets, if that is what can be done. We recognize that 
collecting forensic data may not be ``technically feasible'' for all 
situations due to equipment limitations, such as older substation 
installations with little electronic monitoring. Therefore, we suggest 
that forensic data collection is an appropriate candidate for the 
``where technically feasible'' exception clause, where, if invoked, the 
responsible entity would be required to propose interim actions, 
milestone schedules, and a mitigation plan, as described elsewhere in 
this NOPR. We agree with commenters that the recovery plans should 
include forensic data collection procedures. Therefore, we propose to 
direct the ERO, when incorporating the use of good forensic data 
collection practices into this Reliability Standard, to make clear that 
such practices should not impede or restrict system restoration and to 
consider whether it is necessary to include a ``technical feasibility'' 
provision.
c. Operational Exercises
    299. Requirement R2 of CIP-009-1 requires the responsible entity to 
exercise recovery plans at least annually, and that such exercise can 
range from a paper drill, to a full operational exercise, to recovery 
from an actual incident. The CIP Assessment asked whether full 
operational exercises should be required to aid in identifying 
potential problems and in realizing opportunities for improving 
recovery plans.\113\
---------------------------------------------------------------------------

    \113\ CIP Assessment at 38.
---------------------------------------------------------------------------

    300. NERC and others believe that table-top exercises (or paper 
drills) are sufficient, and consistent with accepted practice used to 
test blackstart procedures. NERC cautions that full operational 
exercises may be extremely risky because many substations or power 
plants do not have backup or fully functional test systems. NERC, 
therefore, believes that a universal requirement for full operational

[[Page 44003]]

exercises may be unduly disruptive and burdensome to reliable 
operations.
    301. ISA Group and others support required periodic operational 
testing of restoration plans. California PUC recommends annual testing 
through a full operational exercise; and Allegheny supports operational 
exercises on a three-year cycle. Wisconsin Electric suggests that a 
one-time full operational test of the process would be beneficial. 
Georgia Operators supports periodic operational testing, with the 
caveat that each entity should determine whether the benefit is worth 
the costs and reliability risks associated with such an exercise. 
MidAmerican states that it could support full operational exercises for 
a limited number of critical assets.
Commission Proposal
    302. The Commission agrees with the commenters that stress the 
benefits of operational exercises; i.e., that potential problems, some 
of which could significantly impair reliability, will not be found 
without them. We do not believe that table-top exercises alone, on an 
ongoing basis, will suffice, given the increasing complexity and 
interconnection of control systems. Some commenters acknowledge the 
benefits of operational exercises, but believe they should occur only 
on a limited basis. We agree with this approach, with the cautionary 
note that technical feasibility and risks must be carefully weighed 
with the possible benefits. We acknowledge that some infrastructure 
facilities exist for which even limited operational exercises present 
unsuitable reliability risks. However, we conclude that benefits from 
operational exercises are sufficient that the industry as a whole 
should develop suitable operational exercises in the course of evolving 
good cyber security practices.
    303. Accordingly, the Commission proposes to direct the ERO to 
develop modifications to the Reliability Standard through its 
Reliability Standards development process to require a full operational 
exercise once every three years (unless an actual incident occurs), but 
to permit reliance on table-top exercises annually in other years. 
Further, we propose, in conjunction with the above proposed 
modification, that the ERO consider the appropriateness of a 
``technical feasibility'' option, in the limited fashion proposed 
earlier in this NOPR.\114\ For example, CIP-009-1 could be modified to 
allow for partial operational exercises, reduced from ``full 
operational exercises,'' only to the extent a responsible entity 
explains and documents, for a particular substation or a particular 
generating plant, technical infeasibility with the requisite interim 
actions, milestone schedules, and a mitigation plan, as described 
elsewhere in this NOPR.
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    \114\ See section II.A.5.b (Technical Feasibility and Acceptance 
of Risk).
---------------------------------------------------------------------------

    304. We note that NERC points out a lack of clarity of the term 
``full operational exercise.'' The Commission agrees and therefore 
proposes to direct the ERO, in conjunction with making the above 
modifications, to either define in its Glossary the term ``full 
operational exercise'' or provide more direction directly in the 
Reliability Standard as to the parameters of the term. As NERC and 
ReliabilityFirst note, many operational exercise practices include 
table-top components in significant proportions.
d. Recovery Plan Updates
    305. Requirement R3 requires the responsible entity to update the 
recovery plans to reflect any changes or lessons learned from an 
exercise or the recovery from an actual event. It requires plan updates 
to be communicated to the personnel responsible for activating or 
implementing the recovery plan within 90 days of the change. The CIP 
Assessment noted that individuals responsible for activation and 
implementation of process changes in the recovery plans must have the 
most current information available, and questions whether a 90-day time 
lag is consistent with this objective.
    306. NERC comments that a shorter time frame is impractical due to 
the number, kind and location of assets, especially field assets. Santa 
Clara agrees with the CIP Assessment that recovery plans must be 
updated as soon as possible after an event, but also states that 90 
days is reasonable for completion of training for all affected 
personnel. Santa Clara notes that it may not be feasible to include all 
shift schedules of personnel in training sessions in a timeline shorter 
than 90 days.
    307. ISO/RTO Council agrees with the CIP Assessment that that 
updates to such documents generally can be performed sooner than 90 
days. ISO/RTO Council suggests that timely updating should be a formal 
component of any assessment or review process, especially with regard 
to after-the-fact analyses and timely application of lessons learned. 
ISA Group states that a 90-day time lag to activate or implement 
process changes in recovery plans after deficiencies are discovered is 
not acceptable. ISA Group suggests up to one week to identify any 
process workarounds and 30 days to modify equipment as necessary.
Commission Proposal
    308. Requirement R3 of CIP-009-1 requires that updates to a 
recovery plan be communicated within 90 days to the personnel 
responsible for activating or implementing the recovery plan. The 
Commission is concerned that individuals responsible for activating and 
implementing the recovery plan must have the most current information 
available, and believes that a 90-day time lag between when a weakness 
in a recovery plan is discovered and when it is corrected and 
communicated to such responsible personnel is too long. Failure for 
such responsible personnel to have current information about a recovery 
plan could cause unnecessary delay in restoring critical cyber assets 
to service and thereby jeopardize the reliability of the Bulk-Power 
System. Therefore, the Commission proposes to direct the ERO to modify 
Requirement R3 of CIP-009-1 to shorten the timeline for updating 
recovery plans to 30 days, while continuing to allow up to 90 days for 
completing the communications of that update to responsible personnel. 
We believe a 30 day requirement for updating the recovery plans will 
promote timely incorporation of lessons learned during exercises and 
actual events. While key personnel should be informed as soon as 
possible, we agree with SPP and others that 90 days is reasonable for 
the completion of personnel training sessions, due to varied shifts 
schedules and other feasibility issues with regard to facility and 
organization.
e. Backup and Storage of Restoration Data
    309. Requirement R4 requires that a recovery plan include processes 
and procedures for the backup and storage of information necessary to 
successfully restore critical cyber assets. The CIP Assessment asserted 
that the Requirement should specify that, when significant changes are 
made to the operational control system, a backup should be made for 
recovery purposes and that it should be tested as part of the system 
change before it is stored and assumed to be operational.
    310. NERC and ReliabilityFirst state that this concern is mitigated 
by the generally accepted practice of maintaining multiple generations 
of backup. NERC states that ``backup made for recovery purposes'' is 
contained in the ``supporting configuration management activities'' 
clause of CIP-003-1, Requirement R6.

[[Page 44004]]

    311. Progress Energy agrees with the CIP Assessment that a backup 
should be tested before it is stored, but believes that the frequency 
of testing should be left to the discretion of the responsible entity. 
SPP asserts that backups should be routinely and regularly backed up, 
not just upon a significant change to the configuration. SPP notes that 
a properly configured backup and restoration testing process obviates 
the need to make special backups upon occurrence of the significant 
changes to existing critical assets defined by CIP-007-1, Requirement 
R1.
Commission Proposal
    312. The Commission proposes to instruct the ERO to modify this 
Reliability Standard to incorporate guidance that the backup and 
restoration processes and procedures required by Requirement R4 should 
include, at least with regard to significant changes made to the 
operational control system, verification that they are operational 
before the backups are stored or relied upon for recovery purposes.
    313. The Commission agrees with NERC that preserving multiple 
generations of restoration backups is common practice, and believes 
that competent and complete implementation of the CIP Reliability 
Standards would tend to include testing of recovery backups as they are 
created, also as a matter of good, efficient practice. However, we 
disagree with NERC that exercising these good practices is contained 
in, implied by, or readily understood from Requirement R6 of CIP-003-1. 
Adding language, such as ``these procedures are to include practices to 
test and verify the operability of the backup before it is stored and 
relied upon for recovery,'' would eliminate this ambiguity. As stated 
above, in our discussion of the change control processes required by 
Requirement R6 of CIP-003-1, the Commission reiterates its position, 
that there is a need for enhanced direction in issues related to proper 
change control. The CIP Reliability Standards should specifically state 
that a change control process should include procedures for a tested 
backup. No backups of any kind are mentioned in CIP-003-1, Requirement 
R6.
f. Testing of Backup Media
    314. Requirement R5 requires annual testing of information stored 
on backup media to ensure information essential to recovery is 
available. The CIP Assessment noted the criticality of such information 
being accessible in the event of an actual incident, noted that the 
Reliability Standard does not specify any actions to be taken in the 
event of a failure in testing, and asked whether such testing should 
also be conducted on a more frequent basis.
    315. NERC and ReliabilityFirst comment that, since the Reliability 
Standards cannot predict what technology will be used, they should not 
specify actions in response to testing. They believe that routine use 
of backups will serve to exercise the media more often than the 
specified one-year test. Likewise, Georgia System states that annual 
testing is more than adequate, even unnecessary, if no significant 
changes were made to the system; and more prescriptive Reliability 
Standards should be developed only if experience shows that discretion 
exercised in implementation of the Reliability Standards is abused.
    316. Santa Clara agrees with the CIP Assessment that testing of 
information stored on backup media is crucial to the integrity of those 
backup systems. It submits that such testing could be done on a 
periodic basis, and in an ``off-line'' mode if necessary. Santa Clara 
has found it beneficial to maintain more than one set of backups so 
that, if the latest backup fails, the previous backup has been tested 
and validated, leaving a ``Plan B'' restoration solution available 
until the latest backup system is corrected.
    317. Constellation adds that review of the backup and recovery 
plans is implicit if the annual review of the Cyber Security Policy 
already required by the CIP Reliability Standards is performed 
competently. SPP agrees that restoration testing is only one part of a 
more comprehensive backup plan, noting that the entity needs to have 
procedures to verify backups are successfully completed every cycle, 
and procedures for when the backup fails. SPP points out that failure 
to notice that a backup process has failed poses a far greater risk 
than infrequency of testing, as long as the backup process is properly 
managed.
Commission Proposal
    318. The Commission agrees with commenters that, if these CIP 
Reliability Standards are implemented in a full and competent manner, 
then adequate backup verification measures will probably be in place. 
Reliability Standards, however, demand a higher degree of certainty. 
The proposed Reliability Standards do not provide the guidance that SPP 
offers--that responsible entities need to have procedures to verify 
backups are successfully completed every cycle and to have recovery 
procedures in place for when the backup fails. The Commission agrees 
with SPP on this point.
    319. The Commission proposes to direct the ERO to modify this 
Reliability Standard to provide direction that backup practices include 
regular procedures to ensure verification that backups are successful 
and backup failures are addressed, thus guaranteeing that backups are 
available for future use. Insertion of language such as, ``backup 
procedures are to include regular verification of successful completion 
and procedures to address backup failures'' would satisfy this goal. We 
agree that inability to recognize the failure of a backup process poses 
a great risk, and that the annual restoration testing in this 
Requirement is adequate as long as the backup process is properly 
managed.
g. Commission Proposal Summary
    320. In summary, the Commission proposes to approve Reliability 
Standard CIP-009-1 as mandatory and enforceable. In addition, the 
Commission proposes to direct the ERO, pursuant to section 215(d)(5) of 
the FPA and Sec.  39.5(f) of our regulations to develop modifications 
to CIP-009-1 through its Reliability Standards development process 
that: (1) Clarify Requirement R1 to make clear that the required 
recovery plans must be implemented when the ``events or conditions of 
varying duration and severity'' occur; (2) incorporate use of good 
forensic data collection practices, and make clear that such practices 
should not impede or restrict system restoration and to consider 
whether it is necessary to include a ``technical feasibility'' 
provision with the parameters discussed above; (3) define in the NERC 
glossary the term ``full operational exercise'' or provide more 
direction directly in the Reliability Standard as to the parameters of 
the term; (4) require a full operational exercise once every three 
years (unless an actual incident occurs), but to permit reliance on 
table-top exercises annually in other years and consider the 
appropriateness of a technical feasibility option in connection with 
modified operational exercises; (5) shorten the timeline to updating 
recovery plans to 30 days, while continuing to allow up to 90 days to 
communicate those updates to responsible and affected personnel; (6) 
incorporate guidance that the backup and restoration processes and 
procedures required by Requirement R4 should include, at least with 
regard to significant changes made to the operational control system, 
verification that they are operational before the backups are stored or 
relied

[[Page 44005]]

upon for recovery purposes; and (7) provide direction that backup 
practices include regular procedures to ensure verification that 
backups are successful and available for future use.

C. Violation Risk Factors

1. Background
    321. In a separate filing, NERC submitted over 1,000 Violation Risk 
Factors, including 162 that correspond to Requirements of the proposed 
CIP Reliability Standards.\115\ While the Commission has addressed the 
Violation Risk Factors that correspond to the Requirements of the 
Commission-approved Reliability Standards, NERC requested that the 
Commission take action on the Violation Risk Factors when it takes 
actions on the associated Reliability Standards.\116\ Accordingly, the 
Commission will address the Violation Risk Factors that correspond to 
the CIP Reliability Standards in this proceeding.
---------------------------------------------------------------------------

    \115\ See NERC's March 23, 2007 filing in Docket No. RR07-10-
000, Exh. A.
    \116\ See North American Electric Reliability Corporation, 119 
FERC ] 61,145 (2007) (May 18 Order) (approving and modifying 
Violation Risk Factors).
---------------------------------------------------------------------------

    322. As part of its compliance and enforcement program, the ERO 
will use a three-step process to determine a monetary penalty for a 
standard violation. In the first of these steps, the ERO or Regional 
Entity will set an initial range for the base penalty amount for the 
violation. In order to accomplish this, the ERO or the Regional Entity 
will consider the applicable Violation Risk Factor \117\ and Violation 
Severity Level \118\ in the ``base penalty amount table'' in Appendix A 
to NERC's Sanction Guidelines. According to NERC, the base penalty 
amount table adds a measure of certainty for those subject to penalties 
and assists the ERO in executing its penalty authority.
---------------------------------------------------------------------------

    \117\ A Violation Risk Factor of lower, medium, or high is 
assigned to each Requirement of each mandatory Reliability Standard 
to associate a violation of the Requirement with its potential 
impact on the reliability of the Bulk-Power System.
    \118\ For each Requirement of a Reliability Standard, NERC will 
define up to four Violation Severity Levels-lower, moderate, high, 
and severe--as measurements of the degree to which a Requirement is 
violated. In a June 7, 2007 order, the Commission approved NERC's 
proposal to apply the current Levels of Non-Compliance in lieu of 
Violation Severity Levels, while NERC develops a comprehensive set 
of Violation Severity Levels by March 1, 2008. North American 
Electric Reliability Corp., 119 FERC ] 61,248 (2007).
---------------------------------------------------------------------------

    323. NERC states that a Violation Risk Factor has been assigned to 
each Requirement of the Version 1 Reliability Standards to delineate 
the relative risk to the Bulk-Power System associated with the 
violation of each Requirement, and the Violation Risk Factors do not 
change the meaning or intent of the Reliability Standards. NERC 
explains that it has defined the following three levels of Violation 
Risk Factors: (1) High risk requirement; (2) medium risk requirement; 
and (3) lower risk requirement.\119\
---------------------------------------------------------------------------

    \119\ See May 18 Order at P 9 (providing the complete definition 
of each level of Violation Risk Factor).
---------------------------------------------------------------------------

2. Commission Proposal
    324. In reviewing the proposed Violation Risk Factor assignments, 
the Commission has used the same guidelines it applied when evaluating 
NERC's submission of Violation Risk Factors as discussed in the May 18 
Order. Specifically, to determine whether the proposed Violation Risk 
Factor assignments appropriately indicate the potential or expected 
impact to the reliability of the Bulk-Power System, the Commission 
considered: (1) Consistency with the conclusions of the Final Report on 
the August 14, 2003 Blackout in the United States and Canada, (2) 
consistency within a Reliability Standard, i.e., among sub- and main 
Requirements of the same Reliability Standard, (3) consistency among 
Reliability Standards with similar Requirements, (4) consistency with 
NERC's proposed definition of the Violation Risk Factor level, and (5) 
assignment of a Violation Risk Factor level to those Requirements in 
certain Reliability Standards that co-mingle a higher risk reliability 
objective and a lesser risk reliability objective.\120\
---------------------------------------------------------------------------

    \120\ See May 18 Order at P 16-36. We also note that the May 18 
Order explained that this list is not necessarily comprehensive. The 
Commission retains the flexibility to consider additional guidelines 
in the future. Id. at n.12.
---------------------------------------------------------------------------

    325. Based on the application of these guidelines, and for the 
reasons explained below, the Commission proposes to approve the 162 
proposed Violation Risk Factor assignments that correspond to the 
Requirements of the CIP Reliability Standards and direct NERC to revise 
43 of them. In addition, the Commission notes that NERC did not assign 
Violation Risk Factors to the following nine Requirements and proposes 
to direct NERC to make these Violation Risk Factor assignments and file 
them for Commission approval:

CIP-002-1 Requirement R3.1
CIP-003-1 Requirement R4.1
CIP-003-1 Requirement R5.1.2
CIP-004-1 Requirement R2.2.2
CIP-004-1 Requirement R2.2.3
CIP-005-1 Requirement R1.5
CIP-007-1 Requirement R5.1
CIP-007-1 Requirement R5.3.3
CIP-007-1 Requirement R7

    326. NERC has assigned a ``lower'' designation to almost 85 per 
cent of the Violation Risk Factors corresponding to the Requirements of 
the CIP Reliability Standards. No Requirements received a ``higher'' 
Violation Risk Factor assignment. By definition, a ``lower'' Violation 
Risk Factor assignment means that the Requirement is administrative in 
nature where a violation of the Requirement would not be expected to 
affect the electrical state, capability, monitoring or control of the 
Bulk-Power System. The Commission believes that NERC has 
mischaracterized many of the Requirements as ``administrative,'' 
resulting in a ``lower'' Violation Risk Factor assignment, where in 
fact a ``medium'' or ``high'' designation is more appropriate.
    327. For example, CIP-002-1 Requirement R2, which requires the 
identification of assets that are critical to the Bulk-Power System, is 
assigned a ``lower'' Violation Risk Factor. While the product of the 
Requirement is a list of critical assets, this is clearly not an 
administrative Requirement. In fact, the failure to properly identify 
critical assets could place the Bulk-Power System at an unacceptable 
risk or restoration efforts could be hindered. Further, this 
Requirement has a controlling effect over all of the CIP Reliability 
Standards that follow. If an asset is critical and is not identified as 
such, the remaining CIP Reliability Standards will not be applied. 
Depending on the asset that is overlooked, and consequently not 
protected by the standards, a ``higher'' level of Bulk-Power System 
failure is possible. Thus, by NERC's definition, this Requirement 
should have a ``higher'' Violation Risk Factor assignment. In addition, 
the recommendations related to physical and cyber security contained in 
the Blackout Report,\121\ while largely addressed by the proposed CIP 
Reliability Standards, would essentially be thwarted if a responsible 
entity does not comply with Requirements R2 and R3 of CIP-002-1. 
Accordingly, we are proposing to direct NERC to modify this Requirement 
to denote a ``higher'' Violation Risk Factor assignment.
---------------------------------------------------------------------------

    \121\ Blackout Report at 163-169, Recommendations 32-44.
---------------------------------------------------------------------------

    328. Similarly, CIP-002-1 Requirement R3, which requires the 
identification of cyber assets that are essential to the operation of 
critical Bulk-Power System assets, has a ``medium'' Violation Risk 
Factor assignment. By definition, a ``medium'' Violation Risk Factor 
assignment means that the Requirement is unlikely, under

[[Page 44006]]

emergency, abnormal, or restoration conditions to lead to Bulk-Power 
System instability, separation, or cascading failures, nor to hinder 
restoration to a normal condition. However, if this Requirement is 
violated, the Bulk-Power System could in fact be at an unacceptable 
risk of failure or restoration efforts could be hindered. Further, this 
Requirement has a controlling effect over all of the CIP Reliability 
Standards that follow. As with CIP-002-1 Requirement R2, depending on 
the asset that is overlooked, and consequently not protected by the 
Reliability Standards, a higher level of Bulk-Power System failure is 
possible. Also, proper compliance with CIP-002-1, Requirement R3 is 
essential to the ability of the proposed CIP Reliability Standards to 
satisfy the recommendations of the Blackout Report.\122\ Thus, by 
NERC's definition this Requirement should have a ``higher'' Violation 
Risk Factor assignment. Accordingly, we are proposing to direct NERC to 
modify this Requirement to denote a ``higher'' Violation Risk Factor 
assignment.
---------------------------------------------------------------------------

    \122\ Id.
---------------------------------------------------------------------------

    329. The other modifications that the Commission is proposing to 
direct NERC to move the Violation Risk Factor from a ``lower'' to a 
``medium'' assignment. The Commission's primary reason for directing 
these changes is to promote implementation of the recommendations 
contained in the Blackout Report; to establish consistency within a 
Reliability Standard, i.e., among sub- and main Requirements of the 
same Reliability Standard; and consistency across Reliability 
Standards.
    330. The Commission proposes to approve the proposed Violation Risk 
Factor assignments filed by NERC and proposes to direct NERC to modify 
the Violation Risk Factors corresponding to the Requirements as 
illustrated in the attached list of proposed disposition actions for 
the proposed Violation Risk Factors.
    331. We propose to direct NERC to submit a filing containing these 
modifications within 60 days of the date of the Final Rule. We also 
propose to direct NERC to include in its filing a complete Violation 
Risk Factor matrix. The matrix should also include assignments for the 
missing Violation Risk Factor assignments discussed above.

III. Information Collection Statement

    332. The Office of Management and Budget (OMB) Regulations require 
that OMB approve certain reporting and recordkeeping (collections of 
information) imposed by an agency.\123\ The information collection 
requirements proposed in this NOPR are identified under the Commission 
data collection, FERC-725B ``Mandatory Reliability Standards for 
Critical Infrastructure Protection.'' These proposed information 
collections will be submitted to OMB for review under section 3507(d) 
of the Paperwork Reduction Act of 1995.\124\ In addition, OMB 
regulations require OMB to approve certain reporting and recordkeeping 
requirements imposed by agency rule.\125\
---------------------------------------------------------------------------

    \123\ 5 CFR 1320.11.
    \124\ 44 U.S.C. 3507(d).
    \125\ 5 CFR 1320.11.
---------------------------------------------------------------------------

    333. The ``public protection'' provisions of the Paperwork 
Reduction of 1995 requires each agency to display a currently valid 
control number and inform respondents that a response is not required 
unless the information collection displays a valid OMB control number 
on each information collection or provides a justification as to why 
the information collection control number cannot be displayed. In the 
case of information collections published in regulations, the control 
number is to be published in the Federal Register.
    334. Public Reporting Burden: The Commission developed its estimate 
of burden based upon the CIP Reliability Standards as proposed by NERC. 
The CIP Reliability Standards include only one actual reporting 
requirement. Specifically, CIP-008-1 requires responsible entities to 
report cyber security incidents to ESISAC. In addition, the eight CIP 
Reliability Standards require responsible entities to develop various 
policies, plans, programs and procedures. For example, each responsible 
entity must develop and document a risk-based assessment methodology to 
identify critical assets, which is then used to develop a list of 
critical cyber assets (CIP-002-1). A responsible entity that identifies 
any critical cyber assets must also document: a cyber security policy 
(CIP-003-1); a security awareness program (CIP-004-1, Requirement R1); 
a personnel risk assessment program (CIP-004-1, Requirement R3); an 
electronic security perimeter and processes for control of electronic 
access to all electronic access points to the perimeter (CIP-005-1, 
Requirements R1 and R2); a physical security plan (CIP-006-1); 
procedures for securing certain cyber assets (CIP-007-1); and recovery 
plans for critical cyber assets (CIP-008-1). The above is not an 
exhaustive list and, in addition, the CIP Reliability Standards require 
responsible entities to maintain various lists and access logs.
    335. The CIP Reliability Standards do not require a responsible 
entity to report to the Commission, ERO or Regional Entities the 
various policies, plans, programs and procedures. However, the 
documentation of the policies, plans, programs and procedures must be 
available to demonstrate compliance with the CIP Reliability Standards. 
The Commission has included the cost of developing the required 
documentation for the required policies, plans, programs and procedures 
in its burden estimate. The Commission, however, did not include in our 
burden estimate the cost of substantive compliance with the CIP 
Reliability Standards, separate from the requirements to develop 
specific documentation.
    In formulating our estimate of the reporting burden, the Commission 
has been guided by several factors.
    Number of Entities: As of April 2007, NERC identified 1,266 
registered entities in the United States. The Applicability section of 
each CIP Reliability Standard specifies nine categories of users, 
owners and operators of the Bulk-Power System (as well as NERC and the 
Regional Entities) that must comply with the CIP Reliability Standards. 
The nine categories of users, owners and operators are based on the 
categories of functions identified in the NERC Functional Model. Based 
on a review of NERC's registration list, the Commission estimates that 
approximately 1,000 entities will be required to comply with the CIP 
Reliability Standards.
    Variations in Compliance Burden: The Commission's estimate is based 
on all 1,000 entities documenting an assessment methodology to identify 
critical assets and critical cyber assets pursuant to CIP-002-1. As 
explained above, only those entities that identify critical cyber 
assets pursuant to CIP-002-1 are responsible to comply with the 
requirements of CIP-003-1 through CIP-009-1. Accordingly, the cost 
burden estimate differs for those entities that identify critical cyber 
assets and those that do not.
    Further, the reporting burden would vary with the number of 
critical cyber assets identified pursuant to CIP-002-1. An entity that 
identifies numerous critical cyber security assets, including assets 
located at remote locations, will likely require more resources to 
develop its policies, plans, programs and procedures compared to an 
entity that identifies one or two critical cyber assets, housed at a 
single location. Based on this distinction, the

[[Page 44007]]

Commission has developed separate estimates for large investor-owned 
utilities and other responsible entities such as municipals, generators 
and cooperatives.
    Customary Practices: Prior to the development of CIP-002-1 through 
CIP-009-1, NERC approved through its urgent action process a cyber 
security standard known as ``UA-1200,'' which applied to entities 
``such as control areas, transmission owners and operators, and 
generation owners and operators.'' UA-1200 addressed a number of the 
same reporting burdens as the CIP Reliability Standards at issue in 
this proceeding. For example, UA-1200 required the creation and 
maintenance of a cyber security policy, the identification of 
``critical cyber assets,'' and the development of a cyber security 
training program. Thus, entities that voluntarily complied with UA-1200 
will continue these practices when the mandatory CIP Reliability 
Standards are in effect.
    Further, many entities, including those that did not comply with 
UA-1200, typically have followed certain practices specified in the CIP 
Reliability Standards. The Commission believes that practices such as 
conducting cyber security training, having procedures for whom to 
contact in case of a cyber security incident, and developing a plan for 
how to restore a computerized control system should it fail are usual 
and customary practices in the electric industry and others. The 
Commission has taken such customary practices into account when 
estimating the reporting burden.
    Time Period: The CIP Reliability Standards were approved by the 
NERC board in May 2006, with a designated effective date of June 1, 
2006.\126\ The proposed implementation schedule submitted with the CIP 
Reliability Standards plans for responsible entities to be ``auditably 
compliant'' with most requirements by mid-2010 or later. Mid-2010 is 
four years after CIP Reliability Standards went into effect. Therefore, 
the Commission developed an annual burden estimate by dividing total 
costs by 4 years.
---------------------------------------------------------------------------

    \126\ Although NERC designated an effective date of June 1, 
2006, the CIP Reliability Standards are not mandatory and 
enforceable, i.e., subject to penalties for non-compliance, until 
they are approved by the Commission.

----------------------------------------------------------------------------------------------------------------
                                                     Number of       Number of       Hours per     Total annual
                 Data collection                    respondents      responses       response          hours
----------------------------------------------------------------------------------------------------------------
FERC-725B
    Large investor-owned utility................             155               1           2,080         322,400
    Others, including munis and coops...........             795               1           1,000         795,000
    Entities that have not identified critical                50               1             160           8,000
     cyber assets...............................
                                                 ---------------------------------------------------------------
        Totals..................................  ..............  ..............  ..............       1,125,400
----------------------------------------------------------------------------------------------------------------

    Information Collection Costs: The Commission seeks comments on the 
costs to comply with these requirements. It has projected the costs to 
be:
    Large investor-owned utility = 322,400 hours@$88 = $28,371,200.
    Others, including munis and coops = 795,000 hours@$88 = $69,960,000
    Entities that have not identified critical cyber assets = 8,000 
hours@$88 = $704,000.

    Because auditably compliant status is not required for many 
requirements until mid-2010, the Commission has projected the costs 
over a four-year period. On an annual basis the costs will be 
($28,371,200 + $69,960,000 + $704,000)/4 years = $24,758,800 per year. 
The hourly rate of $88 is a composite figure of the average cost of 
legal services ($200 per hour), technical employees ($39.99 per hour) 
and administrative support ($25 per hour), based on hourly rates from 
the Bureau of Labor Statistics (BLS). Using the May 2006 OES Industry-
Specific Occupational Employment and Wage Estimates, the median hourly 
rate wage estimate for a computer software engineer is $39.99.\127\
---------------------------------------------------------------------------

    \127\ See http://www.bls.gov/oes/current/naics2_22.htm.

---------------------------------------------------------------------------

    Title: Mandatory Reliability Standards for Critical Infrastructure 
Protection.
    Action: Proposed collection.
    OMB Control Number: To be determined.
    Frequency of responses: On occasion.
    Necessity for information: As discussed above, EPAct 2005 adds a 
new section 215 to the FPA, which requires a Commission-certified ERO 
to develop mandatory and enforceable Reliability Standards, which are 
subject to Commission review and approval. Once approved, the 
Reliability Standards may be enforced by the ERO subject to Commission 
oversight, or the Commission can independently enforce Reliability 
Standards. Pursuant to section 215 of the FPA, the Commission proposes 
in this NOPR to approve eight Critical Infrastructure Protection (CIP) 
Reliability Standards submitted to the Commission for approval by NERC. 
The CIP Reliability Standards require certain users, owners, and 
operators of the Bulk-Power System to comply with specific requirements 
to safeguard critical cyber assets. The information collections 
proposed in this NOPR are needed to protect the electric industry's 
Bulk-Power System against malicious cyber attacks that could threaten 
the reliability of the Bulk-Power System.
    336. Internal Review: The Commission has reviewed the CIP 
Reliability Standards proposed for approval in this NOPR and has made a 
preliminary determination that the proposed CIP Reliability Standards 
are necessary to safeguard the integrity of the nation's Bulk-Power 
System. The Commission has assured itself, by means of its internal 
review, that there is specific, objective support for the burden 
estimate associated with the information requirements (FERC-725B 
``Mandatory Reliability Standards for Critical Infrastructure 
Protection'') proposed to be imposed by this NOPR.
    337. Interested persons may obtain information on the reporting 
requirements by contacting the following: Federal Energy Regulatory 
Commission, 888 First Street, NE., Washington, DC 20426 (Attention: 
Michael Miller, Office of the Executive Director, 202-502-8415) or from 
the Office of Management and Budget (Attention: Desk Officer for the 
Federal Energy Regulatory Commission, fax: 202-395-7285, e-mail: 
oira_submission@omb.eop.gov).

    338. Comments concerning the collection of information(s) and the 
associated burden estimate(s), should be sent to the contact listed 
above and to the Office of Management and Budget, Office of Information 
and Regulatory Affairs, Washington, DC 20503 [Attention: Desk Officer 
for the Federal Energy Regulatory Commission, phone: (202) 395-7856, 
fax: (202) 395-7285].

[[Page 44008]]

IV. Environmental Analysis

    339. The Commission is required to prepare an Environmental 
Assessment or an Environmental Impact Statement for any action that may 
have a significant adverse effect on the human environment.\128\ The 
Commission has categorically excluded certain actions from these 
requirements as not having a significant effect on the human 
environment.\129\ The actions proposed here fall within categorical 
exclusions in the Commission's regulations for rules that are 
clarifying, corrective, or procedural, for information gathering, 
analysis, and dissemination, and for sales, exchange, and 
transportation of electric power that requires no construction of 
facilities.\130\ Therefore, an environmental assessment is unnecessary 
and has not been prepared in this NOPR.
---------------------------------------------------------------------------

    \128\ Order No. 486, Regulations Implementing the National 
Environmental Policy Act, 52 FR 47897 (Dec. 17, 1987), FERC Stats. & 
Regs. Preambles 1986-1990 ] 30,783 (1987).
    \129\ 18 CFR 380.4.
    \130\ See 18 CFR 380.4(a)(2)(ii), 380.4(a)(5), 380.4(a)(27).
---------------------------------------------------------------------------

V. Regulatory Flexibility Act Certification

    340. The Regulatory Flexibility Act of 1980 (RFA) \131\ generally 
requires a description and analysis of final rules that will have 
significant economic impact on a substantial number of small entities. 
In a NOPR, an agency must either include an initial regulatory 
flexibility analysis or certify that the proposed rule will not have a 
``significant impact on a substantial number of small entities.'' The 
Small Business Administration defines a small electric utility as one 
that has a total electric output of less than four million MWh in the 
proceeding year.
---------------------------------------------------------------------------

    \131\ 5 U.S.C. 601-612 (2006).
---------------------------------------------------------------------------

    341. The RFA requires agencies in drafting a proposed rule: (1) To 
assess the affect that their regulation will have on small entities; 
(2) to analyze effective alternatives that may minimize a regulation's 
impact; and (3) to make their analyses available for public 
comment.\132\ In its notice of proposed rule making (NOPR), the agency 
must either include an initial regulatory flexibility analysis (Initial 
RFA) \133\ or certify that the proposed rule will not have a 
``significant impact on a substantial number of small entities.'' \134\
---------------------------------------------------------------------------

    \132\ 5 U.S.C. 601-604 (2006).
    \133\ 5 U.S.C. 603(a) (2006).
    \134\ 5 U.S.C. 605(b) (2006).
---------------------------------------------------------------------------

Affect on small entities
    342. Our analysis shows that the DOE's Energy Information 
Administration (EIA) reports that there were 3,284 electric utility 
companies in the United States in 2005,\135\ and 3,029 of these 
electric utilities qualify as small entities under the SBA definition. 
Of these 3,284 electric utility companies, the EIA subdivides them as 
follows: (1) 883 cooperatives of which 852 are small entity 
cooperatives; (2) 1,862 municipal utilities, of which 1842 are small 
entity municipal utilities; (3) 127 political subdivisions, of which 
114 are small entity political subdivisions; (4) 159 power marketers, 
of which 97 individually could be considered small entity power 
marketers; \136\ (5) 219 privately owned utilities, of which 104 could 
be considered small entity private utilities; (6) 25 state 
organizations, of which 16 are small entity state organizations and (7) 
nine federal organizations of which four are small entity federal 
organizations.
---------------------------------------------------------------------------

    \135\ See Energy Information Administration Database, Form EIA-
861, Dept. of Energy (2005), available at http://www.eia.doe.gov/cneaf/electricity/page/eia861.html
.

    \136\ Most of these small entity power marketers and private 
utilities are affiliated with others and, therefore, do not qualify 
as small entities under the SBA definition.
---------------------------------------------------------------------------

    343. As explained above, the Commission is relying on NERC's 
compliance registry, applying the NERC Statement of Registry Criteria, 
to identify entities that must comply with the CIP Reliability 
Standards. To be included in the compliance registry, the ERO will have 
made a determination that a specific small entity has a material impact 
on the Bulk-Power System. Consequently, the compliance of such small 
entities is justifiable as necessary for Bulk-Power System reliability. 
Based on NERC's compliance registry as of June 2007, the Commission 
estimates that approximately 1,000 registered entities will be 
responsible for compliance with the CIP Reliability Standards. Of 
these, the Commission estimates that the CIP Reliability Standards will 
apply to approximately 632 small entities, consisting of 12 small 
investor-owned utilities and 620 small municipal and cooperatives.
    344. The Commission believes that the CIP Reliability Standards 
will not have a significant economic impact on a substantial number of 
small entities. The majority of small entities are not required to 
comply with mandatory Reliability Standards based on the application of 
the NERC Registry Criteria. Moreover, as explained above, a small 
entity that is registered but does not identify critical cyber assets 
pursuant to CIP-002-1 will not have compliance obligations pursuant to 
CIP-003-1 through CIP-009-1. While a small entity that identifies only 
a few critical cyber assets must comply with CIP-003-1 through CIP-009-
1, the Commission believes that the economic impact of such compliance 
will not be significant. Likewise, the housing of a limited number of 
critical cyber assets in a single location will lessen the economic 
impact of compliance.
    345. In addition, as discussed further below, while not required or 
proposed by this NOPR, small entities can, if they choose, collectively 
select a single consultant to develop model software and programs to 
comply with the proposals in this NOPR on their behalf. Such an 
approach could significantly reduce the costs that would be incurred if 
each company would address these issues independently.
    346. While there will be some portion of small entities that will 
have to expend significant amounts of resources on labor and technology 
to comply with the CIP Reliability Standards, the Commission believes 
that this will be a significant minority. Further, in such 
circumstances, the economic impact is justified as necessary to protect 
cyber security assets that support Bulk-Power System reliability.
Alternatives
    347. In Order No. 693, which approved 83 Reliability Standard for 
the Bulk-Power System, the Commission discussed several alternatives 
that are also applicable to the CIP Reliability Standards.\137\ Several 
of these have already been implemented such as the approval of the NERC 
definition of bulk electric system, which reduces significantly the 
number of small entities responsible for compliance with mandatory 
Reliability Standards.\138\ Further, the Commission adopted the NERC 
compliance registry process to identify the entities responsible for 
compliance with mandatory Reliability Standards.
---------------------------------------------------------------------------

    \137\ See Order No. 693 at P 1945.
    \138\ Id. at P 75, 1945.
---------------------------------------------------------------------------

    348. Another significant alternative is the ability for a small 
entity to join a joint action agency or similar organization. Such an 
organization may accept responsibility for compliance with mandatory 
Reliability Standards on behalf of its members and also may divide the 
responsibility for compliance with its members. The Commission 
generally approved the concept of joint action agencies in Order No. 
693 and directed NERC to submit implementing

[[Page 44009]]

procedures.\139\ NERC submitted revisions to its Rules of Procedure to 
allow for joint action agencies and similar organizations and, in an 
order issuing concurrently with this NOPR, the Commission approves 
NERC's joint action agency rules. These rules, supported by APPA, NRECA 
and others, will provide significant flexibility for small entities on 
how they will achieve compliance with the CIP Reliability Standards or 
to assign compliance responsibility to a central organization.
---------------------------------------------------------------------------

    \139\ Id. at P 107.
---------------------------------------------------------------------------

Certification
    349. Based on the above analysis, the Commission certifies that the 
proposed rulemaking will not have a significant impact on a substantial 
number of small entities.

 VI. Comment Procedures

    350. The Commission invites interested persons to submit comments 
on the matters and issues proposed in this notice to be adopted, 
including any related matters or alternative proposals that commenters 
may wish to discuss. Comments are due October 5, 2007. Comments must 
refer to Docket No. RM06-22-000, and must include the commenter's name, 
the organization they represent, if applicable, and their address in 
their comments. Comments may be filed either in electronic or paper 
format.
    351. Comments may be filed electronically via the eFiling link on 
the Commission's Web site at http://www.ferc.gov. The Commission 

accepts most standard word processing formats and requests commenters 
to submit comments in a text-searchable format rather than a scanned 
image format. Commenters filing electronically do not need to make a 
paper filing. Commenters that are not able to file comments 
electronically must send an original and 14 copies of their comments 
to: Federal Energy Regulatory Commission, Office of the Secretary, 888 
First Street, NE., Washington, DC 20426.
    352. All comments will be placed in the Commission's public files 
and may be viewed, printed, or downloaded remotely as described in the 
Document Availability section below. Commenters on this proposal are 
not required to serve copies of their comments on other commenters.

VII. Document Availability

    353. In addition to publishing the full text of this document in 
the Federal Register, the Commission provides all interested persons an 
opportunity to view and/or print the contents of this document via the 
Internet through FERC's Home Page (http://www.ferc.gov) and in FERC's 

Public Reference Room during normal business hours (8:30 a.m. to 5 p.m. 
Eastern time) at 888 First Street, NE., Room 2A, Washington DC 20426.
    354. From FERC's Home Page on the Internet, this information is 
available on eLibrary. The full text of this document is available on 
eLibrary in PDF and Microsoft Word format for viewing, printing, and/or 
downloading. To access this document in eLibrary, type the docket 
number excluding the last three digits of this document in the docket 
number field.
    355. User assistance is available for eLibrary and the FERC's Web 
site during normal business hours from FERC Online Support at (202) 
502-6652 (toll-free at 1-866-208-3676) or e-mail at 
ferconlinesupport@ferc.gov, or the Public Reference Room at (202) 502-

8371, TTY (202) 502-8659. E-Mail the Public Reference Room at 
public.referenceroom@ferc.gov.


List of Subjects in 18 CFR Part 39

    Administrative practice and procedure, Electric power, Penalties, 
Reporting and recordkeeping requirements.

    By direction of the Commission.
Kimberly D. Bose,
Secretary.
    [Note: The following appendices will not be published in the 
Code of Federal Regulations.]

                               Appendix A
------------------------------------------------------------------------
      List of Commenters
------------------------------------------------------------------------
Allegheny....................  Allegheny Power and Allegheny Energy
                                Supply Company.
AMP-Ohio.....................  American Municipal Power--Ohio, Inc.
APPA/LPPC....................  American Public Power Association and
                                Large Public Power Council.
ATC..........................  American Transmission Company, LLC.
Arizona Public Service.......  Arizona Public Service Company.
California PUC...............  California Public Utilities Commission.
Cleveland Public Power.......  City of Cleveland, Division of Public
                                Power.
Constellation................  Constellation Energy Group, Inc.
Dominion.....................  Dominion Resources, Inc.
Duke.........................  Duke Energy Corporation.
EEI..........................  Edison Electric Institute.
EPSA.........................  Electric Power Supply Association.
FirstEnergy..................  FirstEnergy Service Company.
Georgia System...............  Georgia System Operations Corporation.
ISA Group....................  Three members of the ISA-SP99.05
                                Leadership Group (Instrument Society of
                                America).
ISO/RTO Council..............  ISO/RTO Council.
ISO-NE.......................  ISO New England Inc.
MEAG Power...................  MEAG Power Motion to Intervene.
MidAmerican..................  MidAmerican Electric Operating Companies.
MITRE........................  MITRE Corporation.
National Grid................  National Grid USA.
NERC.........................  North American Electric Reliability
                                Corporation.
NIST.........................  National Institute of Standards and
                                Technology.
Northeast Utilities..........  Northeast Utilities Service Company (on
                                behalf of its transmission owning
                                affiliates, the NU Companies).
NRECA........................  National Rural Electric Cooperative
                                Association.
Ontario IESO.................  Ontario Independent Electricity System
                                Operator.
PG&E.........................  Pacific Gas and Electric Company.
PJM..........................  PJM Interconnection, LLC.

[[Page 44010]]


Progress Energy..............  Progress Energy, Inc.
ReliabilityFirst.............  ReliabilityFirst Corporation.
Santa Clara..................  City of Santa Clara, for its municipal
                                Silicon Valley Power.
SoCal Edison.................  Southern California Edison Company.
Southern.....................  Southern Company Services, Inc.
Southwest TDUs...............  Southwest Transmission Dependent Utility
                                Group.
SPP..........................  Southwest Power Pool, Inc.
Tampa Electric...............  Tampa Electric Company.
Wisconsin Electric...........  Wisconsin Electric Power Company.
Xcel.........................  Xcel Energy Services, Inc.
------------------------------------------------------------------------


                                               Appendix B.--Violation Risk Factors: Proposed Dispositions
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                            Violation risk factor
                                                                                                --------------------------------------------
           Standard No.                Requirement No.              Text of requirement                                     Commission        Guideline
                                                                                                     NERC proposal         determination
--------------------------------------------------------------------------------------------------------------------------------------------------------
CIP-002-1.........................  R1...................  Critical Asset Identification         LOWER...............  MEDIUM..............      1, 3, 4
                                                            Method--The Responsible Entity
                                                            shall identify and document a risk-
                                                            based assessment methodology to use
                                                            to identify its Critical Assets.
CIP-002-1.........................  R1.2.................  The risk-based assessment shall       LOWER...............  MEDIUM..............            2
                                                            consider the following assets:
CIP-002-1.........................  R2...................  Critical Asset Identification--The    LOWER...............  HIGH................      1, 3, 4
                                                            Responsible Entity shall develop a
                                                            list of its identified Critical
                                                            Assets determined through an annual
                                                            application of the risk-based
                                                            assessment methodology required in
                                                            R1. The Responsible Entity shall
                                                            review this list at least annually,
                                                            and update it as necessary
CIP-002-1.........................  R3...................  Critical Cyber Asset Identification-- MEDIUM..............  HIGH................      1, 3, 4
                                                            Using the list of Critical Assets
                                                            developed pursuant to Requirement
                                                            R2, the Responsible Entity shall
                                                            develop a list of associated
                                                            Critical Cyber Assets essential to
                                                            the operation of the Critical
                                                            Asset. Examples at control centers
                                                            and backup control centers include
                                                            systems and facilities at master
                                                            and remote sites that provide
                                                            monitoring and control, automatic
                                                            generation control, real-time power
                                                            system modeling, and real-time
                                                            interutility data exchange. The
                                                            Responsible Entity shall review
                                                            this list at least annually, and
                                                            update it as necessary. For the
                                                            purpose of Reliability Standard CIP-
                                                            002, Critical Cyber Assets are
                                                            further qualified to be those
                                                            having at least one of the
                                                            following characteristics:
CIP-003-1.........................  R1...................  Cyber Security Policy--The            LOWER...............  MEDIUM..............            1
                                                            Responsible Entity shall document
                                                            and implement a cyber security
                                                            policy that represents management's
                                                            commitment and ability to secure
                                                            its Critical Cyber Assets. The
                                                            Responsible Entity shall, at
                                                            minimum, ensure the following:
CIP-003-1.........................  R2...................  Leadership--The Responsible Entity    LOWER...............  MEDIUM..............            1
                                                            shall assign a senior manager with
                                                            overall responsibility for leading
                                                            and managing the entity's
                                                            implementation of, and adherence
                                                            to, Reliability Standards CIP-002
                                                            through CIP-009.
CIP-003-1.........................  R4...................  Information Protection--The           LOWER...............  MEDIUM..............            1
                                                            Responsible Entity shall implement
                                                            and document a program to identify,
                                                            classify, and protect information
                                                            associated with Critical Cyber
                                                            Assets.
CIP-004-1.........................  R2.1.................  This program will ensure that all     LOWER...............  MEDIUM..............            1
                                                            personnel having such access to
                                                            Critical Cyber Assets, including
                                                            contractors and service vendors,
                                                            are trained within 90 calendar days
                                                            of such authorization.
CIP-004-1.........................  R2.2.................  Training shall cover the policies,    LOWER...............  MEDIUM..............         1, 2
                                                            access controls, and procedures as
                                                            developed for the Critical Cyber
                                                            Assets covered by CIP-004, and
                                                            include, at a minimum, the
                                                            following required items
                                                            appropriate to personnel roles and
                                                            responsibilities:

[[Page 44011]]


CIP-004-1.........................  R2.2.4...............  Action plans and procedures to        LOWER...............  MEDIUM..............         1, 4
                                                            recover or re-establish Critical
                                                            Cyber Assets and access thereto
                                                            following a Cyber Security
                                                            Incident.
CIP-004-1.........................  R3...................  Personnel Risk Assessment--The        LOWER...............  MEDIUM..............      1, 3, 4
                                                            Responsible Entity shall have a
                                                            documented personnel risk
                                                            assessment program, in accordance
                                                            with federal, state, provincial,
                                                            and local laws, and subject to
                                                            existing collective bargaining unit
                                                            agreements, for personnel having
                                                            authorized cyber or authorized
                                                            unescorted physical access. A
                                                            personnel risk assessment shall be
                                                            conducted pursuant to that program
                                                            within 30 days of such personnel
                                                            being granted such access. Such
                                                            program shall at a minimum include:
CIP-004-1.........................  R4.2.................  The Responsible Entity shall revoke   LOWER...............  MEDIUM..............      1, 3, 4
                                                            such access to Critical Cyber
                                                            Assets within 24 hours for
                                                            personnel terminated for cause and
                                                            within seven calendar days for
                                                            personnel who no longer require
                                                            such access to Critical Cyber
                                                            Assets.
CIP-005-1.........................  R1.1.................  Access points to the Electronic       LOWER...............  MEDIUM..............      1, 2, 4
                                                            Security Perimeter(s) shall include
                                                            any externally connected
                                                            communication end point (for
                                                            example, dial-up modems)
                                                            terminating at any device within
                                                            the Electronic Security
                                                            Perimeter(s).
CIP-005-1.........................  R1.2.................  For a dial-up accessible Critical     LOWER...............  MEDIUM..............      1, 2, 4
                                                            Cyber Asset that uses a non-
                                                            routable protocol, the Responsible
                                                            Entity shall define an Electronic
                                                            Security Perimeter for that single
                                                            access point at the dial-up device.
CIP-005-1.........................  R1.3.................  Communication links connecting        LOWER...............  MEDIUM..............      1, 2, 4
                                                            discrete Electronic Security
                                                            Perimeters shall not be considered
                                                            part of the Electronic Security
                                                            Perimeter. However, end points of
                                                            these communication links within
                                                            the Electronic Security
                                                            Perimeter(s) shall be considered
                                                            access points to the Electronic
                                                            Security Perimeter(s).
CIP-005-1.........................  R1.4.................  Any non-critical Cyber Asset within   LOWER...............  MEDIUM..............      1, 2, 4
                                                            a defined Electronic Security
                                                            Perimeter shall be identified and
                                                            protected pursuant to the
                                                            requirements of Reliability
                                                            Standard CIP-005.
CIP-005-1.........................  R2...................  Electronic Access Controls--The       LOWER...............  MEDIUM..............      1, 2, 4
                                                            Responsible Entity shall implement
                                                            and document the organizational
                                                            processes and technical and
                                                            procedural mechanisms for control
                                                            of electronic access at all
                                                            electronic access points to the
                                                            Electronic Security Perimeter(s).
CIP-005-1.........................  R2.4.................  Where external interactive access     LOWER...............  MEDIUM..............         1, 2
                                                            into the Electronic Security
                                                            Perimeter has been enabled, the
                                                            Responsible Entity shall implement
                                                            strong procedural or technical
                                                            controls at the access points to
                                                            ensure authenticity of the
                                                            accessing party, where technically
                                                            feasible.
CIP-005-1.........................  R3...................  Monitoring Electronic Access--The     LOWER...............  MEDIUM..............         1, 2
                                                            Responsible Entity shall implement
                                                            and document an electronic or
                                                            manual process(es) for monitoring
                                                            and logging access at access points
                                                            to the Electronic Security
                                                            Perimeter(s) twenty-four hours a
                                                            day, seven days a week.
CIP-005-1.........................  R3.1.................  For dial-up accessible Critical       LOWER...............  MEDIUM..............            1
                                                            Cyber Assets that use non-routable
                                                            protocols, the Responsible Entity
                                                            shall implement and document
                                                            monitoring process(es) at each
                                                            access point to the dial-up device,
                                                            where technically feasible.
CIP-005-1.........................  R3.2.................  Where technically feasible, the       LOWER...............  MEDIUM..............            1
                                                            security monitoring process(es)
                                                            shall detect and alert for attempts
                                                            at or actual unauthorized accesses.
                                                            These alerts shall provide for
                                                            appropriate notification to
                                                            designated response personnel.
                                                            Where alerting is not technically
                                                            feasible, the Responsible Entity
                                                            shall review or otherwise assess
                                                            access logs for attempts at or
                                                            actual unauthorized accesses at
                                                            least every 90 calendar days.

[[Page 44012]]


CIP-005-1.........................  R4...................  Cyber Vulnerability Assessment--The   LOWER...............  MEDIUM..............         1, 2
                                                            Responsible Entity shall perform a
                                                            cyber vulnerability assessment of
                                                            the electronic access points to the
                                                            Electronic Security Perimeter(s) at
                                                            least annually. The vulnerability
                                                            assessment shall include, at a
                                                            minimum, the following:
CIP-005-1.........................  R4.2.................  A review to verify that only ports    LOWER...............  MEDIUM..............         1, 2
                                                            and services required for
                                                            operations at these access points
                                                            are enabled.
CIP-005-1.........................  R4.3.................  The discovery of all access points    LOWER...............  MEDIUM..............         1, 2
                                                            to the Electronic Security
                                                            Perimeter;
CIP-005-1.........................  R4.4.................  A review of controls for default      LOWER...............  MEDIUM..............         1, 2
                                                            accounts, passwords, and network
                                                            management community strings; and
CIP-005-1.........................  R4.5.................  Documentation of the results of the   LOWER...............  MEDIUM..............         1, 4
                                                            assessment, the action plan to
                                                            remediate or mitigate
                                                            vulnerabilities identified in the
                                                            assessment, and the execution
                                                            status of that action plan.
CIP-006-1.........................  R1.5.................  Procedures for reviewing access       LOWER...............  MEDIUM..............         1, 3
                                                            authorization requests and
                                                            revocation of access authorization,
                                                            in accordance with CIP-004
                                                            Requirement R4.
CIP-006-1.........................  R6.1.................  Testing and maintenance of all        LOWER...............  MEDIUM..............            2
                                                            physical security mechanisms on a
                                                            cycle no longer than three years.
CIP-007-1.........................  R1.1.................  The Responsible Entity shall create,  LOWER...............  MEDIUM..............         1, 2
                                                            implement, and maintain cyber
                                                            security test procedures in a
                                                            manner that minimizes adverse
                                                            effects on the production system or
                                                            its operation.
CIP-007-1.........................  R2...................  Ports and Services--The Responsible   LOWER...............  MEDIUM..............         1, 2
                                                            Entity shall establish and document
                                                            a process to ensure that only those
                                                            ports and services required for
                                                            normal and emergency operations are
                                                            enabled.
CIP-007-1.........................  R2.3.................  In the case where unused ports and    LOWER...............  MEDIUM..............         1, 2
                                                            services cannot be disabled due to
                                                            technical limitations, the
                                                            Responsible Entity shall document
                                                            compensating measure(s) applied to
                                                            mitigate risk exposure or an
                                                            acceptance of risk.
CIP-007-1.........................  R4...................  Malicious Software Prevention--The    LOWER...............  MEDIUM..............         1, 2
                                                            Responsible Entity shall use anti-
                                                            virus software and other malicious
                                                            software (``malware'') prevention
                                                            tools, where technically feasible,
                                                            to detect, prevent, deter, and
                                                            mitigate the introduction,
                                                            exposure, and propagation of
                                                            malware on all Cyber Assets within
                                                            the Electronic Security
                                                            Perimeter(s).
CIP-007-1.........................  R4.1.................  The Responsible Entity shall          LOWER...............  MEDIUM..............         1, 2
                                                            document and implement anti-virus
                                                            and malware prevention tools. In
                                                            the case where anti-virus software
                                                            and malware prevention tools are
                                                            not installed, the Responsible
                                                            Entity shall document compensating
                                                            measure(s) applied to mitigate risk
                                                            exposure or an acceptance of risk.
CIP-007-1.........................  R4.2.................  The Responsible Entity shall          LOWER...............  MEDIUM..............         1, 2
                                                            document and implement a process
                                                            for the update of anti-virus and
                                                            malware prevention ``signatures.''
                                                            The process must address testing
                                                            and installing the signatures.
CIP-007-1.........................  R5.1.3...............  The Responsible Entity shall review,  LOWER...............  MEDIUM..............         1, 2
                                                            at least annually, user accounts to
                                                            verify access privileges are in
                                                            accordance with Reliability
                                                            Standard CIP-003 Requirement R5 and
                                                            Reliability Standard CIP-004
                                                            Requirement R4.
CIP-007-1.........................  R5.2.1...............  The policy shall include the          LOWER...............  MEDIUM..............         1, 2
                                                            removal, disabling, or renaming of
                                                            such accounts where possible. For
                                                            such accounts that must remain
                                                            enabled, passwords shall be changed
                                                            prior to putting any system into
                                                            service.
CIP-007-1.........................  R5.2.3...............  Where such accounts must be shared,   LOWER...............  MEDIUM..............         1, 2
                                                            the Responsible Entity shall have a
                                                            policy for managing the use of such
                                                            accounts that limits access to only
                                                            those with authorization, an audit
                                                            trail of the account use (automated
                                                            or manual), and steps for securing
                                                            the account in the event of
                                                            personnel changes (for example,
                                                            change in assignment or
                                                            termination).

[[Page 44013]]


CIP-007-1.........................  R6.1.................  The Responsible Entity shall          LOWER...............  MEDIUM..............         1, 2
                                                            implement and document the
                                                            organizational processes and
                                                            technical and procedural mechanisms
                                                            for monitoring for security events
                                                            on all Cyber Assets within the
                                                            Electronic Security Perimeter.
CIP-007-1.........................  R6.2.................  The security monitoring controls      LOWER...............  MEDIUM..............         1, 2
                                                            shall issue automated or manual
                                                            alerts for detected Cyber Security
                                                            Incidents.
CIP-007-1.........................  R6.3.................  The Responsible Entity shall          LOWER...............  MEDIUM..............         1, 2
                                                            maintain logs of system events
                                                            related to cyber security, where
                                                            technically feasible, to support
                                                            incident response as required in
                                                            Reliability Standard CIP-008.
CIP-007-1.........................  R8.2.................  A review to verify that only ports    LOWER...............  MEDIUM..............         1, 3
                                                            and services required for operation
                                                            of the Cyber Assets within the
                                                            Electronic Security Perimeter are
                                                            enabled;
CIP-007-1.........................  R8.3.................  A review of controls for default      LOWER...............  MEDIUM..............         1, 3
                                                            accounts; and
CIP-007-1.........................  R8.4.................  Documentation of the results of the   LOWER...............  MEDIUM..............      1, 2, 3
                                                            assessment, the action plan to
                                                            remediate or mitigate
                                                            vulnerabilities identified in the
                                                            assessment, and the execution
                                                            status of that action plan.
--------------------------------------------------------------------------------------------------------------------------------------------------------

[FR Doc. E7-14710 Filed 8-3-07; 8:45 am]

BILLING CODE 6717-01-P
