[Federal Register Volume 87, Number 193 (Thursday, October 6, 2022)]
[Proposed Rules]
[Pages 60567-60580]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-21003]


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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Part 35

[Docket Nos. RM22-19-000; RM21-3-000]


Incentives for Advanced Cybersecurity Investment; Cybersecurity 
Incentives

AGENCY: Federal Energy Regulatory Commission, Department of Energy.

ACTION: Notice of proposed rulemaking; notice terminating proceeding.

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SUMMARY: The Federal Energy Regulatory Commission (Commission) proposes 
to revise its regulations to provide incentive-based rate treatments 
for the transmission of electric energy in interstate commerce and the 
sale of electric energy at wholesale in interstate commerce by 
utilities for the purpose of benefitting consumers by encouraging 
investments by utilities in advanced cybersecurity technology and 
participation by utilities in cybersecurity threat information sharing 
programs, as directed by the Infrastructure Investment and Jobs Act of 
2021 (Infrastructure and Jobs Act). This notice of proposed rulemaking 
(NOPR) also terminates the NOPR proceeding in Docket No. RM21-3-000

[[Page 60568]]

(December 2020 Cybersecurity Incentives NOPR).

DATES: As of October 6, 2022, the proposed rule published at 86 FR 8309 
on February 5, 2021, is withdrawn. Comments on this proposed rule are 
due November 7, 2022, and reply comments are due November 21, 2022.

ADDRESSES: Comments, identified by docket number, may be filed in the 
following ways. Electronic filing through https://www.ferc.gov, is 
preferred.
     Electronic Filing: Documents must be filed in acceptable 
native applications and print-to-PDF, but not in scanned or picture 
format.
     For those unable to file electronically, comments may be 
filed by USPS mail or by hand (including courier) delivery.
    [cir] Mail via U.S. Postal Service Only: Addressed to: Federal 
Energy Regulatory Commission, Secretary of the Commission, 888 First 
Street NE, Washington, DC 20426.
    [cir] Hand (including courier) Delivery: Deliver to: Federal Energy 
Regulatory Commission, 12225 Wilkins Avenue, Rockville, MD 20852.
    The Comment Procedures Section of this document contains more 
detailed filing procedures.

FOR FURTHER INFORMATION CONTACT: 
Kal Ayoub (Technical Information), Office of Electric Reliability, 
Federal Energy Regulatory Commission, 888 First Street NE, Washington, 
DC 20426, (202) 502-8863, [email protected].

David DeFalaise (Technical Information), Office of Electric 
Reliability, Federal Energy Regulatory Commission, 888 First Street NE, 
Washington, DC 20426, (202) 502-8180, [email protected].

Adam Pollock (Technical Information), Office of Energy Market 
Regulation, Federal Energy Regulatory Commission, 888 First Street NE, 
Washington, DC 20426, (202) 502-8458, [email protected].

Alan Rukin (Legal Information), Office of the General Counsel, Federal 
Energy Regulatory Commission, 888 First Street NE, Washington, DC 
20426, (202) 502-8502, [email protected].


SUPPLEMENTARY INFORMATION:

 
                            Table of Contents
 
                                                              Paragraph
                                                               numbers
 
I. Introduction............................................         1034
II. Background.............................................         1036
    A. Infrastructure Investment and Jobs Act of 2021......         1036
    B. Prior Commission Action on Cybersecurity Incentives.         1039
    C. Advanced Cybersecurity Technology and Information...         1040
        1. Advanced Cybersecurity Technology...............         1040
        2. Advanced Cybersecurity Technology Information...         1042
    D. Cybersecurity Threat Information Sharing Programs...         1042
III. Discussion............................................         1043
    A. Proposed Approaches to Request an Incentive.........         1043
        1. Eligibility Criteria............................         1044
        2. Proposed Approaches for Evaluating Cybersecurity         1046
         Expenditure Eligibility...........................
    B. Proposed Rate Incentives............................         1051
        1. ROE Adder.......................................         1054
        2. Deferral of Certain Cybersecurity Expenses for           1056
         Rate Recovery.....................................
        3. Performance-Based Rates.........................         1059
    C. Proposed Incentive Implementation...................         1060
        1. Cybersecurity ROE Incentive Duration............         1060
        2. Regulatory Asset Incentive Duration and                  1062
         Amortization Period...............................
        3. Filing Process..................................         1063
        4. Reporting Requirements..........................         1065
IV. Information Collection Statement.......................         1067
V. Environmental Assessment................................         1072
VI. Regulatory Flexibility Act.............................         1072
VII. Comment Procedures....................................         1074
VIII. Document Availability................................         1075
 

I. Introduction

    1. In this NOPR, the Commission proposes under section 219A of the 
Federal Power Act (FPA) \1\ to establish rules for incentive-based rate 
treatments for certain voluntary cybersecurity investments \2\ by 
utilities.\3\ These rules would make incentives available to utilities 
that make certain cybersecurity expenditures that enhance their 
security posture by improving their ability to protect against, detect, 
respond to, or recover from a cybersecurity threat and to utilities 
that participate in cybersecurity threat information sharing programs 
to the benefit of ratepayers and national security.
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    \1\ Infrastructure and Jobs Act, Public Law 117-58, section 
40123, 135 Stat. 429, 951 (to be codified at 16 U.S.C. 824s-1).
    \2\ In this NOPR, the term ``investments'' in cybersecurity 
technology means expenditures that can be either capitalized costs 
or expenses.
    \3\ Notwithstanding that Infrastructure and Jobs Act requires 
the Commission to offer incentives to ``public utilities,'' we 
propose to make rate incentives available to non-public utilities 
that have or will have a rate on file with the Commission, similar 
to Commission precedent under FPA section 219, 16 U.S.C. 824s. 
Therefore, all references in this NOPR to ``utilities'' are intended 
to include both public utilities and non-public utilities that have 
or will have a rate on file with the Commission.
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    2. First, we propose a regulatory framework on how a utility could 
qualify for incentives for eligible cybersecurity expenditures. Under 
this framework, we propose that eligible cybersecurity expenditures 
must: (1) materially improve cybersecurity through either an investment 
in advanced cybersecurity technology or participation in a 
cybersecurity threat information sharing program; and (2) not already 
be mandated by Critical Infrastructure Protection (CIP) Reliability 
Standards, or local, state, or Federal law. A utility would seek an 
incentive in a filing pursuant to FPA

[[Page 60569]]

section 205 \4\ and the incentive would be effective no earlier than 
the date of the Commission order approving the incentive request.
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    \4\ 16 U.S.C. 824d.
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    3. We propose to evaluate cybersecurity investments using a list of 
pre-qualified expenditures that are eligible for incentives determined 
by the Commission and publicly maintained on the Commission's website 
(PQ List). With the Commission having evaluated expenditures to include 
on the PQ List in advance, we believe that the PQ List approach would 
provide an efficient and transparent mechanism for determining 
appropriate cybersecurity expenditures that are eligible for 
incentives. We propose that any cybersecurity expenditure that is on 
the PQ List would be entitled to a rebuttable presumption of 
eligibility for an incentive. We also discuss and seek comment on a 
potential alternative approach, whereby a utility's cybersecurity 
expenditure would be evaluated on a case-by-case basis to determine if 
it is eligible for an incentive.
    4. Second, we propose two options for the type of incentive a 
utility could receive for an eligible cybersecurity expenditure: (1) a 
return on equity (ROE) adder of 200 basis points; or (2) deferred cost 
recovery for certain cybersecurity expenditures that enables the 
utility to defer expenses and include the unamortized portion in rate 
base.
    5. Third, we propose that any approved incentive(s) will remain in 
effect for five years from the date on which the cybersecurity 
investment(s) enters service or expenses are incurred, or expire 
earlier if other conditions discussed in this NOPR are met before the 
end of that five year period. We seek comment on the proposed duration 
and expiration conditions for incentives granted under this proposal.
    6. Finally, we propose that a utility that has received a 
cybersecurity incentive under this section must make an annual 
informational filing on June 1, as further discussed herein. The annual 
filing should detail the specific investments that were made pursuant 
to the Commission's approval and the corresponding FERC account 
used.\5\
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    \5\ See 18 CFR part 141.
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II. Background

A. Infrastructure Investment and Jobs Act of 2021

    7. On November 15, 2021, the Infrastructure and Jobs Act was signed 
into law.\6\ The Infrastructure and Jobs Act, in part, directs the 
Commission to revise its regulations to establish, by rule, incentive-
based, including performance-based, rate treatments for the 
transmission of electric energy in interstate commerce and the sale of 
electric energy at wholesale in interstate commerce by public utilities 
for the purpose of benefitting consumers by encouraging investments by 
public utilities in advanced cybersecurity technology \7\ and 
participation by public utilities in cybersecurity threat information 
sharing programs.
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    \6\ Infrastructure and Jobs Act, Public Law 117-58, 135 Stat. 
429.
    \7\ FPA section 219A(a)(1) defines the term advanced 
cybersecurity technology to mean any technology, operational 
capability, or service, including computer hardware, software, or a 
related asset, that enhances the security posture of public 
utilities through improvements in the ability to protect against, 
detect, respond to, or recover from a cybersecurity threat. 
Infrastructure and Jobs Act, Public Law 117-58, section 40123, 135 
Stat. 429, 951 (to be codified at 16 U.S.C. 824s-1(a)(1)). FPA 
section 219A(a)(2) defines the term advanced cybersecurity 
technology information to mean information relating to advanced 
cybersecurity technology or proposed advanced cybersecurity 
technology that is generated by or provided to the Commission or 
another Federal agency. Id. at 952 (to be codified at 16 U.S.C. 
824s-1(a)(2)).
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    8. As an initial step in the process of revising the Commission's 
regulations, the Infrastructure and Jobs Act directed the Commission to 
conduct a study, in consultation with certain entities,\8\ to identify 
incentive-based rate treatments, including performance-based rates, for 
the jurisdictional transmission and sale of electric energy that could 
support investments in advanced cybersecurity technology and 
participation by public utilities in cybersecurity threat information 
sharing programs.\9\ The Infrastructure and Jobs Act also required the 
Commission to submit a report to Congress (Report) detailing the 
results of the directed study. Following the passage of the 
Infrastructure and Jobs Act, Commission staff consulted with the 
specified entities to help identify incentive-based rate treatments 
that could enhance the security posture of the Bulk-Power System.\10\
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    \8\ The entities identified in the Infrastructure and Jobs Act 
are: Secretary of Energy; North American Electric Reliability 
Corporation (NERC); Electricity Subsector Coordinating Council 
(ESCC); and National Association of Regulatory Utility Commissioners 
(NARUC).
    \9\ Infrastructure and Jobs Act, Public Law 117-58, section 
40123, 135 Stat. 429, 952 (to be codified at 16 U.S.C. 824s-1(b)).
    \10\ The term Bulk-Power System is defined in FPA section 215 
and refers to: (1) facilities and control systems necessary for 
operating an interconnected electric energy transmission network (or 
any portion thereof); and (2) electric energy from generation 
facilities needed to maintain transmission system reliability. 16 
U.S.C. 824o(a)(1). With respect to CIP Reliability Standards, NERC 
uses the term ``bulk electric system'' (BES), which is generally 
defined as transmission facilities that are operated at 100 kV or 
higher and real power or reactive power resources connected at 100 
kV or higher. See NERC, Glossary of Terms Used in NERC Reliability 
Standards (March 29, 2022), https://www.nerc.com/files/glossary_of_terms.pdf.
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    9. On May 13, 2022, the Report was submitted to Congress.\11\ The 
Report, among other things, outlined prior Commission efforts to 
address incentives for cybersecurity initiatives. The Report provided 
information regarding potential incentive-based rate treatments and the 
Commission's general ratemaking authority, including the prior adoption 
of rate incentives and performance-based ratemaking in other contexts. 
In addition, the Report discussed challenges associated with adopting 
an incentive-based rate structure to enhance the security posture of 
the Bulk-Power System. The Report noted that, while advanced 
technologies that address cybersecurity threats may be innovative and/
or above and beyond industry standards at one time, they may 
subsequently become conventional, mandatory, or even antiquated and 
therefore may be less deserving of an incentive over time.
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    \11\ FERC, Incentives for Advanced Cybersecurity Technology 
Investment (May 2022).
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B. Prior Commission Action on Cybersecurity Incentives

    10. The Commission began assessing the potential use of incentives 
to improve cybersecurity prior to the passage of the Infrastructure and 
Jobs Act. On June 18, 2020, Commission staff issued a white paper to 
explore a potential framework for providing transmission incentives to 
utilities for cybersecurity investments that produce significant 
cybersecurity benefits for actions taken that exceed the requirements 
of the mandatory and enforceable CIP Reliability Standards.\12\ 
Following the issuance of the Cybersecurity White Paper, the Commission 
issued the December 2020 Cybersecurity Incentives NOPR on December 17, 
2020, proposing to allow utilities to request incentives for certain 
cybersecurity investments that go above and beyond the requirements of 
the CIP Reliability Standards.\13\
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    \12\ FERC, Cybersecurity Incentives Policy White Paper, Docket 
No. AD20-19-000, (June 2020) (Cybersecurity White Paper), https://www.ferc.gov/sites/default/files/2020-06/notice-cybersecurity.pdf.
    \13\ Cybersecurity Incentives, Notice of Proposed Rulemaking, 86 
FR 8309 (Feb. 5, 2021), 173 FERC ] 61,240 (2020).
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    11. In the December 2020 Cybersecurity Incentives NOPR, the 
Commission proposed two cybersecurity incentive approaches. The first 
approach, referred to as the NERC CIP Incentives Approach, would have 
allowed an entity to receive incentive-based rate treatment for 
voluntarily

[[Page 60570]]

applying identified CIP Reliability Standards to facilities that were 
not otherwise subject to those requirements. The second approach, the 
National Institute of Standards and Technology (NIST) Framework 
Approach, would have allowed an entity to receive incentive-based rate 
treatment for implementing certain security controls included in the 
NIST Framework \14\ that exceed the requirements of the CIP Reliability 
Standards.
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    \14\ NIST is part of the U.S. Department of Commerce that 
advances measurement science, standards, and technology. It has 
developed a voluntary Framework for Improving Critical 
Infrastructure Cybersecurity to ``address and manage cybersecurity 
risk in a cost-effective way based on business and organizational 
needs without placing additional regulatory requirements on 
businesses.'' NIST, Framework for Improving Critical Infrastucture 
Cybersecurity, v (Apr. 16, 2018), https://nvlpubs.nist.gov/nistpubs/CSWP/NIST.CSWP.04162018.pdf.
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    12. In light of the Congressional mandate in the Infrastructure and 
Jobs Act directing the Commission to establish cybersecurity 
incentives, this NOPR supersedes the December 2020 Cybersecurity 
Incentives NOPR, and that proceeding in Docket No. RM21-3-000 is hereby 
terminated.

C. Advanced Cybersecurity Technology and Information

1. Advanced Cybersecurity Technology
    13. As noted above, the Infrastructure and Jobs Act directs the 
Commission to, among other things, identify incentive-based rate 
treatments that could support investments in advanced cybersecurity 
technology. An advanced cybersecurity technology can be a product and/
or a service.\15\
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    \15\ See supra n.7 (defining advanced cybersecurity technology).
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    14. Cybersecurity products are generally hardware, software, and 
cybersecurity services that can be used for information technology 
systems and/or operational technology \16\ systems. Cybersecurity 
products can include, but are not limited to, security information and 
event management systems, intrusion detection systems, anomaly 
detection systems, encryption tools, data loss prevention systems, 
forensic toolkits, incident response tools, imaging tools, network 
behavior analysis tools, access management systems, configuration 
management systems, anti-malware tools, user behavior analytic 
software, event logging systems, and any system for access control, 
identification, authentication, and/or authorization control.
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    \16\ The NIST glossary defines ``operational technology'' as 
``programmable systems or devices that interact with the physical 
environment (or manage devices that interact with the physical 
environment). These systems/devices detect or cause a direct change 
through the monitoring and/or control of devices, processes, and 
events. Examples include industrial control systems, building 
management systems, fire control systems, and physical access 
control mechanisms.'' NIST, Computer Security Resource Center, 
Glossary (Mar. 10, 2022), https://csrc.nist.gov/glossary.
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    15. Cybersecurity services may be either automated or manual and 
can include, but are not limited to, system installation and 
maintenance, network administration, asset management, threat and 
vulnerability management, training, incident response, forensic 
investigation, network monitoring, data sharing, data recovery, 
disaster recovery, network restoration, log analytics, cloud network 
storage, and any general cybersecurity consulting service.
2. Advanced Cybersecurity Technology Information
    16. Advanced cybersecurity technology information may include, but 
is not limited to, plans, policies, procedures, specifications, 
implementation, configuration, manuals, instructions, accounting, 
financials, logs, records, and physical or electronic access lists 
related to or regarding the advanced cybersecurity technology. Some 
advanced cybersecurity technology information that is provided to the 
Commission may constitute critical energy/electric infrastructure 
information (CEII).\17\
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    \17\ 18 CFR 388.113.
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D. Cybersecurity Threat Information Sharing Programs

    17. The Infrastructure and Jobs Act also directs the Commission to 
identify incentive-based rate treatments that could support 
participation by public utilities in cybersecurity threat information 
sharing programs. Engagement with the entities as directed in the 
Infrastructure and Jobs Act informed the Commission of the existing 
barriers faced by utilities seeking to participate in these information 
sharing programs, which include the high costs associated with 
implementing monitoring technology and maintenance of sensor 
technology, the amount of time and effort required to share 
information, incurring fees to participate in information sharing 
programs, and concerns regarding the confidentiality of the information 
once shared.

III. Discussion

    18. To implement the statutory directive in the Infrastructure and 
Jobs Act, we propose to revise our regulations to provide a process for 
utilities to qualify for and then receive incentive-based rate 
treatments for eligible cybersecurity expenditures. For purposes of 
this NOPR, an ``expenditure'' includes both expenses and capitalized 
costs associated with advanced cybersecurity technology and 
participation in a cybersecurity threat information sharing program. We 
propose the following approach and then seek comments on our proposal 
in three sections: (1) Proposed Approaches to Request an Incentive, 
which discusses how a utility could qualify for incentives for eligible 
cybersecurity expenditures; (2) Proposed Rate Incentives, which 
describes the type of incentive a utility could receive for an eligible 
cybersecurity expenditure; and (3) Proposed Incentive Implementation, 
which discusses proposed duration and expiration conditions for 
incentives.

A. Proposed Approaches To Request an Incentive

    19. We propose to add Sec.  35.48(c) to our regulations to create a 
framework for evaluating whether certain cybersecurity expenditures, 
including expenses and capitalized costs, qualify for an incentive. 
First, we propose eligibility criteria to determine whether a 
cybersecurity expenditure is eligible for an incentive. Second, in 
Sec.  35.48(d) we propose to use a list of pre-qualified investments, 
the PQ List, to identify the types of cybersecurity expenditures that 
the Commission will find eligible for an incentive. In addition, we 
seek comment on whether a case-by-case approach should be used to 
evaluate whether certain cybersecurity expenditures are eligible for 
incentives.
1. Eligibility Criteria
    20. We propose that the utility seeking an incentive must 
demonstrate, at a minimum, that the expenditure: (1) would materially 
improve cybersecurity through either an investment in advanced 
cybersecurity technology or participation in a cybersecurity threat 
information sharing program(s); and (2) is not already mandated by CIP 
Reliability Standards, or otherwise mandated by local, state, or 
Federal law. With respect to the first criterion, we seek comment on 
whether, and if so how, the Commission should evaluate and ensure that 
the benefits of the expenditure exceed the combined costs of the 
expenditure and incentive, to ensure the proposed rates are just and 
reasonable. Further, we seek comment on whether these are the 
appropriate criteria and whether there are additional criteria or 
limitations that we should consider (e.g., whether the Commission 
should consider an obligation imposed

[[Page 60571]]

by a state commission as a condition for a merger to be ineligible for 
an incentive).
    21. Additionally, we propose that, in determining which 
cybersecurity expenditures will materially improve a utility's security 
posture, the Commission will consider the following sources: (1) 
security controls enumerated in the NIST SP 800-53 ``Security and 
Privacy Controls for Information Systems and Organizations'' catalog; 
\18\ (2) security controls satisfying an objective found in the NIST 
Cybersecurity Framework; \19\ (3) a specific recommendation from the 
Department of Homeland Security's (DHS) Cybersecurity and 
Infrastructure Security Agency (CISA) or from the Department of Energy 
(DOE); \20\ (4) a specific recommendation from the CISA Shields Up 
Campaign; \21\ (5) participation in the DOE Cybersecurity Risk 
information Sharing Program (CRISP) or similar information sharing 
program; and/or (6) the Cybersecurity Capability Maturity Model Domains 
at the highest Maturity Indicator Level.\22\ Using vehicles from DHS, 
DOE, and other agencies responsible for addressing sophisticated and 
rapidly evolving cyber threats as qualifiers for the consideration of 
incentives would allow the Commission to benefit from the expertise of 
other federal agencies and help ensure that the cybersecurity 
expenditures will be targeted and effective.
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    \18\ NIST, Special Publication 800-53, Revision 5, Security and 
Privacy Controls for Information Systems and Organizations, (Dec. 
12, 2020), https://www.nist.gov/privacy-framework/nist-privacy-framework-and-cybersecurity-framework-nist-special-publication-800-53.
    \19\ See NIST, Cybersecurity Framework, https://www.nist.gov/cyberframework.
    \20\ See, e.g., CISA, National Cyber Awareness System Alerts, 
https://www.cisa.gov/uscert/ncas/alerts.
    \21\ See CISA, Shields Up, https://www.cisa.gov/shields-up.
    \22\ See DOE, Cybersecurity Capability Maturity Model, https://www.energy.gov/ceser/cybersecurity-capability-maturity-model-c2m2.
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    22. We propose that, to be eligible for incentive-based rate 
treatment, cybersecurity expenditures must satisfy the first two 
criteria (i.e., materially improve cybersecurity and not already 
mandated). The eligibility criteria would apply to either of the two 
evaluation approaches discussed below (i.e., the PQ List or the case-
by-case approach). We seek comment on these criteria, including any 
potential refinements, and any other criteria for incentive eligibility 
that the Commission should adopt in the Final Rule.
2. Proposed Approaches for Evaluating Cybersecurity Expenditure 
Eligibility
    23. We propose adopting a PQ List approach, which would use a list 
of pre-qualified cybersecurity expenditures, consistent with the 
eligibility criteria that the Commission ultimately adopts. We also 
seek comment on the alternative use of a case-by-case approach.
    24. Under either approach, we propose that a utility make a filing 
pursuant to FPA section 205 for incentive-based rate treatment for 
those expenditures. Consistent with our precedent for incentives under 
FPA section 219, while a utility may first file a petition for 
declaratory order to seek a ruling on its eligibility for an incentive, 
a utility still must make a filing under FPA section 205 for Commission 
review of any rate changes. We propose that the incentive would be 
effective no earlier than the date of the Commission order granting the 
incentive under FPA section 205. A utility should seek CEII treatment, 
as appropriate, for any part of its filing seeking incentives that 
includes specific engineering, vulnerability, or detailed design 
information about proposed or existing critical infrastructure.\23\
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    \23\ See 18 CFR 388.113; see also 16 U.S.C. 824o-1.
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a. PQ List Approach
    25. We propose to create a PQ List that identifies expenditures 
that could warrant an incentive. Under this proposal, the PQ List will 
be codified at 35.48(d) of the Commission's regulations and a copy will 
be posted on the Commission's website.
    26. We propose that a utility seeking an incentive would be 
required to demonstrate that its cybersecurity expenditure qualifies as 
one or more of the PQ List items. Any cybersecurity expenditure that is 
on the PQ List would be entitled to a rebuttable presumption of 
eligibility for an incentive. Although the PQ List items would be 
entitled to a presumption of eligibility, the utility would still need 
to demonstrate, and the Commission would need to find, that the 
proposed rate, inclusive of the incentive, is just and reasonable. We 
propose to allow intervening parties to seek to rebut this presumption 
by demonstrating that the cybersecurity expenditure does not meet one 
or more of the eligibility criteria (e.g., that, given the unique 
circumstances of the utility, the expenditure for which the utility 
seeks an incentive would not materially improve cybersecurity or is 
otherwise mandatory for that utility) or the Commission could make this 
finding sua sponte.
    27. We believe that this PQ List approach would provide efficiency 
and transparency benefits. With the Commission having pre-reviewed 
potential PQ List items, we believe that utility-specific incentive 
filings could be substantially streamlined compared to use of a case-
by-case approach. We recognize, however, that this approach may limit 
expenditures eligible for incentives only to those on the PQ List and 
would require the Commission to review and update the PQ List on a 
regular basis, which introduces additional process and may delay the 
eligibility of cybersecurity expenditures for incentives.
i. Initial PQ List
    28. We propose to include two eligible cybersecurity expenditures 
on the PQ List initially: (1) expenditures associated with 
participation in the DOE CRISP; \24\ and (2) expenditures associated 
with internal network security monitoring within the utility's cyber 
systems, which could include information technology cyber systems and/
or operational technology cyber systems, and which could be associated 
with cyber systems that may or may not be subject to the CIP 
Reliability Standards. We believe investment in these cybersecurity 
expenditures would materially improve cybersecurity; \25\ and are not 
already mandated by CIP Reliability Standards \26\ or otherwise 
mandated by Federal law. We initially propose to include CRISP, as its 
purpose is to facilitate the timely bi-directional sharing of 
unclassified and classified threat information and to develop 
situational awareness tools that enhance the energy sector's ability to 
identify, prioritize, and coordinate the protection of critical 
infrastructure and key resources.\27\ However, we seek comments on 
whether to include other

[[Page 60572]]

information sharing programs on the PQ List.
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    \24\ See DOE, Energy Sector Cybersecurity Preparedness, https://www.energy.gov/ceser/energy-sector-cybersecurity-preparedness.
    \25\ E.g., both participation in CRISP and internal network 
security monitoring would fall under recommendations in the NIST SP 
800-53 ``Security and Privacy Controls for Information Systems and 
Organizations'' catalog.
    \26\ We note that, in January 2022, the Commission issued a NOPR 
that proposed to require NERC to develop a mandatory standard 
regarding internal network analysis and monitoring technologies for 
high and medium impact bulk electric system cyber systems. Internal 
Network Security Monitoring for High and Medium Impact Bulk Electric 
System Cyber Systems, Notice of Proposed Rulemaking, 87 FR 4173 
(Jan. 27, 2022), 178 FERC ] 61,038 (2022) (2022 INSM NOPR).
    \27\ DOE, Energy Sector Cybersecurity Preparedness, https://www.energy.gov/ceser/energy-sector-cybersecurity-preparedness.
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    29. We propose to include internal network security monitoring on 
the PQ List as we believe that internal network security monitoring may 
better position an entity to detect malicious activity that has 
circumvented perimeter controls.\28\ Further, while the currently 
effective CIP Reliability Standards do not require internal network 
security monitoring, NERC has recognized the proliferation and 
usefulness of such technology.\29\
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    \28\ 2022 INSM NOPR at P 11.
    \29\ See, e.g., NERC, ERO Enterprise CMEP Practice Guide: 
Network Monitoring Sensors, Centralized Collectors, and Information 
Sharing (June 4, 2021), https://www.nerc.com/pa/comp/guidance/CMEPPracticeGuidesDL/CMEP%20Practice%20Guide%20-%20Network%20Monitoring%20Sensors.pdf (explaining that NERC 
developed the guide in response to a U.S. DOE initiative ``to 
advance technologies and systems that will provide cyber visibility, 
detection, and response capabilities for [industrial control 
systems] of electric utilities.'' Id. at 1.).
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    30. Although we propose these two eligible cybersecurity 
expenditures for the initial PQ List, there may be other cybersecurity 
expenditures that would meet the statutory requirements and proposed 
eligibility criteria. Therefore, we seek comment on these and any 
additional cybersecurity expenditures to consider for inclusion on the 
initial PQ List
ii. Updating the PQ List
    31. Considering the rapidly evolving nature of cybersecurity 
threats and solutions, we expect to regularly evaluate the PQ List and 
update it as necessary. The eligibility criteria described above, or 
any future eligibility criteria the Commission adopts, would guide the 
Commission's decision on what to add, modify, or remove from the PQ 
List. As noted above, we propose that, if a cybersecurity expenditure 
on the PQ List becomes mandatory, it would no longer be eligible for an 
incentive as of the effective date of the mandate.\30\ The Commission 
would update the PQ List by adding, removing, or modifying 
cybersecurity expenditures, as needed, via a rulemaking, whether sua 
sponte or in response to a petition.
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    \30\ If a particular cybersecurity expenditure becomes mandatory 
with respect to a utility, the provisions of proposed 18 CFR 
35.48(f) would prohibit that utility from continuing to receive an 
incentive for the affected cybersecurity expenditure even if the 
Commission has not yet updated the PQ List.
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b. Case-by-Case Approach
    32. Another potential approach is to permit a utility to file for 
incentive-based rate treatment for any cybersecurity expenditure that 
satisfies the eligibility criteria discussed above, i.e., the utility 
could demonstrate that the expenditure is voluntary and materially 
improves cybersecurity through either an investment in advanced 
cybersecurity technology or participation in a cybersecurity threat 
information sharing program. Under this approach, the Commission would 
review each filing on a case-by-case basis, to determine whether the 
proposed cybersecurity expenditure is consistent with the eligibility 
criteria. If the Commission adopts a case-by-case approach, there would 
be no presumption of eligibility for any given cybersecurity 
expenditure. The utility would bear the full burden to demonstrate in 
its filing that its cybersecurity expenditure meets the Commission-
approved eligibility criteria, and, similar to the PQ list approach, 
demonstrate that its proposed rate, inclusive of the incentive, is just 
and reasonable. We seek comment on whether and, if so, how the 
Commission should implement a case-by-case approach.

B. Proposed Rate Incentives

    33. We propose the following rate incentives for utilities that 
make eligible cybersecurity investments: (1) an ROE adder of 200 basis 
points that would be applied to the incentive-eligible investments; and 
(2) deferral of certain eligible expenses for rate recovery, enabling 
them to be part of rate base such that a return can be earned on the 
unamortized portion. We believe both offer meaningful incentive to 
encourage cybersecurity expenditure that improves a utility's 
cybersecurity posture. Additionally, we seek comment on whether and how 
the principles of performance-based regulation could apply to utilities 
with respect to cybersecurity investments.
    34. Under Part II of the FPA, the Commission has jurisdiction over 
the transmission of electric energy in interstate commerce and the sale 
of electric energy at wholesale in interstate commerce by public 
utilities.\31\ With limited exceptions, transmission rates are based on 
the cost of providing transmission service (cost-of-service rates). 
Cost-of-service transmission rates are recovered either through a 
formula rate, for which the formula is the rate on file and most of the 
inputs change year to year based on inputs that are included in the 
FERC Form No. 1 or other financial forms,\32\ or a stated rate where 
the rate on file is based on an approved revenue requirement. Costs 
incurred to undertake cybersecurity activities can be included in 
various accounting categories,\33\ either as inputs to a formula rate 
as expenses or plant in the determination of the revenue requirement 
for a stated rate. The Commission has allowed costs related to security 
and reliability that are recovered through formula rates to include, 
for example, transmission plant (e.g., transmission line upgrades to 
harden the system), general and common plant, (e.g., software and 
computers), and administrative and general costs (e.g., labor and 
outside services, including services associated with utility-wide 
informational technology).\34\ Utilities recover the cost of expenses 
as a cost-of-service element in rates, but do not earn a return on 
them. Utilities recover costs of capitalized investments through 
depreciation and earn a return on the undepreciated amounts over the 
useful life of the investment.\35\
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    \31\ 16 U.S.C. 824-824w. Unlike FPA section 219, titled 
Transmission Infrastructure Investment, which gives the Commission 
the authority to offer incentives for the transmission of electric 
energy in interstate commerce, new FPA section 219A, titled 
Incentives for Cybersecurity Investments, gives the Commission the 
authority to offer incentives for the transmission of electric 
energy in interstate commerce as well as the sale of electric energy 
at wholesale in interstate commerce by public utilities.
    \32\ Doswell Ltd. P'ship v. Va. Elec. & Power Co., 62 FERC ] 
61,149, at 62,069 (1993).
    \33\ In the Notice of Proposed Rulemaking in Acct. & Reporting 
Treatment of Certain Renewable Energy Assets, 180 FERC ] 61,050 
(2022), the Commission proposes new accounts to more clearly specify 
how utilities must account for information technology hardware and 
software investments.
    \34\ See Boston Edison Co., 109 FERC ] 61,300, at P 40 (2004), 
order on reh'g, 111 FERC ] 61,266 (2005) (accepting proposed 
modifications to transmission formula rates to allow recovery of 
capitalized software costs incurred to safeguard the reliability and 
security of its transmission system).
    \35\ The Commission has also accepted utility proposals to 
recover security costs as part of a utility's stated (i.e., non-
formula) rates. See Pacific Gas & Elec. Co., 149 FERC ] 61,112 
(2014); Pacific Gas & Elec. Co., 146 FERC ] 61,034 (2014).
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    35. Most utility information technology investments (general and 
intangible plant) and expenses (administrative and general costs) 
support functions of the entire utility, not just the transmission 
function, and therefore only a portion of those costs are allocated to 
transmission customers, typically based on wages and salaries 
allocators.\36\
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    \36\ See, e.g., Midcontinent Independent System Operator 
Attachment O formula rate, 2-3 (stating that general and intangible 
plant and administrative and general costs are allocated to 
transmission rates based on a wages and salaries allocator).
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1. ROE Adder
    36. We propose to add Sec.  35.48(e)(1) to the Commission's 
regulations to allow a utility that makes cybersecurity

[[Page 60573]]

investments that are eligible for incentives, as more fully described 
above, to request an ROE adder of 200 basis points (Cybersecurity ROE 
Incentive) that would be applied to the incentive-eligible investments. 
Any incentive granted under this proposal would be subject to the total 
base and incentive return being capped at the top of the utility's zone 
of reasonableness.\37\ This Cybersecurity ROE Incentive is intended to 
encourage utilities to proactively make additional investments in 
cybersecurity systems. We believe that a 200-basis point ROE adder may 
be appropriate to provide a meaningful incentive to encourage utilities 
to improve their systems' cybersecurity. We recognize that this amount 
exceeds the ROE incentives for transmission facilities that the 
Commission typically provides pursuant to FPA section 219. However, 
given the relatively small cost of cybersecurity investments compared 
to conventional transmission projects, a higher ROE may be necessary to 
affect the expenditure decisions of utilities, without unduly burdening 
ratepayers. On balance, we believe that the Cybersecurity ROE Incentive 
satisfies the Congressional directive to benefit consumers by 
encouraging: (1) investments by utilities in advanced cybersecurity 
technology; and (2) participation by utilities in cybersecurity threat 
information sharing programs.
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    \37\ See, e.g., Emera Me. v. FERC, 854 F.3d 9, 23 (D.C. Cir. 
2017) (``The zone of reasonableness informs FERC's selection of a 
just and reasonable rate.''); see also Permian Basin, 390 U.S. 747, 
767 (1968) (stating that as long as the rate selected by the 
Commission is within the zone of reasonableness, the Commission is 
not required to adopt as just and reasonable any particular rate 
level).
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    37. We propose that enterprise-wide investments--which are not 
specific to transmission but a portion of which are recovered through 
transmission rates--may also be eligible for the 200 basis-point ROE 
adder incentive if the Commission determines that the investments merit 
incentives, based on the eligibility criteria described above. However, 
consistent with both longstanding cost-causation ratemaking principles 
\38\ and the statutory requirement that rates inclusive of incentives 
be just and reasonable, we propose that only the conventionally 
allocated portion of such investments that flows through to cost-of-
service rates on file with the Commission would be eligible for this 
rate treatment. For example, if a utility seeks an incentive for a 
cybersecurity investment that it made to its general plant facilities, 
both the underlying investment and associated incentive must be 
allocated based on conventions of the rates (e.g., the transmission 
share using a wages and salaries allocator for general plant in most 
transmission cost-of-service rates). With this limitation, we seek to 
ensure that the cybersecurity incentives policy adheres to the 
ratemaking principle of cost-causation by, for example, limiting a 
transmission customer's share of incentive costs to the share of such 
investments that serve transmission.
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    \38\ See Old Dominion Elec. Coop. v FERC, 898 F.3d 1254, 1255 
(D.C. Cir. 2018), (``For decades, the Commission and the courts have 
understood this requirement to incorporate a ``cost-causation 
principle''--the rates charged for electricity should reflect the 
costs of providing it.); see, e.g., Ala. Elec. Coop., Inc. v. FERC, 
684 F.2d 20, 27 (D.C. Cir. 1982).
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    38. We preliminarily find that the same expenditure should not be 
eligible for both the Cybersecurity ROE Incentive and the Regulatory 
Asset Incentive, discussed below. Given that regulatory asset treatment 
may be approved for costs that are normally treated as expenses (i.e., 
as regulatory assets, discussed below), we preliminarily find that 
costs that are allowed to be deferred as a regulatory asset should be 
included in rate base for determination of the base return but not for 
the additional return associated with the 200-basis point ROE adder.
2. Deferral of Certain Cybersecurity Expenses for Rate Recovery
    39. We propose to add Sec.  35.48(e)(2) to the Commission's 
regulations to allow a utility that makes cybersecurity investments 
that are eligible for incentives, as more fully described above, to 
seek deferred cost recovery. We believe that, in limited circumstances, 
it may be appropriate to allow a utility to defer recovery of certain 
cybersecurity costs that are generally expensed as they are incurred, 
and treat them as regulatory assets, while also allowing such 
regulatory assets to be included in transmission rate base (Regulatory 
Asset Incentive). Many costs associated with cybersecurity are in the 
form of expenses, often to third party vendors, rather than capital 
investments. Moreover, certain cost categories that companies 
historically have purchased and capitalized, such as software, are now 
often procured as services with periodic payments to vendors that are 
recorded as expenses. Therefore, to encourage investment in 
cybersecurity, we believe that it may be appropriate to allow utilities 
to defer and amortize eligible costs that are typically recorded as 
expenses including those that are associated with third-party provision 
of hardware, software, and computing and networking services. We 
propose that eligible expenses, that would otherwise be includable in 
cost-of-service as current period expenses, may receive an incentive by 
deferring such costs as regulatory assets if they are incurred after 
the effective date of the Commission order granting a utility's request 
for incentives. Additionally, we seek comment on whether it would be 
preferable to permit only 50% of incentive-eligible expenses to be 
treated as regulatory assets.
    40. A range of implementation costs associated with cybersecurity 
investments may be eligible for deferred rate treatment. Such costs may 
include, for example, training to implement new cybersecurity practices 
and systems. However, we propose that, to be eligible for the incentive 
of deferred cost recovery, such training costs must be distinct from 
costs associated with pre-existing training on cybersecurity practices. 
Another potentially eligible implementation cost may be internal system 
evaluations and assessments or analyses by third parties described 
above, to the extent that they are associated with a capitalizable item 
and are part of eligible capitalizable expenses. We propose that any 
implementation costs that are not conventionally booked as plant and 
thus capitalized can be considered for deferral as a regulatory asset. 
Recurring costs may be eligible for deferral as a regulatory asset and 
include, for example, subscriptions, service agreements, and post-
implementation training costs. Specifically, they may include ongoing 
dues for participation by utilities in cybersecurity threat information 
sharing programs that satisfy the Commission's incentive eligibility 
criteria described above.
    41. Because FPA section 219A(c)(2) directs the Commission to offer 
incentives to encourage participation by public utilities in 
cybersecurity threat information sharing programs, we seek comment on 
whether we should allow utilities who are already participating in an 
eligible cybersecurity threat information sharing program to seek to 
recover this incentive.
    42. We note that the Commission's rules and regulations in the 
Uniform System of Accounts \39\ already require public utilities to 
maintain records supporting any entries to the regulatory asset account 
so that the public utility can furnish full information as to the 
nature and amount of, and justification

[[Page 60574]]

for, each regulatory asset recorded in the account. Therefore, pursuant 
to our existing regulations, utilities must maintain sufficient records 
to support the distinction of any expenditures that are afforded 
incentive-based rate treatment.\40\
---------------------------------------------------------------------------

    \39\ See 18 CFR part 101, Account Definition Account 182.3, 
Other Regulatory Assets, paragraph D.
    \40\ Id.
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    43. Additionally, consistent with the proposal for the 
Cybersecurity ROE Incentive for eligible cybersecurity capital 
investments, we propose that only directly assigned transmission costs 
or the conventionally allocated portion of enterprise-wide expenses 
(e.g., using the wages and salaries allocator) would be eligible for 
the Regulatory Asset Incentive in transmission rates.
3. Performance-Based Rates
    44. Section 219A(c) of the FPA directs the Commission to establish 
incentive-based, including performance-based, rate treatments. 
Performance-based rate treatments can potentially reward utilities for 
achieving stated goals, as opposed to specific actions that only 
contribute to those goals. Because it is difficult to directly observe 
the level of effort a utility expends on ensuring cybersecurity, 
performance-based regulation could theoretically provide a valuable 
tool to motivate utilities to maintain and operate their systems 
reliably and efficiently. Performance-based ratemaking can take 
multiple forms, but ultimately requires the ability to measure and tie 
rate treatments to actual performance.
    45. We seek comment on performance-based rates and whether and how 
the principles of performance-based regulation could apply to utilities 
with respect to cybersecurity investments.\41\ We seek comment on 
specific cybersecurity performance metrics that could be subject to a 
performance standard. In particular, we seek comment on whether any 
widely accepted metrics for cybersecurity performance could lend 
themselves to be benchmarks needed for performance-based rates, or 
whether new appropriate metrics could be developed. We further seek 
comment on what rate mechanisms could accompany such metrics. We ask 
that any proposed mechanisms: (1) rely on cybersecurity performance 
benchmarks and not expenditures or practices; and (2) consider 
ratepayer impacts, given the relatively small costs of cybersecurity 
expenditures compared to utilities' overall cost-of-service.
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    \41\ Consistent with Order No. 679, which implemented FPA 
section 219, we interpret ``incentive-based, including performance-
based, rate treatments'' in FPA section 219A to require the 
Commission to consider performance-based rates as an option among 
incentive ratemaking treatments. Promoting Transmission Inv. through 
Pricing Reform, Order No. 679, 71 FR 43293 (July 31, 2006), 116 FERC 
] 61,057 (2006), order on reh'g, Order No. 679-A, 117 FERC ] 61,345 
(2006), order on reh'g, 119 FERC ] 61,062 (2007).
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C. Proposed Incentive Implementation

1. Cybersecurity ROE Incentive Duration
    46. We propose to add Sec.  35.48(f)(1) to the Commission's 
regulations to allow a utility granted a Cybersecurity ROE Incentive to 
receive that incentive until the earliest of: (1) the conclusion of the 
depreciation life of the underlying asset; (2) five years from when the 
cybersecurity investment(s) enter service; \42\ (3) the time that the 
investment(s) or activities that serve as the basis of that incentive 
become mandatory pursuant to a Reliability Standard approved by the 
Commission, or local, state, or Federal law; or (4) the recipient no 
longer meets the requirements for receiving the incentive. Incentive-
eligible cybersecurity investments primarily include equipment or 
system modifications that typically have short depreciation lives, as 
opposed to long-lived assets like physical structures. Thus, we believe 
that most cybersecurity incentives granted under this rulemaking would 
remain in effect until the conclusion of the depreciation life of the 
underlying asset. However, for investments with useful lives exceeding 
five years, we propose that the incentive end at the conclusion of five 
years from the time that the asset receiving the cybersecurity 
incentive entered service. The vast majority of information technology-
related investments feature expected useful lives and corresponding 
cost-of-service depreciation rates of no longer than five years. 
Consequently, we preliminarily find that five years is a reasonable 
expected life to encourage utilities to make an investment and to 
ensure just and reasonable rates. However, we seek comment on whether 
the proposed duration should be three years instead of five years.
---------------------------------------------------------------------------

    \42\ For participation in an information sharing program, the 
``investment'' would recur annually.
---------------------------------------------------------------------------

2. Regulatory Asset Incentive Duration and Amortization Period
    47. We propose to add Sec.  35.48(f)(3)(i) to the Commission's 
regulations to specify that a utility granted the Regulatory Asset 
Incentive must amortize the regulatory asset over five years.\43\ We 
believe that this may reflect the generally short-lived nature of 
cybersecurity activities and corresponds to the depreciation rates for 
investments described above. This period generally corresponds to the 
expected useful life and corresponding cost-of-service amortization 
period of cybersecurity investments.
---------------------------------------------------------------------------

    \43\ As noted above, the investment for participation in an 
information sharing program would recur annually.
---------------------------------------------------------------------------

    48. We also propose to add Sec.  35.48(f)(3)(ii) to the 
Commission's regulations to specify that a utility granted the 
Regulatory Asset Incentive may defer eligible expenses for up to five 
years from the date of Commission approval of the incentive. Under this 
provision, we propose that eligible expenses incurred for five years 
could be added to the regulatory asset that is allowed in rate base and 
amortized over five subsequent years, as discussed above.\44\ We 
preliminarily find that this limit is appropriate, given the 
potentially indefinite nature of certain expenses. Such a limit also 
reflects that cybersecurity risks and solutions evolve over time and 
matches the five-year maximum duration of the Cybersecurity ROE 
Incentive discussed above. We preliminarily find that a five-year limit 
appropriately balances the goal of providing an incentive of a 
sufficient size to encourage utilities to make eligible improvements in 
their cybersecurity posture with the requirement to protect ratepayers.
---------------------------------------------------------------------------

    \44\ We propose that, in their FPA section 205 filings, 
incentive recipients must include notes to their formula rates 
specifying the Commission order(s) which approved the incentive and 
stating that the associated regulatory asset incentive must 
terminate in the earlier of: (1) five years from the date of the 
later of the Commission approving the incentive or the expense being 
incurred; and (2) the expenditure becoming mandatory.
---------------------------------------------------------------------------

    49. However, we propose to make an exception to this sunsetting 
provision for eligible cybersecurity threat information sharing 
programs. FPA section 219A(c)(2) directs the Commission to provide 
incentives for participation in cybersecurity threat information 
sharing programs. We find that participation in such cybersecurity 
threat information sharing programs, which provide participants with 
ongoing updates about active cybersecurity threats and are therefore 
distinct from discrete cybersecurity investments that may become 
obsolete with the passage of time, warrants a different incentive 
treatment than other investments. Consequently, we propose that 
utilities be able to continue deferring these expenses and including 
them in their rate base for each annual tranche of expenses, for as 
long as: (1) the utility continues incurring costs for its 
participation in the program; and (2) the program remains eligible for 
incentives.

[[Page 60575]]

3. Filing Process
    50. We propose to add Sec.  35.48(g) to the Commission's 
regulations to require a utility's request for one or more incentive-
based rate treatments to be made in a filing pursuant to FPA section 
205.\45\ As proposed, such a request must include a detailed 
explanation of how the utility plans to implement one or both of the 
proposed incentive approaches and the requested rate treatment. We 
propose that utilities provide detail on the expenditures for which 
they seek incentives, and show how its cybersecurity-related 
expenditure(s) meet the eligibility requirements, as described in more 
detail below.
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    \45\ As discussed in section III.A.2., consistent with our 
precedent for incentives under FPA section 219, while a utility may 
first file a petition for declaratory order to seek a ruling on its 
eligibility for an incentive, a utility still must make a filing 
under FPA section 205 for Commission review of any rate changes.
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    51. In addition, under Sec.  35.48(g) of the proposed regulation, a 
utility seeking one or more incentive-based rate treatments must 
receive Commission approval prior to implementing any incentive in its 
rate on file with the Commission.\46\ In order to effectuate an 
incentive in rates, utilities would need to propose in their FPA 
section 205 filing conforming revisions to their formula rates, as 
appropriate, to reflect incentive rate treatment granted pursuant to 
these proposed regulations.\47\
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    \46\ We note that FPA section 219A(e)(2) expressly prohibits 
unjust and unreasonable double recovery for advanced cybersecurity 
technology.
    \47\ Utilities with stated rates may file under FPA section 205 
to seek incentives as part of a larger rate case or make a request 
for single issue ratemaking, which the Commission will evaluate on a 
case-by-case basis to ensure that the rate, inclusive of the 
incentive, is just and reasonable.
---------------------------------------------------------------------------

    52. Filings under the PQ List approach must provide evidence that 
the utility has made one or more pre-qualified cybersecurity 
expenditures and otherwise complies with all appropriate requirements.
    53. A utility requesting the Cybersecurity ROE Incentive must 
provide the anticipated cost of the capital investment and the identity 
of the rate schedule(s) on file with the Commission under which it will 
recover the increased ROE. Alternatively, a utility requesting the 
Regulatory Asset Incentive must provide a description of the covered 
expense(s), including whether the expense(s) are associated with the 
third-party provision of hardware, software, and computing network 
services or incurred for training to implement network analysis and 
monitoring programs, as well as an estimate of the cost of such 
expense(s) and when the cost is expected to be incurred.
4. Reporting Requirements
    54. In order to ensure that a utility receiving incentive rate 
treatment has implemented the requirements of the incentive and to 
ensure that it continues to adhere to the requirements, we propose to 
add Sec.  35.48(h) of the Commission's regulations to require utilities 
to submit informational reports to the Commission for the duration of 
the incentive.
    55. A utility that has received cybersecurity incentives under this 
section must make an annual informational filing by June 1, provided 
that the utility has received Commission-approval for the incentive at 
least 60 days prior to June 1 of that year. Utilities that receive 
Commission-approval for an incentive later than 60 days prior to June 1 
would be required to submit an annual informational filing beginning on 
June 1 of the following year.\48\ The annual filing should detail the 
specific investments, if any, as of that date, that were made pursuant 
to the Commission's approval and the corresponding FERC account for 
which expenditures are booked. For recipients of the Cybersecurity ROE 
Incentive, each annual informational filing should describe the parts 
of its network that it upgraded in addition to the nature and cost of 
the various investments. For recipients of the Regulatory Asset 
Incentive, each annual informational filing should describe such 
expenses in sufficient detail to demonstrate that such expenses are 
specifically related to the eligible cybersecurity investment 
underlying the incentives and not for ongoing services including system 
maintenance, surveillance, and other labor costs.
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    \48\ If a utility first receives Commission-approval for the 
incentive on April 1 or later, the initial annual informational 
filing would be due on June 1 of the following year.
---------------------------------------------------------------------------

    56. The Commission may also conduct periodic verification to assess 
cybersecurity investments and expenses for which it has approved 
incentives. The Commission could perform such verifications through 
multiple means (i.e., directing further informational filings, audits, 
etc.). The annual informational filings will inform the Commission on 
how and when any additional verification is warranted.

IV. Information Collection Statement

    57. The information collection requirements contained in this NOPR 
are subject to review by the Office of Management and Budget (OMB) 
under the Paperwork Reduction Act of 1995 at 44 U.S.C. 3507(d). OMB's 
regulations require approval of certain information collection 
requirements imposed by agency rules.\49\ Upon approval of a collection 
of information, OMB will assign an OMB control number and expiration 
date. Respondents subject to the filing requirements of this proposed 
rule will not be penalized for failing to respond to this collection of 
information unless the collection of information displays a valid OMB 
Control Number. This NOPR would establish the Commission's regulations 
with respect to the implementation of the Infrastructure and Job 
Act.\50\
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    \49\ 5 CFR 1320.11.
    \50\ Public Law 117-55, 135 Stat. 951 (2021) (to be codified at 
16 U.S.C. 824s-1).
---------------------------------------------------------------------------

    58. Interested persons may obtain information on the reporting 
requirements by contacting Ellen Brown, Office of the Executive 
Director, Federal Energy Regulatory Commission, 888 First Street NE, 
Washington, DC 20426, via email ([email protected]) or telephone 
((202) 502-8663).
    59. The Commission solicits comments on this collection of 
information within 60 days of the publication of this NOPR in the 
Federal Register. Public comments may include, but are not limited to, 
following topics: the Commission's need for this information, whether 
the information will have practical utility, the accuracy of the burden 
estimates, ways to enhance the quality, utility, and clarity of the 
information to be collected or retained, and any suggested methods for 
minimizing respondents' burden, including the use of automated 
information techniques.
    60. Please send comments concerning the collection of information 
and the associated burden estimates to: OMB through www.reginfo.gov/public/do/PRAMain, Attention: Federal Energy Regulatory Commission Desk 
Officer. Please identify the OMB Control Number 1902-0248 in the 
subject line.
    61. Instructions: OMB submissions must be formatted and filed in 
accordance with submission guidelines at: www.reginfo.gov/public/do/PRAMain; using the search function under the ``Currently Under Review 
field,'' select Federal Energy Regulatory Commission, click ``submit,'' 
and select ``comment'' to the right of the subject collection.
    62. Title: FERC-725B, Incentives for Advanced Cybersecurity 
Investment.
    63. Action: Proposed revision of FERC-725B.
    64. OMB Control No.: 1902-0248.

[[Page 60576]]

    65. Respondents for this Rulemaking: Public utilities and non-
public utilities that have or will have a rate on file with the 
Commission.
    66. Frequency of Information Collection:
    (1) On occasion: Voluntary filings seeking incentive-based rate 
treatment for cybersecurity expenditures; and
    (2) Annually: A informational filing on June 1 of each year, 
required of entities that have been granted incentive-based rate 
treatment for cybersecurity expenditures.
    67. Abstract: The NOPR would provide that a utility may seek 
incentive-based rate treatment for cybersecurity investments by making 
a rate filing in accordance with section 205 of the FPA. The NOPR 
states that one approach the Commission may use in evaluating such a 
filing is to consider whether prospective cybersecurity investments 
would match one of the types of investments listed at proposed 18 CFR 
35.48(d). The NOPR refers to this list of pre-qualified expenditures 
that are eligible for incentives as the ``PQ List.'' The Commission 
proposes that any cybersecurity expenditure that is on the PQ List 
would be entitled to a rebuttable presumption of eligibility for an 
incentive.
    The NOPR also discusses and seeks comment on a potential 
alternative approach, in which a utility's cybersecurity expenditure 
would be evaluated on a case-by-case basis to determine if it is 
eligible for an incentive. Under that approach, the utility would need 
to demonstrate that the prospective investment is voluntary and would 
materially improve cybersecurity through either an investment in 
advanced cybersecurity technology or participation in cybersecurity 
threat information sharing program. Under either approach, the utility 
would need to demonstrate that its rate, inclusive of the incentive, is 
just and reasonable.
    68. The NOPR also would provide that a utility that is granted 
incentive-based rate treatment must submit an annual informational 
filing to the Commission by June 1 of each year, provided that the 
utility has received Commission approval of the incentive at least 60 
days prior to June 1 of that year. Utilities that receive Commission 
approval of an incentive later than 60 days prior to June 1 would be 
required to submit an annual informational filing beginning on June 1 
of the following year. The informational filing must describe the 
specific investments, if any, as of that date, that were made pursuant 
to the Commission's approval and the corresponding FERC account for 
which expenditures are booked. For incentives where the Commission 
allows deferral of expenses, annual informational filings should 
describe such expenses in sufficient detail to demonstrate that such 
expenses are specifically related to the cybersecurity investment for 
which the incentive was granted, and not for ongoing services including 
system maintenance, surveillance, and other labor costs.
    69. Necessity of Information: Required to obtain or retain 
benefits.
    70. Internal Review: The Commission has reviewed the changes and 
has determined that such changes are necessary. These requirements 
conform to the Commission's need for efficient information collection, 
communication, and management within the energy industry. The 
Commission has specific, objective support for the burden estimates 
associated with the information collection requirements.
    71. The NERC Compliance Registry, as of August 5, 2022, identifies 
approximately 1,669 utilities, both public and non-public, in the U.S. 
that would be eligible for this proposed incentive and rate treatment. 
The Commission estimates that the NOPR may affect the burden \51\ and 
cost \52\ as follows:
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    \51\ ``Burden'' is the total time, effort, or financial 
resources expended by persons to generate, maintain, retain, or 
disclose or provide information to or for a Federal agency. For 
further explanation of what is included in the information 
collection burden, refer to 5 CFR 1320.3.
    \52\ Commission staff estimates that respondents' hourly wages 
(including benefits) are comparable to those of FERC employees in 
Fiscal Year 2022. Therefore, the hourly cost used in this analysis 
is $91 and $188,992 annually.

                                              FERC-725B--Proposed Changes in NOPR in Docket No. RM22-19-000
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                         C. Annual
                                                         estimated       D. Annual    E. Average burden hours
       A. Area of modification         B. Number of      number of       estimated        & cost  ($) per       F. Total estimated  burden hours & total
                                        respondents    responses per     number of            response                    estimated cost  ($)
                                                        respondent       responses
                                                                         (Column B x                           (Column D x Column E)
                                                                           Column C)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Voluntary filing seeking incentive                50               1              50  80 hours; $7,280.......  4,000 hours; $364,000.
 rate treatment for cybersecurity
 investment. Proposed 18 CFR
 35.48(b).
Annual informational filing required              50               1              50  40 hours; $3,640.......  2,000 hours; $182,000.
 where Commission has granted
 incentive rate treatment. Proposed
 18 CFR 35.48(h).
                                     -------------------------------------------------------------------------------------------------------------------
    Totals..........................  ..............  ..............  ..............  .......................  6,000 hours; $546,000.
--------------------------------------------------------------------------------------------------------------------------------------------------------

V. Environmental Assessment

    72. 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.\53\ The 
Commission has categorically excluded certain actions from this 
requirement as not having a significant effect on the human 
environment. Included in the exclusion are rules that are clarifying, 
corrective, or procedural or that do not substantially change the 
effect of the regulations being amended.\54\ The actions proposed 
herein fall within this categorical exclusion in the Commission's 
regulations.
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    \53\ Reg'ls. Implementing the Nat'l. Env'nt. Pol'y Act, Order 
No. 486, 52 FR 47897 (Dec. 17, 1987), FERC Stats. & Regs. Preambles 
1986-1990 ] 30,783 (1987) (cross-referenced at 41 FERC ] 61,284).
    \54\ 18 CFR 380.4(a)(2)(ii).

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[[Page 60577]]

VI. Regulatory Flexibility Act

    73. The Regulatory Flexibility Act of 1980 \55\ generally requires 
a description and analysis of proposed rules that will have significant 
economic impact on a substantial number of small entities. The Small 
Business Administration (SBA) sets the threshold for what constitutes a 
small business. Under SBA's size standards,\56\ transmission owners all 
fall under the category of Electric Bulk Power Transmission and Control 
(NAICS code 221121), with a size threshold of 500 employees (including 
the entity and its associates).\57\ The NERC Compliance Registry, as of 
August 5, 2022, identifies approximately 1,669 utilities, both public 
and non-public, in the U.S. that potentially would be affected by the 
voluntary information collection associated with the proposed incentive 
and rate treatment in this NOPR. Based on the Compliance Registry, we 
have reviewed a randomly selected sample of 92 entities, and we have 
determined that approximately 80% of the listed entities are small 
entities (i.e., with fewer than 500 employees).
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    \55\ 5 U.S.C. 601-612.
    \56\ 13 CFR 121.201.
    \57\ The threshold for the number of employees indicates the 
maximum allowed for a concern and its affiliates to be considered 
small.
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    74. Regarding information collection activities, we estimate an 
average one-time cost of $7,280 for each of 50 new filers, and an 
average annual cost of $3,640 for each of 50 continuing recipients of 
rate incentives.
    75. According to SBA guidance, the determination of significance of 
impact ``should be seen as relative to the size of the business, the 
size of the competitor's business, the number of filers received 
annually, and the impact this regulation has on larger competitors.'' 
\58\
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    \58\ U.S. Small Business Administration, A Guide for Government 
Agencies How to Comply with the Regulatory Flexibility Act, 18 (May 
2012), https://www.sba.gov/sites/default/files/advocacy/rfaguide_0512_0.pdf.
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    76. Moreover, this NOPR involves voluntary actions by utilities for 
the purpose of benefitting consumers by encouraging investments by 
utilities in advanced cybersecurity technology and participation by 
utilities in cybersecurity threat information sharing programs. The 
proposal does not mandate or require action by any utility. As a 
result, we certify that the proposals in this NOPR will not have a 
significant economic impact on a substantial number of small entities.

VII. Comment Procedures

    77. The Commission invites interested persons to submit comments on 
the matters and issues proposed in this NOPR to be adopted, including 
any related matters or alternative proposals that commenters may wish 
to discuss. Comments are due 30 days after the date of publication in 
the Federal Register, and reply comments are due 45 days after the date 
of publication in the Federal Register. Any comment must refer to 
Docket No. RM22-19-000, and must include the commenter's name, the 
organization it represents, if applicable, and its address in its 
comments. 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.
    78. The Commission encourages comments to be filed electronically 
via the eFiling link on the Commission's website at https://www.ferc.gov. The Commission accepts most standard word processing 
formats. Documents created electronically using word processing 
software must be filed in native applications or print-to-PDF format 
and not in a scanned format. Commenters filing electronically do not 
need to make a paper filing.
    79. Commenters that are not able to file comments electronically 
may file an original of their comments by USPS mail or by courier-or 
other delivery services. For submission sent via USPS only, filings 
should be mailed to: Federal Energy Regulatory Commission, Office of 
the Secretary, 888 First Street NE, Washington, DC 20426. Submission of 
filings other than by USPS should be delivered to: Federal Energy 
Regulatory Commission, 12225 Wilkins Avenue, Rockville, MD 20852.

VIII. Document Availability

    80. In addition to publishing the full text of this document in the 
Federal Register, the Commission provides all interested persons with 
an opportunity to view and/or print the contents of this document via 
the internet through the Commission's Home Page (https://www.ferc.gov).
    81. From the Commission'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 number in the 
docket number field.
    82. User assistance is available for eLibrary and the Commission's 
website during normal business hours from the Commission's Online 
Support at 202-502-6652 (toll free at 1-866-208-3676) or email at 
[email protected], or the Public Reference Room at (202) 502-
8371, TTY (202) 502-8659. Email the Public Reference Room at 
[email protected].

List of Subjects in 18 CFR Part 35

    Electric power rates, Electric utilities, Reporting and 
recordkeeping requirements.

    By direction of the Commission. Commissioner Phillips is 
concurring with a separate statement attached.

     Issued: September 22, 2022.
Debbie-Anne A. Reese,
Deputy Secretary.

    In consideration of the foregoing, the Commission proposes to amend 
part 35, chapter I, title 18, Code of Federal Regulations, as follows:

PART 35--FILING OF RATE SCHEDULES AND TARIFFS

0
1. The authority citation for part 35 continues to read as follows:

    Authority: 16 U.S.C. 791a-825r, 2601-2645; 31 U.S.C. 9701; 42 
U.S.C. 7101-7352.

0
2. Add subpart K, consisting of Sec.  35.48, to read as follows:

Subpart K--Cybersecurity Investment Provisions


Sec.  35.48  Cybersecurity investment.

    (a) Purpose. This section establishes rules for incentive-based 
rate treatments for utilities that voluntarily make cybersecurity 
investments as described in this section.
    (b) Incentive-based rate treatment for cybersecurity investment. 
The Commission will authorize incentive-based rate treatment for a 
utility that voluntarily makes an investment in advanced cybersecurity 
technology and for a utility that voluntarily participates in a 
cybersecurity threat information sharing program under this section. 
Incentive-based rate treatment is available to both public and non-
public utilities that have or will have a rate on file with the 
Commission. A utility may request incentive-based rate treatment for an 
eligible cybersecurity investment that meets the eligibility criteria 
set forth in paragraph (c) of this section.
    (c) Eligibility criteria. A utility may receive incentive-based 
rate treatment for a cybersecurity investment that:
    (1) Materially improves cybersecurity through either investment in 
advanced

[[Page 60578]]

cybersecurity technology or participation in a cybersecurity threat 
information sharing program; and
    (2) Is not already mandated by the mandatory and enforceable 
Critical Infrastructure Protection Reliability Standards as maintained 
by the Electric Reliability Organization, or otherwise mandated by 
local, state, or Federal law. A utility may receive incentive-based 
rate treatment for the investment pursuant to paragraphs (d) through 
(h) of this section.
    (d) Pre-qualified cybersecurity expenditure. A utility must 
demonstrate that a cybersecurity expenditure qualifies as one or more 
of the pre-qualified cybersecurity expenditures identified by the 
Commission pursuant to this paragraph (d). A utility should seek 
critical energy/electric infrastructure information treatment with the 
Commission, as appropriate, for any part of its filing seeking 
incentive-based rate treatment that has specific engineering, 
vulnerability, or detailed design information about proposed or 
existing critical infrastructure. Pre-qualified cybersecurity 
expenditures include:
    (1) Expenditures associated with participation in the Department of 
Energy's Cybersecurity Risk Information Sharing Program.
    (2) Expenditures associated with internal network security 
monitoring within the utility's cyber systems.
    (e) Types of incentive-based rate treatment for cybersecurity 
investment. For purposes of paragraph (b) of this section, incentive-
based rate treatment shall mean either of the following:
    (1) An increase in rate of return on equity of 200 basis points 
that would be applied to the incentive-eligible investment; or
    (2) Deferral of expenses as a regulatory asset;
    (f) Incentive duration. (1) A return on equity incentive-based rate 
treatment approved pursuant to this section shall last no longer than 
the earliest of:
    (i) The depreciation life of the underlying asset;
    (ii) Five years from when the cybersecurity investment enters 
service;
    (iii) When the cybersecurity investment or activity that serves as 
the basis of that incentive becomes mandatory; or
    (iv) When the utility no longer meets the requirements for 
receiving the incentive.
    (2) An incentive granted for participation in a qualified 
cybersecurity threat information sharing program will not be subject to 
a sunset, such that a utility participating in a qualified 
cybersecurity threat information sharing program is eligible to 
continue deferring expenses associated with membership, which for each 
year would be amortized over the next five years, for as long as it is 
a member and participation is not mandatory.
    (3) A deferred regulatory asset whose costs are typically expensed 
should be:
    (i) Amortized over a five-year period; and
    (ii) Limited to expenses incurred in the first five years following 
Commission approval of the incentive.
    (g) Incentive applications. For the purpose of paragraphs (b) and 
(c) of this section, a utility's request for one or more incentive 
based-rate treatments, to be made in a filing pursuant to section 205 
of the Federal Power Act, must include a detailed explanation of the 
proposed rate treatment and include the following information:
    (1) Evidence that it has made one or more pre-qualified 
cybersecurity expenditures and otherwise complies with all requirements 
of this section.
    (2) For applications requesting an increase in rate of return on 
equity of 200 basis points:
    (i) The anticipated cost of the capital investment; and
    (ii) The identity of the rate schedule(s) on file or to be filed 
with the Commission under which it will recover the increased return on 
equity.
    (3) For applications requesting deferred cost recovery:
    (i) A description of any expenses, including whether the expenses 
are:
    (A) Expenses associated with third-party provision of hardware, 
software, and computing networking services; and/or
    (B) Expenses for training to implement network analysis and 
monitoring programs;
    (ii) Estimates of the cost of such expenses; and
    (iii) When the costs are expected to be incurred.
    (h) Reporting requirements. A utility that has received an 
incentive under this section must make an annual informational filing 
on June 1, provided that the utility has received Commission-approval 
for the incentive at least 60 days prior to June 1 of that year. The 
annual filing should detail the specific investments that were made 
pursuant to the Commission's approval and the corresponding FERC 
account used. A utility that has received an incentive under this 
section must describe any parts of its network that it upgraded in 
addition to the nature and cost of the various investments. For 
incentives where the Commission allows deferral of expenses, annual 
informational filings should describe such expenses in sufficient 
detail to demonstrate that such expenses are specifically related to 
the cybersecurity investment granted incentives and not for ongoing 
services including system maintenance, surveillance, and other labor 
costs.

    Note: The following appendix will not appear in the Code of 
Federal Regulations.

UNITED STATES OF AMERICA

FEDERAL ENERGY REGULATORY COMMISSION

Incentives for Advanced Cybersecurity Investment, Docket Nos. RM22-19-
000, RM21-3-000

PHILLIPS, Commissioner, concurring:

    1. I concur in today's Notice of Proposed Rulemaking \1\ to 
highlight the importance of today's action and to encourage stakeholder 
comment in certain areas. In today's highly interconnected world, the 
nation's security and economic well-being depends on reliable and 
cyber-resilient energy infrastructure. This is why it is critical that 
we continue to build upon the mandatory framework that the industry has 
already identified through the North American Electric Reliability 
Corporation (NERC) Critical Infrastructure Protection (CIP) standards. 
But, these mandatory CIP standards are just a baseline and can take 
years to implement. Recent cyber-attacks in Ukraine and here at home 
remind us of the constant threat of foreign and domestic attacks on our 
critical infrastructure, and the need for advanced and innovative 
technology and threat information sharing programs for emerging 
threats. Therefore, I fully support this action we are taking under 
section 219A of the Federal Power Act (FPA) \2\ to encourage utilities 
to proactively make additional cybersecurity investments in their 
systems.
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    \1\ Incentives for Advanced Cybersecurity Investment, 180 FERC ] 
61,189 (2022) (NOPR).
    \2\ 16 U.S.C. 824s-1.
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    2. There are significant costs when there is a cybersecurity breach 
on the electric or gas system. Not only are consumers impacted by loss 
of service, but the recovery costs are significant. For example, the 
Colonial Pipeline cybersecurity breach effectively shut down half of 
the country's fuel supply, and even though the pipeline invested $200 
million dollars over five years to contain a potential attack,\3\ 
Colonial

[[Page 60579]]

Pipeline still spent millions more to recover from the event in 
2021.\4\
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    \3\ See Cyber Threats in the Pipeline: Using Lessons from the 
Colonial Ransomware Attack to Defend Critical Infrastructure, 
Hearing Before the Committee on Homeland Security, 117th Cong. 
(2021) (Statement of Joseph A. Blount).
    \4\ See Everhart v. Colonial Pipeline Company, 2022 WL 3699967, 
(N.D. Ga. 2022) (``Colonial paid the cybercriminals . . . a $4.4 
million ransom in return for a decryption tool that allowed Colonial 
to retrieve the encrypted or locked data.'').
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    3. This NOPR serves as a critical step to incent public and non-
public utilities to make urgent cybersecurity investments in advanced 
technology. First, the NOPR proposes to incentivize expenditures that 
materially improve the cybersecurity posture of utilities.\5\ Second, 
the NOPR provides that those cybersecurity investments must not already 
``be mandated by [CIP] Reliability Standards, or local, state, of 
federal law.'' \6\ Third, the NOPR proposes that the Commission either 
use a pre-qualified (PQ) list of approved cybersecurity expenditures, 
where any expenditures that meet the list would be entitled to a 
rebuttable presumption that the utility is eligible for an 
incentive,\7\ or that the Commission assess expenditures on a case-by-
case basis.\8\ Lastly, the NOPR proposes that if a utility meets the 
requirements for an incentive, it could either receive a return on 
equity (ROE) adder of 200 basis points or deferred cost recovery for 
expenditures that enables the utility to defer expenses and include the 
unamortized portion in rate base.\9\ All of these items are essential 
to improving utilities' ability to protect, detect, respond to, and 
recover from a cybersecurity threat.
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    \5\ NOPR at PP 2, 20, 22.
    \6\ NOPR at PP 2, 22.
    \7\ NOPR at PP 3, 19; see infra at PP 4-5.
    \8\ NOPR at PP 3, 19, 22-23.
    \9\ NOPR at PP 4, 34, 37.
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    4. Specifically, I am interested in feedback on whether the 
proposed PQ list is broad enough to include all expenditures that may 
warrant incentives. As proposed, if an expense is associated with 
participation in the Cybersecurity Risk Sharing Program (CRISP) \10\ or 
if an expenditure is associated with internal network security 
monitoring within the utility's cyber systems,\11\ there would be a 
rebuttable presumption that that expense is entitled to an incentive. I 
agree that each eligible cybersecurity expenditure on the PQ list 
should have a single, clear, and non-trivial benchmark that must be met 
for a utility to qualify for incentive rate treatment. But, the 
proposed PQ list is limited. For example, 75% of electricity customers 
in the continental U.S. are served by investor-owned utilities that 
already participate in CRISP,\12\ which demonstrates the limited 
potential benefits from this incentive. Under the NOPR proposal, it is 
unclear whether a utility that already participates in CRISP could 
receive an incentive for future subscription costs for continued CRISP 
participation. I encourage comments on whether any final rule should 
clarify that such continued CRISP participation is indeed entitled to 
an incentive.
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    \10\ Co-funded by the Department of Energy (DOE) and industry 
and managed by E-ISAC, CRISP is a public-private partnership that 
enables and manages the near real-time sharing of IT network 
information between electricity utilities and key DOE resources. The 
purpose of CRISP is to enable collaboration among energy sector 
partners to facilitate the timely bi-directional sharing of 
unclassified and classified threat information and to develop 
situational awareness tools that enhance the energy sector's ability 
to identify, prioritize, and coordinate the protection of critical 
infrastructure.
    \11\ The Commission issued a NOPR that proposed to direct NERC 
to develop a mandatory standard regarding internal network security 
monitoring in the context of high and medium impact bulk electric 
system. See Internal Network Security Monitoring for High and Medium 
Impact Bulk Electric System Cyber Systems, 178 FERC ] 61,038 (2022).
    \12\ See Energy Sector Cybersecurity Preparedness, available at: 
https://www.energy.gov/ceser/energy-sector-cybersecurity-preparedness.
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    5. I also recognize that a case-by-case approach, as opposed to the 
proposed PQ list, would be more adaptable and less prescriptive, 
allowing a variety of solutions that utilities could potentially tailor 
to their specific situations. However, given the diverse and evolving 
nature of cybersecurity activities, this option could be very time-
consuming and administratively inefficient. Thus, I believe that an 
expanded PQ list is a reasonable approach that would satisfy the 
applicable statutory directives while providing a high degree of 
certainty for regulated entities. I urge all interested stakeholders to 
provide comments on whether the Commission should widen the PQ list's 
universe of potential expenditures. I especially encourage stakeholders 
to comment on whether the Commission should consider external 
penetration tests, a security awareness program, a patch management 
program, and/or the capability to disconnect operational technology 
from the information technology network for the PQ list.
    6. I also want to underscore the need for utilities to conduct 
analyses of electric and gas interdependencies, and how such actions 
would benefit cybersecurity on the bulk electric system. I fully 
recognize that FPA section 219A states that the Commission can 
establish ``incentive-based, including performance-based, rate 
treatments for the transmission of electric energy in interstate 
commerce,'' \13\ and the Infrastructure Act only modified section 219 
regarding incentives and not the Natural Gas Act (NGA).\14\ However, 
electric and gas companies are especially vulnerable to cyberattacks, 
particularly because utilities that use both sources have an expansive 
and increasing attack surface, arising from their geographic and 
organizational complexity. Indeed, the electric and gas sector's unique 
interdependencies increase their vulnerability to exploitation, which 
can include the commandeering of the operational-technology system to 
stop energy infrastructure from working at times when consumers most 
need it. To the extent we can identify the need for cybersecurity 
information sharing between the natural gas and electric systems, and 
incentivize participation in such a program, I encourage stakeholder 
comment.
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    \13\ 16 U.S.C. 824s-1(c) (emphasis added).
    \14\ The Infrastructure Investment and Jobs Act (Infrastructure 
Act) modified Section 219 of the FPA regarding electric energy rate 
treatments and directed the Commission to consider incentives for 
the transmission of electric energy regarding cybersecurity. Section 
219 did not, however, explicitly reference or modify the NGA 
regarding gas incentives.
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    7. I further urge stakeholders to comment on whether the proposed 
duration of the incentives is sufficient and whether a 200-basis point 
adder is reasonable, as the NOPR contemplates.\15\ To be clear, I do 
not support open-ended or permanent cyber incentives. I believe the 5-
year proposed duration and the 200-basis point adder are adequate to 
properly incent utilities. Unlike expenses in the traditional 
transmission incentives context,\16\ the dollar amounts in 
cybersecurity investments are typically small. Yet, the benefits of 
additional, advanced cybersecurity investments cannot be ignored. 
Offering anything less than what is proposed would likely be

[[Page 60580]]

insufficient to incent any action by utilities, as required by 
Congress. Therefore, commenters should provide specific, compelling 
reasons if they oppose the NOPR proposal regarding the duration of the 
incentive and the amount added to a utility's ROE.
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    \15\ NOPR at PP 4, 33, 36-37; see, e.g., Initial Comments of 
Edison Electric Institute., Docket No. RM21-3-000, at 2 (filed April 
6, 2021) (``EEI agrees that given the relatively low dollar amounts 
associated with cybersecurity investments . . . the proposed 200 
basis point cap is reasonable.''); Comments of MISO Transmission 
Owners, Docket No. RM21-3-000, at 9 (filed April 6, 2021) 
(explaining why inclusion of enterprise-wide costs is appropriate to 
incent investment in critical facilities).
    \16\ Brattle-Grid Strategies Oct. 2021 Report at 2 (citing 
Johannes Pfeifenberger & John Tsoukalis, The Brattle Group, 
Transmission Investment Needs and Challenges, at slide 2 (June 1, 
2021), https://www.brattle.com/wp-content/uploads/2021/10/Transmission-Investment-Needs-and-Challenges.pdf); Johannes 
Pfeifenberger et al., The Brattle Group, Cost Savings Offered by 
Competition in Electric Transmission: Experience to Date and the 
Potential for Additional Customer Value, at 2-3 & fig.1 (Apr. 2019), 
available at: https://www.brattle.com/wp-content/uploads/2021/05/16726_cost_savings_offered_by_competition_in_electric_transmission.pdf (Brattle Apr. 2019 Competition Report).
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    8. Finally, I note that for years now, the White House, the U.S. 
Congress, and senior government leaders have sounded the alarm on 
increasing cybersecurity threats and their sophistication.\17\ I also 
note that the Commission began assessing the potential use of 
incentives to improve cybersecurity prior to the passage of the 
Infrastructure Act.\18\ While we are terminating the proceeding in 
Docket No. RM21-3-000, I am heartened that the Commission remains 
committed to this issue. I look forward to examining all the comments 
as we seek to issue a final rule around these topics.
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    \17\ For example, President Biden told utilities and other 
companies that ``critical infrastructure owners and operators must 
accelerate efforts to lock their digital doors.'' See Statement by 
President Biden on Our Nation's Cybersecurity, available at: https://www.whitehouse.gov/briefing-room/statements-releases/2022/03/21/statement-by-president-biden-on-our-nations-cybersecurity. President 
Biden has also since announced an executive order on cybersecurity 
and is using funds from the Infrastructure Act to provide grants to 
state, local, and territorial governments as they respond to cyber 
threats. See Exec. Order No. 14,028, 86 FR 26633 (2021). Former 
President Obama declared that cybersecurity threats are ``the most 
serious economic and national security challenge[ ] we face as a 
nation'' and that ``America's economic prosperity . . . will depend 
on cybersecurity.'' See National Security Council, Cyber Security, 
available at: http://www.whitehouse.gov/administration/eop/nsc/cybersecurity. Former Defense Secretary Leon Panetta warned that the 
country is ``increasingly vulnerable to foreign computer hackers who 
could dismantle the nation's power grid.'' See Elizabeth Bumiller 
and Thom Shanker, Panetta Warns of Dire Threat of Cyberattacks on 
U.S., The New York Times, October 11, 2021, available at: http://www.nytimes.com/2012/10/12/world/panetta-warns-of-dire-threat-of-cyberattack.html?pagewanted=all.
    \18\ See, e.g., FERC, Cybersecurity Incentives Policy White 
Paper, Docket No. AD20-19-000, (June 2020), available at: https://www.ferc.gov/sites/default/files/2020-06/notice-cybersecurity.pdf 
(discussing the potential new framework for providing transmission 
incentives to utilities for cybersecurity investments); 
Cybersecurity Incentives, 87 FR 4173 (Jan. 27, 2021), 173 FERC ] 
61,240 (2020) (proposing to allow utilities to request incentives 
for certain cybersecurity investments that go above and beyond the 
requirements of the CIP reliability standards). This NOPR supersedes 
the Cybersecurity Incentives NOPR, but it illustrates my colleagues' 
commitment to building out a more resilient electric system.
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    For these reasons, I respectfully concur.

Willie L. Phillips
Commissioner
[FR Doc. 2022-21003 Filed 10-5-22; 8:45 am]
BILLING CODE 6717-01-P


