[Federal Register Volume 88, Number 85 (Wednesday, May 3, 2023)]
[Rules and Regulations]
[Pages 28348-28380]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-08929]



[[Page 28347]]

Vol. 88

Wednesday,

No. 85

May 3, 2023

Part VI





Department of Energy





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Federal Energy Regulatory Commission





18 CFR Part 35





Incentives for Advanced Cybersecurity Investment; Final Rule

  Federal Register / Vol. 88 , No. 85 / Wednesday, May 3, 2023 / Rules 
and Regulations  

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Part 35

[Docket No. RM22-19-000; Order No. 893]


Incentives for Advanced Cybersecurity Investment

AGENCY: Federal Energy Regulatory Commission.

ACTION: Final rule.

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SUMMARY: The Federal Energy Regulatory Commission is revising its 
regulations to provide incentive-based rate treatment 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.

DATES: This rule is effective July 3, 2023.

FOR FURTHER INFORMATION CONTACT: 
David DeFalaise (Technical Information), Office of Electric 
Reliability, Federal Energy Regulatory Commission, 888 First Street NE, 
Washington, DC 20426, (202) 502-8180, [email protected].
Ryan Maca (Technical Information), Office of Energy Infrastructure 
Security, Federal Energy Regulatory Commission, 888 First Street NE, 
Washington, DC 20426, (202) 502-6129, [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 J. 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............................................            1
II. Background.............................................            3
    A. Infrastructure Investment and Jobs Act of 2021......            3
        1. Advanced Cybersecurity Technology...............            4
        2. Cybersecurity Threat Information Sharing                    7
         Programs..........................................
    B. Study and Report to Congress........................            8
    C. NOPR................................................           10
III. Discussion............................................           17
    A. Cybersecurity Investments...........................           18
        1. Utilities Eligible To Request Rate Incentives              19
         for Cybersecurity Investments.....................
        2. Cybersecurity Investment Definitions............           27
        3. Cybersecurity Investment Eligibility Criteria...           28
    B. Cybersecurity Investment Incentive Requests.........           54
        1. PQ List Approach................................           55
        2. Case-by-Case Approach...........................          100
        3. Early Compliance With Approved Reliability                112
         Standards.........................................
    C. Cybersecurity Investment Rate Incentives............          120
        1. Cybersecurity ROE Incentive.....................          122
        2. Cybersecurity Regulatory Asset Incentive........          135
        3. Performance-Based Rates.........................          155
    D. Cybersecurity Investment Incentive Implementation...          161
        1. Cybersecurity ROE Incentive Duration............          161
        2. Cybersecurity Regulatory Asset Incentive                  165
         Duration and Amortization Period..................
        3. Filing Process..................................          174
        4. Reporting Requirements..........................          192
    E. Other Issues........................................          204
        1. Comments........................................          204
        2. Commission Determination........................          206
IV. Information Collection Statement.......................          207
V. Environmental Analysis..................................          213
VI. Regulatory Flexibility Act.............................          214
VII. Document Availability.................................          215
VIII. Effective Date and Congressional Notification........          218
 

I. Introduction

    1. In this final rule, the Federal Energy Regulatory Commission 
revises its regulations pursuant to section 219A of the Federal Power 
Act (FPA) \1\ to add subpart K, consisting of Sec.  35.48, to our 
regulations to establish rules for incentive-based rate treatment for 
certain voluntary cybersecurity investments \2\ by utilities \3\ as 
described in this final rule. These rules make incentive-based rate 
treatment available to utilities that make voluntary cybersecurity 
investments in Advanced Cybersecurity Technology \4\ that

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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. The Commission is issuing this final rule to comply 
with FPA section 219A(c).\5\ This voluntary cybersecurity incentive-
based rate treatment is for the purpose of benefitting consumers by 
encouraging cybersecurity investments in Advanced Cybersecurity 
Technology and in participation in cybersecurity threat information 
sharing programs.\6\
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    \1\ Infrastructure Investment and Jobs Act of 2021, Public Law 
117-58, section 40123, 135 Stat. 429, 951 (to be codified at 16 
U.S.C. 824s-1) (IIJA).
    \2\ In this final rule, the term investments includes 
expenditures that can be either capitalized costs or expenses.
    \3\ Notwithstanding that FPA section 219A requires the 
Commission to offer incentives to public utilities, as discussed in 
section III.A.1. of this final rule, we make rate incentives also 
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. We intend that all references in this 
final rule to utilities include both public utilities and non-public 
utilities that have or will have a rate on file with the Commission.
    \4\ 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. IIJA, 
Public Law 117-58, section 40123, 135 Stat. at 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)).
    \5\ IIJA, Public Law 117-58, section 40123, 135 Stat. at 952 (to 
be codified at 16 U.S.C. 824s-1(c)).
    \6\ Id.
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    2. We establish a regulatory framework for utilities to request 
incentive-based rate treatment for certain voluntary cybersecurity 
investments.\7\ Under this framework, we: (1) identify the utilities 
permitted to request incentive-based rate treatment for cybersecurity 
investments; (2) establish the criteria that the Commission will use to 
determine whether a cybersecurity investment is eligible to receive an 
incentive-based rate treatment; (3) discuss the approaches that a 
utility may use to demonstrate that a cybersecurity investment 
satisfies the eligibility criteria; (4) explain the types of incentive-
based rate treatments available for qualifying cybersecurity 
investments; (5) set limits on the duration of the incentive-based rate 
treatment; (6) describe what utilities must include in their 
applications for incentive-based rate treatment for cybersecurity 
investments; and (7) establish the annual reporting requirements for 
utilities that receive incentive-based rate treatment for their 
cybersecurity investments.
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    \7\ Incentives for Advanced Cybersecurity Investment, Notice of 
Proposed Rulemaking, 87 FR 60567 (Oct. 6, 2022), 180 FERC ] 61,189 
(2022) (NOPR).
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II. Background

A. Infrastructure Investment and Jobs Act of 2021

    3. On November 15, 2021, the IIJA was signed into law.\8\ Section 
40123 of the IIJA added section 219A to the FPA, which 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 and participation 
by public utilities in cybersecurity threat information sharing 
programs.
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    \8\ IIJA, Public Law 117-58, 135 Stat. 429.
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1. Advanced Cybersecurity Technology
    4. Under FPA section 219A(a), an Advanced Cybersecurity Technology 
can be a product and/or a service.\9\ Cybersecurity products are 
generally hardware, software, and cybersecurity services that can be 
used for information technology (IT) systems and/or operational 
technology (OT) systems.\10\ 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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    \9\ Id. at 952 (to be codified at 16 U.S.C. 824s-1(c)).
    \10\ The National Institute of Standards and Technology (NIST) 
glossary defines OT to mean 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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    5. 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.
    6. Under FPA section 219A(a), 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. FPA section 219A(g) states that Advanced 
Cybersecurity Technology Information that is provided to, generated by, 
or collected by the Federal Government under FPA section 219A 
subsections (b), (c), or (f) shall be considered to be critical 
electric infrastructure information under FPA section 215A.\11\ 
Utilities submitting to the Commission Advanced Cybersecurity 
Technology Information or other information they believe to be Critical 
Energy/Electric Infrastructure Information (CEII) must clearly indicate 
which portions of their filing contains CEII and provide public and 
non-public versions of the information pursuant to the Commission's 
regulations.\12\
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    \11\ IIJA, Public Law 117-58, section 40123, 135 Stat. at 952 
(to be codified at 16 U.S.C. 824s-1(g)) (citing 16 U.S.C. 824o-1).
    \12\ See 18 CFR 388.113(d)(1)(i)-(ii).
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2. Cybersecurity Threat Information Sharing Programs
    7. FPA section 219A(c) directs the Commission to identify 
incentive-based rate treatments that could support participation by 
public utilities in cybersecurity threat information sharing programs. 
Utilities face barriers to participating in cybersecurity information 
sharing programs, such as 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 cybersecurity threat information sharing programs, and 
concerns regarding the confidentiality of the information once shared.

B. Study and Report to Congress

    8. As an initial step in the process of revising the Commission's 
regulations, FPA section 219A(b) requires the Commission to conduct a 
study, in consultation with certain entities,\13\ 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

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information sharing programs.\14\ As directed, 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.\15\
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    \13\ FPA section 219A(b) identifies the following entities: the 
Secretary of Energy; North American Electric Reliability Corporation 
(NERC); Electricity Subsector Coordinating Council (ESCC); and 
National Association of Regulatory Utility Commissioners (NARUC).
    \14\ IIJA, Public Law 117-58, section 40123, 135 Stat. at 952 
(to be codified at 16 U.S.C. 824s-1(b)).
    \15\ 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). In the context of developing and determining the 
applicability of mandatory Reliability Standards, NERC uses the term 
bulk electric system, which NERC defines to generally include the 
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 (Mar. 8, 2023), https://www.nerc.com/pa/Stand/Glossary%20of%20Terms/Glossary_of_Terms.pdf (NERC Glossary).
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    9. In addition to conducting the study, FPA section 219A(b) 
requires the Commission to submit a report to Congress (Report) 
detailing the results of the study. On May 13, 2022, the Report was 
submitted to Congress.\16\ 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.
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    \16\ FERC, Incentives for Advanced Cybersecurity Technology 
Investment (May 2022).
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C. NOPR

    10. On September 22, 2022, the Commission issued the NOPR in this 
proceeding, proposing under FPA section 219A to establish rules for 
incentive-based rate treatments for certain voluntary cybersecurity 
investments by utilities.\17\ The Commission proposed that these rules 
would make incentives available to utilities that make certain 
cybersecurity investments that enhance their security posture by 
improving their ability to protect against, detect, respond to, or 
recover from a cybersecurity threat, or that participate in 
cybersecurity threat information sharing programs to the benefit of 
ratepayers and national security.
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    \17\ NOPR, 180 FERC ] 61,189 at P 1.
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    11. First, the Commission proposed a regulatory framework for how a 
utility could qualify for incentives for eligible cybersecurity 
investments.\18\ Under this framework, the Commission proposed that 
eligible cybersecurity investments must: (1) materially improve 
cybersecurity through either an investment in Advanced Cybersecurity 
Technology or participation in a cybersecurity threat information 
sharing program; \19\ and (2) not already be mandated by Critical 
Infrastructure Protection (CIP) Reliability Standards, or local, State, 
or Federal law.\20\ The Commission proposed that a utility would seek 
incentive-based rate treatment for a cybersecurity investment in a 
filing pursuant to FPA section 205,\21\ and that the incentive would be 
effective no earlier than the date of the Commission order approving 
the incentive request.\22\
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    \18\ Id. P 2.
    \19\ Id. PP 20-22.
    \20\ Id.
    \21\ 16 U.S.C. 824d. The Commission noted that a utility would 
be permitted to first file a petition for declaratory order to seek 
a Commission determination on its eligibility for an incentive, but 
the utility would still need to make a filing with the Commission 
pursuant to FPA section 205 before adding the incentive-based rate 
treatment to its rate on file with the Commission.
    \22\ NOPR, 180 FERC ] 61,189 at P 24.
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    12. Second, the Commission proposed to evaluate cybersecurity 
investments using a list of pre-qualified expenditures that are 
determined by the Commission to be eligible for incentives, which would 
be posted on the Commission's public website (PQ List).\23\ The 
Commission proposed that any cybersecurity investment that is on the PQ 
List would be entitled to a rebuttable presumption of eligibility for 
an incentive.\24\ With the Commission having evaluated cybersecurity 
investments to include on the PQ List in advance of the application for 
incentive-based rate treatment, along with the rebuttable presumption, 
the Commission postulated that the PQ List approach would provide an 
efficient and transparent mechanism for determining appropriate 
cybersecurity investments that are eligible for incentives.\25\ The 
Commission also discussed and sought comment on a potential alternative 
approach, whereby a utility's cybersecurity investment would be 
evaluated on a case-by-case basis to determine if it is eligible for an 
incentive.\26\
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    \23\ Id. P 25.
    \24\ Id. P 26.
    \25\ Id. P 27.
    \26\ Id. P 32.
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    13. Third, the Commission proposed two potential cybersecurity 
incentives: (1) a return on equity (ROE) adder of 200 basis points 
(Cybersecurity ROE Incentive); \27\ and (2) deferred cost recovery for 
certain cybersecurity investments that enables the utility to defer 
expenses and include the unamortized portion in its rate base 
(Cybersecurity Regulatory Asset Incentive).\28\
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    \27\ Id. P 36.
    \28\ Id. P 39.
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    14. Fourth, the Commission proposed that any approved incentive(s) 
would remain in effect for five years from the date on which the 
cybersecurity investment(s) enters service or the expenses are 
incurred, or expire earlier if certain other conditions discussed in 
the NOPR are met before the end of that five year period, e.g., the 
cybersecurity investment becomes mandatory.\29\ For continued voluntary 
participation in a cybersecurity threat information sharing program, 
however, the Commission proposed 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.\30\ The Commission sought 
comment on the proposed duration and expiration conditions for 
incentives granted under this proposal.
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    \29\ Id. PP 46-49.
    \30\ Id. P 49.
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    15. Finally, the Commission proposed that a utility receiving a 
cybersecurity incentive pursuant to the proposed rule must make an 
annual informational filing by June 1 of each year following the 
receipt of incentive for as long as the utility receives the 
incentive.\31\ The Commission proposed that the annual filing should 
detail the specific cybersecurity investments that were made pursuant 
to the Commission's approval and the corresponding FERC account 
used.\32\
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    \31\ Id. PP 54-56.
    \32\ See 18 CFR pt. 141.
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    16. The initial comment period for the NOPR ended on November 7, 
2022, and the Commission received 27 initial comments. The reply 
comment period for the NOPR ended on November 21, 2022, and the 
Commission received six reply comments.

III. Discussion

    17. To implement the statutory directive in FPA section 219A, we 
add subpart K to our regulations, consisting of Sec.  35.48, to 
establish the rules for incentive-based rate treatment for utilities 
that voluntarily make cybersecurity investments as described in this 
final rule. For this final rule, a

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cybersecurity investment includes both expenses and capitalized costs 
associated with Advanced Cybersecurity Technology and participation in 
a cybersecurity threat information sharing program. In this final rule 
we: (1) identify the utilities permitted to request incentive-based 
rate treatment for cybersecurity investments; (2) establish the 
criteria that the Commission will use to determine whether a 
cybersecurity investment is eligible to receive an incentive-based rate 
treatment; (3) discuss the approaches that a utility may use to 
demonstrate that a cybersecurity investment satisfies the eligibility 
criteria; (4) explain the type of incentive-based rate treatment 
available for qualifying cybersecurity investments; (5) set limits on 
the duration of the incentive-based rate treatment; (6) describe what 
utilities must include in their applications for incentive-based rate 
treatment for cybersecurity investments; and (7) establish the annual 
reporting requirements for utilities that receive incentive-based rate 
treatment for their cybersecurity investments.

A. Cybersecurity Investments

    18. We establish a structure that allows certain entities to 
request rate incentives for cybersecurity investments that satisfy the 
eligibility criteria. First, we determine which utilities may request 
the cybersecurity incentives. Next, we add definitions that identify 
the types of investments for which those utilities could seek 
incentive-based rate treatment. Finally, we establish the eligibility 
criteria that the Commission will use to determine whether a 
cybersecurity investment is eligible for an incentive.
1. Utilities Eligible To Request Rate Incentives for Cybersecurity 
Investments
    19. FPA section 219A(c) directs the Commission to establish, by 
rule, incentive-based rate treatment 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 
benefiting consumers by encouraging cybersecurity investments.\33\
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    \33\ IIJA, Public Law 117-58, section 40123, 135 Stat. at 952 
(to be codified at 16 U.S.C. 824s-1(c)).
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a. NOPR Proposal
    20. In the NOPR, the Commission proposed to make rate incentives 
available to both public utilities as well as non-public utilities that 
have or will have a rate on file with the Commission, similar to 
Commission precedent regarding transmission incentives under FPA 
section 219.\34\ The Commission explained that it intended that all 
references to utilities in the NOPR would include both public utilities 
and non-public utilities that have or will have a rate on file with the 
Commission.
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    \34\ NOPR, 180 FERC ] 61,189 at P 1 n.3 (citing 16 U.S.C. 824s).
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b. Comments
    21. Some commenters discuss the utilities that should or should not 
be eligible for cybersecurity incentives. American Public Power 
Association (APPA) agrees with the NOPR proposal that non-public 
utilities with rates on file with the Commission should be eligible to 
receive incentives for qualifying investments.\35\ Electric Power 
Supply Association (EPSA) also supports the proposal and argues that 
the statutory language in FPA section 219A requires the Commission to 
extend the proposed incentives to all utilities whose rates are 
regulated by the Commission, including those utilities who recover 
their costs through competitive markets.\36\
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    \35\ APPA Initial Comments at 6.
    \36\ EPSA Initial Comments at 6-7.
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    22. EPSA contends that Congress did not intend to limit 
cybersecurity incentives to utilities with cost-of-service rates on 
file with the Commission, but rather intended to make incentive-based 
rates available to all utilities, including those with market-based 
rates.\37\ EPSA specifically suggests that the Commission establish 
formula rates for costs associated with identified incented 
cybersecurity investments. Alternatively, EPSA suggests allowing 
market-based rate entities to make FPA section 205 filings to recover 
the costs of eligible cybersecurity investments.\38\ In contrast, 
California Public Utilities Commission and the California Department of 
Water Resources State Water Project (California Parties) suggest that 
market-based rate sellers or generators should not be eligible for 
incentives, so as to avoid interference with competitive markets.\39\ 
Transmission Access Policy Study Group (TAPS) states that the 
Commission should explicitly exclude generators with market-based rates 
from incentive eligibility.\40\ APPA urges the Commission to clarify in 
the final rule that its proposed incentives are limited to cost-based 
rates and not available for wholesale sales made under market-based 
rate authority.\41\
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    \37\ Id. at 6.
    \38\ Id. at 8.
    \39\ California Parties Reply Comments at 13.
    \40\ TAPS Initial Comments at 26-27.
    \41\ APPA Initial Comments at 22.
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c. Commission Determination
    23. We adopt the NOPR proposal to permit public utilities and non-
public utilities that have or will have a rate on file with the 
Commission to seek incentive-based rate treatment for their eligible 
cybersecurity investments.\42\
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    \42\ NOPR, 180 FERC ] 61,189 at P 1 n.3.
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    24. We add Sec.  35.48(a) to our regulations, which declares that 
the purpose of this section is to establish rules for incentive-based 
rate treatment for utilities with rates on file with the Commission 
that voluntarily make cybersecurity investments. In doing so, we adopt 
the NOPR proposal to allow utilities described in FPA section 201(f) 
\43\ that have or will have a rate on file with the Commission to be 
eligible to receive incentives for cybersecurity investments in the 
same manner as public utilities. Accordingly, we add Sec.  35.48(c) to 
our regulations, which states that the Commission will authorize 
incentive-based rate treatment to public and non-public utilities that 
have or will have a rate on file with the Commission for their 
voluntary cybersecurity investments, provided that the resulting rate 
is just and reasonable and not unduly discriminatory or preferential.
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    \43\ 16 U.S.C. 824(f).
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    25. In FPA section 219A(c), Congress directs the Commission to 
offer incentive-based rate treatment for both the transmission of 
electric energy in interstate commerce and the sale of electric energy 
at wholesale in interstate commerce. This rulemaking satisfies the 
statutory requirement of providing the opportunity for public and non-
public utilities to file to seek authorization to recover the cost of 
and receive incentive-based rate treatment on eligible cybersecurity 
investments.
    26. We disagree with EPSA's contentions that utilities that make 
sales of energy, capacity, or ancillary services at market-based rates 
should be able to continue to make those sales and also separately 
recover the costs of, and receive incentive-based rate treatment on, 
eligible cybersecurity investments. The Incentive permitted in this 
final rule may only be recovered through a cost-of-service rate. As 
noted above, the ability to seek incentive-based rate treatment under 
this final rule meets the requirements of FPA section 219A.\44\ All

[[Page 28352]]

sellers of energy, capacity, and ancillary services are free to file 
cost-of-service rates under FPA section 205. Thus, we note that 
utilities currently making sales of energy, capacity, and ancillary 
services under market-based rate authority may make a filing to recover 
their entire cost of service, including costs of and an incentive on, 
eligible cybersecurity investments and proceed to make sales 
exclusively under that cost-based rate.\45\
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    \44\ The dissent's criticism correctly notes that FPA section 
219A is designed to provide incentives for certain cybersecurity 
investments. However, FPA section 219A also requires the Commission 
to determine that any rate approved under this rule be just and 
reasonable, not unduly discriminatory or preferential. IIJA, Public 
Law 117-58, section 40123, 135 Stat. at 952 (to be codified at 16 
U.S.C. 824s-1(e)). We agree with TAPS that the recovery of costs and 
an incentive as set forth in this final rule is not compatible with 
making sales at market-based rates. Therefore, our decision on this 
issue seeks to give meaning to all of the provisions of FPA section 
219A.
    \45\ Cf. PJM Interconnection, L.L.C., 178 FERC ] 61,121, at P 
115 (2022) (noting generators' ability to choose between selling 
capacity at cost-based or market-based rates).
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2. Cybersecurity Investment Definitions
    27. The cybersecurity investments eligible for incentives could 
include investments in Advanced Cybersecurity Technology, voluntary 
participation in a cybersecurity threat information sharing program, or 
both. Accordingly, we add Sec.  35.48(b) to our regulations to define 
these and other terms used in that section. We incorporate the 
definitions of Advanced Cybersecurity Technology and Advanced 
Cybersecurity Technology Information in FPA section 219A(a).\46\ 
Therefore, we define Advanced Cybersecurity Technology as 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 (as defined in section 102 of the Cybersecurity Act of 2015 (6 
U.S.C. 1501)).\47\ We define Advanced Cybersecurity Technology 
Information as information relating to Advanced Cybersecurity 
Technology or proposed Advanced Cybersecurity Technology that is 
generated by or provided to the Commission or another Federal 
agency.\48\ In accordance with FPA section 219A(g), Advanced 
Cybersecurity Technology Information is considered to be Critical 
Electric Infrastructure Information as that term is defined in FPA 
section 215A(a)(3) and Sec.  388.113(c)(1) of the Commission's 
regulations.\49\ We also define CEII in new subpart K as having the 
same meaning as that term is defined in Sec.  388.113 of the 
Commission's regulations. In addition, we define Electric Reliability 
Organization and Reliability Standard as having the same meanings as 
those terms are defined in Sec.  39.1 of the Commission's 
regulations.\50\
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    \46\ IIJA, Public Law 117-58, section 40123, 135 Stat. 429, 951 
(to be codified at 16 U.S.C. 824s-1(a)(1), (2)).
    \47\ Id. (to be codified at 16 U.S.C. 824s-1(a)(1)).
    \48\ Id. (to be codified at 16 U.S.C. 824s-1(a)(2)).
    \49\ 16 U.S.C. 824o-1(a)(3); 18 CFR 388.113(c)(1).
    \50\ 18 CFR 39.1.
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3. Cybersecurity Investment Eligibility Criteria
a. NOPR Proposal
    28. In the NOPR, the Commission proposed that a cybersecurity 
investment must satisfy two eligibility criteria to be considered for a 
cybersecurity incentive.\51\ First, the cybersecurity investment would 
need to materially improve cybersecurity through either an investment 
in Advanced Cybersecurity Technology or participation in a 
cybersecurity threat information sharing program. Second, the 
cybersecurity investment could not already be mandated by CIP 
Reliability Standards, or otherwise mandated by local, State, or 
Federal law. Additionally, the Commission sought comment on whether, 
and if so how, the Commission should evaluate and ensure that the 
benefits of the cybersecurity investment exceed the combined costs of 
the cybersecurity investment and incentive, to ensure that the proposed 
rates are just and reasonable. The Commission also sought comment on 
whether these would be the appropriate criteria and whether there are 
additional criteria or limitations that the Commission should consider 
(e.g., whether the Commission should consider an obligation imposed by 
a State commission as a condition for a merger to be ineligible for an 
incentive).
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    \51\ NOPR, 180 FERC ] 61,189 at P 20.
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    29. The Commission proposed that, in determining which 
cybersecurity investments will materially improve a utility's security 
posture, the Commission will consider the following sources: (1) 
security controls enumerated in the NIST Special Publication (SP) 800-
53 ``Security and Privacy Controls for Information Systems and 
Organizations'' catalog; \52\ (2) security controls satisfying an 
objective found in the NIST Cybersecurity Framework; \53\ (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); \54\ (4) a specific recommendation from 
the CISA Shields Up Campaign; \55\ (5) participation in the 
Cybersecurity Risk Information Sharing Program (CRISP) or similar 
cybersecurity threat information sharing program; and/or (6) the 
Cybersecurity Capability Maturity Model (C2M2) Domains \56\ at the 
highest Maturity Indicator Level.\57\ The Commission proposed that 
using these sources from 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 investments will be targeted and effective.
---------------------------------------------------------------------------

    \52\ 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.
    \53\ See NIST, Cybersecurity Framework, https://www.nist.gov/cyberframework.
    \54\ See, e.g., CISA, National Cyber Awareness System Alerts, 
https://www.cisa.gov/uscert/ncas/alerts.
    \55\ See CISA, Shields Up, https://www.cisa.gov/shields-up.
    \56\ See DOE, Cybersecurity Capability Maturity Model, https://www.energy.gov/ceser/cybersecurity-capability-maturity-model-c2m2.
    \57\ NOPR, 180 FERC ] 61,189 at P 21.
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b. Comments
    30. Microsoft Corporation (Microsoft) and the Michigan Public 
Service Commission (Michigan Commission) support the proposed 
eligibility criteria.\58\ The Office of the Ohio Consumers' Counsel 
(Ohio Consumers' Counsel) also supports the proposed eligibility 
criteria and recommends that the Commission require utilities to 
demonstrate that their eligible expenditures provide quantifiable, 
incremental benefits to rate payers that will exceed expenditure 
cost.\59\
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    \58\ Microsoft Initial Comments at 1; Michigan Commission 
Initial Comments at 5-6.
    \59\ Ohio Consumers' Counsel Initial Comments at 4-5.
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    31. Alliant Energy Corporate Services, Inc. (Alliant), the 
Interstate Natural Gas Association of America (INGAA), the National 
Rural Electric Cooperative (NRECA), and APPA support the proposed 
eligibility criterion that a utility must show that a cybersecurity 
investment materially improves its cybersecurity posture for its 
investment to be eligible for an incentive.\60\ While NRECA supports 
the proposed eligibility criterion, it is concerned that ``materially 
improves cybersecurity''

[[Page 28353]]

may be too subjective to ensure that cybersecurity investments provide 
adequate benefits to customers.\61\ NRECA recommends that the 
Commission specify additional criteria or establish a minimum level of 
benefit or value a cybersecurity investment would provide to be 
eligible.\62\
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    \60\ Alliant Initial Comments at 3-4; INGAA Initial Comments at 
3; NRECA Initial Comments at 4-5; APPA Initial Comments at 3.
    \61\ NRECA Initial Comments at 4-5.
    \62\ Id. at 5.
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    32. The Public Utilities Commission of Ohio's Office of the Federal 
Energy Advocate (Ohio FEA) and Edison Electric Institute (EEI) do not 
support the proposed eligibility criterion that a cybersecurity 
investment must materially improve cybersecurity.\63\ Ohio FEA asserts 
that the term ``materially improves'' may be ambiguous and suggests 
that the Commission should provide additional detail regarding this 
criterion in order to achieve its objective and streamline review of 
cybersecurity incentives.\64\ EEI argues that applying a ``materially 
improve'' test will lead to subjective and inconsistent results because 
it is unclear what additional insights the Commission would reference 
beyond the six sources from other agencies to satisfy the 
criterion.\65\ EEI argues that the materiality test is not part of the 
statutory language and will not necessarily improve the cybersecurity 
posture of the filing utility.\66\ EEI recommends that, instead, the 
Commission give utilities the flexibility to propose other sources than 
the six listed in the NOPR and provide context for why a cybersecurity 
investment supports a targeted level of cyber maturity within a broader 
cybersecurity risk management and control framework.\67\
---------------------------------------------------------------------------

    \63\ EEI Initial Comments at 8; Ohio FEA Initial Comments at 5-
6.
    \64\ Ohio FEA Initial Comments at 5-6.
    \65\ EEI Initial Comments at 8.
    \66\ Id. at 8.
    \67\ Id. at 8.
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    33. Ohio FEA supports the Commission referencing other Federal 
agencies and activities to determine whether a cybersecurity investment 
materially improves cybersecurity but asserts that the final 
determination should be based on the specific circumstances of the 
filing utility.\68\ INGAA recommends that the Federal Bureau of 
Investigation (FBI) and the National Security Agency (NSA) be added to 
the sources used to inform the Commission's determination of whether a 
particular cybersecurity investment satisfies the first eligibility 
criterion.\69\ DOE states that, while the six sources listed in the 
NOPR are beneficial and valuable, they are not a comprehensive list of 
ways that cybersecurity can be measured.\70\ SecurityScorecard 
recommends that international standards such as ISO/IEC 27000 and 
Information Systems Audit and Control Association's Control Objectives 
for Information and Related Technologies also be considered when 
assessing the materiality criteria.\71\
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    \68\ Ohio FEA Initial Comments at 5-6.
    \69\ INGAA Initial Comments at 3.
    \70\ DOE Reply Comments at 6.
    \71\ SecurityScorecard Initial Comments at 4.
---------------------------------------------------------------------------

    34. DOE and EEI recommend that the Commission adjust the 
eligibility criteria referencing the C2M2 Domains from the highest 
Maturity Indicator Level to lower, incremental levels.\72\ DOE and EEI 
argue that investments made to reach lower, incremental maturity levels 
would be more valuable than overinvestment in unnecessary controls to 
reach the highest Maturity Indicator Level.\73\
---------------------------------------------------------------------------

    \72\ DOE Reply Comments at 8-9; EEI Initial Comments at 8-9.
    \73\ DOE Reply Comments at 8; EEI Initial Comments at 8.
---------------------------------------------------------------------------

    35. Most commenters support the idea that expenditures already 
mandated by local, State, or Federal law or an enforceable CIP 
Reliability Standard should not be eligible for an incentive. EEI, 
NRECA, and INGAA support this eligibility criterion as proposed in the 
NOPR. Other commenters argue that the proposed criterion should be 
expanded to include other types of legally binding agreements or 
Reliability Standards.\74\ TAPS, APPA, Ohio FEA, California Parties, 
and the Maryland Public Service Commission and Pennsylvania Public 
Utility Commission (Maryland and Pennsylvania Commissions) argue that 
investments made to satisfy any type of legal obligation should be 
ineligible for an incentive, including, for example, remedial measures 
as a settlement of NERC compliance violations, a condition of a State 
or Federal license, a condition of a merger proceeding, and an 
obligation under a cybersecurity insurance policy.\75\ APPA further 
recommends that the Commission clarify whether investments are 
ineligible if mandated by only CIP Reliability Standards or also by any 
other mandatory Reliability Standard.\76\ In addition to an expanded 
definition of ``mandated,'' TAPS recommends that the Commission require 
a filing utility to attest that a cybersecurity investment for which it 
seeks incentives is not being made to satisfy any legal obligation.\77\
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    \74\ TAPS Initial Comments at 9-12; APPA Initial Comments at 13; 
Ohio FEA Initial Comments at 6; California Parties Initial Comments 
at 20; Maryland and Pennsylvania Commissions Initial Comments at 8.
    \75\ TAPS Initial Comments at 12.
    \76\ APPA Initial Comments at 13.
    \77\ TAPS Initial Comments at 12.
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    36. The North American Electric Reliability Corporation and the six 
Regional Entities \78\ (NERC) states that any voluntary incentives 
should build upon and complement existing cybersecurity CIP Reliability 
Standards.\79\ NERC recommends that the Commission consider the 
relationship between voluntary cybersecurity investments and mandatory 
CIP Reliability Standards and cautions that it may be a challenge for 
the Commission to determine whether a particular investment is mandated 
by the CIP Reliability Standards.\80\ NERC explains that, because the 
CIP Reliability Standards are outcome oriented and do not prescribe 
specific technologies, a utility may file for an incentive that, while 
not mandated, is being used to comply with mandatory CIP Reliability 
Standards.\81\ TAPS similarly states that the Commission should take a 
nuanced approach to assess whether a technology exceeds the CIP 
Reliability Standards when a technology has been used to comply with, 
but is not specifically mandated by, a CIP Reliability Standard.\82\ 
NRECA urges the Commission to consider whether it will grant incentives 
for cybersecurity expenditures that enhance the cybersecurity of low 
impact BES Cyber Systems or only medium or high impact BES Cyber 
Systems.\83\
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    \78\ The six Regional Entities include the following: Midwest 
Reliability Organization, Northeast Power Coordinating Council, 
Inc., ReliabilityFirst Corporation, SERC Reliability Corporation, 
Texas Reliability Entity, Inc., and Western Electricity Coordinating 
Council.
    \79\ NERC Initial Comments at 3.
    \80\ Id. at 4.
    \81\ Id. at 4-5.
    \82\ TAPS Initial Comments at 12.
    \83\ NRECA Initial Comments at 5; see NERC Glossary defining BES 
Cyber Systems.
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    37. California Parties support the addition of an eligibility 
criterion for information-sharing programs that the incentives be 
conditioned on utilities participating in all applicable regional and 
State cybersecurity initiatives.\84\ DOE recommends that the Commission 
establish attributes that the Commission will consider when determining 
the eligibility of information-sharing programs for incentives.\85\
---------------------------------------------------------------------------

    \84\ California Parties Initial Comments at 5.
    \85\ DOE Reply Comments at 10.
---------------------------------------------------------------------------

c. Commission Determination
    38. We adopt and modify the NOPR proposal by adding Sec.  35.48(d) 
to the Commission's regulations to permit a utility to receive 
incentive-based rate

[[Page 28354]]

treatment for a cybersecurity investment. We establish two eligibility 
criteria that require that each cybersecurity investment: (1) 
materially improves cybersecurity through either Advanced Cybersecurity 
Technology or participation in a cybersecurity threat information 
sharing program; and (2) is not already mandated by the Reliability 
Standards, or otherwise mandated by local, State, or Federal law, 
decision, or directive; otherwise legally mandated; or an action taken 
in response to a Federal or State agency merger condition, consent 
decree from Federal or State agency, or settlement agreement that 
resolves a dispute between a utility and a public or private party.\86\
---------------------------------------------------------------------------

    \86\ As the dissent points out, FPA section 219A(c) directs the 
Commission to establish rate incentives for participation by public 
utilities in cybersecurity threat information sharing programs and 
investments by public utilities in Advanced Cybersecurity 
Technology, which it defines as 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 cyber security threat. Public 
Law 117-58, section 40123(a), 135 Stat. 429, 951 (codified 16 U.S.C. 
824s-1(c)). FPA section 219A also specifies that such rate 
treatments exist for the purpose of benefitting consumers and 
requires that the Commission ensure that resulting rates be just and 
reasonable. See Public Law 117-58, section 40123(a), 135 Stat. 429, 
951 (codified 16 U.S.C. 824s-1(a) & (c)). The materially improves 
incentive eligibility criterion seeks to balance these statutory 
requirements. Solely focusing on the term enhance may result in the 
Commission granting incentives that do not meet these other 
statutory requirements mentioned above. It is thus reasonable for 
the Commission to exercise its judgement via the materially improves 
eligibility criterion to evaluate incentives requests.
---------------------------------------------------------------------------

    39. In the NOPR, the Commission identified several sources that the 
Commission would consider as part of its evaluation of whether a 
cybersecurity investment would materially improve a utility's security 
posture, thereby providing quantifiable cybersecurity benefits.\87\ 
Based on the comments received, we modify the NOPR proposal.
---------------------------------------------------------------------------

    \87\ In section III.B., we discuss different methods that 
utilities could use to show how their cybersecurity investments 
satisfy the eligibility criteria.
---------------------------------------------------------------------------

    40. As recommended by INGAA, we find that the Commission should 
also consider specific recommendations from the FBI and NSA. Therefore, 
we find that, in determining which cybersecurity investments 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; \88\ (2) security controls satisfying an 
objective found in the NIST Cybersecurity Framework \89\ technical 
subcategory; (3) a specific cybersecurity recommendation from a 
relevant Federal authority, such as DHS's CISA, the FBI, NSA, or DOE; 
\90\ (4) participation in a relevant cybersecurity threat information 
sharing program; and/or (5) achieving and sustaining one or more of the 
C2M2 Domains at the highest Maturity Indicator Level.\91\ Considering 
these sources as part of a Commission determination of whether a 
particular cybersecurity investment would materially improve 
cybersecurity will allow the Commission to approve objective, targeted, 
and effective cybersecurity investments for incentive treatment.\92\
---------------------------------------------------------------------------

    \88\ 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.
    \89\ See NIST, Cybersecurity Framework, https://www.nist.gov/cyberframework.
    \90\ See, e.g., CISA, National Cyber Awareness System Alerts, 
https://www.cisa.gov/uscert/ncas/alerts.
    \91\ See DOE, Cybersecurity Capability Maturity Model, https://www.energy.gov/ceser/cybersecurity-capability-maturity-model-c2m2.
    \92\ As we discuss in section III.B.1., when considering whether 
to add a cybersecurity investment to the PQ List, the Commission 
will determine whether the cybersecurity investment would materially 
improve cybersecurity for all utilities. As we discuss in section 
III.B.2., when evaluating a utility case-by-case application for 
incentive-based rate treatment for a particular cybersecurity 
investment, the Commission will determine whether the cybersecurity 
investment would materially improve cybersecurity for the utility 
requesting the incentive-based rate treatment.
---------------------------------------------------------------------------

    41. In addition, we agree with DOE's and Ohio FEA's recommendation 
that the Commission expand the list of potential eligible cybersecurity 
threat information sharing programs beyond CRISP. We clarify that a 
utility may seek an incentive for participation in other cybersecurity 
threat information sharing programs and the Commission will consider 
whether such cybersecurity threat information sharing programs would 
qualify for incentive treatment. We will not, as EEI suggests, consider 
recommendations other than the five sources described above. 
Considering other sources would increase subjectivity and 
unpredictability of incentive-based rate treatment of cybersecurity 
investments.
    42. We agree with DOE's and California Parties' recommendation that 
the Commission should establish eligibility criteria or attributes in 
evaluating cybersecurity threat information-sharing programs. The 
Commission will evaluate any proposed relevant cybersecurity threat 
information-sharing program to determine whether the program: (1) is 
sponsored by the Federal or State government; (2) provides two-way 
communications from and to electric industry and government entities; 
and (3) delivers relevant and actionable cybersecurity information to 
program participants from the United States electricity industry.
    43. We decline to adopt SecurityScorecard's recommendation that the 
Commission consider international standards, such as ISO/IEC 27000, 
when assessing the materiality criteria. Like NIST SP 800-53, ISO/IEC 
27000 provides a catalog of information and cyber-related security 
controls. While there are some differences in focus between the two 
standards, for the context of determining how to successfully 
categorize a cybersecurity investment used to improve the security 
posture of a utility, both standards perform similar functions. 
Therefore, we believe that considering such international standards in 
assessing materiality would be duplicative and unnecessary and we will 
not adopt this recommendation. Instead, we will use NIST SP 800-53 as 
the foundation of security controls to evaluate whether a cybersecurity 
investment materially improves the cybersecurity of a utility because 
NIST SP 800-53 was developed by a Federal agency and is publicly 
accessible without additional cost.
    44. We also decline to adopt DOE and EEI's recommendation that the 
Commission provide incentives for any incremental steps taken by 
utilities in connection with C2M2 and not just for achieving the 
highest Maturity Indicator Level. The C2M2 model contains descriptive 
cybersecurity measures at a high level rather than prescriptive 
requirements. Therefore, it would be difficult for the Commission to 
determine that compliance with incremental steps necessarily materially 
improves cybersecurity. For these reasons, we are requiring a utility 
to demonstrate that its proposed cybersecurity investments will cause 
the utility to achieve Maturity Indicator Level 3 of the C2M2 Domains 
rather than the incremental steps of the lower Maturity Indicator 
Levels in order to receive an incentive for its cybersecurity 
investments.
    45. TAPS, APPA, Ohio FEA, California Parties, and the Maryland and 
Pennsylvania Commissions request that the Commission ensure that 
investments made to satisfy any type of legal obligation be ineligible 
for an incentive. The Maryland and Pennsylvania

[[Page 28355]]

Commissions comment that utilities should not receive incentives for 
implementing cybersecurity measures that are already made mandatory by 
existing and future obligations.\93\ APPA comments that the Commission 
should broaden the second eligibility criterion to clarify that 
incentives would not be available for cybersecurity investments for 
mandatory Reliability Standards and that the Commission should replace 
the reference to the CIP Reliability Standards with Reliability 
Standards.\94\ We agree with both suggestions. Accordingly, we are 
expanding the second eligibility criterion to emphasize the requirement 
that the utility must undertake the specific cybersecurity investment 
voluntarily in order to receive a cybersecurity incentive pursuant to 
our regulations. Our revised Sec.  35.48(d)(2) provides that a 
cybersecurity investment is only eligible for an incentive if it is not 
already mandated by the Reliability Standards as maintained by the 
Electric Reliability Organization, or otherwise mandated by local, 
State, or Federal law, decision, or directive; otherwise legally 
mandated; or an action taken in response to a Federal or State agency 
merger condition, consent decree from Federal or State agency, or 
settlement agreement that resolves a dispute between a utility and a 
public or private party.\95\
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    \93\ Maryland and Pennsylvania Commissions Initial Comments at 
8.
    \94\ APPA Initial Comments at 5.
    \95\ A mandate must either be for a utility to achieve a 
specific outcome or to require a utility to take a prescribed 
action. General mandates to improve a utility's cybersecurity may 
still make specific cybersecurity investments voluntary for purposes 
of the Commission's evaluation of the eligibility criteria.
---------------------------------------------------------------------------

    46. Additionally, we recognize the concerns raised by NERC and TAPS 
about the difficulty in determining whether a particular cybersecurity 
investment is mandatory. Accordingly, as discussed in greater detail in 
section III.D.3., we are adopting TAPS's suggestion that, in order to 
demonstrate that the specific cybersecurity investment for which the 
utility is seeking an incentive is voluntary, the applicant must 
include an attestation in its filing so stating.\96\
---------------------------------------------------------------------------

    \96\ The attestation must be made by a senior person within the 
utility that the utility has authorized to act on behalf of the 
utility. One example of a senior person could be the CIP Senior 
Manager as NERC defines that term. NERC Glossary at 10 (defining CIP 
Senior Manager to mean ``A single senior management official with 
overall authority and responsibility for leading and managing 
implementation of and continuing adherence to the requirements 
within the NERC CIP Standards, CIP-002 through CIP-011.'').
---------------------------------------------------------------------------

    47. TAPS raises issues about technologies that both meet and exceed 
the Reliability Standards. We recognize that there could be a single 
Advanced Cybersecurity Technology that provides multiple security 
controls that allow the utility to meet and potentially exceed 
compliance with a Reliability Standard. In that instance, where the 
utility makes a single cybersecurity investment for security controls 
to comply with a Reliability Standard, that investment will not be 
incentive-eligible. However, there may be instances where a utility 
invests in a single Advanced Cybersecurity Technology that while 
complying with a Reliability Standard also provides enhanced 
cybersecurity controls that go beyond compliance with a Requirement in 
the Reliability Standard. In those instances, only the incremental 
investment to exceed the Requirement of the Reliability Standard would 
be eligible for an incentive.
    48. In response to NRECA's concerns regarding the reliability and 
security of low impact BES Cyber Systems, we are not requiring any 
eligibility criteria other than the two discussed above. Therefore, low 
impact BES Cyber Systems are not excluded from eligibility for 
incentive-based rate treatment for cybersecurity investments.
    49. We disagree with EEI's conclusion that we should omit 
``materially improve'' as the standard for the first eligibility 
criterion due to its absence from the statutory language and possible 
subjectivity. FPA section 219A requires the Commission to offer 
incentives for Advanced Cybersecurity Technology investments and 
participation in information-sharing programs. It does not require that 
the Commission provide incentives for all Advanced Cybersecurity 
Investments or participation in any information-sharing program. FPA 
section 219A also requires that the Commission ensure that rates are 
just and reasonable and not unduly discriminatory or preferential.\97\ 
Without a materiality standard in the first criterion (or something 
similar), any Advanced Cybersecurity Investment that is not mandatory 
would be incentive-eligible, regardless of whether such investments 
enhance a utility's security posture or result in just and reasonable 
rates. Furthermore, use of such a standard is consistent with 
Commission precedent. In Order No. 679, the Commission required 
applicants for transmission incentives to show that requested 
incentives are tailored to the risks and challenges of individual 
projects, even though such a requirement is not included in the 
statutory language of FPA section 219.\98\
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    \97\ FPA section 219A(e)(1). FPA section 219A(e)(2) also 
prohibits unjust and unreasonable double recovery for Advanced 
Cybersecurity Technology. IIJA, Public Law 117-58, section 40123, 
135 Stat. at 952 (to be codified at 16 U.S.C. 824s-1(e)(2)).
    \98\ See Promoting Transmission Investment Through Pricing 
Reform, Order No. 679, 71 FR 43294 (July 31, 2006), 116 FERC ] 
61,057, at P 26, order on reh'g, Order No. 679-A, 72 FR 1152 (Jan. 
10, 2007), 117 FERC ] 61,345 (2006), order on reh'g, 119 FERC ] 
61,062 (2007).
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    50. We recognize that the materially improves criterion requires 
use of Commission subject matter expertise and judgement. In exercising 
its subject matter expertise and judgement, the Commission will take 
into account the findings of other Federal agencies to inform its 
decisions, as described in section III.B.2.c. Although the Commission 
seeks to maximize predictability and transparency in its provision of 
incentives, some degree of judgement is necessary given the many types 
of cybersecurity threats and investments and their rapid evolution. It 
is for this reason that we also decline NRECA's request that the 
Commission provide additional criteria or a baseline level of benefit. 
As discussed in section III.C.3., quantification of benefits may be 
difficult for cybersecurity investments, such that a bright line 
benefit requirement is inappropriate. In this final rule, we are 
establishing eligibility criteria that balance the need to ensure that 
incentives are targeted at the most beneficial investments with 
recognizing that there are many potential cybersecurity investments 
which could provide a wide variety of benefits. We find that overly 
prescriptive eligibility criteria may unduly preclude incentive-based 
rate treatment of beneficial cybersecurity investments.
    51. Although the Commission sought comment on whether, and if so 
how, the Commission should evaluate and ensure that the benefits of the 
cybersecurity investment exceed the combined costs of the cybersecurity 
investment and the incentive, to ensure that the proposed rates are 
just and reasonable, we will not at this time predicate incentive 
eligibility on such a cost-benefit showing. As the Commission proposed 
in the NOPR and we affirm here, the rates, including the costs of any 
incentive, must remain within the zone of reasonableness. This is 
necessary to ensure that the rates that include incentives for 
cybersecurity investments are just and reasonable and not unduly 
discriminatory or preferential.
    52. Ohio Consumers' Counsel argues that there must be quantifiable, 
incremental benefits that can be measured in cost-benefit savings to 
consumers. Nevertheless, we find that quantification of the costs and 
benefits for each cybersecurity investment is

[[Page 28356]]

neither required nor practical. Such a cost-benefit analysis is 
particularly inapt for cybersecurity where benefits are even harder to 
identify and quantify than are economic and reliability benefits for 
transmission investments. The courts have long recognized that a 
primary purpose of the FPA, and its counterpart the Natural Gas Act 
(NGA), is to encourage the orderly development of plentiful supplies of 
electricity and natural gas at reasonable prices.\99\ To carry out this 
purpose, the Commission may consider non-cost factors as well as cost 
factors.\100\ Moreover, Congress' enactment of section 219A reflects 
its determination that incentives generally can spur cybersecurity 
investments and their associated consumer benefits.
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    \99\ Order No. 679, 116 FERC ] 61,057 at P 65 (citing Pub. Util. 
Comm'n of the State of Cal. v. FERC, 367 F.3d 925, 929 (D.C. Cir. 
2004) (citing NAACP v. FPC, 425 U.S. 662, 670 (1976))).
    \100\ Id. (citing Permian Basin Area Rate Cases, 390 U.S. 747, 
791, 815 (1968); Me. Pub. Utils. Comm'n v. FERC, 454 F.3d 278, 288 
(DC Cir. 2006)).
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    53. As the Commission proposed in the NOPR, we find that all 
cybersecurity investments must satisfy both of the eligibility criteria 
in order to be eligible for incentive treatment. In addition, we now 
clarify that a utility may not request an incentive for a cybersecurity 
investment that the utility has already been incurring for more than 
three months prior to the filing of the incentive application, as 
discussed in section III.C.2 of this final rule, unless that 
cybersecurity investment is for participation in an incentive-eligible 
cybersecurity threat information sharing program.

B. Cybersecurity Investment Incentive Requests

    54. In order to maximize predictability and transparency in our 
provision of incentives, we provide below a framework for evaluating 
whether certain cybersecurity investments, including expenses and 
capitalized costs, are eligible for a cybersecurity incentive. First, 
as the Commission proposed in the NOPR, we include a list of pre-
qualified investments, the PQ List, to identify certain cybersecurity 
investments that the Commission finds merit the rebuttable presumption 
of eligibility for all utilities and are therefore eligible for 
incentive-based rate treatment. We also discuss the procedures that we 
will use to update the PQ List. Second, we adopt the cybersecurity 
investments proposed in the NOPR for inclusion on the initial PQ List. 
Third, we describe how the Commission will evaluate whether a utility's 
cybersecurity investments that are not included on the PQ List may be 
eligible for incentive-based rate treatment. Finally, we discuss how a 
utility can seek incentive-based rate treatment for new cybersecurity 
investments made to comply with a Reliability Standard during the 
period after the Commission approves a new or modified cybersecurity 
Reliability Standard but before that new or modified cybersecurity 
Reliability Standard becomes mandatory and enforceable.
1. PQ List Approach
a. Structure of the PQ List
i. NOPR Proposal
    55. In the NOPR, the Commission proposed to create a PQ List that 
would identify cybersecurity investments that the Commission determined 
would satisfy the eligibility criteria.\101\ The Commission proposed 
that any cybersecurity investment that the Commission includes on the 
PQ List would be entitled to a rebuttable presumption of eligibility 
for an incentive.\102\ However, an applicant would still need to 
demonstrate, and the Commission would need to find, that the proposed 
rate, inclusive of the cybersecurity incentive, is just and reasonable. 
The Commission proposed to provide an opportunity for protestors to 
rebut this presumption by demonstrating that the cybersecurity 
investment did 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 based on other evidence.
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    \101\ NOPR, 180 FERC ] 61,189 at P 25.
    \102\ Id. P 26.
---------------------------------------------------------------------------

    56. The Commission explained that the PQ List approach would 
provide efficiency and transparency benefits.\103\ The utility-specific 
incentive filings under the PQ List approach could be substantially 
streamlined compared to a case-by-case approach because the Commission 
would have pre-reviewed the cybersecurity investments included on the 
PQ List for eligibility for incentives.
---------------------------------------------------------------------------

    \103\ Id. P 27.
---------------------------------------------------------------------------

    57. In the NOPR, the Commission noted the rapidly evolving nature 
of cybersecurity threats and solutions and that it expected to 
regularly evaluate the PQ List and update it as necessary.\104\ When 
updating the PQ List, the Commission could add, modify, or remove 
cybersecurity investments to/from the PQ List. The Commission proposed 
that it would update the PQ List via a rulemaking, whether sua sponte 
or in response to a petition.
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    \104\ Id. P 31.
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ii. Comments
    58. INGAA, Microsoft, TAPS, the Michigan Commission, Ohio 
Consumers' Counsel, ITC Companies, APPA, Anterix, Inc. (Anterix), OT 
Coalition, Avangrid, Inc. (Avangrid), MISO Transmission Owners, EPSA, 
and EEI support the PQ List approach.\105\ OT Coalition, Avangrid, MISO 
Transmission Owners, EPSA, and EEI further urge the Commission to 
consider using both the PQ List and case-by-case approaches.\106\ ITC 
Companies agree with the Commission that the PQ List approach will 
decrease the filing and review burden on utilities and the Commission 
\107\ while INGAA and Microsoft agree that the PQ List approach will 
provide transparency for utilities as to what expenditures will be 
eligible for incentives.\108\ Microsoft and Anterix caveat their 
support of the PQ List approach by suggesting other items for inclusion 
on the PQ List, such as security incident and event monitoring, user 
and entity behavior analysis,\109\ and private LTE wireless broadband 
communication systems.\110\ TAPS, Michigan Commission, and Ohio 
Consumers' Counsel recommend that the PQ List be updated 
regularly,\111\ and APPA underscores the need for stakeholders to have 
the opportunity to rebut the presumption of eligibility.\112\
---------------------------------------------------------------------------

    \105\ INGAA Initial Comments at 4; Microsoft Initial Comments at 
2; TAPS Initial Comments at 4; Michigan Commission Initial Comments 
at 6; Ohio Consumers' Counsel Initial Comments at 8-9; ITC Companies 
Initial Comments at 4-5; APPA Initial Comments at 17; Anterix 
Initial Comments at 5; OT Coalition Initial Comments at 2; Avangrid 
Initial Comments at 5; MISO Transmission Owners Initial Comments at 
6-7; EPSA Initial Comments at 5; EEI Initial Comments at 5.
    \106\ OT Coalition Initial Comments at 2; Avangrid Initial 
Comments at 5; MISO Transmission Owners Initial Comments at 6-7; 
EPSA Initial Comments at 5; EEI Comments at 5.
    \107\ ITC Companies Initial Comments at 4-5.
    \108\ INGAA Initial Comments at 4; Microsoft Initial Comments at 
2.
    \109\ Microsoft Initial Comments at 1-2.
    \110\ Anterix Initial Comments at 5.
    \111\ TAPS Initial Comments at 6; Michigan Commission Initial 
Comments at 6; Ohio Consumers' Counsel Initial Comments at 8-9.
    \112\ APPA Initial Comments at 5.
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    59. In contrast, Alliant, the Maryland and Pennsylvania 
Commissions, and DOE assert that that the PQ List approach with its 
rebuttable presumption of eligibility will lessen innovation by 
encouraging utilities to pursue the same types of cybersecurity 
investments (i.e., those on the PQ List), regardless of the utility's 
individual

[[Page 28357]]

needs and risks.\113\ California Parties, while not necessarily opposed 
to the concept of a PQ List approach, strongly oppose giving filing 
utilities a rebuttable presumption of eligibility for expenditures on 
the PQ List.\114\ They argue that the burden on a party seeking to 
rebut the presumption of eligibility is too great.\115\
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    \113\ Alliant Initial Comments at 4-5; Maryland and Pennsylvania 
Commissions Initial Comments at 6.
    \114\ California Parties Initial Comments at 28-29.
    \115\ Id.; California Parties Reply Comments at 11-12.
---------------------------------------------------------------------------

    60. Many commenters raise concerns that finding a balance between 
transparency and security will prove challenging for the Commission. 
NRECA cautions that a publicly accessible PQ List will alert 
adversaries to the cybersecurity activities of utilities and create a 
security risk.\116\ Alliant recommends that, if the Commission decides 
to proceed with the PQ List approach, it defer to NERC for 
identification of technologies and designate the PQ List as CEII to 
protect it from public access.\117\ On the other hand, California 
Parties and the Maryland and Pennsylvania Commissions underscore the 
need for public transparency and access to allow stakeholders to rebut 
the presumption of eligibility and utilities to know what types of 
expenditures are eligible.\118\
---------------------------------------------------------------------------

    \116\ NRECA Initial Comments at 7-8.
    \117\ Alliant Initial Comments at 4-5.
    \118\ California Parties Initial Comments at 28-29; Maryland and 
Pennsylvania Commissions Initial Comments at 5-6.
---------------------------------------------------------------------------

    61. Some commenters describe the challenges that maintaining an 
updated PQ List will present for the Commission. Ohio FEA and the 
Maryland and Pennsylvania Commissions express concern that the 
Commission may be unable to maintain a current PQ List, due to the 
lengthy regulatory process required,\119\ potentially leading to 
overinvestment in outdated measures and underinvestment in cutting edge 
technologies.\120\ Most commenters support frequent and regular review 
and updates to the PQ List.\121\ EEI recommends that the Commission 
commit to reviewing and updating the PQ List on a regular cadence no 
less than annually, while Anterix, Avangrid, TAPS, and Ohio Consumers' 
Counsel suggest regular and expeditious updates.\122\ TAPS and Ohio 
Consumers' Counsel recommend that, when the Commission initiates a 
rulemaking to modify the PQ List, it should assess whether existing 
expenditures still meet the eligibility criteria in addition to 
assessing new additions.\123\
---------------------------------------------------------------------------

    \119\ Ohio FEA Initial Comments at 14; Maryland and Pennsylvania 
Commissions Initial Comments at 5.
    \120\ Maryland and Pennsylvania Commissions Initial Comments at 
5.
    \121\ Avangrid Initial Comments at 5; EEI Initial Comments at 6-
7; TAPS Initial Comments at 5; Ohio Consumers' Counsel Initial 
Comments at 8; Anterix Reply Comments at 4.
    \122\ EEI Initial Comments at 6-7; Anterix Reply Comments at 4.; 
Avangrid Initial Comments at 5; TAPS Initial Comments at 5; Ohio 
Consumers' Counsel Initial Comments at 7.
    \123\ TAPS Initial Comments at 5; Ohio Consumers' Counsel 
Initial Comments at 8.
---------------------------------------------------------------------------

    62. California Parties and NRECA emphasize that modifications to 
the PQ List should only be made via a full rulemaking process where 
stakeholders and customers have the opportunity to comment.\124\ 
California Parties further argue that the Commission should not expand 
the initial PQ List in its final rule without a full notice-and-comment 
period for the suggested additions.\125\ TAPS highlights that the 
rulemaking process will improve regulatory certainty for utilities and 
customers and facilitate participation and input on whether proposed 
expenditures meet the eligibility criteria.\126\
---------------------------------------------------------------------------

    \124\ NRECA Initial Comments at 8-9; California Parties Initial 
Comments at 33-34.
    \125\ California Parties Initial Comments at 11-12.
    \126\ TAPS Initial Comments at 5.
---------------------------------------------------------------------------

    63. Indicated PJM Transmission Owners \127\ and Anterix recommend 
that the Commission hold a technical conference to inform its decision 
making on reviewing and updating the eligible expenditures on the PQ 
List.\128\
---------------------------------------------------------------------------

    \127\ Indicated PJM Transmission Owners consist of: American 
Electric Power Service Corporation on behalf of its affiliates, 
Appalachian Power Company, Indiana Michigan Power Company, Kentucky 
Power Company, Kingsport Power Company, Ohio Power Company, Wheeling 
Power Company, AEP Appalachian Transmission Company, Inc., AEP 
Indiana Michigan Transmission Company, Inc., AEP Kentucky 
Transmission Company, Inc., AEP Ohio Transmission Company, Inc., and 
AEP West Virginia Transmission Company, Inc.; Dayton Power and Light 
Company d/b/a AES Ohio; Dominion Energy Services, Inc. on behalf of 
Virginia Electric and Power Company d/b/a Dominion Energy Virginia; 
Duke Energy Corporation on behalf of its affiliates Duke Energy 
Ohio, Inc., Duke Energy Kentucky, Inc., and Duke Energy Business 
Services LLC; Duquesne Light Company; East Kentucky Power 
Cooperative; Exelon Corporation; FirstEnergy Service Company, on 
behalf of its affiliates American Transmission Systems, 
Incorporated, Jersey Central Power & Light Company, Mid-Monongahela 
Power Company, Keystone Appalachian Transmission Company, and Trans-
Allegheny Interstate Line Company; PPL Electric Utilities 
Corporation; Public Service Electric and Gas Company; Rockland 
Electric Company; and UGI Utilities Inc.
    \128\ Indicated PJM Transmission Owners Initial Comments at 5; 
Anterix Initial Comments at 12-13.
---------------------------------------------------------------------------

iii. Commission Determination
    64. We adopt and modify the NOPR's proposal to create a PQ List by 
adding Sec.  35.48(e)(1) to the Commission's regulations, which 
establishes the framework for a PQ List of cybersecurity investments 
that the Commission finds materially improves cybersecurity. We find 
that the cybersecurity investments on the PQ List would be entitled to 
a presumption of satisfying the eligibility criteria. As proposed in 
the NOPR, protestors may seek to rebut this presumption by 
demonstrating that, given the unique circumstances of the utility, the 
cybersecurity investment on the PQ List would not materially improve 
cybersecurity of the utility. We note that the utility would still need 
to demonstrate that it would make the cybersecurity investment 
voluntarily. In addition, the Commission will not presume anything 
about the resulting rates. Utilities seeking an incentive under the PQ 
List must still show that the proposed rate, including the 
cybersecurity incentive, is just and reasonable and not unduly 
discriminatory or preferential.
    65. The PQ List approach is also in line with FPA section 
219A(d)(2), which allows the Commission to reduce the cybersecurity 
risks to the facilities of small or medium-sized public utilities with 
limited cybersecurity resources.\129\ While all utilities would benefit 
from the reduced filing obligations when requesting incentive treatment 
for cybersecurity investments on the PQ List, we expect that this 
approach would be particularly beneficial for small and medium-sized 
utilities with limited cybersecurity resources.
---------------------------------------------------------------------------

    \129\ FPA section 219A(d)(2) provides that the Commission may 
provide additional incentives beyond incentive-based rate treatment 
in any case which the Commission determines that an investment in 
Advanced Cybersecurity Technology or in information sharing program 
costs will reduce cybersecurity risks to facilities of small or 
medium-sized public utilities with limited cybersecurity resources, 
as determined by the Commission. IIJA, Public Law 117-58, section 
40123, 135 Stat. at 952 (to be codified at 16 U.S.C. 824s-1(d)(2)).
---------------------------------------------------------------------------

    66. We disagree with concerns that including cybersecurity 
investments on the PQ List would lessen cybersecurity innovation or 
alert adversaries of utility cybersecurity investment. Regarding 
lessening innovation, as an initial matter, we note that utilities may 
still seek to recover in their rates all prudently incurred 
cybersecurity investments. Furthermore, as described in section 
III.B.2, we are adding a case-by-case approach that may better incent 
cybersecurity investments responding to rapidly evolving threats than 
does the PQ List. Regarding concerns about alerting adversaries, we 
find that such assertions are speculative and that describing and 
providing incentives to broadly beneficial cybersecurity investments 
will not unto itself

[[Page 28358]]

highlight either industry-wide or utility-specific vulnerabilities.
    67. We disagree with comments recommending that we designate the PQ 
List as CEII. The PQ List does not meet the definition of CEII, because 
the list is general in nature and does not reveal specific 
vulnerabilities.\130\ As discussed in section III.D.3.c., requests for 
incentive-based rate treatment for cybersecurity investments may 
include requests for CEII treatment consistent with our 
regulations.\131\ As we approve additional PQ List items, we expect 
that any future PQ List item will not be more specific than what can be 
found in the already publicly available materials, such as the NIST 
publications and CIP Reliability Standards. We decline to adopt 
Alliant's recommendation that the Commission defer to NERC to identify 
eligible technologies for the PQ List. The Commission will evaluate 
potential cybersecurity technologies from time to time, and determine, 
based on the record evidence, whether it would be appropriate to add 
the proposed cybersecurity investments in these technologies to the PQ 
List.
---------------------------------------------------------------------------

    \130\ See 18 CFR 388.113(c).
    \131\ See 18 CFR 388.113.
---------------------------------------------------------------------------

    68. We disagree with comments that the PQ List approach places an 
undue burden on parties seeking to rebut the presumption of 
eligibility. We believe that the PQ List approach appropriately 
balances the interests of the utilities and any potential protestors 
seeking to rebut the presumption of eligibility. By starting with the 
initial PQ List, we have identified specific cybersecurity investments 
that we find will materially improve the cybersecurity of utilities 
broadly, while enabling protestors to demonstrate that the eligibility 
criteria are not met in a utility's particular circumstance.
    69. We acknowledge the concerns raised by commenters regarding the 
time necessary for the Commission to modify the PQ List. Some 
commenters request that the Commission commit to a regular update cycle 
for the PQ List. In this final rule, the Commission modifies the 
proposed regulation to allow the Commission to post the PQ List on its 
website and to update it subject to a notice and comment period or in a 
rulemaking. In addition, the case-by-case approach allows the 
Commission to evaluate whether a utility's cybersecurity investment 
would satisfy the eligibility criteria as to that utility. This means 
that utilities would not have to wait for the Commission to update the 
PQ List before seeking incentives for cybersecurity investments not yet 
included on the PQ List. In response to Indicated PJM Transmission 
Owners and Anterix's suggestion to have a technical conference when 
considering updates to the PQ List, we note that the Commission will 
consider such action when undertaking its periodic PQ List reviews.
b. Initial PQ Lis
i. NOPR Proposal
    70. The Commission proposed to include two eligible cybersecurity 
investments on the initial PQ List: (1) expenditures associated with 
participation in CRISP; \132\ and (2) expenditures associated with 
internal network security monitoring within the utility's cyber 
systems, which could include IT cyber systems and/or OT cyber systems, 
and which could be associated with cyber systems that may or may not be 
subject to the Reliability Standards.\133\ The Commission believed that 
these cybersecurity investments would materially improve cybersecurity 
\134\ and were not already mandated by the Reliability Standards \135\ 
or otherwise mandated by Federal law. The Commission proposed to 
include CRISP, as its purpose is to facilitate the timely bi-
directional sharing of unclassified and classified threat information 
and development of situational awareness tools that enhance the energy 
sector's ability to identify, prioritize, and coordinate the protection 
of critical infrastructure and key resources.\136\
---------------------------------------------------------------------------

    \132\ See DOE, Energy Sector Cybersecurity Preparedness, https://www.energy.gov/ceser/energy-sector-cybersecurity-preparedness.
    \133\ NOPR, 180 FERC ] 61,189 at P 28.
    \134\ 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.
    \135\ The Commission noted in the NOPR that it had already 
proposed to require NERC to develop and submit for Commission 
approval a mandatory Reliability Standard regarding internal network 
analysis and monitoring technologies for high and medium impact bulk 
electric system cyber systems. See NOPR, 180 FERC ] 61,189 at P 28 
n.26 (citing Internal Network Sec. Monitoring for High & Medium 
Impact Bulk Elec. Sys. Cyber Syss., Notice of Proposed Rulemaking, 
87 FR 4173 (Jan. 27, 2022), 178 FERC ] 61,038 (2022)). The 
Commission has since issued a final rule directing NERC to develop 
and submit for Commission approval a Reliability Standard that 
addresses internal network security monitoring for high impact bulk 
electric system cyber systems and medium impact bulk electric system 
cyber systems with external routable connectivity. Internal Network 
Sec. Monitoring for High & Medium Impact Bulk Elec. Sys. Cyber 
Syss., Order No. 887, 88 FR 8354 (Feb. 9, 2023), 182 FERC ] 61,021 
(2023).
    \136\ DOE, Energy Sector Cybersecurity Preparedness, https://www.energy.gov/ceser/energy-sector-cybersecurity-preparedness.
---------------------------------------------------------------------------

    71. The Commission also proposed to include internal network 
security monitoring on the PQ List because internal network security 
monitoring may better position a utility to detect malicious activity 
that has circumvented perimeter controls.\137\ The Commission observed 
that, while the currently effective Reliability Standards do not 
require internal network security monitoring, NERC has recognized the 
proliferation and usefulness of such technology.\138\ The Commission 
also sought comments on whether to include any additional cybersecurity 
investments on the initial PQ List.
---------------------------------------------------------------------------

    \137\ NOPR, 180 FERC ] 61,189 at P 29.
    \138\ Id. (citing NERC, ERO Enterprise CMEP Practice Guide: 
Network Monitoring Sensors, Centralized Collectors, and Information 
Sharing, 1 (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 DOE initiative ``to advance 
technologies and systems that will provide cyber visibility, 
detection, and response capabilities for [industrial control 
systems] of electric utilities.'').
---------------------------------------------------------------------------

ii. Comments
    72. NERC, DOE, and Microsoft support the inclusion of CRISP on the 
PQ List.\139\ EEI and American Electric Power Service Corporation (AEP) 
support incentives for both new and existing participants of 
CRISP.\140\ EEI argues that, because participation in cybersecurity 
threat information sharing programs is an ongoing action and CRISP 
participants have to occasionally upgrade technology, existing 
participants should be eligible to receive an incentive.\141\
---------------------------------------------------------------------------

    \139\ NERC Initial Comments at 3; DOE Reply Comments at 7; 
Microsoft Initial Comments at 2.
    \140\ EEI Initial Comments at 11; EEI Reply Comments at 5. AEP 
Initial Comments at 4.
    \141\ EEI Initial Comments at 11; EEI Reply Comments at 5.
---------------------------------------------------------------------------

    73. APPA and California Parties oppose the Commission providing 
incentives for existing CRISP participants.\142\ APPA and California 
Parties argue that an incentive must be an inducement for future action 
and cannot provide an incentive for actions already taken, such as 
recovery of an incentive for ongoing participation in CRISP if a 
utility is already a participant.\143\ APPA further adds that CRISP 
participants report high satisfaction with the program and thus do not 
need an incentive to continue participation.\144\ The Maryland and 
Pennsylvania Commissions and California Parties note that most major

[[Page 28359]]

investor-owned utilities are already part of CRISP, whether 
individually or as members of a respective regional transmission 
organization or independent system operator.\145\
---------------------------------------------------------------------------

    \142\ APPA Initial Comments at 5; California Parties Initial 
Comments at 10; California Parties Reply Comments at 8-9.
    \143\ APPA Initial Comments at 12-13; California Parties Initial 
Comments at 10; California Parties Reply Comments at 8-9.
    \144\ APPA Initial Comments at 13-14.
    \145\ Maryland and Pennsylvania Commissions Initial Comments at 
9; California Parties Initial Comments at 7-8.
---------------------------------------------------------------------------

    74. EEI, UMass Lowell Applied Research Corporation (UMLARC), Ohio 
FEA, and Microsoft recommend that the Commission consider for inclusion 
on the PQ List additional eligible cybersecurity threat information 
sharing programs.\146\ EEI recommends that the PQ List be expanded to 
include other federally funded or supported cybersecurity threat 
information sharing programs,\147\ while Ohio FEA suggests that the 
National Cyber Security Division cyber-response programs under DHS 
should be included in the PQ List.\148\ Microsoft recommends modifying 
the proposed language to be solution-neutral and outcome-focused to 
accommodate other timely bi-directional threat information-sharing 
programs.\149\
---------------------------------------------------------------------------

    \146\ EEI Initial Comments at 6; UMLARC Initial Comments at 4; 
Ohio FEA Initial Comments at 7-8.; Microsoft Initial Comments at 2.
    \147\ EEI Initial Comments at 6.
    \148\ Ohio FEA Initial Comments at 7-8.
    \149\ Microsoft Initial Comments at 2.
---------------------------------------------------------------------------

    75. Microsoft and EEI support the inclusion of internal network 
security monitoring on the initial PQ List.\150\ EEI further recommends 
that the Commission broaden the eligibility for incentives to 
cybersecurity capabilities across protective and detective controls, 
not only those limited to internal network security monitoring.\151\ 
Similarly, SecurityScorecard suggests that the Commission broaden its 
focus from internal network security monitoring to continuous 
monitoring so as to secure both the perimeter and internal 
network.\152\ Microsoft supports eligible expenditures associated with 
internal network security monitoring as cybersecurity best practices 
consistent with a Zero Trust security model, including technologies 
associated with asset discovery, inventory and management, network 
monitoring, traffic classification, and behavior analytics within the 
internal environment.\153\
---------------------------------------------------------------------------

    \150\ Id.; EEI Initial Comments at 5.
    \151\ EEI Initial Comments at 5.
    \152\ SecurityScorecard Initial Comments at 6.
    \153\ Microsoft Initial Comments at 2.
---------------------------------------------------------------------------

    76. While acknowledging the cybersecurity benefits of internal 
network security monitoring, APPA and California Parties do not support 
its inclusion on the PQ List.\154\ California Parties state that 
utilities have sufficient financial incentives to allocate funding 
towards internal network security monitoring through the Commission's 
existing cost recovery mechanisms, and that mandatory CIP Reliability 
Standards are better suited than incentives for facilitating widespread 
adoption of internal network security monitoring.\155\ APPA argues that 
internal network security monitoring is not a category of expenditures 
that can be presumed to materially improve cybersecurity prior to 
agreement on best practices.\156\ In their reply comments, California 
Parties echo APPA's concerns and note the lack of consensus between 
commenters as to what qualifies as internal network security 
monitoring.\157\
---------------------------------------------------------------------------

    \154\ APPA Initial Comments at 18; California Parties Initial 
Comments at 13-14.
    \155\ California Parties Initial Comments at 13-14.
    \156\ APPA Initial Comments at 18.
    \157\ California Parties Reply Comments at 10.
---------------------------------------------------------------------------

    77. NERC notes that the CIP Reliability Standards are technology-
neutral and do not prescribe specific technological methods, tools, or 
approaches to reach compliance.\158\ NERC states that utilities and 
other NERC-registered entities may already be using internal network 
security monitoring in combination with other tools or processes to 
comply with Reliability Standards and therefore cautions that it may be 
difficult to determine whether a particular cybersecurity investment is 
mandatory for purposes of analyzing the second eligibility criterion.
---------------------------------------------------------------------------

    \158\ NERC Initial Comments at 4-5.
---------------------------------------------------------------------------

    78. UMLARC argues that defense communities face particular 
cybersecurity risks. UMLARC explains that certain defense communities 
are implementing community cyber force pilot programs. UMLARC 
recommends that the Commission place community cyber forces for 
information-sharing programs on the PQ List, while noting that these 
programs are still in pilot phases.\159\
---------------------------------------------------------------------------

    \159\ UMLARC Initial Comments at 4.
---------------------------------------------------------------------------

    79. NERC recommends that the Commission consider the deployment of 
sensors as part of an operational technology visibility program, 
administered by the Electricity Information Sharing and Analysis Center 
(E-ISAC), for inclusion on the PQ List.\160\ Microsoft, MISO 
Transmission Owners,\161\ and EEI support the inclusion of internal 
network security monitoring on the PQ List but recommend that internal 
network security monitoring expenditures be consistent with a Zero 
Trust security model.\162\ EEI suggests that technology and processes 
to implement, manage, and monitor user and endpoint behavioral analysis 
be added to the PQ List.\163\
---------------------------------------------------------------------------

    \160\ NERC Initial Comments at 4.
    \161\ MISO Transmission Owners consist of: Ameren Services 
Company, as agent for Union Electric Company d/b/a Ameren Missouri, 
Ameren Illinois Company d/b/a Ameren Illinois and Ameren 
Transmission Company of Illinois; American Transmission Company LLC; 
Big Rivers Electric Corporation; Central Minnesota Municipal Power 
Agency; City Water, Light & Power (Springfield, IL); Cleco Power 
LLC; Dairyland Power Cooperative; Duke Energy Business Services, LLC 
for Duke Energy Indiana, LLC; East Texas Electric Cooperative; 
Entergy Arkansas, LLC; Entergy Louisiana, LLC; Entergy Mississippi, 
LLC; Entergy New Orleans, LLC; Entergy Texas, Inc.; Great River 
Energy; GridLiance Heartland LLC; Hoosier Energy Rural Electric 
Cooperative, Inc.; Indiana Municipal Power Agency; Indianapolis 
Power & Light Company; Lafayette Utilities Systems; MidAmerican 
Energy Company; Minnesota Power (and its subsidiary Superior Water, 
L&P); Montana-Dakota Utilities Co.; Northern Indiana Public Service 
Company LLC; Northern States Power Company, a Minnesota corporation, 
and Northern States Power Company, a Wisconsin corporation, 
subsidiaries of Xcel Energy, Inc.; Northwestern Wisconsin Electric 
Company; Otter Tail Power Company; Prairie Power, Inc.; Republic 
Transmission, LLC; Southern Illinois Power Cooperative; Southern 
Indiana Gas & Electric Company (d/b/a CenterPoint Energy Indiana 
South); Southern Minnesota Municipal Power Agency; Wabash Valley 
Power Association, Inc.; and Wolverine Power Supply Cooperative, 
Inc.
    \162\ Microsoft Initial Comments at 2; MISO Transmission Owners 
Initial Comments at 6-7; EEI Initial Comments at 5-6.
    \163\ EEI Initial Comments at 5-6.
---------------------------------------------------------------------------

    80. DOE states that the PQ List should be expanded to include other 
information sharing programs, as well as permit case-by-case basis 
evaluation of other investments.\164\ When considering whether to 
expand eligible information-sharing programs on the PQ List, DOE 
recommends that the Commission consider whether investments for 
participating in other Department-led cybersecurity programs, such as 
C2M2, materially improve the security posture of the utility.\165\ DOE 
suggests the specific inclusion of the Cybersecurity for the 
Operational Technology Environment program on the PQ List.\166\ EEI 
broadly suggests that the Commission expand the PQ List to include 
other federally funded or supported cybersecurity threat information 
sharing programs.\167\
---------------------------------------------------------------------------

    \164\ DOE Reply Comments at 6-12.
    \165\ Id. at 10.
    \166\ Id.
    \167\ EEI Initial Comments at 6.
---------------------------------------------------------------------------

    81. Anterix recommends that the Commission include expenditures for 
private LTE wireless broadband communication systems as an item 
eligible for incentives on the PQ List.\168\ MISO Transmission Owners 
and International Transmission Companies

[[Page 28360]]

(ITC Companies) \169\ recommend that the Commission add expenditures 
for utility-owned private fiber networks to the PQ List, as well as 
expenditures made to upgrade or replace legacy operating systems.\170\ 
They further suggest that the Commission should expand the PQ List to 
include advanced cybersecurity expenditures to address physical 
security, such as biometric identification, access cards or access 
control systems.\171\
---------------------------------------------------------------------------

    \168\ Anterix Initial Comments at 5.
    \169\ ITC Companies d/b/a ITCTransmission, Michigan Electric 
Transmission Company, LLC, ITC Midwest LLC, and Great Plains, LLC.
    \170\ MISO Transmission Owners Initial Comments at 6-7; ITC 
Companies Initial Comments at 5-6.
    \171\ MISO Transmission Owners Initial Comments at 6-7; ITC 
Companies Initial Comments at 5-6.
---------------------------------------------------------------------------

    82. Microsoft and EEI both recommend inclusion of user and endpoint 
behavioral analysis.\172\ Avangrid and the Operational Technology 
Cybersecurity Coalition (OT Coalition) advocate for the addition of 
hardware and software risk management tools aimed to help identify 
cybersecurity threats to suppliers and vendors.\173\ MISO Transmission 
Owners additionally propose that the Commission expand the PQ List to 
include cybersecurity expenditures such as for DHS's CyberSentry 
hardware and software.\174\
---------------------------------------------------------------------------

    \172\ Microsoft Initial Comments at 2; EEI Initial Comments at 
6-7.
    \173\ Avangrid Initial Comments at 6; OT Coalition Initial 
Comments at 3.
    \174\ MISO Transmission Owners Initial Comments at 6.
---------------------------------------------------------------------------

    83. Microsoft recommends expanding the PQ List to include cloud-
enabled security solutions, threat intelligence, vulnerability 
assessment, access control and privileged access management, endpoint 
detection and response, firewall and network management, and 
multifactor authentication and biometrics.\175\ EEI suggests that the 
Commission consider adding technology and processes to develop threat 
hunting capability within IT and OT environments (e.g., incident 
response retainer fees, penetration tests, or vulnerability 
assessments; secure coding practices and consulting services to 
navigate Software Bill of Materials requirements; and data loss 
prevention capabilities).\176\
---------------------------------------------------------------------------

    \175\ Microsoft Initial Comments at 2.
    \176\ EEI Initial Comments at 5-6.
---------------------------------------------------------------------------

iii. Commission Determination
    84. We adopt and modify the NOPR's proposal and add Sec.  
35.48(e)(1) to the Commission's regulations to include two 
cybersecurity investments on the initial PQ List: (1) cybersecurity 
investments associated with participation in CRISP and (2) 
cybersecurity investments associated with internal network security 
monitoring within the utility's cyber systems. We find that both of 
these cybersecurity investments satisfy the eligibility criteria and 
both merit the rebuttable presumption.
    85. First, we include cybersecurity investments associated with a 
utility's participation in CRISP. We find that a utility's 
participation in CRISP materially improves cybersecurity because it 
involves utility participation in a cybersecurity threat information 
sharing program. We note that such participation falls under the 
recommendations in the NIST SP 800-53 Security and Privacy Controls for 
Information Systems and Organizations catalog. In addition, CRISP: (1) 
is facilitated by the Federal Government; (2) provides two-way 
communications from and to electric industry and government entities; 
and (3) delivers relevant and actionable cybersecurity information to 
participants within the United States electricity industry. Having 
found that participation in CRISP satisfies the first eligibility 
criterion, we include it on the initial PQ List.
    86. We are aware that many, but not all, utilities already 
participate in CRISP. Our inclusion of CRISP on the initial PQ List 
reflects the mandate in FPA section 291A(c) to establish incentive-
based rate treatments by encouraging participation in cybersecurity 
threat information sharing programs. The mandate to incentivize 
participation indicates that all CRISP participants, not just new 
entrants, should be eligible to seek an incentive for any new 
cybersecurity investment associated with their participation, so long 
as that participation is voluntary.
    87. Second, we include cybersecurity investments associated with a 
utility's investment in internal network security monitoring within the 
utility's cyber systems. As the Commission explained in the NOPR, a 
utility's cybersecurity investments associated with internal network 
security monitoring could include IT cyber systems and/or OT cyber 
systems and could be associated with cyber systems that may or may not 
be subject to the Reliability Standards.
    88. We find that cybersecurity investments associated with internal 
network security monitoring within the utility's cyber systems 
materially improves cybersecurity because they are investments in 
Advanced Cybersecurity Technology. Internal network security monitoring 
falls under the recommendations in the NIST SP 800-53 Security and 
Privacy Controls for Information Systems and Organizations catalog. 
Having found that cybersecurity investments associated with internal 
network security monitoring within the utility's cyber systems 
satisfies the first eligibility criterion, we will include it on the 
initial PQ List.
    89. NERC observes that some utilities may already use internal 
network security monitoring as part of their compliance with 
Reliability Standards and therefore cautions that it may be difficult 
to determine whether a particular cybersecurity investment is mandatory 
for purposes of determining whether such expenditures would qualify for 
incentive-based rate treatment. We have addressed this concern 
primarily in section III.A.3.c., and we reiterate that a utility's 
cybersecurity investments, including internal network security 
monitoring, made to comply with a Reliability Standard, will not be 
incentive-eligible because the utility did not make those investments 
voluntarily. However, there may be instances where a utility invests in 
internal network security monitoring that while complying with a 
Reliability Standard also provides enhanced cybersecurity protections 
that go beyond compliance with a Requirement in the Reliability 
Standard.\177\ Those incremental cybersecurity investments in internal 
network security monitoring that go beyond compliance with a 
Requirement in a Reliability Standard would be eligible for incentive-
based rate treatment provided that the utility demonstrates that the 
incremental cybersecurity investments satisfy the eligibility 
criteria.\178\ With regard to NERC's concern regarding the potential 
difficulty of discerning which cybersecurity investments for internal 
network security monitoring qualify for incentive-based rate treatment, 
it is incumbent upon the utility to demonstrate in its filing seeking 
an incentive that the associated expenses are for new internal network 
security monitoring that is in addition to its preexisting 
cybersecurity programs and go beyond compliance with a Requirement in 
the Reliability Standard.
---------------------------------------------------------------------------

    \177\ See infra section III.C.2.c. (discussing the availability 
of incentive-based rate treatment for new cybersecurity 
investments).
    \178\ We discuss in section III.D.3.c. the types of information 
that a utility would need to include in is filing of a request for 
incentive-based rate treatment for its cybersecurity investment. A 
utility seeking an incentive-based rate treatment for the 
incremental voluntary portion of its cybersecurity investment would 
need to identify its additional, voluntary cybersecurity investments 
that exceed the legal requirement. The utility would also need to 
distinguish the portion of the cybersecurity investment it made to 
comply with a legal requirement from the voluntary portion.
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    90. We decline at this time to add any additional cybersecurity 
investments to

[[Page 28361]]

the initial PQ List. Because of the rebuttable presumption afforded to 
items on the PQ List, it is important that the Commission have a high 
degree of confidence that such items will likely materially improve 
cybersecurity for all utilities. While many of the additional 
cybersecurity investments commenters suggest to include on the initial 
PQ List may indeed be beneficial investments that would improve 
cybersecurity, we find that suggestions offered by commenters either 
lack sufficient evidence to show they will materially improve 
cybersecurity across all utilities or lack sufficient specificity to be 
included on the PQ List at this time.
    91. As discussed in section III.B.1.a., the Commission will, from 
time to time, evaluate whether it would be appropriate to modify the PQ 
List. As the Commission updates the PQ List over time, entities may 
propose to add the items that the Commission does not accept in this 
final rule as well as other items, assuming that the entities can 
provide adequate support as to why it is appropriate to include these 
items. We also note that we are adding a case-by-case approach in 
addition to the PQ List approach, and utilities can seek an incentive 
for these investments on an individual basis, albeit without the 
presumption of eligibility.
    92. In response to SecurityScorecard's suggestion that the 
Commission broaden its focus from internal network security monitoring 
to continuous monitoring, we do not agree that the PQ List should be so 
expanded at this time, as we note that the CIP Reliability Standards 
already mandate perimeter monitoring in some form. In response to 
Microsoft and EEI's suggestions, we recognize the benefits of both the 
Zero Trust security model and deploying Security Information and Event 
Management processes. However, both are considered to be frameworks 
that guide cybersecurity investments rather than specific cybersecurity 
investments themselves. We note that the Commission could consider 
providing incentives to specific applications of either the Zero Trust 
security model or Security Information and Event Management on a case-
by-case basis, and, in the future, the Commission could consider adding 
specific applications of these concepts to the PQ List.
    93. We disagree with UMLARC that community cyber force 
informational-sharing programs should be on the PQ List. Community 
cyber forces are currently pilot programs. By their nature as pilot 
programs, community cyber forces do not have standardized specific 
attributes, nor do they have a proven track record for placement on a 
pre-qualified list. Given that we do not have a clear understanding of 
these pilot programs or any associated investments, at this time, we 
decline to add community cyber forces to the PQ List.
    94. We disagree with Anterix, MISO Transmission Owners, and ITC 
Companies' proposals to include investments in private communication 
systems such as LTE wireless and fiber networks on the PQ List. The use 
of private communication systems does not necessarily provide a 
cybersecurity benefit because the confidentiality of data transiting 
those networks may not be encrypted.
    95. The MISO Transmission Owners recommend that the Commission 
consider adding expenditures associated with the Department of Homeland 
Security's CyberSentry hardware and software to the PQ List.\179\ 
CyberSentry is a pilot program, and the record in this proceeding does 
not include enough evidence for us to determine whether CyberSenrty 
would materially improve the cybersecurity of all utilities. 
Nevertheless, CyberSentry uses sensors to monitor the IT and OT 
Networks for cyber security threats, and incentive-based rate treatment 
for these cybersecurity investments may already be eligible 
cybersecurity investments as internal network security monitoring.
---------------------------------------------------------------------------

    \179\ Department of Homeland Security, ICS Security Offerings 
Fact Sheet, https://www.cisa.gov/sites/default/files/publications/ics_security_offerings_fact_sheet_S508C.pdf (explaining that 
``CyberSentry is a voluntary pilot program that leverages best in 
breed, commercial off-the-shelf technologies, such as network 
intrusion detection tools, to identify malicious activity in 
Critical infrastructure (CI) ICS and corporate networks. CyberSentry 
participation increases real-time visibility into U.S. CI and 
provides the capability to detect nation-state adversaries on CI 
networks and derive cross-sector analytic insights.'').
---------------------------------------------------------------------------

    96. DOE recommends that the Commission consider including the 
Cybersecurity for the Operational Technology Environment 
(CyOTETM) program on the PQ List. According to DOE, this 
program enhances OT threat information-gathering for the energy 
sector.\180\ CyOTE is currently under development, and the record in 
this proceeding does not include enough evidence for us to determine 
whether cybersecurity investments associated with CyOTE would 
materially improve cybersecurity for all utilities. We find that MISO 
Transmission Owners' and ITC Companies' proposals to include 
investments made for physical access control systems, access cards, and 
biometrics are beyond the scope for this proceeding because they are 
not investments in Advanced Cybersecurity Technology or related to 
participation in a cybersecurity threat information sharing program. 
MISO Transmission Owners and ITC Companies also propose including 
investments for upgrading or replacing legacy systems. We find there is 
insufficient evidence in the record to determine whether the specific 
applications could be considered cybersecurity investments. 
Accordingly, we decline to include these investments on the PQ List.
---------------------------------------------------------------------------

    \180\ DOE, Cybersecurity for the Operational Technology 
Environment (CyOTE), https://www.energy.gov/ceser/cybersecurity-operational-technology-environment-cyote (stating that CyOTE is a 
``research initiative, led by CESER in partnership with Idaho 
National Laboratory and energy sector partners, aims to develop 
tools and capabilities that can provide energy asset owners and 
operators with timely alerts and actionable information.'').
---------------------------------------------------------------------------

    97. Cybersecurity investments in Advanced Cybersecurity Technology 
included on the PQ List must include at least one specific security 
control that materially improves the cybersecurity of all utilities, 
thus meriting a rebuttable presumption. We find that the proposals from 
Microsoft and EEI to expand the PQ List to cover a broader set of 
advanced cybersecurity solutions such as threat intelligence, 
vulnerability management, access control, and others are vague and lack 
the specificity needed to establish a record for inclusion on the PQ 
List. Proposals from Avangrid and the OT Coalition to include 
investments for hardware and software risk management tools similarly 
lack specificity. We therefore decline to include these investments on 
the PQ List at this time.
    98. While proposals from EEI to consider investments related to 
threat hunting, penetration tests, and consulting services for Software 
Bill of Materials requirements describe efforts to detect cybersecurity 
vulnerabilities, they also lack specificity with regard to mitigation 
and remediation of identified deficiencies. Microsoft and EEI both 
propose including investments for user and endpoint behavioral 
analysis, and NERC proposes including investments for the deployment of 
OT sensors. However, commenters do not demonstrate that these items are 
different in scope than what is already covered by internal network 
security monitoring on the PQ List. Therefore, we decline to include 
these investments on the PQ List at this time.
    99. As discussed in section III.B.1.a., the Commission will, from 
time to time, evaluate whether it would be appropriate to modify the PQ 
List. We also note that, because we are adding a case-by-case approach 
in addition to the PQ List approach, utilities can seek an incentive 
for investments not identified

[[Page 28362]]

on the PQ List, albeit without the presumption of eligibility.
2. Case-by-Case Approach
a. NOPR Proposal
    100. In the NOPR, the Commission recognized the limitations of only 
adopting the PQ List approach and sought comment on whether and, if so, 
how it should implement a case-by-case approach to grant 
incentives.\181\ The Commission explained that it could permit a 
utility to file for incentive-based rate treatment for any 
cybersecurity investment that the utility believes satisfies the 
eligibility criteria, and that the Commission would review such filings 
on a case-by-case basis, to determine whether the proposed 
cybersecurity expenditure satisfies the eligibility criteria.
---------------------------------------------------------------------------

    \181\ NOPR, 180 FERC ] 61,189 at P 32.
---------------------------------------------------------------------------

    101. The Commission further explained that its evaluation of a 
utility's application under the case-by-case approach would differ from 
its evaluation of a filing seeking incentives for items on the PQ List, 
although the eligibility criteria would be the same under either 
approach. Specifically, the case-by-case application would not receive 
a presumption of eligibility for any cybersecurity investment and the 
utility would bear the full burden to demonstrate in its filing that 
its cybersecurity investment meets the eligibility criteria. Just as it 
would in a filing for incentive treatment of a cybersecurity investment 
on the PQ List, the filing utility would also need to demonstrate that 
its proposed rate, inclusive of the incentive, is just and reasonable.
b. Comments
    102. OT Coalition, Avangrid, MISO Transmission Owners, EPSA, INGAA, 
EEI, Microsoft, Ohio Consumers' Counsel, Anterix, and DOE support the 
adoption of a case-by-case approach in addition to the PQ List 
approach.\182\ Alliant and the Maryland and Pennsylvania Commissions 
support the adoption of a case-by-case approach instead of the PQ List 
approach.\183\ TAPS, the Michigan Commission, APPA, and California 
Parties oppose the Commission adoption of a case-by-case approach.\184\
---------------------------------------------------------------------------

    \182\ OT Coalition Initial Comments at 2-3; Avangrid Initial 
Comments at 5, 6. MISO Transmission Owners Initial Comments at 4; 
EPSA Initial Comments at 5; INGAA Initial Comments at 4; EEI Initial 
Comments at 4-5; Microsoft Initial Comments at 2; Ohio Consumers' 
Counsel Initial Comments at 9; Anterix Initial Comments at 12-13; 
Anterix Reply Comments at 12; DOE Reply Comments at 10.
    \183\ Alliant Initial Comments at 4-5; Maryland and Pennsylvania 
Commissions Initial Comments at 7-8.
    \184\ TAPS Initial Comments at 7; Michigan Commission Initial 
Comments at 6; APPA Initial Comments at 5; California Parties 
Initial Comments at 31-32; California Parties Reply Comments at 12-
13.
---------------------------------------------------------------------------

    103. EEI, MISO Transmission Owners, INGAA, and Anterix describe the 
role of a case-by-case approach as a supplement to the PQ List 
approach, providing flexibility for the filing utilities.\185\ 
Microsoft, OT Coalition, and Ohio Consumers' Counsel highlight the use 
of the case-by-case approach as a mechanism both for utilities to file 
for incentives not on the PQ List and to inform additions to the PQ 
List.\186\ INGAA asserts that the case-by-case approach will encourage 
utilities to make qualifying investments not included on the PQ List, 
which will result in strengthening the security posture of the Bulk-
Power System.\187\ Avangrid states that the Commission should allocate 
sufficient human and financial resources to ensure timely review of 
case-by-case incentive requests.\188\
---------------------------------------------------------------------------

    \185\ EEI Initial Comments at 4-5; MISO Transmission Owners 
Initial Comments at 4; INGAA Initial Comments at 4; Anterix Initial 
Comments at 12-13; Anterix Reply Comments at 12.
    \186\ Microsoft Initial Comments at 2; OT Coalition Initial 
Comments at 2, 3; Ohio Consumers' Counsel Initial Comments at 9.
    \187\ INGAA Initial Comments at 4.
    \188\ Avangrid Initial Comments at 4.
---------------------------------------------------------------------------

    104. Alliant and the Maryland and Pennsylvania Commissions support 
the adoption of a case-by-case approach over the PQ List. Alliant 
argues that, due to the dynamic and rapid pace at which cybersecurity 
solutions become obsolete, the case-by-case approach will allow the 
Commission to review incentive requests in light of the most current 
technologies available and the overall needs of the utility.\189\ The 
Maryland and Pennsylvania Commissions assert that the case-by-case 
approach would encourage utilities to be more innovative in their 
cybersecurity improvements and allows an applicant to demonstrate how a 
particular incentive addresses the utility's actual needs or meets the 
statutory criteria specific to the individual utility.\190\ Ohio FEA 
argues that the PQ List approach alone is an inadequate approach 
because it will be unable to stay abreast of the ever-changing 
cybersecurity landscape.\191\
---------------------------------------------------------------------------

    \189\ Alliant Initial Comments at 4-5.
    \190\ Maryland and Pennsylvania Commissions Initial Comments at 
7-8.
    \191\ Ohio FEA Initial Comments at 9.
---------------------------------------------------------------------------

    105. TAPS, the Michigan Commission, APPA, and California Parties 
oppose the adoption of the case-by-case approach. The Michigan 
Commission supports the transparency and efficiency that the PQ List 
provides over the case-by-case approach.\192\ The Michigan Commission 
argues that, if a cybersecurity investment materially improves 
security, the investment should be considered for inclusion in the CIP 
Reliability Standards.\193\ TAPS also enumerates concerns with the 
efficiency and transparency of the case-by-case approach, as well as 
the potential for increased litigation expenses and slower adoption of 
Advanced Cybersecurity Technologies.\194\ APPA states that the case-by-
case approach would be administratively burdensome and lead to 
incentives for routine, best practice cybersecurity expenditures.\195\ 
California Parties argue that a case-by-case approach would be 
administratively infeasible and reduce regulatory certainty for filing 
utilities.\196\
---------------------------------------------------------------------------

    \192\ Michigan Commission Initial Comments at 6.
    \193\ Id. at 9.
    \194\ TAPS Initial Comments at 7-9.
    \195\ APPA Initial Comments at 17.
    \196\ California Parties Initial Comments at 31-32.
---------------------------------------------------------------------------

    106. The Iowa Utilities Board states that incentives under the 
case-by-case approach should be higher than those granted under the PQ 
List because the case-by-case approach drives innovation.\197\
---------------------------------------------------------------------------

    \197\ Iowa Utilities Board Initial Comments at 5-6.
---------------------------------------------------------------------------

c. Commission Determination
    107. We adopt a case-by-case approach to granting incentives by 
adding Sec.  35.48(e)(2) to the Commission's regulations, which permits 
a utility to demonstrate that a cybersecurity investment satisfies each 
of the eligibility criteria. Unlike the PQ List approach, the 
Commission will not presume that the requested cybersecurity investment 
satisfies the eligibility criteria. The utility requesting incentive-
based rate treatment would need to demonstrate in its filing that the 
cybersecurity investment(s) would materially improve cybersecurity for 
the utility requesting the incentive-based rate treatment.
    108. We find that allowing utilities to make case-by-case 
cybersecurity incentive requests in addition to PQ List requests 
provides several benefits. The case-by-case approach offers greater 
flexibility than the PQ List approach alone for utilities to respond to 
cybersecurity threats. In addition, reviewing cybersecurity investments 
on a case-by-case basis can help to inform the Commission about 
potential new additions that it could make to the PQ List in future 
proceedings. We believe

[[Page 28363]]

that, by allowing utilities to use more than one approach to show that 
a cybersecurity investment satisfies the eligibility criteria, we 
strike the right balance between customer protection, transparency, 
efficiency, and responsiveness to cybersecurity threats.
    109. In order to determine on a consistent and transparent basis 
whether a cybersecurity investment satisfies the first eligibility 
criterion, the Commission will consider evidence showing that the 
utility would invest in cybersecurity improvements that: (1) are based 
on a documented and recommended technical cybersecurity mitigation 
action published in an alert or advisory by a relevant Federal agency 
(e.g., CISA, DOE, FBI, DOD, NSA); \198\ and (2) respond to an alert or 
advisory that meets the objective of a subcategory of the NIST 
Cybersecurity Framework, or its successor, and references the related 
NIST 800-53 Security Control, or its successor.\199\ The Commission 
would base its assessment of the evidence on whether an incentive is 
appropriate on the mitigation actions detailed in the specified 
agencies' alerts and advisories along with the NIST Cybersecurity 
Framework and NIST 800-53 Security Controls to determine whether the 
utility's proposed cybersecurity investment would materially improve 
its cybersecurity.
---------------------------------------------------------------------------

    \198\ Technical cybersecurity mitigation action means a 
recommended action requiring the purchase of software, hardware, or 
third-party services.
    \199\ Some alerts may reference specific NIST 800-53 Security 
Controls, while others may reference security controls generally. 
One example of a case-by-case request for incentive-based rate 
treatment of cybersecurity investments is a utility requesting an 
incentive for an implementation of data backup procedures on both 
the IT and OT networks. This type of action is specifically 
recommended in the CISA ``Shields Up'' Alert. See CISA, Essential 
Element: Your Data (Oct. 15, 2020), https://www.cisa.gov/sites/default/files/publications/Cyber%20Essentials%20Toolkit%205%2020201015_508.pdf. Further, this 
action is covered by the NIST Cybersecurity Framework Category 
Information Protection Processes and Procedures, subcategory 4 and 
thus would be evidence that this proposed implementation would 
materially improve the utility's cybersecurity.
---------------------------------------------------------------------------

    110. As discussed in section III.A.3. and consistent with the 
Commission's evaluations of PQ List cybersecurity investments in 
section III.B.1.a., under the case-by-case approach a utility would 
still need to demonstrate that it would make the cybersecurity 
investment voluntarily, and that the proposed rate, including the 
cybersecurity incentive, is just and reasonable and not unduly 
discriminatory or preferential.
    111. We decline to add any additional eligibility criteria to our 
regulations that would apply only to cybersecurity investments that are 
not included on the PQ List. We find that the eligibility criteria in 
our regulations are sufficient for incentive requests that use either 
the PQ List or case-by-case approach. Similarly, we decline to offer 
different forms of incentives for cybersecurity investments based on 
whether or not the investment appears on the PQ List. We are not 
convinced that the benefits of cybersecurity investments made that are 
on the PQ List or for which a utility requests incentives on a case-by-
case basis differ and would therefore merit disparate incentive levels 
because all incentive-eligible investments under both mechanisms must 
satisfy the requirement to materially improve cybersecurity in the 
first eligibility criterion.
3. Early Compliance With Approved Reliability Standards
a. NOPR Proposal
    112. In the NOPR, the Commission proposed the second eligibility 
criterion limiting incentive-based rate treatment to cybersecurity 
investments that a utility made voluntarily.\200\ The NOPR also sought 
comment on whether the second eligibility criterion was appropriate and 
whether there were additional criteria or limitations that the 
Commission should consider, including any potential refinements, and 
any other criteria for incentive eligibility that the Commission should 
adopt in the final rule. Finally, the NOPR proposed to allow a utility 
granted a cybersecurity incentive to receive that incentive until the 
investment or activity that serves as the basis of that incentive 
become mandatory pursuant to a Reliability Standard approved by the 
Commission.\201\ This would include cybersecurity investments made by a 
utility to comply with Reliability Standards that the Commission has 
already approved pursuant to Sec.  39.5(d) of the Commission's 
regulations, but that have not yet taken effect pursuant to the 
implementation plan approved by the Commission.
---------------------------------------------------------------------------

    \200\ Id. PP 20, 22.
    \201\ Id. P 46.
---------------------------------------------------------------------------

b. Comments
    113. Many commenters discuss how the NOPR's proposed incentives 
would interact with and affect the CIP Reliability Standards and 
development processes. Indicated PJM Transmission Owners, the Michigan 
Commission, and EPSA note that incentives could supplement the time-
intensive NERC standards development process.\202\ APPA and Alliant 
express concern that providing incentives for cybersecurity investments 
would disincentivize the timely development of CIP Reliability 
Standards.\203\ NERC advises the Commission to develop rate incentives 
for voluntary cybersecurity investments that build upon and complement 
existing CIP Reliability Standards.\204\ NERC and TAPS advise the 
Commission to consider how the proposed incentives will affect 
compliance with the CIP Reliability Standards.\205\
---------------------------------------------------------------------------

    \202\ Indicated PJM Transmission Owners Initial Comments at 5; 
Michigan Commission Initial Comments at 9; EPSA Initial Comments at 
2.
    \203\ APPA Initial Comments at 13-14; Alliant Initial Comments 
at 7-8.
    \204\ NERC Initial Comments at 3.
    \205\ Id. at 4; TAPS Initial Comments at 12.
---------------------------------------------------------------------------

    114. Indicated PJM Transmission Owners support the availability of 
incentives to early adopters of cybersecurity technology.\206\ The 
Michigan Commission discusses an approach in which the proposed 
Cybersecurity Regulatory Asset Incentive would be used to facilitate 
cybersecurity investments during the period in which said investments 
are evaluated for inclusion in the CIP Reliability Standards.\207\ EPSA 
notes that the nature of the long, detailed process to develop and 
implement NERC CIP Reliability Standards may not be able to keep up 
with the rapidly evolving nature of cybersecurity threats.\208\ EPSA 
states that it is prudent to provide incentives for protections to 
address rapidly evolving technologies to ensure a reliable, resilient, 
and operational electric grid.\209\
---------------------------------------------------------------------------

    \206\ Indicated PJM Transmission Owners Initial Comments at 5.
    \207\ Michigan Commission Initial Comments at 9.
    \208\ EPSA Initial Comments at 2.
    \209\ Id.
---------------------------------------------------------------------------

    115. The Maryland and Pennsylvania Commissions argue that making 
incentives available in the period before the completion of mandatory 
standards does not expedite the standards process or the voluntary 
adoption of improvements.\210\ On the contrary, they assert that the 
proposed incentives actually would encourage delays in the standards 
development process so utilities could recover incentives for voluntary 
implementation.\211\ The Maryland and Pennsylvania Commissions further 
note that the proposed incentives do not provide a tapering off period, 
such as over the time frame in which a CIP Reliability Standard is 
being developed. They assert that such a tapering period would

[[Page 28364]]

motivate utilities to implement material improvements as early as 
possible.\212\
---------------------------------------------------------------------------

    \210\ Maryland and Pennsylvania Commissions Initial Comments at 
10.
    \211\ Id. at 10.
    \212\ Id. at 10.
---------------------------------------------------------------------------

    116. APPA recommends that the Commission modify the proposed 
eligibility criteria in a manner that would disallow incentives for 
early adoption of CIP Reliability Standards.\213\ Instead of a 
cybersecurity expenditure losing eligibility when it becomes mandatory 
pursuant to a CIP Reliability Standard, APPA recommends that the cut 
off for incentives should be the earlier of: (1) the date of any 
Commission directive that would require the investment; or (2) the date 
that a Standards Authorization Request is submitted to NERC to require 
that incentive.\214\ APPA argues that it would not be just or 
reasonable to provide an incentive to a utility for an investment where 
a new or revised mandatory Reliability Standard is pending.\215\
---------------------------------------------------------------------------

    \213\ APPA Initial Comments at 13-14.
    \214\ Id. at 13-14.
    \215\ Id. at 13-14.
---------------------------------------------------------------------------

c. Commission Determination
    117. We adopt an application of the case-by-case method for 
utilities to satisfy the eligibility criteria by adding Sec.  
35.48(e)(3) to the Commission's regulations, which permits utilities to 
receive incentives for cybersecurity investments made to comply with a 
cybersecurity-related CIP Reliability Standard (i.e., excluding CIP 
Reliability Standards that may be related to physical security and not 
cybersecurity) approved by the Commission before that CIP Reliability 
Standard becomes mandatory and enforceable for that utility. In 
general, cybersecurity investments made by a utility to comply and 
maintain its compliance with a Commission-approved Reliability Standard 
will materially improve the utility's cybersecurity. Filing utilities 
would need to demonstrate that the cybersecurity investment(s) it will 
make are necessary to comply with the Reliability Standard, and that it 
will make those cybersecurity investments prior to the date that the 
Reliability Standard is mandatory and enforceable for that 
utility.\216\ Those cybersecurity investments made by the utility 
before the newly-approved Reliability Standard becomes effective (i.e., 
mandatory and enforceable) are voluntary. Those cybersecurity 
investments made by the utility after the newly-approved Reliability 
Standard becomes effective and mandatory are no longer voluntary. As 
required by the second eligibility criteria, all of the utility's 
cybersecurity investments incurred to comply with a Reliability 
Standard after the Reliability Standard becomes mandatory and 
enforceable for that utility are ineligible for incentive-based rate 
treatment.
---------------------------------------------------------------------------

    \216\ In addition, as explained below, filings seeking the 
incentives would have to comply with the filed rate doctrine. See 
Exxon Mobil Corp. v. FERC, 571 F.3d 1208, 1211 (D.C. Cir. 2009) 
(citing Towns of Concord, Norwood, & Wellesley v. FERC, 955 F.2d 67, 
71 & n.2 (D.C. Cir. 1992); Ark. La. Gas Co. v. Hall, 453 U.S. 571, 
577-578 (1981)) (``The Commission may not retroactively alter a 
filed rate to compensate for prior over- or underpayments. A 
corollary to this rule against retroactive ratemaking, the filed 
rate doctrine, forbids a regulated entity to charge rates for its 
services other than those properly filed with the appropriate 
regulatory authority. Together, these rules generally limit the 
relief the Commission may order to prospective [rates].'') (cleaned 
up).
---------------------------------------------------------------------------

    118. We find that allowing utilities to receive an incentive to 
comply with a Commission-approved cybersecurity-related CIP Reliability 
Standard before it becomes mandatory and enforceable could materially 
improve their cybersecurity posture during that period. In addition, we 
find that permitting an incentive for early compliance with approved 
cybersecurity-related CIP Reliability Standards will help to bridge 
gaps between voluntary cybersecurity measures and the cybersecurity 
measures mandated in the CIP Reliability Standards. It is possible that 
allowing utilities to receive incentives for early compliance could 
unintentionally incentivize standards drafting teams' artificial 
lengthening of the implementation period to increase the amount of time 
a utility could receive incentives. Nevertheless, the Commission would 
continue to consider whether the implementation time is reasonable when 
determining whether to approve the proposed CIP Reliability 
Standard.\217\
---------------------------------------------------------------------------

    \217\ See Rules Concerning Certification of the Elec. 
Reliability Org.; & Procs. for the Establishment, Approval, & Enf't 
of Elec. Reliability Standards, Order No. 672, 71 FR 8662 (Feb. 17, 
2006), 114 FERC ] 61,104, at P 333, order on reh'g, Order No. 672-A, 
71 FR 19814 (Apr. 18, 2006), 114 FERC ] 61,328 (2006) (``In 
considering whether a proposed Reliability Standard is just and 
reasonable, the Commission will consider also the timetable for 
implementation of the new requirements, including how the proposal 
balances any urgency in the need to implement it against the 
reasonableness of the time allowed for those who must comply'').
---------------------------------------------------------------------------

    119. We clarify that the cybersecurity investments made by a 
utility to achieve early compliance with an approved cybersecurity-
related CIP Reliability Standard may be eligible for incentive-based 
rate treatment. We reiterate that, after receiving Commission 
authorization for incentive-based rate treatment, the utility may only 
collect the incentive during the period that begins with the utility 
achieving compliance with the approved cybersecurity-related CIP 
Reliability Standard and that ends according to the duration provisions 
of Sec.  35.48(g), as further discussed in section III.D.\218\ 
Therefore, the earlier that a utility complies with a new CIP 
Reliability Standard, the longer the utility's incentive recovery 
period may be.
---------------------------------------------------------------------------

    \218\ In addition to having its rate that includes incentive-
based treatment on file with the Commission, a utility must submit 
an informational filing to the Commission notifying the Commission 
of the date that it has achieved compliance with the approved 
cybersecurity-related CIP Reliability Standard.
---------------------------------------------------------------------------

C. Cybersecurity Investment Rate Incentives

    120. The Commission proposed two potential rate incentive options 
for utilities that make eligible cybersecurity investments: (1) the 
Cybersecurity ROE Incentive, an ROE adder of 200 basis points that 
would be applied to the incentive-eligible investments; \219\ and (2) 
the Cybersecurity Regulatory Asset Incentive, 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.\220\ 
The Commission stated that both offer meaningful incentives to 
encourage cybersecurity investments that improve a utility's 
cybersecurity posture.\221\ The Commission also sought comment on 
whether, and if so how, the principles of performance-based regulation 
could apply to utilities with respect to cybersecurity 
investments.\222\
---------------------------------------------------------------------------

    \219\ NOPR, 180 FERC ] 61,189 at P 36.
    \220\ Id. P 39.
    \221\ Id. P 33.
    \222\ Id. P 45.
---------------------------------------------------------------------------

    121. The Commission also noted that most utility IT investments 
(general and intangible plant) and expenses (administrative and general 
costs) support functions of the entire utility, not just the 
transmission function.\223\ Consequently, the Commission found that 
only a portion of those costs are allocated to transmission customers, 
typically based on wages and salaries allocators.\224\
---------------------------------------------------------------------------

    \223\ Id. P 36.
    \224\ Id. P 36.
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1. Cybersecurity ROE Incentive
a. NOPR Proposal
    122. The Commission proposed to allow a utility that makes 
cybersecurity investments that are eligible for incentives to request 
the Cybersecurity ROE Incentive that would be applied to the incentive-
eligible investments.\225\ The Commission explained that any

[[Page 28365]]

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.\226\ The Commission stated that the 200-basis point 
ROE adder would provide a meaningful incentive to encourage utilities 
to improve their systems' cybersecurity. The Commission recognized that 
this amount exceeds the ROE incentives for transmission facilities that 
the Commission typically provides pursuant to FPA section 219. The 
Commission explained that, because cybersecurity investments are 
relatively small compared to conventional transmission projects, a 
higher ROE may be necessary to affect the expenditure decisions of 
utilities, without unduly burdening ratepayers.
---------------------------------------------------------------------------

    \225\ Id. P 36.
    \226\ 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).
---------------------------------------------------------------------------

    123. The Commission also proposed that enterprise-wide investments, 
which are not specific to transmission or the sale for resale of 
electric energy in interstate commerce, but a portion of which are 
recovered through rates on file with the Commission, 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.\227\ However, consistent with 
both longstanding cost-causation ratemaking principles \228\ and the 
statutory requirement that rates inclusive of incentives be just and 
reasonable and not unduly discriminatory or preferential, the 
Commission proposed 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.
---------------------------------------------------------------------------

    \227\ NOPR, 180 FERC ] 61,189 at P 37.
    \228\ 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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b. Comments
    124. EEI, MISO Transmission Owners, and Indicated PJM Transmission 
Owners support the proposed ROE incentive.\229\ EEI notes that some 
cybersecurity investments involve relatively low dollar amounts, 
compared with other capital investments.\230\ Therefore, in addition to 
the fact that these investments are recovered over a short period, EEI 
believes that the proposed 200-basis point adder is reasonable and has 
the potential to create an incentive that will shift utility 
cybersecurity expenditures in the manner intended by the Commission and 
Congress.\231\
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    \229\ EEI Initial Comments at 9; MISO Transmission Owners 
Initial Comments at 10; Indicated PJM Transmission Owners Initial 
Comments at 4.
    \230\ EEI Initial Comments at 9-10.
    \231\ Id. at 9-10.
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    125. EEI and MISO Transmission Owners support the Commission's 
proposal to include enterprise-wide costs as eligible for incentive 
treatment.\232\ EEI states that the Commission's enterprise-wide 
approach avoids the potential for investments to be funneled to only 
certain assets, leaving other areas (e.g., network assets, generation) 
potentially ineligible, and aligns with Commission policies on enabling 
access for, and deployment of, distributed energy resources and 
advanced technologies.\233\ MISO Transmission Owners state that the 
inclusion of enterprise-wide costs encourages enterprise-wide strategic 
security investments, which provide benefits to a utility's security 
program efficiency more broadly, as well as to ratepayers.\234\
---------------------------------------------------------------------------

    \232\ MISO Transmission Owners Initial Comments at 10.
    \233\ EEI Initial Comments at 10.
    \234\ MISO Transmission Owners Initial Comments at 10-11.
---------------------------------------------------------------------------

    126. APPA and Alliant agree with the proposal in the NOPR to cap 
total base and incentive ROE at the top of the zone of 
reasonableness.\235\ APPA asks the Commission to clarify that, in 
applying the cap at the top end of the zone of reasonableness, a public 
utility would be required to take into account ROE adders other than 
the cybersecurity investment adder.\236\
---------------------------------------------------------------------------

    \235\ APPA Initial Comments at 19; Alliant Initial Comments at 
6.
    \236\ APPA Initial Comments at 19.
---------------------------------------------------------------------------

    127. Alliant, APPA, Iowa Utilities Board, Joint Consumer Advocates, 
the Michigan Commission, Ohio FEA, Ohio Consumers' Counsel, and TAPS do 
not support the proposed ROE adder of 200 basis points.\237\ Alliant, 
APPA, California Parties, Ohio Consumers' Counsel, and Ohio FEA argue 
that the proposed 200-basis points adder is not just and 
reasonable.\238\ APPA, California Parties, and TAPS also argue that the 
Commission has not sufficiently supported or explained why a 200-basis 
point return is necessary.\239\
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    \237\ Alliant Initial Comments at 6, APPA Initial Comments at 
10; Iowa Utilities Board Initial Comments at 4; Joint Consumer 
Advocates Initial Comments at 3; Michigan Commission at 9; Ohio FEA 
Initial Comments at 10; TAPS Initial Comments at 16.
    \238\ Alliant Comments at 5-6; California Parties Initial 
Comments at 22; ITC Companies Initial Comments at 3; Joint Consumer 
Advocates Initial Comments at 3; Michigan Commission Initial 
Comments at 9; Ohio Consumers' Counsel Initial Comments at 12; Ohio 
FEA Initial Comments at 11.
    \239\ Alliant Comments at 5-6; APPA Initial Comments at 11; 
California Parties Initial Comments at 22; Ohio Consumers' Counsel 
Initial Comments at 12; Ohio FEA Initial Comments at 11.
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    128. APPA, California Parties, and TAPS argue that eligible 
cybersecurity investments are not ``relatively small'' as the NOPR 
suggests.\240\ California Parties state that, in recent years, the 
California Public Utilities Commission has authorized significant 
amounts for State jurisdictional cybersecurity capital expenditures and 
annual IT physical and cybersecurity activities for utilities.\241\ 
TAPS comments that the Commission has found that Duke Energy has made 
over $137 million in capital investments as part of its cybersecurity 
program that is designed based on the NIST Framework.\242\ TAPS further 
states that, in 2019, Dominion Energy Virginia received State approval 
to spend $910.3 million on cyber and physical security and 
telecommunications over 10 years, with $154.4 being spent in the first 
three years related to improved monitoring and alarm capabilities and 
enhanced utility security.\243\ TAPS argues that these sums illustrate 
that cybersecurity investments are not relatively small compared to 
conventional transmission projects.\244\
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    \240\ APPA Initial Comments at 11; California Parties Initial 
Comments at 23; TAPS Initial Comments at 17.
    \241\ California Parties Initial Comments at 23.
    \242\ TAPS Initial Comments at 17.
    \243\ Id. at 17.
    \244\ Id. at 17.
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    129. The Michigan Commission states that the potential financial 
risks that cyberattacks can pose on electric utilities already serve as 
a strong incentive for investment, much stronger than an additional 200 
basis points would provide when applied to what the NOPR recognizes are 
relatively low-cost investments.\245\
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    \245\ Michigan Commission Initial Comments at 8-9.
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    130. Alliant states that using a 200-basis point ROE incentive 
would impose unnecessary administrative burdens on the Commission and 
all parties affected, as processing requests for incentives would 
consume valuable and limited resources of the Commission.\246\ Iowa 
Utilities Board argues that an incentive rate adder could have a 
cascading impact on

[[Page 28366]]

economic activity, might adversely impact inflation, and could provide 
a perverse incentive to invest in unneeded technologies.\247\ Ohio 
Consumers' Counsel comments that a 200-basis point adder is not 
necessary and is unreasonably costly for consumers, and also defies the 
logic of Order No. 679, which contemplated ROE adders of 100 and 150 
basis points only, with the higher ROEs for more complicated and 
expensive transmission projects.\248\
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    \246\ Alliant Initial Comments at 6.
    \247\ Iowa Utilities Board Initial Comments at 4.
    \248\ Ohio Consumers' Counsel Initial Comments at 12-13.
---------------------------------------------------------------------------

    131. Several commenters argue for a modification to the 
Commission's proposal of 200 basis points. NRECA requests that the 
Commission revise its proposal to allow for a request of up to 200-
basis points, and questions whether it is appropriate to grant the same 
ROE adder for all cybersecurity expenditures or whether the Commission 
instead should tie the amount of the ROE incentive to the projected 
impact of the cybersecurity expenditure.\249\ APPA asks whether the 
Commission has considered whether applying a smaller ROE adder would be 
sufficient to encourage investment.\250\ Ohio Consumers' Counsel states 
that, instead of proposing a flat 200-basis point ROE adder, the 
Commission should provide for a pool of potential adders, ranging from 
25 basis points up to a cap of 50 basis points, depending on the 
magnitude of the investment and the complexity or proven track record 
for the technology or activity.\251\
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    \249\ NRECA Initial Comments at 10.
    \250\ APPA Initial Comments at 11.
    \251\ Ohio Consumers' Counsel Initial Comments at 13.
---------------------------------------------------------------------------

    132. The Maryland and Pennsylvania Commissions suggest tapering 
incentives over time to encourage utilities to implement material 
improvements as early as possible. They argue that such tapering adds a 
``performance-based'' aspect to the NOPR proposals.
    133. AEP and ITC Companies request that the Commission apply 
incentives to the entire rate base.\252\ ITC Companies state that it 
might be better to offer a general rather than asset-specific ROE adder 
for utilities that adopt a sufficient level of additional Advanced 
Cybersecurity Technologies and cybersecurity threat information sharing 
program participation.\253\ ITC Companies argue that this would reflect 
the fact that an entity's individual cybersecurity assets and practices 
are part of a cohesive defensive framework that applies to its entire 
operation.\254\ ITC Companies explain that the type of cybersecurity 
investment to which the ROE incentive might apply is not a financially 
significant portion of total rate base for most responsible entities 
and, in many instances, it is likely that the marginal benefit of this 
incentive will not justify the administrative cost of obtaining this 
incentive (even with a PQ List in place), especially where the zone of 
reasonableness applicable to a responsible entity's overall rate of 
return further diminishes the impact of the incentive.\255\ AEP argues 
that an incentive adder applied system-wide to the transmission rate 
base would not need to rise to the level contemplated in the NOPR, 
e.g., 50 basis points, and would be sufficient to incentivize industry 
participants to adopt cybersecurity programs that go above and beyond 
existing cybersecurity requirements.\256\
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    \252\ AEP Initial Comments at 6; ITC Companies Initial Comments 
at 4.
    \253\ ITC Companies Initial Comments at 4.
    \254\ Id. at 4.
    \255\ Id. at 3.
    \256\ AEP Initial Comments at 6.
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c. Commission Determination
    134. We decline to adopt an ROE incentive adder, as proposed in the 
NOPR. We conclude that the Cybersecurity Regulatory Asset Incentive 
satisfies the statutory obligation to benefit consumers by encouraging 
investments by utilities in Advanced Cybersecurity Technology and 
participation by utilities in cybersecurity threat information sharing 
programs. We believe that expenses, which include cybersecurity 
assessments, architectural reviews, maturity model evaluations, 
software subscriptions, monitoring, training, procuring outside 
services, and cloud computing services, constitute a large portion of 
overall expenditures for many cybersecurity investments, including 
cybersecurity threat information sharing programs. We find that the 
provision of the Cybersecurity Regulatory Asset Incentive alone 
provides the encouragement that Congress intended without unduly 
increasing costs on consumers.
2. Cybersecurity Regulatory Asset Incentive
a. NOPR Proposal
    135. The Commission proposed a Cybersecurity Regulatory Asset 
Incentive to allow a utility that makes cybersecurity investments that 
are eligible for incentives to seek deferred cost recovery.\257\ The 
Commission explained 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. 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, the Commission proposed 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. The Commission also sought comment on whether it would be 
preferable to permit only 50% of incentive-eligible expenses to be 
treated as regulatory assets.
---------------------------------------------------------------------------

    \257\ NOPR, 180 FERC ] 61,189 at P 39.
---------------------------------------------------------------------------

    136. The Commission observed that a range of implementation costs 
associated with cybersecurity investments could be eligible for 
deferred rate treatment.\258\ Such costs may include, for example, 
training to implement new cybersecurity practices and systems. However, 
the Commission proposed 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. The 
Commission stated that another potentially eligible implementation cost 
may be internal system evaluations and assessments or analyses by third 
parties, to the extent that they are associated with a capitalizable 
item and are part of eligible capitalizable costs. The Commission 
proposed 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 may include, for example, subscriptions, service 
agreements, and post-implementation training costs. Specifically, the 
Commission proposed to allow utilities, under this incentive, to 
include ongoing dues and other expenses directly associated with 
participation by utilities in cybersecurity threat information sharing 
programs that satisfy the eligibility criteria.
---------------------------------------------------------------------------

    \258\ Id. P 40.

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[[Page 28367]]

    137. The Commission observed that, because FPA section 219A(c)(2) 
directs the Commission to offer incentives to encourage participation 
by public utilities in cybersecurity threat information sharing 
programs, it proposed to allow utilities that are currently 
participating in such programs to seek incentives for any new 
cybersecurity investment associated with their participation, so long 
as that participation is voluntary.\259\ The Commission sought comment 
on whether to allow utilities who are already participating in an 
eligible cybersecurity threat information sharing program to be 
eligible for this incentive.\260\
---------------------------------------------------------------------------

    \259\ Id. P 41.
    \260\ Id. P 41.
---------------------------------------------------------------------------

    138. The Commission also noted that the Commission's rules and 
regulations in the Uniform System of Accounts \261\ 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 for, each 
regulatory asset recorded in the account.\262\ The Commission explained 
that, pursuant to its existing regulations, utilities must maintain 
sufficient records to support the distinction of any investments that 
are afforded incentive-based rate treatment.\263\
---------------------------------------------------------------------------

    \261\ See 18 CFR pt. 101, Account Definition Account 182.3, 
Other Regulatory Assets, paragraph D.
    \262\ NOPR, 180 FERC ] 61,189 at P 42.
    \263\ Id.
---------------------------------------------------------------------------

    139. Additionally, the Commission proposed that only directly-
assigned utility costs or the conventionally allocated portion of 
enterprise-wide expenses (e.g., using the wages and salaries allocator) 
would be eligible for the Cybersecurity Regulatory Asset Incentive in 
rates on file with the Commission.\264\
---------------------------------------------------------------------------

    \264\ Id. P 43.
---------------------------------------------------------------------------

b. Comments
    140. EEI, Iowa Utilities Board, the Michigan Commission, and MISO 
Transmission Owners support the Commission's proposal.\265\ The 
Michigan Commission states that the Commission's acknowledgement that 
many cybersecurity costs have shifted to expenses rather than capital 
costs is valid.\266\ The Michigan Commission adds that the proposed 
Cybersecurity Regulatory Asset Incentive could help facilitate these 
types of investments during the time in which such investments are 
evaluated for inclusion in the CIP Reliability Standards, and that the 
proposed Cybersecurity Regulatory Asset Incentive would allow for 
reasonable facilitation of cybersecurity investments in advance of CIP 
Reliability Standard updates and would avoid unjust and unreasonable 
rates.\267\ Iowa Utilities Board comments that allowing a utility to 
capitalize the operational expenses for cybersecurity expenditures is 
by itself an adequate incentive because it reduces cash flow demands 
and provides an opportunity for the utility to earn a return on those 
expenditures.\268\
---------------------------------------------------------------------------

    \265\ EEI Initial Comments at 11; Iowa Utilities Board Initial 
Comments at 3-4; Michigan Commission Initial Comments at 9; MISO 
Transmission Owners Initial Comments at 11.
    \266\ Michigan Commission Initial Comments at 9.
    \267\ Id.
    \268\ Iowa Utilities Board Initial Comments at 4.
---------------------------------------------------------------------------

    141. MISO Transmission Owners support the proposal to allow 
utilities to defer and amortize eligible costs that are typically 
recorded as expenses that are associated with third-party hardware, 
software, and computing and networking services.\269\ MISO Transmission 
Owners state that allowing transmission owners to capitalize costs and 
investments associated with cybersecurity investment, including up-
front training and implementation expenses, will enable utilities to 
fully realize the relative security benefits that rapid adoption of 
cybersecurity investment can generate, as well as the often-lower cost 
that such solutions impose on ratepayers relative to physical 
infrastructure.\270\
---------------------------------------------------------------------------

    \269\ MISO Transmission Owners Initial Comments at 11.
    \270\ Id.
---------------------------------------------------------------------------

    142. MISO Transmission Owners ask the Commission to clarify that 
cybersecurity-related operation and maintenance expenses, labor costs, 
and post-implementation training costs may be included as part of the 
Cybersecurity Regulatory Asset Incentive.\271\ EEI suggests that the 
Commission include training, implementation, software costs, and allow 
cloud computing expenses to also be allowed to be deferred as a 
regulatory asset.\272\ EEI expresses concern with the proposal to limit 
the eligible costs to those associated with implementing cybersecurity 
upgrades and to not include ongoing costs including system maintenance, 
surveillance, and other labor costs, either in the form of employee 
salaries or third-party service contracts.\273\ EEI argues that 
including these costs would support the Commission's cybersecurity 
goals, incent best practices, and benefit customers by reducing the 
possibility of interruptions from cyber-attacks.\274\
---------------------------------------------------------------------------

    \271\ Id.
    \272\ EEI Initial Comments at 11.
    \273\ Id. at 11.
    \274\ Id. at 11-12.
---------------------------------------------------------------------------

    143. Ohio Consumers' Counsel opposes the proposal to allow deferred 
accounting and recovery of a return on the unamortized portion of the 
costs for cybersecurity expenses.\275\ Ohio Consumers' Counsel states 
that deferred accounting and cost collection of cybersecurity expenses 
as regulatory assets will cost consumers more over time than would 
recovery of the expense all in one year.\276\
---------------------------------------------------------------------------

    \275\ Ohio Consumers' Counsel Initial Comments at 10.
    \276\ Id.
---------------------------------------------------------------------------

    144. APPA and California Parties contend that the Cybersecurity 
Regulatory Asset Incentive should be limited to 50% of eligible 
investment in cybersecurity initiatives.\277\ California Parties 
comment that the Commission should allow no more than 50% of eligible 
expenses to be treated as a regulatory asset included in transmission 
rate base to reduce the burden on consumers.\278\ California Parties 
argue that the Commission failed to offer any explanation as to why its 
proposal that 100% of eligible expenses should be able to receive 
incentive treatment is properly calibrated to induce the desired 
investment.\279\
---------------------------------------------------------------------------

    \277\ APPA Initial Comments at 12; California Parties Initial 
Comments at 24.
    \278\ California Parties Initial Comments at 24.
    \279\ Id. at 24.
---------------------------------------------------------------------------

c. Commission Determination
    145. We adopt the NOPR's proposal to add Sec.  35.48(f) to the 
Commission's regulations to include a Cybersecurity Regulatory Asset 
Incentive that allows a utility to seek deferred cost recovery for 
cybersecurity investments that are eligible for incentives. We find 
that, in limited circumstances that are specific to cybersecurity 
investments, it is 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 the utility's rate base.
    146. In response to Ohio Consumers' Counsel's concerns about 
consumer costs, as an initial matter, we note that increased consumer 
costs in isolation do not impugn the reasonableness of an incentive, 
provided the rates are still just and reasonable. The Commission has 
long offered transmission incentives, which increase rates, because 
they encourage investments and activities that the Commission has found 
provide consumer benefits. The Cybersecurity Regulatory Asset

[[Page 28368]]

Incentive nominally increases rates, though consumers benefit from the 
time value of money associated with later recovery through rate base 
than immediate recovery as an expense. Based on the expense-heavy 
nature of many cybersecurity investments, we find this appropriate to 
effectuate Congress' requirement that the Commission offer 
cybersecurity incentives. We also will not, as suggested by California 
Parties and APPA, limit this incentive to 50% of eligible expenses. 
Given the comparatively small amount of many cybersecurity expenses, we 
find that such a limitation may inadequately provide incentives to 
meaningfully encourage utilities to improve their cybersecurity 
posture.
    147. In response to MISO Transmission Owners' and EEI's comments, 
we clarify that utilities may seek this incentive for a range of 
expenses including operation and maintenance expenses, labor costs, 
implementation costs, network monitoring, and training costs. 
Additionally, ongoing expenses, either incurred by utility employees or 
utility payments to third parties may be eligible. Software purchases 
typically would not qualify for the Cybersecurity Regulatory Asset 
Incentive because they generally constitute capital investments; 
however, software-as-a-service expenses could qualify for the 
Cybersecurity Regulatory Asset Incentive.
    148. We find it appropriate to limit eligibility for incentive-
based rate treatment to new cybersecurity investments. As also 
discussed in section III.D.3.c., we add Sec.  35.48(h)(5) to our 
regulations to provide that the Cybersecurity Regulatory Asset 
Incentive may be applied to new cybersecurity investments that: (1) 
occur after the effective date of the Commission's approval of 
incentive-based rate treatment; and (2) are materially different from 
cybersecurity investments already incurred by the utilities more than 
three months prior to the incentive request. Utilities may seek 
incentives for one-time cybersecurity expenses and/or recurring ones.
    149. We generally define new cybersecurity investments to include 
investments for those activities that have occurred no more than three 
months prior to the date that the utility files its incentive request 
with the Commission. We provide one exception and one clarification to 
this general three-month rule. First, a utility may seek incentive-
based rate treatment for its future cybersecurity investments made to 
participate in cybersecurity threat information sharing programs even 
if the utility began its participation and therefore made cybersecurity 
investments related to its participation more than three months before 
filing its request for incentive-based rate treatment with the 
Commission. We clarify that utilities seeking incentive-based rate 
treatment for cybersecurity investments made to comply with a 
Commission-approved cybersecurity-related CIP Reliability Standard 
before it becomes mandatory and enforceable for that utility will be 
permitted to seek incentive-based rate treatment for its cybersecurity 
expenses that began no earlier than three months before the date that 
the Commission's approval of the Reliability Standard becomes 
effective. A utility's cybersecurity expenses that began more than 
three months before the date that the Commission order or final rule 
approving a new or modified Reliability Standard becomes effective will 
not be considered new and will be considered materially similar and 
duplicative. Therefore, the cybersecurity investments made more than 
three months before the Commission approves a new or modified 
Reliability Standard would be ineligible to receive incentive-based 
rate treatment as early compliance with an approved Reliability 
Standard.
    150. To be clear, this prior three-month provision only determines 
whether a utility's cybersecurity investment is new and therefore 
eligible for incentive-based rate treatment. The filed rate doctrine 
and the rule against retroactive ratemaking preclude the Commission 
from granting a utility incentive-based rate treatment for 
cybersecurity investments made before the Commission acts on a request 
for declaratory order or the effective date of an FPA section 205 
filing requesting the incentive-based rate treatment for cybersecurity 
incentives.\280\
---------------------------------------------------------------------------

    \280\ See n.216, supra.
---------------------------------------------------------------------------

    151. Moreover, we find it appropriate that only new cybersecurity 
investments, and not duplicative or materially similar ones to existing 
expenses, be eligible. As discussed in section III.D.3., we will 
require utilities to attest that the cybersecurity investments that are 
the basis for the incentive-based rate treatments are new cybersecurity 
investment and not duplicative or materially similar to preexisting 
expenses. For instance, investment in training associated with a new 
cybersecurity system may be eligible while annual basic cybersecurity 
training may not, even if the contents slightly change year-to-year. 
This will ensure that incentives encourage cybersecurity investments 
that improve a utility's cybersecurity posture rather than just reward 
ongoing or recurring activities. The three-month period to determine 
eligibility of incentives for pre-existing expenses allows for 
utilities making new cybersecurity investments to respond to immediate 
cybersecurity vulnerabilities while giving them time to request 
incentives. We reiterate that utilities may not recover incentives on 
specific investments that predate the effective date of filing 
requesting incentive-based rate treatment. We find that this grace 
period could incentivize utilities not to wait until the effective date 
of requested incentives to undertake urgent cybersecurity action.
    152. FPA section 219A(c)(2) requires the Commission to offer 
incentives to encourage participation by public utilities in 
cybersecurity threat information sharing programs. Furthermore, 
participation in information-sharing programs provides cybersecurity 
benefits to the participating utility that applies for an incentive-
based rate treatment, the other program participants, and their 
customers. Consequently, unlike other expenses, we find that utilities 
may request the Cybersecurity Regulatory Asset Incentive for expenses 
associated with participation in cybersecurity threat information 
sharing programs regardless of how long the utilities have participated 
in the programs--although only expenses prospective from the effective 
date of the Commission's approval of the cybersecurity incentives in 
the utility's rate(s) on file with the Commission shall be eligible.
    153. The Commission's rules and regulations in the Uniform System 
of Accounts \281\ 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 for, each regulatory asset recorded in the 
account. Pursuant to our existing regulations, any utility receiving an 
incentive must maintain sufficient records to support the distinction 
of any investments that are afforded incentive-based rate 
treatment.\282\ Given the novelty of allowing incentive recipients to 
include certain expenses in rate base, it is essential that the 
utilities keep records in a manner that allows the Commission and other 
parties to ensure that no double-recovery occurs.
---------------------------------------------------------------------------

    \281\ See 18 CFR pt. 101, Account Definition Account 182.3, 
Other Regulatory Assets, paragraph D.
    \282\ Id.

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[[Page 28369]]

    154. We also find that, consistent with the Commission's 
longstanding cost-causation ratemaking principles, only costs directly 
assigned to a function or the conventionally allocated portion of 
enterprise-wide expenses (e.g., using the wages and salaries allocator) 
would be eligible for the Cybersecurity Regulatory Asset Incentive in 
rates specific to that function. For example, only incentives for 
transmission-specific or transmission-allocated costs may be recovered 
in transmission rates.
3. Performance-Based Rates
a. NOPR Proposal
    155. In the NOPR, the Commission noted that FPA section 219A(c) 
directs the Commission to establish incentive-based, including 
performance-based, rate treatments.\283\ The Commission observed that, 
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. The 
Commission explained that performance-based ratemaking can take 
multiple forms, but ultimately requires the ability to measure and tie 
rate treatments to actual performance.\284\
---------------------------------------------------------------------------

    \283\ NOPR, 180 FERC ] 61,189 at P 44.
    \284\ Id. P 44.
---------------------------------------------------------------------------

    156. The Commission sought comment on performance-based rates and 
whether and how the principles of performance-based regulation could 
apply to utilities with respect to cybersecurity investments.\285\ The 
Commission also sought comment on specific cybersecurity performance 
metrics that could be subject to a performance standard.\286\ In 
particular, the Commission sought comment on whether any widely 
accepted metrics for cybersecurity performance could lend themselves as 
benchmarks for performance-based rates, or whether new appropriate 
metrics could be developed. The Commission further sought comment on 
what rate mechanisms could accompany such metrics. The Commission asked 
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.
---------------------------------------------------------------------------

    \285\ The Commission also explained that, consistent with Order 
No. 679, which implemented FPA section 219, it interpreted the 
directive to establish 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. Id. P 46 n.41.
    \286\ Id. P 45.
---------------------------------------------------------------------------

b. Comments
    157. No commenter explicitly supports performance-based rates with 
respect to cybersecurity investments. EEI, Iowa Utilities Board, and 
Ohio Consumers' Counsel all filed comments opposing this approach.\287\ 
EEI argues that, without clear, industry-wide metrics, a performance-
based program would be difficult to implement.\288\ Ohio Consumers' 
Counsel states that setting a performance threshold for advanced 
cybersecurity investment and activities is likely to be challenging, 
given the rapid pace of development in both the types of cybersecurity 
threats experienced and the technological advances used to counter 
those threats.\289\ Iowa Utilities Board comments that performance 
measurement for cybersecurity investments is difficult because, more 
often than not, it would be difficult to pinpoint the root cause of 
failure on a particular entity or process when there is a performance 
failure.\290\
---------------------------------------------------------------------------

    \287\ EEI Initial Comments at 12-13; Iowa Utilities Board 
Initial Comments at 4; Ohio Consumers' Counsel Initial Comments at 
14.
    \288\ EEI Initial Comments at 12.
    \289\ Ohio Consumers' Counsel Initial Comments at 14.
    \290\ Iowa Utilities Board Initial Comments at 4.
---------------------------------------------------------------------------

    158. Ohio FEA states that, if the Commission adopts performance-
based rates for cybersecurity incentives, it should neither choose 
which expenses to approve nor check whether incurred expenses comply 
with the utility's plans but should simply verify whether predetermined 
outcomes have been achieved.\291\ Ohio FEA recommends that the 
Commission consider developing resources, such as C2M2, to achieve a 
performance monitoring tool that will aid in performance-based 
rates.\292\
---------------------------------------------------------------------------

    \291\ Ohio FEA Initial Comments at 12.
    \292\ Id. at 12.
---------------------------------------------------------------------------

c. Commission Determination
    159. We interpret the directive to establish 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. This interpretation is 
consistent with the Commission's finding in Order. No. 679 regarding 
the directive to establish incentive-based (including performance-
based) rate treatments for investments in transmission infrastructure 
in FPA section 219.\293\ Because of the Congressional directive to 
encourage performance-based rates, the Commission signaled its 
intention to reevaluate previous Commission policies on performance-
based rate treatments and attempt to offer such incentives in the 
cybersecurity context. We recognize that 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 (i.e., the number and severity of cybersecurity incidents) 
rather than intermediate steps such as specific cybersecurity protocols 
or cybersecurity investments that intend to achieve that performance.
---------------------------------------------------------------------------

    \293\ Order No 679, 116 FERC ] 61,057 at P 270.
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    160. However, after evaluating the comments, we continue to find 
that it is difficult to directly observe the success of a cybersecurity 
investment. We share the view of commenters that it would be premature 
to adopt generic performance-based rate measures at this time. However, 
the development of performance-based rate measures may represent a 
long-term goal for utilities and the Commission to pursue.

D. Cybersecurity Investment Incentive Implementation

1. Cybersecurity ROE Incentive Duration
a. NOPR Proposal
    161. The Commission proposed 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; \294\ (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.\295\ The 
Commission recognized that 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. The Commission believed that most cybersecurity incentives 
granted under this rulemaking would remain in effect

[[Page 28370]]

until the conclusion of the depreciation life of the underlying asset. 
However, for investments with useful lives exceeding five years, the 
Commission proposed that the incentive end at the conclusion of five 
years from the time that the asset receiving the cybersecurity 
incentive entered service, noting that most IT investments feature 
useful lives no longer than five years. The Commission preliminarily 
found that five years is a reasonable expected life to encourage 
utilities to make an investment and to ensure just and reasonable 
rates. The Commission also sought comment on whether the proposed 
duration should be three years instead of five years.
---------------------------------------------------------------------------

    \294\ For participation in a cybersecurity threat information 
sharing program, the ``investment'' would recur annually.
    \295\ NOPR, 180 FERC ] 61,189 at P 46.
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b. Comments
    162. EEI comments that the five-year depreciation period may be 
reasonable, but, if the utility has a cybersecurity asset with a longer 
depreciation life, the utility should have the option to make an 
argument for a longer incentives period, depending on the investment on 
a case-by-case basis.\296\ EEI further comments that, if an incentive 
becomes mandatory, it is not clear why it must end automatically. EEI 
argues that, for example, if the investment is in year three and then 
in year four it becomes a mandatory standard, the utility would lose 
the incentive moving forward and that this approach will dampen 
potential incentives to do the work to be an early adopter of 
promising, qualifying cybersecurity measures.\297\ AEP comments that 
the proposed five-year duration is unlikely to drive utilities to 
meaningfully reconsider their current and future investment in 
cybersecurity.\298\
---------------------------------------------------------------------------

    \296\ EEI Initial Comments at 13.
    \297\ Id. at 14.
    \298\ AEP Initial Comments at 4-5.
---------------------------------------------------------------------------

    163. APPA, California Parties, the Electricity Consumers Resource 
Council (ELCON), Ohio Consumers' Counsel, and TAPS state that the 
Commission should limit the duration proposal to a maximum of three 
years.\299\ California Parties, TAPS, and Ohio Consumers' Counsel argue 
that setting the limit at three years better aligns with the fast-
evolving nature of cybersecurity technology, and that consumers should 
not have to pay for technology that has become obsolete.\300\ APPA 
comments that, where an asset has a useful life of no more than five 
years, a three-year Cybersecurity ROE Incentive would apply to a large 
portion, and potentially all, of the asset's useful life.\301\ APPA 
states that the value of the Cybersecurity ROE Incentive to a utility 
would decline over time as the underlying asset depreciates and reduces 
the rate base to which the ROE adder is applied.\302\
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    \299\ APPA Initial Comments at 5; California Parties Initial 
Comments at 22; ELCON Initial Comments at 4; Ohio Consumers' Counsel 
Initial Comments at 15; TAPS Initial Comments at 18-19.
    \300\ California State Parties Initial Comments at 25; Ohio 
Consumers' Counsel Initial Comments at 15; TAPS Initial Comments at 
19.
    \301\ APPA Initial Comments at 16.
    \302\ Id. at 16.
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c. Commission Determination
    164. As discussed in section III.C.1.c., we do not adopt the NOPR's 
proposed Cybersecurity ROE Incentive. Consequently, we need not address 
the duration of this incentive.
2. Cybersecurity Regulatory Asset Incentive Duration and Amortization 
Period
a. NOPR Proposal
    165. The Commission proposed to specify that a utility granted the 
Cybersecurity Regulatory Asset Incentive must amortize the regulatory 
asset over five years.\303\ The Commission stated that this may reflect 
the generally short-lived nature of cybersecurity activities and 
corresponds to the depreciation rates for investments described 
above.\304\ The Commission observed that this period generally relates 
to the expected useful life and associated cost-of-service amortization 
period of cybersecurity investments.
---------------------------------------------------------------------------

    \303\ As noted above, the cybersecurity investment for 
participation in a cybersecurity threat information sharing program 
would recur annually.
    \304\ NOPR, 180 FERC ] 61,189 at P 47.
---------------------------------------------------------------------------

    166. The Commission also proposed to specify that a utility granted 
the Cybersecurity Regulatory Asset Incentive may defer eligible 
expenses for up to five years from the date of Commission approval of 
the incentive.\305\ Under this provision, the Commission proposed 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.\306\ The Commission preliminarily found that this 
limit would be appropriate, given the potentially indefinite nature of 
certain expenses. The Commission stated that such a limit would also 
reflect that cybersecurity risks and solutions evolve over time and 
matches the proposed five-year maximum duration of the Cybersecurity 
ROE Incentive. The Commission preliminarily found 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.
---------------------------------------------------------------------------

    \305\ Id. P 48.
    \306\ The Commission proposed 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 Cybersecurity 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; or (2) the cybersecurity investment 
becoming mandatory.
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    167. However, the Commission proposed to make an exception to this 
sunsetting provision for eligible cybersecurity threat information 
sharing programs.\307\ The Commission noted that FPA section 219A(c)(2) 
directs the Commission to provide incentives for participation in 
cybersecurity threat information sharing programs. The Commission 
preliminarily found that participation in such cybersecurity threat 
information sharing programs, which provide participants with ongoing 
updates about active cybersecurity threats and are therefore distinct 
from other cybersecurity investments that may become obsolete with the 
passage of time, warrants a different incentive treatment than other 
investments. Consequently, the Commission proposed that utilities be 
able to continue deferring these ongoing 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.
---------------------------------------------------------------------------

    \307\ NOPR, 180 FERC ] 61,189 at P 49.
---------------------------------------------------------------------------

b. Comments
    168. EEI supports the NOPR proposal to make an exception to the 
sunsetting provision for eligible cybersecurity threat information 
sharing programs on the basis that they are distinct from discrete 
cybersecurity investments that may become obsolete with the passage of 
time.\308\ EEI comments that sharing information about the nature of 
threats can help electric utilities react to and mitigate the 
threat.\309\
---------------------------------------------------------------------------

    \308\ EEI Initial Comments at 14.
    \309\ Id. at 14.
---------------------------------------------------------------------------

    169. EEI requests clarification that the amortization period would 
be up to five years, but that five years is not the only duration 
permissible for amortization.\310\
---------------------------------------------------------------------------

    \310\ Id. at 14.
---------------------------------------------------------------------------

    170. TAPS agrees with the Commission's preliminary finding that the 
five-year limit balances the goals of ratepayer protection with 
inducing the desired investment.\311\ However, TAPS argues that the 
NOPR unjustifiably proposed to depart from that balance

[[Page 28371]]

with regard to expenses incurred for eligible cybersecurity threat 
information sharing programs by allowing a perpetual incentive on those 
investments.\312\ TAPS argues that the Commission should not adopt such 
an exception for cybersecurity threat information sharing programs, 
because it gives no consideration of the requirement to protect 
ratepayers.\313\ TAPS states that the NOPR's distinction from other 
discrete cybersecurity investments that may become obsolete with the 
passage of time does not support granting a perpetual incentive for 
cybersecurity threat information sharing programs.\314\ TAPS further 
argues that the fact that participants are provided with ongoing 
updates after joining such programs is a recurring benefit that likely 
increases retention, even absent any incentive.\315\
---------------------------------------------------------------------------

    \311\ TAPS Initial Comments at 20-21.
    \312\ Id. at 21.
    \313\ Id. at 21.
    \314\ Id. at 22.
    \315\ Id. at 22.
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    171. California Parties also oppose the NOPR's exception to the 
sunsetting provision for eligible cybersecurity threat information 
sharing programs.\316\ California Parties state that, once a utility 
has elected to participate in CRISP and has paid the requisite start-up 
costs, there is no longer a purpose served by incentive treatment, 
given that the utility is able to readily recover all ongoing costs of 
participation (along with the start-up costs) in transmission 
rates.\317\ California Parties argue that, to provide incentives in 
this circumstance--where they are simply not needed to induce prudent 
spending on an annual subscription to CRISP and associated staff time--
would result in unjust and unreasonable rates.\318\
---------------------------------------------------------------------------

    \316\ California Parties Initial Comments at 27.
    \317\ Id. at 27.
    \318\ Id. at 27.
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c. Commission Determination
    172. We adopt the NOPR's proposal to add Sec.  35.48(g)(1) to the 
Commission's regulations, with one modification. As suggested by EEI, 
we will modify the NOPR proposal to allow, at the request of the 
utility, the Cybersecurity Regulatory Asset Incentive duration to be up 
to five years. This revision provides flexibility to requesting 
utilities while maintaining ratepayer protections. A utility granted 
the Cybersecurity Regulatory Asset Incentive must amortize the 
regulatory asset for up to five years. Additionally, a utility granted 
the Cybersecurity Regulatory Asset Incentive may defer eligible 
expenses for up to five years from the date of Commission approval of 
the incentive. Consistent with the NOPR proposal, we find that a five-
year amortization period balances the Commission's goals of ratepayer 
protection and providing an appropriate incentive to encourage 
utilities to improve their cybersecurity posture. To clarify, 
incentive-eligible, cybersecurity expenses for each of the five years 
may be included in rate base and amortized for up to five years, 
essentially creating five tranches of cybersecurity expenses. We also 
clarify that if and when cybersecurity measures become mandatory, 
utilities will cease receiving the Cybersecurity Regulatory Asset 
Incentive for taking such measures.\319\ No additional expenses will be 
converted to regulatory assets and the unamortized portions of 
regulatory assets must be incurred as expenses in the year when they 
were converted back to expenses and immediately removed from rate base.
---------------------------------------------------------------------------

    \319\ See Cal. Pub. Util. Comm'n v. FERC, 879 F.3d 966 (9th Cir. 
2018).
---------------------------------------------------------------------------

    173. We add Sec.  35.48(g)(2) to the Commission's regulations to 
provide an exception to the five-year duration limit to the incentive-
based rate treatment of cybersecurity investments made to participate 
in a cybersecurity threat information sharing program. We find that the 
duration exception for participation in eligible cybersecurity threat 
information sharing programs as proposed in the NOPR is appropriate. As 
discussed in the body of this rule, the Congressional mandate to 
incentivize participation indicates that all participants should be 
eligible to seek cybersecurity incentives for their participation in 
eligible programs. Therefore, we decline to remove the exception to the 
sunsetting provision for participation in an eligible cybersecurity 
threat sharing program.
3. Filing Process
a. NOPR Proposal
    174. The Commission proposed 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. As proposed in the NOPR, 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.\320\ The Commission proposed to require utilities to provide 
detail on the expenditures for which they seek incentives and show how 
the cybersecurity-related expenditures meet the eligibility 
requirements, as described in more detail below.
---------------------------------------------------------------------------

    \320\ NOPR, 180 FERC ] 61,189 at P 50.
---------------------------------------------------------------------------

    175. In addition, the Commission proposed that 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. The Commission stated that, 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 to 
reflect incentive rate treatment granted pursuant to these proposed 
regulations. The Commission explained that 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 and not unduly 
discriminatory or preferential.\321\
---------------------------------------------------------------------------

    \321\ Id. P 51 & n.47.
---------------------------------------------------------------------------

    176. The Commission proposed that 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.\322\
---------------------------------------------------------------------------

    \322\ Id. P 52.
---------------------------------------------------------------------------

    177. The Commission also proposed that 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.\323\ 
The Commission alternatively proposed that a utility requesting the 
Cybersecurity 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.
---------------------------------------------------------------------------

    \323\ Id. P 53.
---------------------------------------------------------------------------

    178. The Commission preliminarily found that the same cybersecurity 
investment should not be eligible for both the Cybersecurity ROE 
Incentive and the Cybersecurity Regulatory Asset Incentive. Given that 
regulatory asset treatment may be approved for costs that are normally 
treated as expenses (i.e., as regulatory assets), the Commission 
preliminarily found 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

[[Page 28372]]

associated with the 200-basis point ROE adder.\324\
---------------------------------------------------------------------------

    \324\ Id. P 38.
---------------------------------------------------------------------------

b. Comments
    179. Ohio Consumers' Counsel requests that the Commission require 
any incentive application (whether an application for incentives for 
advanced technologies and actions on the pre-qualification list or for 
incentives that are not included on that list) to be made in a FPA 
section 205 filing.\325\ Ohio Consumers' Counsel further requests that 
the Commission require that both types of applications explicitly 
identify in which accounts the utility will book the costs associated 
with the investment, expense or action.\326\ Ohio Consumers' Counsel 
comments that such a requirement is needed to ensure transparency and 
proper rate treatment for these investments.\327\
---------------------------------------------------------------------------

    \325\ Ohio Consumers' Counsel Initial Comments at 9.
    \326\ Id. at 9-10.
    \327\ Id. at 10.
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    180. California Parties ask the Commission to clarify the incentive 
application procedures to ensure that stakeholders have adequate time 
and information to meaningfully review and comment on incentive 
requests.\328\ California Parties argue that the usual filing 
procedures under FPA section 205 are not sufficient because they 
neither provide ample time for review, given the more complex nature of 
cybersecurity incentive applications, nor do the procedures ensure the 
development of an adequate factual record, especially given the CEII 
considerations.\329\ In support, California Parties state that the 
filing procedures under FPA section 205 provide only 21 days for an 
interested party to intervene and comment and do not ensure the 
opportunity for discovery or evidentiary hearings.\330\ California 
Parties request that the Commission make clear that all cybersecurity 
incentive applications will be presumed to raise issues of material 
fact and will thus be subject to an evidentiary hearing with an 
opportunity for discovery.\331\ California Parties aver that 
evidentiary hearings and discovery would provide a critical measure of 
transparency regarding the use of ratepayer funds, provided appropriate 
safeguards are in place.\332\
---------------------------------------------------------------------------

    \328\ California Parties Initial Comments at 30.
    \329\ Id. at 30.
    \330\ Id. at 30.
    \331\ Id. at 31.
    \332\ Id. at 31.
---------------------------------------------------------------------------

    181. NRECA seeks additional detail on the NOPR's proposed filing 
process.\333\ Specifically, NRECA requests that the Commission propose 
language addressing applications under the case-by-case approach.\334\ 
NRECA also asks the Commission to describe the anticipated composition 
of teams responsible for reviewing and evaluating requests under the 
proposed new provisions.\335\ NRECA states that, given the wide-ranging 
implications of granting cybersecurity incentives, the reviewing team 
should include staff with diverse backgrounds, including electrical 
engineers who understand the structure of the transmission and 
generations assets that may be affected by the proposed cybersecurity 
investment, system or computer science engineers who understand the 
nature of the proposed investments, and analysts with ratemaking 
experience who can balance the increased benefits of the proposed 
investment against the cost to the ratepayers.\336\
---------------------------------------------------------------------------

    \333\ NRECA Initial Comments at 10-12.
    \334\ Id. at 11.
    \335\ Id. at 11.
    \336\ Id. at 11-12.
---------------------------------------------------------------------------

    182. MISO Transmission Owners caution that, while the inclusion of 
cybersecurity threat information sharing programs on the PQ List will 
provide certainty, efficiency, and transparency for utilities seeking 
an incentive, public disclosure through the filing process could put 
utilities at risk.\337\ MISO Transmission Owners recommend that the 
Commission adopt filing procedures that would protect the 
confidentiality of utilities requesting incentives, including the use 
of a public cover sheet disclosing what incentives are being applied 
for with the remainder of the application being confidential.\338\ In 
contrast, NRECA acknowledges the need for utilities to submit certain 
information under CEII filing regulations but warns that the more 
information filing utilities are able to hide from the public, the 
greater the burden on interested parties.\339\ NRECA cautions that the 
consolidation of incentive applications containing sensitive 
information may increase the overall risk to the bulk electric 
system.\340\
---------------------------------------------------------------------------

    \337\ MISO Transmission Owners Initial Comments at 7.
    \338\ Id.
    \339\ NRECA Initial Comments at 13.
    \340\ Id. at 13.
---------------------------------------------------------------------------

c. Commission Determination
    183. We adopt the NOPR's proposal and add Sec.  35.48(h) to the 
Commission's regulations, which specifies the details required in 
applications to the Commission to receive incentive-based rate 
treatment for cybersecurity investments. We clarify that utilities may 
request Commission approval of incentives for cybersecurity investments 
pursuant to FPA section 219A by filing an FPA section 205 filing or by 
seeking a ruling on eligibility by filing a petition for declaratory 
order followed-up by an FPA section 205 filing. Utilities must propose 
to revise their rates to reflect such incentives pursuant to FPA 
section 205. Pursuant to FPA section 219A(f), Sec.  35.48(h) permits 
utilities to seek cybersecurity incentives either as part of a larger 
rate case or make a request for single issue ratemaking.\341\
---------------------------------------------------------------------------

    \341\ IIJA, Public Law 117-58, section 40123, 135 Stat. at 952 
(to be codified at 16 U.S.C. 824s-1(f)).
---------------------------------------------------------------------------

    184. With regard to Ohio Consumers' Counsel's suggestion that the 
Commission require any incentive application (whether an application 
for incentives for Advanced Cybersecurity Technologies and actions on 
the PQ List or for incentives that are not included on that list) to be 
made in a FPA section 205 filing, we agree that an FPA section 205 
filing is necessary for any incentives to be effectuated in utility 
rates. However, consistent with the Commission's precedent with respect 
to transmission incentives, we will allow utilities to seek declaratory 
orders finding expenditures to be eligible for incentives prior to 
making FPA section 205 filings to implement incentives in rates. A 
request for a declaratory order must include all necessary information 
for the Commission to determine whether the investment merits an 
incentive. The FPA section 205 filing necessary to add incentive-based 
rate treatment to a utility's rate on file with the Commission, whether 
filed in conjunction with a petition for declaratory order or on its 
own, must provide information required for the Commission to determine 
that the rate inclusive of the incentives is just and reasonable and 
not unduly discriminatory or preferential.\342\
---------------------------------------------------------------------------

    \342\ 18 CFR pt. 35.
---------------------------------------------------------------------------

    185. The filing process is similar for incentives requested for 
cybersecurity investments that are on the PQ List and case-by-case 
requests. The distinction is that requests for incentives for 
cybersecurity investments that are on the PQ List have the rebuttable 
presumption that the items on the PQ List satisfy the eligibility 
criteria, i.e., materially improving cybersecurity posture and not 
already being mandatory. By contrast, applicants under a case-by-case 
approach must provide a detailed description of how the cybersecurity 
investments will satisfy the eligibility criteria and thereby 
materially improve the cybersecurity posture for their utility. To make 
this demonstration, in addition to describing

[[Page 28373]]

the cybersecurity investments, applicants should: (1) describe their 
prevailing cybersecurity posture including existing equipment, 
processes, and ongoing expenses; and (2) describe how the cybersecurity 
investment for which an incentive is sought would elevate the utility's 
cybersecurity posture. The application should include evidence 
sufficient to demonstrate that the cybersecurity investment(s) would be 
for activities that are consistent with the discussion in section 
III.B. regarding the PQ List and case-by-case approaches. We also 
clarify that, for incentive requests either for PQ List items or on a 
case-by-case basis, utilities must include in their transmittal letter 
an attestation that, to their knowledge, the cybersecurity investments 
are not mandatory, as described in section III.A.3. above. 
Additionally, for the Cybersecurity Regulatory Asset Incentive, the 
transmittal letter must include an attestation that the utility has not 
already been undertaking materially the same cybersecurity expenses for 
more than three months (with the exception of participation in 
cybersecurity threat information sharing programs).\343\ As described 
in III.C.2. only new types of cybersecurity investments, and not 
materially similar ones to existing expenses, will be eligible for 
incentive-based rate treatment.
---------------------------------------------------------------------------

    \343\ For ongoing cybersecurity investments made to comply with 
approved Reliability Standards, the three-month period begins on the 
date that the Commission's approval of the Reliability Standard 
becomes effective. For approvals that the Commission issues by 
order, the effective date is the date of the order. For approvals 
that the Commission issues by rulemaking, the effective date occurs 
on a specified date that occurs after the later of Congress 
receiving notice from the Commission or the final rule is published 
in the Federal Register.
---------------------------------------------------------------------------

    186. As described in Sec.  35.48(h), requests for the Cybersecurity 
Regulatory Asset Incentive must provide: (1) a description of the 
relevant cybersecurity expenses; (2) estimates of the costs of 
cybersecurity expenses; (3) a description of when the cybersecurity 
expenses are expected to be incurred; and (4) an attestation that the 
utility's cybersecurity expenses are new, i.e., the utility has not 
already been undertaking materially the same cybersecurity expenses for 
more than three months prior to the date of filing its request with the 
Commission. Descriptions of expenses should include details such as 
whether they are conducted by utility employees or third parties and 
whether they are for training or the direct carrying out of 
cybersecurity tasks. This last requirement seeks to ensure that 
cybersecurity incentives encourage utilities to improve their 
cybersecurity posture rather than provide a return on expenses that the 
utility is already undertaking. Incentive-eligible expenses should be 
meaningfully distinct from past ones and not only contain small 
variations or incremental modifications from existing expenses.
    187. Consistent with the Commission's implementation of 
transmission incentives under FPA section 219, interested parties will 
have a 21-day comment period, unless otherwise provided by the 
Commission.\344\ We find that California Parties have not justified 
departing from the Commission's comment period convention. Doing so 
could impede the timeliness of the Commission's evaluation of 
cybersecurity incentives. Furthermore, we will not presume that every 
request for cybersecurity incentives will have issues of material fact 
requiring hearing and settlement judge procedures. Such a presumption 
would also constitute an unjustified departure from Commission 
incentive precedent under FPA section 219 and may unnecessarily delay 
the incentive-based rate treatment of cybersecurity investments as well 
as the utility's underlying cybersecurity investments.
---------------------------------------------------------------------------

    \344\ 18 CFR 35.8.
---------------------------------------------------------------------------

    188. In response to Ohio Consumers' Council suggested requirement 
that utilities identify the accounts that cybersecurity investment will 
be booked in, as described in section III.C.2, pursuant to our existing 
regulations, any utility that receives an incentive must maintain 
sufficient records to support the distinction of any investments that 
are afforded incentive-based rate treatment.
    189. We will not, as NRECA suggests, describe the anticipated 
composition of Commission staff responsible for reviewing and 
evaluating requests under the proposed new provisions. Such description 
is neither necessary nor consistent with Commission procedures.
    190. Consequently, for a given cybersecurity investment, utilities 
will be able to receive a single incentive-based rate treatment, as 
discussed in section III.B., for each voluntary cybersecurity 
investment that the utility makes. Utilities must specify which 
incentive they seek in their filings with the Commission.
    191. We note that Sec.  35.48(j) to the Commission's regulations 
declares that utilities may request CEII treatment pursuant to Sec.  
35.48(k) to the Commission's regulations for the portions of their 
cybersecurity incentive-based rate filings that contains CEII. This is 
consistent with Sec.  388.113 of the Commission's regulations.\345\ In 
addition, FPA section 219A(g) declares that Advanced Cybersecurity 
Technology Information provided to the Commission under FPA 219A(b), 
(c), or (f) ``shall be considered to be Critical Electric 
Infrastructure Information under [FPA] section 215A.'' \346\
---------------------------------------------------------------------------

    \345\ 18 CFR 388.113.
    \346\ IIJA, Public Law 117-58, section 40123, 135 Stat. at 951 
(to be codified at 16 U.S.C. 824s-1(g)).
---------------------------------------------------------------------------

4. Reporting Requirements
a. NOPR Proposal
    192. 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, the Commission 
proposed to require utilities to submit informational reports to the 
Commission for the duration of the incentive.\347\
---------------------------------------------------------------------------

    \347\ NOPR, 180 FERC ] 61,189 at P 54.
---------------------------------------------------------------------------

    193. The Commission also proposed that 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.\348\ 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. The Commission proposed that 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, the Commission proposed that 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 Cybersecurity Regulatory Asset Incentive, the 
Commission proposed that 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.
---------------------------------------------------------------------------

    \348\ Id. P 55.
---------------------------------------------------------------------------

    194. The Commission noted that it could also conduct periodic 
verification to assess cybersecurity investments and expenses for which 
it has approved

[[Page 28374]]

incentives.\349\ The Commission could perform such verifications 
through multiple means (i.e., directing further informational filings, 
audits, etc.). The Commission stated that the annual informational 
filings would inform the Commission on how and when any additional 
verification is warranted.
---------------------------------------------------------------------------

    \349\ Id. P 56.
---------------------------------------------------------------------------

b. Comments
    195. Ohio Consumers' Counsel supports the NOPR's proposal and 
recommends that the Commission and consumers must both be able to 
verify that the investments are being made and that the intended 
benefits are being received.\350\
---------------------------------------------------------------------------

    \350\ Ohio Consumers' Counsel Initial Comments at 16.
---------------------------------------------------------------------------

    196. Several commenters ask for the Commission to require 
additional information beyond the proposed reporting requirements. 
NRECA requests that the Commission require that the annual 
informational filings include any changes to the categorization of any 
incentivized enhancements and affirmatively state that the previously 
incentivized enhancement remains valid.\351\ NRECA states that this 
modification will address the burden placed on ratepayers to review and 
analyze the information provided to ensure the accuracy of formulas 
applying different ROEs, especially where certain of those ROEs are 
capped.\352\ NRECA also asks that the Commission consider issuing 
responses confirming the continued applicability of incentive rate 
treatment in response to the annual informational filings.\353\ Ohio 
FEA recommends that verification methods should be established that go 
beyond the annual information filings proposed by the NOPR to ensure 
that cybersecurity benefits are realized and that double recovery of 
incentives is avoided.\354\ NRECA also recommends that the Commission 
establish a process to confirm whether a utility's cybersecurity 
investment had the security effects described.\355\
---------------------------------------------------------------------------

    \351\ NRECA Initial Comments at 12.
    \352\ Id. at 12.
    \353\ Id. at 12.
    \354\ Ohio FEA Initial Comments at 13.
    \355\ NRECA Initial Comments at 9.
---------------------------------------------------------------------------

    197. California Parties urge the Commission to require utilities 
awarded cybersecurity incentives to submit aggregated data and, 
consistent with the Commission's CEII regulations, provide vetted State 
officials access to it.\356\ California Parties argue that the 
provision of such data will, in turn, enable the relevant State 
officials to improve the cybersecurity protection of utility assets in 
their respective states.\357\
---------------------------------------------------------------------------

    \356\ California Parties Initial Comments at 34.
    \357\ Id. at 34-35.
---------------------------------------------------------------------------

    198. While not opposed to the NOPR proposal, EEI states that the 
Commission should allow the annual reports to be filed under the CEII 
regulations because the information the Commission seeks, while 
innocuous on its own, could be coupled with other information and used 
by those seeking to attack the reliability of U.S. energy 
infrastructure.\358\ EEI states that, given the sensitivity of 
information filed as part of an annual report, electric companies would 
need assurances regarding how the various intervenor/third-party 
recipients of CEII would comply with sensitive data and information 
protection requirements, the obligation to destroy CEII when requested 
to do so, the prohibition on sharing CEII, and immediate reporting of 
unauthorized access of CEII.\359\
---------------------------------------------------------------------------

    \358\ EEI Initial Comments at 16.
    \359\ Id. at 17.
---------------------------------------------------------------------------

c. Commission Determination
    199. Consistent with the NOPR, in order to ensure that a utility 
receiving incentive-based rate treatment has implemented and continues 
to adhere to the requirements of the incentive, we require utilities to 
submit informational reports to the Commission for the duration of the 
cybersecurity incentive, pursuant to Sec.  35.48(i), which we are 
adding to the Commission's regulations. We continue to find that 
cybersecurity investments, unlike many others, may not otherwise be 
observable and verifiable by other parties. Consistent with the 
comments of Ohio Consumers' Counsel and California Parties, this 
requirement should provide State commissions and other stakeholders 
enhanced visibility into the cybersecurity investments that utilities 
are making for which they receive incentives.
    200. Consistent with the NOPR, a utility that has received 
cybersecurity incentives under this section must make an annual 
informational filing by June 1 of that calendar year, 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 within 60 days before June 1 must submit an 
annual informational filing beginning on June 1 of the following 
year.\360\ The annual filing must 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 the cybersecurity 
investments are booked. For recipients of the Cybersecurity Regulatory 
Asset Incentive, annual informational filings should describe expenses 
in sufficient detail to demonstrate that such expenses specifically 
relate to the eligible cybersecurity investment and not to ongoing 
services including system maintenance, surveillance, and other labor 
costs that are materially the same as those that existed prior to the 
incentive request. Additionally, consistent with NRECA's comments, 
annual informational filings must specify any material changes in the 
nature of such expenses from prior filings. Unlike capital investments, 
ongoing expenses could potentially change in nature over time, and this 
provision ensures that the incentives in utility rates correspond to 
the precise expenses for which the Commission approved incentives.
---------------------------------------------------------------------------

    \360\ If a utility first receives Commission-approval for the 
incentive on April 1 or later, its initial annual informational 
filing would be due on June 1 of the following year.
---------------------------------------------------------------------------

    201. We will not, as requested by NRECA, include a requirement for 
the Commission to issue responses confirming the continued 
applicability of incentive rate treatment in response to the annual 
informational filings. We do not find that such affirmative 
confirmation is necessary to ensure that incentives continue to be just 
and reasonable.
    202. We also decline to establish a process to confirm whether a 
utility's cybersecurity investment had the security effects described 
as recommended by NRECA.\361\ The annual informational filings will 
enable the Commission and interested parties to confirm that utilities 
have made the cybersecurity investments for which they receive 
incentives. Establishing a process to review the efficacy of each 
cybersecurity investment would create a substantial regulatory burden 
on utilities and other parties, including the Commission. Furthermore, 
measuring the ultimate effect of specific cybersecurity investments may 
be difficult given that security defenses can act as a deterrence to 
cyberattack and therefore it is impossible to know what cyberattacks 
have been prevented.
---------------------------------------------------------------------------

    \361\ NRECA Initial Comments at 9.
---------------------------------------------------------------------------

    203. We note that Sec.  35.48(j) to the Commission's regulations 
declares that utilities may request CEII treatment pursuant to Sec.  
35.48(i) to the Commission's regulations for the portions of their 
cybersecurity incentive-based rate informational reports that contain 
CEII. This is consistent with Sec.  388.113 of the

[[Page 28375]]

Commission's regulations.\362\ In addition, FPA section 219A(g) 
declares that Advanced Cybersecurity Technology Information provided to 
the Commission under FPA 219A(b), (c), or (f) ``shall be considered to 
be Critical Electric Infrastructure Information under [FPA] section 
215A.'' \363\
---------------------------------------------------------------------------

    \362\ 18 CFR 388.113.
    \363\ IIJA, Public Law 117-58, section 40123, 135 Stat. at 951 
(to be codified at 16 U.S.C. 824s-1(g)).
---------------------------------------------------------------------------

E. Other Issues

1. Comments
    204. INGAA and the International Pipeline Resilience Organization 
(IPRO) support the Commission's efforts to provide cybersecurity 
incentives to electric utilities but argue that rate-based incentives 
should also be available to owners and operators of interstate natural 
gas pipelines under the Commission's authority.\364\ Both commenters 
assert that, due to the highly interconnected nature of the electric 
and gas industries and the similarities in threats faced by both 
industries, the Commission is overlooking a security threat by solely 
focusing on incentives for electric utilities.\365\ IPRO argues that 
the Commission has the requisite authority under the NGA and the 
Interstate Commerce Act (ICA) to offer incentives to the oil and gas 
industry.\366\ In contrast, California Parties assert that, because the 
NOPR does not cite the NGA or ICA, the Commission cannot include 
incentives for pipeline owners and operators in the final rule.\367\
---------------------------------------------------------------------------

    \364\ INGAA Initial Comments at 2; IPRO Initial Comments at 2-3.
    \365\ INGAA Initial Comments at 2; IPRO Initial Comments at 2-3.
    \366\ IPRO Initial Comments at 9-10.
    \367\ California Parties Reply Comments at 14.
---------------------------------------------------------------------------

    205. EPSA urges the Commission to prevent cross-subsidization among 
vertically integrated entities. EPSA avers that, while these companies 
may have separate legal entities for their transmission and generation 
operations, cybersecurity programs are often administered as a shared 
service. EPSA argues that the Commission must ensure that any entities 
to which it extends incentives on the transmission side are not cross-
subsidizing cybersecurity operations for their generation arms.\368\
---------------------------------------------------------------------------

    \368\ EPSA Initial Comments at 9.
---------------------------------------------------------------------------

2. Commission Determination
    206. We will not, as IPRO advocates, extend incentives to natural 
gas pipelines and oil pipelines in this proceeding. This rulemaking 
effectuates Congress' requirement that the Commission develop 
cybersecurity incentives for utilities pursuant to FPA section 219A. As 
noted by California Parties, incentives under the NGA and the ICA are 
beyond the scope of this proceeding. We also note that the application 
of longstanding cost-of-service cost-allocation practices to 
enterprise-wide costs, described in sections III.C.1 and III.C.2 above, 
will address EPSA's cross-subsidization concerns.

IV. Information Collection Statement

    207. The information collection requirements contained in this 
final rule 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.\369\ 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 final rule establishes the 
Commission's regulations with respect to the implementation of FPA 
section 219A.\370\
---------------------------------------------------------------------------

    \369\ 5 CFR 1320.11.
    \370\ Public Law 117-55, 135 Stat. 951 (2021) (to be codified at 
16 U.S.C. 824s-1).
---------------------------------------------------------------------------

    208. 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).
    209. The Commission solicited comments on the NOPR and the 
collection of information in that NOPR.
    Title: FERC-725B, Incentives for Advanced Cybersecurity Investment.
    Action: Proposed revision of FERC-725B.
    OMB Control No.: 1902-0248.
    Respondents for this Rulemaking: Public utilities and non-public 
utilities that have or will have a rate on file with the Commission.
    Frequency of Information Collection:
    On occasion: Voluntary filings seeking incentive-based rate 
treatment for cybersecurity expenditures; and
    Annually: An informational filing on June 1 of each year, required 
of entities that have been granted and are receiving incentive-based 
rate treatment for cybersecurity expenditures.
    Abstract: The final rule provides 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 final rule 
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 final rule refers to this list of pre-qualified 
expenditures that are eligible for incentives as the PQ List. Any 
cybersecurity expenditure that is on the PQ List is entitled to a 
rebuttable presumption of eligibility for an incentive.
    210. The final rule also discusses a different 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 and not unduly 
discriminatory or preferential.
    211. The final rule also provides 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.
    Necessity of Information: Required to obtain or retain benefits.
    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

[[Page 28376]]

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.
    212. 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 \371\ and 
cost \372\ as follows:
---------------------------------------------------------------------------

    \371\ ``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.
    \372\ 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--Changes in Final Rule in Docket No. RM22-19-000
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                        D.  Annual
                                                        C.  Annual       estimated
                                       B.  Number of     estimated       number of       E.  Average burden       F.  Total  estimated  burden hours &
      A.  Area of  modification         respondents      number of       responses     hours & cost  ($) per     total  estimated cost  ($)(Column D x
                                                       responses per    (Column B x           response                         Column E)
                                                        respondent       Column C)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Voluntary filing seeking incentive                50               1              50  80 hours; $7,280.......  4,000 hours; $364,000
 rate treatment for cybersecurity
 investment. 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. 18 CFR
 35.48(h).
                                     -------------------------------------------------------------------------------------------------------------------
    Totals..........................  ..............  ..............  ..............  .......................  6,000 hours; $546,000
--------------------------------------------------------------------------------------------------------------------------------------------------------

V. Environmental Analysis

    213. 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.\373\ We 
conclude that that neither an Environmental Assessment nor an 
Environmental Impact Statement is required for this final rule under 
Sec.  380.4(a)(15) of the Commission's regulations, which provides a 
categorical exemption for approval of actions under sections 205 and 
206 of the FPA relating to the filing of schedules containing all rates 
and charges for the transmission or sale of electric energy subject to 
the Commission's jurisdiction, plus the classification, practices, 
contracts, and regulations that affect rates, charges, classifications, 
and services.\374\
---------------------------------------------------------------------------

    \373\ Regs. Implementing the Nat'l Env'l Pol'y Act, Order No. 
486, 52 FR 47897 (Dec. 17, 1987), FERC Stats. & Regs. ] 30,783 
(1987) (cross-referenced at 41 FERC ] 61,284).
    \374\ 18 CFR 380.4(a)(15).
---------------------------------------------------------------------------

VI. Regulatory Flexibility Act

    214. The Regulatory Flexibility Act of 1980 (RFA) \375\ generally 
requires a description and analysis of final rules that will have 
significant economic impact on a substantial number of small entities. 
The Small Business Administration's (SBA) Office of Size Standards 
develops the numerical definition of a small business.\376\ The SBA 
size standard for electric utilities is based on the number of 
employees, ranging from 250 to 1,000 employees based on the electric 
utility type.\377\ While this final rule is applicable to all small 
utilities, participation with this final rule is voluntary for all 
respondents, including small utilities. We estimate that the average 
cost of voluntary participation for each utility to be $7,280 (initial 
filing) plus an annual estimated cost of $3,640 for up to five years. 
These initial and annual estimated costs would not constitute a 
significant economic impact on affected entities of any size, including 
small entities. Accordingly, the Commission certifies that this final 
rule will not have a significant economic impact on a substantial 
number of small entities.
---------------------------------------------------------------------------

    \375\ 5 U.S.C. 601-612.
    \376\ 13 CFR 121.101.
    \377\ 13 CFR 121.201.
---------------------------------------------------------------------------

VII. Document Availability

    215. In addition to publishing the full text of this document in 
the Federal Register, the Commission provides all interested persons an 
opportunity to view and/or print the contents of this document via the 
internet through the Commission's Home Page (http://www.ferc.gov). At 
this time, the Commission has suspended access to the Commission's 
Public Reference Room due to the President's March 13, 2020 
proclamation declaring a National Emergency concerning the Novel 
Coronavirus Disease (COVID-19).
    216. From FERC's Home Page on the internet, this information is 
available on eLibrary. The full text of this document is available on 
eLibrary in PDF and Microsoft Word format for viewing, printing, and/or 
downloading. To access this document in eLibrary, type the docket 
number excluding the last three digits of this document in the docket 
number field.
    217. User assistance is available for eLibrary and the FERC's 
website during normal business hours from FERC 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].

VIII. Effective Date and Congressional Notification

    218. These regulations are effective [insert date 60 days from 
publication in Federal Register]. The Commission has determined, with 
the concurrence of the Administrator of the Office of Information and 
Regulatory Affairs of OMB, that this rule is not a ``major rule'' as 
defined in section 351 of the Small Business Regulatory Enforcement 
Fairness Act of 1996.

List of Subjects in 18 CFR Part 35

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


[[Page 28377]]


    By the Commission. Commissioner Danly is dissenting with a 
separate statement attached.

    Issued: April 21, 2023.
Debbie-Anne A. Reese,
Deputy Secretary.

    In consideration of the foregoing, the Commission hereby amends 
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 with rates on file with the Commission 
that voluntarily make cybersecurity investments as described in this 
section.
    (b) Definitions. As used in this section:
    Advanced Cybersecurity Technology means 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 (as defined in section 102 
of the Cybersecurity Act of 2015 (6 U.S.C. 1501)).
    Advanced Cybersecurity Technology Information means information 
relating to Advanced Cybersecurity Technology or proposed Advanced 
Cybersecurity Technology that is generated by or provided to the 
Commission or another Federal agency. Pursuant to FPA section 219A(g), 
Advanced Cybersecurity Technology Information is considered to be 
Critical Electric Infrastructure Information.
    Critical Energy/Electric Infrastructure Information (CEII) has the 
same meaning as defined in 18 CFR 388.113.
    Electric Reliability Organization has the same meaning as defined 
in Sec.  39.1 of this subchapter.
    Reliability Standard has the same meaning as defined in Sec.  39.1 
of this subchapter.
    (c) 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, 
provided that the utility meets the requirements of this section and 
the utility demonstrates that the resulting rate is just and reasonable 
and not unduly discriminatory or preferential, as required by sections 
205 and 206 of the Federal Power Act. 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 a single 
incentive-based rate treatment as specified in paragraph (f) of this 
section for an eligible cybersecurity investment that meets the 
eligibility criteria set forth in paragraph (d) of this section.
    (d) Eligibility criteria. Pursuant to paragraphs (e) through (k) of 
this section, a utility may receive incentive-based rate treatment for 
a cybersecurity investment that:
    (1) Materially improves cybersecurity through either Advanced 
Cybersecurity Technology or participation in a cybersecurity threat 
information sharing program; and
    (2) Is not already mandated by the Reliability Standards as 
maintained by the Electric Reliability Organization, or otherwise 
mandated by local, State, or Federal law, decision, or directive; 
otherwise legally mandated; or an action taken in response to a Federal 
or State agency merger condition, consent decree from Federal or State 
agency, or settlement agreement that resolves a dispute between a 
utility and a public or private party.
    (e) Demonstrating satisfaction of the eligibility criteria. A 
utility shall demonstrate to the Commission that a proposed 
cybersecurity investment satisfies the eligibility criteria in 
paragraph (d) of this section. Such demonstration shall show that the 
cybersecurity investment fulfills at least one of the provisions in the 
following paragraphs (e)(1) through (3):
    (1) A utility shall demonstrate that a cybersecurity investment 
qualifies as one or more of the pre-qualified cybersecurity 
investments. The Commission shall rebuttably presume that pre-qualified 
cybersecurity investments satisfy the eligibility criteria. The 
Commission shall maintain a list on its website of pre-qualified 
cybersecurity investments and shall update such list from time to time 
either subject to notice and comment procedures or in a rulemaking.
    (2) A utility shall demonstrate that a cybersecurity investment 
satisfies each of the eligibility criteria in paragraph (d) of this 
section. The Commission shall not presume that such demonstration 
satisfies the eligibility criteria.
    (3) A utility shall demonstrate that it will make cybersecurity 
investments to comply with a Reliability Standard that is approved by 
the Commission but has not yet taken effect as approved by the 
Commission. The Commission shall not presume that such demonstration 
satisfies the eligibility criteria. Any incentives authorized by the 
Commission pursuant to this section shall terminate when the 
Reliability Standard takes effect.
    (f) Types of incentive-based rate treatment for cybersecurity 
investment. For purposes of this section, incentive-based rate 
treatment shall mean deferral of expenses as a regulatory asset.
    (g) Incentive duration. (1) A deferred Advanced Cybersecurity 
Technology regulatory asset whose costs are typically expensed shall 
be:
    (i) Amortized over a period of up to five years;
    (ii) Limited to expenses incurred in the first five years following 
Commission approval of the incentive;
    (iii) Limited to ongoing expenses that the applicable utility was 
not already undertaking more than three months prior to filing an 
incentive request; and
    (iv) Terminated when the cybersecurity investment or activity that 
serves as the basis of that incentive becomes mandatory.
    (2) An incentive granted for participation in a qualified 
cybersecurity threat information sharing program will not be subject to 
the five-year duration limitation provisions of paragraph (g)(1)(ii) of 
this section for as long as the utility participates in the qualified 
cybersecurity threat information sharing program and such participation 
is not mandatory as to the utility. A utility participating in a 
qualified cybersecurity threat information sharing program is eligible 
to continue deferring expenses associated with such participation, 
which for each year would be amortized over the next five years.
    (h) Incentive applications. For the purpose of this section, a 
utility's request for incentive based-rate treatments for one or more 
cybersecurity investments must be made in a filing pursuant to section 
205 of the Federal Power Act, or in a petition for a declaratory order 
that precedes a filing pursuant to section 205 of the Federal Power 
Act. Utilities may file such a request either as a part of a general 
rate request or on a single-issue basis. Such a request shall include a 
detailed explanation to include the following information:

[[Page 28378]]

    (1) A demonstration that the cybersecurity investment satisfies the 
eligibility criteria, which includes an attestation that cybersecurity 
investment is not mandatory, as required by paragraph (d)(2) of this 
section, and that the resulting rate is just and reasonable and not 
unduly discriminatory or preferential; and
    (2) A detailed description of relevant cybersecurity expenses, 
including whether such cybersecurity expenses are:
    (i) Associated with third-party provision of hardware, software, 
computing networking services, and/or cybersecurity monitoring 
services;
    (ii) For training to implement network analysis and monitoring 
programs, and/or other cybersecurity protocols; and/or
    (iii) Other cybersecurity expenses;
    (3) Estimates of the cost of such cybersecurity expenses;
    (4) When the cybersecurity expenses are expected to be incurred; 
and
    (5) An attestation that the utility either has not already been 
undertaking duplicative or materially the same expenses for more than 
three months or that the utility is participating in a cybersecurity 
threat information-sharing program for the expense at issue. In the 
case of cybersecurity investments made to comply with a Reliability 
Standard that is approved by the Commission but has not yet taken 
effect as approved by the Commission pursuant to paragraph (e)(3) of 
this section, the utility must attest that it has not already been 
undertaking duplicative or materially the same expenses for more than 
three months prior to the date that the Commission's approval of the 
Reliability Standard becomes effective.
    (i) Reporting requirements. A utility that has received Commission 
approval for incentive-based rate treatment under this section shall 
make an annual informational filing on June 1, provided that the 
utility has received such Commission approval at least 60 days prior to 
June 1 of that year. A utility that receives Commission approval of an 
incentive-based rate treatment under this section later than 60 days 
prior to June 1 shall submit an annual informational filing beginning 
on June 1 of the following year. The annual filing shall detail the 
specific cybersecurity investments that were made pursuant to the 
Commission's approval and the corresponding FERC account used. The 
annual informational filing shall describe the deferred 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. Utilities shall provide a detailed description of any 
material changes in the nature of such expenses from prior year 
informational filings.
    (j) Transmittal of CEII in incentive applications and annual 
reports. As appropriate, any CEII submitted to the Commission in a 
utility's incentive application made pursuant to paragraph (k) of this 
section or contained in its reporting requirements made pursuant to 
paragraph (i) of this section shall be filed consistent with 18 CFR 
part 388.

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

UNITED STATES OF AMERICA

Incentives for Advanced Cybersecurity Investment, Docket No. RM22-19-
000
DANLY, Commissioner, dissenting:

    1. I dissent from today's Final Rule \378\ because it is not in 
line with the Infrastructure Investment and Jobs Act (IIJA) directive 
to establish incentive-based rate treatments that ``encourag[e]'' 
``investments by public utilities in advanced cybersecurity 
technology'' and ``participation by public utilities in cybersecurity 
threat information sharing programs.'' \379\ Some have stated that 
Congress intended for the IIJA to ``shore up cybersecurity'' across the 
energy sector and other critical infrastructure.\380\ The Final Rule 
provides cybersecurity incentives to select energy sector participants 
and only a few cybersecurity investments. This rule does not ``shore up 
cybersecurity'' of the bulk power system. At best, it is a tepid 
response to a clear Congressional mandate.
---------------------------------------------------------------------------

    \378\ Incentives for Advanced Cybersecurity Investment, 183 FERC 
] 61,033 (2023) (Final Rule).
    \379\ Public Law 117-58, section 40123(c), 135 Stat. 429, 952 
(codified 16 U.S.C. 824s-1(c)).
    \380\ See, e.g., Senate Committee on Energy & Natural Resources, 
Chairman Manchin Opening Remarks, at 6 (Mar. 23, 2023), https://www.energy.senate.gov/services/files/3D1ABB79-6CBF-4786-872A-E708A87CB6AB (``We took action last Congress by providing $1.9 
billion in the Infrastructure Investment and Jobs Act to shore up 
cybersecurity across the transportation, energy, and water sectors 
by supporting utilities and State and local governments. I am 
immensely proud of this work.'').
---------------------------------------------------------------------------

    2. First, the Final Rule limits incentives and cost recovery to 
those public and non-public utilities ``that have or will have a [cost-
based] rate [tariff] on file with the Commission.'' \381\ Put 
differently, the Final Rule excludes public and non-public utilities 
that sell electricity at market-based rates. This exclusion is not 
narrow. In 2019, the Commission estimated that there were over 2,500 
market-based rate sellers.\382\
---------------------------------------------------------------------------

    \381\ Final Rule, 183 FERC ] 61,033 at P 23 (citation omitted).
    \382\ Data Collection for Analytics & Surveillance & Market-
Based Rate Purposes, Order No. 860, 168 FERC ] 61,039, at P 324 
(2019).
---------------------------------------------------------------------------

    3. Given the size of the population excluded, one would expect the 
IIJA to have directed such limitation. It does not. The statute directs 
the Commission to establish incentive-based rate treatments that 
``encourage'' ``public utilities'' to make cybersecurity investments 
and participate in cybersecurity information sharing programs. It 
allows for single-issue rate filings and does not distinguish between 
those utilities with cost-of-service rates from those with market-based 
rates.
    4. Nor does the broader context of the IIJA support such 
exclusion.\383\ A reading of the IIJA's cybersecurity provisions in 
their entirety make evident that Congress intended for agencies to 
immediately undertake a broad campaign to support cybersecurity 
investment in the energy sector. The IIJA directed the Commission to 
establish cybersecurity incentives within 1.5 years of its 
enactment.\384\ Further, as noted by the Electric Power Supply 
Association (EPSA), ``Congress specifically cites small or medium-sized 
public utilities with limited cybersecurity resources as being 
potentially eligible for additional incentives beyond those identified 
in the legislation, demonstrating the Congressional intent to fortify 
the entirety of the [Bulk Power System] to the greatest extent that is 
reasonably possible.'' \385\ The IIJA also directed the Secretary of 
Energy to ``enhance[ ] grid security,'' \386\ ``deploy advanced 
cybersecurity technologies for electric utility systems,'' \387\ and 
``increase the

[[Page 28379]]

participation of eligible entities in cybersecurity threat information 
sharing programs.'' \388\ Simply put, excluding 2,500 market-based rate 
sellers from cybersecurity incentives and cost recovery is not in line 
with Congressional intent. It should also not go unnoticed that the 
majority fails to include the provisions from the IIJA in its revised 
regulations regarding additional incentives for certain utilities, 
including defense critical electric infrastructure and small and medium 
utilities,\389\ without any explanation although there really can be 
none.
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    \383\ See McCarthy v. Bronson, 500 U.S. 136, 139 (1991) 
(``[S]tatutory language must always be read in its proper 
context.''); Crandon v. U.S., 494 U.S. 152, 158 (1990) (``In 
determining the meaning of the statute, we look not only to the 
particular statutory language, but to the design of the statute as a 
whole and to its object and policy.'') (citations omitted).
    \384\ Public Law 117-58, section 40123(b)-(c), 135 Stat. 429, 
952 (codified 16 U.S.C. 824s-1(b)-(c)) (requiring the Commission to 
conduct a study to identify incentive-based rate treatments within 
180 days after the enactment of the section and establish a rule for 
incentive-based rate treatment within one year thereafter).
    \385\ EPSA, November 7, 2022 Comments, at 6 (Accession No. 
20221107-5130) (emphasis in original) (EPSA Comments). The IIJA also 
authorized the Commission to provide ``additional incentives'' if 
that ``investment in advanced cybersecurity technology or 
information sharing program costs will reduce cybersecurity risks to 
. . . defense critical electric infrastructure.'' Public Law 117-58, 
section 40123(d), 135 Stat. 429, 952 (codified at 16 U.S.C. 824s-
1(d)).
    \386\ Id., section 40121, 135 Stat. 429, 949 (emphasis added).
    \387\ Id., section 40124(c), 135 Stat. 429, 954 (emphasis 
added).
    \388\ Id. (emphasis added).
    \389\ See id., section 40123(d), 135 Stat. 429, 952 (codified 16 
U.S.C. 824s-1(d)).
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    5. What Congress intended is of no consequence to the majority. On 
top of failing to respond meaningfully to EPSA's argument regarding 
Congressional intent (an Administrative Procedure Act violation),\390\ 
my colleagues declare (without citing to any provision in the IIJA) 
that ``utilities that make sales of energy, capacity, or ancillary 
services at market-based rates should [not] be able to continue to make 
those sales and also separately recover the costs of, and receive 
incentive-based rate treatment on, eligible cybersecurity 
investments.'' \391\ Then the majority goes on to claim that the 
``final rule meets the requirements of [the IIJA]'' because ``[a]ll 
sellers of energy, capacity, and ancillary services are free to file 
cost-of-service rates under FPA section 205 . . . to recover their 
entire cost of service'' and ``proceed to make sales exclusively under 
that cost-based rate.'' \392\ In other words, the Commission has 
fulfilled the Congressional mandate because 2,500 market-based rate 
sellers can always abandon their market-based rate authority and make 
filings to transact only at cost-based rates.
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    \390\ See TransCanada Power Mktg. Ltd. v. FERC, 811 F.3d 1, 12 
(D.C. Cir. 2015) (``It is well established that the Commission must 
`respond meaningfully to the arguments raised before it.''') 
(quoting Pub. Serv. Comm'n v. FERC, 397 F.3d 1004, 1008 (D.C. Cir. 
2005)).
    \391\ Final Rule, 183 FERC ] 61,033 at P 26.
    \392\ Id. (citation omitted).
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    6. That reasoning is untenable. The IIJA intended agencies to adopt 
policies and rules that would induce swift and efficient investments in 
cybersecurity by the entire energy sector--it was not designed to 
undermine competitive markets. Moreover, the majority's interpretation 
effectively voids the IIJA's directive that ``[t]he Commission shall 
permit public utilities to apply for incentive-based rate treatment 
under a rule issued under this section on a single-issue basis by 
submitting to the Commission a tariff schedule under [FPA] section [205 
\393\] . . . that permits recovery of costs and incentives over the 
depreciable life of the applicable assets, without regard to changes in 
receipts or other costs of the public utility.'' \394\
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    \393\ 16 U.S.C. 824d.
    \394\ Public Law 117-58, section 40123(f), 135 Stat. 429, 953 
(codified 16 U.S.C. 824s-1(f)) (emphasis added).
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    7. Public utilities submit revisions both to market-based rate 
tariffs and cost-based rate tariffs under FPA section 205. While the 
proposed rule stated that utilities must file to recover costs and 
incentives in accordance with FPA section 205 and identified certain 
filing requirements as to utilities with formula rates and stated 
rates,\395\ at no time did the Commission suggest that entities 
currently making sales of energy, capacity and ancillary services under 
market-based rate tariffs must make a filing to recover their entire 
cost of service, including costs of and an incentive return on, 
cybersecurity investments and proceed to make sales exclusively under 
that cost-based rate, as set forth in the final rule. The final rule is 
not a ``logical outgrowth'' \396\ of the proposed rule, and its sharp 
departure from the proposed rule violates that the Administrative 
Procedure Act (APA) requirement that agencies engaged in a rulemaking 
must provide interested parties adequate notice and opportunity to 
comment on a proposed rule.\397\ It also is nonsensical. Even under the 
construct today, a generation utility may have both a market-based rate 
tariff under which it sells energy, capacity and ancillary services and 
a cost-based rate tariff under which it recovers a reactive power 
revenue requirement. There is no requirement that such generation 
utility abandon its market-based rate tariff to recover its cost-based 
rates. Because the proposed rule failed to provide adequate notice to 
the public of any change as to market-based rate sellers, this 
violation of the APA is an obvious legal error.
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    \395\ See Incentives for Advanced Cybersecurity Investment, 180 
FERC ] 61,189, at P 2 (2022) (citation omitted) (Cybersecurity 
Incentives NOPR); id. PP 24, 50-51; see also id. P 51 (``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.'') (emphasis added); id. P 
51 n.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.'').
    \396\ See, e.g., Am. Fed. Of Labor & Congress of Indus. Org. v. 
Donovan, 757 F.2d 330, 339 (D.C. Cir. 1985) (``the modification 
cannot reasonably be seen as the `logical outgrowth' of a proposal 
that gave no indication of any change at all in this respect.''); 
Shell Oil Co. v. EPA, 950 F.2d 741, 751 (D.C. Cir. 1991) (``Even if 
the mixture and derived-from rules had been widely anticipated, 
comments by members of the public would not in themselves constitute 
adequate notice. Under the standards of the APA, `notice necessarily 
must come--if at all--from the Agency.''') (citations omitted); id. 
(``Moreover, while a comment may evidence a recognition of a 
problem, it can tell us nothing of how, or even whether, the agency 
will choose to address it.'').
    \397\ See 5 U.S.C. 553.
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    8. Second, the Final Rule unilaterally imposes the heightened 
requirement that each ``cybersecurity investment[s] [must] . . . 
materially improve cybersecurity through either an investment in 
Advanced Cybersecurity Technology or participation in a cybersecurity 
threat information sharing program.'' \398\ The IIJA includes no such 
materiality requirement. Congress directed the Commission to 
``encourage[ ]--(1) investments by public utilities in advanced 
cybersecurity technology; and (2) participation by public utilities in 
cybersecurity threat information sharing programs.'' \399\
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    \398\ Final Rule, 183 FERC ] 61,033 at P 28.
    \399\ Public Law 117-58, section 40123(c)(2), 135 Stat. 429, 952 
(codified 16 U.S.C. 824s-1(c)(2)).
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    9. The IIJA already limits what qualifies as ``advanced 
cybersecurity technology'' to ``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.'' \400\ The ordinary meaning of 
``enhance'' is ``to improve the quality, amount, or strength of 
something.'' \401\ It is not to ``materially improve the quality, 
amount or strength of something.''
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    \400\ Id., section 40123(a), 135 Stat. 429, 951-52 (codified 16 
U.S.C. 824s-1(a)).
    \401\ Cambridge Dictionary, https://dictionary.cambridge.org/us/dictionary/english/enhance (defining ``enhance'').
---------------------------------------------------------------------------

    10. While the IIJA does not explicitly define ``cybersecurity 
threat information sharing program,'' \402\ it can be inferred that the 
statute requires (1) that there is a ``program,'' (2) that 
``information [is] shar[ed],'' and (3) that information relates to 
``cybersecurity.'' The statute cannot be read as inferring a 
requirement that the utility's participation must ``materially 
improve'' the security posture of that utility. The additional 
requirements in the Final Rule that the information be ``relevant and 
actionable'' and program be ``sponsored by the federal or state 
government'' are arbitrary and subjective and also is not in line with

[[Page 28380]]

the IIJA.\403\ Congress knows how to say ``materially improve,'' and in 
fact, did so elsewhere in the IIJA,\404\ but did not do so to limit the 
cybersecurity investments eligible for an incentive.
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    \402\ Public Law 117-58, section 40123(c), 135 Stat. 429, 952 
(codified 16 U.S.C. 824s-1(c)).
    \403\ Final Rule, 183 FERC ] 61,033 at P 42.
    \404\ See Public Law 117-58, section 22420(a), 135 Stat. 429, 
749 (``The Administrator of the Federal Railroad Administration 
shall conduct a study of the potential installation and use in new 
passenger rail rolling stock of passenger rail vehicle occupant 
protection systems that could materially improve passenger 
safety.''). C.f. Cent. Bank of Denver v. First Interstate Bank, 511 
U.S. 164, 176-77 (1994) (``Congress knew how to impose aiding and 
abetting liability when it chose to do so.'') (citation omitted).
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    11. To make matters worse, the majority provides no meaningful 
objective criteria for satisfying its materiality requirement. While 
the Final Rule lists specific sources that the Commission will 
``consider'' in its determination,\405\ even when parties demonstrate 
that an investment meets the requisite number of sources the Commission 
finds that it does not ``have a high degree of confidence that such 
item[ ] will likely materially improve cybersecurity.'' \406\ What 
could be more arbitrary than a ``standard'' based upon how confident an 
agency feels?
---------------------------------------------------------------------------

    \405\ Final Rule, 183 FERC ] 61,033 at P 40 (``Considering these 
sources as part of a Commission determination of whether a 
particular cybersecurity investment would materially improve 
cybersecurity''); id. P 109 (``the Commission will consider 
evidence'').
    \406\ Id. P 90.
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    12. Third, the majority eliminates the 200-basis point ROE Adder 
incentive because ``[cybersecurity] expenses . . . constitute a large 
portion of overall expenditures for many cybersecurity investments'' 
and ``the Cybersecurity Regulatory Asset Incentive alone provides the 
encouragement that Congress intended without unduly increasing costs on 
consumers.'' \407\ I disagree. Like Chairman Phillips, then 
Commissioner, stated in his concurrence to the NOPR:
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    \407\ Id. P 134 (``We decline to adopt an ROE incentive adder, 
as proposed in the NOPR.'').

    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, 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 
insufficient to incent any action by utilities, as required by 
Congress.\408\
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    \408\ Cybersecurity Incentives NOPR, 180 FERC ] 61,189 
(Phillips, Comm'r, concurring, at P 7) (citations omitted).

    13. Moreover, Congress required the Commission to establish a rule 
to provide incentives to investments in ``any technology, operational 
capability, or service'' \409\ not just ``many cybersecurity 
investments.'' \410\
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    \409\ Public Law 117-58, section 40123(a), 135 Stat. 429, 951 
(codified 16 U.S.C. 824s-1(a)) (emphasis added).
    \410\ Final Rule, 183 FERC ] 61,033 at P 134.
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    14. Finally, Congress did not require the Commission to simply 
``consider performance-based rates as an option among incentive 
ratemaking treatments'' \411\ as the majority contends. The statutory 
text states that ``the Commission shall establish, by rule, incentive-
based, including performance-based, rate treatments.'' \412\ There is 
no ambiguity here that could allow for, or support, the majority's 
``interpretation.''
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    \411\ Id. P 159.
    \412\ Public Law 117-58, section 40123(c), 135 Stat. 429, 952 
(codified 16 U.S.C. 824s-1(c)) (emphasis added).
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    15. The word ``consider[ ],'' while used elsewhere in FPA section 
219A,\413\ is absent from that provision. And the majority should not 
place too much weight on Order No. 679, which interpreted a provision 
in FPA section 219 similarly.\414\ The Commission's interpretation in 
Order No. 679 was arguably not in accordance with law and was never 
upheld by a court on appeal. My colleagues cannot rewrite a 
Congressional mandate because they believe that the statute is 
``difficult'' to implement.\415\
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    \413\ Id., section 40123(d), 135 Stat. 429, 952 (codified 16 
U.S.C. 824s-1(d)) (i.e., factors for consideration).
    \414\ See Final Rule, 183 FERC ] 61,033 at P 159 (citing 
Promoting Transmission Investment through Pricing Reform, Order No. 
679, 116 FERC ] 61,057, at P 270 (2006)).
    \415\ Id. P 160.
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    16. Nor is compliance with this provision as ``difficult'' as the 
majority claims. The Commission could comply simply by establishing a 
rule that entities can propose on a case-by-case basis a performance-
based rate treatment that would measure and tie the rate treatment to 
the number and severity of cybersecurity incidents. No more is required 
on the Commission's part.
    17. Congress has made it clear that the Commission must provide 
incentives to shore up the security of the bulk power system. President 
Biden has ``urge[d] our private sector partners to harden [their] cyber 
defenses immediately.'' \416\ Former President Trump issued an 
Executive Order declaring that ``[i]t is the policy of the executive 
branch to use its authorities and capabilities to support the 
cybersecurity risk management efforts of the owners and operators of 
the Nation's critical infrastructure.'' \417\ Former President Obama 
warned that cybersecurity threats are ``the most serious economic and 
national security challenge[ ] we face as a nation'' and ``America's 
economic prosperity . . . will depend on cybersecurity.'' \418\ 
Similarly, last fall in his concurrence to the Cybersecurity Incentives 
NOPR, Chairman Phillips, then Commissioner, stated, ``the nation's 
security and economic well-being depends on reliable and cyber-
resilient energy infrastructure.'' \419\ Instead of following Congress' 
instructions, and taking this reliability threat seriously, the 
majority passes up the opportunity to harden the cybersecurity defenses 
of the nation's critical energy infrastructure.
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    \416\ Statement by President Biden on Our Nation's 
Cybersecurity, The White House (Mar. 21, 2022), https://www.whitehouse.gov/briefing-room/ statements-releases/2022/03/21/
statement-by-president-biden-on-our-nations-cybersecurity; see also 
Cybersecurity Incentives NOPR, 180 FERC ] 61,189 (Phillips, Comm'r, 
concurring at P 8 n.17) (quoting Statement by President Biden on Our 
Nation's Cybersecurity).
    \417\ Exec. Order No. 13800, 82 FR 22391, section 2 (May 11, 
2017).
    \418\ Remarks by the President on Securing Our Nation's Cyber 
Infrastructure, The White House (May 29, 2009), https://
obamawhitehouse.archives.gov/the-press-office/remarks-president-
securing-our-nations-cyber-
infrastructure#:~:text=In%20short%2C%20America%27s%20economic%20prosp
erity%20in%20the%2021st,them%20for%20public%20transportation%20and%20
air%20traffic%20control.
    \419\ Cybersecurity Incentives NOPR, 180 FERC ] 61,189 
(Phillips, Comm'r, concurring at P 1).

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For these reasons, I respectfully dissent.

James P. Danly,
Commissioner.

[FR Doc. 2023-08929 Filed 5-2-23; 8:45 am]
BILLING CODE 6717-01-P


