Another One Bites the Dust: Trump Bulk Power Prohibition Order Revoked; Department of Energy Opens New Bulk Power Equipment Proceeding

The Biden administration has suspended an executive order and revoked a related order, both issued by the Trump administration, that limited some installation and use of foreign-produced transmission equipment on portions of the US power grid.

In May 2020, the former administration issued Executive Order 13920, Securing the United States Bulk-Power System,¹ (EO 13920), which announced the opening of proceedings that would have allowed the Department of Energy (DOE) to impose restrictions on many uses of foreign-derived equipment and software in the US electric power system. Only one regulation or order implementing EO 13920 was ever issued, the DOE’s Prohibition Order Securing Critical Defense Facilities, dated December 17, 2020 (Prohibition Order).² The Prohibition Order limited the use of a narrow set of foreign equipment at a limited (but not publicly disclosed) number of electric transmission facilities.

On January 20, 2021, President Biden’s inauguration day, EO 13920 was suspended.³ On April 20, 2021, the Prohibition Order was entirely revoked and is no longer in effect.⁴

The revocation of the Prohibition Order has received extensive electric industry trade press attention. But its tangible impact is uncertain. EO 13920 has not been revoked—only the Prohibition Order has been revoked. The Prohibition Order only applied to equipment and software sourced from one country and only when used in interconnection wires used to transmit power to locations designated—non-publicly—as “critical defense facilities.” The Prohibition Order did not apply to all utilities, generation owners and transmitters; instead, it only applied to “Responsible Utilities”—those electric utilities that own or operate Defense Critical Electric Infrastructure (DCEI), under the Federal Power Act, and that were designated by DOE.⁵ The revocation of the Prohibition Order may have only limited effects involving a relatively few entities and a confined universe of equipment and facilities.

On April 20, 2021, DOE also issued a request for information (RFI)⁶ as to what other proceedings and prohibitions should be adopted under EO 13920. DOE itself has no authority to cancel or revoke an executive order, but DOE was delegated wide latitude under EO 13920, and no action can be taken under EO 13920 absent DOE first completing required rulemaking and related proceedings. DOE’s release proposes the collection of further comments about potential future prohibitions of foreign-sourced equipment. Comments will be due by a date to be set by further Federal Register notice (likely in June 2021).

The RFI notes the Biden administration’s recent Executive Order 14017,⁷ America’s Supply Chains, which, among other things, directs the secretary of energy, in consultation with the heads of appropriate agencies, to, within 100 days, identify and make recommendations to address risks in the supply chain for high-capacity batteries and, within one year, review and make recommendations to improve supply chains for the energy sector industrial base. The electricity subsector industrial control systems cybersecurity initiative, “100-day sprint,” announced by DOE is intended to enhance the integrity and security of priority sites’ control systems by installing technologies and systems to provide visibility and detection of threats and abnormalities in industrial control and operational technology systems.

Comments requested by the RFI are expected to support DOE’s development of recommendations to strengthen requirements and capabilities for supply chain risk management practices by the nation’s electric utilities. These recommendations are intended to enable an approach that builds on, clarifies and, where appropriate, modifies prior executive and agency actions.

The RFI requests information regarding both a possible comprehensive long-term risk management strategy and inter-agency coordination. The RFI notes that attention is also needed to mitigating the risks associated with potentially compromised grid equipment that is already installed on the system, along with the potential costs and benefits of addressing such equipment.

The RFI also requests information regarding how to exercise the authority conferred by EO 13920 to limit the use of certain foreign-sourced equipment in the US bulk power system.