Department of Energy Revokes Prohibition Order and Issues New Request For Information Related to Bulk-Power System Equipment

By way of background, in May 2020, Executive Order 13920 (the BPS Executive Order) directed the DOE to issue regulations limiting the import and use of bulk-power system electric equipment from foreign adversaries. See our previous Update: New Executive Order Will Prohibit Certain Acquisitions of Foreign-Made Bulk-Power Systems Equipment. The BPS Executive Order focused on prohibiting any transaction that (i) involves bulk-power system equipment designed, developed, manufactured, or supplied by persons owned by, controlled by, or subject to the jurisdiction or direction of a foreign adversary and (ii) poses an unacceptable risk to national security.

Pursuant to authority granted under the BPS Executive Order, former Secretary of Energy Dan Brouillette issued Prohibition Order Securing Critical Defense Facilities (Prohibition Order) on December 17, 2020. The Prohibition Order barred certain utilities that supply critical defense facilities from procuring specific BPS electric equipment from the People’s Republic of China.

On January 20, 2021, President Joe Biden issued his Executive Order on Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis. This executive order suspended the BPS Executive Order for 90 days. As the Prohibition Order was predicated on the authorities delegated to DOE by the BPS Executive Order, the Prohibition Order was also suspended during the same time period.

At the expiration of the 90-day suspension, the DOE issued an order revoking the Prohibition Order, effective April 20, 2021. The DOE stated that it was revoking the Prohibition Order in order to create a stable policy environment before the emergency declaration made by the BPS Executive Order expires on May 1, 2021, and while the DOE conducts a related request for information to develop a strengthened and administrable strategy to address the security of the U.S. energy sector. The text of this revocation order can be found here.

Also on April 20, 2021, the DOE announced a new request for information (the RFI), Ensuring the Continued Security of Unites States Critical Electric Infrastructure. The DOE said that the RFI was issued as part of its consideration as to whether to recommend a replacement executive order that appropriately balances national security, economic, and administrability considerations. The RFI is focused on preventing exploitation and attacks by foreign threats to the U.S. supply chain, and it seeks industry input on developing a long-term strategy that includes supply chain risk management, procurement best practices, and risk mitigation criteria. According to the DOE, the RFI is part of a larger coordinated effort, including the recent America’s Supply Chains Executive Order 14017, to develop a strengthened and effective strategy to address the security of the U.S. energy sector.

In the RFI, the DOE is seeking industry input in two areas. First, it seeks input on developing a long-term strategy that includes technical needs, supply chain risk management, procurement best practices, and risk mitigation criteria for the electric power system. Second, the DOE asks for input on the scope and extent of a future prohibition authority. Comments on the RFI are due by June 7, 2021. The text of the RFI can be found here.