Attachment D3 - FERC NDA Contractor NDA.docx

CONTRACTOR NON-DISCLOSURE AGREEMENT

On behalf of [Company Name], I certify that [Company Name] will abide by the following terms with respect to critical energy/electric infrastructure information (CEII), privileged material, personally identifiable information (PII), confidential material, and other non-public information (collectively referred to hereinafter as “non-public information”) that the company has access to because of its work for the Federal Energy Regulatory Commission (Commission or FERC):

· Only authorized company employees with a need for the information will be given access to non-public information. [Company Name] will maintain a list of each employee who is given access to non-public information, including a listing of each project for which the employee has been given CEII or other non-public information.

· [Company Name] will not provide non-public information to or discuss non-public information with anyone outside [Company Name] or FERC, except that non-public information may be discussed with: the project's owner, operator, or applicant; or any entity with a FERC non-disclosure agreement covering the same information.

· Information not marked as Public will be treated as non-public information unless the Agency specifies otherwise.

· [Company Name] agrees to provide each [Company Name] recipient of non-public information a copy of this Agreement, ensure that each recipient reads the provisions prior to accessing FERC non-public information, and that each recipient agrees to be bound by them.

· Access to, handling, and storage of non-public information must be accordance with Federal laws, regulations, and FERC policy and procedures, and notably, [Company Name] shall ensure FERC non-public information is stored in a secure place in a manner that would prevent unauthorized access.

· Non-public information will be used only in performance of [Company Name]'s work for FERC. When [Company Name] has completed work on the project, all non-public information will be returned to the appropriate FERC official, or destroyed at the request of the appropriate FERC official.

· [Company Name] shall promptly report all unauthorized disclosures of FERC non-public information including any data breach involving FERC non-public information to FERC contracting officer, contracting officer’s representative, as well as the FERC Chief Information Officer.

· These restrictions are consistent with and do not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by Executive Order No. 12958, as amended; Section 7211 of Title 5, United States Code (governing disclosures to Congress); Section 1034 of Title 10, United States Code, as amended by the Military Whistleblower Protection Act (governing disclosure to Congress by members of the military); Section 2302(b)(8) of Title 5, United States Code, as amended by the Whistleblower Protection Act (governing disclosures of illegality, waste, fraud, abuse or public health or safety threats); the Intelligence Identities Protection Act of 1982 (50 USC 421 et seq.) (governing disclosures that could expose confidential Government agents); and the statutes which protect against disclosure that may compromise the national security, including Sections 641, 793, 794, 798, and 952 of Title 18, United States Code, and Section 4(b) of the Subversive Activities Act of 1950 (50 USC 783(b)). The definitions, requirements obligations, rights, sanctions, and liabilities created by said Executive Order and listed statutes are incorporated in this agreement and are controlling.

· Signing this Agreement does not bar disclosures to Congress or to an authorized official of an executive agency or the Department of Justice that are essential to reporting a substantial violation of law.

· [Company Name] shall comply with the provisions of this Agreement. FERC staff may audit [Company Name]’s compliance with this Agreement. If [Company Name] fails to comply with any of the provisions of this Agreement, FERC reserves the right to prohibit further access and may require the immediate destruction or return of the information, as well as taking any other legally available action.

· On behalf of [Company Name], I represent that I have the authority to enter into this agreement, and in that capacity, acknowledge that a violation of this agreement may result in negative consequences and could affect [Company Name]'s ability to contract with the Commission in the future. Moreover, the unauthorized disclosure of certain non-public information can incur civil or criminal penalties.

· Each provision of this agreement is severable. If a competent authority should find any provision of this agreement to be unenforceable, all other provisions of this agreement shall remain in full force and effect.

· Unless and until [Company Name] is released in writing by an authorized representative of FERC, all conditions and obligations by this agreement apply during the time [Company Name] is granted access to FERC information, and at all times thereafter.

· If [Company Name] is legally directed to disclose FERC information, including through a legally required process such as discovery, it shall provide notice to the contracting officer and contracting officer’s representative in advance of any disclosure.

· This NDA concerns a matter within the jurisdiction of an agency of the United States; the maker of a false, fictitious, or fraudulent NDA may be criminally prosecuted under 18 U.S.C. § 1001.

Employee Name: ______________________________

Title: _______________________________________

Signature: ___________________________________

Representing: ___[Company Name]_______________

Date: _______________________________________