4, Effective Date and Termination

This MOU is effective upon signing by the last signatory. This MOU will expire two years
from the date of execution unless renewed by mutual written agreement. This MOU may be
terminated at any time by mutual written agreement of the parties, or by one party after 60 days’
written notice.

Agreement

Daniel H. Dorman Leonard Tao
Executive Director for Operations (Acting) CEII Coordinator
U.S. Nuclear Regulatory Commission Director, Office of External Affairs

Federal Energy Regulatory Commission

bo tune 2018 a 5 2018

Date Dte



MEMORANDUM OF UNDERSTANDING BETWEEN U.S. NUCLEAR REGULATORY
COMMISSION (“NRC”) AND THE FEDERAL ENERGY REGULATORY
COMMISSION (“FERC”) REGARDING THE TREATMENT OF CRITICAL
ENERGY/ELECTRIC INFASTRUCTURE INFORMATION (“CEII”)

1, Preamble

Pursuant to 18 C.F.R. § 388.113(a), the NRC and FERC enter into this Memorandum of
Understanding (“MOU”). Under the Fixing America’s Surface Transportation Act (“FAST Act”),!
Critical Energy/Electric Infrastructure Information (“CEI”) is defined as information “designated
as critical electric infrastructure information by the Commission or the Secretary of the Department
of Energy pursuant to subsection (d).” The Commission’s CEII regulation further provides:

Nothing in this section limits the ability of any other Federal agency to take all
necessary steps to protect information within its custody or control that is necessary
to ensure the safety and security of the electric grid. To the extent necessary, such
agency may consult with the CEII Coordinator regarding the treatment or
designation of such information.

NRC and FERC mutually agree that it is important to protect CEI to ensure the safety and
security of the electric grid. This MOU sets forth the basic parameters under which NRC and
FERC will cooperate under 18 C.F.R. § 388.1 13(a) to protect the material in the NRC’s possession
that may be CEII.

2. Scope
A. General Responsibilities and Guidelines

NRC and FERC will mutually coordinate and manage the tasks undertaken pursuant to this
MOU. This MOU recognizes the responsibilities of the individual agencies and does not diminish
in any way the responsibility of either party or take away any authority from any either party to
pursue its regulatory programs. These cooperative efforts shall be implemented so as to avoid
regulatory conflicts.

B. Identification and Labeling of CEII in the Custody of NRC

The parties acknowledge FERC’s CEII regulations do not limit the ability of NRC to take
all steps to protect information that it considers to be CEII. Consequently, NRC staff will be
responsible for initially identifying information in its custody that contains CEII, as defined by 18
C.F.R. § 388.113(c). NRC staff agrees to prominently label document(s) as CEII and to handle
the document(s) in accordance with the FAST Act, FERC’s CEII regulations, as applicable, and

"Pub. L. No. 114-94, § 61,003, 129 Stat. 1312, 1773-1779 (2015) ((codified at 16 U.S.C. 8240-
1) (FAST Act).


this MOU, as described below. FERC staff will be available to consult with NRC staff about any
CEI.

C. Consultation with FERC’s CEII Coordinator

If material that NRC staff considers CEII that is protected under Exemption 3 is requested
under the Freedom of Information Act (FOIA)? or another public disclosure law, NRC staff may
consult with FERC’s CEII Coordinator to receive a supporting determination of the designation of
the material as CEI pursuant to Section 215A of Part II of the Federal Power Act, 116 U.S.C.
8240-1. To assist the CEII Coordinator in this process, NRC agrees to:

1. Include a concise summary indicating why the NRC believes the information meets the
definition of CEI;

2. Provide an explanation of how long the material should be CEII (up to five years) and
whether renewal of CEII treatment will likely be needed;

3. Identify on the document(s) which portions or pages contain CEII or could reasonably
be expected to lead to the disclosure of CEII and, as appropriate, to segregate those
portions of document(s) that are not CEII; and

4. Ifthe document was submitted to the NRC from an outside entity and the NRC sought
comments about the potential disclosure, include any comments from the submitter.

The CEII Coordinator will endeavor to provide NRC staff a determination within ten (10)
business days. If the material is highly technical, voluminous, or otherwise requires additional
deliberation, the CEII Coordinator or his designee will alert NRC as soon as practicable. Any
NRC document provided to FERC for a CEII consultation will at all times remain the property of
the NRC. In providing a determination, the CEII Coordinator will share the information only with
those FERC staff members necessary to assist with an assessment of the potential CEII. The
decision to invoke FOIA Exemption 3 remains with NRC at all times. Moreover, if a member of
the public or another Federal Agency requests that FERC share or disclose any NRC document,
FERC will refer that request to the NRC for their processing and determination.

D. Protection and Handling of CEI]

NRC accepts all responsibility for the care, handling, and protection of any NRC document
that is determined to be CEII by the CEII Coordinator. As to any NRC material the CEII
Coordinator agrees is CEI], NRC will handle that information consistent with its procedures for
handling other similar sensitive security material. At a minimum, the NRC will handle its CEII in
a similar manner to FERC, which will include the following:

e All documents that have been deemed to contain CEII must be labeled;

25 U.S.C § 552 (2012).


e All labels must be prominently displayed on each page of the document (preferably
on the top center of the document);

e When transporting or disseminating CEII, reasonable care must be exercised with
the material to ensure that it is not easily accessible or visible to individuals not
authorized to view it; and

¢ Secure methods of dissemination of CEII must be utilized, such as encryption for
electronic transmission and certified mail for hardcopy dissemination.

NRC will accept responsibility for any disclosure of CEI] by NRC employees. To that
end, NRC will address knowing and willful disclosure of CEI by its employees and will impose
appropriate disciplinary penalties in accordance with law.

3. General Provisions

A. Amendments. Either party may request changes to this MOU. Any changes,
modifications, revisions or amendments to this MOU that are mutually agreed upon by and
between the parties to this MOU shall be incorporated by written instrument, and effective when
executed and signed by all parties to this MOU.

B. Applicable Law. The construction, interpretation and enforcement of this MOU
shall be governed by Federal law.

¢€, Entirety of Agreement. This MOU represents the entire and integrated agreement
between the parties and supersedes all prior negotiations, representations and agreements, whether
written or oral.

D. Severability. Should any portion of this MOU be judicially determined to be
illegal or unenforceable, the remainder of the MOU shall continue in full force and effect, and
either party may renegotiate the terms affected by the severance.

E. Sovereign Immunity. FERC and NRC do not waive their sovereign immunity by
entering into this MOU, and each fully retains all immunities and defenses provided by law with
respect to any action based on or occurring as a result of this MOU.

F. Third Party Beneficiary Rights. The parties do not intend to create in any other
individual or entity the status of a third party beneficiary, and this MOU shall not be construed so
as to create such status. The rights, duties and obligations contained in this MOU shall operate
only between the parties to this MOU, and shall inure solely to the benefit of the parties to this
MOU. The provisions of this MOU are intended only to assist the parties in determining and
performing their obligations under this MOU.