Rule2024-29366
Confidentiality of Information
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
December 17, 2024
Effective
January 16, 2025
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
NMFS is issuing this final rule to revise existing regulations pertaining to confidentiality of information requirements under the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson- Stevens Act or MSA). This rule updates the regulations consistent with the 2006 Magnuson-Stevens Fishery Conservation and Management Reauthorization Act (MSRA) and 1996 Sustainable Fisheries Act (SFA) and amendments to the High Seas Driftnet Fishing Moratorium Protection Act (FMPA) under the 2015 Illegal, Unreported and Unregulated Fishing Enforcement Act (IUU Fishing Act). The final rule provides other revisions to address issues that concern NMFS' internal control procedures (ICPs) for management of MSA confidentiality of information.
Full Text
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<title>Federal Register, Volume 89 Issue 242 (Tuesday, December 17, 2024)</title>
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[Federal Register Volume 89, Number 242 (Tuesday, December 17, 2024)]
[Rules and Regulations]
[Pages 102000-102015]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-29366]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
50 CFR Part 600
[Docket No. 241209-0318]
RIN 0648-BM26
Confidentiality of Information
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Final rule.
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SUMMARY: NMFS is issuing this final rule to revise existing regulations
pertaining to confidentiality of information requirements under the
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act or MSA). This rule updates the regulations consistent with
the 2006 Magnuson-Stevens Fishery Conservation and Management
Reauthorization Act (MSRA) and 1996 Sustainable Fisheries Act (SFA) and
amendments to the High Seas Driftnet Fishing Moratorium Protection Act
(FMPA) under the 2015 Illegal, Unreported and Unregulated Fishing
Enforcement Act (IUU Fishing Act). The final rule provides other
revisions to address issues that concern NMFS' internal control
procedures (ICPs) for management of MSA confidentiality of information.
DATES: Effective January 16, 2025.
ADDRESSES: A plain language summary of this rule is available at:
<a href="https://www.regulations.gov/docket/NOAA-HQ-2023-0146">https://www.regulations.gov/docket/NOAA-HQ-2023-0146</a>.
Electronic Access: Information relevant to this proposed rule,
which includes a final regulatory impact review and a Regulatory
Flexibility Act certification, is accessible via the internet at:
<a href="https://www.regulations.gov/docket/NOAA-HQ-2023-0146/">https://www.regulations.gov/docket/NOAA-HQ-2023-0146/</a>.
FOR FURTHER INFORMATION CONTACT: Karl Moline, 301-427-8225, or at NMFS,
Operations, Management, & Information Division F/ST3, Ste. 12300, 1315
East West Highway, Silver Spring, MD 20910.
SUPPLEMENTARY INFORMATION: Section 402(b) of the MSA provides that
``any information submitted to the Secretary, a State fishery
management agency, or a marine fisheries commission by any person in
compliance with the requirements of this Act,'' 16 U.S.C. 1881a(b)(1),
and ``[a]ny observer information,'' id. 1881a(b)(2), ``shall be
confidential and shall not be disclosed'' except pursuant to certain
exceptions. Section 402(b)(3) requires that the Secretary ``shall, by
regulation, prescribe such procedures as may be necessary to preserve
the confidentiality of information submitted in compliance with any
requirement or regulation under [the MSA],'' but the Secretary may
release confidential information ``in any aggregate or summary form
which does not directly or indirectly disclose the identity or business
of any person who submits such information.'' Id. 1881a(b)(3). NMFS
regulations implementing MSA section 402(b) are at 50 CFR part 600,
subpart E, and there are confidentiality related definitions and
references at 50 CFR 600.10 and 600.130. NMFS published a proposed rule
in the Federal Register on March 11, 2024 (89 FR 17358). Comments were
invited and accepted through April 25, 2024. NMFS received 36
individual comments, including 1 letter that contained 5,040
signatures. NMFS responses are addressed in the Response to Comments
section below. After considering public comments submitted for the
proposed rule, NMFS is implementing the final rule with some changes.
Background
The agency last revised the confidentiality regulations in February
1998 (63 FR 7075, February 12, 1998). A number of statutory changes
have been enacted since 1998, and this rule provides important updates
and clarifications to the confidentiality regulations to reflect those
statutory changes. The 2006 MSRA (Pub. L. 109-479) made three major
changes to the confidentiality provisions at MSA section 402(b). First,
the MSRA added a provision specifying that observer information
(defined at 16 U.S.C. 1802(32)) shall be confidential and shall not be
disclosed except pursuant to specified exceptions. 16 U.S.C.
1881a(b)(2). One such exception at MSA section 402(b)(1)(F) authorizes
release of confidential information based on written authorization from
the person submitting such information. Id. 1881a(b)(1)(F). The
proposed rule distinguished between observer information that is
collected onboard a vessel for scientific and management purposes and
information collected for administration of the observer program and
allowed a vessel permit holder to execute a written authorization only
for the first category of information. See 89 FR 17358, 17364 (March
11, 2024) (explaining basis for proposed rule approach, which retains
current agency practice).
Second, the MSRA added a new exception that authorizes the
Secretary to disclose confidential information when such information is
required to be submitted to the Secretary for any determination under a
limited access program (LAP). 16 U.S.C. 1881a(b)(1)(G). The proposed
rule included a definition of ``determination'' and defines ``limited
access program'' consistent with how ``catch share'' is defined under
NOAA's Catch Share Policy (available at <a href="http://www.nmfs.noaa.gov/sfa/management/catch_shares/about/documents/noaa_cs_policy.pdf">http://www.nmfs.noaa.gov/sfa/management/catch_shares/about/documents/noaa_cs_policy.pdf</a>). The
proposed rule explained that the exception could
[[Page 102001]]
apply, regardless of whether NMFS has made a LAP determination as long
as there are sufficient facts showing that the information was
submitted to NMFS for it to make a determination under a LAP. For
example, prior landings information would be releasable if a fishery
management council (Council) has submitted a fishery management plan
(FMP) or amendment for a LAP for secretarial approval and NMFS issues a
Federal Register notice stating that it will use prior landings data
for initial allocation determinations under the proposed LAP. The
proposed rule also notes that information submitted under a non-LAP
fishery may later be relevant for determinations regarding privileges,
if the fishery transitions to a LAP. NMFS proposed that information
previously submitted under a non-LAP that the agency uses or intends to
use for determinations under a newly established LAP may fall within
the scope of the LAP exception. See 89 FR 17363-17364 (March 11, 2024,
explaining proposed rule approach to LAP exception).
Third, the MSRA expanded the confidentiality provision to include
information submitted to a State fishery management agency or a marine
fisheries commission in compliance with a requirement or regulation
under the Act. Prior to the MSRA, the 1996 SFA (Pub. L. 104-297) had
expanded the confidentiality provision to apply to information
submitted in compliance with ``any requirement or regulation'' under
the Act and also revised MSA section 402(b) to refer to ``information''
instead of ``statistics.''
In addition, as discussed in the preamble to the proposed rule, the
Illegal, Unreported and Unregulated Fishing Enforcement Act of 2015
(IUU Fishing Act), Public Law 114-81 101(b) (Nov. 5, 2015), amended the
FMPA to include provisions at 16 U.S.C. 1826i and 1826g related to MSA
confidential information. 89 FR at 17359. NMFS implements and
administers the FMPA through authority delegated from the Secretary.
Under section 1826i(b)(1), the Secretary is authorized to disclose
information, as necessary and appropriate, including information
collected under joint authority of the MSA and another statute that
implements an international fishery agreement, such as the Atlantic
Tunas Convention Act (ATCA) of 1975, Id. 971 et seq., to a Federal or
State government agency, the Food and Agriculture Organization of the
United Nations, or the secretariat or equivalent of an international
fishery management organization or arrangement made pursuant to an
international fishery agreement, if certain conditions are satisfied.
Such information may be vessel-specific. One condition for release of
the otherwise confidential information is ``such government,
organization, or arrangement . . . has policies and procedures to
protect such information from unintended or unauthorized disclosure.''
Id. 1826i(b)(1). Section 1826g(d)(2) authorizes disclosure to the same
entities and foreign governments, subject to the same condition
regarding policies and procedure to protect against unauthorized
disclosure. In addition, section 1826g(d)(2) also requires that
disclosures be necessary for one of the compliance or enforcement
purposes enumerated under subparagraph (A)(ii). Id. 1826g(d)(2)(A)(i)-
(ii). For purposes of the FMPA disclosure provisions, the term
``international fishery agreement'' has the same meaning as
``international fishery management agreement'' as set forth in 50 CFR
300.201.
Both 1826i(b)(2) and 1826g(d)(2)(B) provide that, with respect to
the FMPA, the confidentiality requirements of the MSA are not
applicable for obligations of the United States to share information
under a Regional Fishery Management Organization (RFMO) to which the
United States is a member, or to information collected by NMFS
regarding foreign fishing vessels.
In response to comments on the proposed rule, NMFS has revised the
final rule to more simply and closely track the FMPA provisions. See
response to Comment 20 below. In addition, some RFMO implementing
statutes have confidentiality provisions, e.g., Western and Central
Pacific Fisheries Convention (WCPFC) Implementation Act, 16 U.S.C.
6905(d). NMFS initiated this rulemaking based on the statutory changes
described in the Background section of the proposed rule and this final
rule and a general need to reorganize and clarify the scope of
applicability of the confidentiality regulations.
NMFS proposed to revise Sec. 600.405 to clarify that regulations
under subpart E apply to confidential information that is under NMFS'
custody and control. NMFS further explained that it treats information
as subject to its custody and control when it physically obtains the
information (see 16 U.S.C. 1881a(b) (providing for confidentiality of
information ``submitted'' to the Secretary in compliance with MSA
requirements)). In the case of electronically submitted information,
NMFS has custody and control when the information enters a NMFS Federal
Information Security Modernization Act (FISMA) domain (which is a
collection of devices, applications, software and information
technology assets that serve a coordinated purpose or mission, and have
a common enforced boundary with enforced or inherited security and
privacy controls). Thus, while the MSA confidentiality requirements
apply to information submitted to a State fishery management agency or
a marine fisheries commission, these regulations would not apply to
such information as it is outside of NMFS' physical possession.
Protection of that information would be addressed through an agreement
with a State or a marine fisheries commission as provided for under
Sec. 600.410(c).
The 1998 regulations discuss the generic application of
``safeguards as specified by NOAA Directives, or other NOAA or NMFS
internal procedures'' to confidential data. 50 CFR 600.410(a)(3).
Currently those procedures are set forth in a NOAA Administrative Order
(NAO 216-100). As discussed in the preamble of the proposed rule, NOAA
intends to replace NAO 216-100 with updated internal control
procedures. Accordingly, NMFS revised existing Sec. 600.410 to clarify
the need to establish these internal control procedures and to outline
certain topics that should be included in the updated procedures (See
Sec. 600.410(b)).
This final rule includes the following elements:
(1) A clarification that the regulations under 50 CFR part 600,
subpart E, apply to information under NMFS' custody and control (Sec.
600.405).
(2) Deletion of references to ``statistics'' in 50 CFR part 600,
subpart E, and the definitions and Council sections (Sec. Sec. 600.10
and 600.130), and other technical, non-substantive changes for the sake
of clarity.
(3) Revised definition of ``Aggregate or summary form'' based on
MSA section 402(b)(3), including adding a reference to ``business of
any person'' (Sec. 600.10).
(4) New definitions of ``Business of any person'', ``Confidential
information'', ``Electronic Monitoring Service Provider'',
``Information sharing obligation of a Regional Fishery Management
Organization (RFMO)'', ``Observer provider'', and ``Regional Fishery
Management Organization'' (Sec. 600.10).
(5) Deletion of existing text at Sec. 600.410(a)(2) regarding NMFS
removing, after receipt, ``identifying particulars'' from statistics.
(6) Procedures regarding State or marine fisheries commission
information collection agreements (Sec. 600.410(c)) and observer
providers
[[Page 102002]]
and electronic monitoring service providers (Sec. 600.410(d)).
(7) Addition of text from 16 U.S.C. 1881a(b)(1)(I) on disclosure of
information to ``Federal agencies, to the extent necessary and
appropriate, to administer Federal programs established to combat
illegal, unreported, or unregulated fishing or forced labor (as such
terms are defined in section 11329 of the Don Young Coast Guard
Authorization Act of 2022 [16 U.S.C. 1885a note]), which shall not
include an authorization for such agencies to release data to the
public unless such release is related to enforcement.'' (Sec.
600.415(a)(3)).
(8) New procedures regarding access to confidential information by
Federal employees when in support of homeland and national security
activities (Sec. 600.415(a)(2)), State and marine fisheries commission
employees (Sec. 600.415(b)), and State enforcement employees
responsible for FMP enforcement (Sec. 600.415(c)).
(9) Revised procedures regarding access to confidential information
by Council members (Sec. 600.415(d)(2)).
(10) New procedures regarding access to confidential information by
a Council's scientific and statistical committee, advisory panels and
contractors (Sec. 600.415(d)(3)-(5)).
(11) A provision on making vessel monitoring system information
directly available to State enforcement employees and state management
agencies, as provided under section 311(i) of the Magnuson-Stevens Act
(Sec. 600.415(e)).
(12) A provision on disclosure of information to specified
governmental and intergovernmental entities pursuant to the FMPA, 16
U.S.C. 1826i and 1826g (Sec. 600.415(f)).
(13) Provisions on disclosure of observer information for
proceedings to adjudicate observer certifications and as authorized by
regulations implementing recommendations in an FMP prepared by the
North Pacific Fishery Management Council (Sec. 600.420(a)-(b)).
(14) LAP exception to confidentiality requirements and related new
definitions for LAP and ``determination'' (Sec. 600.420(c)).
(15) Clarification of the court order exception (Sec. 600.420(d)).
(16) Provision regarding disclosure of information for enforcement
of the MSA or when necessary for enforcement of any state living marine
resource law, if that state has a Joint Enforcement Agreement that is
in effect (Sec. 600.420(e)).
(17) Procedures for written authorization for release of
confidential information, including observer information (Sec.
600.420(f));
(18) Provision that NMFS may disclose in any aggregate or summary
form information that is required to be maintained as confidential
under the regulation (Sec. 600.425)
(19) Prohibition on disclosing confidential information without
authorization (Sec. 600.725(y)).
Response to Comments
NMFS published its proposed rule on March 11, 2024, (89 FR 17358)
and accepted public comments for 45 days, closing on April 25, 2024.
NMFS received a total of 36 comments. Below, NMFS summarizes and
responds to all comments received. Comments are grouped by subject
matter (e.g., `45-day Comment Period') with similar comments summarized
under a comment number (e.g., `Comment 1' summarizes all comments
received regarding the 45-day comment period).
45-Day Comment Period
Comment 1: Many commenters said that the 45-day comment period was
too short and that NMFS should reissue the proposed rule with
additional time for comment. Some commenters stated that, concurrent
with additional time for comment, NMFS should engage the public on the
rulemaking and specific issues such as electronic monitoring policies,
data ownership and management, and public access. One commenter said
that NMFS should at minimum conduct another rulemaking for the data
aggregation and summarization procedures referenced under Sec.
600.410(b). Two commenters recommended reinitiating this rulemaking and
that NMFS should engage the public through an Advanced Notice of
Proposed Rulemaking (ANPR).
Response: The 45-day comment period provided sufficient time for
submission of a wide range of material issues and concerns. During that
period no new information was presented that would warrant additional
time for review and comment or for reissuance of the rule for another
notice and comment period. After finalization of this rulemaking, NMFS
will develop an approach to engage with the public on improvements to
the procedures for aggregation and summarization of confidential
information referenced under Sec. 600.410(b) for the maintenance of
and access to confidential information. NMFS typically engages the
public through ANPRs in order to scope issues, identify possible
alternatives, and generally gather information that it may need to
develop a proposed rule. An ANPR was not necessary here given NMFS'
experience in administering confidentiality requirements since
enactment of the 1976 Fishery Conservation and Management Act
(precursor to the MSA) and the 2012 MSA confidentiality proposed rule
and public comments received during an almost 5-month comment period.
See 82 FR 4278 (January 13, 2017) (describing and withdrawing 2012
proposed rule). If experience implementing these regulations identifies
the need for additional procedures to preserve the confidentiality of
information, the agency will consider an ANPR along with other options
to engage the public in development of those procedures.
Open Government and Transparency
Comment 2: Some commenters opposed the proposed rule stating that
it limited public access to information without a statutory mandate and
is inconsistent with the Administration's Open Government Policy.
Response: NMFS disagrees. First, the MSA mandates the
confidentiality of any information that is submitted to the Secretary,
a State fishery management agency, or a marine fisheries commission and
any observer information in compliance with a requirement or regulation
under the MSA. 16 U.S.C. 1881a(b)(1) and (b)(2). The limitations on
public access to information under this rule are consistent with that
mandate and MSA section 402(b)(3) which directs the Secretary to
promulgate, by regulation, such procedures as may be necessary to
preserve the confidentiality of information. Second, this rule advances
open government and transparency by providing a framework that allows
for access to, or public disclosure of, confidential information when
authorized by law.
Unauthorized Use/Disclosure Prohibition
Comment 3: Some commenters opposed the prohibition on unauthorized
use or disclosure of confidential information in Sec. 600.725 stating
that it would discourage legitimate disclosures of confidential
information. These commenters recommended that NMFS instead emphasize
training on the handling of confidential information. A commenter asked
that NMFS clarify whether NMFS would be responsible for enforcing the
proposed prohibition.
Response: This prohibition reflects the confidentiality
requirements of MSA 402(b) and section 307(1)(A) which provides that it
is unlawful for any person to violate any provision of the
[[Page 102003]]
Act. Since 1996, NMFS' regulations for preservation of MSA confidential
information under subpart E have included this prohibition and during
that time NMFS employees and other individuals authorized to access
confidential information have been required to sign a statement that
they acknowledge the prohibition on unauthorized disclosure of
confidential information and the potential for civil or criminal
prosecution for any violation of that prohibition. The proposed
prohibition, therefore, represents applicable law and existing policy.
Based on its long history of successfully operating under this
prohibition, NMFS has no basis to believe that the prohibition would
discourage or create concerns within NMFS on legitimate access to and
disclosure of confidential information. Enforcement will be the
responsibility of NMFS' Office of Law Enforcement with support from
other governmental entities.
Development of Internal Control Procedures
Comment 4: Many commenters requested that NMFS clarify how it will
develop ICPs referenced under Sec. 600.410(b) and how the ICPs would
apply to the collection and maintenance of, access to, and release of
any confidential information. Some commenters stated that they could
not assess the rule without further information on the ICPs and how
they would be developed. One commenter asserted that the rule's
approach to development of the ICPs is not consistent with principles
of transparency and inclusion provided in NMFS' Equity and
Environmental Justice Strategy and NOAA's Data Strategic Action Plan.
Commenters generally requested that NMFS provide a transparent and
inclusive process with meaningful opportunities for public engagement
in the development of ICPs.
Response: The ICPs are internal agency procedures intended to guide
the handling of confidential information under the MSA. Because the
current ICPs inform NMFS' internal administrative processes, they are
included in a 1994 NOAA Administrative Order (NAO 216-100) and are not
set forth in the Code of Federal Regulations. However, as noted in the
preambleto the proposed rule, NOAA intends to replace NAO 216-100 with
updated ICPs. NMFS is committed to an open, equitable, and transparent
public engagement process in the development of the ICPs through
appropriate means and methods and consistent with legal requirements.
The extent and manner of public engagement will vary depending on the
subject matter.
Recognizing that ICPs have been a part of the confidentiality
regulations since 1998 in some fashion, this rule reiterates the need
to establish ICPs. While the requirement to establish and maintain ICPs
is part of this rulemaking, the rulemaking does not dictate the
specific substance of those ICPs. As guidance rather than regulatory
mandate, ICPs will be developed subsequent to the issuance of the final
rule and reflect its requirements related to the preservation of
confidential information. Developing internal administrative procedures
that could change as a result of this rulemaking would not be
efficient. When NMFS develops substantive ICPs, it plans to engage the
public through webinars, workshops, and/or other forms and methods for
obtaining public comment.
Comment 5: Some commenters stated that the ICPs are substantive
rules of general applicability that must be promulgated through
rulemaking in order to comply with the Administrative Procedure Act
(APA). Other commenters also said that NMFS must promulgate ICPs by
regulation in order to comply with MSA 402(b)(3), 16 U.S.C.
1881a(b)(3). One commenter viewed notice-and-comment rulemaking as
appropriate for development of procedures for release of confidential
information in aggregate or summary form while other procedures that
only apply to NMFS's internal handling of confidential information
could be developed through a non-rulemaking process.
Response: ICPs have been part of the confidentiality regulations
since 1998. As stated above, they currently exist in NAO 216-100, have
not been codified in the Code of Federal Regulations, and were not
promulgated through notice and comment rulemaking in the Federal
Register. These ICPs constitute a practice or procedure relating to
agency management and are therefore not subject to notice and comment
procedures under the APA, 5 U.S.C 553(a)(2). Nevertheless, NMFS intends
to evaluate each ICP individually and determine the appropriate process
for public engagement and development. NMFS anticipates that most, if
not all, will constitute a practice or procedure relating to agency
management and as such not subject to APA notice and comment
procedures. However, NMFS will conduct further rulemaking, if
necessary, and/or may choose to make draft ICPs available for public
comment.
Under MSA 402(b)(3), the Secretary, through NMFS, is directed to
``prescribe such procedures [by regulation] as may be necessary to
preserve the confidentiality of information . . .'' NMFS therefore has
discretion to determine which procedures are necessary for the
protection of confidential information and which, therefore, must be
done through rulemaking. This final rule prescribes all such
procedures.
In contrast, the ICPs contained in NAO 216-100 consist of
procedures for agency management that can be addressed through non-
regulatory methods. ICPs provide additional guidance on the application
of the regulatory requirements in specific cases, but they are not
themselves regulatory. As such, the subject matter to be addressed
through ICPs, such as standardized agreements for sharing information,
do not constitute procedures that are necessary for preserving
confidentiality. However, if NMFS determines that a specific ICP should
have regulatory effect, NMFS will promulgate that ICP through
appropriate rulemaking. Until ICPs are developed and finalized, it will
continue to apply the provisions of NAO 216-100 except those that are
in conflict with applicable law. For example, NMFS will not apply
Section 6.04.a.1(d) of NAO 216-100, which provides that observer data
collected under the MSA are not confidential. This provision is in
direct conflict with MSA 402(b)(2), 16 U.S.C 1881a(b)(2).
Comment 6: A commenter expressed concern that NMFS would release
confidential information under the Freedom of Information Act (FOIA)
even if prohibited under ICPs because procedures not completed through
regulations lack the force of law.
Response: NMFS agrees that non-regulatory ICPs lack the force of
law. Any such ICPs will not address or apply to whether confidential
information may be released under FOIA. Rather, as stated in the
preamble of the proposed rule, NMFS applies MSA section 402(b)(3) as
the basis for FOIA Exemption Three, mandatory withholding authority.
Comment 7: A commenter stated that it is unclear how national
policies developed through the ICPs will interact with regional
practices and implementation plans.
Response: As required under Sec. 600.410(b), NMFS intends to
update the current ICPs set forth in NAO 216-100. As with the current
ICPs, these updated ICPs will be intended to provide national-level
guidance on the application of these regulations for the maintenance of
and access to any confidential information. Regions may develop
additional ICPs that address
[[Page 102004]]
specific issues with their region's data collection programs and/or
fisheries for management of confidential information. Any such regional
ICPs must be consistent with statutory and regulatory requirements and
should also be consistent with the national ICPs.
Protection of Confidential Information Collected and/or Processed by
Observer Information Services
Observer Providers
Comment 8: One commenter requested that NMFS revise the definition
of ``observer provider'' because observer providers do not collect
observer data. The commenter further requested that NMFS explain the
use of the term ``observer information'' rather than ``observer data''
and whether using the term ``observer information'' will affect public
access to information that is collected by observers.
Response: The definition of observer provider is clear that an
observer provider does not itself collect observer information but
rather collects that information through the placement of observers on
certain platforms or in certain facilities. This rule defines
``observer provider'' as ``any person that collects observer
information by placement of observers on or in fishing vessels,
shoreside processors, or stationary floating processors under the MSA
or as part of a cooperative research initiative.'' The MSA defines
``person'' to include ``any corporation, partnership, association, or
other entity.'' 16 U.S.C. 1802(36). The MSA defines ``observer
information,'' id. 1802(32), and specifically references that term in
the MSA's confidentiality requirements at section 402(b), id.
1881a(b)(2). Accordingly, it is appropriate to use the term ``observer
information'' for this rule rather than ``observer data,'' which is
neither defined in the MSA nor referenced in the MSA's confidentiality
requirements.
Electronic Monitoring (EM) Service Providers
Comment 9: One commenter recommended that NMFS expand the
definition of ``EM Service Provider'' to include EM providers that
contract directly with fishery participants or their representatives.
Otherwise, portions of EM data that are collected and maintained by EM
service providers may not be protected by NMFS even though that
information is subject to the MSA confidentiality requirements. The
commenter requested that NMFS maintain the confidentiality of EM
information in the same way that it protects information collected by
human observers. The commenter stated that protection of information
will incentivize further participation in and development of EM. An
additional commenter stated that NMFS should describe how the revised
MSA confidentiality regulations will affect its policy directives on
EM. The commenter stated that NMFS should initiate a distinct
rulemaking for maintaining the confidentiality of EM information and
engage the public on access to that information.
Response: Under this final rule, an EM service provider is defined
to include such providers that contract directly with a vessel to
manage information that is collected by an EM system required under MSA
regulations or a permit. However, agency access, maintenance, and
release responsibilities under this final rule apply only to
information that is under NMFS' custody and control. As explained in
the Background section of this final rule and the proposed rule (89 FR
at 17361-62), NMFS treats information as subject to its custody and
control when it physically obtains the information (see 16 U.S.C.
1881a(b) (providing for confidentiality of information ``submitted'' to
the Secretary in compliance with MSA requirements)). Information that
is maintained by an EM service provider under contract with a fishing
vessel is not under NMFS' custody and control. Therefore, the access,
maintenance, and release responsibilities of this final rule do not
apply to that information.
As explained in the preamble to the proposed rule, because EM
information is a form of observer information under the MSA, it is
considered confidential under the MSA. NMFS expects an EM service
provider to have a means to protect a vessel owner's EM information
that is subject to the MSA's broader statutory prohibition on the
release of observer information. See Information Law Application for
Data and Supporting Guidance in Electronic Monitoring Programs For
Federally Managed U.S. Fisheries 04-115-04, available at <a href="https://media.fisheries.noaa.gov/dam-migration/04-115.pdf">https://media.fisheries.noaa.gov/dam-migration/04-115.pdf</a>. Regulatory programs
that establish EM programs should require that third parties have a
means to protect EM data, whether through FMP implementing regulations,
a service provider approval process, or other applicable procedure. Id.
NMFS has a different approach for information collected by human
observers because MSA 402(b)(2)(C) provides for limited dissemination
of confidential information between observers, observer providers, and
NMFS pursuant to a confidentiality agreement that prohibits other types
of dissemination. See 89 FR at 17361 (proposed rule discussion). To
comply with MSA section 402(b)(2)(C), NMFS must effectuate the MSA
confidentiality requirements for human observer information including
information collected by observers employed by an observer provider
that is under contract with a fishing vessel, but a similar provision
does not exist for electronic monitoring information not under NMFS'
control. Thus, the final rule takes a different approach for observer
providers than for EM service providers that are under contract with a
fishing vessel.
For these reasons, NMFS is finalizing its proposed definition of an
Electronic Monitoring Service Provider with no changes. NMFS' existing
policy directives on EM information and these regulations are
sufficient to guide the management of confidential information
collected through EM systems, and a specific rulemaking on such issues
is unwarranted.
NMFS has made one edit to the definition of ``observer
information'' to insert statutory text that was inadvertently left out.
The MSA defines ``observer information'' to include EM information
collected pursuant to an authorization by the Secretary or ``as part of
a cooperative research initiative.'' 16 U.S.C. 1802(36). The final rule
adds the cooperative research text. Lastly, because this final rule
does not apply to confidential information maintained by EM service
providers, it does not affect NMFS' policy directive 04-115-03 which
provides guidance on how long privately contracted EM service providers
should retain EM information.
Comment 10: A commenter expressed concern that the proposed
definition of ``confidential information'' did not cover certain
categories of EM data or portions of the ``chain of custody,'' i.e.,
the handling of EM data before review and data extraction.
Response: This final rule defines ``confidential information''
consistent with the MSA, which requires the confidentiality of any
observer information with some exceptions. 16 U.S.C. 1881a(b)(2). Under
the MSA, observer information is defined to include any information
collected by an EM system. Accordingly, under this final rule, all
categories of EM data that are collected by an EM system constitute
confidential information. Information regarding ``chain of custody,''
or the handling of EM data before review and data extraction, does not
fall under the MSA definition of
[[Page 102005]]
observer information. Therefore, such information would not be
considered confidential information for MSA purposes unless it is
required to be submitted to NMFS in compliance with a regulation under
the Act.
Comment 11: One commenter requested an assessment of the impacts of
the proposed rule on the implementation of a new reporting requirement
for electronic logbooks (ELBs) for commercial fisheries in the Gulf of
Mexico. The commenter stated that this assessment is important to
ensure that implementation of the ELBs for commercial fisheries is not
delayed.
Response 11: Confidentiality of information requirements under the
MSA and this final rule may apply to information that a person submits
through ELBs or other electronic devices but not the devices
themselves. Agency access, maintenance, and release responsibilities
under this rule apply only to information that is under NMFS' custody
and control, i.e., when it enters a NMFS FISMA domain. See Background
section above for FISMA explanation. As such, this final rule does not
have an impact on the implementation of new reporting requirements for
ELBs in the Gulf of Mexico, and therefore, no assessment of the impacts
of this rule on reporting requirements for ELBs was conducted.
Comment 12: A commenter stated that NMFS should improve the
efficacy of its confidentiality agreement protocols by requiring EM
providers to disclose their artificial intelligence and machine
learning technologies.
Response: The commenter did not indicate why or how disclosure of
an EM provider's artificial intelligence and machine learning
technologies to NMFS would improve the efficacy of the confidentiality
agreement protocols. These final regulations require that a
confidentiality agreement between NMFS and EM service providers that
are providing services to NMFS under a contract, or performing
functions that require the handling of confidential information under a
NMFS financial assistance award, specify the procedures that the
provider will apply to protect confidential information from public
disclosure; and also require that the EM service provider, and each of
its employees who will handle confidential information, acknowledge the
requirement to maintain the confidentiality of observer information and
the civil penalties for unauthorized use or disclosure of this
information under 16 U.S.C. 1858. NMFS believes that these procedures
are sufficient to address any potential information security issues
that may arise with respect to any technologies employed by an EM
service provider for the processing of EM data.
Comment 13: A commenter requested that NMFS revise the proposed
rule to clarify if all information collected by the EM systems that are
required under the MSA or other authorities will be treated as
confidential information.
Response: As stated above, any information collected by an EM
system that is required under the MSA is subject to the Act's
confidentiality requirements. Agency access, maintenance, and release
responsibilities under this rule apply only to information that is
under NMFS' custody and control, which occurs when NMFS physically
obtains the information, or it enters an NMFS FISMA domain. See
Background section above for FISMA explanation. The response to Comment
9 explains NMFS' approach to EM information maintained by an EM service
provider under contract with a fishing vessel. Responses to Comments 14
and 24 describe agreements with states or Marine Fisheries Commissions
for the collection of confidential information. Neither MSA
confidentiality requirements nor this rule apply to information that is
collected by an EM system that may be required under other authorities.
Whether NMFS must protect from disclosure information collected by an
EM system required under an authority other than the MSA depends on the
authority at issue.
Comment 14: Commenters requested that NMFS clarify what constitutes
``authority comparable to the MSA'' for purposes of an agreement with a
state that allows for collection of confidential information.
Commenters also asked how NMFS will determine that a State will
``exercise such authority'' and what happens if it does not.
Response: Pursuant to Sec. 600.410(c)(1), NMFS will assess whether
a State has legal authority to protect confidential information from
disclosure in the same manner that NMFS can protect such information
from public disclosure under the MSA. NMFS will rely on the respective
State's assurances to determine whether a State will exercise such
authority. Should a State not exercise its authority to protect
confidential information, NMFS may rescind the collection agreement.
NMFS intends to develop ICPs to guide the development of
confidentiality agreements with States and commissions that are
authorized to collect confidential information.
Scope of Subpart E Regulations
Comment 15: A commenter said that proposed Sec. 600.405 would
narrow the scope of information that would be subject to the
regulations compared to current regulations. Some commenters requested
that NMFS clarify whether confidentiality protections would apply to
information collected by NMFS under a fishery management plan (FMP)
that was not implemented under the MSA.
Response: Proposed Sec. 600.405 was not intended to narrow the
scope of information subject to MSA confidentiality requirements (16
U.S.C. 1881a(b)); the section refers to a definition of confidential
information (Sec. 600.10) that is consistent with 16 U.S.C. 1881a(b).
After reviewing public comment, NMFS is clarifying Sec. 600.405. Final
Sec. 600.405 continues to state that the regulations apply to
confidential information as defined in Sec. 600.10 with an additional
explanation that agency access, maintenance, and release
responsibilities apply only to confidential information under NMFS'
custody and control. As explained in the Background section of this
final rule and the proposed rule (89 FR at 17361-62), NMFS treats
information as subject to its custody and control when it physically
obtains the information (see 16 U.S.C. 1881a(b) (providing for
confidentiality of information ``submitted'' to the Secretary in
compliance with MSA requirements)).
With regard to the relevant FMP, the proposed rule stated that the
MSA confidentiality requirements apply to information that a person
submits in compliance with an FMP that is implemented under the MSA and
any observer information collected under the Act. In some cases, FMP
information collection and/or monitoring requirements are implemented
under joint authority of the MSA and another authority. In those cases,
the MSA confidentiality requirements apply just as they would to
information that is submitted by a person or collected by an observer
under an FMP implemented solely under the MSA. For information
collection requirements implemented under FMPs under authorities other
than the MSA, the Act's confidentiality requirements do not apply.
Voluntarily Submitted Data
Comment 16: A commenter asked NMFS for examples of information
collected under an MSA program that isn't submitted to the Secretary,
State agency, or marine fisheries commission and thus would not be
subject to this rule. Additionally, a commenter sought clarification on
the application of this
[[Page 102006]]
rule to data from cooperative research programs that is provided
voluntarily. The commenters also requested clarification on privacy
protections for data from recreational and voluntary collection
programs not covered by MSA confidentiality and asserted that these
voluntary data collection programs may suffer if data is considered
non-confidential or not protected. They requested that the agency
identify any data and privacy protections for information collected
through State and NOAA surveys. They emphasized the need to
differentiate between high-resolution data for research and data for
management decisions and recommended that voluntary data streams, such
as those from participants in an opt-in on-demand gear program, receive
confidential protection.
Response: Where there is no MSA requirement for the information
collected and a person voluntarily submits it, the MSA confidentiality
prohibition against release does not apply. In addition, neither these
regulations, nor any current or future ICPs developed pursuant to these
regulations, would apply to information that is voluntarily provided to
NMFS. For example, confidentiality restrictions would not apply to
recreational fishing information collected through a state survey
program and provided to NMFS. Any information voluntarily provided
directly to NMFS through a NMFS-conducted survey, including voluntary
surveys to collect cost and earnings data, would also not be MSA
confidential information. While voluntarily submitted information is
not confidential under the MSA, it may be exempt from public disclosure
under FOIA as confidential business information or information that
would result in an unwarranted invasion of personal privacy if made
publicly available. As such, NMFS does not anticipate a reduction in
participation of voluntary collections.
The MSA confidentiality requirements and procedures under this rule
apply to observer information that was collected as part of a
cooperative research initiative and that is under NMFS' custody and
control. See 16 U.S.C. 1881a(b)(2) and 1802(32) (providing that
``observer information'' is confidential and referring to a cooperative
research initiative in the definition of that term). In addition, if
cooperative research is conducted under an exempted fishing permit and
information collected through that research is required to be submitted
under the terms of the permit, NMFS will treat it as confidential
information for MSA purposes.
Lastly, NMFS intends to develop guidance on data aggregation
standards as part of an ICP to address the level of data resolution
needed to preserve confidentiality, if it is to be released for
management purposes. See 50 CFR 600.410(b)(9).
Disclosure Under the Limited Access Program Exception
Comment 17: Commenters expressed a range of views on the LAP
exception. A commenter stated that the proposed rule approach for the
LAP exception seemed to be broader than what was intended and requested
that NMFS narrow the LAP exception by revising the definition of LAP
such that it only covers limited access privilege programs (LAPPs) and
interpreting it to authorize release of confidential information only
to a person who has applied for privileges under a LAPP. One commenter
stated that ``determination'' for purposes of the LAP exception should
apply only to the initial phase of a LAP program and not to monitoring
under LAP-managed fisheries. Another commenter supported the proposed
rule approach stating that treatment of some LAP participant
information as non-confidential would enhance transparency and
accountability. The commenter supported application of FOIA exemptions
to information that is non-confidential under the LAP exception if
necessary to protect personal privacy. Other commenters expressed
qualified support for NMFS' proposed approach to the LAP exception but
requested that NMFS consider a broader approach that would allow for
more information to be treated as not confidential under that
exception.
Response: The MSA LAP exception allows for the disclosure of
information that a person is required to submit for a determination
under a LAP. This final rule provides that the exception applies to
LAPPs, 16 U.S.C. 1853a and 1802(26), and other fisheries that are
managed through allocation of privileges to a person. The LAP exception
uses the undefined term ``limited access programs;'' thus, in
developing the proposed rule, NMFS considered what limited access
management approaches may necessitate a specific confidentiality
exception for disclosure of information. 89 FR 17358, 17362-17363
(March 11, 2024). After considering public comment, NMFS continues to
believe the need is most evident for fisheries in which exclusive
fishing privileges, such as a portion of a fishery's total allowable
catch, are allocated to persons based on their historical catch, or
other applicable historical fishery participation. See Id. at 17363
(noting the same need in the proposed rule). As discussed in the
proposed rule, in these fisheries--often referred to as catch share
programs--the availability of information is necessary for
administration of appeals of allocations and related determinations and
generally promotes transparency in the basis for such determinations.
See NOAA's Catch Share Policy (available at <a href="http://www.nmfs.noaa.gov/sfa/management/catch_shares/about/documents/noaa_cs_policy.pdf">http://www.nmfs.noaa.gov/sfa/management/catch_shares/about/documents/noaa_cs_policy.pdf</a>) for
information on catch shares. Accordingly, in this final rule, the LAP
exception applies to information that underlies allocations of those
privileges and subsequent NMFS determinations that apply to those
allocated privileges. Having considered public comment, NMFS still sees
no basis for interpreting ``determination'' to apply only to
determinations that are made in the initial phase of a LAP and not to
any subsequent allocation determinations. In this final rule, the
exception applies to any determination under a LAP involving allocation
decisions at any time. Sec. 600.420(c)(2) defines ``Determination'' to
include allocations generally and therefore covers both the initial and
any subsequent annual allocation of privileges. Additionally, the final
rule defines determination to include approval or denial of a lease or
sale of either allocated privileges or annual allocations and end-of-
season adjustments.
The LAP exception is just that--an exception to the MSA
confidentiality requirements. NMFS declines to adopt a broader
interpretation of the LAP exception that would result in it operating
as a rule, rather than exception, where confidentiality does not apply
to most if not all information that a person is required to submit in
LAP managed fisheries. This exception allows, but does not require,
release of excepted information pursuant to the MSA. Other statutes,
such as FOIA, may apply and protect certain agency records from public
disclosure (See e.g., FOIA protections below).
Comment 18: Some commenters expressed concern that NMFS would treat
information that it accesses through an agreement with a State as non-
confidential, notwithstanding a State law that protects and restricts
access to that information.
Response: NMFS has sufficient authority to protect vessel-specific
information to avoid any conflict with State law requirements. While
the LAP exception allows for release of information that is submitted
for a
[[Page 102007]]
determination under a LAP, it does not require that NMFS proactively do
so. Should NMFS receive a FOIA request for information that is not
confidential under the LAP exception, NMFS could, as appropriate,
protect that information from public disclosure under FOIA Exemption
Four, which applies to confidential business information, or Exemption
Six, which applies to information the release of which would constitute
an unwarranted invasion of personal privacy. In determining the
appropriateness of application of FOIA Exemption Four, NMFS will
consider whether the requested information is protected under state law
because that is relevant to whether a person submitted it with the
expectation that it would be treated as confidential.
Comment 19: Some commenters asked NMFS how this rule's approach to
the LAP exception compares to NMFS' current practice. A commenter also
asked how the approach would affect confidentiality of information in
LAPPs. A commenter expressed concern that the LAP exception would apply
to information that NMFS uses to consider whether to establish a LAP.
They requested NMFS clarify when the exception would apply to such
considerations and what information NMFS uses to determine whether to
approve a lease or sale of allocated privileges, and when that
information would be made public.
Response: The LAP exception applies to LAPPs and other fisheries
that are often referred to as catch share programs. See response to
Comment 17. Since the LAP exception was enacted in 2007, NMFS has
applied the exception in the same manner codified in this final rule.
In other words, NMFS, including its regional offices, has not applied
the exception beyond information submitted or used for any initial or
annual allocations, approval or denial of a lease or sale of allocated
privileges, or end-of-season adjustments. Some regions have applied the
LAP exception only in the context of allocation determinations. The
final rule will establish a uniform approach and clarifies that
information a person submits for a determination, as defined at Sec.
600.420(c)(2), would be subject to the LAP exception.
With regard to establishing a LAP, a Council could transmit an FMP
amendment to NMFS recommending a new LAP. Even if NMFS has not yet
determined whether to implement the FMP amendment through a final rule,
NMFS may decide, as an example, that releasing historical landings or
catch information to a potential LAP participant would be helpful in
order to provide sufficient time for vessel owners to verify or correct
information that will be used for initial allocations, 89 FR at 17363,
and this final rule clarifies that such information could be released.
The LAP exception would not, however, be applicable for a Council's
consideration of whether to establish a LAP. In other words, NMFS would
not release MSA confidential information pursuant to the LAP exception
when a Council was considering whether to establish a LAP. Id.
What information is used to determine whether to approve a lease or
sale of allocated privileges, and thus whether and when such
information would be made public, depends on the requirements
established and implemented for a particular fishery.
Disclosure Related to International Fisheries Agreements and the High
Seas Driftnet Fishing Moratorium Protection Act
Comment 20: Some commenters objected to the rule's approach to what
is not confidential for MSA purposes under section 608(b)(2) of the
FMPA, as amended. 16 U.S.C. 1826i(b)(2). Specifically, these commenters
said that the approach was too broad and should be removed or revised
so that information collected from U.S. vessels is treated as
confidential even if shared with an RFMO to satisfy a United States
obligation. Another commenter asked that NMFS clarify whether the FMPA
authorizes NMFS to rely on each RFMO's confidentiality procedures to
protect information or whether NMFS will engage each RFMO to ensure
protection of business and personal information.
Response: NMFS agrees that the proposed approach is too broad and
has made changes to the rule language to reflect this concern. FMPA
sections 608(b)(2) and 606(d)(2)(B) do not define information provided
to satisfy an RFMO obligation or foreign vessel information as ``not
confidential'' for MSA purposes. Rather, these sections specify that
``with respect to the [FMPA]'' the MSA confidentiality requirements
shall not apply for, or with respect to, obligations of the United
States to share information under an RFMO of which the United States is
a member or foreign vessel information. 16 U.S.C. 1826i(b)(2) and
1826g(d)(2)(B). To clarify this point, this final rule deletes
references to RFMO and foreign vessel information in the definition of
confidential information (proposed Sec. 600.10) and consolidates and
simplifies relevant FMPA text in Sec. 600.415(f).
The FMPA permits disclosure of information, including information
that is collected jointly under the MSA and a statute that implements
an international fishery agreement, to ``any other Federal or State
government agency, the Food and Agriculture Organization of the United
Nations, the secretariat or equivalent of an international fishery
management organization or arrangement made pursuant to an
international fishery agreement'' if they have policies and procedures
in place to protect the information. Id. 1826i(b)(1). Such information
may be vessel-specific. The FMPA allows for release of confidential
information to the same list of entities as well as foreign governments
if, in addition to having policies and procedures in place, the
information is released for purposes specified at section
1826g(d)(2)(A)(ii). The FMPA authority described above is reflected in
revised Sec. 600.415(f), which states that NMFS may disclose such
information, as authorized under, and subject to the requirements and
conditions of, section 608(b) or 606(d)(2) of the High Seas Driftnet
FMPA (16 U.S.C. 1826i(b) and 1826g(d)(2)), to entities specified in
those sections. For such disclosures, specified entities must have in
place policies and procedures to protect confidential information from
unintended or unauthorized disclosure. The United States engages within
the RFMOs it is a member of to support the development and adoption of
policies and procedures, including confidentiality procedures to
protect information from unintended or unauthorized disclosure. Where
the United States is not a member of an RFMO, NMFS would consider the
RFMO's policies and procedures on a case-by-case basis.
FMPA sections 608(b)(2) and 606(d)(2)(B), 16 U.S.C. 1826i(b)(2) and
1826g(d)(2)(B), provide for two exceptions where MSA confidentiality
requirements do not apply; in other words, the policies and procedures
described above are not required for disclosures of: (i) information
disclosed with respect to obligations of the United States to share
information under a RFMO of which the United States is a Member or (ii)
information collected by NMFS regarding foreign fishing vessels. NMFS
may determine what, if any, conditions may be appropriate for these two
categories of information and will consider whether any additional,
related guidance on agency management of information is needed in
updated ICPs.
Comment 21: Commenters recommend that NMFS apply section 608 of the
FMPA only to RFMOs
[[Page 102008]]
identified in 16 U.S.C. 1826g (section 606(d)(2)) rather than any RFMO.
Response: NMFS does not agree with limiting the FMPA disclosure of
information provisions to U.S. obligations related to specifically
listed RFMOs because the statute clearly applies to other RFMOs which
implement fishery agreements, even if not specifically enumerated.
Section 606 states that it applies to information collected under the
joint authority of the MSA and the ATCA, WCPFC Implementation Act, ``or
other statutes implementing international fishery agreements.'' The
section authorizes disclosure of such information, subject to specific
requirements and exceptions, to various entities, including the
secretariat or equivalent of an international fishery management
organization or arrangement made pursuant to an international fishery
agreement. Id. Sec. 1826g(d)(2)(A). Section 608 uses similar language
with regard to information and entities. Thus, NMFS has made no changes
to this aspect of the final rule.
Comment 22: A commenter expressed support for the proposed rule
allowing state and federal agencies and certain international
organizations to access confidential information if necessary and
appropriate under the FMPA. Another commenter asked that NMFS clarify
how access by RFMOs would be different under the proposed rule compared
to current practices. The commenter stated that NMFS should treat
information as non-confidential for purposes of sharing it with an RFMO
only if that RFMO's definition of what is confidential is the same as
NMFS'.
Response: NMFS acknowledges the support for disclosure of
confidential information pursuant to the FMPA and that information
sharing furthers efforts to develop science-based measures for
conservation and management of domestic and international fisheries and
to strengthen enforcement of those measures. The FMPA disclosure of
information provisions were enacted under the 2015 Illegal, Unreported,
and Unregulated Fishing Enforcement Act, and NMFS does not expect that
the final rule will substantively change how NMFS applies them in
practice. Under the MSA, information is confidential if required to be
submitted in compliance with requirements of the Act. While an RFMO may
have a policy that defines confidential information, it would not
control what is confidential for MSA purposes. As stated in response to
Comment 20, under the FMPA, NMFS may disclose information that is
subject to the MSA confidentiality requirements to RFMOs if they have
policies and procedures in place to protect the information. NMFS'
practice has been to make disclosures under this authority only to
RFMOs that have policies and procedures to protect confidential
information that are equivalent to NMFS'. NMFS will consider whether
any additional, related guidance on agency management of this
information is needed in updated ICPs.
Comment 23: A commenter urged NMFS to provide transparency on
global fisheries management through release of information that is
collected under the Seafood Import Monitoring Program (SIMP). The
commenter referenced the proposed rule's implementation of the FMPA,
which provides that information collected from foreign fishing vessels
is not confidential. The commenter believes that there should be
greater public access to information collected under the Marine Mammal
Protection Act Import Provisions and other authorities administered by
NMFS.
Response: As explained in response to Comment 20, the final rule
revises the definition of confidential information (Sec. 600.10) to
delete reference to foreign fishing vessels and addresses the FMPA in
Sec. 600.415(f)). The MSA does not have an exception for public
disclosure of confidential information collected under SIMP. Further,
the Trade Secrets Act (18 U.S.C. 1905) prohibits the disclosure of
information collected and maintained in Customs and Border Protection
(CBP) systems, which may limit the ability for SIMP data to be shared
publicly (data collected for SIMP is submitted electronically through
the Automated Commercial Environment maintained by CBP). However, per
the FMPA, NMFS could disclose information collected under the program
regarding foreign vessels, as provided under Sec. 600.415(f) and if
consistent with other applicable law.
Enforcement of Data Agreements and Prohibitions To Release Data
Comment 24: Several commenters asked for clarity regarding the
responsible party for enforcing the prohibition under MSA 308(a), 16
U.S.C. 1858(a), non-disclosure agreements, or any mutual agreements to
ensure confidentiality procedures are maintained by those entities.
Response: Section 308(a) of the MSA concerns the assessment of a
civil penalty if the Secretary determines that a person has committed
an act prohibited by section 307 of the MSA. NMFS is generally
responsible for enforcing the various prohibitions in the MSA and in
regulations promulgated under the MSA including the prohibitions set
forth in this rule. NMFS works closely and collaboratively with States,
marine fishery management commissions, and other entities to ensure
appropriate handling of MSA confidential information. Under Sec.
600.410(c)(1), NMFS may enter into an agreement with a state for the
collection of confidential information by the state on behalf of the
Secretary if NMFS determines that the state has authority comparable to
the MSA for the protection of information and that the state will
exercise such authority to protect confidential information. See
response to Comment 3 for further explanation. In addition, NMFS may
enter into an agreement with a marine fisheries commission per Sec.
600.410(c)(2). In such circumstances, NMFS may look to the states or
commissions to carry out agreed upon duties to protect information
using the comparable State or Commission authorities rather than MSA
authorities.
Data Collected Under Other Programs for Management Purposes and
Applicability of MSA Confidentiality Measures
Comment 25: One commenter asked for clarity regarding how data
collected and transmitted to the NOAA Office Of Law Enforcement (OLE)
would be treated, especially vessel position information (i.e., Vessel
Monitoring Systems (VMS) data) or data collected for scientific
monitoring purposes in the Gulf of Mexico commercial shrimp fishery. In
addition, the commenter would like clarity that OLE data would enter
the Federal Information Security System and thereby be under NMFS
custody and control for protection as confidential information.
Response: The NOAA OLE is an office under the NMFS. Every NMFS
office, including OLE, maintains VMS and other forms of MSA
confidential information in accordance with the NMFS's Federal
Information Security Management Act requirements. The NMFS office
responsible for initially collecting MSA confidential information has
no bearing on OLE's authority to access and use any MSA confidential
information collected by NMFS. VMS data, like other forms of
confidential information, can be accessed by NMFS and others for
fishery conservation and management purposes. In the case of the
proposed data collected in the Gulf of Mexico shrimp fishery, the data
has traditionally been submitted to NMFS, resides in NMFS' custody and
control, and is managed within a NMFS FISMA domain. In cases where MSA
confidential information must be used to enforce the provisions of the
MSA,
[[Page 102009]]
that MSA confidential information may become part of the public record.
Access to and Disclosure of Confidential Information to a Council's
Management Entities
Comment 26: Comments were mixed on the proposed procedure that
allows Council executive directors to request access to confidential
information for scientific and statistical committee (SSC) and/or
advisory committee or panel (AP) members. Those opposed said that the
MSA does not authorize SSC/AP members to have access to confidential
information. Other commenters asserted that State law may not permit
such access to information that a State provides to NMFS in accordance
with an agreement with the State. Some commenters expressed concern
that SSC/AP members may gain a competitive advantage if given such
access. Other commenters were in support of this procedure and
requested broadening this approach to allow access to any individuals
or groups who provide support to NMFS with respect to fishery
conservation and management under the MSA such as technical management
teams, cooperative researchers and contract employees.
Response: The MSA authorizes disclosure of confidential information
to the Councils: ``Nothing in this subsection [402(b)] shall be
interpreted or construed to prevent the use for conservation and
management purposes by the Secretary, or with the approval of the
Secretary, the Council, of any information submitted in compliance with
any requirement or regulation under this chapter . . .'' 16 U.S.C.
1881a(b)(3). The MSA requires establishment of SSCs, 16 U.S.C.
1852(g)(1), and APs that are necessary or appropriate to assist a
Council in carrying out its functions, notably, the preparation of
fishery management plans and amendments, 16 U.S.C. 1852(g)(2)-(h)(1).
Given these mandates, the MSA authorizes disclosure of information to
SSCs and APs if needed for conservation and management purposes and
subject to the below-described procedures. Sec. 600.415(d)(5) also
acknowledges the potential need for Council contractors to access
confidential information. However, NMFS does not believe it is
necessary to expand Sec. 600.415(d) to include any individuals or
entities who might provide some support to NMFS related to MSA
conservation and management.
As explained in the preamble to the proposed rule, a Council may
request, through its executive director, that members of its SSCs and
APs be given access to confidential information. Proposed Sec.
600.415(d), however, provided that the executive director could make
this request on their own initiative. This final rule revises that
procedure to reflect the procedure stated in the preamble; i.e., that a
Council may, through its executive director, request that members of
its SSCs and APs be provided access to confidential information. This
procedure can be applied consistent with a more restrictive State law.
For example, a Council could include in its standard operating
procedures a requirement to consider whether access by Council SSC or
AP members may be in potential conflict with a State law. A Council
member for a State with such a concern could raise it for consideration
by the Council.
Before approving any such request, NMFS must determine that access
will not result in any Council member having a personal or competitive
advantage (Sec. 600.415(d)(3)-(4)). Further, NMFS will consider
whether providing confidential information is inconsistent with State
law. NMFS recognizes that State law applicable to information that NMFS
accesses under an information sharing agreement with a State may not
always align with what is authorized under the MSA and other applicable
Federal law. NMFS coordinates with its State partners to address such
issues as they arise but has not experienced an unresolvable conflict
between State and Federal mandates to date.
Definition of Business of Any Person
Comment 27: Comments were mixed on the proposed definition of
``business of any person.'' Some commenters supported the proposed
definition because business information and identifying information
need protection. These commenters stated that the definition would
apply to information that reasonably constitutes proprietary
information and would cause competitive harm if disclosed. Other
commenters opposed this definition, stating that it is contrary to the
MSA and the agency's long-standing interpretation of ``identity or
business of any person'' as referring to the identity of a person or a
business. These commenters further stated that the definition is too
broad and overly protective and would violate MSA National Standard 2
(NS 2) and the Open Government Policy by limiting public access to
information for use in cooperative research and other activities
related to fisheries management.
Response: MSA section 402(b)(3) expressly states that aggregated or
summarized information may be released only if it does not directly or
indirectly disclose the ``identity or business of any person''
(emphasis added). This rule amends existing regulations to better align
with the statutory text. Since the statute distinguishes between the
identity or business of any person, the regulations must go beyond a
reference to identity. In practice, NMFS aggregates information to
protect a person's identity as well as the person's business
information. In other words, NMFS does not simply strip identifiers off
information that it releases. Many fishermen have business interests in
protecting information related to their fishing practices, including
the time, location and gear used. Disclosure of this information at a
vessel-specific level, even if stripped of identifiers, could raise
concerns about competitive disadvantages. In NMFS's experience, the
types of operational and financial information listed in the ``business
of any person'' definition are precisely the types of information that,
if disclosed at the vessel-specific level, could result in competitive
harm. The definition is clear and relatively easy to apply, reflects a
common understanding of what constitutes the ``business'' of a person
in the MSA regulatory context, and is consistent with the agency's
long-standing practice.
NMFS supports transparency, public participation, and collaboration
through the MSA's regional, process-intensive approach to fishery
management. For information on the U.S. Open Government initiative, go
to <a href="https://www.gsa.gov/governmentwide-initiatives/us-open-government">https://www.gsa.gov/governmentwide-initiatives/us-open-government</a>.
NMFS agrees that access to fisheries information facilitates
transparency, public participation, and collaboration and that these
goals should be taken into account in its handling of confidential
information. To that end, NMFS intends to develop ICPs to provide
guidance on the minimum level of aggregation disclosure advisable to
protect the identity and the business of any person, consistent with
MSA confidentiality requirements. NMFS also intends that the ICPs will
provide guidance on when information should be considered to indirectly
disclose a person's identity or business. NMFS disagrees that the
definition of ``business of any person'' is inconsistent with National
Standard 2, which requires the use of best scientific information
available but does not address confidentiality of information.
Comment 28: Some commenters said that NMFS should revise the
proposed definition of ``business of any person'' to further detail
what constitutes financial and operational information,
[[Page 102010]]
and one commenter recommended revising the definition to include
information reported by processors such as amount processed or
processing capacity.
Response: NMFS disagrees that revisions are necessary to detail or
further clarify what constitutes the business of any person. MSA 402(b)
broadly requires the confidentiality of any information that a person
is required to submit in compliance with the Act and any observer
information. The definition covers common types of financial or
operational information such as ownership information or fishing
locations and is not intended to be exhaustive. The definition, which
is finalized as proposed, includes estimated and actual processing
capacity of U.S. fish processors, so it is not necessary to add
``amount processed.''
Comment 29: A commenter stated that NMFS should exclude landings,
revenue, and effort on annual or fishing year basis from the proposed
rule definition for confidential information in cases where data is
available from fewer than three vessels or entities. In the commenter's
view, public interest in this information outweighs the interest of the
participants in the fishery who are benefiting from a public resource.
Response: Under MSA section 402(b)(3), NMFS may publicly release
confidential information only in an aggregate or summary form that does
not directly or indirectly disclose the identity or business of any
person. Aggregated information from at least three submissions or
entities is often necessary to achieve that standard. If data from only
two entities is aggregated, one entity could identify itself and/or its
own data, thus disclosing the other entity's business and/or identity.
For that reason, NMFS is not revising the definition of ``confidential
information'' to refer to fewer than three vessels or entities. NMFS
will explore the potential for disclosing information in a summary form
on an ad hoc basis.
Comment 30: Many commenters requested that NMFS clarify through
ICPs how confidential information can be aggregated or summarized into
a form that would not directly or indirectly disclose the identity or
business of any person. A commenter felt that the proposed rule missed
an opportunity to address the level at which confidential information
must be aggregated for it to be releasable to the public.
Response: NMFS determined that it was necessary to revise the
definition of ``aggregate or summary form'' and to define ``business of
any person'' before it developed an ICP that provides guidelines for
aggregation and summarization of confidential information. As stated
above, development of ICPs based on definitions that could change would
not be efficient. With the revised definitions finalized through this
rule, NMFS can proceed to develop guidance on the minimum level of
aggregation or summarization advisable to protect the identity and the
business of any person. In doing so, NMFS intends to advance and
balance three objectives: transparency through release of the broadest
amount of information at the finest level detail; protection of the
identity and the business of any person; and responsiveness to
individual information requests.
Comment 31: A commenter requested that NMFS clarify whether the
proposed rule would change existing practices on the requests for
confidential information that is held by different entities (e.g., a
State fishery management commission, a State fishery management agency,
and NMFS).
Response: The final rule clarifies NMFS' practices but does not
change them or the practices that a state fishery management commission
or a state may have for responding to requests for confidential
information. Access, maintenance, and release requirements under the
rule apply only to information that is under NMFS' custody and control
(Sec. 600.405). NMFS treats information as subject to its custody and
control when it physically obtains the information, which, for
electronically submitted information, is when the information enters a
NMFS FISMA domain (See Background section for FISMA explanation).
In addition to subpart E regulations, requests for confidential
information subject to NMFS' custody and control would be addressed by
FOIA request procedures under NOAA Administrative Order 205-14 and any
applicable ICPs. Requests for information under the custody and control
of a State fishery management commission or a state would be subject to
their requirements and procedures. NMFS will continue to work with
these entities in a non-regulatory fashion to reach mutual agreement on
how to maintain the confidentiality of information submitted to them
pursuant to an MSA requirement.
Applicability and Authority of MSA and Marine Mammal Protection Act
(MMPA)
Comment 32: Several commenters supported the approach in the
proposed rule with respect to marine mammals while others expressed
concern. In particular, some commenters supported the proposed rule's
treatment of details that concern interactions with marine mammals as
non-confidential for MSA purposes. Other commenters stated that the
proposed rule is inconsistent with the protection of identity and
business of any person under the MSA and the MMPA and other regulations
protecting confidential information. Many commenters expressed concern
that disclosure of details of interactions with marine mammals would
indirectly disclose the identity of the vessel involved in the
interaction and urged NMFS to take steps to prevent such disclosures.
Some commenters recommended that NMFS release general area descriptions
or latitude/longitude block areas instead of specific interaction
locations.
Response: For the reasons stated in the proposed rule, this final
rule continues to exclude observer information on interactions with
marine mammals from the definition of confidential information (Sec.
600.10). This information can be publicly disclosed provided that
information regarding fishing practices and gear would not constitute a
trade secret under the FOIA, 5 U.S.C. 552(b)(4). NMFS included the
trade secret text in proposed and final Sec. 600.10, recognizing
concerns that disclosing details of marine mammal interactions (take)
may indirectly disclose the identity of vessels involved in
interactions.
Fishery management plans and regulations under the MSA must be
consistent with applicable law, which includes the MMPA. See 16 U.S.C.
1853(a)(1)(C) and 1854(a)(1), (3), (b)(1), and (c)(7). Release of
observer information that concerns interactions with marine mammals
advances implementation of MMPA mandates, and, in particular, such
information is critical for deliberations of MMPA Take Reduction Teams
(TRTs). See 89 FR at 17367-17368 (providing further explanation of MMPA
mandates in proposed rule preamble).
This final rule reflects NMFS's long-standing approach as the
agency has been presenting detailed information on commercial
fisheries' interactions with marine mammals to TRTs since the program
was mandated in 1994 by the MMPA. To prevent disclosures of the
identity of a vessel involved in interactions, NMFS evaluates whether a
release of detailed interaction information would, if combined with
past disclosures, identify the vessel involved in the interaction.
Additionally, if appropriate for purposes of the TRTs' goals and
objectives, we routinely strive to present
[[Page 102011]]
data in aggregated form, particularly when illustrating latitude/
longitude positions of individual takes. For example, TRTs, which
include fishing industry representatives, may be particularly
interested in viewing take locations by season to discern whether
patterns in bycatch exist. In that case, NMFS would aggregate all
available years of data to evaluate seasonal patterns. Further, the
specific location of an interaction may in some cases be essential to
develop meaningful mitigation measures and comply with the MMPA goals
of reducing mortality and serious injury incidental to commercial
fishing. For example, a particular marine mammal interaction may have
occurred in association with a specific oceanographic feature (e.g., a
seamount, the continental shelf break) that would only be recognizable
when evaluating individual latitude/longitude positions and not as a
block area. In these circumstances, the TRTs cannot work effectively
without disclosing the detailed, vessel-specific information upon which
their analysis and determinations rely. In recent years, NMFS has
disclosed this information through TRTs without receiving concerns that
such disclosure harms MSA confidentiality interests. By knowing this
information, TRTs can design more precise, targeted recommendations for
mitigation measures, instead of broad, overly restrictive
recommendations, which can lead to and has led to reduced regulatory
burden on a fishery.
Comment 33: Several commenters recommended that photos and videos
of marine mammals should be excluded from the definition of
confidential information given they cannot readily be aggregated. The
commenters also asserted that other information such as the nature and
severity of interactions, samples collected, handling and release
details, etc. should be excluded from the definition.
Response: While photos and videos may be useful, they are not among
the specific information that TRTs need to develop measures to reduce
take occurring in a fishery. However, NMFS has and will continue to
release marine mammal injury or mortality events captured by cameras if
the image does not disclose the identity or any unique gear
configurations that may constitute a trade secret as defined for
purposes of FOIA Exemption Four. See NMFS' Policy on Electronic
Technologies and Fishery-Dependent Data Collection available at <a href="https://media.fisheries.noaa.gov/2022-05/04-115-04_0.pdf">https://media.fisheries.noaa.gov/2022-05/04-115-04_0.pdf</a>. In making such
public disclosures, NMFS will evaluate the image that captures the
marine mammal interaction and if feasible and practicable take steps to
obscure identifying information prior to releasing it publicly. In
contrast to photos, video collected through EM systems cannot be
aggregated or summarized. NMFS will provide access to that information,
and release it publicly, only as authorized under Sec. Sec. 600.415
and 600.420.
Details of interactions (e.g., nature and severity of interactions,
samples collected, handling and release details, etc.) may also be
useful, but they are not among the specific information that TRTs need
to develop measures to reduce take occurring in a fishery. Thus, NMFS
is not excluding this information as well as photos and videos from the
definition of confidential information.
Comment 34: Some commenters stated that NMFS could allow TRTs to
receive information without releasing it publicly by restricting
release of detailed information on interactions with marine mammals to
members of TRTs through confidentiality agreements.
Response: NMFS considered requiring members of TRTs to sign non-
disclosure agreements but determined this approach is not appropriate
because observer information on marine mammal interactions described in
Sec. 600.10 is not confidential information and may be disclosed.
Additionally, as noted in the proposed rule, TRTs established under the
MMPA must meet in public and develop plans to reduce incidental
mortality and serious injury; specific details of interactions with
marine mammals are critical to developing such plans. See 16 U.S.C.
1387(f)(6) (establishing and setting forth requirements for TRTs).
Comment 35: One commenter recommended that NMFS clarify the
relationship between the MSA and MMPA, the authorities governing
deployment of observers and the collection of information under each
statute, and whether the confidentiality rules differ depending on the
type of information and purpose for which they will be used.
Response: Section 600.10 of the proposed rule and final rules
exclude details of observer information on interactions with marine
mammals from the definition of ``confidential information'' for the
purposes of the MSA. NMFS may require observers and observer coverage
and other data reporting and collection under multiple statutory
authorities depending on the conservation and management needs of and
objectives of the program and the nature of, gear used, area fished
during, or other circumstances for a particular trip. Regardless of
whether an observer is deployed in a fishery under both MMPA and MSA
authorities or solely MSA authority, observer information related to
interactions with marine mammals will not be considered confidential
information for MSA purposes.
Comment 36: Some commenters viewed NMFS' approach to excluding
marine mammal interactions as too narrow and requested broadening it to
include all protected species and bycatch data under the MMPA,
Endangered Species Act (ESA), and Migratory Bird Treaty Act (MBTA),
including non-protected species bycatch. One commenter asserted that
the approach should be broadened to include vessel interactions with
ESA-listed species, noting that specific conditions imposed on a
fishery by ESA section 7 biological opinions and incidental take
statements require detailed reporting and analyses of takes to assess
impacts of proposed actions on ESA-listed species. The commenter
asserted that this information should be reported publicly so that it
can be used by stakeholders to review and examine, and sometimes
challenge, agency decisions under the ESA, given the ESA explicitly
provides for citizen suits in this regard.
Response: The MSA does not allow, nor do other Federal statutes
require, disclosure of details on interactions with ESA-listed species,
seabirds, bycatch of nonprotected species, or species protected under
state statutes. See 89 FR at 17367-17368 (providing further explanation
of ESA in proposed rule preamble). Observer information regarding
interactions with ESA-listed species or other protected species would
continue to be releasable in aggregate or summary form consistent with
MSA section 402(b)(3) and these regulations.
Proposed Changes Clarifying NMFS' Confidentiality Regulations
Comment 37: Some commenters said NMFS should clarify whether
regulations are necessary to implement MSA 402(b)(1)(I), 16 U.S.C.
1881a(b)(1)(I), which allows other federal agencies to access
information for enforcement of forced labor prohibitions.
Response: For ease of reference, Sec. 600.415 of the final rule
includes the statutory text of MSA 402(b)(1)(I). NMFS does not believe
regulations are needed to interpret that text. NMFS will prescribe
additional procedures to implement this exception by regulation as may
be necessary to preserve the confidentiality of information.
[[Page 102012]]
Entities Potentially Affected by the Rule
Comment 38: A commenter stated that any vessel with a Federal
fishing permit should be included in a description of potential
entities affected by the rule because any of those vessels might be
subject to observer coverage and thus potentially affected if there are
changes to how observer data are treated (confidential or not).
Response: This rule applies to information that is maintained by
NMFS and subject to its custody and control and does not impose
regulatory burdens on vessels. The rule does not change the extent of
required observer coverage, and therefore there is no need to analyze
impacts on vessels that might be potentially be subject to observer
coverage. The rule broadly addresses NMFS' responsibility under MSA
section 402(b) to maintain as confidential any information that a
person is required to submit in compliance with any regulation or
requirement under the MSA and any observer information. 89 FR at 17359.
If a vessel were to be subject to MSA observer coverage requirements,
the observer information would be handled as confidential consistent
with the Act and this rule.
Changes From the Proposed Rule
In response to public comment, and after further agency
consideration, NMFS has made minor edits for clarity and several
substantive changes between the proposed and final rules. These changes
are summarized and explained here.
The proposed rule (Sec. 600.10) defined confidential information
to not include (1) vessel-specific information provided in satisfaction
of obligations of the United States to share information under a RFMO
of which the United States is a member and (2) any information
collected by NMFS under the MSA regarding foreign vessels. This final
rule deletes references to these two categories from Sec. 600.10 and
addresses the FMPA in Sec. 600.415(f).
Final Sec. 600.405 continues to state that the regulations apply
to confidential information as defined in Sec. 600.10. To clarify this
section, NMFS revised it to provide that ``[a]gency access,
maintenance, and release responsibilities [under this subpart] apply
only to confidential information under NMFS' custody and control.''
In the proposed rule, NMFS also defined ``electronic monitoring
service provider'' as any person who manages observer information
collected by an electronic monitoring system required under an MSA
regulation. The proposed rule left out ``or as part of a cooperative
research initiative,'' a phrase that is in the MSA definition of
observer information, 16 U.S.C. 1802(32). This final rule adds that
statutory text to the regulatory definition.
NMFS proposed a procedure under which a Council may, through its
executive director, request that members of its SSC and AP that are not
Federal or State employees be granted access to confidential
information. Although accurately described in the preamble, the
proposed regulation incorrectly provided that the Council executive
director, rather than the Council itself, may initiate it. This final
rule corrects this error. Additionally, NMFS makes a technical revision
to this procedure so that it applies to Members of the Council's
advisory panels (plural), rather than a panel.
To implement the FMPA, the proposed rule excluded two categories of
information from the definition of confidential information (see Sec.
600.10 explanation above) and addressed access to information in
proposed Sec. Sec. 600.415(f)-(g). The final rule deletes FMPA-related
references in Sec. 600.10, deletes Sec. 600.415(g), and addresses the
FMPA in revised Sec. 600.415(f). The revised text states, for the
purposes of sections 608(b) and 606(d)(2) of the FMPA (16 U.S.C.
1826i(b) and 1826g(d)(2)), international fishery agreement has the same
meaning as international fishery management agreement at 50 CFR
300.201. In addition, NMFS may disclose information, as authorized
under, and subject to the requirements and conditions of, section
608(b) or 606(d)(2) of the FMPA to entities specified in those
sections. For purposes of applying section 608(b) and 606(d)(2), the
confidentiality requirements of section 402(b) of the Magnuson-Stevens
Act, 16 U.S.C. 1881a(b), shall not apply with respect to (1)
obligations of the United States to share information under a Regional
Fishery Management Organization (RFMO) of which the United States is a
Member; or (2) information collected by NMFS regarding foreign fishing
vessels. The same cross-reference to 50 CFR 300.201 (international
fishery management agreement), noted above, was in the proposed rule.
The final rule includes a confidentiality of information exception
from MSA 402(b)(1)(I), 16 U.S.C. 1881a(b)(1)(I), related to illegal
unreported, or unregulated fishing and forced labor. See final rule
element # 7 in the Background section, above. NMFS did not include the
statutory text in the proposed rule, but for ease of reference added it
to the final rule regulatory text.
Classification
NMFS is issuing this final rule pursuant to section 305(d) of the
MSA. The NMFS Assistant Administrator has determined that this final
rule is consistent with the MSA and other applicable laws, including
the FMPA. This final rule has been determined to be not significant for
purposes of Executive Order 12866. There are no relevant Federal rules
that may duplicate, overlap, or conflict with this action. This final
rule contains no information collection requirements under the
Paperwork Reduction Act of 1995.
Certification Under the Regulatory Flexibility Act Analysis
The Chief Counsel for Regulation, Department of Commerce, certified
to the Chief Counsel for Advocacy of the Small Business Administration
during the proposed rule stage that this action will not have a
significant economic impact on a substantial number of small entities.
The factual basis for this certification was published in the proposed
rule and is not repeated here. NMFS received one comment regarding this
certification. The commenter stated that any vessel with a Federal
fishing permit should be included in a description of potential
entities affected by the rule because any of those vessels might be
subject to observer coverage and thus potentially affected if there are
changes to how observer data are treated (confidential or not). This
rule applies to information that is maintained by NMFS and subject to
its custody and control and does not impose regulatory burdens on
vessels. The rule does not change the extent of required observer
coverage, and therefore there is no need to analyze impacts on vessels
that might potentially be subject to observer coverage. The rule
broadly addresses NMFS' responsibility under MSA section 402(b) to
maintain as confidential any information that a person is required to
submit in compliance with any regulation or requirement under the MSA
and any observer information. If a vessel were to be subject to MSA
observer coverage requirements, the observer information would be
handled as confidential consistent with the Act and this rule.
This final rule is not expected to have a significant economic
impact on a substantial number of small entities. As a result, a final
regulatory flexibility analysis was not required, and none was
prepared.
[[Page 102013]]
Lists of Subjects in 50 CFR Part 600
Confidential business information, Fisheries.
Dated: December 9, 2024.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine
Fisheries Service.
For the reasons set out in the preamble, NMFS amends 50 CFR part
600 as follows:
0
1. The authority citation for part 600 continues to read as follows:
Authority: 5 U.S.C. 561 and 16 U.S.C. 1801 et seq.
0
2. Amend Sec. 600.10 by:
0
a. Revising the definition of ``Aggregate or summary form'';
0
b. Adding, in alphabetical order, definitions for ``Business of any
person'', ``Confidential information'',
0
c. Removing the definitions of ``Confidential statistics'' and ``Data,
statistics, and information''; and
0
d. Adding, in alphabetical order, definitions for ``Electronic
monitoring service provider'', ``Information sharing obligation of a
Regional Fishery Management Organization (RFMO)'', ``Observer
provider'', and ``Regional Fishery Management Organization''.
The revisions and additions read as follows:
Sec. 600.10 Definitions.
* * * * *
Aggregate or summary form means information structured in such a
way that the identity or business of any person (defined at 16 U.S.C.
1802(36)) who submitted the information cannot be directly or
indirectly determined either from the present release of the
information or in combination with other releases.
* * * * *
Business of any person means:
(1) Financial information such as ownership information, cash flow
documents, income statements, or information that contributes to the
preparation of balance sheets; or
(2) Operational information such as fishing locations, time of
fishing, specific gear configuration, catch by species in numbers or
weight thereof, number of hauls, number of employees and estimated
processing capacity of and the actual processing capacity utilized by
U.S. fish processors.
* * * * *
Confidential information includes any observer information as
defined under 16 U.S.C. 1802(32) or any information submitted to the
Secretary, a State fishery management agency, or a marine fisheries
commission by any person in compliance with any requirement or
regulation under the Magnuson-Stevens Act. Confidential information
does not include observer information related to interactions with
species protected under the Marine Mammal Protection Act: the date,
time, and location of interactions, the type of species, and the
fishing practices and gear involved provided that information regarding
fishing practices and gear would not constitute a trade secret under
the Freedom of Information Act, 5 U.S.C. 552(b)(4).
* * * * *
Electronic monitoring service provider means any person who manages
observer information collected by an electronic monitoring system
required under an MSA regulation or as part of a cooperative research
initiative.
* * * * *
Information sharing obligation of a Regional Fishery Management
Organization (RFMO) means a measure or part thereof that creates a
binding requirement on the United States to report certain information
by virtue of its membership in the respective RFMO.
* * * * *
Observer provider means any person that collects observer
information by placement of observers on or in fishing vessels,
shoreside processors, or stationary floating processors under a
requirement of the MSA or as part of a cooperative research initiative.
* * * * *
Regional Fishery Management Organization (RFMO) means an
intergovernmental fisheries organization or arrangement, as
appropriate, that has the competence to establish conservation and
management measures.
* * * * *
Sec. 600.130 [Amended]
0
3. In Sec. 600.130, remove the word ``statistics'', wherever it
appears, and add in its place the word ``information''.
0
4. Subpart E to part 600 is revised to read as follows:
Subpart E--Confidentiality of Information
Sec.
600.405 Applicability.
600.410 Protection of confidential Information.
600.415 Access to confidential information
600.420 Release of confidential information.
600.425 Release of information in aggregate or summary form.
Subpart E Confidentiality of Information
Sec. 600.405 Applicability.
This subpart applies to confidential information as defined at
Sec. 600.10. Agency access, maintenance, and release responsibilities
apply only to confidential information that is under NMFS' custody and
control.
Sec. 600.410 Protection of confidential information.
(a) General. This section requires control procedures related to
confidential information and provides procedures for the protection of
certain confidential information submitted to NMFS and State fishery
management agencies or marine fisheries commissions pursuant to a
statutory or regulatory requirement imposed pursuant to the Magnuson-
Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).
(b) Confidential information collected by NMFS. NMFS must establish
internal control procedures for the maintenance of and access to any
confidential information. The control procedures should include, but
are not limited to, the following:
(1) Requirements for information system management and data storage
to prevent unauthorized access to or disclosure of confidential
information;
(2) Procedures for NMFS employees to access confidential
information;
(3) Procedures for providing access to confidential information by
states, Councils, and Marine Fisheries Commissions;
(4) Procedures for evaluating whether members of a Council, or a
Council Scientific and Statistical Committee (SSC), plan team, or
Advisory Panel (AP) could gain personal or competitive advantage from
access to confidential information under Sec. 600.415(d);
(5) Procedures for evaluating requests by contractors, grantees,
cooperative agreement recipients and other external individuals and
organizations to access confidential information;
(6) Procedures for vessel owners to access and request confidential
information, including historic information associated with a fishing
permit;
7) Standardized sharing agreements that acknowledge the
confidentiality and protection of information from public disclosure;
(8) Template for written authorization for release of confidential
information for purposes of Sec. 600.420(f);
(9) Procedures for aggregating and summarizing confidential data
and responding to requests for non-confidential information;
[[Page 102014]]
(10) Any other procedures as necessary to maintain the
confidentiality of information.
(c) Confidential information collected by State Fishery Management
Agencies or Marine Fisheries Commissions. NMFS may enter into an
agreement with a state or a Marine Fisheries Commission for the
collection of confidential information on behalf of the Secretary
provided that NMFS, as part of the agreement, determines that:
(1) The state has confidentiality of information authority
comparable to the Magnuson-Stevens Act and that the state will exercise
this authority to prohibit public disclosure of confidential
information;
(2) The marine fisheries commission has established policies and
procedures comparable to the Magnuson-Stevens Act and that the
Commission will exercise such policies and procedures to prohibit
public disclosure of confidential information.
(d) Observer and Electronic Monitoring Services. (1) Observer
providers. NMFS may allow the collection of observer information by an
observer pursuant to a confidentiality agreement that:
(i) Specifies procedures that the observer provider will apply to
protect confidential information from public disclosure; and
(ii) Requires that the observer provider, each observer, and each
of its other employees that will handle confidential information
acknowledge the requirement to maintain the confidentiality of observer
information and the civil penalties for unauthorized use or disclosure
of such information provided under 16 U.S.C. 1858.
(2) Electronic monitoring service providers. NMFS may allow the
handling of observer information by an electronic service provider
pursuant to a confidentiality agreement that:
(i) Specifies procedures that the electronic monitoring service
provider will apply to protect confidential information from public
disclosure; and
(ii) Requires that the electronic monitoring service provider, and
each of its employees who will handle confidential information,
acknowledge the requirement to maintain the confidentiality of observer
information and the civil penalties for unauthorized use or disclosure
of such information provided under 16 U.S.C. 1858.
(3) As part of any agreement with an observer provider under
paragraph (d)(1) of this section, NMFS may allow the sharing of
observer information among and between observers and observer providers
for:
(i) Training or preparation of observers for deployments on
specific vessels; or
(ii) Validating the accuracy of the observer information collected.
Sec. 600.415 Access to confidential information.
Confidential information may be accessed by the following persons
subject to any specified conditions and procedures:
(a) Federal employees. (1) Responsible for fishery management plan
(FMP) development, monitoring, or enforcement, including persons that
need access to confidential information to perform functions authorized
under a Federal contract, cooperative agreement, or grant awarded by
NOAA/NMFS;
(2) At the request of another Federal agency, if providing the
information supports homeland security and national security
activities, including the Coast Guard's homeland security missions as
defined in section 888(a)(2) of the Homeland Security Act of 2002 (6
U.S.C. 468(a)(2)); or,
(3) To the extent necessary and appropriate to administer Federal
programs established to combat illegal, unreported, or unregulated
fishing or forced labor (as such terms are defined in section 11329 of
the Don Young Coast Guard Authorization Act of 2022 [16 U.S.C. 1885a
note]), which shall not include an authorization for such agencies to
release data to the public unless such release is related to
enforcement.
(b) State or marine fisheries commission employees. As necessary to
further the mission of the Department of Commerce, subject to an
agreement with NMFS that prohibits public disclosure of confidential
information;
(c) State enforcement personnel. State employees who are
responsible for enforcing FMPs, provided that the state for which the
employee works has entered into a Joint Enforcement Agreement with NOAA
and the agreement is in effect;
(d) Councils. A Council may, through its Executive Director,
request access for the following:
(1) The Council's employees who are responsible for FMP development
and monitoring;
(2) Members of the Council for use by the Council for conservation
and management, but only if NMFS determines that access will not result
in any Member having a personal or competitive advantage;
(3) Members of any Council scientific and statistical committee
(SSC) established under section 302(g) of the Magnuson-Stevens Act who
are not Federal or State employees, if necessary for the SSC to assist
and advise the Council as provided under the Magnuson-Stevens Act, but
only if NMFS determines that access will not result in any Member
having a personal or competitive advantage;
(4) Members of any Council advisory panel (AP) established under
section 302(g) of the Magnuson-Stevens Act, if necessary for the AP to
provide information and recommendations on, and assist in the
development of FMPs and amendments thereto, but only if NMFS determines
that access will not result in any Member having a personal or
competitive advantage;
(5) A contractor of the Council for use in such analysis or studies
necessary for conservation and management purposes but only if approved
by NMFS and subject to a confidentiality agreement; and
(e) Vessel Monitoring System Information. Nothing in these
regulations contravenes section 311(i) of the Magnuson-Stevens Act
which requires the Secretary to make vessel monitoring system
information directly available to the following:
(1) Enforcement employees of a State with which NMFS has entered
into a Joint Enforcement Agreement and the agreement is in effect;
(2) State management agencies involved in, or affected by,
management of a fishery if the State has entered into an agreement with
NMFS that prohibits public disclosure of the information.
(f) High Seas Driftnet Fishing Moratorium Protection Act (FMPA).
(1) For purposes of sections 608(b) and 606(d)(2) of the FMPA (16
U.S.C. 1826i(b) and 1826g(d)(2)), international fishery agreement has
the same meaning as international fishery management agreement at 50
CFR 300.201.
(2) NMFS may disclose information, as authorized under, and subject
to the requirements and conditions of, section 608(b) or 606(d)(2) of
the FMPA to entities specified in those sections.
(3) For purposes of applying section 608(b) and 606(d)(2), the
confidentiality requirements of section 402(b) of the Magnuson-Stevens
Act, 16 U.S.C. 1881a(b), shall not apply with respect to:
(i) Obligations of the United States to share information under a
Regional Fishery Management Organization (RFMO) of which the United
States is a Member; or
(ii) Information collected by NMFS regarding foreign fishing
vessels.
[[Page 102015]]
Sec. 600.420 Release of confidential information.
NMFS will not disclose to the public any information made
confidential pursuant to the Magnuson-Stevens Act, except the agency
may disclose information when:
(a) Authorized by regulations issued by the Secretary to implement
recommendations contained in an FMP prepared by the North Pacific
Council and approved by NMFS to allow disclosure of observer
information to the public of weekly summary bycatch information
identified by vessel or for haul-specific bycatch information without
vessel identification;
(b) Observer information is necessary in proceedings to adjudicate
observer certifications;
(c) Information is required to be submitted to the Secretary for
any determination under a limited access program (LAP). This exception
applies at the level of confidential information that NMFS has used, or
intends to use, for a regulatory determination under a LAP. This
includes information that was submitted before the fishery was a LAP
and that NMFS subsequently uses or intends to use for a LAP
determination. For the purposes of this exception:
(1) Limited Access Program means a program that allocates exclusive
fishing privileges, such as a portion of the total allowable catch, an
amount of fishing effort, or a specific fishing area, to a person.
(2) Determination means a decision that is specific to a person and
exclusive fishing privileges held or sought under a limited access
program. These decisions are allocations, approval or denial of a lease
or sale of allocated privileges or annual allocation, and end of season
adjustments.
(d) Required to comply with a Federal court order. For purposes of
this exception:
(1) Court means an institution of the judicial branch of the U.S.
Federal Government. Entities not in the judicial branch of the Federal
Government are not courts for purposes of this section;
(2) Court order means any legal process which satisfies all of the
following conditions:
(i) It is issued under the authority of a Federal court;
(ii) A judge or magistrate judge of that court signs it; and
(iii) It commands NMFS to disclose confidential information as
defined under Sec. 600.10.
(e) Necessary for enforcement of the Magnuson-Stevens Act or any
other statute administered by NOAA or when necessary for enforcement of
any State living marine resource laws, if that State has a joint
enforcement agreement that is in effect.
(f) A person that is subject to a Magnuson-Stevens Act submission
of information requirement or their designee provides written
authorization to the Secretary authorizing release of such information
to other persons for reasons not otherwise provided for in section
402(b) of the Magnuson-Stevens Act and such release does not violate
other requirements of the Magnuson-Stevens Act. That person or their
designee must prove identity, and authorization to act if serving as a
designee, by a statement consistent with 28 U.S.C. 1746, which permits
statements to be made under penalty of perjury as a substitute for
notarization. The statement of identity, and authority to serve as a
designee, must be in the following form:
(1) If executed outside the United States: ``I declare (or certify,
verify, or state) under penalty of perjury under the laws of the United
States of America that the foregoing is true and correct. Executed on
(date). (Signature)''.
(2) If executed within the United States, its territories,
possessions, or commonwealths: ``I declare (or certify, verify, or
state) under penalty of perjury that the foregoing is true and correct.
Executed on (date). (Signature)''.
Sec. 600.425 Release of information in aggregate or summary form.
NMFS may disclose in any aggregate or summary form information that
is required to be maintained as confidential under these regulations.
0
5. In Sec. 600.725, add paragraph (y) to read as follows:
Sec. 600.725 General prohibitions.
* * * * *
(y) Disclose confidential information without authorization.
[FR Doc. 2024-29366 Filed 12-16-24; 8:45 am]
BILLING CODE 3510-22-P
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</html>Indexed from Federal Register on December 17, 2024.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.