Confidentiality of Information, 17358-17371 [2024-05106]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 89, Number 48 (Monday, March 11, 2024)]
[Proposed Rules]
[Pages 17358-17371]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-05106]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 600

[Docket No. 240304-0067]
RIN 0648-BM26


Confidentiality of Information

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Proposed rule, request for comments.

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SUMMARY: The National Marine Fisheries Service (NMFS) proposes 
revisions to existing regulations governing the confidentiality of 
information submitted in compliance with any requirement or regulation 
under the Magnuson-Stevens Fishery Conservation and Management Act 
(Magnuson-Stevens Act; MSA). The purposes of these revisions are to 
make both substantive and non-substantive changes in light of 
amendments to the MSA under the 1996 Sustainable Fisheries Act (SFA) 
and the 2006 Magnuson-Stevens Fishery Conservation and Management 
Reauthorization Act (MSRA) 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). 
NMFS proposes additional revisions necessary to address some issues 
that concern its application of the MSA confidentiality of information 
requirements to information requests.

DATES: Comments on this proposed rule must be received on or before 
April 25, 2024.

ADDRESSES: You may submit comments on this proposed rule, identified by 
NOAA-HQ-2023-0146, by the following method:
     Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal. Go to https://www.regulations.gov and enter NOAA-HQ-2023-0146, in the Search box. 
Click on the ``Comment'' icon, complete the required fields, and enter 
or attach your comments.
    Instructions: Comments must be submitted by the above method to 
ensure that the comments are received, documented, and considered by 
NMFS. Comments sent by any other method, to any other address or 
individual, or received after the end of the comment period, may not be 
considered. All comments received are a part of the public record and 
NMFS will post them for public viewing on https://www.regulations.gov 
without change. All personal identifying information (e.g., name, 
address, etc.), confidential business information, or otherwise 
sensitive information submitted voluntarily by the sender is publicly 
accessible. NMFS will accept anonymous comments (enter ``N/A'' in the 
required fields if you wish to remain anonymous). Attachments to 
electronic comments will be accepted in Microsoft Word, Excel, or Adobe 
PDF file formats only.
    Electronic Access: Information relevant to this proposed rule, 
which includes a regulatory impact review and a Regulatory Flexibility 
Act certification, is accessible via the internet at: https://www.regulations.gov/docket/NOAA-HQ-2023-0146.

FOR FURTHER INFORMATION CONTACT: Karl Moline at (301) 427-8225 and via 
Email: [email protected].

SUPPLEMENTARY INFORMATION: 

I. Background

    The MSA authorizes the Secretary of Commerce (Secretary) to 
regulate domestic fisheries, seaward of States to the seaward limit of 
the U.S. Exclusive Economic Zone (EEZ). See 16 U.S.C. 1811, 1802(11) 
(further explaining United States sovereign rights to fish and fishery 
management authority and defining EEZ). NMFS implements and administers 
the MSA through authority delegated from the Secretary. Conservation 
and management of fish stocks is accomplished through Fishery 
Management Plans and plan amendments (collectively, FMPs) and 
implementing regulations. To assist in the fishery management process, 
eight regional fishery management councils (Councils) prepare FMPs for 
fisheries within specified geographic areas and submit them to NMFS. 
Id. 1853. NMFS directly prepares and amends the FMP for highly 
migratory species in the Atlantic Ocean, Gulf of Mexico, and Caribbean 
Sea. Id. 1852(a)(3), 1854(g). For any FMPs that it approves, NMFS 
promulgates regulations to effectuate them.
    Information collection is an essential part of the fishery 
management process. Conservation and management measures in FMPs and in 
their implementing regulations must be based

[[Page 17359]]

on the best scientific information available (see National Standard 2, 
16 U.S.C. 1851(a)(2)). Under section 303(a)(5) of the MSA, any FMP must 
specify the pertinent information to be submitted to the Secretary with 
respect to commercial, recreational, or charter fishing, and fish 
processing in the fishery. Id. 1853(a)(5). In addition, section 
303(b)(8) provides that an FMP may require that one or more observers 
be carried onboard a vessel for the purpose of collecting data 
necessary for the conservation and management of the fishery. Id. 
1853(b)(8).
    The MSA sets forth confidentiality of information requirements at 
section 402(b), 16 U.S.C. 1881a(b). Under the MSA as amended, the 
Secretary must maintain the confidentiality of any information that a 
person is required to submit in compliance with any regulation or 
requirement under the Act and any observer information. The MSA defines 
person ``as any individual (whether or not a citizen or national of the 
United States), any corporation, partnership, association, or other 
entity (whether or not organized or existing under the laws of any 
State), and any Federal, State, local, or foreign government or any 
entity of any such government.'' Id. at 1802(36). ``Observer 
information'' is defined as ``any information collected, observed, 
retrieved, or created by an observer or electronic monitoring system 
pursuant to an authorization by the Secretary, or collected as part of 
a cooperative research initiative, including fish harvest or processing 
observations, fish sampling or weighing data, vessel logbook data, 
vessel or processor-specific information (including any safety 
location, or operating condition observation), and video, audio, 
photographic, or written documents.'' Id. at 1802(3)(32).
    The MSA includes exceptions to these confidentiality requirements. 
Some exceptions allow for access to confidential information by 
specified entities provided that these parties treat the information as 
confidential, while other exceptions allow for the release of 
information without restrictions. In addition, the MSA authorizes the 
Secretary to disclose information that is subject to the Act's 
confidentiality requirements 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. at 1881a(b)(3). As 
discussed below, after finalization of this rule, NOAA intends to 
rescind NOAA Administrative Order (NAO) 216-100 that outlines the 
current internal control procedures for confidential information. NMFS 
will replace the NAO with new internal control procedures that apply to 
the collection and maintenance of, and access to and release of, any 
confidential information. NMFS will make these procedures available to 
the public.
    NMFS also notes that the Illegal, Unreported and Unregulated 
Fishing Enforcement Act of 2015 (IUU Fishing Act), Public Law 114-81 
101(b) (Nov. 5, 2015), amended the High Seas Driftnet Fishing 
Moratorium Protection Act (FMPA) to include provisions at 16 U.S.C. 
1826i and 1826g related to MSA confidential information. NMFS 
implements and administers the FMPA through authority delegated from 
the Secretary. Under section 1826i(b)(1), the Secretary is authorized 
to disclose information collected under joint authority of the MSA and 
another statute that implements an international fishery agreement 
(IFA), such as the Atlantic Tunas Convention Act of 1975, id. at 971 et 
seq., to specified governmental bodies if certain conditions are 
satisfied. Section 1826i(b)(2) provides that the confidentiality 
requirements of the MSA are not applicable to information sharing 
obligations of the United States under a Regional Fishery Management 
Organization to which the United States is a member and to information 
collected from foreign fishing vessels. Section 1826g, the enforcement 
section of the FMPA, includes the same text as in section 1826i(b)(2). 
In addition, section 1826g allows for disclosure of information to the 
same governmental bodies in section 1826i(b)(1) and a foreign 
government, if necessary for specified compliance and enforcement 
purposes.
    Section 402(b)(3) of the MSA provides 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 this Act.'' Id. 1881a(b)(3). 
Accordingly, NMFS has promulgated confidentiality regulations, which 
are set forth at 50 CFR part 600, subpart E. Certain terms used in 
these regulations are defined under 50 CFR part 600, subpart A. NMFS 
last revised the regulations under subpart E in February 1998 (63 FR 
7075, February 12, 1998). The revisions were non-substantive.
    On May 23, 2012, NMFS published a proposed rule (77 FR 30486) with 
substantive and clarifying revisions to the confidentiality of 
information regulations at subpart E and provided for public comment on 
that proposed rule through August 21, 2012 (77 FR 35349, June 13, 
2012). Following public comment, on January 13, 2017, NMFS issued a 
document withdrawing the proposed rule (82 FR 4278). In that document, 
NMFS stated that it would like to reevaluate those proposed revisions 
to the regulations.
    NMFS has reevaluated the need for revised confidentiality 
regulations and determined that updates to the regulations at 50 CFR 
part 600 subparts A, B, and E are warranted. Updates and clarifications 
would be helpful in light of amendments made under the 1996 SFA, 2006 
MSRA, 2015 IUU Fishing Act and other changes in law. Additionally, NMFS 
proposes changes to improve the effectiveness of, and address 
inefficiencies in, its current procedures for maintaining the 
confidentiality of information and the collection, transmission, 
management and dissemination of fisheries data. Given that the 
regulations were last revised in 1998, they do not address recent 
methods of collecting observer information through electronic 
monitoring systems (e.g., imagery and video). NMFS intends to update 
and modernize its regulatory framework for protection of confidential 
information to reflect advances in the methods available to evaluate, 
summarize, display, and release data.
    As identified in table 1, this proposed rule, if adopted, would 
reorganize and relabel headers in 50 CFR part 600 subpart E as follows:

  Table 1--Current Structure of 50 CFR Part 600 Subpart E and Proposed
                             Redesignations
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 Current headings and order of sections  Proposed new headings and order
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Subpart E Confidentiality of statistics  Confidentiality of information
Sec.   600.405 Types of statistics       Applicability.
 covered.
Sec.   600.410 Collection and            Protection of confidential
 maintenance of statistics.               information.
Sec.   600.415 Access to statistics....  Access to confidential
                                          information.
Sec.   600.420 Control system..........  Release of confidential
                                          information.

[[Page 17360]]

 
Sec.   600.425 Release of statistics...  Release of information in
                                          aggregate or summary form.
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II. Proposed Changes Addressing the Expanded Scope of the MSA 
Confidentiality Requirements

    When the Fishery Conservation and Management Act (MSA precursor) 
was enacted, its confidentiality requirements applied to ``[a]ny 
statistics submitted to the Secretary''. Public Law 94-265, Title III, 
303(d) (1976). Congress broadened the confidentiality requirements 
through the SFA, Public Law 104-297 (1996) by substituting the word 
``information'' for ``statistics.'' Accordingly, NMFS' proposed rule, 
if adopted, would update the confidentiality regulations under 50 CFR 
part 600 to reflect the change from ``statistics'' to ``information''.
    This proposed rule would also update regulations consistent with 
the 2006 MSRA, Public Law 109-479 (2007). Prior to the 2006 MSRA, the 
confidentiality requirements applied only to information submitted to 
the Secretary in compliance with any requirement or regulation under 
the Magnuson-Stevens Act. The 2006 MSRA amended the confidentiality 
requirements at section 402(b) of the Magnuson-Stevens Act, 16 U.S.C. 
1881a(b), 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. Public Law 109-479, Title II 
203. The 2006 MSRA also amended the confidentiality requirements to 
apply to any observer information, which is now defined under section 
3(32) of the Magnuson-Stevens Act, 16 U.S.C. 1802(3)(32).
    In light of these amendments to the scope of the MSA 
confidentiality requirements, NMFS proposes making the following 
changes to its regulations. NMFS believes that these proposed changes, 
if adopted, would improve the effectiveness of its administration of 
the MSA confidentiality requirements.
    1. Replace the term ``statistics'' with ``information'' in Sec.  
600.130 and all regulations under 50 CFR subpart E;
    2. Delete the definition of ``confidential statistics'' and add a 
definition for ``confidential information'' (Sec.  600.10). Under this 
proposed rule, confidential information would be defined to include 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 MagnusonStevens Act. As 
explained further below in section IV, NMFS proposes that confidential 
information be explicitly defined to not include the following 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 (FOIA), 5 U.S.C. 552(b)(4). As explained further below in section 
III, to implement the FMPA as amended, confidential information would 
be defined to not include fishing effort, catch information and other 
forms of vessel-specific information that the United States must 
provide to a Regional Fishery Management Organization (RFMO) to which 
the United States is a member in order to satisfy any information 
sharing obligations of the respective RFMO. Confidential information 
would also not include any information collected by NMFS under the MSA 
regarding foreign vessels.
    3. Add to the general prohibitions under Sec.  600.725 that it is 
unlawful for any person to use or disclose confidential information 
without authorization. NMFS would enforce that prohibition through a 
civil enforcement action as authorized under MSA 308(a), 16 U.S.C. 
1858(a).
    4. Rename and replace procedures at Sec.  600.410, ``collection and 
maintenance of statistics'' with new internal procedures for protection 
of confidential information. These new procedures, which are described 
below, would specify confidentiality of information requirements for 
information collected by NMFS, a State fisheries management agency, a 
Marine Fisheries Commission (Commission), and companies that provide 
services to collect and/or process observer information. (Sec.  
600.410(b)).

Confidential Information Collected by NMFS (Sec.  600.410(b))

    This new subsection would require NMFS to develop new internal 
procedures that apply to the maintenance of, and access to and release 
of, any confidential information. NMFS' current internal control 
procedures for confidential information are codified at Sec.  
600.415(a) and Sec.  600.420 and in NOAA Administrative Order (NAO) 
216-100. These regulatory procedures are outdated, inefficient, and 
redundant. Further, it is not necessary to document non-regulatory 
internal control procedures in the Code of Federal Regulations. 
Accordingly, NMFS proposes to remove Sec.  600.415(a), which provides 
procedures for determining whether to grant a request to access 
confidential data, and Sec.  600.420, which provides procedures to 
maintain the confidentiality of identifying information in such data. 
In addition, NMFS proposes to rescind NAO 216-100 which further details 
NMFS' policies and procedures for access to and maintenance of 
confidential data. NMFS proposes to replace the regulatory procedures 
under Sec.  600.415(a) and Sec.  600.420, and the policies and 
procedures in NAO 216-100, with updated control procedures. 
Specifically, under this proposed rule, NMFS would be required to 
establish internal control procedures for maintenance of and access to 
any confidential information that satisfy the requirements that are 
proposed under Sec.  600.410(b). NMFS will make these procedures 
available to the public and distribute them to NMFS Regional Offices 
and Science Centers, as well as to Fishery Management Councils, states, 
commissions, and any other partner organizations that may manage 
confidential information. There may be a need for NMFS, Regional 
Offices or Science Center to develop internal control procedures that 
are only applicable to a specific region, data collection program, and/
or fishery. Again, NMFS will make these procedures available to the 
public.

Confidential Information Collected by State Fishery Management Agencies 
or Marine Fisheries Commissions (Sec.  600.410(c))

    This new subsection would revise and expand a procedure that allows 
collection of confidential information by a state or Commission. Under 
the proposed procedure, NMFS may enter into an agreement with a state 
for the

[[Page 17361]]

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. In 
addition, NMFS could enter into such an agreement with a Marine 
Fisheries Commission if NMFS determines that the Commission has 
policies and procedures comparable to the MSA for the protection of 
information and that the Commission will apply them to protect 
confidential information.

Protection of Confidential Information Collected and/or Processed by 
Observer Information Services

Observer Providers (Sec.  600.410(d))
    At present, all at-sea and shoreside observer deployments are 
staffed by contracting companies referred to as observer providers. 
Given the role that observer providers have in the collection of 
observer information--which must be maintained as confidential--NMFS 
proposes to add a definition of observer provider and establish 
procedures for the protection of confidential information collected by 
them. Under this proposed rule, ``observer provider'' would be defined 
as ``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.'' MSA Section 402(b)(2)(C) prohibits 
the disclosure of observer information except as authorized by any 
regulations issued by the Secretary which would allow certain limited 
dissemination of information between observers, observer employers, and 
the Secretary pursuant to a confidentiality agreement that prohibits 
other types of dissemination. Under this authority, NMFS proposes to 
allow the collection of observer information by an observer provider 
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, and each observer and each of its other 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 under 
16 U.S.C. 1858. In addition, as explained further below, a 
confidentiality agreement with an observer provider may allow for the 
sharing of observer information between and among observer providers, 
and observers, for observer training or preparation of observers for 
deployments to specific vessels, or to validate the accuracy of the 
observer information collected.
Electronic Monitoring Service Providers (Sec.  600.410(d))
    Increasingly, fisheries-dependent data are being collected through 
electronic monitoring systems (EM systems), such as cameras and other 
hardware systems that monitor vessel operations and fishery catch. 
Information collected through EM systems--referred to as EM 
information--is a form of observer information under the MSA, and, 
therefore, subject to the Act's confidentiality requirements. NMFS may 
procure services from an EM service provider, or award financial 
assistance to such companies, for the collection and/or analysis of EM 
information. Accordingly, to maintain the confidentiality of EM 
information, NMFS proposes to define ``electronic monitoring service 
provider'' and establish procedures for the protection of confidential 
information managed by such entities. The proposed rule would define 
``electronic monitoring service provider'' as any person who manages 
observer information collected by an EM system required under an MSA 
regulation. Under the proposed rule, NMFS may allow for the management 
of confidential information by an EM service provider pursuant to a 
confidentiality agreement that: (i) Specifies procedures that the 
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 under 16 U.S.C. 
1858. A confidentiality agreement between NMFS and an EM service 
provider may be reflected in the terms and conditions of any NMFS 
issued contract or financial assistance award.
    This procedure would apply only to an EM service provider that is 
providing services to NMFS under a contract, or performing functions 
that require the handling of confidential information under a NMFS 
financial assistance award. In this context, NMFS, as a party to, or 
the issuer of, the funding instrument can effectuate protection of 
confidential information. That is not the case for all industry funded 
EM programs. In some cases, a vessel owner may procure EM services 
directly with an EM service provider and can effectuate confidentiality 
protection through their contact with the provider. As noted above, the 
confidentiality exception at MSA section 402(b)(2)(C) provides for 
limited dissemination of confidential information between observers, 
observer employers, and NMFS pursuant to a confidentiality agreement 
that prohibits other types of dissemination. Because MSA section 
402(b)(2)(C) is specific to observer providers, NMFS would apply a 
different approach to handling confidential information by EM service 
providers. NMFS believes that this approach is appropriate in programs 
when a vessel contracts directly with an EM service provider. In these 
specific EM programs, industry funded EM service providers are 
responsible for storage and maintenance of the vessel owner's 
information.

Scope of Subpart E Regulations

    In making the above-described changes, the proposed rule would 
revise Sec.  600.405 to specify that regulations under subpart E apply 
to confidential information that is under NMFS' custody and control. 
The MSA provides that ``[a]ny 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 shall be 
confidential and shall not be disclosed'' except in certain enumerated 
circumstances. 16 U.S.C. 1881a(b)(1). The MSA further provides that 
``[t]he 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 this 
Act . . .''. Id. at 1881a(b)(3). As such, these regulations are to 
prescribe procedures to preserve the confidentiality of information: 
(a) ``submitted'' to the Secretary, a State fishery management agency, 
or a marine fishery commission; (b) in compliance with a statutory or 
regulatory requirement; and, (c) the requirement must come from the MSA 
and not some other source of authority. Accordingly, these regulations 
do not apply to certain fishery information that collected and 
submitted voluntarily or pursuant to other authority. These regulations 
also do not apply in circumstances when information is collected 
pursuant to a MSA program but not actually submitted to the Secretary, 
State agency or marine fishery commission.
    For information that a person submits to NMFS, a State Fisheries 
Management Agency, or a State Marine Fisheries

[[Page 17362]]

Commission, NMFS will apply the MSA confidentiality requirements only 
if the submission has a nexus to a collection of information mandated 
under a statutory or regulatory provision of the MSA. In some 
instances, NMFS may obtain MSA-required information not through direct 
reporting requirements, but through collection agreements with states 
or Commissions. In such cases, NMFS will apply MSA confidentiality to 
that information because it is submitted in compliance with a 
requirement of the MSA. However, where there is no underlying MSA 
requirement and a person voluntarily submits information, NMFS will not 
apply MSA confidentiality. This would be the case for recreational 
fishing information collected through state and NMFS- conducted 
surveys. Because those surveys are voluntary, MSA confidentiality does 
not apply to information provided in response to them.
    Second, these regulations, and any internal control procedures for 
the protection of confidential information developed pursuant to them, 
would apply only to information that is within NMFS' custody and 
control. NMFS will treat 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 Federal Information Security Management Act domain. Accordingly, 
MSA confidential information that resides with a State Fisheries 
Management Agency, or a State Marine Fisheries Commission will not be 
subject to the procedures to protect the confidentiality of information 
under these proposed regulations. Rather, recognizing that this 
information is collected and held by a state government or an 
interstate compact of state governments, NMFS will continue to work 
with these entities in a non-regulatory fashion to reach mutual 
agreement as to how to maintain the confidentiality of information 
submitted to them pursuant to an MSA requirement. These regulations do 
not independently apply to third parties (such as observer providers or 
electronic monitoring service providers) that collect information for 
NMFS pursuant to a grant, contract, or cooperative agreement. However, 
NMFS will apply the regulatory provisions as appropriate through 
individual terms in the relevant grant, contract, or cooperative 
agreement.
    Nothing in these proposed regulations would apply to confidential 
information that is collected and maintained by an EM service provider 
that contracts directly with the fishing industry. In the procedural 
directive ``Information Law Application for Data and Supporting 
Guidance in Electronic Monitoring Programs for Federally Managed U.S. 
Fisheries'' (May 10, 2022) (Info Law/EM Programs PD), NMFS stated that 
because EM information is a form of observer information under the MSA, 
the confidentiality requirements of the MSA apply to that information. 
However, because confidential information that is collected and 
maintained by third parties is not under NMFS' custody and control, it 
is not subject to these proposed regulations, nor any subsequent 
internal policies or procedures for the protection of confidential 
information that NMFS issues to implement these proposed regulations.
    These regulations, if adopted, would apply only to information that 
is required to be submitted, such as vessel catch information, 
including information collected by an EM service provider that 
contracts directly with the fishing industry. Any confidential 
information retained by a third-party EM service provider whether or 
not submitted to NMFS should be subject to the contractor's procedures 
for protection of vessel owner information that is subject to the MSA's 
broader statutory prohibition on the release of observer information. 
See Info Law/EM Programs PD at II.1B.

III. Proposed Changes Concerning Exceptions to the Confidentiality 
Requirement

    The MSA's confidentiality requirements are also subject to a number 
of exceptions that apply if certain conditions are satisfied. Some 
exceptions simply allow NMFS (or others) to disclose information. Other 
exceptions allow entities to be provided with access to confidential 
information if certain conditions are satisfied and only if access is 
subject to a confidentiality agreement. In addition, a provision of the 
MSA authorizes the Secretary to aggregate or summarize information that 
is subject to the Act's confidentiality requirements into a non-
confidential form ``which does not directly or indirectly disclose the 
identity or business of any person who submits such information.'' 16 
U.S.C. 1881a(b)(3). Non-confidential aggregate or summary form 
information may be released to the public.
    NMFS proposes regulatory changes to address issues that concern 
application of exceptions to the confidentiality requirements and the 
aggregation and summarization provision in the MSA. NMFS presents these 
changes in the following order: First, substantive changes addressing 
instances where otherwise confidential information may be disclosed 
without restrictions or treated as non-confidential; second, 
substantive changes addressing disclosure of aggregated or summarized 
confidential information; and finally, non-substantive changes 
regarding the sharing of confidential information with other entities 
provided that it remains confidential.

A. Proposed Changes Concerning Exceptions to Confidentiality 
Requirements, Where Information Can Be Disclosed Without Restrictions 
or Treated as Non-Confidential

    The following proposed changes address the MSA confidentiality 
exceptions for a limited access program, law enforcement, and written 
authorization for release of information. In addition, the rulemaking 
proposes to define confidential information as not including 
information collected from foreign fishing vessels or provided to an 
RFMO pursuant to section 608 of the FMPA (see proposed Sec.  600.10 
definitions of Confidential Information and Information sharing 
obligation of a Regional Fishery Management Organization (RFMO)). As 
explained in section II, that proposed definition also provides that 
observer information on marine mammal interactions is not confidential 
information.
    1. Limited access program (LAP) exception: While MSA section 402(b) 
generally provides for confidentiality of information, section 
402(b)(1)(G) provides an exception for information that is ``required 
to be submitted to the Secretary for any determination under a limited 
access program.'' Id. 1881a(b)(1)(G). To facilitate the implementation 
of this statutory provision, NMFS proposes definitions for the terms 
``limited access program'' and ``determination.'' NMFS notes that 
information subject to the limited access program exception will be 
considered non-confidential and, as such, could be made available 
publicly.
Proposed Definition for ``Limited Access Program'' (LAP)
    The MSA defines, and has provisions for, a ``limited access 
system'' (LAS) and ``limited access privilege program'' (LAPP), see 16 
U.S.C. 1802(26), (27), 1853(b)(6), and 1853a, but does not define a 
LAP. To develop a proposed definition for that term, NMFS considered 
what limited access management approaches may necessitate a specific 
confidentiality exception for disclosure of information that is 
required to be submitted for

[[Page 17363]]

fishery decision-making. NMFS believes the need is most evident for 
fisheries in which exclusive fishing privileges, such as a portion of a 
fishery's total allowable catch (TAC), are allocated to persons based 
on their historical catch, or other applicable historical fishery 
participation. In these fisheries, generally referred to as ``catch 
share programs,'' the availability of information that NMFS used or 
intends to use to allocate exclusive fishing privileges promotes 
transparency and is integral to pursuit and administration of appeals 
of such determinations. To this end, NMFS is proposing that LAP be 
defined to include specific types of programs defined under the MSA, 
such as section 303A LAPPs and Individual Fishing Quotas as defined at 
MSA (3)(23). Id. 1853a, 1802(23), (26). It would also include other 
management programs that allocate exclusive fishing privileges not 
specifically mentioned in the Act, such as programs that allocate TAC, 
or a portion of the TAC, to a sector or a cooperative or that grant an 
exclusive privilege to fish in a geographically designated fishing 
ground. The Act does not preclude the development of other management 
programs that are similar to LAPPs but fall outside the section 303A 
requirements and provisions. Thus, proposed Sec.  600.420(c)(1) 
includes all of the above in defining ``limited access program'' to 
mean a program that allocates exclusive fishing privileges, such as a 
portion of the total allowable catch (TAC), an amount of fishing 
effort, or a specific fishing area to a ``person'' (as defined by the 
MSA). This definition is consistent with the NOAA Catch Share Policy, 
Policy 01-121 (2017), available at https://media.fisheries.noaa.gov/dam-migration/01-121.pdf.
Proposed Definition for ``Determination''
    Having defined ``limited access program'' consistent with the 
Agency's policy definition of catch share program, NMFS considered what 
actions taken thereunder should be subject to a specific 
confidentiality exception. Here again, what sets catch share programs 
apart from other fishery management strategies is the exclusive 
allocation of fishing privileges; thus, NMFS believes that the 
exception should apply to information that underlies allocations and 
other subsequent decisions by NMFS that apply to a person's privileges. 
Accordingly, proposed Sec.  600.420(c)(2) would define 
``determination'' to mean 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. Id. ``Person'' is defined under MSA section 3(36), 
16 U.S.C. 1802(3)(36), and a determination that concerns a fishery as a 
whole, such as an annual catch limit, would not be considered a 
``determination under a limited access program.''
    Under this approach, participants in catch share fisheries can 
evaluate and verify the accuracy of information that underlies 
allocations and make more informed decisions on whether to pursue an 
appeal of any privileges allocated to them. NMFS believes this approach 
will also facilitate transparency and accountability in NMFS' 
administration of catch share programs.
Additional Issues Regarding the Scope of Information Releasable Under 
the Limited Access Program Exception to the Confidentiality 
Requirements
    Consistent with MSA section 402(b)(1)(G), the proposed rule, if 
adopted, would allow for release of information required to be 
submitted for a LAP determination, even if NMFS has not yet made a 
determination. For example, participants in a LAP may be required to 
submit information to NMFS for the Agency to determine whether the 
participants have fished within their allocated privileges. Under the 
proposed rule, that information could be released even if NMFS has not 
yet made its determination.
    Historical landings or catch information could also be releasable 
to a potential LAP participant and, as such, the proposed regulation 
specifies that the releasable information 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 example, a 
Council could transmit an FMP amendment to NMFS for review that 
includes a new LAP. If NMFS has not yet determined whether to implement 
the recommended FMP amendment through the issuance of a final rule in 
the Federal Register, NMFS may decide that releasing such information 
would be helpful in order to provide sufficient time for vessel owners 
to verify or correct information that will be used for initial 
allocations. Conversely, the exception would not be applicable for a 
Council's consideration of whether to establish a LAP. In that case, 
there would be insufficient facts that demonstrate NMFS' intent to use 
historical landings for a determination under a LAP.
    When the LAP exception is applicable, NMFS proposes that 
information be treated as non-confidential at the level used, or that 
NMFS intends to use, for a limited access program determination. For 
example, if NMFS uses vessel landings for a given 3-year period for 
allocations, the aggregated catch across the 3-year period would be 
subject to disclosure. Conversely, a vessel's yearly, monthly, or trip-
by-trip landings would not be subject to the exception because 
information at that scale was not used for allocation determinations. 
NMFS further proposes to apply the same approach for any vessel-trip-
specific observer information collected for scientific and management 
purposes that NMFS uses or intends to use for a LAP determination.
    NMFS has considered that medical and other personal information may 
be used for certain determinations under limited access programs and, 
therefore, could be within the scope of the confidentiality exception 
contemplated by subparagraph 402(b)(1)(G). For example, such personal 
information may be required for a determination on whether a person is 
unable to fish and, therefore, can transfer their privileges to another 
person. While such information may not be confidential under the 
explicit MSA statutory prohibition, it may be treated as confidential 
or non-releasable pursuant to other statutes such as FOIA. In such 
cases, NMFS would consider whether Exemption Six of the FOIA applies to 
the information. 5 U.S.C. 552(b)(6). Exemption Six authorizes the 
withholding of information about individuals in ``personnel and medical 
files and similar files'' when the disclosure of such information 
``would constitute a clearly unwarranted invasion of personal 
privacy.'' Id. There may be other instances where NMFS applies 
applicable FOIA or other statutory limitations to information that 
otherwise may be disclosable under subparagraph 402(b)(1)(G). For 
example, NMFS may use information on company ownership as part of 
determining eligibility for allocations or whether a person can 
transfer their privileges consistent with applicable quota share caps. 
In such cases, NMFS would consider applying FOIA Exemption Four, which 
protects confidential business information, as appropriate.
    In addition, NMFS notes that non-LAP fisheries may, through 
appropriate Secretarial action, transition to LAPs. In these 
situations, information submitted under a non-limited access program

[[Page 17364]]

fishery may later be relevant for determinations regarding privileges 
under a newly established LAPs. For the same reasons discussed above, 
and to promote efficiency and reduce reporting requirements on the 
regulated industry, NMFS proposes that information previously submitted 
under non-limited access program fisheries that it uses or intends to 
use for determinations under newly established LAPs be treated as 
within the scope of the confidentiality exception under subparagraph 
402(b)(1)(G).
    2. Law enforcement exception: This proposed rule, if adopted, would 
add text to address sections 402(b)(1)(A) and (C) of the Magnuson-
Stevens Act, id. 1881a(b)(1)(A), (C), which provides that confidential 
information may be released to Federal and state enforcement personnel 
responsible for fishery management plan (FMP) enforcement. (Sec.  
600.420(e)). FMPs must be consistent with other applicable laws, 
including but not limited to the Endangered Species Act and the Marine 
Mammal Protection Act. Thus, the proposed rule allows for disclosure of 
confidential information to State and Federal employees for the 
enforcement of marine resources laws. Administrative and judicial 
enforcement systems have procedures to address confidential 
information. In some instances, however, that material may remain 
confidential or it may become part of the public record.
    3. Written authorization exception: Section 402(b)(1)(F) of the MSA 
allows for the release of confidential information ``when the Secretary 
has obtained written authorization from the person submitting such 
information to release such information to persons for reasons not 
otherwise provided for in this subsection, and such release does not 
violate other requirements of this Act.'' 16 U.S.C. 1881a(b)(1)(F). 
This exception, when read in conjunction with the introductory text at 
section 402(b) of the MSA, applies generally to any person that is 
required to submit information in compliance with any requirement or 
regulation under the MSA. Id. at 1881a(b). See section I for definition 
of ``person'' under the MSA, 16 U.S.C. 1802(36).
    The person or persons that are subject to MSA submission of 
information requirements are not uniform and depend on the specific 
permitting and fishery reporting requirements associated with the 
applicable FMP. Recognizing this variability, the proposed rule 
clarifies that the person subject to the applicable submission of 
information requirement is the person authorized to release that 
information. For example, if an MSA regulation requires the owner or 
operator of a vessel to submit catch and fishing activity information 
in a logbook, either the vessel owner or operator could provide written 
authorization for release of the logbook information. To provide 
flexibility, the proposed rule allows the person(s) authorized to 
provide written authorization to designate another person(s) to 
exercise that authority.
    For information collected by a human observer pursuant to 16 U.S.C. 
1853(b)(8), NMFS notes that regional observer programs collect and/or 
create information for: (1) conservation and management purposes, and 
(2) program management and administration. The proposed rule would 
retain NMFS' current practice of allowing the person(s) subject to an 
observer requirement (e.g., owner or operator of a fishing vessel or 
processing facility) to provide written authorization for release of 
information collected by observers for conservation and management 
purposes to include, among other things, data on fishing and fish 
processing, including but not limited to the type and quantity of 
fishing gear used, catch in numbers of fish or weight thereof, areas in 
which fishing was engaged in, and economic information, see id. section 
1853(a)(5), and data on the amount and type of bycatch occurring in the 
fishery, see id. section 1853(a)(11). In the context of fishing sectors 
and cooperatives, the permit holder, vessel owner, or vessel operator 
of each individual vessel within a sector or a cooperative would be 
able to authorize release of observer information collected from his or 
her respective vessel, if they are subject to an observer coverage 
requirement.
    Information created for observer program management and 
administration would not be subject to the written authorization 
exception. Such information includes field notes, journals, diaries, 
incident reports, or other information required under a program's 
administrative procedures. This type of information is used to review 
observer performance, evaluate the observer's data and collection 
methodology, document vessel safety concerns and accommodations, and 
assess any reports of non-compliance with fishery regulations. More 
generally, observer programs use this information to evaluate the 
overall effectiveness of the programs. For example, program 
administrative procedures generally require observers to maintain an 
official logbook (also referred to as field notes, a journal or diary 
which may be retained and submitted in either a hard copy or through 
digital media) that includes technical information related to 
collection and sampling methodologies and notes that concern their work 
while deployed on a vessel. Following completion of a fishing trip, 
observers use their logbooks to answer post-fishing trip questions 
during a debriefing process. Debriefings are generally conducted by 
NMFS personnel at NMFS facilities, although some observer programs may 
have debriefings conducted at observer provider offices by observer 
provider supervisory personnel. NMFS, or the observer provider as 
appropriate, compiles the observer's responses into a post-trip 
debriefing report. Observer providers that are tasked with 
administration of observer debriefings are required to provide 
debriefing reports to NMFS.
    NMFS believes the above approach is consistent with the written 
authorization exception, which provides for the person ``submitting'' 
information to NMFS to authorize release of that information. Observers 
submit information collected for scientific and management purposes to 
the respective observer programs essentially on behalf of the person 
that is required to carry an observer. Allowing this person to 
authorize release of the information collected by the observer on their 
behalf is consistent with the purpose of the exception, which is to 
provide a person that is subject to an information submission 
requirement with access to information that concerns their business. On 
the other hand, information compiled for management and administration 
of the observer program is not required to be ``submitted'' to NMFS by 
statute or regulation. It is created as a result of program 
administrative procedures and should be treated as internal program 
information. As such, this information would not be subject to 
disclosure under the written authorization exception or under FOIA. In 
withholding debriefing reports, for example, NMFS would apply MSA 
section 402(b)(2), which prohibits disclosure of observer information 
and would apply FOIA Exemption Three, which, as explained above, 
authorizes the withholding of information that is prohibited from 
disclosure under another Federal statute.
    NMFS also proposes to take the same approach on the handling of 
catch monitor information collected at shoreside processors. 
Information that a catch monitor collects at a shoreside facility is 
not, by definition, observer information because such catch monitors 
are not carried on a vessel. See 16 U.S.C. 1802(32) (quoted above, 
defining an observer as a person who is

[[Page 17365]]

``carried on a vessel''). Nonetheless, when such data collection is 
required pursuant to the MSA, NMFS will take a similar approach as with 
observer information for purposes of the written authorization 
exception. NMFS would allow a shoreside processor (owner, operator, or 
other person subject to the information submission requirement) to 
execute written authorization for access to and release of information 
that is collected for conservation and management purposes, but not 
information collected for observer program management and 
administration.
    After finalization of this rulemaking, NMFS intends to streamline 
its processes for a person that is subject to an information submission 
requirement to authorize release of information pursuant to the written 
authorization exception. These improvements would create more 
uniformity and efficiencies across regions and provide details to 
persons who are subject to MSA information reporting requirements on 
how they can use the written authorization exception.
    To prevent an unauthorized disclosure of confidential information, 
NMFS proposes at Sec.  600.420(f) that a person or their designee who 
submits a written authorization prove their identity by a statement 
consistent with 28 U.S.C. 1746, which permits statements to be made 
under the penalty of perjury as a substitute for notarization.
    4. Section 608 of the FMPA, as amended by the 2015 IUU Fishing 
Enforcement Act, provides that the MSA confidentiality provisions shall 
not apply with respect to the FMPA--

for obligations of the United States to share information with a 
regional fisheries management organization (as that term is defined by 
the United Nations Food and Agriculture Organization Agreement on Port 
State Measures to Prevent, Deter, and Eliminate Illegal, Unreported, 
and Unregulated Fishing [PSMA]); or to any information collected by the 
Secretary regarding foreign vessels.

16 U.S.C. 1826i(b)(2)(A)-(B). The term ``Regional Fisheries Management 
Organization'' (RFMO) means ``an intergovernmental fisheries 
organization or arrangement, as appropriate, that has the competence to 
establish conservation and management measures.'' PSMA at Art. 1(i). 
Section 606(d)(2)(B) of the FMPA, 16 U.S.C. 1826g(d)(2)(B), includes 
substantively the same provision as in section 608(b)(2).
    Consistent with the above statutory provisions, NMFS proposes to 
define confidential information so as not to include fishing effort, 
catch information and other forms of vessel-specific information that 
the United States must provide to an RFMO to which the United States is 
a member in order to satisfy any information sharing obligations of the 
respective RFMO. NMFS proposes at Sec.  600.10 to define an information 
sharing obligation of an RFMO as a measure, or part thereof, which 
creates a binding requirement on the United States to report certain 
information by virtue of its membership in the respective RFMO.
    Additionally, NMFS proposes to define confidential information so 
as not to include any information collected by NMFS under the MSA 
regarding foreign vessels. Id.

B. Proposed Changes Allowing Disclosure of Confidential Information 
Where Limitations Apply to Further Disclosure

    NMFS proposes the following changes concerning confidentiality 
requirement exceptions that allow for information to be shared with 
other entities, provided that specified precautions are undertaken to 
protect the information. Some are updates to the regulations to reflect 
statutory amendments to the MSA confidentiality provisions. Other 
changes are proposed to facilitate Council use of confidential 
information for performance of their functions and those of Council 
subsidiary bodies.
    1. Adding proposed Sec.  600.410(d)(3) related to MSA section 
402(b)(2)(C), which authorizes the sharing of observer information 
between and among observer providers, and observers, for observer 
training or preparation of observers for deployments to specific 
vessels, or to validate the accuracy of the observer information 
collected. Id. 1881a(b)(2)(C). Under these procedures, NMFS could make 
observer information available to observer providers to prepare an 
observer for a deployment on a specific vessel so that they have 
greater awareness of the possible circumstances on a vessel that could 
affect their health and safety while deployed. Any relevant observer 
information could be made available between and among observer 
providers and observers but otherwise held confidentially. This could 
include observer reports of violence, harassment, intimidation, or 
illicit or reckless behavior by a vessel's crew or operator, and other 
types of negative or positive experiences while onboard a vessel. In 
addition, observer reports of vessel conditions to include its 
accommodations and facilities could also be made available.
    2. Adding proposed Sec.  600.415(a)(1)(ii) related to MSA section 
402(b)(1)(H), which authorizes the disclosure of confidential 
information in support of homeland and national security activities.
    3. Adding proposed Sec.  600.415(a)(3) related to MSA section 
402(b)(1)(C), which authorizes the disclosure of confidential 
information to state employees responsible for FMP enforcement pursuant 
to a Joint Enforcement Agreement with NMFS.
    4. Adding proposed Sec.  600.415(a)(2) related to MSA section 
402(b)(1)(B), which authorizes the disclosure of confidential 
information to state or Marine Fisheries Commission employees as 
necessary to further the mission of the Department of Commerce.
    5. Revising a provision under which confidential information can be 
disclosed to Council members for use by the Council for conservation 
and management purposes (Sec.  600.415(a)(4)(ii)). Under MSA section 
402(b)(3), the Secretary may approve a Council's use of confidential 
information for conservation and management purposes. 16 U.S.C. 
1881a(b)(3). NMFS' current confidentiality regulations implement this 
authority under Sec.  600.415(d)(2). That regulation authorizes NMFS to 
grant a Council access to confidential information upon written request 
by the Council Executive Director. In determining whether to grant 
access, NMFS must consider, among other things, the ``possibility that 
the suppliers of the data would be placed at a competitive disadvantage 
by public disclosure of the data at Council meetings or hearings.'' Id. 
During development of this proposed action, a question was raised 
regarding whether this text allows public disclosure of information 
that was released to a Council under this procedure. As MSA section 
402(b)(3) provides for disclosure of information for use by a Council, 
and not to the public at large, NMFS is proposing to delete the text 
about public disclosure.
    6. Adding provisions to authorize release of confidential 
information to a Council's scientific and statistical committee (SSC) 
(Sec.  600.415(a)(4)(iii)), and advisory panels (APs) (Sec.  
600.415(a)(4)(iv)). Under the Magnuson-Stevens Act as amended by the 
2006 MSRA, Councils must establish, maintain, and appoint the members 
of an SSC. 16 U.S.C. 1852(g)(1)(A). Members appointed by Councils to 
SSCs shall be Federal or

[[Page 17366]]

state employees, academicians, or independent experts. Id. 
1852(g)(1)(C). The role of the SSC is, among other things, to assist 
the Council in the development, collection, evaluation and peer review 
of statistical, biological, economic, social, and other scientific 
information as is relevant to the Council's development and amendment 
of any FMP. Id. 1852(g)(1)(A). Furthermore, the SSC is required to 
provide its Council ongoing scientific advice for fishery management 
decisions, including, among other things, recommendations for 
acceptable biological catch and preventing overfishing and reports on 
stock status and health, bycatch, and social and economic impacts of 
management measures. Id. 1852(g)(1)(B). The Magnuson-Stevens Act 
further provides that each Council shall establish ``advisory panels as 
are necessary or appropriate to assist it in carrying out its functions 
under [the] Act.'' Id. 1852(g)(2). As with SSCs, APs serve an important 
role in providing recommendations to a Council on development of FMPs 
and Plan Amendments, specifications, management measures and other 
conservation and management matters.
    To carry out their responsibilities, SSC and AP members may need to 
evaluate confidential information. NMFS may release confidential 
information to Federal and state employees appointed to a Council's SSC 
or APs as provided under Magnuson-Stevens Act section 402(b)(1)(A) and 
(B). However, the existing confidentiality regulations do not address 
release of confidential information to academicians or independent 
experts appointed to an SSC or AP. Because all members of a Council's 
SSC or APs may need to evaluate confidential information, NMFS proposes 
to add procedures through which a Council can request, through its 
Executive Director, that members of the Council's SSC or AP that are 
not Federal or state employees be granted access to confidential 
information. NMFS proposes to add these procedures pursuant to 
Magnuson-Stevens Act section 402(b)(3), which authorizes the Secretary 
to approve the release and use of confidential information by a Council 
for fishery conservation and management. Given the statutory role that 
a Council's SSC and any of its APs have in development and amendment of 
any FMP, NMFS believes that establishing a process for releasing 
confidential information to an SSC or AP is consistent with the 
statutory authorization that allows a Council to use confidential 
information for making its recommendations on fishery conservation and 
management. NMFS recognizes the concern that members of an SSC or an 
AP, who are not Federal or state employees, may gain personal or 
competitive advantage through access to confidential information. To 
address this concern, the proposed procedures would require NMFS to 
approve any request from a Council Executive Director that confidential 
information be released to the Council for use by SSC or AP members who 
are not Federal or state employees. In making a decision regarding such 
a request, NMFS must consider whether those SSC or AP members might 
gain personal or competitive advantage from access to the information.
    7. Adding proposed Sec.  600.420(b) related to MSA 402(b)(2)(B), 
which authorizes the release of observer information when the 
information is necessary for proceedings to adjudicate observer 
certifications.
    8. Disclosure to agencies of state, Federal, or foreign 
governments, the Food and Agriculture Organization (FAO) of the United 
Nations, or the Secretariat, or equivalent, of a body made pursuant to 
an international fishery agreement.
    Section 608 of the FMPA, as amended by the 2015 IUU Fishing 
Enforcement Act, provides that, subject to MSA confidentiality 
provisions except as provided in section 608(b)(2) (discussed in 
section III(A)(4)), the Secretary may disclose, as necessary and 
appropriate, 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 
FAO, or the Secretariat or equivalent of an international fishery 
management organization or arrangement made pursuant to an 
international fishery agreement (IFA) if such government, organization, 
or arrangement, respectively, has policies and procedures to protect 
confidential information from unintended or unauthorized disclosure. 16 
U.S.C. 1826i(d)(1). The FMPA does not define ``international fishery 
agreement'' but the term ``international fishery management agreement'' 
is defined under its implementing regulations as ``any bilateral or 
multilateral treaty, convention, or agreement for the conservation and 
management of fish.'' 50 CFR 300.201. To implement section 608 of the 
FMPA, proposed section 600.415(a)(6) provides that NMFS may disclose 
confidential information to employees of state or Federal government 
agencies, the FAO, or the Secretariat or equivalent of a body made 
pursuant to an international fishery agreement (IFA) (defined the same 
as ``international fishery management agreement'' at 50 CFR 300.201) 
provided that NMFS determines (in coordination with the U.S. Head of 
Delegation for disclosures to the FAO, RFMOs, or other relevant 
international body) that: (i) the disclosure is necessary and 
appropriate under section 608 of the High Seas Driftnet Fishing 
Moratorium Protection Act (16 U.S.C. 1826i), and; (ii) the applicable 
government agency, FAO, or Secretariat or equivalent of a body made 
pursuant to an IFA will apply policies and procedures to protect 
confidential information from unintended or unauthorized disclosure. 
Data sharing under proposed Sec.  600.415(a)(6) may include disclosures 
to scientific committees and other subsidiary bodies of an organization 
or arrangement made pursuant to an IFA. NMFS intends to develop a 
protocol that reflects the requirements of proposed Sec.  600.415(a)(6) 
in its internal control procedures under Sec.  600.410(b).
    NMFS notes that section 606 of the FMPA (Enforcement), 16 U.S.C. 
1826g(d)(2), includes a disclosure authorization that is the same as 
that in section 608, 16 U.S.C. 1826i(d)(1), except in two respects. 
First, section 606 additionally allows for disclosure of information to 
a foreign government. Id. at 1826g(d)(2). Second, in addition to being 
necessary and appropriate, a disclosure under section 606 must be 
necessary to ensure, administer, or assist with at least one of five 
enumerated compliance and enforcement purposes. Id. at 
1826g(d)(2)(A)(ii)(I)-(V). Given the overlap of section 606 with 
section 608, NMFS proposes that the procedures for implementation of 
section 608 also apply to disclosures under section 606, except for 
disclosures to a foreign government. In such cases, the proposed Sec.  
600.415(a)(7) requires that the disclosure meet the requirements of 
Sec.  600.415(a)(6) and be necessary to ensure, administer, or assist 
with at least one of five enumerated compliance enforcement purposes.
    In the course of negotiating binding provisions for information 
sharing under a bilateral or multilateral treaty or other agreement, 
NMFS, working with other U.S. government representatives as 
appropriate, will ensure that the information sharing provisions are 
necessary and appropriate for the scientific, management, or 
enforcement purposes of the agreement, and that the body receiving the 
information has or will have policies and procedures in

[[Page 17367]]

place to prevent unintended disclosure. NMFS, coordinating with the 
relevant Head of Delegation for the United States, as needed for 
disclosures to the FAO, RFMOs, or other relevant international body, 
will confirm that the above two conditions have been met prior to the 
United States agreeing to and/or providing information pursuant to 
information sharing provisions under the agreement or measures adopted 
pursuant to the agreement.

IV. Proposed Changes Requiring the Protection of Business Information 
in Releases of Information in Aggregate or Summary Form

    The MSA at section 402(b)(3) provides that ``the Secretary may 
release or make public any information submitted in compliance with any 
requirement or regulation under the Magnuson-Stevens Act in any 
aggregate or summary form which does not directly or indirectly 
disclose the identity or business of any person who submits such 
information.'' 16 U.S.C. 1881a(b)(3). Current regulations at 50 CFR 
600.10 and 400.425(a) focus on protection of a submitter's identity, 
but do not address a submitter's business information. Section 600.10 
includes a definition of ``aggregate or summary form'' that allows for 
the public release of confidential information if it is ``structured in 
such a way that the identity of the submitter cannot be determined 
either from the present release of the data or in combination with 
other releases.'' The regulations also state that the AA will not 
release information ``that would identify the submitter, except as 
required by law.'' Id. Sec.  600.425(a).

Application of Protection Beyond Identity to Financial and Operational 
Information

    NMFS reviewed the legal and policy basis for this approach as part 
of its development of revised regulations for implementation of the 
2006 MSRA and the 1996 SFA. It appears that NMFS historically 
interpreted the two different elements of MSA 402(b)(3)--''identity of 
any person'' and ``business of any person''--to mean a submitter's name 
or the name of their business. Based on its reassessment of MSA section 
402(b)(3), NMFS proposes to revise the regulatory definition of 
``aggregate or summary form'' to explicitly address ``business of any 
person'' and to add a specific definition for that term.
    The MSA does not define ``business of any person,'' and NMFS 
acknowledges that it could be subject to different interpretations. 
After considering the types of information that may be collected, 
generated, or used in commercial activities related to fishing, and the 
commonly understood meaning of ``business of any person,'' NMFS 
proposes to define that term at Sec.  600.10 as meaning financial and 
operational information. Financial information would include ownership 
information, information in cash flow documents and income statements, 
and information that contributes to the preparation of balance sheets. 
Operational information would include data such as, fishing locations, 
time of fishing, type and quantity of gear used, catch by species in 
numbers or weight thereof, number of hauls, number of employees, 
estimated processing capacity of, and the actual processing capacity 
utilized, by U.S. fish processors. By providing these definitions, NMFS 
limits releases to an aggregate or summary form which does not disclose 
the specified financial and operational information of a person.
    When responding to FOIA requests for MSA confidential information, 
NMFS takes into consideration FOIA Exemption Three, 5 U.S.C. 552(b)(3), 
and other relevant FOIA exemptions, such as Exemption Six which applies 
to privacy information. FOIA Exemption Three applies to information 
that is exempted from disclosure by another statute. NMFS interprets 
MSA section 402(b) to exempt from disclosure information that would 
directly or indirectly disclose the identity or business of any person. 
As explained above, this proposed rule, if adopted, would require NMFS 
to consider both factors--not just identity--when applying the 
aggregate or summary form provisions of the regulations. While this 
could result in more information being withheld, NMFS believes that 
detailed and useful information will continue to be disclosed under the 
aggregate or summary form provisions.

Observer Information on Interactions With Marine Mammals and Endangered 
Species Act (ESA)-Listed Species

    In developing this proposed rule, NMFS considered whether its 
definition for ``confidential information'' should include observer 
information that concerns interactions with marine mammals and ESA-
listed species. As explained below, NMFS proposes to exclude from the 
definition of ``confidential information'' vessel-specific observer 
information on interactions with marine mammals, while interactions 
with ESA-listed species would be ``confidential'' within the scope of 
that definition.
    Release of observer information that concerns interactions with 
marine mammals would advance implementation of statutory mandates under 
the Marine Mammal Protection Act (MMPA). For example, this information 
is critical for deliberations by Take Reduction Teams (TRTs) that are 
convened under section 118(f)(6)(A) of the MMPA. 16 U.S.C. 
1387(f)(6)(A)(i). TRTs established under the MMPA must meet in public 
and develop plans to reduce incidental mortality and serious injury of 
marine mammals in the course of commercial fishing operations. See Id. 
at 1387(f)(6)(D) (public meetings) and 1387(f) (development of take 
reduction plans). Specific details about interactions with marine 
mammals that occurred during commercial fishing operations are critical 
to developing a plan. Id. 1387(f). This information is often available 
only through observer records. Without detailed observer information on 
interactions with marine mammals, TRTs may be unable to develop 
targeted take reduction plans to reduce bycatch of marine mammals 
pursuant to the statutory mandate.
    Furthermore, the MMPA requires fishermen to report all incidental 
mortality and injury of marine mammals, including the species killed or 
injured, the date, time, and geographic location of such occurrence (16 
U.S.C. 1387(e)), and this self-reported information is not subject to 
the MSA confidentiality requirements.
    For these reasons, NMFS proposes in Sec.  600.10 that the 
definition of ``confidential information'' exclude the following 
observer information on marine mammal protected species interactions: 
species of each marine mammal incidentally killed or injured; the date, 
time, and geographic location of the take; and information regarding 
fishing practices and gear used in the take that would not constitute a 
trade secret under FOIA, 5 U.S.C. 552(b)(4).
    However, because the ESA does not include similar specific mandates 
relative to managing fisheries interactions with ESA-listed species, 
vessel-specific observer information on interactions with ESA species 
would be treated as confidential information under this proposed rule. 
If the ESA-listed species were marine mammals, then the information 
would be treated per the MMPA confidentiality requirements at 16 U.S.C. 
1387(d)(8), implemented at 50 CFR 229.11. Nonetheless, NMFS' 
implementation of the ESA is facilitated by the use of detailed 
information on interactions with listed species. For example, NMFS may 
need to analyze detailed information about commercial fisheries 
interactions with species listed under the ESA as part of 
implementation of its Section 7 consultation for MSA-

[[Page 17368]]

managed fisheries. See 402.14(g)(8) (requirements for biological 
opinions). Where such information is confidential for MSA purposes, 
NMFS will only use it internally and any public facing documents will 
present that information in a non-confidential aggregate or summary 
form that does not disclose submitter identity or their business 
information.
    However, NMFS notes that it will use, and may publicly disclose, 
vessel-specific information on interactions with ESA-listed species 
where that information is only collected under the ESA and as such not 
MSA confidential information. For example, under NMFS' sea turtle 
observer requirement issued under the ESA, NMFS determines on an annual 
basis the commercial and recreational fisheries that may be required to 
carry an observer to monitor potential interactions with sea turtles 
(50 CFR 222.401-404). Because the ESA does not have confidentiality of 
information requirements, vessel-specific interactions with ESA-listed 
species collected by observers who are deployed only under the ESA sea 
turtle rule are not treated as confidential information. In the context 
of information collected only under the ESA, the MSA confidentiality 
requirements are inapplicable. NMFS may develop rules similar to the 
ESA sea turtle rules that provide for deployment of observers under the 
ESA to monitor take of species listed under that authority. More 
broadly, NMFS intends to explore whether there are other options for 
release of ESA species interaction data notwithstanding the MSA 
confidentiality requirements.
    However, even if MSA confidentiality does apply, NMFS can use 
vessel-specific information on interactions with ESA-listed species 
internally and in a manner that is protective of submitter identity and 
their business information. Under MSA 402(b)(1)(A), employees of NMFS 
and Councils who are responsible for FMP development, monitoring, or 
enforcement may access confidential information. FMPs must be 
consistent with the ESA and other applicable law. Thus, consistent with 
applicable control procedures for protection of confidential 
information, NMFS has and will continue to ensure access to MSA 
confidential information for compliance with ESA mandates. This 
includes internal use of MSA confidential information for Section 7 
consultations when developing FMPs and plan amendments, for monitoring 
requirements that apply under Biological Opinions, and any other 
actions needed to implement the ESA.
    In addition, NMFS intends to develop specific strategies and 
techniques for aggregation of vessel-specific information on 
interactions with ESA species. In many instances, NMFS has sufficient 
data for release of ESA interaction information in an aggregate or 
summary form that does not directly or indirectly disclose the identity 
or business of any person. However, when such events are rare, 
typically employed spatial and temporal aggregation methods do not 
yield results that satisfy a generally applicable level of aggregation 
necessary to protect confidential information. NMFS believes that the 
rarity of interactions with ESA-listed species should be taken into 
account when structuring that information in an aggregated manner and 
determining whether any aggregate form would disclose a submitter's 
identity or business.
    Lastly, as discussed above and as a proposed change to 50 CFR 
600.410, NMFS intends to revise its internal control procedures in 
accordance with the statutory changes and with this proposed 
regulation. As part of these control procedures, NMFS will include 
``procedures for aggregating confidential data and responding to 
requests for non-confidential information.'' NMFS will make these 
procedures available to the public.

V. Proposed Changes Clarifying NMFS' Confidentiality Regulations

    NMFS proposes the following non-substantive changes intended to 
improve the clarity and accuracy of the regulations.
    1. Removing the existing language at Sec.  600.410(a)(2) that 
states ``After receipt, the Assistant Administrator will remove all 
identifying particulars from the statistics if doing so is consistent 
with the needs of NMFS and good scientific practice.''
    Through experience, NMFS has found that maintaining identifying 
information is necessary for programmatic needs, including FMP 
monitoring, quota share allocations, capacity modeling, and LAP 
development. Accordingly, NMFS would no longer require the removal of 
identifiers from confidential information when NMFS uses the 
information to complete programmatic actions. However, NMFS would 
preserve the confidentiality of identifying information unless an 
exception allows for release.
    2. The authorization to disclose information under section 
402(b)(1)(B), as amended by the MSRA and codified in the United States 
Code, appears to have a typographical error. Prior to the MSRA, section 
402(b)(1)(B) authorized the release of confidential information to 
``State or Marine Fisheries Commission employees pursuant to an 
agreement with the Secretary that prevents the public disclosure of the 
identity or business of any person.'' Section 402(b)(1)(B) as amended 
by the MSRA provides that confidential information may be disclosed 
``to State or Marine Fisheries Commission employees as necessary to 
further the Department's mission, subject to a confidentiality 
agreement that prohibits public disclosure of the identity of business 
of any person.'' NMFS believes that this was a typographical error, and 
that Congress intended the text to say ``identity or business,'' 
consistent with how that phrase appears in section 402(b)(3). As such, 
this proposed rule uses the phrase ``identity or business'' with regard 
to the section 402(b)(1)(B) text.

VI. Classification

    The NMFS Assistant Administrator has determined that this proposed 
rule is consistent with section 402(b) of the Magnuson-Stevens Act and 
other applicable law, subject to further consideration after public 
comment.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    This action does not contain a collection-of-information 
requirement for purposes of the Paperwork Reduction Act.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this proposed rule, if adopted, would not have a 
significant economic impact on a substantial number of small entities, 
as follows:
    The confidentiality of information requirements under MSA section 
402(b) are implemented at 50 CFR part 600, subparts B and E. Certain 
terms used in these regulations are defined under 50 CFR part 600, 
subpart A. This proposed action would revise 50 CFR part 600, subparts 
A, B and E to conform with the Magnuson-Stevens Act as amended by the 
2006 Magnuson-Stevens Fishery Conservation and Management 
Reauthorization Act and the 1996 Sustainable Fisheries Act and with 
2015 amendments to the Moratorium Protection Act related to MSA 
confidentiality of information. Consistent with those amendments, this 
proposed action requires the confidentiality of information collected 
by NMFS observers, revises exceptions that authorize the disclosure of 
confidential information, and adds three new disclosure exceptions. In 
addition,

[[Page 17369]]

this action proposes updates to reflect NMFS' policy on the release of 
MSA confidential information in an aggregate or summary form.
    This proposed action applies to agency policies and procedures for 
the handling of information required to be maintained as confidential 
under MSA section 402(b). Adoption of the proposed revisions would not 
have a significant economic impact on a substantial number of small 
entities. The proposed revisions would also apply to private companies 
that provide observer staffing and electronic monitoring (EM) services 
to support NMFS and industry-sponsored programs. Nine private companies 
currently provide observers on a seasonal or ongoing basis to support 
the collection of information in 42 U.S. fisheries. In addition, there 
are 10 EM service providers operating in U.S fisheries; 6 of them also 
provide observer staffing support. Of the 10 EM service providers, 1 
directly contracts with NMFS to conduct monitoring and the others are 
considered industry-sponsored programs.
    The proposed regulations require observer providers and EM service 
providers to take steps to maintain the confidentiality of information 
including the means to secure and store confidential information. The 
costs to meet this requirement are minimal and all observer providers, 
and EM service providers, that currently contract with NMFS or provide 
observers under industry-sponsored programs already have appropriate 
measures in place. Accordingly, no initial regulatory flexibility 
analysis is required, and none has been prepared.

Lists of Subjects in 50 CFR Part 600

    Confidential business information, Fisheries.

    Dated: March 5, 2024.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, NMFS proposes to amend 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. Removing the definitions of ``Confidential statistics'' and ``Data, 
statistics, and information'';
0
b. Revising the definition of ``Aggregate or summary form''; and
0
c. Adding, in alphabetical order, definitions for ``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.''
    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, 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:
    (1) 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);
    (2) Fishing effort, catch information, and other forms of vessel-
specific information that the United States must provide to a Regional 
Fishery Management Organization (RFMO) to which the United States is a 
member in order to satisfy any information sharing obligations of the 
respective RFMO;
    (3) Any information collected by NMFS under the MSA regarding 
foreign vessels.
* * * * *
    Electronic Monitoring Service Provider means any person who manages 
observer information collected by an electronic monitoring system 
required under an MSA regulation.
* * * * *
    Information sharing obligation of a Regional Fishery Management 
Organization (RFMO) means a measure, or part thereof, which 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 and 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

[[Page 17370]]

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.
    (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(a)(4);
    (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;
    (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) Regarding 
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, and each observer and 
each of its other employees who will handle confidential information, 
acknowledge the requirement to maintain the confidentiality of observer 
information and the criminal and 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 and 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; 
or,
    (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)).
    (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 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 Executive Director may 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 the 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 Act, but only if NMFS 
determines that access will not result in any Member having a personal 
or competitive advantage;
    (4) Members of the Council's 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.
    (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

[[Page 17371]]

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) Employees of state or Federal government agencies, the Food and 
Agriculture Organization (FAO) of the United Nations, or the 
Secretariat or equivalent of a body made pursuant to an international 
fishery agreement (IFA) (defined the same as international fishery 
management agreement at 50 CFR 300.201), provided that NMFS determines 
(in coordination with the U.S. Head of Delegation for disclosures to 
the FAO, RFMOs, or other relevant international body) that:
    (1) The disclosure of confidential information is authorized, 
necessary and appropriate under section 608 of the High Seas Driftnet 
Fishing Moratorium Protection Act (16 U.S.C. 1826i); and
    (2) The applicable government agency, FAO, or Secretariat or 
equivalent of a body made pursuant to an IFA will apply policies and 
procedures to protect confidential information from unintended or 
unauthorized disclosure.
    (g) Employees of agencies or entities described under paragraph 
(a)(6) or any foreign government provided that NMFS determines that:
    (1) Disclosure of confidential information is authorized, necessary 
and appropriate for a compliance or enforcement purpose enumerated 
under section 606 of the High Seas Driftnet Fishing Moratorium 
Protection Act (16 U.S.C. 1826g(d)(2)(A)); and
    (2) The applicable agency, entity, or foreign government will apply 
policies and procedures to protect confidential information from 
unintended or unauthorized disclosure.


Sec.  600.420  Release of confidential information.

    NMFS will not disclose to the public any information made 
confidential pursuant to the Magnuson Stevens Fishery Conservation and 
Management 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 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 Act and such release does not violate other requirements 
of the 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 (x) to read as follows:


Sec.  600.725  General prohibitions.

* * * * *
    (x) Disclose confidential information without authorization.

[FR Doc. 2024-05106 Filed 3-8-24; 8:45 am]
BILLING CODE 3510-22-P