Confidentiality of Information, 102000-102015 [2024-29366]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 89, Number 242 (Tuesday, December 17, 2024)]
[Rules and Regulations]
[Pages 102000-102015]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-29366]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 600

[Docket No. 241209-0318]
RIN 0648-BM26


Confidentiality of Information

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

ACTION: Final rule.

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SUMMARY: NMFS is issuing this final rule to revise existing regulations 
pertaining to confidentiality of information requirements under the 
Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-
Stevens Act or MSA). This rule updates the regulations consistent with 
the 2006 Magnuson-Stevens Fishery Conservation and Management 
Reauthorization Act (MSRA) and 1996 Sustainable Fisheries Act (SFA) and 
amendments to the High Seas Driftnet Fishing Moratorium Protection Act 
(FMPA) under the 2015 Illegal, Unreported and Unregulated Fishing 
Enforcement Act (IUU Fishing Act). The final rule provides other 
revisions to address issues that concern NMFS' internal control 
procedures (ICPs) for management of MSA confidentiality of information.

DATES: Effective January 16, 2025.

ADDRESSES: A plain language summary of this rule is available at: 
https://www.regulations.gov/docket/NOAA-HQ-2023-0146.
    Electronic Access: Information relevant to this proposed rule, 
which includes a final regulatory impact review and a Regulatory 
Flexibility Act certification, is accessible via the internet at: 
https://www.regulations.gov/docket/NOAA-HQ-2023-0146/.

FOR FURTHER INFORMATION CONTACT: Karl Moline, 301-427-8225, or at NMFS, 
Operations, Management, & Information Division F/ST3, Ste. 12300, 1315 
East West Highway, Silver Spring, MD 20910.

SUPPLEMENTARY INFORMATION: Section 402(b) of the MSA provides that 
``any information submitted to the Secretary, a State fishery 
management agency, or a marine fisheries commission by any person in 
compliance with the requirements of this Act,'' 16 U.S.C. 1881a(b)(1), 
and ``[a]ny observer information,'' id. 1881a(b)(2), ``shall be 
confidential and shall not be disclosed'' except pursuant to certain 
exceptions. Section 402(b)(3) requires that the Secretary ``shall, by 
regulation, prescribe such procedures as may be necessary to preserve 
the confidentiality of information submitted in compliance with any 
requirement or regulation under [the MSA],'' but the Secretary may 
release confidential information ``in any aggregate or summary form 
which does not directly or indirectly disclose the identity or business 
of any person who submits such information.'' Id. 1881a(b)(3). NMFS 
regulations implementing MSA section 402(b) are at 50 CFR part 600, 
subpart E, and there are confidentiality related definitions and 
references at 50 CFR 600.10 and 600.130. NMFS published a proposed rule 
in the Federal Register on March 11, 2024 (89 FR 17358). Comments were 
invited and accepted through April 25, 2024. NMFS received 36 
individual comments, including 1 letter that contained 5,040 
signatures. NMFS responses are addressed in the Response to Comments 
section below. After considering public comments submitted for the 
proposed rule, NMFS is implementing the final rule with some changes.

Background

    The agency last revised the confidentiality regulations in February 
1998 (63 FR 7075, February 12, 1998). A number of statutory changes 
have been enacted since 1998, and this rule provides important updates 
and clarifications to the confidentiality regulations to reflect those 
statutory changes. The 2006 MSRA (Pub. L. 109-479) made three major 
changes to the confidentiality provisions at MSA section 402(b). First, 
the MSRA added a provision specifying that observer information 
(defined at 16 U.S.C. 1802(32)) shall be confidential and shall not be 
disclosed except pursuant to specified exceptions. 16 U.S.C. 
1881a(b)(2). One such exception at MSA section 402(b)(1)(F) authorizes 
release of confidential information based on written authorization from 
the person submitting such information. Id. 1881a(b)(1)(F). The 
proposed rule distinguished between observer information that is 
collected onboard a vessel for scientific and management purposes and 
information collected for administration of the observer program and 
allowed a vessel permit holder to execute a written authorization only 
for the first category of information. See 89 FR 17358, 17364 (March 
11, 2024) (explaining basis for proposed rule approach, which retains 
current agency practice).
    Second, the MSRA added a new exception that authorizes the 
Secretary to disclose confidential information when such information is 
required to be submitted to the Secretary for any determination under a 
limited access program (LAP). 16 U.S.C. 1881a(b)(1)(G). The proposed 
rule included a definition of ``determination'' and defines ``limited 
access program'' consistent with how ``catch share'' is defined under 
NOAA's Catch Share Policy (available at https://www.nmfs.noaa.gov/sfa/management/catch_shares/about/documents/noaa_cs_policy.pdf). The 
proposed rule explained that the exception could

[[Page 102001]]

apply, regardless of whether NMFS has made a LAP determination as long 
as there are sufficient facts showing that the information was 
submitted to NMFS for it to make a determination under a LAP. For 
example, prior landings information would be releasable if a fishery 
management council (Council) has submitted a fishery management plan 
(FMP) or amendment for a LAP for secretarial approval and NMFS issues a 
Federal Register notice stating that it will use prior landings data 
for initial allocation determinations under the proposed LAP. The 
proposed rule also notes that information submitted under a non-LAP 
fishery may later be relevant for determinations regarding privileges, 
if the fishery transitions to a LAP. NMFS proposed that information 
previously submitted under a non-LAP that the agency uses or intends to 
use for determinations under a newly established LAP may fall within 
the scope of the LAP exception. See 89 FR 17363-17364 (March 11, 2024, 
explaining proposed rule approach to LAP exception).
    Third, the MSRA expanded the confidentiality provision to include 
information submitted to a State fishery management agency or a marine 
fisheries commission in compliance with a requirement or regulation 
under the Act. Prior to the MSRA, the 1996 SFA (Pub. L. 104-297) had 
expanded the confidentiality provision to apply to information 
submitted in compliance with ``any requirement or regulation'' under 
the Act and also revised MSA section 402(b) to refer to ``information'' 
instead of ``statistics.''
    In addition, as discussed in the preamble to the proposed rule, the 
Illegal, Unreported and Unregulated Fishing Enforcement Act of 2015 
(IUU Fishing Act), Public Law 114-81 101(b) (Nov. 5, 2015), amended the 
FMPA to include provisions at 16 U.S.C. 1826i and 1826g related to MSA 
confidential information. 89 FR at 17359. NMFS implements and 
administers the FMPA through authority delegated from the Secretary. 
Under section 1826i(b)(1), the Secretary is authorized to disclose 
information, as necessary and appropriate, including information 
collected under joint authority of the MSA and another statute that 
implements an international fishery agreement, such as the Atlantic 
Tunas Convention Act (ATCA) of 1975, Id. 971 et seq., to a Federal or 
State government agency, the Food and Agriculture Organization of the 
United Nations, or the secretariat or equivalent of an international 
fishery management organization or arrangement made pursuant to an 
international fishery agreement, if certain conditions are satisfied. 
Such information may be vessel-specific. One condition for release of 
the otherwise confidential information is ``such government, 
organization, or arrangement . . . has policies and procedures to 
protect such information from unintended or unauthorized disclosure.'' 
Id. 1826i(b)(1). Section 1826g(d)(2) authorizes disclosure to the same 
entities and foreign governments, subject to the same condition 
regarding policies and procedure to protect against unauthorized 
disclosure. In addition, section 1826g(d)(2) also requires that 
disclosures be necessary for one of the compliance or enforcement 
purposes enumerated under subparagraph (A)(ii). Id. 1826g(d)(2)(A)(i)-
(ii). For purposes of the FMPA disclosure provisions, the term 
``international fishery agreement'' has the same meaning as 
``international fishery management agreement'' as set forth in 50 CFR 
300.201.
    Both 1826i(b)(2) and 1826g(d)(2)(B) provide that, with respect to 
the FMPA, the confidentiality requirements of the MSA are not 
applicable for obligations of the United States to share information 
under a Regional Fishery Management Organization (RFMO) to which the 
United States is a member, or to information collected by NMFS 
regarding foreign fishing vessels.
    In response to comments on the proposed rule, NMFS has revised the 
final rule to more simply and closely track the FMPA provisions. See 
response to Comment 20 below. In addition, some RFMO implementing 
statutes have confidentiality provisions, e.g., Western and Central 
Pacific Fisheries Convention (WCPFC) Implementation Act, 16 U.S.C. 
6905(d). NMFS initiated this rulemaking based on the statutory changes 
described in the Background section of the proposed rule and this final 
rule and a general need to reorganize and clarify the scope of 
applicability of the confidentiality regulations.
    NMFS proposed to revise Sec.  600.405 to clarify that regulations 
under subpart E apply to confidential information that is under NMFS' 
custody and control. NMFS further explained that it treats information 
as subject to its custody and control when it physically obtains the 
information (see 16 U.S.C. 1881a(b) (providing for confidentiality of 
information ``submitted'' to the Secretary in compliance with MSA 
requirements)). In the case of electronically submitted information, 
NMFS has custody and control when the information enters a NMFS Federal 
Information Security Modernization Act (FISMA) domain (which is a 
collection of devices, applications, software and information 
technology assets that serve a coordinated purpose or mission, and have 
a common enforced boundary with enforced or inherited security and 
privacy controls). Thus, while the MSA confidentiality requirements 
apply to information submitted to a State fishery management agency or 
a marine fisheries commission, these regulations would not apply to 
such information as it is outside of NMFS' physical possession. 
Protection of that information would be addressed through an agreement 
with a State or a marine fisheries commission as provided for under 
Sec.  600.410(c).
    The 1998 regulations discuss the generic application of 
``safeguards as specified by NOAA Directives, or other NOAA or NMFS 
internal procedures'' to confidential data. 50 CFR 600.410(a)(3). 
Currently those procedures are set forth in a NOAA Administrative Order 
(NAO 216-100). As discussed in the preamble of the proposed rule, NOAA 
intends to replace NAO 216-100 with updated internal control 
procedures. Accordingly, NMFS revised existing Sec.  600.410 to clarify 
the need to establish these internal control procedures and to outline 
certain topics that should be included in the updated procedures (See 
Sec.  600.410(b)).
    This final rule includes the following elements:
    (1) A clarification that the regulations under 50 CFR part 600, 
subpart E, apply to information under NMFS' custody and control (Sec.  
600.405).
    (2) Deletion of references to ``statistics'' in 50 CFR part 600, 
subpart E, and the definitions and Council sections (Sec. Sec.  600.10 
and 600.130), and other technical, non-substantive changes for the sake 
of clarity.
    (3) Revised definition of ``Aggregate or summary form'' based on 
MSA section 402(b)(3), including adding a reference to ``business of 
any person'' (Sec.  600.10).
    (4) New definitions of ``Business of any person'', ``Confidential 
information'', ``Electronic Monitoring Service Provider'', 
``Information sharing obligation of a Regional Fishery Management 
Organization (RFMO)'', ``Observer provider'', and ``Regional Fishery 
Management Organization'' (Sec.  600.10).
    (5) Deletion of existing text at Sec.  600.410(a)(2) regarding NMFS 
removing, after receipt, ``identifying particulars'' from statistics.
    (6) Procedures regarding State or marine fisheries commission 
information collection agreements (Sec.  600.410(c)) and observer 
providers

[[Page 102002]]

and electronic monitoring service providers (Sec.  600.410(d)).
    (7) Addition of text from 16 U.S.C. 1881a(b)(1)(I) on disclosure of 
information to ``Federal agencies, to the extent necessary and 
appropriate, to administer Federal programs established to combat 
illegal, unreported, or unregulated fishing or forced labor (as such 
terms are defined in section 11329 of the Don Young Coast Guard 
Authorization Act of 2022 [16 U.S.C. 1885a note]), which shall not 
include an authorization for such agencies to release data to the 
public unless such release is related to enforcement.'' (Sec.  
600.415(a)(3)).
    (8) New procedures regarding access to confidential information by 
Federal employees when in support of homeland and national security 
activities (Sec.  600.415(a)(2)), State and marine fisheries commission 
employees (Sec.  600.415(b)), and State enforcement employees 
responsible for FMP enforcement (Sec.  600.415(c)).
    (9) Revised procedures regarding access to confidential information 
by Council members (Sec.  600.415(d)(2)).
    (10) New procedures regarding access to confidential information by 
a Council's scientific and statistical committee, advisory panels and 
contractors (Sec.  600.415(d)(3)-(5)).
    (11) A provision on making vessel monitoring system information 
directly available to State enforcement employees and state management 
agencies, as provided under section 311(i) of the Magnuson-Stevens Act 
(Sec.  600.415(e)).
    (12) A provision on disclosure of information to specified 
governmental and intergovernmental entities pursuant to the FMPA, 16 
U.S.C. 1826i and 1826g (Sec.  600.415(f)).
    (13) Provisions on disclosure of observer information for 
proceedings to adjudicate observer certifications and as authorized by 
regulations implementing recommendations in an FMP prepared by the 
North Pacific Fishery Management Council (Sec.  600.420(a)-(b)).
    (14) LAP exception to confidentiality requirements and related new 
definitions for LAP and ``determination'' (Sec.  600.420(c)).
    (15) Clarification of the court order exception (Sec.  600.420(d)).
    (16) Provision regarding disclosure of information for enforcement 
of the MSA or when necessary for enforcement of any state living marine 
resource law, if that state has a Joint Enforcement Agreement that is 
in effect (Sec.  600.420(e)).
    (17) Procedures for written authorization for release of 
confidential information, including observer information (Sec.  
600.420(f));
    (18) Provision that NMFS may disclose in any aggregate or summary 
form information that is required to be maintained as confidential 
under the regulation (Sec.  600.425)
    (19) Prohibition on disclosing confidential information without 
authorization (Sec.  600.725(y)).

Response to Comments

    NMFS published its proposed rule on March 11, 2024, (89 FR 17358) 
and accepted public comments for 45 days, closing on April 25, 2024. 
NMFS received a total of 36 comments. Below, NMFS summarizes and 
responds to all comments received. Comments are grouped by subject 
matter (e.g., `45-day Comment Period') with similar comments summarized 
under a comment number (e.g., `Comment 1' summarizes all comments 
received regarding the 45-day comment period).

45-Day Comment Period

    Comment 1: Many commenters said that the 45-day comment period was 
too short and that NMFS should reissue the proposed rule with 
additional time for comment. Some commenters stated that, concurrent 
with additional time for comment, NMFS should engage the public on the 
rulemaking and specific issues such as electronic monitoring policies, 
data ownership and management, and public access. One commenter said 
that NMFS should at minimum conduct another rulemaking for the data 
aggregation and summarization procedures referenced under Sec.  
600.410(b). Two commenters recommended reinitiating this rulemaking and 
that NMFS should engage the public through an Advanced Notice of 
Proposed Rulemaking (ANPR).
    Response: The 45-day comment period provided sufficient time for 
submission of a wide range of material issues and concerns. During that 
period no new information was presented that would warrant additional 
time for review and comment or for reissuance of the rule for another 
notice and comment period. After finalization of this rulemaking, NMFS 
will develop an approach to engage with the public on improvements to 
the procedures for aggregation and summarization of confidential 
information referenced under Sec.  600.410(b) for the maintenance of 
and access to confidential information. NMFS typically engages the 
public through ANPRs in order to scope issues, identify possible 
alternatives, and generally gather information that it may need to 
develop a proposed rule. An ANPR was not necessary here given NMFS' 
experience in administering confidentiality requirements since 
enactment of the 1976 Fishery Conservation and Management Act 
(precursor to the MSA) and the 2012 MSA confidentiality proposed rule 
and public comments received during an almost 5-month comment period. 
See 82 FR 4278 (January 13, 2017) (describing and withdrawing 2012 
proposed rule). If experience implementing these regulations identifies 
the need for additional procedures to preserve the confidentiality of 
information, the agency will consider an ANPR along with other options 
to engage the public in development of those procedures.

Open Government and Transparency

    Comment 2: Some commenters opposed the proposed rule stating that 
it limited public access to information without a statutory mandate and 
is inconsistent with the Administration's Open Government Policy.
    Response: NMFS disagrees. First, the MSA mandates the 
confidentiality of any information that is submitted to the Secretary, 
a State fishery management agency, or a marine fisheries commission and 
any observer information in compliance with a requirement or regulation 
under the MSA. 16 U.S.C. 1881a(b)(1) and (b)(2). The limitations on 
public access to information under this rule are consistent with that 
mandate and MSA section 402(b)(3) which directs the Secretary to 
promulgate, by regulation, such procedures as may be necessary to 
preserve the confidentiality of information. Second, this rule advances 
open government and transparency by providing a framework that allows 
for access to, or public disclosure of, confidential information when 
authorized by law.

Unauthorized Use/Disclosure Prohibition

    Comment 3: Some commenters opposed the prohibition on unauthorized 
use or disclosure of confidential information in Sec.  600.725 stating 
that it would discourage legitimate disclosures of confidential 
information. These commenters recommended that NMFS instead emphasize 
training on the handling of confidential information. A commenter asked 
that NMFS clarify whether NMFS would be responsible for enforcing the 
proposed prohibition.
    Response: This prohibition reflects the confidentiality 
requirements of MSA 402(b) and section 307(1)(A) which provides that it 
is unlawful for any person to violate any provision of the

[[Page 102003]]

Act. Since 1996, NMFS' regulations for preservation of MSA confidential 
information under subpart E have included this prohibition and during 
that time NMFS employees and other individuals authorized to access 
confidential information have been required to sign a statement that 
they acknowledge the prohibition on unauthorized disclosure of 
confidential information and the potential for civil or criminal 
prosecution for any violation of that prohibition. The proposed 
prohibition, therefore, represents applicable law and existing policy. 
Based on its long history of successfully operating under this 
prohibition, NMFS has no basis to believe that the prohibition would 
discourage or create concerns within NMFS on legitimate access to and 
disclosure of confidential information. Enforcement will be the 
responsibility of NMFS' Office of Law Enforcement with support from 
other governmental entities.

Development of Internal Control Procedures

    Comment 4: Many commenters requested that NMFS clarify how it will 
develop ICPs referenced under Sec.  600.410(b) and how the ICPs would 
apply to the collection and maintenance of, access to, and release of 
any confidential information. Some commenters stated that they could 
not assess the rule without further information on the ICPs and how 
they would be developed. One commenter asserted that the rule's 
approach to development of the ICPs is not consistent with principles 
of transparency and inclusion provided in NMFS' Equity and 
Environmental Justice Strategy and NOAA's Data Strategic Action Plan. 
Commenters generally requested that NMFS provide a transparent and 
inclusive process with meaningful opportunities for public engagement 
in the development of ICPs.
    Response: The ICPs are internal agency procedures intended to guide 
the handling of confidential information under the MSA. Because the 
current ICPs inform NMFS' internal administrative processes, they are 
included in a 1994 NOAA Administrative Order (NAO 216-100) and are not 
set forth in the Code of Federal Regulations. However, as noted in the 
preambleto the proposed rule, NOAA intends to replace NAO 216-100 with 
updated ICPs. NMFS is committed to an open, equitable, and transparent 
public engagement process in the development of the ICPs through 
appropriate means and methods and consistent with legal requirements. 
The extent and manner of public engagement will vary depending on the 
subject matter.
    Recognizing that ICPs have been a part of the confidentiality 
regulations since 1998 in some fashion, this rule reiterates the need 
to establish ICPs. While the requirement to establish and maintain ICPs 
is part of this rulemaking, the rulemaking does not dictate the 
specific substance of those ICPs. As guidance rather than regulatory 
mandate, ICPs will be developed subsequent to the issuance of the final 
rule and reflect its requirements related to the preservation of 
confidential information. Developing internal administrative procedures 
that could change as a result of this rulemaking would not be 
efficient. When NMFS develops substantive ICPs, it plans to engage the 
public through webinars, workshops, and/or other forms and methods for 
obtaining public comment.
    Comment 5: Some commenters stated that the ICPs are substantive 
rules of general applicability that must be promulgated through 
rulemaking in order to comply with the Administrative Procedure Act 
(APA). Other commenters also said that NMFS must promulgate ICPs by 
regulation in order to comply with MSA 402(b)(3), 16 U.S.C. 
1881a(b)(3). One commenter viewed notice-and-comment rulemaking as 
appropriate for development of procedures for release of confidential 
information in aggregate or summary form while other procedures that 
only apply to NMFS's internal handling of confidential information 
could be developed through a non-rulemaking process.
    Response: ICPs have been part of the confidentiality regulations 
since 1998. As stated above, they currently exist in NAO 216-100, have 
not been codified in the Code of Federal Regulations, and were not 
promulgated through notice and comment rulemaking in the Federal 
Register. These ICPs constitute a practice or procedure relating to 
agency management and are therefore not subject to notice and comment 
procedures under the APA, 5 U.S.C 553(a)(2). Nevertheless, NMFS intends 
to evaluate each ICP individually and determine the appropriate process 
for public engagement and development. NMFS anticipates that most, if 
not all, will constitute a practice or procedure relating to agency 
management and as such not subject to APA notice and comment 
procedures. However, NMFS will conduct further rulemaking, if 
necessary, and/or may choose to make draft ICPs available for public 
comment.
    Under MSA 402(b)(3), the Secretary, through NMFS, is directed to 
``prescribe such procedures [by regulation] as may be necessary to 
preserve the confidentiality of information . . .'' NMFS therefore has 
discretion to determine which procedures are necessary for the 
protection of confidential information and which, therefore, must be 
done through rulemaking. This final rule prescribes all such 
procedures.
    In contrast, the ICPs contained in NAO 216-100 consist of 
procedures for agency management that can be addressed through non-
regulatory methods. ICPs provide additional guidance on the application 
of the regulatory requirements in specific cases, but they are not 
themselves regulatory. As such, the subject matter to be addressed 
through ICPs, such as standardized agreements for sharing information, 
do not constitute procedures that are necessary for preserving 
confidentiality. However, if NMFS determines that a specific ICP should 
have regulatory effect, NMFS will promulgate that ICP through 
appropriate rulemaking. Until ICPs are developed and finalized, it will 
continue to apply the provisions of NAO 216-100 except those that are 
in conflict with applicable law. For example, NMFS will not apply 
Section 6.04.a.1(d) of NAO 216-100, which provides that observer data 
collected under the MSA are not confidential. This provision is in 
direct conflict with MSA 402(b)(2), 16 U.S.C 1881a(b)(2).
    Comment 6: A commenter expressed concern that NMFS would release 
confidential information under the Freedom of Information Act (FOIA) 
even if prohibited under ICPs because procedures not completed through 
regulations lack the force of law.
    Response: NMFS agrees that non-regulatory ICPs lack the force of 
law. Any such ICPs will not address or apply to whether confidential 
information may be released under FOIA. Rather, as stated in the 
preamble of the proposed rule, NMFS applies MSA section 402(b)(3) as 
the basis for FOIA Exemption Three, mandatory withholding authority.
    Comment 7: A commenter stated that it is unclear how national 
policies developed through the ICPs will interact with regional 
practices and implementation plans.
    Response: As required under Sec.  600.410(b), NMFS intends to 
update the current ICPs set forth in NAO 216-100. As with the current 
ICPs, these updated ICPs will be intended to provide national-level 
guidance on the application of these regulations for the maintenance of 
and access to any confidential information. Regions may develop 
additional ICPs that address

[[Page 102004]]

specific issues with their region's data collection programs and/or 
fisheries for management of confidential information. Any such regional 
ICPs must be consistent with statutory and regulatory requirements and 
should also be consistent with the national ICPs.

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

Observer Providers
    Comment 8: One commenter requested that NMFS revise the definition 
of ``observer provider'' because observer providers do not collect 
observer data. The commenter further requested that NMFS explain the 
use of the term ``observer information'' rather than ``observer data'' 
and whether using the term ``observer information'' will affect public 
access to information that is collected by observers.
    Response: The definition of observer provider is clear that an 
observer provider does not itself collect observer information but 
rather collects that information through the placement of observers on 
certain platforms or in certain facilities. This rule defines 
``observer provider'' as ``any person that collects observer 
information by placement of observers on or in fishing vessels, 
shoreside processors, or stationary floating processors under the MSA 
or as part of a cooperative research initiative.'' The MSA defines 
``person'' to include ``any corporation, partnership, association, or 
other entity.'' 16 U.S.C. 1802(36). The MSA defines ``observer 
information,'' id. 1802(32), and specifically references that term in 
the MSA's confidentiality requirements at section 402(b), id. 
1881a(b)(2). Accordingly, it is appropriate to use the term ``observer 
information'' for this rule rather than ``observer data,'' which is 
neither defined in the MSA nor referenced in the MSA's confidentiality 
requirements.

Electronic Monitoring (EM) Service Providers

    Comment 9: One commenter recommended that NMFS expand the 
definition of ``EM Service Provider'' to include EM providers that 
contract directly with fishery participants or their representatives. 
Otherwise, portions of EM data that are collected and maintained by EM 
service providers may not be protected by NMFS even though that 
information is subject to the MSA confidentiality requirements. The 
commenter requested that NMFS maintain the confidentiality of EM 
information in the same way that it protects information collected by 
human observers. The commenter stated that protection of information 
will incentivize further participation in and development of EM. An 
additional commenter stated that NMFS should describe how the revised 
MSA confidentiality regulations will affect its policy directives on 
EM. The commenter stated that NMFS should initiate a distinct 
rulemaking for maintaining the confidentiality of EM information and 
engage the public on access to that information.
    Response: Under this final rule, an EM service provider is defined 
to include such providers that contract directly with a vessel to 
manage information that is collected by an EM system required under MSA 
regulations or a permit. However, agency access, maintenance, and 
release responsibilities under this final rule apply only to 
information that is under NMFS' custody and control. As explained in 
the Background section of this final rule and the proposed rule (89 FR 
at 17361-62), NMFS treats information as subject to its custody and 
control when it physically obtains the information (see 16 U.S.C. 
1881a(b) (providing for confidentiality of information ``submitted'' to 
the Secretary in compliance with MSA requirements)). Information that 
is maintained by an EM service provider under contract with a fishing 
vessel is not under NMFS' custody and control. Therefore, the access, 
maintenance, and release responsibilities of this final rule do not 
apply to that information.
    As explained in the preamble to the proposed rule, because EM 
information is a form of observer information under the MSA, it is 
considered confidential under the MSA. NMFS expects an EM service 
provider to have a means to protect a vessel owner's EM information 
that is subject to the MSA's broader statutory prohibition on the 
release of observer information. See Information Law Application for 
Data and Supporting Guidance in Electronic Monitoring Programs For 
Federally Managed U.S. Fisheries 04-115-04, available at https://media.fisheries.noaa.gov/dam-migration/04-115.pdf. Regulatory programs 
that establish EM programs should require that third parties have a 
means to protect EM data, whether through FMP implementing regulations, 
a service provider approval process, or other applicable procedure. Id.
    NMFS has a different approach for information collected by human 
observers because MSA 402(b)(2)(C) provides for limited dissemination 
of confidential information between observers, observer providers, and 
NMFS pursuant to a confidentiality agreement that prohibits other types 
of dissemination. See 89 FR at 17361 (proposed rule discussion). To 
comply with MSA section 402(b)(2)(C), NMFS must effectuate the MSA 
confidentiality requirements for human observer information including 
information collected by observers employed by an observer provider 
that is under contract with a fishing vessel, but a similar provision 
does not exist for electronic monitoring information not under NMFS' 
control. Thus, the final rule takes a different approach for observer 
providers than for EM service providers that are under contract with a 
fishing vessel.
    For these reasons, NMFS is finalizing its proposed definition of an 
Electronic Monitoring Service Provider with no changes. NMFS' existing 
policy directives on EM information and these regulations are 
sufficient to guide the management of confidential information 
collected through EM systems, and a specific rulemaking on such issues 
is unwarranted.
    NMFS has made one edit to the definition of ``observer 
information'' to insert statutory text that was inadvertently left out. 
The MSA defines ``observer information'' to include EM information 
collected pursuant to an authorization by the Secretary or ``as part of 
a cooperative research initiative.'' 16 U.S.C. 1802(36). The final rule 
adds the cooperative research text. Lastly, because this final rule 
does not apply to confidential information maintained by EM service 
providers, it does not affect NMFS' policy directive 04-115-03 which 
provides guidance on how long privately contracted EM service providers 
should retain EM information.
    Comment 10: A commenter expressed concern that the proposed 
definition of ``confidential information'' did not cover certain 
categories of EM data or portions of the ``chain of custody,'' i.e., 
the handling of EM data before review and data extraction.
    Response: This final rule defines ``confidential information'' 
consistent with the MSA, which requires the confidentiality of any 
observer information with some exceptions. 16 U.S.C. 1881a(b)(2). Under 
the MSA, observer information is defined to include any information 
collected by an EM system. Accordingly, under this final rule, all 
categories of EM data that are collected by an EM system constitute 
confidential information. Information regarding ``chain of custody,'' 
or the handling of EM data before review and data extraction, does not 
fall under the MSA definition of

[[Page 102005]]

observer information. Therefore, such information would not be 
considered confidential information for MSA purposes unless it is 
required to be submitted to NMFS in compliance with a regulation under 
the Act.
    Comment 11: One commenter requested an assessment of the impacts of 
the proposed rule on the implementation of a new reporting requirement 
for electronic logbooks (ELBs) for commercial fisheries in the Gulf of 
Mexico. The commenter stated that this assessment is important to 
ensure that implementation of the ELBs for commercial fisheries is not 
delayed.
    Response 11: Confidentiality of information requirements under the 
MSA and this final rule may apply to information that a person submits 
through ELBs or other electronic devices but not the devices 
themselves. Agency access, maintenance, and release responsibilities 
under this rule apply only to information that is under NMFS' custody 
and control, i.e., when it enters a NMFS FISMA domain. See Background 
section above for FISMA explanation. As such, this final rule does not 
have an impact on the implementation of new reporting requirements for 
ELBs in the Gulf of Mexico, and therefore, no assessment of the impacts 
of this rule on reporting requirements for ELBs was conducted.
    Comment 12: A commenter stated that NMFS should improve the 
efficacy of its confidentiality agreement protocols by requiring EM 
providers to disclose their artificial intelligence and machine 
learning technologies.
    Response: The commenter did not indicate why or how disclosure of 
an EM provider's artificial intelligence and machine learning 
technologies to NMFS would improve the efficacy of the confidentiality 
agreement protocols. These final regulations require that a 
confidentiality agreement between NMFS and EM service providers that 
are providing services to NMFS under a contract, or performing 
functions that require the handling of confidential information under a 
NMFS financial assistance award, specify the procedures that the 
provider will apply to protect confidential information from public 
disclosure; and also require that the EM service provider, and each of 
its employees who will handle confidential information, acknowledge the 
requirement to maintain the confidentiality of observer information and 
the civil penalties for unauthorized use or disclosure of this 
information under 16 U.S.C. 1858. NMFS believes that these procedures 
are sufficient to address any potential information security issues 
that may arise with respect to any technologies employed by an EM 
service provider for the processing of EM data.
    Comment 13: A commenter requested that NMFS revise the proposed 
rule to clarify if all information collected by the EM systems that are 
required under the MSA or other authorities will be treated as 
confidential information.
    Response: As stated above, any information collected by an EM 
system that is required under the MSA is subject to the Act's 
confidentiality requirements. Agency access, maintenance, and release 
responsibilities under this rule apply only to information that is 
under NMFS' custody and control, which occurs when NMFS physically 
obtains the information, or it enters an NMFS FISMA domain. See 
Background section above for FISMA explanation. The response to Comment 
9 explains NMFS' approach to EM information maintained by an EM service 
provider under contract with a fishing vessel. Responses to Comments 14 
and 24 describe agreements with states or Marine Fisheries Commissions 
for the collection of confidential information. Neither MSA 
confidentiality requirements nor this rule apply to information that is 
collected by an EM system that may be required under other authorities. 
Whether NMFS must protect from disclosure information collected by an 
EM system required under an authority other than the MSA depends on the 
authority at issue.
    Comment 14: Commenters requested that NMFS clarify what constitutes 
``authority comparable to the MSA'' for purposes of an agreement with a 
state that allows for collection of confidential information. 
Commenters also asked how NMFS will determine that a State will 
``exercise such authority'' and what happens if it does not.
    Response: Pursuant to Sec.  600.410(c)(1), NMFS will assess whether 
a State has legal authority to protect confidential information from 
disclosure in the same manner that NMFS can protect such information 
from public disclosure under the MSA. NMFS will rely on the respective 
State's assurances to determine whether a State will exercise such 
authority. Should a State not exercise its authority to protect 
confidential information, NMFS may rescind the collection agreement. 
NMFS intends to develop ICPs to guide the development of 
confidentiality agreements with States and commissions that are 
authorized to collect confidential information.

Scope of Subpart E Regulations

    Comment 15: A commenter said that proposed Sec.  600.405 would 
narrow the scope of information that would be subject to the 
regulations compared to current regulations. Some commenters requested 
that NMFS clarify whether confidentiality protections would apply to 
information collected by NMFS under a fishery management plan (FMP) 
that was not implemented under the MSA.
    Response: Proposed Sec.  600.405 was not intended to narrow the 
scope of information subject to MSA confidentiality requirements (16 
U.S.C. 1881a(b)); the section refers to a definition of confidential 
information (Sec.  600.10) that is consistent with 16 U.S.C. 1881a(b). 
After reviewing public comment, NMFS is clarifying Sec.  600.405. Final 
Sec.  600.405 continues to state that the regulations apply to 
confidential information as defined in Sec.  600.10 with an additional 
explanation that agency access, maintenance, and release 
responsibilities apply only to confidential information under NMFS' 
custody and control. As explained in the Background section of this 
final rule and the proposed rule (89 FR at 17361-62), NMFS treats 
information as subject to its custody and control when it physically 
obtains the information (see 16 U.S.C. 1881a(b) (providing for 
confidentiality of information ``submitted'' to the Secretary in 
compliance with MSA requirements)).
    With regard to the relevant FMP, the proposed rule stated that the 
MSA confidentiality requirements apply to information that a person 
submits in compliance with an FMP that is implemented under the MSA and 
any observer information collected under the Act. In some cases, FMP 
information collection and/or monitoring requirements are implemented 
under joint authority of the MSA and another authority. In those cases, 
the MSA confidentiality requirements apply just as they would to 
information that is submitted by a person or collected by an observer 
under an FMP implemented solely under the MSA. For information 
collection requirements implemented under FMPs under authorities other 
than the MSA, the Act's confidentiality requirements do not apply.

Voluntarily Submitted Data

    Comment 16: A commenter asked NMFS for examples of information 
collected under an MSA program that isn't submitted to the Secretary, 
State agency, or marine fisheries commission and thus would not be 
subject to this rule. Additionally, a commenter sought clarification on 
the application of this

[[Page 102006]]

rule to data from cooperative research programs that is provided 
voluntarily. The commenters also requested clarification on privacy 
protections for data from recreational and voluntary collection 
programs not covered by MSA confidentiality and asserted that these 
voluntary data collection programs may suffer if data is considered 
non-confidential or not protected. They requested that the agency 
identify any data and privacy protections for information collected 
through State and NOAA surveys. They emphasized the need to 
differentiate between high-resolution data for research and data for 
management decisions and recommended that voluntary data streams, such 
as those from participants in an opt-in on-demand gear program, receive 
confidential protection.
    Response: Where there is no MSA requirement for the information 
collected and a person voluntarily submits it, the MSA confidentiality 
prohibition against release does not apply. In addition, neither these 
regulations, nor any current or future ICPs developed pursuant to these 
regulations, would apply to information that is voluntarily provided to 
NMFS. For example, confidentiality restrictions would not apply to 
recreational fishing information collected through a state survey 
program and provided to NMFS. Any information voluntarily provided 
directly to NMFS through a NMFS-conducted survey, including voluntary 
surveys to collect cost and earnings data, would also not be MSA 
confidential information. While voluntarily submitted information is 
not confidential under the MSA, it may be exempt from public disclosure 
under FOIA as confidential business information or information that 
would result in an unwarranted invasion of personal privacy if made 
publicly available. As such, NMFS does not anticipate a reduction in 
participation of voluntary collections.
    The MSA confidentiality requirements and procedures under this rule 
apply to observer information that was collected as part of a 
cooperative research initiative and that is under NMFS' custody and 
control. See 16 U.S.C. 1881a(b)(2) and 1802(32) (providing that 
``observer information'' is confidential and referring to a cooperative 
research initiative in the definition of that term). In addition, if 
cooperative research is conducted under an exempted fishing permit and 
information collected through that research is required to be submitted 
under the terms of the permit, NMFS will treat it as confidential 
information for MSA purposes.
    Lastly, NMFS intends to develop guidance on data aggregation 
standards as part of an ICP to address the level of data resolution 
needed to preserve confidentiality, if it is to be released for 
management purposes. See 50 CFR 600.410(b)(9).

Disclosure Under the Limited Access Program Exception

    Comment 17: Commenters expressed a range of views on the LAP 
exception. A commenter stated that the proposed rule approach for the 
LAP exception seemed to be broader than what was intended and requested 
that NMFS narrow the LAP exception by revising the definition of LAP 
such that it only covers limited access privilege programs (LAPPs) and 
interpreting it to authorize release of confidential information only 
to a person who has applied for privileges under a LAPP. One commenter 
stated that ``determination'' for purposes of the LAP exception should 
apply only to the initial phase of a LAP program and not to monitoring 
under LAP-managed fisheries. Another commenter supported the proposed 
rule approach stating that treatment of some LAP participant 
information as non-confidential would enhance transparency and 
accountability. The commenter supported application of FOIA exemptions 
to information that is non-confidential under the LAP exception if 
necessary to protect personal privacy. Other commenters expressed 
qualified support for NMFS' proposed approach to the LAP exception but 
requested that NMFS consider a broader approach that would allow for 
more information to be treated as not confidential under that 
exception.
    Response: The MSA LAP exception allows for the disclosure of 
information that a person is required to submit for a determination 
under a LAP. This final rule provides that the exception applies to 
LAPPs, 16 U.S.C. 1853a and 1802(26), and other fisheries that are 
managed through allocation of privileges to a person. The LAP exception 
uses the undefined term ``limited access programs;'' thus, in 
developing the proposed rule, NMFS considered what limited access 
management approaches may necessitate a specific confidentiality 
exception for disclosure of information. 89 FR 17358, 17362-17363 
(March 11, 2024). After considering public comment, NMFS continues to 
believe the need is most evident for fisheries in which exclusive 
fishing privileges, such as a portion of a fishery's total allowable 
catch, are allocated to persons based on their historical catch, or 
other applicable historical fishery participation. See Id. at 17363 
(noting the same need in the proposed rule). As discussed in the 
proposed rule, in these fisheries--often referred to as catch share 
programs--the availability of information is necessary for 
administration of appeals of allocations and related determinations and 
generally promotes transparency in the basis for such determinations. 
See NOAA's Catch Share Policy (available at https://www.nmfs.noaa.gov/sfa/management/catch_shares/about/documents/noaa_cs_policy.pdf) for 
information on catch shares. Accordingly, in this final rule, the LAP 
exception applies to information that underlies allocations of those 
privileges and subsequent NMFS determinations that apply to those 
allocated privileges. Having considered public comment, NMFS still sees 
no basis for interpreting ``determination'' to apply only to 
determinations that are made in the initial phase of a LAP and not to 
any subsequent allocation determinations. In this final rule, the 
exception applies to any determination under a LAP involving allocation 
decisions at any time. Sec.  600.420(c)(2) defines ``Determination'' to 
include allocations generally and therefore covers both the initial and 
any subsequent annual allocation of privileges. Additionally, the final 
rule defines determination to include approval or denial of a lease or 
sale of either allocated privileges or annual allocations and end-of-
season adjustments.
    The LAP exception is just that--an exception to the MSA 
confidentiality requirements. NMFS declines to adopt a broader 
interpretation of the LAP exception that would result in it operating 
as a rule, rather than exception, where confidentiality does not apply 
to most if not all information that a person is required to submit in 
LAP managed fisheries. This exception allows, but does not require, 
release of excepted information pursuant to the MSA. Other statutes, 
such as FOIA, may apply and protect certain agency records from public 
disclosure (See e.g., FOIA protections below).
    Comment 18: Some commenters expressed concern that NMFS would treat 
information that it accesses through an agreement with a State as non-
confidential, notwithstanding a State law that protects and restricts 
access to that information.
    Response: NMFS has sufficient authority to protect vessel-specific 
information to avoid any conflict with State law requirements. While 
the LAP exception allows for release of information that is submitted 
for a

[[Page 102007]]

determination under a LAP, it does not require that NMFS proactively do 
so. Should NMFS receive a FOIA request for information that is not 
confidential under the LAP exception, NMFS could, as appropriate, 
protect that information from public disclosure under FOIA Exemption 
Four, which applies to confidential business information, or Exemption 
Six, which applies to information the release of which would constitute 
an unwarranted invasion of personal privacy. In determining the 
appropriateness of application of FOIA Exemption Four, NMFS will 
consider whether the requested information is protected under state law 
because that is relevant to whether a person submitted it with the 
expectation that it would be treated as confidential.
    Comment 19: Some commenters asked NMFS how this rule's approach to 
the LAP exception compares to NMFS' current practice. A commenter also 
asked how the approach would affect confidentiality of information in 
LAPPs. A commenter expressed concern that the LAP exception would apply 
to information that NMFS uses to consider whether to establish a LAP. 
They requested NMFS clarify when the exception would apply to such 
considerations and what information NMFS uses to determine whether to 
approve a lease or sale of allocated privileges, and when that 
information would be made public.
    Response: The LAP exception applies to LAPPs and other fisheries 
that are often referred to as catch share programs. See response to 
Comment 17. Since the LAP exception was enacted in 2007, NMFS has 
applied the exception in the same manner codified in this final rule. 
In other words, NMFS, including its regional offices, has not applied 
the exception beyond information submitted or used for any initial or 
annual allocations, approval or denial of a lease or sale of allocated 
privileges, or end-of-season adjustments. Some regions have applied the 
LAP exception only in the context of allocation determinations. The 
final rule will establish a uniform approach and clarifies that 
information a person submits for a determination, as defined at Sec.  
600.420(c)(2), would be subject to the LAP exception.
    With regard to establishing a LAP, a Council could transmit an FMP 
amendment to NMFS recommending a new LAP. Even if NMFS has not yet 
determined whether to implement the FMP amendment through a final rule, 
NMFS may decide, as an example, that releasing historical landings or 
catch information to a potential LAP participant would be helpful in 
order to provide sufficient time for vessel owners to verify or correct 
information that will be used for initial allocations, 89 FR at 17363, 
and this final rule clarifies that such information could be released. 
The LAP exception would not, however, be applicable for a Council's 
consideration of whether to establish a LAP. In other words, NMFS would 
not release MSA confidential information pursuant to the LAP exception 
when a Council was considering whether to establish a LAP. Id.
    What information is used to determine whether to approve a lease or 
sale of allocated privileges, and thus whether and when such 
information would be made public, depends on the requirements 
established and implemented for a particular fishery.

Disclosure Related to International Fisheries Agreements and the High 
Seas Driftnet Fishing Moratorium Protection Act

    Comment 20: Some commenters objected to the rule's approach to what 
is not confidential for MSA purposes under section 608(b)(2) of the 
FMPA, as amended. 16 U.S.C. 1826i(b)(2). Specifically, these commenters 
said that the approach was too broad and should be removed or revised 
so that information collected from U.S. vessels is treated as 
confidential even if shared with an RFMO to satisfy a United States 
obligation. Another commenter asked that NMFS clarify whether the FMPA 
authorizes NMFS to rely on each RFMO's confidentiality procedures to 
protect information or whether NMFS will engage each RFMO to ensure 
protection of business and personal information.
    Response: NMFS agrees that the proposed approach is too broad and 
has made changes to the rule language to reflect this concern. FMPA 
sections 608(b)(2) and 606(d)(2)(B) do not define information provided 
to satisfy an RFMO obligation or foreign vessel information as ``not 
confidential'' for MSA purposes. Rather, these sections specify that 
``with respect to the [FMPA]'' the MSA confidentiality requirements 
shall not apply for, or with respect to, obligations of the United 
States to share information under an RFMO of which the United States is 
a member or foreign vessel information. 16 U.S.C. 1826i(b)(2) and 
1826g(d)(2)(B). To clarify this point, this final rule deletes 
references to RFMO and foreign vessel information in the definition of 
confidential information (proposed Sec.  600.10) and consolidates and 
simplifies relevant FMPA text in Sec.  600.415(f).
    The FMPA permits disclosure of information, including information 
that is collected jointly under the MSA and a statute that implements 
an international fishery agreement, to ``any other Federal or State 
government agency, the Food and Agriculture Organization of the United 
Nations, the secretariat or equivalent of an international fishery 
management organization or arrangement made pursuant to an 
international fishery agreement'' if they have policies and procedures 
in place to protect the information. Id. 1826i(b)(1). Such information 
may be vessel-specific. The FMPA allows for release of confidential 
information to the same list of entities as well as foreign governments 
if, in addition to having policies and procedures in place, the 
information is released for purposes specified at section 
1826g(d)(2)(A)(ii). The FMPA authority described above is reflected in 
revised Sec.  600.415(f), which states that NMFS may disclose such 
information, as authorized under, and subject to the requirements and 
conditions of, section 608(b) or 606(d)(2) of the High Seas Driftnet 
FMPA (16 U.S.C. 1826i(b) and 1826g(d)(2)), to entities specified in 
those sections. For such disclosures, specified entities must have in 
place policies and procedures to protect confidential information from 
unintended or unauthorized disclosure. The United States engages within 
the RFMOs it is a member of to support the development and adoption of 
policies and procedures, including confidentiality procedures to 
protect information from unintended or unauthorized disclosure. Where 
the United States is not a member of an RFMO, NMFS would consider the 
RFMO's policies and procedures on a case-by-case basis.
    FMPA sections 608(b)(2) and 606(d)(2)(B), 16 U.S.C. 1826i(b)(2) and 
1826g(d)(2)(B), provide for two exceptions where MSA confidentiality 
requirements do not apply; in other words, the policies and procedures 
described above are not required for disclosures of: (i) information 
disclosed with respect to obligations of the United States to share 
information under a RFMO of which the United States is a Member or (ii) 
information collected by NMFS regarding foreign fishing vessels. NMFS 
may determine what, if any, conditions may be appropriate for these two 
categories of information and will consider whether any additional, 
related guidance on agency management of information is needed in 
updated ICPs.
    Comment 21: Commenters recommend that NMFS apply section 608 of the 
FMPA only to RFMOs

[[Page 102008]]

identified in 16 U.S.C. 1826g (section 606(d)(2)) rather than any RFMO.
    Response: NMFS does not agree with limiting the FMPA disclosure of 
information provisions to U.S. obligations related to specifically 
listed RFMOs because the statute clearly applies to other RFMOs which 
implement fishery agreements, even if not specifically enumerated. 
Section 606 states that it applies to information collected under the 
joint authority of the MSA and the ATCA, WCPFC Implementation Act, ``or 
other statutes implementing international fishery agreements.'' The 
section authorizes disclosure of such information, subject to specific 
requirements and exceptions, to various entities, including the 
secretariat or equivalent of an international fishery management 
organization or arrangement made pursuant to an international fishery 
agreement. Id. Sec.  1826g(d)(2)(A). Section 608 uses similar language 
with regard to information and entities. Thus, NMFS has made no changes 
to this aspect of the final rule.
    Comment 22: A commenter expressed support for the proposed rule 
allowing state and federal agencies and certain international 
organizations to access confidential information if necessary and 
appropriate under the FMPA. Another commenter asked that NMFS clarify 
how access by RFMOs would be different under the proposed rule compared 
to current practices. The commenter stated that NMFS should treat 
information as non-confidential for purposes of sharing it with an RFMO 
only if that RFMO's definition of what is confidential is the same as 
NMFS'.
    Response: NMFS acknowledges the support for disclosure of 
confidential information pursuant to the FMPA and that information 
sharing furthers efforts to develop science-based measures for 
conservation and management of domestic and international fisheries and 
to strengthen enforcement of those measures. The FMPA disclosure of 
information provisions were enacted under the 2015 Illegal, Unreported, 
and Unregulated Fishing Enforcement Act, and NMFS does not expect that 
the final rule will substantively change how NMFS applies them in 
practice. Under the MSA, information is confidential if required to be 
submitted in compliance with requirements of the Act. While an RFMO may 
have a policy that defines confidential information, it would not 
control what is confidential for MSA purposes. As stated in response to 
Comment 20, under the FMPA, NMFS may disclose information that is 
subject to the MSA confidentiality requirements to RFMOs if they have 
policies and procedures in place to protect the information. NMFS' 
practice has been to make disclosures under this authority only to 
RFMOs that have policies and procedures to protect confidential 
information that are equivalent to NMFS'. NMFS will consider whether 
any additional, related guidance on agency management of this 
information is needed in updated ICPs.
    Comment 23: A commenter urged NMFS to provide transparency on 
global fisheries management through release of information that is 
collected under the Seafood Import Monitoring Program (SIMP). The 
commenter referenced the proposed rule's implementation of the FMPA, 
which provides that information collected from foreign fishing vessels 
is not confidential. The commenter believes that there should be 
greater public access to information collected under the Marine Mammal 
Protection Act Import Provisions and other authorities administered by 
NMFS.
    Response: As explained in response to Comment 20, the final rule 
revises the definition of confidential information (Sec.  600.10) to 
delete reference to foreign fishing vessels and addresses the FMPA in 
Sec.  600.415(f)). The MSA does not have an exception for public 
disclosure of confidential information collected under SIMP. Further, 
the Trade Secrets Act (18 U.S.C. 1905) prohibits the disclosure of 
information collected and maintained in Customs and Border Protection 
(CBP) systems, which may limit the ability for SIMP data to be shared 
publicly (data collected for SIMP is submitted electronically through 
the Automated Commercial Environment maintained by CBP). However, per 
the FMPA, NMFS could disclose information collected under the program 
regarding foreign vessels, as provided under Sec.  600.415(f) and if 
consistent with other applicable law.

Enforcement of Data Agreements and Prohibitions To Release Data

    Comment 24: Several commenters asked for clarity regarding the 
responsible party for enforcing the prohibition under MSA 308(a), 16 
U.S.C. 1858(a), non-disclosure agreements, or any mutual agreements to 
ensure confidentiality procedures are maintained by those entities.
    Response: Section 308(a) of the MSA concerns the assessment of a 
civil penalty if the Secretary determines that a person has committed 
an act prohibited by section 307 of the MSA. NMFS is generally 
responsible for enforcing the various prohibitions in the MSA and in 
regulations promulgated under the MSA including the prohibitions set 
forth in this rule. NMFS works closely and collaboratively with States, 
marine fishery management commissions, and other entities to ensure 
appropriate handling of MSA confidential information. Under Sec.  
600.410(c)(1), NMFS may enter into an agreement with a state for the 
collection of confidential information by the state on behalf of the 
Secretary if NMFS determines that the state has authority comparable to 
the MSA for the protection of information and that the state will 
exercise such authority to protect confidential information. See 
response to Comment 3 for further explanation. In addition, NMFS may 
enter into an agreement with a marine fisheries commission per Sec.  
600.410(c)(2). In such circumstances, NMFS may look to the states or 
commissions to carry out agreed upon duties to protect information 
using the comparable State or Commission authorities rather than MSA 
authorities.

Data Collected Under Other Programs for Management Purposes and 
Applicability of MSA Confidentiality Measures

    Comment 25: One commenter asked for clarity regarding how data 
collected and transmitted to the NOAA Office Of Law Enforcement (OLE) 
would be treated, especially vessel position information (i.e., Vessel 
Monitoring Systems (VMS) data) or data collected for scientific 
monitoring purposes in the Gulf of Mexico commercial shrimp fishery. In 
addition, the commenter would like clarity that OLE data would enter 
the Federal Information Security System and thereby be under NMFS 
custody and control for protection as confidential information.
    Response: The NOAA OLE is an office under the NMFS. Every NMFS 
office, including OLE, maintains VMS and other forms of MSA 
confidential information in accordance with the NMFS's Federal 
Information Security Management Act requirements. The NMFS office 
responsible for initially collecting MSA confidential information has 
no bearing on OLE's authority to access and use any MSA confidential 
information collected by NMFS. VMS data, like other forms of 
confidential information, can be accessed by NMFS and others for 
fishery conservation and management purposes. In the case of the 
proposed data collected in the Gulf of Mexico shrimp fishery, the data 
has traditionally been submitted to NMFS, resides in NMFS' custody and 
control, and is managed within a NMFS FISMA domain. In cases where MSA 
confidential information must be used to enforce the provisions of the 
MSA,

[[Page 102009]]

that MSA confidential information may become part of the public record.

Access to and Disclosure of Confidential Information to a Council's 
Management Entities

    Comment 26: Comments were mixed on the proposed procedure that 
allows Council executive directors to request access to confidential 
information for scientific and statistical committee (SSC) and/or 
advisory committee or panel (AP) members. Those opposed said that the 
MSA does not authorize SSC/AP members to have access to confidential 
information. Other commenters asserted that State law may not permit 
such access to information that a State provides to NMFS in accordance 
with an agreement with the State. Some commenters expressed concern 
that SSC/AP members may gain a competitive advantage if given such 
access. Other commenters were in support of this procedure and 
requested broadening this approach to allow access to any individuals 
or groups who provide support to NMFS with respect to fishery 
conservation and management under the MSA such as technical management 
teams, cooperative researchers and contract employees.
    Response: The MSA authorizes disclosure of confidential information 
to the Councils: ``Nothing in this subsection [402(b)] shall be 
interpreted or construed to prevent the use for conservation and 
management purposes by the Secretary, or with the approval of the 
Secretary, the Council, of any information submitted in compliance with 
any requirement or regulation under this chapter . . .'' 16 U.S.C. 
1881a(b)(3). The MSA requires establishment of SSCs, 16 U.S.C. 
1852(g)(1), and APs that are necessary or appropriate to assist a 
Council in carrying out its functions, notably, the preparation of 
fishery management plans and amendments, 16 U.S.C. 1852(g)(2)-(h)(1). 
Given these mandates, the MSA authorizes disclosure of information to 
SSCs and APs if needed for conservation and management purposes and 
subject to the below-described procedures. Sec.  600.415(d)(5) also 
acknowledges the potential need for Council contractors to access 
confidential information. However, NMFS does not believe it is 
necessary to expand Sec.  600.415(d) to include any individuals or 
entities who might provide some support to NMFS related to MSA 
conservation and management.
    As explained in the preamble to the proposed rule, a Council may 
request, through its executive director, that members of its SSCs and 
APs be given access to confidential information. Proposed Sec.  
600.415(d), however, provided that the executive director could make 
this request on their own initiative. This final rule revises that 
procedure to reflect the procedure stated in the preamble; i.e., that a 
Council may, through its executive director, request that members of 
its SSCs and APs be provided access to confidential information. This 
procedure can be applied consistent with a more restrictive State law. 
For example, a Council could include in its standard operating 
procedures a requirement to consider whether access by Council SSC or 
AP members may be in potential conflict with a State law. A Council 
member for a State with such a concern could raise it for consideration 
by the Council.
    Before approving any such request, NMFS must determine that access 
will not result in any Council member having a personal or competitive 
advantage (Sec.  600.415(d)(3)-(4)). Further, NMFS will consider 
whether providing confidential information is inconsistent with State 
law. NMFS recognizes that State law applicable to information that NMFS 
accesses under an information sharing agreement with a State may not 
always align with what is authorized under the MSA and other applicable 
Federal law. NMFS coordinates with its State partners to address such 
issues as they arise but has not experienced an unresolvable conflict 
between State and Federal mandates to date.

Definition of Business of Any Person

    Comment 27: Comments were mixed on the proposed definition of 
``business of any person.'' Some commenters supported the proposed 
definition because business information and identifying information 
need protection. These commenters stated that the definition would 
apply to information that reasonably constitutes proprietary 
information and would cause competitive harm if disclosed. Other 
commenters opposed this definition, stating that it is contrary to the 
MSA and the agency's long-standing interpretation of ``identity or 
business of any person'' as referring to the identity of a person or a 
business. These commenters further stated that the definition is too 
broad and overly protective and would violate MSA National Standard 2 
(NS 2) and the Open Government Policy by limiting public access to 
information for use in cooperative research and other activities 
related to fisheries management.
    Response: MSA section 402(b)(3) expressly states that aggregated or 
summarized information may be released only if it does not directly or 
indirectly disclose the ``identity or business of any person'' 
(emphasis added). This rule amends existing regulations to better align 
with the statutory text. Since the statute distinguishes between the 
identity or business of any person, the regulations must go beyond a 
reference to identity. In practice, NMFS aggregates information to 
protect a person's identity as well as the person's business 
information. In other words, NMFS does not simply strip identifiers off 
information that it releases. Many fishermen have business interests in 
protecting information related to their fishing practices, including 
the time, location and gear used. Disclosure of this information at a 
vessel-specific level, even if stripped of identifiers, could raise 
concerns about competitive disadvantages. In NMFS's experience, the 
types of operational and financial information listed in the ``business 
of any person'' definition are precisely the types of information that, 
if disclosed at the vessel-specific level, could result in competitive 
harm. The definition is clear and relatively easy to apply, reflects a 
common understanding of what constitutes the ``business'' of a person 
in the MSA regulatory context, and is consistent with the agency's 
long-standing practice.
    NMFS supports transparency, public participation, and collaboration 
through the MSA's regional, process-intensive approach to fishery 
management. For information on the U.S. Open Government initiative, go 
to https://www.gsa.gov/governmentwide-initiatives/us-open-government. 
NMFS agrees that access to fisheries information facilitates 
transparency, public participation, and collaboration and that these 
goals should be taken into account in its handling of confidential 
information. To that end, NMFS intends to develop ICPs to provide 
guidance on the minimum level of aggregation disclosure advisable to 
protect the identity and the business of any person, consistent with 
MSA confidentiality requirements. NMFS also intends that the ICPs will 
provide guidance on when information should be considered to indirectly 
disclose a person's identity or business. NMFS disagrees that the 
definition of ``business of any person'' is inconsistent with National 
Standard 2, which requires the use of best scientific information 
available but does not address confidentiality of information.
    Comment 28: Some commenters said that NMFS should revise the 
proposed definition of ``business of any person'' to further detail 
what constitutes financial and operational information,

[[Page 102010]]

and one commenter recommended revising the definition to include 
information reported by processors such as amount processed or 
processing capacity.
    Response: NMFS disagrees that revisions are necessary to detail or 
further clarify what constitutes the business of any person. MSA 402(b) 
broadly requires the confidentiality of any information that a person 
is required to submit in compliance with the Act and any observer 
information. The definition covers common types of financial or 
operational information such as ownership information or fishing 
locations and is not intended to be exhaustive. The definition, which 
is finalized as proposed, includes estimated and actual processing 
capacity of U.S. fish processors, so it is not necessary to add 
``amount processed.''
    Comment 29: A commenter stated that NMFS should exclude landings, 
revenue, and effort on annual or fishing year basis from the proposed 
rule definition for confidential information in cases where data is 
available from fewer than three vessels or entities. In the commenter's 
view, public interest in this information outweighs the interest of the 
participants in the fishery who are benefiting from a public resource.
    Response: Under MSA section 402(b)(3), NMFS may publicly release 
confidential information only in an aggregate or summary form that does 
not directly or indirectly disclose the identity or business of any 
person. Aggregated information from at least three submissions or 
entities is often necessary to achieve that standard. If data from only 
two entities is aggregated, one entity could identify itself and/or its 
own data, thus disclosing the other entity's business and/or identity. 
For that reason, NMFS is not revising the definition of ``confidential 
information'' to refer to fewer than three vessels or entities. NMFS 
will explore the potential for disclosing information in a summary form 
on an ad hoc basis.
    Comment 30: Many commenters requested that NMFS clarify through 
ICPs how confidential information can be aggregated or summarized into 
a form that would not directly or indirectly disclose the identity or 
business of any person. A commenter felt that the proposed rule missed 
an opportunity to address the level at which confidential information 
must be aggregated for it to be releasable to the public.
    Response: NMFS determined that it was necessary to revise the 
definition of ``aggregate or summary form'' and to define ``business of 
any person'' before it developed an ICP that provides guidelines for 
aggregation and summarization of confidential information. As stated 
above, development of ICPs based on definitions that could change would 
not be efficient. With the revised definitions finalized through this 
rule, NMFS can proceed to develop guidance on the minimum level of 
aggregation or summarization advisable to protect the identity and the 
business of any person. In doing so, NMFS intends to advance and 
balance three objectives: transparency through release of the broadest 
amount of information at the finest level detail; protection of the 
identity and the business of any person; and responsiveness to 
individual information requests.
    Comment 31: A commenter requested that NMFS clarify whether the 
proposed rule would change existing practices on the requests for 
confidential information that is held by different entities (e.g., a 
State fishery management commission, a State fishery management agency, 
and NMFS).
    Response: The final rule clarifies NMFS' practices but does not 
change them or the practices that a state fishery management commission 
or a state may have for responding to requests for confidential 
information. Access, maintenance, and release requirements under the 
rule apply only to information that is under NMFS' custody and control 
(Sec.  600.405). NMFS treats information as subject to its custody and 
control when it physically obtains the information, which, for 
electronically submitted information, is when the information enters a 
NMFS FISMA domain (See Background section for FISMA explanation).
    In addition to subpart E regulations, requests for confidential 
information subject to NMFS' custody and control would be addressed by 
FOIA request procedures under NOAA Administrative Order 205-14 and any 
applicable ICPs. Requests for information under the custody and control 
of a State fishery management commission or a state would be subject to 
their requirements and procedures. NMFS will continue to work with 
these entities in a non-regulatory fashion to reach mutual agreement on 
how to maintain the confidentiality of information submitted to them 
pursuant to an MSA requirement.

Applicability and Authority of MSA and Marine Mammal Protection Act 
(MMPA)

    Comment 32: Several commenters supported the approach in the 
proposed rule with respect to marine mammals while others expressed 
concern. In particular, some commenters supported the proposed rule's 
treatment of details that concern interactions with marine mammals as 
non-confidential for MSA purposes. Other commenters stated that the 
proposed rule is inconsistent with the protection of identity and 
business of any person under the MSA and the MMPA and other regulations 
protecting confidential information. Many commenters expressed concern 
that disclosure of details of interactions with marine mammals would 
indirectly disclose the identity of the vessel involved in the 
interaction and urged NMFS to take steps to prevent such disclosures. 
Some commenters recommended that NMFS release general area descriptions 
or latitude/longitude block areas instead of specific interaction 
locations.
    Response: For the reasons stated in the proposed rule, this final 
rule continues to exclude observer information on interactions with 
marine mammals from the definition of confidential information (Sec.  
600.10). This information can be publicly disclosed provided that 
information regarding fishing practices and gear would not constitute a 
trade secret under the FOIA, 5 U.S.C. 552(b)(4). NMFS included the 
trade secret text in proposed and final Sec.  600.10, recognizing 
concerns that disclosing details of marine mammal interactions (take) 
may indirectly disclose the identity of vessels involved in 
interactions.
    Fishery management plans and regulations under the MSA must be 
consistent with applicable law, which includes the MMPA. See 16 U.S.C. 
1853(a)(1)(C) and 1854(a)(1), (3), (b)(1), and (c)(7). Release of 
observer information that concerns interactions with marine mammals 
advances implementation of MMPA mandates, and, in particular, such 
information is critical for deliberations of MMPA Take Reduction Teams 
(TRTs). See 89 FR at 17367-17368 (providing further explanation of MMPA 
mandates in proposed rule preamble).
    This final rule reflects NMFS's long-standing approach as the 
agency has been presenting detailed information on commercial 
fisheries' interactions with marine mammals to TRTs since the program 
was mandated in 1994 by the MMPA. To prevent disclosures of the 
identity of a vessel involved in interactions, NMFS evaluates whether a 
release of detailed interaction information would, if combined with 
past disclosures, identify the vessel involved in the interaction. 
Additionally, if appropriate for purposes of the TRTs' goals and 
objectives, we routinely strive to present

[[Page 102011]]

data in aggregated form, particularly when illustrating latitude/
longitude positions of individual takes. For example, TRTs, which 
include fishing industry representatives, may be particularly 
interested in viewing take locations by season to discern whether 
patterns in bycatch exist. In that case, NMFS would aggregate all 
available years of data to evaluate seasonal patterns. Further, the 
specific location of an interaction may in some cases be essential to 
develop meaningful mitigation measures and comply with the MMPA goals 
of reducing mortality and serious injury incidental to commercial 
fishing. For example, a particular marine mammal interaction may have 
occurred in association with a specific oceanographic feature (e.g., a 
seamount, the continental shelf break) that would only be recognizable 
when evaluating individual latitude/longitude positions and not as a 
block area. In these circumstances, the TRTs cannot work effectively 
without disclosing the detailed, vessel-specific information upon which 
their analysis and determinations rely. In recent years, NMFS has 
disclosed this information through TRTs without receiving concerns that 
such disclosure harms MSA confidentiality interests. By knowing this 
information, TRTs can design more precise, targeted recommendations for 
mitigation measures, instead of broad, overly restrictive 
recommendations, which can lead to and has led to reduced regulatory 
burden on a fishery.
    Comment 33: Several commenters recommended that photos and videos 
of marine mammals should be excluded from the definition of 
confidential information given they cannot readily be aggregated. The 
commenters also asserted that other information such as the nature and 
severity of interactions, samples collected, handling and release 
details, etc. should be excluded from the definition.
    Response: While photos and videos may be useful, they are not among 
the specific information that TRTs need to develop measures to reduce 
take occurring in a fishery. However, NMFS has and will continue to 
release marine mammal injury or mortality events captured by cameras if 
the image does not disclose the identity or any unique gear 
configurations that may constitute a trade secret as defined for 
purposes of FOIA Exemption Four. See NMFS' Policy on Electronic 
Technologies and Fishery-Dependent Data Collection available at https://media.fisheries.noaa.gov/2022-05/04-115-04_0.pdf. In making such 
public disclosures, NMFS will evaluate the image that captures the 
marine mammal interaction and if feasible and practicable take steps to 
obscure identifying information prior to releasing it publicly. In 
contrast to photos, video collected through EM systems cannot be 
aggregated or summarized. NMFS will provide access to that information, 
and release it publicly, only as authorized under Sec. Sec.  600.415 
and 600.420.
    Details of interactions (e.g., nature and severity of interactions, 
samples collected, handling and release details, etc.) may also be 
useful, but they are not among the specific information that TRTs need 
to develop measures to reduce take occurring in a fishery. Thus, NMFS 
is not excluding this information as well as photos and videos from the 
definition of confidential information.
    Comment 34: Some commenters stated that NMFS could allow TRTs to 
receive information without releasing it publicly by restricting 
release of detailed information on interactions with marine mammals to 
members of TRTs through confidentiality agreements.
    Response: NMFS considered requiring members of TRTs to sign non-
disclosure agreements but determined this approach is not appropriate 
because observer information on marine mammal interactions described in 
Sec.  600.10 is not confidential information and may be disclosed. 
Additionally, as noted in the proposed rule, TRTs established under the 
MMPA must meet in public and develop plans to reduce incidental 
mortality and serious injury; specific details of interactions with 
marine mammals are critical to developing such plans. See 16 U.S.C. 
1387(f)(6) (establishing and setting forth requirements for TRTs).
    Comment 35: One commenter recommended that NMFS clarify the 
relationship between the MSA and MMPA, the authorities governing 
deployment of observers and the collection of information under each 
statute, and whether the confidentiality rules differ depending on the 
type of information and purpose for which they will be used.
    Response: Section 600.10 of the proposed rule and final rules 
exclude details of observer information on interactions with marine 
mammals from the definition of ``confidential information'' for the 
purposes of the MSA. NMFS may require observers and observer coverage 
and other data reporting and collection under multiple statutory 
authorities depending on the conservation and management needs of and 
objectives of the program and the nature of, gear used, area fished 
during, or other circumstances for a particular trip. Regardless of 
whether an observer is deployed in a fishery under both MMPA and MSA 
authorities or solely MSA authority, observer information related to 
interactions with marine mammals will not be considered confidential 
information for MSA purposes.
    Comment 36: Some commenters viewed NMFS' approach to excluding 
marine mammal interactions as too narrow and requested broadening it to 
include all protected species and bycatch data under the MMPA, 
Endangered Species Act (ESA), and Migratory Bird Treaty Act (MBTA), 
including non-protected species bycatch. One commenter asserted that 
the approach should be broadened to include vessel interactions with 
ESA-listed species, noting that specific conditions imposed on a 
fishery by ESA section 7 biological opinions and incidental take 
statements require detailed reporting and analyses of takes to assess 
impacts of proposed actions on ESA-listed species. The commenter 
asserted that this information should be reported publicly so that it 
can be used by stakeholders to review and examine, and sometimes 
challenge, agency decisions under the ESA, given the ESA explicitly 
provides for citizen suits in this regard.
    Response: The MSA does not allow, nor do other Federal statutes 
require, disclosure of details on interactions with ESA-listed species, 
seabirds, bycatch of nonprotected species, or species protected under 
state statutes. See 89 FR at 17367-17368 (providing further explanation 
of ESA in proposed rule preamble). Observer information regarding 
interactions with ESA-listed species or other protected species would 
continue to be releasable in aggregate or summary form consistent with 
MSA section 402(b)(3) and these regulations.

Proposed Changes Clarifying NMFS' Confidentiality Regulations

    Comment 37: Some commenters said NMFS should clarify whether 
regulations are necessary to implement MSA 402(b)(1)(I), 16 U.S.C. 
1881a(b)(1)(I), which allows other federal agencies to access 
information for enforcement of forced labor prohibitions.
    Response: For ease of reference, Sec.  600.415 of the final rule 
includes the statutory text of MSA 402(b)(1)(I). NMFS does not believe 
regulations are needed to interpret that text. NMFS will prescribe 
additional procedures to implement this exception by regulation as may 
be necessary to preserve the confidentiality of information.

[[Page 102012]]

Entities Potentially Affected by the Rule

    Comment 38: A commenter stated that any vessel with a Federal 
fishing permit should be included in a description of potential 
entities affected by the rule because any of those vessels might be 
subject to observer coverage and thus potentially affected if there are 
changes to how observer data are treated (confidential or not).
    Response: This rule applies to information that is maintained by 
NMFS and subject to its custody and control and does not impose 
regulatory burdens on vessels. The rule does not change the extent of 
required observer coverage, and therefore there is no need to analyze 
impacts on vessels that might be potentially be subject to observer 
coverage. The rule broadly addresses NMFS' responsibility under MSA 
section 402(b) to maintain as confidential any information that a 
person is required to submit in compliance with any regulation or 
requirement under the MSA and any observer information. 89 FR at 17359. 
If a vessel were to be subject to MSA observer coverage requirements, 
the observer information would be handled as confidential consistent 
with the Act and this rule.

Changes From the Proposed Rule

    In response to public comment, and after further agency 
consideration, NMFS has made minor edits for clarity and several 
substantive changes between the proposed and final rules. These changes 
are summarized and explained here.
    The proposed rule (Sec.  600.10) defined confidential information 
to not include (1) vessel-specific information provided in satisfaction 
of obligations of the United States to share information under a RFMO 
of which the United States is a member and (2) any information 
collected by NMFS under the MSA regarding foreign vessels. This final 
rule deletes references to these two categories from Sec.  600.10 and 
addresses the FMPA in Sec.  600.415(f).
    Final Sec.  600.405 continues to state that the regulations apply 
to confidential information as defined in Sec.  600.10. To clarify this 
section, NMFS revised it to provide that ``[a]gency access, 
maintenance, and release responsibilities [under this subpart] apply 
only to confidential information under NMFS' custody and control.''
    In the proposed rule, NMFS also defined ``electronic monitoring 
service provider'' as any person who manages observer information 
collected by an electronic monitoring system required under an MSA 
regulation. The proposed rule left out ``or as part of a cooperative 
research initiative,'' a phrase that is in the MSA definition of 
observer information, 16 U.S.C. 1802(32). This final rule adds that 
statutory text to the regulatory definition.
    NMFS proposed a procedure under which a Council may, through its 
executive director, request that members of its SSC and AP that are not 
Federal or State employees be granted access to confidential 
information. Although accurately described in the preamble, the 
proposed regulation incorrectly provided that the Council executive 
director, rather than the Council itself, may initiate it. This final 
rule corrects this error. Additionally, NMFS makes a technical revision 
to this procedure so that it applies to Members of the Council's 
advisory panels (plural), rather than a panel.
    To implement the FMPA, the proposed rule excluded two categories of 
information from the definition of confidential information (see Sec.  
600.10 explanation above) and addressed access to information in 
proposed Sec. Sec.  600.415(f)-(g). The final rule deletes FMPA-related 
references in Sec.  600.10, deletes Sec.  600.415(g), and addresses the 
FMPA in revised Sec.  600.415(f). The revised text states, for the 
purposes of sections 608(b) and 606(d)(2) of the FMPA (16 U.S.C. 
1826i(b) and 1826g(d)(2)), international fishery agreement has the same 
meaning as international fishery management agreement at 50 CFR 
300.201. In addition, NMFS may disclose information, as authorized 
under, and subject to the requirements and conditions of, section 
608(b) or 606(d)(2) of the FMPA to entities specified in those 
sections. For purposes of applying section 608(b) and 606(d)(2), the 
confidentiality requirements of section 402(b) of the Magnuson-Stevens 
Act, 16 U.S.C. 1881a(b), shall not apply with respect to (1) 
obligations of the United States to share information under a Regional 
Fishery Management Organization (RFMO) of which the United States is a 
Member; or (2) information collected by NMFS regarding foreign fishing 
vessels. The same cross-reference to 50 CFR 300.201 (international 
fishery management agreement), noted above, was in the proposed rule.
    The final rule includes a confidentiality of information exception 
from MSA 402(b)(1)(I), 16 U.S.C. 1881a(b)(1)(I), related to illegal 
unreported, or unregulated fishing and forced labor. See final rule 
element # 7 in the Background section, above. NMFS did not include the 
statutory text in the proposed rule, but for ease of reference added it 
to the final rule regulatory text.

Classification

    NMFS is issuing this final rule pursuant to section 305(d) of the 
MSA. The NMFS Assistant Administrator has determined that this final 
rule is consistent with the MSA and other applicable laws, including 
the FMPA. This final rule has been determined to be not significant for 
purposes of Executive Order 12866. There are no relevant Federal rules 
that may duplicate, overlap, or conflict with this action. This final 
rule contains no information collection requirements under the 
Paperwork Reduction Act of 1995.

Certification Under the Regulatory Flexibility Act Analysis

    The Chief Counsel for Regulation, Department of Commerce, certified 
to the Chief Counsel for Advocacy of the Small Business Administration 
during the proposed rule stage that this action will not have a 
significant economic impact on a substantial number of small entities. 
The factual basis for this certification was published in the proposed 
rule and is not repeated here. NMFS received one comment regarding this 
certification. The commenter stated that any vessel with a Federal 
fishing permit should be included in a description of potential 
entities affected by the rule because any of those vessels might be 
subject to observer coverage and thus potentially affected if there are 
changes to how observer data are treated (confidential or not). This 
rule applies to information that is maintained by NMFS and subject to 
its custody and control and does not impose regulatory burdens on 
vessels. The rule does not change the extent of required observer 
coverage, and therefore there is no need to analyze impacts on vessels 
that might potentially be subject to observer coverage. The rule 
broadly addresses NMFS' responsibility under MSA section 402(b) to 
maintain as confidential any information that a person is required to 
submit in compliance with any regulation or requirement under the MSA 
and any observer information. If a vessel were to be subject to MSA 
observer coverage requirements, the observer information would be 
handled as confidential consistent with the Act and this rule.
    This final rule is not expected to have a significant economic 
impact on a substantial number of small entities. As a result, a final 
regulatory flexibility analysis was not required, and none was 
prepared.

[[Page 102013]]

Lists of Subjects in 50 CFR Part 600

    Confidential business information, Fisheries.

    Dated: December 9, 2024.
Samuel D. Rauch, III,
Deputy Assistant Administrator for Regulatory Programs, National Marine 
Fisheries Service.

    For the reasons set out in the preamble, NMFS amends 50 CFR part 
600 as follows:

0
1. The authority citation for part 600 continues to read as follows:

    Authority: 5 U.S.C. 561 and 16 U.S.C. 1801 et seq.


0
2. Amend Sec.  600.10 by:
0
a. Revising the definition of ``Aggregate or summary form'';
0
b. Adding, in alphabetical order, definitions for ``Business of any 
person'', ``Confidential information'',
0
c. Removing the definitions of ``Confidential statistics'' and ``Data, 
statistics, and information''; and
0
d. Adding, in alphabetical order, definitions for ``Electronic 
monitoring service provider'', ``Information sharing obligation of a 
Regional Fishery Management Organization (RFMO)'', ``Observer 
provider'', and ``Regional Fishery Management Organization''.
    The revisions and additions read as follows:


Sec.  600.10  Definitions.

* * * * *
    Aggregate or summary form means information structured in such a 
way that the identity or business of any person (defined at 16 U.S.C. 
1802(36)) who submitted the information cannot be directly or 
indirectly determined either from the present release of the 
information or in combination with other releases.
* * * * *
    Business of any person means:
    (1) Financial information such as ownership information, cash flow 
documents, income statements, or information that contributes to the 
preparation of balance sheets; or
    (2) Operational information such as fishing locations, time of 
fishing, specific gear configuration, catch by species in numbers or 
weight thereof, number of hauls, number of employees and estimated 
processing capacity of and the actual processing capacity utilized by 
U.S. fish processors.
* * * * *
    Confidential information includes any observer information as 
defined under 16 U.S.C. 1802(32) or any information submitted to the 
Secretary, a State fishery management agency, or a marine fisheries 
commission by any person in compliance with any requirement or 
regulation under the Magnuson-Stevens Act. Confidential information 
does not include observer information related to interactions with 
species protected under the Marine Mammal Protection Act: the date, 
time, and location of interactions, the type of species, and the 
fishing practices and gear involved provided that information regarding 
fishing practices and gear would not constitute a trade secret under 
the Freedom of Information Act, 5 U.S.C. 552(b)(4).
* * * * *
    Electronic monitoring service provider means any person who manages 
observer information collected by an electronic monitoring system 
required under an MSA regulation or as part of a cooperative research 
initiative.
* * * * *
    Information sharing obligation of a Regional Fishery Management 
Organization (RFMO) means a measure or part thereof that creates a 
binding requirement on the United States to report certain information 
by virtue of its membership in the respective RFMO.
* * * * *
    Observer provider means any person that collects observer 
information by placement of observers on or in fishing vessels, 
shoreside processors, or stationary floating processors under a 
requirement of the MSA or as part of a cooperative research initiative.
* * * * *
    Regional Fishery Management Organization (RFMO) means an 
intergovernmental fisheries organization or arrangement, as 
appropriate, that has the competence to establish conservation and 
management measures.
* * * * *


Sec.  600.130  [Amended]

0
3. In Sec.  600.130, remove the word ``statistics'', wherever it 
appears, and add in its place the word ``information''.

0
4. Subpart E to part 600 is revised to read as follows:
Subpart E--Confidentiality of Information
Sec.
600.405 Applicability.
600.410 Protection of confidential Information.
600.415 Access to confidential information
600.420 Release of confidential information.
600.425 Release of information in aggregate or summary form.

Subpart E Confidentiality of Information


Sec.  600.405  Applicability.

    This subpart applies to confidential information as defined at 
Sec.  600.10. Agency access, maintenance, and release responsibilities 
apply only to confidential information that is under NMFS' custody and 
control.


Sec.  600.410  Protection of confidential information.

    (a) General. This section requires control procedures related to 
confidential information and provides procedures for the protection of 
certain confidential information submitted to NMFS and State fishery 
management agencies or marine fisheries commissions pursuant to a 
statutory or regulatory requirement imposed pursuant to the Magnuson-
Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act).
    (b) Confidential information collected by NMFS. NMFS must establish 
internal control procedures for the maintenance of and access to any 
confidential information. The control procedures should include, but 
are not limited to, the following:
    (1) Requirements for information system management and data storage 
to prevent unauthorized access to or disclosure of confidential 
information;
    (2) Procedures for NMFS employees to access confidential 
information;
    (3) Procedures for providing access to confidential information by 
states, Councils, and Marine Fisheries Commissions;
    (4) Procedures for evaluating whether members of a Council, or a 
Council Scientific and Statistical Committee (SSC), plan team, or 
Advisory Panel (AP) could gain personal or competitive advantage from 
access to confidential information under Sec.  600.415(d);
    (5) Procedures for evaluating requests by contractors, grantees, 
cooperative agreement recipients and other external individuals and 
organizations to access confidential information;
    (6) Procedures for vessel owners to access and request confidential 
information, including historic information associated with a fishing 
permit;
    7) Standardized sharing agreements that acknowledge the 
confidentiality and protection of information from public disclosure;
    (8) Template for written authorization for release of confidential 
information for purposes of Sec.  600.420(f);
    (9) Procedures for aggregating and summarizing confidential data 
and responding to requests for non-confidential information;

[[Page 102014]]

    (10) Any other procedures as necessary to maintain the 
confidentiality of information.
    (c) Confidential information collected by State Fishery Management 
Agencies or Marine Fisheries Commissions. NMFS may enter into an 
agreement with a state or a Marine Fisheries Commission for the 
collection of confidential information on behalf of the Secretary 
provided that NMFS, as part of the agreement, determines that:
    (1) The state has confidentiality of information authority 
comparable to the Magnuson-Stevens Act and that the state will exercise 
this authority to prohibit public disclosure of confidential 
information;
    (2) The marine fisheries commission has established policies and 
procedures comparable to the Magnuson-Stevens Act and that the 
Commission will exercise such policies and procedures to prohibit 
public disclosure of confidential information.
    (d) Observer and Electronic Monitoring Services. (1) Observer 
providers. NMFS may allow the collection of observer information by an 
observer pursuant to a confidentiality agreement that:
    (i) Specifies procedures that the observer provider will apply to 
protect confidential information from public disclosure; and
    (ii) Requires that the observer provider, each observer, and each 
of its other employees that will handle confidential information 
acknowledge the requirement to maintain the confidentiality of observer 
information and the civil penalties for unauthorized use or disclosure 
of such information provided under 16 U.S.C. 1858.
    (2) Electronic monitoring service providers. NMFS may allow the 
handling of observer information by an electronic service provider 
pursuant to a confidentiality agreement that:
    (i) Specifies procedures that the electronic monitoring service 
provider will apply to protect confidential information from public 
disclosure; and
    (ii) Requires that the electronic monitoring service provider, and 
each of its employees who will handle confidential information, 
acknowledge the requirement to maintain the confidentiality of observer 
information and the civil penalties for unauthorized use or disclosure 
of such information provided under 16 U.S.C. 1858.
    (3) As part of any agreement with an observer provider under 
paragraph (d)(1) of this section, NMFS may allow the sharing of 
observer information among and between observers and observer providers 
for:
    (i) Training or preparation of observers for deployments on 
specific vessels; or
    (ii) Validating the accuracy of the observer information collected.


Sec.  600.415  Access to confidential information.

    Confidential information may be accessed by the following persons 
subject to any specified conditions and procedures:
    (a) Federal employees. (1) Responsible for fishery management plan 
(FMP) development, monitoring, or enforcement, including persons that 
need access to confidential information to perform functions authorized 
under a Federal contract, cooperative agreement, or grant awarded by 
NOAA/NMFS;
    (2) At the request of another Federal agency, if providing the 
information supports homeland security and national security 
activities, including the Coast Guard's homeland security missions as 
defined in section 888(a)(2) of the Homeland Security Act of 2002 (6 
U.S.C. 468(a)(2)); or,
    (3) To the extent necessary and appropriate to administer Federal 
programs established to combat illegal, unreported, or unregulated 
fishing or forced labor (as such terms are defined in section 11329 of 
the Don Young Coast Guard Authorization Act of 2022 [16 U.S.C. 1885a 
note]), which shall not include an authorization for such agencies to 
release data to the public unless such release is related to 
enforcement.
    (b) State or marine fisheries commission employees. As necessary to 
further the mission of the Department of Commerce, subject to an 
agreement with NMFS that prohibits public disclosure of confidential 
information;
    (c) State enforcement personnel. State employees who are 
responsible for enforcing FMPs, provided that the state for which the 
employee works has entered into a Joint Enforcement Agreement with NOAA 
and the agreement is in effect;
    (d) Councils. A Council may, through its Executive Director, 
request access for the following:
    (1) The Council's employees who are responsible for FMP development 
and monitoring;
    (2) Members of the Council for use by the Council for conservation 
and management, but only if NMFS determines that access will not result 
in any Member having a personal or competitive advantage;
    (3) Members of any Council scientific and statistical committee 
(SSC) established under section 302(g) of the Magnuson-Stevens Act who 
are not Federal or State employees, if necessary for the SSC to assist 
and advise the Council as provided under the Magnuson-Stevens Act, but 
only if NMFS determines that access will not result in any Member 
having a personal or competitive advantage;
    (4) Members of any Council advisory panel (AP) established under 
section 302(g) of the Magnuson-Stevens Act, if necessary for the AP to 
provide information and recommendations on, and assist in the 
development of FMPs and amendments thereto, but only if NMFS determines 
that access will not result in any Member having a personal or 
competitive advantage;
    (5) A contractor of the Council for use in such analysis or studies 
necessary for conservation and management purposes but only if approved 
by NMFS and subject to a confidentiality agreement; and
    (e) Vessel Monitoring System Information. Nothing in these 
regulations contravenes section 311(i) of the Magnuson-Stevens Act 
which requires the Secretary to make vessel monitoring system 
information directly available to the following:
    (1) Enforcement employees of a State with which NMFS has entered 
into a Joint Enforcement Agreement and the agreement is in effect;
    (2) State management agencies involved in, or affected by, 
management of a fishery if the State has entered into an agreement with 
NMFS that prohibits public disclosure of the information.
    (f) High Seas Driftnet Fishing Moratorium Protection Act (FMPA). 
(1) For purposes of sections 608(b) and 606(d)(2) of the FMPA (16 
U.S.C. 1826i(b) and 1826g(d)(2)), international fishery agreement has 
the same meaning as international fishery management agreement at 50 
CFR 300.201.
    (2) NMFS may disclose information, as authorized under, and subject 
to the requirements and conditions of, section 608(b) or 606(d)(2) of 
the FMPA to entities specified in those sections.
    (3) For purposes of applying section 608(b) and 606(d)(2), the 
confidentiality requirements of section 402(b) of the Magnuson-Stevens 
Act, 16 U.S.C. 1881a(b), shall not apply with respect to:
    (i) Obligations of the United States to share information under a 
Regional Fishery Management Organization (RFMO) of which the United 
States is a Member; or
    (ii) Information collected by NMFS regarding foreign fishing 
vessels.

[[Page 102015]]

Sec.  600.420  Release of confidential information.

    NMFS will not disclose to the public any information made 
confidential pursuant to the Magnuson-Stevens Act, except the agency 
may disclose information when:
    (a) Authorized by regulations issued by the Secretary to implement 
recommendations contained in an FMP prepared by the North Pacific 
Council and approved by NMFS to allow disclosure of observer 
information to the public of weekly summary bycatch information 
identified by vessel or for haul-specific bycatch information without 
vessel identification;
    (b) Observer information is necessary in proceedings to adjudicate 
observer certifications;
    (c) Information is required to be submitted to the Secretary for 
any determination under a limited access program (LAP). This exception 
applies at the level of confidential information that NMFS has used, or 
intends to use, for a regulatory determination under a LAP. This 
includes information that was submitted before the fishery was a LAP 
and that NMFS subsequently uses or intends to use for a LAP 
determination. For the purposes of this exception:
    (1) Limited Access Program means a program that allocates exclusive 
fishing privileges, such as a portion of the total allowable catch, an 
amount of fishing effort, or a specific fishing area, to a person.
    (2) Determination means a decision that is specific to a person and 
exclusive fishing privileges held or sought under a limited access 
program. These decisions are allocations, approval or denial of a lease 
or sale of allocated privileges or annual allocation, and end of season 
adjustments.
    (d) Required to comply with a Federal court order. For purposes of 
this exception:
    (1) Court means an institution of the judicial branch of the U.S. 
Federal Government. Entities not in the judicial branch of the Federal 
Government are not courts for purposes of this section;
    (2) Court order means any legal process which satisfies all of the 
following conditions:
    (i) It is issued under the authority of a Federal court;
    (ii) A judge or magistrate judge of that court signs it; and
    (iii) It commands NMFS to disclose confidential information as 
defined under Sec.  600.10.
    (e) Necessary for enforcement of the Magnuson-Stevens Act or any 
other statute administered by NOAA or when necessary for enforcement of 
any State living marine resource laws, if that State has a joint 
enforcement agreement that is in effect.
    (f) A person that is subject to a Magnuson-Stevens Act submission 
of information requirement or their designee provides written 
authorization to the Secretary authorizing release of such information 
to other persons for reasons not otherwise provided for in section 
402(b) of the Magnuson-Stevens Act and such release does not violate 
other requirements of the Magnuson-Stevens Act. That person or their 
designee must prove identity, and authorization to act if serving as a 
designee, by a statement consistent with 28 U.S.C. 1746, which permits 
statements to be made under penalty of perjury as a substitute for 
notarization. The statement of identity, and authority to serve as a 
designee, must be in the following form:
    (1) If executed outside the United States: ``I declare (or certify, 
verify, or state) under penalty of perjury under the laws of the United 
States of America that the foregoing is true and correct. Executed on 
(date). (Signature)''.
    (2) If executed within the United States, its territories, 
possessions, or commonwealths: ``I declare (or certify, verify, or 
state) under penalty of perjury that the foregoing is true and correct. 
Executed on (date). (Signature)''.


Sec.  600.425  Release of information in aggregate or summary form.

    NMFS may disclose in any aggregate or summary form information that 
is required to be maintained as confidential under these regulations.

0
5. In Sec.  600.725, add paragraph (y) to read as follows:


Sec.  600.725  General prohibitions.

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

[FR Doc. 2024-29366 Filed 12-16-24; 8:45 am]
BILLING CODE 3510-22-P