[Federal Register Volume 77, Number 100 (Wednesday, May 23, 2012)]
[Proposed Rules]
[Pages 30486-30496]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-12513]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

50 CFR Part 600

[Docket No. 070719377-2189-01]
RIN 0648-AV81


Confidentiality of Information; Magnuson-Stevens Fishery 
Conservation and Management Reauthorization Act

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

ACTION: Proposed rule.

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SUMMARY: The National Marine Fisheries Service (NMFS) proposes 
revisions to existing regulations governing the confidentiality of 
information submitted in compliance with any requirement or regulation 
under the Magnuson-Stevens Fishery Conservation and Management Act 
(Magnuson-Stevens Act or MSA). The purposes of these revisions are to 
make both substantive and non-substantive changes necessary to comply 
with the MSA as amended by the 2006 Magnuson-Stevens Fishery 
Conservation and Management Reauthorization Act (MSRA) and the 1996 
Sustainable Fisheries Act (SFA). In addition, revisions are necessary 
to address some significant issues that concern NMFS' application of 
the MSA confidentiality provision to requests for information.

DATES: Written comments on the proposed rule must be received on or 
before June 22, 2012.

ADDRESSES: You may submit comments on this document, identified by FDMS 
Docket Number NOAA-NMFS-2012-0030, by any of the following methods:
     Electronic Submission: Submit all electronic public 
comments via the Federal e-Rulemaking Portal www.regulations.gov. To 
submit comments via the e-Rulemaking Portal, first click the ``submit a 
comment'' icon, then enter NOAA-NMFS-2012-0030 in the keyword search. 
Locate the document you wish to comment on from the resulting list and 
click on the ``Submit a Comment'' icon on the right of that line.
     Mail: Submit written comments to Karl Moline, NMFS, 
Fisheries Statistics Division F/ST1, Room 12441, 1315 East West 
Highway, Silver Spring, MD 20910.
     Fax: (301) 713-1875; Attn: Karl Moline.
    Instructions: Comments must be submitted by one of the above 
methods to ensure that the comments are received, documented, and 
considered by NMFS. Comments sent by any other method, to any other 
address or individual, or received after the end of the comment period, 
may not be considered. All comments received are a part of the public 
record and will generally be posted for public viewing on 
www.regulations.gov without change. All personal identifying 
information (e.g., name, address, etc.) submitted voluntarily by the 
sender will be publicly accessible. Do not submit confidential business 
information, or otherwise sensitive or protected information. NMFS will 
accept anonymous comments (enter ``N/A'' in the required fields if you 
wish to remain anonymous). Attachments to electronic comments will be 
accepted in Microsoft Word or Excel, WordPerfect, or Adobe PDF file 
formats only.

FOR FURTHER INFORMATION CONTACT: Karl Moline at 301-427-8225.

SUPPLEMENTARY INFORMATION: 

I. Background

    The Magnuson-Stevens Act authorizes the Secretary of Commerce 
(Secretary) to regulate domestic fisheries within the 200-mile U.S. 
Exclusive Economic Zone (EEZ). 16 U.S.C. 1811. Conservation and 
management of fish stocks is accomplished through Fishery Management 
Plans (FMPs). Eight regional fishery management councils (Councils) 
prepare FMPs and amendments to those plans for fisheries within their 
jurisdiction. Id. 1853. The Secretary has exclusive authority to 
prepare and amend FMPs for highly migratory species in the Atlantic 
Ocean. Id. 1852(a)(3), 1854(g).
    Information collection is an important part of the fishery 
management process. Conservation and management measures in FMPs and in 
their implementing regulations must be based on the best scientific 
information available (see National Standard 2, 16 U.S.C. 1851(a)(2)). 
Under section 303(a)(5) of the Magnuson-Stevens Act, any Fishery 
Management Plan a Council or the Secretary prepares must specify the 
pertinent information to be submitted to the Secretary with respect to 
commercial, recreational, or charter fishing, and fish processing in 
the fishery. Id. 1853(a)(5). In addition, section 303(b)(8) provides 
that an FMP may require that one or more observers be carried onboard a 
vessel for the purpose of collecting data necessary for the 
conservation and management of the fishery. Id. 1853(b)(8).
    The Magnuson-Stevens Act sets forth information confidentiality 
requirements at section 402(b), 16 U.S.C. 1881a(b). Under the Act as 
amended, the Secretary must maintain the confidentiality of any 
information that is submitted in compliance with the Act and any 
observer information. The MSA includes exceptions to these 
confidentiality requirements. Some exceptions allow for the sharing of 
confidential information with specified entities provided that these 
parties treat the information as confidential, while others allow for 
the release of information without restrictions. In addition, the MSA 
authorizes the Secretary to disclose information that is subject to the 
Act's confidentiality requirements in ``any aggregate or summary form 
which does not directly or indirectly disclose the identity or business 
of any person who submits such information.'' Id. 1881a(b)(3).
    Section 402(b)(3) of the Act provides that the ``Secretary shall, 
by regulation, prescribe such procedures as may be necessary to 
preserve the confidentiality of information submitted in compliance 
with any requirement or regulation under this Act * * *''. Id. 
1881a(b)(3). Accordingly, NMFS has promulgated confidentiality 
regulations, which are set forth at 50 CFR part 600, subpart E. Certain 
terms used in these regulations are defined under 50 CFR part 600, 
subpart A. NMFS last revised the regulations under subpart E in 
February 1998 (63 FR 7075). The revisions were non-substantive.

[[Page 30487]]

    NMFS now proposes substantive and non-substantive revisions to its 
regulations at 50 CFR part 600 subpart A, subpart B, and subpart E in 
order to implement confidentiality requirements amendments, which were 
included in the 1996 SFA and the 2006 MSRA. NMFS proposes additional 
revisions to address some significant issues that have arisen in the 
day-to-day application of the MSA confidentiality provisions to 
information requests. These proposed revisions seek to balance the 
mandate to protect confidential information with exceptions that 
authorize disclosure of information to advance fishery conservation and 
management, scientific research, enforcement, and transparency in 
fishery management actions.
    The proposed rule is informed by other statutes that NMFS 
administers, including the Marine Mammal Protection Act (MMPA), the 
Endangered Species Act (ESA), and the Freedom of Information Act 
(FOIA). Development of this proposed rule required NMFS to interpret 
several statutory provisions, including provisions for release of 
information in aggregate or summary form, a limited access program 
exception, and provisions regarding observer information. Accordingly, 
NMFS highlights these elements of the proposed rule in the discussion 
below and seeks public comment on options and alternatives for these 
and other aspects of the proposed rule.
    Below, NMFS provides information on three types of proposed 
changes. NMFS begins with proposed changes that concern the expanded 
scope of the confidentiality requirements. Next, NMFS presents changes 
that concern exceptions allowing for the disclosure of confidential 
information. Lastly, NMFS presents changes necessary to improve the 
clarity of the regulations.

II. Proposed Changes Addressing the Expanded Scope of the MSA 
Confidentiality Requirements

    Because statutory amendments have broadened the scope of the MSA's 
confidentiality requirements, NMFS proposes corresponding regulatory 
changes. At the MSA's enactment, its confidentiality requirements 
applied to ``[a]ny statistics submitted to the Secretary'' in 
compliance with an FMP. Public Law 94-265, Title III, 303(d) (1976). 
Congress broadened the confidentiality requirements through the 1996 
SFA, Public Law 104-297 (1996), in two respects. First, the 1996 SFA 
substituted the word ``information'' for ``statistics.'' Id. 203. As a 
result, the statute's confidentiality requirements protected ``any 
information submitted to the Secretary'' in compliance with an FMP. The 
1996 SFA also expanded the confidentiality requirements to apply not 
just to information submitted in compliance with an FMP, but to 
information submitted in compliance with ``any requirement or 
regulation'' under the Act. Id. Accordingly, NMFS' proposed rule would 
update the confidentiality regulations under 50 CFR part 600 to reflect 
the changes to the law made in 1996.
    In addition, this proposed rule would implement further broadening 
of the confidentiality requirements made by the 2006 MSRA, Public Law 
109-479 (2007). Prior to the 2006 MSRA, the confidentiality 
requirements applied only to information submitted to the Secretary in 
compliance with any requirement or regulation under the Magnuson-
Stevens Act. The 2006 MSRA amended the confidentiality requirements at 
section 402(b) of the Magnuson-Stevens Act, 16 U.S.C. 1881a(b), to 
include information submitted to a State fishery management agency or a 
Marine Fisheries Commission in compliance with a requirement or 
regulation under the Act. Public Law 109-479, Title II 203. The 2006 
MSRA also amended the confidentiality requirements to apply to any 
observer information, which is now defined under section 3(32) of the 
Magnuson-Stevens Act. 16 U.S.C. 1802(3)(32).
    Specifically, NMFS proposes making the following changes to its 
regulations in order to implement these amendments to the scope of the 
MSA confidentiality requirement:
    1. Replacing the term ``statistics'' with ``information'' in 50 CFR 
600.130 and in all regulations under 50 CFR subpart E;
    2. Outlining procedures to preserve the confidentiality of all 
information submitted to the Secretary, a State fishery management 
agency, or a Marine Fisheries Commission by any person in compliance 
with the requirements of the Magnuson-Stevens Act. (Sec.  600.410(b));
    3. Deleting the definition of ``confidential statistics'' and 
adding a definition for ``confidential information'' (Sec.  600.10); 
and
    4. Adding a definition for observer employer/observer provider 
(Sec.  600.10). Fisheries observer programs are predominantly 
contractors hired through private observer employer/observer provider 
companies. These companies provide qualified persons to perform 
observer duties on vessels engaged in fishing for species managed under 
the MSA. NMFS proposes the definition to ensure that observer employer/
observer provider companies properly handle information that is 
required to be maintained as confidential under the MSA.

III. Proposed Changes Concerning Exceptions to the Confidentiality 
Requirement

    The MSA's confidentiality requirements are also subject to a number 
of exceptions that apply if certain conditions are satisfied. Some 
exceptions allow NMFS to share confidential information with other 
entities provided that the recipients will maintain it as confidential, 
while other exceptions allow for the disclosure of confidential 
information even if the confidentiality will not be maintained by the 
recipients. In addition, a provision of the MSA authorizes the 
Secretary to aggregate or summarize information that is subject to the 
Act's confidentiality requirements into a non-confidential form ``which 
does not directly or indirectly disclose the identity or business of 
any person who submits such information.'' 16 U.S.C. 1881a(b)(3). Non-
confidential aggregate or summary form information may be released to 
the public.
    NMFS proposes regulatory changes to address significant issues that 
concern application of exceptions to the confidentiality requirements 
and the aggregation and summarization provision. NMFS presents these 
changes in the following order: First, substantive changes addressing 
disclosure of confidential information without requiring the recipient 
to keep it confidential; next, substantive changes addressing 
disclosure of aggregated or summarized confidential information; and 
finally, non-substantive changes regarding the sharing of confidential 
information with other entities provided that it remains confidential.

A. Proposed Changes Concerning Exceptions to Confidentiality 
Requirements, Where Disclosed Information May Not Remain Confidential

    The following changes would implement exceptions that authorize the 
disclosure of confidential information without further restrictions on 
its disclosure. Public comments on these provisions, numbered 1-4 
below, are especially important, because they propose disclosures where 
NMFS does not require the recipients to maintain confidentiality.
    1. Exception for release of information required to be submitted 
for a determination under a limited access program: While MSA section 
402(b) generally provides for confidentiality of information, section 
402(b)(1)(G)

[[Page 30488]]

provides an exception for information that is ``required to be 
submitted to the Secretary for any determination under a limited access 
program.'' Id. 1881a(b)(1)(G). The scope of this exception depends on 
how the terms ``limited access program'' and ``determination'' are 
defined, and because the statute offers no definitions, NMFS now 
proposes definitions for these terms. NMFS' interpretation of this 
exception is important for fisheries managed under limited access 
programs, because disclosure of information could advance the 
transparency of the decision-making process and provide those seeking 
privileges, and privilege holders, with information that may be 
necessary for an appeal of a determination under a limited access 
program. However, because MSA section 402(b) generally requires 
confidentiality, NMFS must consider carefully the breadth of its 
interpretation of the exception under 402(b)(1)(G). NMFS seeks public 
comment on the below proposed approaches to ``limited access program,'' 
``determination,'' and the information to be covered under the 
exception, and alternative approaches that NMFS might consider.
Proposed Definition for ``Limited Access Program''
    As explained above, the MSA does not define ``limited access 
program'' as that term appears in section 402(b), and the 
interpretations of the term could range across a wide spectrum. At one 
end of the spectrum, NMFS could broadly interpret ``limited access 
program'' under section 402(b) as meaning ``limited access system,'' 
which is defined at MSA section 3(27). If NMFS takes this approach, the 
definition would allow very broad disclosure, applicable to any fishery 
in which participation is limited to ``those satisfying certain 
eligibility criteria or requirements contained in a fishery management 
plan or associated regulation.'' See 16 U.S.C. 1802(27) (defining 
limited access system); see also id. 1853(b)(6) (setting forth 
requirements for establishing limited access system). At the other end 
of the spectrum, NMFS could more narrowly interpret ``limited access 
program'' as only MSA section 303A limited access privilege programs 
(LAPPs). 16 U.S.C. 1853a. See also id. 1802(26) (defining ``limited 
access privilege'').
    While NMFS encourages comments on the full range of interpretations 
available for the term, at this time NMFS does not propose to interpret 
``limited access program'' as meaning either a ``limited access 
system'' or a ``limited access privilege program.'' Taking into account 
these terms, different potential interpretations of section 
402(b)(1)(G), and prior and ongoing work in developing LAPP and LAPP-
like programs, NMFS proposes a moderately broad interpretation, 
defining the term ``limited access program'' to mean a program that 
allocates privileges, such as a portion of the total allowable catch 
(TAC), an amount of fishing effort, or a specific fishing area to a 
person as defined by the MSA. Information required to be submitted for 
a determination for such programs could be disclosed.
    This interpretation of limited access program would include 
specific types of programs defined under the MSA, such as section 303A 
LAPPs and Individual Fishing Quotas (MSA 3(23)). It would also include 
other management programs not specifically mentioned in the Act, such 
as programs that allocate a TAC, or a portion of a TAC, to a sector or 
a cooperative, and programs that grant an exclusive privilege to fish 
in a geographically designated fishing ground. The Act does not 
preclude the development of other management programs that are similar 
to LAPPs but fall outside the section 303A requirements and provisions; 
the definition of ``limited access program'' could apply to them as 
well, allowing disclosure of information submitted for determinations 
under such programs.
Proposed Definition for ``Determination''
    It is also possible to interpret ``determination'' under MSA 
402(b)(1)(G) in many different ways. On the one hand, ``determination'' 
could mean any decision that NMFS makes for a fishery managed under a 
limited access program. Alternatively, it could mean those 
determinations that are more specific to limited access programs, like 
NMFS' allocation and monitoring of fishing privileges. Privileges 
allocated and monitored under limited access programs include limited 
access privileges, individual fishing quotas, a sector's annual catch 
entitlement, and other exclusive allocative measures such as a grant of 
an exclusive privilege to fish in a geographically designated fishing 
ground.
    NMFS proposes the latter approach: defining ``determination'' to 
mean a grant, denial, or revocation of privileges; approval or denial 
of a transfer of privileges; or other similar NMFS regulatory 
determination applicable to a person. ``Person'' is already defined 
under MSA section 3(36), and a determination that generally concerns a 
fishery, such as a stock assessment, would not be considered a 
``determination under a limited access program.'' This approach seeks 
to enhance the transparency of NMFS' administration of limited access 
programs and enable parties to have information necessary for appealing 
determinations.
    It is important to note that the statutory exception in MSA 
402(b)(1)(G) applies regardless of whether NMFS actually has made a 
determination. Therefore, NMFS' proposed rule would allow for release 
of information required to be submitted for a determination, even if 
NMFS has not made one. Information could be disclosed under the 
exception if there are sufficient facts suggesting that NMFS will use 
the information to make a determination, such as where participants in 
a limited access program submit information to NMFS for it to determine 
whether the participants have fished within their allocated privileges. 
The information would be immediately releasable even if NMFS has not 
made its determination.
    Similarly, prior landing information would be releasable if a 
Council had submitted an FMP or plan amendment for a limited access 
program for Secretarial approval and NMFS issued a notice in the 
Federal Register stating that it will use prior landings data for 
initial allocation determinations under a proposed limited access 
program. However, the exception would not be applicable where a Council 
is merely considering developing a limited access program. In that 
case, there would be insufficient facts to support a conclusion that 
information was submitted to NMFS for it to make a determination under 
a limited access program.
    NMFS believes that the proposed rule approach will enhance accuracy 
in limited access program implementation. For example, by making catch 
histories available before making initial allocation determinations, 
fishermen can verify the accuracy of the information.
Additional Issues Regarding the Scope of Information Releasable Under 
the Limited Access Program Exception to the Confidentiality 
Requirements
    NMFS has considered several issues related to the scope of 
information to be covered under the limited access program exception to 
the confidentiality requirements. Specifically, NMFS has considered 
tailoring information releases to the relevant determination, 
maintaining medical and other information as confidential, releasing 
limited access program information

[[Page 30489]]

submitted prior to the MSRA, and releasing information that was 
initially submitted for non-limited access program reasons. NMFS 
solicits public comment on its proposed approaches to these four 
issues, as described below, and also on other potential approaches for 
addressing the scope of information to be covered under the exception.
    NMFS proposes that information releases be tailored for release at 
the level of the relevant limited access program determination. Thus, 
information submitted by a specific vessel for a determination about 
that vessel would be released at the vessel level. However, information 
submitted by a sector for a determination related to all vessels that 
operate in the respective sector would be released at the sector level. 
For example, the Georges Bank Cod Hook Sector is required to submit 
information on the vessel catch or effort history, and NMFS uses this 
information to determine whether the Sector is complying with its 
approved Sector Operations Plan. In this instance, information would be 
released at the sector level. There may, however, be instances where 
NMFS uses a sector's data to make determinations about each vessel 
within the sector. In such cases, information would be released at the 
vessel level.
    NMFS has considered that medical and other personal information may 
be used for certain determinations under limited access programs and 
therefore would be within the scope of the confidentiality exception 
contemplated by subparagraph 402(b)(1)(G). For example, shareholders 
under the North Pacific Sablefish and Halibut Individual Transferable 
Quota (ITQ) program must submit such information to support an 
application for a medical transfer under the regulations. In such 
cases, NMFS would consider whether Exemption Six of the Freedom of 
Information Act applies to the information. 5 U.S.C. 552(b)(6). 
Exemption Six authorizes the withholding of information about 
individuals in ``personnel and medical files and similar files'' when 
the disclosure of such information ``would constitute a clearly 
unwarranted invasion of personal privacy.'' Id. There may be other 
instances where NMFS applies applicable FOIA Exemptions to information 
that is otherwise releasable under subparagraph 402(b)(1)(G).
    NMFS is considering the treatment of information previously 
maintained as confidential. Prior to the enactment of the MSRA, a 
number of fisheries were managed under limited access programs. NMFS 
required information to be submitted for determinations under these 
programs. Accordingly, development of these confidentiality regulations 
requires consideration of whether the confidentiality exception in MSA 
section 402(b)(1)(G) applies to information submitted prior to the 
passage of the MSRA.
    Congress did not expressly say whether MSA 402(b)(1)(G) applies to 
information submitted prior to enactment of the 2006 MSRA. NMFS 
believes there are two approaches to this issue. NMFS could apply the 
exception to all limited access program information submitted to NMFS, 
regardless of when the information was submitted. Under this approach, 
NMFS could release information pursuant to this exception even if the 
information had been submitted prior to enactment of the MSRA. This 
approach reflects an application of current law, in that the limited 
access program exception would be applied to NMFS' post-MSRA handling 
of information. Alternatively, NMFS could apply the exception only to 
information which has been required to be submitted at a point after 
enactment of the MSRA. This approach recognizes that when people 
submitted information pre-MSRA, they may have had a different 
understanding of what information NMFS could release than that which 
the current law permits.
    NMFS is inclined to apply the exception for limited access program 
information without regard to when a person submitted information to 
the agency. Applying the current law in a manner favoring disclosure 
would enhance transparency as to the historical distribution of 
resources under limited access programs and allow prospective 
purchasers of fishing permits to have greater access to permit catch 
histories. Although NMFS is disinclined to adopt an approach that would 
apply the exception for limited access information based on the timing 
of the submission of the information, the agency is interested in 
public comment on this approach and other potential approaches. NMFS 
also specifically seeks comment on how the preferred approach or others 
would affect business or other interests, including comments on 
expectations of, or reliance on, confidentiality protections.
    In addition, NMFS notes that non-limited access program fisheries 
may, through appropriate Council or Secretarial action, transition to 
limited access programs. In these situations, information submitted 
under a non-limited access program fishery may later be relevant for 
determinations regarding privileges under a newly established limited 
access program. For the same reasons discussed above, and to promote 
efficiency and reduce reporting requirements on the regulated industry, 
NMFS proposes that information previously submitted under non-limited 
access program fisheries that it uses or intends to use for 
determinations under newly established limited access programs be 
treated as within the scope of the confidentiality exception under 
subparagraph 402(b)(1)(G). NMFS seeks public comment on this proposed 
approach and other approaches to this issue.
    2. Exception for release of information required under court order: 
Magnuson-Stevens Act section 402(b)(1)(D) provides an exception for the 
release of confidential information when required by court order. 16 
U.S.C. 1881a(b)(1)(D). Information disclosed under this exception may 
become part of a public record. To clarify when this section applies, 
NMFS proposes definitions for ``court'' and ``order'' which make clear 
that the exception applies only to orders issued by a federal court 
(Sec.  600.425(d)). In developing these definitions, NMFS considered 
whether an order from a state court was within the scope of MSA section 
402(b)(1)(D). Unless expressly waived by Congress, sovereign immunity 
precludes state court jurisdiction over a federal agency. In NMFS' 
view, Congress has not waived sovereign immunity through MSA section 
402(b)(1)(D). Therefore, under this proposed rule, NMFS would not honor 
state court orders as a basis for disclosure of confidential 
information. State court orders would be handled under 15 CFR part 15, 
subpart A, which sets forth the policies and procedures of the 
Department of Commerce regarding the production or disclosure of 
information contained in Department of Commerce documents for use in 
legal proceedings pursuant to a request, order, or subpoena.
    3. Exception for release of information to aid law enforcement 
activity: This proposed rule would add text to address sections 
402(b)(1)(A) and (C) of the Magnuson-Stevens Act, which provide that 
confidential information may be released to federal and state 
enforcement personnel responsible for fishery management plan 
enforcement. (Sec.  600.425(e)). The proposed rule would allow 
enforcement personnel to release confidential information during the 
enforcement of marine natural resources laws. In such cases, previously 
confidential information may become part of a public record.
    4. Exception for release of information pursuant to written 
authorization: Section 402(b)(1)(F) of the Magnuson-Stevens Act allows 
for the release of confidential information ``when the

[[Page 30490]]

Secretary has obtained written authorization from the person submitting 
such information to release such information to persons for reasons not 
otherwise provided for in this subsection, and such release does not 
violate other requirements of this Act.'' 16 U.S.C. 1881a(b)(1)(F). 
Through this rulemaking, NMFS proposes procedures to ensure that the 
written authorization exception is utilized only by the person who 
submitted the information. To that end, NMFS proposes that a person who 
requests disclosure of information under this exception prove their 
identity by a statement consistent with 28 U.S.C. 1746, which permits 
statements to be made under the penalty of perjury as a substitute for 
notarization.
    Generally, the holder of the permit for a vessel, or the permit 
holder's designee, will be considered the person who submitted 
information in compliance with the requirements of the MSA. In cases 
where requirements to provide information are not tied to a permit, the 
person who is required to submit the information and is identified in 
the information as the submitter may execute the written authorization 
for that information. In most cases, the identity of the submitter of 
information will be the person who signed the document provided to 
NMFS. For example, the regulation that implements the MSA financial 
interest disclosure provision requires that persons nominated for 
appointment to a regional fishery management council file a signed 
financial interest form. 16 U.S.C. 1852(j). As the person who is 
required to submit and sign the financial interest form, a Secretarial 
nominee would be considered the submitter of the form and, as such, 
would be able to authorize its disclosure. NMFS intends to develop and 
make available a model ``authorization to release confidential 
information'' form.
    In the context of the observer information provisions of MSA 
section 402(b), the written authorization exception is subject to 
different interpretations. The exception applies when the ``person 
submitting'' information requests release of such information. MSA 
section 402(b)(2) provides for disclosure of observer information under 
the written authorization exception but does not identify who the 
``person submitting'' that information is. Accordingly, to apply the 
written authorization exception to observer information, the submitter 
of observer information must be identified.
    A further complication is that observer programs collect and create 
different types of observer information for fishery conservation and 
management. The primary category of observer information is information 
that is used for scientific and management purposes. Among other 
things, the Magnuson-Stevens Act requires that fishery management plans 
specify pertinent data on fishing and fish processing to be submitted 
to the Secretary, including but not limited to the type and quantity of 
fishing gear used, catch in numbers of fish or weight thereof, areas in 
which fishing was engaged in, and economic information. 16 U.S.C. 
1853(a)(5). The Act also requires establishment of standardized bycatch 
reporting methodology. Id. 1853(a)(11). To obtain this and other 
information, FMPs may require that vessels subject to the plan carry 
one or more observers. Id. 1853(b)(8).
    In addition, NMFS' regional observer programs have established 
administrative procedures through which observers create information 
for program operation and management. Information created through these 
administrative procedures is used to review observer performance, 
evaluate the observer's data and collection methodology, and to assess 
any reports of non-compliance with fishery regulations. More generally, 
observer programs use this information to evaluate the overall 
effectiveness of the observer program. Program administrative 
procedures generally require observers to maintain an official logbook 
(also referred to as field notes, a journal or diary) that includes 
technical information related to collection and sampling methodologies 
and notes that concern their work while deployed on a vessel. Following 
completion of a fishing trip, observers use their logbooks and their 
general recollection of the fishing trip to answer post-trip debriefing 
questions during a debriefing process. Debriefings are generally 
conducted by NMFS personnel at NMFS facilities, although some observer 
programs may have debriefings conducted at observer provider offices by 
observer provider supervisory personnel. NMFS, or the observer provider 
as appropriate, compiles the observer's responses into a post-trip 
debriefing report. Observer providers that are tasked with 
administration of observer debriefings are required to provide 
debriefing reports to NMFS.
    NMFS is interested in public comment on different options for 
applying the written authorization exception to observer information. 
As discussed above, it is unclear what observer information is 
submitted and who acts as the ``person submitting'' observer 
information. One approach would be to treat the permit holder as the 
person who submits both types of observer information. That is, the 
permit holder would be the person who submits observer information 
collected for scientific and management purposes and observer 
information created for administration of the observer program. A 
second option would be to treat the observer, or the observer's 
employer, as the person who submits both types of observer information. 
A third option would be to treat the permit holder as the submitter of 
observer information collected for scientific and management purposes 
but not as the submitter of observer information that is created for 
program administration (e.g, field notes, journals, or diaries). Under 
this option, there would be no submitter of observer information that 
is created for program administration. Rather, this information would 
be treated as internal program information and not subject to the 
written authorization exception.
    In light of the ambiguity in the statute, and recognizing the 
different purposes for the two types of observer information, NMFS is 
proposing to apply the third approach and is disinclined to adopt the 
other two options. However, NMFS will consider the other two options 
following public comment.
    Under NMFS' proposed approach, permit holders would be considered 
the submitters of information collected for scientific and management 
purposes and would therefore be allowed to authorize release of that 
information. On the other hand, there would be no ``submitter'' of 
observer information created for administration of the observer program 
and it would be treated as internal program information. As such, this 
information would not be subject to disclosure to the permit holder 
under the written authorization exception or under FOIA. In withholding 
debriefing reports, NMFS would apply FOIA Exemption Three, which, as 
explained above, authorizes the withholding of information that is 
prohibited from disclosure under another Federal statute. Here, MSA 
section 402(b)(2) requires the withholding of observer information.
    NMFS believes that this approach is consistent with the definition 
of ``submit.'' Observers submit information collected for scientific 
and management purposes to the respective observer programs but do so 
on behalf of the permit holder that is required to carry an observer. 
Observer information compiled for administration of the observer 
program, including information set forth in observer

[[Page 30491]]

logbooks, journals, or diaries and the information in observer 
debriefing reports, is not ``submitted'' information. Rather, this 
information is created through program administrative procedures and 
should be treated as internal program information.
    In addition, NMFS believes that the third approach is consistent 
with the purpose of the written authorization exception, which is to 
provide permit holders and other submitters of information with access 
to information that concerns their business and that was obtained by 
NMFS through a person's compliance with a requirement or regulation 
under the Magnuson-Stevens Act.

B. Proposed Changes Requiring the Protection of Business Information in 
Releases Allowed by Aggregation and Summarization Exception

    NMFS proposes regulatory definitions to ensure protection for 
business information. The MSA at section 402(b)(3) provides that ``the 
Secretary may release or make public any information submitted in 
compliance with any requirement or regulation under the Magnuson-
Stevens Act in any aggregate or summary form which does not directly or 
indirectly disclose the identity or business of any person who submits 
such information.'' 16 U.S.C. 1881a(b)(3). Under this provision, the 
Secretary, acting through NMFS, may aggregate and summarize information 
that is subject to the Act's confidentiality requirements into a non-
confidential form. The application of the provision's language directly 
corresponds to the level of protection afforded to information that is 
subject to the MSA confidentiality requirements. Current agency 
regulations include a definition of ``aggregate or summary form'' that 
allows for the public release of information subject to the 
confidentiality requirements if the information is ``structured in such 
a way that the identity of the submitter cannot be determined either 
from the present release of the data or in combination with other 
releases.'' Sec.  600.10. The regulations also state that the Assistant 
Administrator for Fisheries will not release information ``that would 
identify the submitter, except as required by law.'' Id. Sec.  
600.425(a). As a result, information may be disclosed in any aggregate 
or summary form that does not disclose the identity of a submitter. 
These regulations focus on protection of submitters' identity, but this 
approach does not provide any specific protection for submitters' 
``business'' information.
Application of Protection Beyond Identity to Financial and Operational 
Information
    NMFS reviewed the legal and policy basis for this approach as part 
of its development of revised regulations for implementation of the 
2006 MSRA and the 1996 SFA. It appears that NMFS has historically 
interpreted the two different elements of MSA 402(b)(3)--``identity of 
any person'' and ``business of any person''--to mean submitters' 
identifying information, including that which would identify them 
personally and that which would identify their businesses. NMFS has 
reassessed the application of MSA section 402(b)(3) and, based on this 
reassessment, believes that Congress intended the MSA confidentiality 
provision to protect a broader scope of information than that which 
would identify submitters. Therefore, NMFS proposes to revise the 
regulatory definition of ``aggregate or summary form'' to protect 
against the disclosure of the ``business of any person'' and proposes 
to add a specific definition for ``business of any person'' that would 
provide broader protection for information submitted in compliance with 
the MSA and any observer information.
    The statutory language ``business of any person'' is ambiguous, and 
NMFS acknowledges that it could be subject to different 
interpretations. As explained above, NMFS has historically interpreted 
this language to mean only the identity or name of a person's business 
such as ``ABC Fishing Company.'' NMFS believes that a broader 
interpretation is more consistent with congressional intent and legal 
rules for interpretation of statutes. Therefore, NMFS proposes to 
clarify ``business of any person'' by defining it at Sec.  600.10 as 
meaning financial and operational information. Financial information 
would include information in cash flow documents and income statements, 
and information that contributes to the preparation of balance sheets. 
Operational information would include fishing locations, time of 
fishing, type and quantity of gear used, catch by species in numbers or 
weight thereof, number of hauls, number of employees, estimated 
processing capacity of, and the actual processing capacity utilized, by 
U.S. fish processors. By providing these definitions, NMFS limits 
releases to an aggregate or summary form which does not disclose the 
specified financial and operational information of a person.
    When responding to FOIA requests for MSA confidential information, 
NMFS takes into consideration FOIA Exemption Three, 5 U.S.C. 552(b)(3), 
and other relevant FOIA exemptions. FOIA Exemption Three applies to 
information that is exempted from disclosure by another statute. NMFS 
interprets MSA section 402(b) to exempt from disclosure information 
that would directly or indirectly disclose the identity or business of 
any person. As explained above, this proposed rule would require NMFS 
to consider both factors--not just identity--when applying the 
aggregate or summary form provisions of the regulations. While this 
could result in more information being withheld, NMFS believes that 
detailed and useful information will continue to be disclosed under the 
aggregate or summary form provisions. NMFS intends to develop, and make 
available for public comment, aggregation guidelines based on the 
definition for aggregate or summary form and other elements of the 
final MSA confidentiality rule. NMFS' preferred option is to adopt an 
approach that requires protection of submitters' business information. 
Accordingly, the agency is disinclined to continue to allow for the 
disclosure of aggregated or summarized information that protects only 
submitters' identifying information. However, NMFS seeks specific 
public comment on the proposed definitional changes and other potential 
options to aggregation and summarization of information subject to the 
confidentiality requirements.
Exclusion of Observer Information From Definition of Protected Business 
Information
    In developing this proposed rule, NMFS considered whether its 
definition for ``business of any person'' should include observer 
information that concerns interactions with protected species. As 
discussed above, NMFS may release MSA confidential information in 
``aggregate or summary form,'' which would ``not directly or indirectly 
disclose the identity or business of any person.'' By excluding 
observer information that concerns interactions with protected species 
from the definition of ``business of any person,'' observer information 
could be released publicly in aggregate or summary form as long as it 
would not directly or indirectly result in disclosure of the identity 
of the vessel involved in the interaction. Thus, in most cases, NMFS 
would be able to disclose specific details of interactions with 
protected species.
    Release of observer information that concerns interactions with 
protected species would advance implementation of statutory mandates 
under the MMPA

[[Page 30492]]

and the ESA. For example, this information is critical for 
deliberations by Take Reduction Teams (TRT) that are convened under 
section 118(f)(6)(A) of the MMPA. 16 U.S.C. 1387(f)(6)(A)(i). TRTs 
established under the MMPA must meet in public and develop plans to 
reduce incidental mortality and serious injury of marine mammals in the 
course of commercial fishing operations. See Id. at 1387(f)(6)(D) 
(public meetings) and 1387(f) (development of take reduction plans). 
Specific details about interactions with marine mammals that occurred 
during commercial fishing operations are critical to developing a plan. 
Id. 1387(f). This information is often available only through observer 
records. Without detailed observer information on interactions with 
protected species, TRTs may be unable to develop targeted plans to 
reduce bycatch of protected species.
    Detailed information on interactions with protected species may 
also facilitate implementation of the ESA. NMFS may need to present 
detailed information about commercial fisheries interactions with 
species listed under the ESA in a biological opinion. See Sec.  
402.14(g)(8) (requirements for biological opinions). Furthermore, both 
the MMPA and the ESA require that NMFS use the best available 
scientific information when making determinations. 16 U.S.C. 1386(a) 
(MMPA stock assessments) and 16 U.S.C. 1536(c)(1) (ESA biological 
assessments).
    For these reasons, NMFS proposes that the definition of ``business 
of any person'' exclude the following observer information on protected 
species interactions: species of each marine mammal or ESA-listed 
species incidentally killed or injured; the date, time, and geographic 
location of the take; and information regarding gear used in the take 
that would not constitute a trade secret under FOIA, 5 U.S.C. 
552(b)(4). While excluding observer information that concerns 
interactions with protected species from the definition of ``business 
of any person'' would advance MSA, ESA, and MMPA mandates, NMFS 
recognizes that it would also result in the public disclosure of 
specific information collected by observers during fishing operations. 
For example, the location of an interaction with a protected species 
would, in some cases, identify where a vessel fished.
    Because observer information that concerns interactions with 
protected species could also be viewed as a vessel's operational 
information, NMFS seeks public comments on this proposed approach and 
other potential approaches to this issue. Although NMFS is disinclined 
to define ``business of any person'' to include observer information 
that concerns interactions with protected species, the agency will 
consider viable approaches other than its proposed interpretation.

C. Proposed Changes Allowing Disclosure of Confidential Information 
Where Limitations Apply To Further Disclosure

    NMFS proposes the following changes concerning confidentiality 
requirement exceptions that allow for information to be shared with 
other entities, provided that specified precautions protect the 
information.
    1. Adding procedures that authorize the sharing of observer 
information between observer employer/observer providers for observer 
training or to validate the accuracy of the observer information 
collected. (Sec.  600.410(c)(4)).
    2. Adding procedures that authorize the disclosure of confidential 
information in support of homeland and national security activities. 
(Sec.  600.415(c)(3)).
    3. Adding procedures that authorize the disclosure of confidential 
information to State employees responsible for fisheries management. 
(Sec.  600.415(d)).
    4. Adding procedures that authorize the disclosure of confidential 
information to State employees responsible for FMP enforcement pursuant 
to a Joint Enforcement Agreement with the Secretary. (Sec.  
600.415(e)).
    5. Adding procedures that authorize the disclosure of confidential 
information to Marine Fisheries Commission employees. (Sec.  
600.415(f)).
    6. Revising procedures under which confidential information can be 
disclosed to Council members for use by the Council for conservation 
and management purposes. (Sec.  600.415(g)(2)). Under MSA section 
402(b)(3), the Secretary may approve a Council's use of confidential 
information for conservation and management purposes. 16 U.S.C. 
1881a(b)(3). NMFS' current confidentiality regulations implement this 
authority under Sec.  600.415(d)(2). That regulation authorizes the 
Assistant Administrator, NOAA Fisheries (AA), to grant a Council access 
to confidential information upon written request by the Council 
Executive Director. In determining whether to grant access, the AA must 
consider, among other things, the ``possibility that the suppliers of 
the data would be placed at a competitive disadvantage by public 
disclosure of the data at Council meetings or hearings.'' Id. During 
development of this proposed action, a question was raised regarding 
whether this text allows public disclosure of information that was 
released to a Council under this procedure. As MSA section 402(b)(3) 
provides for disclosure of information for use by a Council, NMFS 
proposes to clarify and revise Sec.  600.415(d)(2)(ii) by removing the 
``public disclosure'' text.
    7. Adding procedures to authorize release of confidential 
information to a Council's scientific and statistical committee (SSC). 
(Sec.  600.415(g)(3)). Under the Magnuson-Stevens Act as amended by the 
2006 MSRA, Councils must establish, maintain, and appoint the members 
of an SSC. 16 U.S.C. 1852(g)(1)(A). Members appointed by Councils to 
SSCs shall be Federal or State employees, academicians, or independent 
experts. Id. 1852(g)(1)(C). The role of the SSC is, among other things, 
to assist the Council in the development, collection, evaluation and 
peer review of statistical, biological, economic, social, and other 
scientific information as is relevant to the Council's development and 
amendment of any FMP. Id. 1852(g)(1)(A). Furthermore, the SSC is 
required to provide its Council ongoing scientific advice for fishery 
management decisions, including, among other things, recommendations 
for acceptable biological catch and preventing overfishing and reports 
on stock status and health, bycatch, and social and economic impacts of 
management measures. Id. 1852(g)(1)(B). To carry out these 
responsibilities, SSC members may need to evaluate confidential 
information. NMFS may release confidential information to Federal and 
State employees appointed to a Council's SSC as provided under 
Magnuson-Stevens Act section 402(b)(1)(A) and (B). However, the 
existing confidentiality regulations do not address release of 
confidential information to academicians or independent experts 
appointed to an SSC. Because all members of a Council's SSC may need to 
evaluate confidential information, NMFS proposes to add procedures 
through which a Council can request, through its Executive Director, 
that members of the Council's SSC that are not Federal or State 
employees be granted access to confidential information.
    NMFS proposes to add this procedure pursuant to Magnuson-Stevens 
Act section 402(b)(3), which authorizes the Secretary to approve the 
release and use of confidential information by a Council for fishery 
conservation and management. Given the statutory role that a Council's 
SSC has in development

[[Page 30493]]

and amendment of any FMP, NMFS believes that establishing a process for 
releasing confidential information to an SSC is consistent with the 
statutory authorization that allows a Council to use confidential 
information for fishery conservation and management. NMFS recognizes 
the concern that members of a SSC, who are not Federal or State 
employees, may gain personal or competitive advantage through access to 
confidential information. To address this concern, the proposed 
procedures would require the AA to approve any request from a Council 
Executive Director that confidential information be released to the 
Council for use by SSC members who are not Federal or State employees. 
In making a decision regarding such a request, the AA must consider 
whether those SSC members might gain personal or competitive advantage 
from access to the information.
    8. Adding procedures that authorize the release of observer 
information when the information is necessary for proceedings to 
adjudicate observer certifications. (Sec.  600.425(b)).

IV. Proposed Changes Clarifying NMFS' Confidentiality Regulations

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

V. Classification

    The NOAA Fisheries Assistant Administrator has determined that this 
proposed rule is consistent with the Magnuson-Stevens Act and other 
applicable law, subject to further consideration after public comment.
    This proposed rule has been determined to be not significant for 
purposes of Executive Order 12866.
    This action does not contain a collection-of-information 
requirement for purposes of the Paperwork Reduction Act.
    The Chief Counsel for Regulation of the Department of Commerce 
certified to the Chief Counsel for Advocacy of the Small Business 
Administration that this proposed rule, if adopted, would not have a 
significant economic impact on a substantial number of small entities, 
as follows:
    Under section 402(b)(3) of the MSA, the Secretary of Commerce is 
required to prescribe by regulation procedures necessary to maintain 
the confidentiality of information submitted in compliance with the 
Act. These regulations are set forth at 50 CFR part 600, subparts B and 
E. Certain terms used in these regulations are defined under 50 CFR 
part 600, subpart A. This proposed action would revise 50 CFR part 600, 
subparts, A, B and E to conform with requirements of the Magnuson-
Stevens Act as amended by the 2006 Magnuson-Stevens Fishery 
Conservation and Management Reauthorization Act and the 1996 
Sustainable Fisheries Act. Specifically, this proposed action requires 
the confidentiality of information collected by NMFS observers, revises 
exceptions that authorize the disclosure of confidential information, 
and adds three new disclosure exceptions. In addition, this action 
includes proposed revisions to implement the 1996 Sustainable Fisheries 
Act and to update the regulations to reflect NMFS' policy on the 
release of MSA confidential information in an aggregate or summary 
form.
    This proposed action applies only to agency policies and procedures 
for the handling of information required to be maintained as 
confidential under MSA section 402(b). Adoption of the proposed 
revisions would not have a significant economic impact on a substantial 
number of small entities. The proposed revisions would apply to private 
companies that provide observer staffing support to NMFS and to 
industry sponsored observer programs. Nine private companies currently 
provide observers on a seasonal or ongoing basis to support the 
collection of information in 42 fisheries. The proposed regulations 
require observer providers to take steps to maintain the 
confidentiality of information. To satisfy this requirement, observer 
providers must have a secure area for the storage of confidential 
information. Compliance costs would include purchase of a lockable 
filing cabinet and enhanced managerial supervision. These costs would 
be minimal and all observer providers that currently contract with NMFS 
already have appropriate measures in place. Accordingly, no initial 
regulatory flexibility analysis is required and none has been prepared.

Lists of Subjects in 50 CFR Part 600

    Confidential business information, Fisheries, Information.

    Dated: May 17, 2012.
Alan D. Risenhoover,
Acting Deputy Assistant Administrator For Regulatory Programs, National 
Marine Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 600 is 
proposed to be amended as follows:

PART 600--[AMENDED]

    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.

    2. In Sec.  600.10,
    a. Remove definitions of ``Confidential statistics'' and ``Data, 
statistics, and information'';
    b. Revise the definition of ``Aggregate or summary form'' and;
    c. Add new definitions for ``Business of any person'', 
``Confidential information'', and ``Observer employer/observer 
provider'' in alphabetical order, to read as follows:


Sec.  600.10  Definitions.

* * * * *
    Aggregate or summary form means information structured in such a 
way

[[Page 30494]]

that the identity or business of any person that 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 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, type and quantity of gear used, catch by species in numbers or 
weight thereof, number of hauls, number of employees, estimated 
processing capacity of, and the actual processing capacity utilized, by 
U.S. fish processors.
    (3) Business of any person does not include the following observer 
information related to interactions with species protected under the 
Marine Mammal Protection Act and the Endangered Species Act: the date, 
time, and location of interactions, the type of species, and the gear 
involved provided that information regarding gear would not constitute 
a trade secret under the Freedom of Information Act, 5 U.S.C. 
552(b)(4).
* * * * *
    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.
* * * * *
    Observer employer/observer provider means any person that provides 
observers to fishing vessels, shoreside processors, or stationary 
floating processors under a requirement of the Magnuson-Stevens Act.
* * * * *


Sec.  600.130   [Amended]

    3. In Sec.  600.130 the word ``statistics'' is removed and the word 
``information'' is added in place, wherever it occurs.
    4. Subpart E to part 600 is revised to read as follows:
Subpart E--Confidentiality of Information
Sec.
600.405 Types of information covered.
600.410 Collection and maintenance of information.
600.415 Access to information.
600.420 Control system.
600.425 Release of confidential information.
600.430 Release of information in aggregate or summary form.

Subpart E--Confidentiality of Information


Sec.  600.405  Types of information covered.

    NOAA is authorized under the Magnuson-Stevens Act and other 
statutes to collect and maintain information. This part applies to 
confidential information as defined at Sec.  600.10.


Sec.  600.410  Collection and maintenance of information.

    (a) General. (1) Any information required to be submitted to the 
Secretary, a State fishery management agency, or a Marine Fisheries 
Commission in compliance with any requirement or regulation under the 
Magnuson-Stevens Act shall be provided to the Assistant Administrator.
    (2) Appropriate safeguards set forth in NOAA Administrative Order 
216-100 and other NOAA/NMFS internal procedures apply to the 
collection, maintenance, and disclosure of any confidential 
information.
    (b) Collection agreements with States or Marine Fisheries 
Commissions. (1) The Assistant Administrator may enter into an 
agreement with a State or a Marine Fisheries Commission authorizing the 
State or a Marine Fisheries Commission to collect confidential 
information on behalf of the Secretary.
    (2) To enter into a cooperative collection agreement with a State 
or a Marine Fisheries Commission, NMFS must determine that:
    (i) The State has confidentiality protection authority comparable 
to the Magnuson-Stevens Act and that the State will exercise this 
authority to prohibit public disclosure of the identity or business of 
any person.
    (ii) The Marine Fisheries Commission has enacted policies and 
procedures comparable to the Magnuson-Stevens Act and that the 
Commission will exercise such policies and procedures to prohibit 
public disclosure of the identity or business of any person.
    (c) Collection services by observer employer/observer provider. 
Before issuing a permit, letting a contract or grant, or providing 
certification to an organization that provides observer services, the 
Assistant Administrator shall determine that the observer employer/
observer provider has:
    (1) Enacted policies and procedures to protect confidential 
information from public disclosure;
    (2) Entered into an agreement with the Assistant Administrator that 
prohibits public disclosure of confidential information and identifies 
the criminal and civil penalties for unauthorized use or disclosure of 
confidential information provided under 18 U.S.C. 1905 and 16 U.S.C. 
1858; and
    (3) Required each observer to sign an agreement with NOAA/NMFS that 
prohibits public disclosure of confidential information and identifies 
the criminal and civil penalties for unauthorized use or disclosure of 
confidential information provided under 18 U.S.C. 1905 and 16 U.S.C. 
1858.
    (4) Observer employers/observer providers that fulfill the 
requirements of this subsection may share observer information among 
observers and between observers and observer employers/observer 
providers as necessary for the following:
    (i) Training and preparation of observers for deployments on 
specific vessels; or
    (ii) Validating the accuracy of the observer information collected.


Sec.  600.415  Access to information.

    (a) General. NMFS will determine whether a person may have access 
to confidential information under this section only when in receipt of 
a written request that provides the following information:
    (1) The specific types of information requested;
    (2) An explanation of why the information is necessary to fulfill a 
requirement of the Magnuson-Stevens Act;
    (3) The duration of time that access will be required: Continuous, 
infrequent, or one-time; and
    (4) An explanation of why aggregated or summarized information 
available under Sec.  600.430 would not be sufficient.
    (b) NOAA enforcement employees are presumed to qualify for access 
to confidential information without submission of a written request.
    (c) Federal employees. Confidential information under this section 
will only be accessible by the following:
    (1) Federal employees who are responsible for FMP development, 
monitoring, or enforcement. This includes persons that need access to 
confidential information to perform functions authorized under a 
federal contract, cooperative agreement, or grant awarded by NOAA/NMFS.
    (2) NMFS employees and contractors that perform research that 
requires access to confidential information.
    (3) Federal employees for purposes of supporting homeland and 
national security activities at the request of another federal agency 
only if:
    (i) Providing the information supports homeland security or 
national security purposes including the Coast Guard's

[[Page 30495]]

homeland security missions as defined in section 888(a)(2) of the 
Homeland Security Act of 2002 (6 U.S.C. 468(a)(2)); and
    (ii) The requesting agency has entered into a written agreement 
with the Assistant Administrator. The agreement shall contain a finding 
by the Assistant Administrator that the requesting agency has 
confidentiality policies and procedures to protect the information from 
public disclosure.
    (d) State fishery management employees. Confidential information 
may be made accessible to a State employee responsible for fisheries 
management only by written request and only if the employee has a need 
for confidential information to further the Department of Commerce's 
mission, and the State has entered into a written agreement between the 
Assistant Administrator and the head of the State's agency that manages 
marine and/or anadromous fisheries. The agreement shall contain a 
finding by the Assistant Administrator that the State has 
confidentiality protection authority comparable to the Magnuson-Stevens 
Act and that the State will exercise this authority to prohibit public 
disclosure of the identity or business of any person.
    (e) State enforcement personnel. Confidential information will be 
accessible by State employees responsible for enforcing FMPs, provided 
that the State for which the employee works has entered into a Joint 
Enforcement Agreement and the agreement is in effect.
    (f) Marine Fisheries Commission employees. Confidential information 
may be made accessible to Marine Fisheries Commission employees only 
upon written request of the Commission and only if the request 
demonstrates a need for confidential information to further the 
Department of Commerce's mission, and the executive director of the 
Marine Fisheries Commission has entered into a written agreement with 
the Assistant Administrator. The agreement shall contain a finding by 
the Assistant Administrator that the Marine Fisheries Commission has 
enacted policies and procedures comparable to the Magnuson-Stevens Act 
and that the Commission will exercise such policies and procedures to 
prohibit public disclosure of the identity or business of any person.
    (g) Councils. A Council, through its Executive Director, may 
request that access to confidential information be granted to:
    (1) Council employees who are responsible for FMP development and 
monitoring.
    (2) Council members for use by the Council for conservation and 
management purposes. Such a request must be approved by the Assistant 
Administrator. In making a decision about a request, the Assistant 
Administrator will consider the information described in paragraph (a) 
of this section and the possibility that Council members might gain 
personal or competitive advantage from access to the information.
    (3) Council scientific and statistical committee members, who are 
not federal or State employees, if necessary for the Council's 
evaluation of statistical, biological, or economic information relevant 
to such Council's development and amendment of any FMP. Such a request 
must be approved by the Assistant Administrator. In making a decision 
about a request, the Assistant Administrator will consider the 
information described in paragraph (a) of this section and the 
possibility that Council members might gain personal or competitive 
advantage from access to the information.
    (4) A contractor of the Council for use in such analysis or studies 
necessary for conservation and management purposes, with approval of 
the Assistant Administrator and execution of an agreement with NMFS as 
described in NOAA Administrative Order 216-100 or other NOAA/NMFS 
internal procedures.
    (h) Vessel Monitoring System Information. Nothing in these 
regulations contravenes section 311(i) of the Magnuson-Stevens Act 
which requires NMFS to make vessel monitoring system information 
directly available to the following:
    (1) Enforcement employees of a State which 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.
    (i) Prohibitions. Persons having access to confidential information 
under this section may be subject to criminal and civil penalties for 
unauthorized use or disclosure of confidential information. See 18 
U.S.C. 1905, 16 U.S.C. 1857-1858, and NOAA/NMFS internal procedures.


Sec.  600.420  Control system.

    (a) NMFS must maintain a control system to protect any information 
submitted in compliance with any requirement or regulation under the 
Magnuson-Stevens Act. The control system must:
    (1) Identify those persons who have access to confidential 
information;
    (2) Contain procedures to limit access to confidential information 
to authorized users; and
    (3) Provide handling and physical storage protocols for 
safeguarding of the information.
    (b) Require persons authorized to access confidential information 
to certify that they:
    (1) Are aware that they will be handling confidential information, 
and
    (2) Have reviewed and are familiar with the procedures for handling 
confidential information.


Sec.  600.425  Release of confidential information.

    (a) NMFS will not disclose to the public any confidential 
information except when:
    (1) Authorized by an FMP or regulations under the authority of the 
North Pacific Council to allow disclosure of observer information to 
the public of weekly summary bycatch information identified by vessel 
or for haul-specific bycatch information without vessel identification.
    (2) Observer information is necessary in proceedings to adjudicate 
observer certifications.
    (b) Information is required to be submitted to the Secretary for 
any determination under a limited access program. This exception 
applies to confidential information that NMFS has used, or intends to 
use, for a regulatory determination under a limited access program. For 
the purposes of this exception:
    (1) Limited Access Program means a program that allocates 
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 grant, denial, or revocation of 
privileges; approval or denial of a transfer of privileges; or other 
similar regulatory determinations by NMFS applicable to a person.
    (c) 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 consisting of one or more judges who seek to 
adjudicate disputes and administer justice. 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;

[[Page 30496]]

    (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.
    (d) 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.
    (e) The Secretary has obtained written authorization from the 
person submitting such information to release it to persons for reasons 
not otherwise provided for in Magnuson-Stevens Act subsection 402(b) 
and such release does not violate other requirements of the Act. NMFS 
will apply this exception as follows:
    (1) When a permit-holder is required to submit information in 
compliance with requirements of the Act, the permit-holder or designee 
may execute the written authorization for release of that information. 
Otherwise, the person who is required to submit the information and is 
identified in that information as the submitter may execute the written 
authorization for that information.
    (2) For observer information, a permit-holder may execute a written 
authorization for release of observed catch, bycatch, incidental take 
data, economic data, recorded biological sample data, and other 
information collected for scientific and management purposes by an 
observer while carried aboard the permit-holder's vessel.
    (3) A permit-holder or designee or other person described under 
paragraph (f)(1) of this section must provide a written statement 
authorizing the release of the information and specifying the person(s) 
to whom the information should be released.
    (4) A permit-holder or designee or other person described under 
paragraph (f)(1) of this section must prove identity by a statement of 
identity 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 must be in the following form:
    (i) 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)''.
    (ii) 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)''.
    (5) The Secretary must determine that a release under paragraph (f) 
of this section does not violate other requirements of the Magnuson-
Stevens Act and other applicable laws.


Sec.  600.430  Release of information in aggregate or summary form.

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

[FR Doc. 2012-12513 Filed 5-22-12; 8:45 am]
BILLING CODE 3510-22-P