Confidentiality of Information...Definition of Limited Access

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.

Written comments on the proposed rule must be received on or 

before June 22, 2012.

 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.

 

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.

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) 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 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 

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

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 MMPAand 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 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.