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.