102000 Federal Register / Vol. 89, No. 242 / Tuesday, December 17, 2024 / Rules and Regulations 

Species 1

Citation(s) for listing determination(s) Critical 

habitat ESA rules 

Common name Scientific name Description of listed 

entity 

*******

Corals 

* * * * * * * 

Coral, pillar ............... Dendrogyra cylindrus Entire species ........... [INSERT FEDERAL REGISTER CITATION], December 17, 2024.226.230 NA 

1Species includes taxonomic species, subspecies, distinct population segments (DPSs) (for a policy statement, see 61 FR 4722, February 7, 

1996), and evolutionarily significant units (ESUs) (for a policy statement, see 56 FR 58612, November 20, 1991). 

* * * * * 

[FR Doc. 2024–29082 Filed 12–16–24; 8:45 am] 

BILLING CODE 3510–22–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 600 

[Docket No. 241209–0318] 

RIN 0648–BM26 

Confidentiality of Information 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Final rule. 

SUMMARY: NMFS is issuing this final 

rule to revise existing regulations 

pertaining to confidentiality of 

information requirements under the 

Magnuson-Stevens Fishery 

Conservation and Management Act 

(Magnuson-Stevens Act or MSA). This 

rule updates the regulations consistent 

with the 2006 Magnuson-Stevens 

Fishery Conservation and Management 

Reauthorization Act (MSRA) and 1996 

Sustainable Fisheries Act (SFA) and 

amendments to the High Seas Driftnet 

Fishing Moratorium Protection Act 

(FMPA) under the 2015 Illegal, 

Unreported and Unregulated Fishing 

Enforcement Act (IUU Fishing Act). The 

final rule provides other revisions to 

address issues that concern NMFS’ 

internal control procedures (ICPs) for 

management of MSA confidentiality of 

information. 

DATES: Effective January 16, 2025. 

ADDRESSES: A plain language summary 

of this rule is available at: https://

www.regulations.gov/docket/NOAA-HQ2023-0146. 

Electronic Access: Information 

relevant to this proposed rule, which 

includes a final regulatory impact 

review and a Regulatory Flexibility Act 

certification, is accessible via the 

internet at: https://www.regulations.gov/ 

docket/NOAA-HQ-2023-0146/. 

FOR FURTHER INFORMATION CONTACT: Karl 

Moline, 301–427–8225, or at NMFS, 

Operations, Management, & Information 

Division F/ST3, Ste. 12300, 1315 East 

West Highway, Silver Spring, MD 

20910. 

SUPPLEMENTARY INFORMATION: Section 

402(b) of the MSA provides that ‘‘any 

information submitted to the Secretary, 

a State fishery management agency, or a 

marine fisheries commission by any 

person in compliance with the 

requirements of this Act,’’ 16 U.S.C. 

1881a(b)(1), and ‘‘[a]ny observer 

information,’’ id. 1881a(b)(2), ‘‘shall be 

confidential and shall not be disclosed’’ 

except pursuant to certain exceptions. 

Section 402(b)(3) requires that the 

Secretary ‘‘shall, by regulation, 

prescribe such procedures as may be 

necessary to preserve the confidentiality 

of information submitted in compliance 

with any requirement or regulation 

under [the MSA],’’ but the Secretary 

may release confidential information 

‘‘in any aggregate or summary form 

which does not directly or indirectly 

disclose the identity or business of any 

person who submits such information.’’ 

Id. 1881a(b)(3). NMFS regulations 

implementing MSA section 402(b) are at 

50 CFR part 600, subpart E, and there 

are confidentiality related definitions 

and references at 50 CFR 600.10 and 

600.130. NMFS published a proposed 

rule in the Federal Register on March 

11, 2024 (89 FR 17358). Comments were 

invited and accepted through April 25, 

2024. NMFS received 36 individual 

comments, including 1 letter that 

contained 5,040 signatures. NMFS 

responses are addressed in the Response 

to Comments section below. After 

considering public comments submitted 

for the proposed rule, NMFS is 

implementing the final rule with some 

changes. 

Background 

The agency last revised the 

confidentiality regulations in February 

1998 (63 FR 7075, February 12, 1998). 

A number of statutory changes have 

been enacted since 1998, and this rule 

provides important updates and 

clarifications to the confidentiality 

regulations to reflect those statutory 

changes. The 2006 MSRA (Pub. L. 109– 

479) made three major changes to the 

confidentiality provisions at MSA 

section 402(b). First, the MSRA added a 

provision specifying that observer 

information (defined at 16 U.S.C. 

1802(32)) shall be confidential and shall 

not be disclosed except pursuant to 

specified exceptions. 16 U.S.C. 

1881a(b)(2). One such exception at MSA 

section 402(b)(1)(F) authorizes release of 

confidential information based on 

written authorization from the person 

submitting such information. Id. 

1881a(b)(1)(F). The proposed rule 

distinguished between observer 

information that is collected onboard a 

vessel for scientific and management 

purposes and information collected for 

administration of the observer program 

and allowed a vessel permit holder to 

execute a written authorization only for 

the first category of information. See 89 

FR 17358, 17364 (March 11, 2024) 

(explaining basis for proposed rule 

approach, which retains current agency 

practice). 

Second, the MSRA added a new 

exception that authorizes the Secretary 

to disclose confidential information 

when such information is required to be 

submitted to the Secretary for any 

determination under a limited access 

program (LAP). 16 U.S.C. 

1881a(b)(1)(G). The proposed rule 

included a definition of 

‘‘determination’’ and defines ‘‘limited 

access program’’ consistent with how 

‘‘catch share’’ is defined under NOAA’s 

Catch Share Policy (available at http:// 

www.nmfs.noaa.gov/sfa/management/ 

catch_shares/about/documents/noaa_

cs_policy.pdf). The proposed rule 

explained that the exception could 


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apply, regardless of whether NMFS has 

made a LAP determination as long as 

there are sufficient facts showing that 

the information was submitted to NMFS 

for it to make a determination under a 

LAP. For example, prior landings 

information would be releasable if a 

fishery management council (Council) 

has submitted a fishery management 

plan (FMP) or amendment for a LAP for 

secretarial approval and NMFS issues a 

Federal Register notice stating that it 

will use prior landings data for initial 

allocation determinations under the 

proposed LAP. The proposed rule also 

notes that information submitted under 

a non-LAP fishery may later be relevant 

for determinations regarding privileges, 

if the fishery transitions to a LAP. 

NMFS proposed that information 

previously submitted under a non-LAP 

that the agency uses or intends to use 

for determinations under a newly 

established LAP may fall within the 

scope of the LAP exception. See 89 FR 

17363–17364 (March 11, 2024, 

explaining proposed rule approach to 

LAP exception). 

Third, the MSRA expanded the 

confidentiality provision to include 

information submitted to a State fishery 

management agency or a marine 

fisheries commission in compliance 

with a requirement or regulation under 

the Act. Prior to the MSRA, the 1996 

SFA (Pub. L. 104–297) had expanded 

the confidentiality provision to apply to 

information submitted in compliance 

with ‘‘any requirement or regulation’’ 

under the Act and also revised MSA 

section 402(b) to refer to ‘‘information’’ 

instead of ‘‘statistics.’’ 

In addition, as discussed in the 

preamble to the proposed rule, the 

Illegal, Unreported and Unregulated 

Fishing Enforcement Act of 2015 (IUU 

Fishing Act), Public Law 114–81 101(b) 

(Nov. 5, 2015), amended the FMPA to 

include provisions at 16 U.S.C. 1826i 

and 1826g related to MSA confidential 

information. 89 FR at 17359. NMFS 

implements and administers the FMPA 

through authority delegated from the 

Secretary. Under section 1826i(b)(1), the 

Secretary is authorized to disclose 

information, as necessary and 

appropriate, including information 

collected under joint authority of the 

MSA and another statute that 

implements an international fishery 

agreement, such as the Atlantic Tunas 

Convention Act (ATCA) of 1975, Id. 971 

et seq., to a Federal or State government 

agency, the Food and Agriculture 

Organization of the United Nations, or 

the secretariat or equivalent of an 

international fishery management 

organization or arrangement made 

pursuant to an international fishery 

agreement, if certain conditions are 

satisfied. Such information may be 

vessel-specific. One condition for 

release of the otherwise confidential 

information is ‘‘such government, 

organization, or arrangement . . . has 

policies and procedures to protect such 

information from unintended or 

unauthorized disclosure.’’ Id. 

1826i(b)(1). Section 1826g(d)(2) 

authorizes disclosure to the same 

entities and foreign governments, 

subject to the same condition regarding 

policies and procedure to protect 

against unauthorized disclosure. In 

addition, section 1826g(d)(2) also 

requires that disclosures be necessary 

for one of the compliance or 

enforcement purposes enumerated 

under subparagraph (A)(ii). Id. 

1826g(d)(2)(A)(i)–(ii). For purposes of 

the FMPA disclosure provisions, the 

term ‘‘international fishery agreement’’ 

has the same meaning as ‘‘international 

fishery management agreement’’ as set 

forth in 50 CFR 300.201. 

Both 1826i(b)(2) and 1826g(d)(2)(B) 

provide that, with respect to the FMPA, 

the confidentiality requirements of the 

MSA are not applicable for obligations 

of the United States to share information 

under a Regional Fishery Management 

Organization (RFMO) to which the 

United States is a member, or to 

information collected by NMFS 

regarding foreign fishing vessels. 

In response to comments on the 

proposed rule, NMFS has revised the 

final rule to more simply and closely 

track the FMPA provisions. See 

response to Comment 20 below. In 

addition, some RFMO implementing 

statutes have confidentiality provisions, 

e.g., Western and Central Pacific 

Fisheries Convention (WCPFC) 

Implementation Act, 16 U.S.C. 6905(d). 

NMFS initiated this rulemaking based 

on the statutory changes described in 

the Background section of the proposed 

rule and this final rule and a general 

need to reorganize and clarify the scope 

of applicability of the confidentiality 

regulations. 

NMFS proposed to revise § 600.405 to 

clarify that regulations under subpart E 

apply to confidential information that is 

under NMFS’ custody and control. 

NMFS further explained that it treats 

information as subject to its custody and 

control when it physically obtains the 

information (see 16 U.S.C. 1881a(b) 

(providing for confidentiality of 

information ‘‘submitted’’ to the 

Secretary in compliance with MSA 

requirements)). In the case of 

electronically submitted information, 

NMFS has custody and control when 

the information enters a NMFS Federal 

Information Security Modernization Act 

(FISMA) domain (which is a collection 

of devices, applications, software and 

information technology assets that serve 

a coordinated purpose or mission, and 

have a common enforced boundary with 

enforced or inherited security and 

privacy controls). Thus, while the MSA 

confidentiality requirements apply to 

information submitted to a State fishery 

management agency or a marine 

fisheries commission, these regulations 

would not apply to such information as 

it is outside of NMFS’ physical 

possession. Protection of that 

information would be addressed 

through an agreement with a State or a 

marine fisheries commission as 

provided for under § 600.410(c). 

The 1998 regulations discuss the 

generic application of ‘‘safeguards as 

specified by NOAA Directives, or other 

NOAA or NMFS internal procedures’’ to 

confidential data. 50 CFR 600.410(a)(3). 

Currently those procedures are set forth 

in a NOAA Administrative Order (NAO 

216–100). As discussed in the preamble 

of the proposed rule, NOAA intends to 

replace NAO 216–100 with updated 

internal control procedures. 

Accordingly, NMFS revised existing 

§ 600.410 to clarify the need to establish 

these internal control procedures and to 

outline certain topics that should be 

included in the updated procedures 

(See § 600.410(b)). 

This final rule includes the following 

elements: 

(1) A clarification that the regulations 

under 50 CFR part 600, subpart E, apply 

to information under NMFS’ custody 

and control (§ 600.405). 

(2) Deletion of references to 

‘‘statistics’’ in 50 CFR part 600, subpart 

E, and the definitions and Council 

sections (§§ 600.10 and 600.130), and 

other technical, non-substantive 

changes for the sake of clarity. 

(3) Revised definition of ‘‘Aggregate or 

summary form’’ based on MSA section 

402(b)(3), including adding a reference 

to ‘‘business of any person’’ (§ 600.10). 

(4) New definitions of ‘‘Business of 

any person’’, ‘‘Confidential 

information’’, ‘‘Electronic Monitoring 

Service Provider’’, ‘‘Information sharing 

obligation of a Regional Fishery 

Management Organization (RFMO)’’, 

‘‘Observer provider’’, and ‘‘Regional 

Fishery Management Organization’’ 

(§ 600.10). 

(5) Deletion of existing text at 

§ 600.410(a)(2) regarding NMFS 

removing, after receipt, ‘‘identifying 

particulars’’ from statistics. 

(6) Procedures regarding State or 

marine fisheries commission 

information collection agreements 

(§ 600.410(c)) and observer providers 


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102002 Federal Register / Vol. 89, No. 242 / Tuesday, December 17, 2024 / Rules and Regulations 

and electronic monitoring service 

providers (§ 600.410(d)). 

(7) Addition of text from 16 U.S.C. 

1881a(b)(1)(I) on disclosure of 

information to ‘‘Federal agencies, to the 

extent necessary and appropriate, to 

administer Federal programs established 

to combat illegal, unreported, or 

unregulated fishing or forced labor (as 

such terms are defined in section 11329 

of the Don Young Coast Guard 

Authorization Act of 2022 [16 U.S.C. 

1885a note]), which shall not include an 

authorization for such agencies to 

release data to the public unless such 

release is related to enforcement.’’ 

(§ 600.415(a)(3)). 

(8) New procedures regarding access 

to confidential information by Federal 

employees when in support of 

homeland and national security 

activities (§ 600.415(a)(2)), State and 

marine fisheries commission employees 

(§ 600.415(b)), and State enforcement 

employees responsible for FMP 

enforcement (§ 600.415(c)). 

(9) Revised procedures regarding 

access to confidential information by 

Council members (§ 600.415(d)(2)). 

(10) New procedures regarding access 

to confidential information by a 

Council’s scientific and statistical 

committee, advisory panels and 

contractors (§ 600.415(d)(3)–(5)). 

(11) A provision on making vessel 

monitoring system information directly 

available to State enforcement 

employees and state management 

agencies, as provided under section 

311(i) of the Magnuson-Stevens Act 

(§ 600.415(e)). 

(12) A provision on disclosure of 

information to specified governmental 

and intergovernmental entities pursuant 

to the FMPA, 16 U.S.C. 1826i and 1826g 

(§ 600.415(f)). 

(13) Provisions on disclosure of 

observer information for proceedings to 

adjudicate observer certifications and as 

authorized by regulations implementing 

recommendations in an FMP prepared 

by the North Pacific Fishery 

Management Council (§ 600.420(a)–(b)). 

(14) LAP exception to confidentiality 

requirements and related new 

definitions for LAP and 

‘‘determination’’ (§ 600.420(c)). 

(15) Clarification of the court order 

exception (§ 600.420(d)). 

(16) Provision regarding disclosure of 

information for enforcement of the MSA 

or when necessary for enforcement of 

any state living marine resource law, if 

that state has a Joint Enforcement 

Agreement that is in effect 

(§ 600.420(e)). 

(17) Procedures for written 

authorization for release of confidential 

information, including observer 

information (§ 600.420(f)); 

(18) Provision that NMFS may 

disclose in any aggregate or summary 

form information that is required to be 

maintained as confidential under the 

regulation (§ 600.425) 

(19) Prohibition on disclosing 

confidential information without 

authorization (§ 600.725(y)). 

Response to Comments 

NMFS published its proposed rule on 

March 11, 2024, (89 FR 17358) and 

accepted public comments for 45 days, 

closing on April 25, 2024. NMFS 

received a total of 36 comments. Below, 

NMFS summarizes and responds to all 

comments received. Comments are 

grouped by subject matter (e.g., ‘45-day 

Comment Period’) with similar 

comments summarized under a 

comment number (e.g., ‘Comment 1’ 

summarizes all comments received 

regarding the 45-day comment period). 

45-Day Comment Period 

Comment 1: Many commenters said 

that the 45-day comment period was too 

short and that NMFS should reissue the 

proposed rule with additional time for 

comment. Some commenters stated that, 

concurrent with additional time for 

comment, NMFS should engage the 

public on the rulemaking and specific 

issues such as electronic monitoring 

policies, data ownership and 

management, and public access. One 

commenter said that NMFS should at 

minimum conduct another rulemaking 

for the data aggregation and 

summarization procedures referenced 

under § 600.410(b). Two commenters 

recommended reinitiating this 

rulemaking and that NMFS should 

engage the public through an Advanced 

Notice of Proposed Rulemaking (ANPR). 

Response: The 45-day comment 

period provided sufficient time for 

submission of a wide range of material 

issues and concerns. During that period 

no new information was presented that 

would warrant additional time for 

review and comment or for reissuance 

of the rule for another notice and 

comment period. After finalization of 

this rulemaking, NMFS will develop an 

approach to engage with the public on 

improvements to the procedures for 

aggregation and summarization of 

confidential information referenced 

under § 600.410(b) for the maintenance 

of and access to confidential 

information. NMFS typically engages 

the public through ANPRs in order to 

scope issues, identify possible 

alternatives, and generally gather 

information that it may need to develop 

a proposed rule. An ANPR was not 

necessary here given NMFS’ experience 

in administering confidentiality 

requirements since enactment of the 

1976 Fishery Conservation and 

Management Act (precursor to the MSA) 

and the 2012 MSA confidentiality 

proposed rule and public comments 

received during an almost 5-month 

comment period. See 82 FR 4278 

(January 13, 2017) (describing and 

withdrawing 2012 proposed rule). If 

experience implementing these 

regulations identifies the need for 

additional procedures to preserve the 

confidentiality of information, the 

agency will consider an ANPR along 

with other options to engage the public 

in development of those procedures. 

Open Government and Transparency 

Comment 2: Some commenters 

opposed the proposed rule stating that 

it limited public access to information 

without a statutory mandate and is 

inconsistent with the Administration’s 

Open Government Policy. 

Response: NMFS disagrees. First, the 

MSA mandates the confidentiality of 

any information that is submitted to the 

Secretary, a State fishery management 

agency, or a marine fisheries 

commission and any observer 

information in compliance with a 

requirement or regulation under the 

MSA. 16 U.S.C. 1881a(b)(1) and (b)(2). 

The limitations on public access to 

information under this rule are 

consistent with that mandate and MSA 

section 402(b)(3) which directs the 

Secretary to promulgate, by regulation, 

such procedures as may be necessary to 

preserve the confidentiality of 

information. Second, this rule advances 

open government and transparency by 

providing a framework that allows for 

access to, or public disclosure of, 

confidential information when 

authorized by law. 

Unauthorized Use/Disclosure 

Prohibition 

Comment 3: Some commenters 

opposed the prohibition on 

unauthorized use or disclosure of 

confidential information in § 600.725 

stating that it would discourage 

legitimate disclosures of confidential 

information. These commenters 

recommended that NMFS instead 

emphasize training on the handling of 

confidential information. A commenter 

asked that NMFS clarify whether NMFS 

would be responsible for enforcing the 

proposed prohibition. 

Response: This prohibition reflects 

the confidentiality requirements of MSA 

402(b) and section 307(1)(A) which 

provides that it is unlawful for any 

person to violate any provision of the 


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Federal Register / Vol. 89, No. 242 / Tuesday, December 17, 2024 / Rules and Regulations 102003 

Act. Since 1996, NMFS’ regulations for 

preservation of MSA confidential 

information under subpart E have 

included this prohibition and during 

that time NMFS employees and other 

individuals authorized to access 

confidential information have been 

required to sign a statement that they 

acknowledge the prohibition on 

unauthorized disclosure of confidential 

information and the potential for civil or 

criminal prosecution for any violation of 

that prohibition. The proposed 

prohibition, therefore, represents 

applicable law and existing policy. 

Based on its long history of successfully 

operating under this prohibition, NMFS 

has no basis to believe that the 

prohibition would discourage or create 

concerns within NMFS on legitimate 

access to and disclosure of confidential 

information. Enforcement will be the 

responsibility of NMFS’ Office of Law 

Enforcement with support from other 

governmental entities. 

Development of Internal Control 

Procedures 

Comment 4: Many commenters 

requested that NMFS clarify how it will 

develop ICPs referenced under 

§ 600.410(b) and how the ICPs would 

apply to the collection and maintenance 

of, access to, and release of any 

confidential information. Some 

commenters stated that they could not 

assess the rule without further 

information on the ICPs and how they 

would be developed. One commenter 

asserted that the rule’s approach to 

development of the ICPs is not 

consistent with principles of 

transparency and inclusion provided in 

NMFS’ Equity and Environmental 

Justice Strategy and NOAA’s Data 

Strategic Action Plan. Commenters 

generally requested that NMFS provide 

a transparent and inclusive process with 

meaningful opportunities for public 

engagement in the development of ICPs. 

Response: The ICPs are internal 

agency procedures intended to guide the 

handling of confidential information 

under the MSA. Because the current 

ICPs inform NMFS’ internal 

administrative processes, they are 

included in a 1994 NOAA 

Administrative Order (NAO 216–100) 

and are not set forth in the Code of 

Federal Regulations. However, as noted 

in the preambleto the proposed rule, 

NOAA intends to replace NAO 216–100 

with updated ICPs. NMFS is committed 

to an open, equitable, and transparent 

public engagement process in the 

development of the ICPs through 

appropriate means and methods and 

consistent with legal requirements. The 

extent and manner of public 

engagement will vary depending on the 

subject matter. 

Recognizing that ICPs have been a 

part of the confidentiality regulations 

since 1998 in some fashion, this rule 

reiterates the need to establish ICPs. 

While the requirement to establish and 

maintain ICPs is part of this rulemaking, 

the rulemaking does not dictate the 

specific substance of those ICPs. As 

guidance rather than regulatory 

mandate, ICPs will be developed 

subsequent to the issuance of the final 

rule and reflect its requirements related 

to the preservation of confidential 

information. Developing internal 

administrative procedures that could 

change as a result of this rulemaking 

would not be efficient. When NMFS 

develops substantive ICPs, it plans to 

engage the public through webinars, 

workshops, and/or other forms and 

methods for obtaining public comment. 

Comment 5: Some commenters stated 

that the ICPs are substantive rules of 

general applicability that must be 

promulgated through rulemaking in 

order to comply with the Administrative 

Procedure Act (APA). Other 

commenters also said that NMFS must 

promulgate ICPs by regulation in order 

to comply with MSA 402(b)(3), 16 

U.S.C. 1881a(b)(3). One commenter 

viewed notice-and-comment rulemaking 

as appropriate for development of 

procedures for release of confidential 

information in aggregate or summary 

form while other procedures that only 

apply to NMFS’s internal handling of 

confidential information could be 

developed through a non-rulemaking 

process. 

Response: ICPs have been part of the 

confidentiality regulations since 1998. 

As stated above, they currently exist in 

NAO 216–100, have not been codified 

in the Code of Federal Regulations, and 

were not promulgated through notice 

and comment rulemaking in the Federal 

Register. These ICPs constitute a 

practice or procedure relating to agency 

management and are therefore not 

subject to notice and comment 

procedures under the APA, 5 U.S.C 

553(a)(2). Nevertheless, NMFS intends 

to evaluate each ICP individually and 

determine the appropriate process for 

public engagement and development. 

NMFS anticipates that most, if not all, 

will constitute a practice or procedure 

relating to agency management and as 

such not subject to APA notice and 

comment procedures. However, NMFS 

will conduct further rulemaking, if 

necessary, and/or may choose to make 

draft ICPs available for public comment. 

Under MSA 402(b)(3), the Secretary, 

through NMFS, is directed to ‘‘prescribe 

such procedures [by regulation] as may 

be necessary to preserve the 

confidentiality of information . . .’’ 

NMFS therefore has discretion to 

determine which procedures are 

necessary for the protection of 

confidential information and which, 

therefore, must be done through 

rulemaking. This final rule prescribes 

all such procedures. 

In contrast, the ICPs contained in 

NAO 216–100 consist of procedures for 

agency management that can be 

addressed through non-regulatory 

methods. ICPs provide additional 

guidance on the application of the 

regulatory requirements in specific 

cases, but they are not themselves 

regulatory. As such, the subject matter 

to be addressed through ICPs, such as 

standardized agreements for sharing 

information, do not constitute 

procedures that are necessary for 

preserving confidentiality. However, if 

NMFS determines that a specific ICP 

should have regulatory effect, NMFS 

will promulgate that ICP through 

appropriate rulemaking. Until ICPs are 

developed and finalized, it will 

continue to apply the provisions of 

NAO 216–100 except those that are in 

conflict with applicable law. For 

example, NMFS will not apply Section 

6.04.a.1(d) of NAO 216–100, which 

provides that observer data collected 

under the MSA are not confidential. 

This provision is in direct conflict with 

MSA 402(b)(2), 16 U.S.C 1881a(b)(2). 

Comment 6: A commenter expressed 

concern that NMFS would release 

confidential information under the 

Freedom of Information Act (FOIA) 

even if prohibited under ICPs because 

procedures not completed through 

regulations lack the force of law. 

Response: NMFS agrees that nonregulatory ICPs lack the force of law. 

Any such ICPs will not address or apply 

to whether confidential information 

may be released under FOIA. Rather, as 

stated in the preamble of the proposed 

rule, NMFS applies MSA section 

402(b)(3) as the basis for FOIA 

Exemption Three, mandatory 

withholding authority. 

Comment 7: A commenter stated that 

it is unclear how national policies 

developed through the ICPs will interact 

with regional practices and 

implementation plans. 

Response: As required under 

§ 600.410(b), NMFS intends to update 

the current ICPs set forth in NAO 216– 

100. As with the current ICPs, these 

updated ICPs will be intended to 

provide national-level guidance on the 

application of these regulations for the 

maintenance of and access to any 

confidential information. Regions may 

develop additional ICPs that address 


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specific issues with their region’s data 

collection programs and/or fisheries for 

management of confidential 

information. Any such regional ICPs 

must be consistent with statutory and 

regulatory requirements and should also 

be consistent with the national ICPs. 

Protection of Confidential Information 

Collected and/or Processed by Observer 

Information Services 

Observer Providers 

Comment 8: One commenter 

requested that NMFS revise the 

definition of ‘‘observer provider’’ 

because observer providers do not 

collect observer data. The commenter 

further requested that NMFS explain the 

use of the term ‘‘observer information’’ 

rather than ‘‘observer data’’ and whether 

using the term ‘‘observer information’’ 

will affect public access to information 

that is collected by observers. 

Response: The definition of observer 

provider is clear that an observer 

provider does not itself collect observer 

information but rather collects that 

information through the placement of 

observers on certain platforms or in 

certain facilities. This rule defines 

‘‘observer provider’’ as ‘‘any person that 

collects observer information by 

placement of observers on or in fishing 

vessels, shoreside processors, or 

stationary floating processors under the 

MSA or as part of a cooperative research 

initiative.’’ The MSA defines ‘‘person’’ 

to include ‘‘any corporation, 

partnership, association, or other 

entity.’’ 16 U.S.C. 1802(36). The MSA 

defines ‘‘observer information,’’ id. 

1802(32), and specifically references 

that term in the MSA’s confidentiality 

requirements at section 402(b), id. 

1881a(b)(2). Accordingly, it is 

appropriate to use the term ‘‘observer 

information’’ for this rule rather than 

‘‘observer data,’’ which is neither 

defined in the MSA nor referenced in 

the MSA’s confidentiality requirements. 

Electronic Monitoring (EM) Service 

Providers 

Comment 9: One commenter 

recommended that NMFS expand the 

definition of ‘‘EM Service Provider’’ to 

include EM providers that contract 

directly with fishery participants or 

their representatives. Otherwise, 

portions of EM data that are collected 

and maintained by EM service providers 

may not be protected by NMFS even 

though that information is subject to the 

MSA confidentiality requirements. The 

commenter requested that NMFS 

maintain the confidentiality of EM 

information in the same way that it 

protects information collected by 

human observers. The commenter stated 

that protection of information will 

incentivize further participation in and 

development of EM. An additional 

commenter stated that NMFS should 

describe how the revised MSA 

confidentiality regulations will affect its 

policy directives on EM. The 

commenter stated that NMFS should 

initiate a distinct rulemaking for 

maintaining the confidentiality of EM 

information and engage the public on 

access to that information. 

Response: Under this final rule, an 

EM service provider is defined to 

include such providers that contract 

directly with a vessel to manage 

information that is collected by an EM 

system required under MSA regulations 

or a permit. However, agency access, 

maintenance, and release 

responsibilities under this final rule 

apply only to information that is under 

NMFS’ custody and control. As 

explained in the Background section of 

this final rule and the proposed rule (89 

FR at 17361–62), NMFS treats 

information as subject to its custody and 

control when it physically obtains the 

information (see 16 U.S.C. 1881a(b) 

(providing for confidentiality of 

information ‘‘submitted’’ to the 

Secretary in compliance with MSA 

requirements)). Information that is 

maintained by an EM service provider 

under contract with a fishing vessel is 

not under NMFS’ custody and control. 

Therefore, the access, maintenance, and 

release responsibilities of this final rule 

do not apply to that information. 

As explained in the preamble to the 

proposed rule, because EM information 

is a form of observer information under 

the MSA, it is considered confidential 

under the MSA. NMFS expects an EM 

service provider to have a means to 

protect a vessel owner’s EM information 

that is subject to the MSA’s broader 

statutory prohibition on the release of 

observer information. See Information 

Law Application for Data and 

Supporting Guidance in Electronic 

Monitoring Programs For Federally 

Managed U.S. Fisheries 04–115–04, 

available at https://

media.fisheries.noaa.gov/dammigration/04-115.pdf. Regulatory 

programs that establish EM programs 

should require that third parties have a 

means to protect EM data, whether 

through FMP implementing regulations, 

a service provider approval process, or 

other applicable procedure. Id. 

NMFS has a different approach for 

information collected by human 

observers because MSA 402(b)(2)(C) 

provides for limited dissemination of 

confidential information between 

observers, observer providers, and 

NMFS pursuant to a confidentiality 

agreement that prohibits other types of 

dissemination. See 89 FR at 17361 

(proposed rule discussion). To comply 

with MSA section 402(b)(2)(C), NMFS 

must effectuate the MSA confidentiality 

requirements for human observer 

information including information 

collected by observers employed by an 

observer provider that is under contract 

with a fishing vessel, but a similar 

provision does not exist for electronic 

monitoring information not under 

NMFS’ control. Thus, the final rule 

takes a different approach for observer 

providers than for EM service providers 

that are under contract with a fishing 

vessel. 

For these reasons, NMFS is finalizing 

its proposed definition of an Electronic 

Monitoring Service Provider with no 

changes. NMFS’ existing policy 

directives on EM information and these 

regulations are sufficient to guide the 

management of confidential information 

collected through EM systems, and a 

specific rulemaking on such issues is 

unwarranted. 

NMFS has made one edit to the 

definition of ‘‘observer information’’ to 

insert statutory text that was 

inadvertently left out. The MSA defines 

‘‘observer information’’ to include EM 

information collected pursuant to an 

authorization by the Secretary or ‘‘as 

part of a cooperative research 

initiative.’’ 16 U.S.C. 1802(36). The final 

rule adds the cooperative research text. 

Lastly, because this final rule does not 

apply to confidential information 

maintained by EM service providers, it 

does not affect NMFS’ policy directive 

04–115–03 which provides guidance on 

how long privately contracted EM 

service providers should retain EM 

information. 

Comment 10: A commenter expressed 

concern that the proposed definition of 

‘‘confidential information’’ did not 

cover certain categories of EM data or 

portions of the ‘‘chain of custody,’’ i.e., 

the handling of EM data before review 

and data extraction. 

Response: This final rule defines 

‘‘confidential information’’ consistent 

with the MSA, which requires the 

confidentiality of any observer 

information with some exceptions. 16 

U.S.C. 1881a(b)(2). Under the MSA, 

observer information is defined to 

include any information collected by an 

EM system. Accordingly, under this 

final rule, all categories of EM data that 

are collected by an EM system 

constitute confidential information. 

Information regarding ‘‘chain of 

custody,’’ or the handling of EM data 

before review and data extraction, does 

not fall under the MSA definition of 


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observer information. Therefore, such 

information would not be considered 

confidential information for MSA 

purposes unless it is required to be 

submitted to NMFS in compliance with 

a regulation under the Act. 

Comment 11: One commenter 

requested an assessment of the impacts 

of the proposed rule on the 

implementation of a new reporting 

requirement for electronic logbooks 

(ELBs) for commercial fisheries in the 

Gulf of Mexico. The commenter stated 

that this assessment is important to 

ensure that implementation of the ELBs 

for commercial fisheries is not delayed. 

Response 11: Confidentiality of 

information requirements under the 

MSA and this final rule may apply to 

information that a person submits 

through ELBs or other electronic devices 

but not the devices themselves. Agency 

access, maintenance, and release 

responsibilities under this rule apply 

only to information that is under NMFS’ 

custody and control, i.e., when it enters 

a NMFS FISMA domain. See 

Background section above for FISMA 

explanation. As such, this final rule 

does not have an impact on the 

implementation of new reporting 

requirements for ELBs in the Gulf of 

Mexico, and therefore, no assessment of 

the impacts of this rule on reporting 

requirements for ELBs was conducted. 

Comment 12: A commenter stated that 

NMFS should improve the efficacy of its 

confidentiality agreement protocols by 

requiring EM providers to disclose their 

artificial intelligence and machine 

learning technologies. 

Response: The commenter did not 

indicate why or how disclosure of an 

EM provider’s artificial intelligence and 

machine learning technologies to NMFS 

would improve the efficacy of the 

confidentiality agreement protocols. 

These final regulations require that a 

confidentiality agreement between 

NMFS and EM service providers that are 

providing services to NMFS under a 

contract, or performing functions that 

require the handling of confidential 

information under a NMFS financial 

assistance award, specify the procedures 

that the provider will apply to protect 

confidential information from public 

disclosure; and also require that the EM 

service provider, and each of its 

employees who will handle confidential 

information, acknowledge the 

requirement to maintain the 

confidentiality of observer information 

and the civil penalties for unauthorized 

use or disclosure of this information 

under 16 U.S.C. 1858. NMFS believes 

that these procedures are sufficient to 

address any potential information 

security issues that may arise with 

respect to any technologies employed by 

an EM service provider for the 

processing of EM data. 

Comment 13: A commenter requested 

that NMFS revise the proposed rule to 

clarify if all information collected by the 

EM systems that are required under the 

MSA or other authorities will be treated 

as confidential information. 

Response: As stated above, any 

information collected by an EM system 

that is required under the MSA is 

subject to the Act’s confidentiality 

requirements. Agency access, 

maintenance, and release 

responsibilities under this rule apply 

only to information that is under NMFS’ 

custody and control, which occurs 

when NMFS physically obtains the 

information, or it enters an NMFS 

FISMA domain. See Background section 

above for FISMA explanation. The 

response to Comment 9 explains NMFS’ 

approach to EM information maintained 

by an EM service provider under 

contract with a fishing vessel. 

Responses to Comments 14 and 24 

describe agreements with states or 

Marine Fisheries Commissions for the 

collection of confidential information. 

Neither MSA confidentiality 

requirements nor this rule apply to 

information that is collected by an EM 

system that may be required under other 

authorities. Whether NMFS must 

protect from disclosure information 

collected by an EM system required 

under an authority other than the MSA 

depends on the authority at issue. 

Comment 14: Commenters requested 

that NMFS clarify what constitutes 

‘‘authority comparable to the MSA’’ for 

purposes of an agreement with a state 

that allows for collection of confidential 

information. Commenters also asked 

how NMFS will determine that a State 

will ‘‘exercise such authority’’ and what 

happens if it does not. 

Response: Pursuant to § 600.410(c)(1), 

NMFS will assess whether a State has 

legal authority to protect confidential 

information from disclosure in the same 

manner that NMFS can protect such 

information from public disclosure 

under the MSA. NMFS will rely on the 

respective State’s assurances to 

determine whether a State will exercise 

such authority. Should a State not 

exercise its authority to protect 

confidential information, NMFS may 

rescind the collection agreement. NMFS 

intends to develop ICPs to guide the 

development of confidentiality 

agreements with States and 

commissions that are authorized to 

collect confidential information. 

Scope of Subpart E Regulations 

Comment 15: A commenter said that 

proposed § 600.405 would narrow the 

scope of information that would be 

subject to the regulations compared to 

current regulations. Some commenters 

requested that NMFS clarify whether 

confidentiality protections would apply 

to information collected by NMFS under 

a fishery management plan (FMP) that 

was not implemented under the MSA. 

Response: Proposed § 600.405 was not 

intended to narrow the scope of 

information subject to MSA 

confidentiality requirements (16 U.S.C. 

1881a(b)); the section refers to a 

definition of confidential information 

(§ 600.10) that is consistent with 16 

U.S.C. 1881a(b). After reviewing public 

comment, NMFS is clarifying § 600.405. 

Final § 600.405 continues to state that 

the regulations apply to confidential 

information as defined in § 600.10 with 

an additional explanation that agency 

access, maintenance, and release 

responsibilities apply only to 

confidential information under NMFS’ 

custody and control. As explained in 

the Background section of this final rule 

and the proposed rule (89 FR at 17361– 

62), NMFS treats information as subject 

to its custody and control when it 

physically obtains the information (see 

16 U.S.C. 1881a(b) (providing for 

confidentiality of information 

‘‘submitted’’ to the Secretary in 

compliance with MSA requirements)). 

With regard to the relevant FMP, the 

proposed rule stated that the MSA 

confidentiality requirements apply to 

information that a person submits in 

compliance with an FMP that is 

implemented under the MSA and any 

observer information collected under 

the Act. In some cases, FMP information 

collection and/or monitoring 

requirements are implemented under 

joint authority of the MSA and another 

authority. In those cases, the MSA 

confidentiality requirements apply just 

as they would to information that is 

submitted by a person or collected by an 

observer under an FMP implemented 

solely under the MSA. For information 

collection requirements implemented 

under FMPs under authorities other 

than the MSA, the Act’s confidentiality 

requirements do not apply. 

Voluntarily Submitted Data 

Comment 16: A commenter asked 

NMFS for examples of information 

collected under an MSA program that 

isn’t submitted to the Secretary, State 

agency, or marine fisheries commission 

and thus would not be subject to this 

rule. Additionally, a commenter sought 

clarification on the application of this 


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rule to data from cooperative research 

programs that is provided voluntarily. 

The commenters also requested 

clarification on privacy protections for 

data from recreational and voluntary 

collection programs not covered by 

MSA confidentiality and asserted that 

these voluntary data collection 

programs may suffer if data is 

considered non-confidential or not 

protected. They requested that the 

agency identify any data and privacy 

protections for information collected 

through State and NOAA surveys. They 

emphasized the need to differentiate 

between high-resolution data for 

research and data for management 

decisions and recommended that 

voluntary data streams, such as those 

from participants in an opt-in ondemand gear program, receive 

confidential protection. 

Response: Where there is no MSA 

requirement for the information 

collected and a person voluntarily 

submits it, the MSA confidentiality 

prohibition against release does not 

apply. In addition, neither these 

regulations, nor any current or future 

ICPs developed pursuant to these 

regulations, would apply to information 

that is voluntarily provided to NMFS. 

For example, confidentiality restrictions 

would not apply to recreational fishing 

information collected through a state 

survey program and provided to NMFS. 

Any information voluntarily provided 

directly to NMFS through a NMFSconducted survey, including voluntary 

surveys to collect cost and earnings 

data, would also not be MSA 

confidential information. While 

voluntarily submitted information is not 

confidential under the MSA, it may be 

exempt from public disclosure under 

FOIA as confidential business 

information or information that would 

result in an unwarranted invasion of 

personal privacy if made publicly 

available. As such, NMFS does not 

anticipate a reduction in participation of 

voluntary collections. 

The MSA confidentiality 

requirements and procedures under this 

rule apply to observer information that 

was collected as part of a cooperative 

research initiative and that is under 

NMFS’ custody and control. See 16 

U.S.C. 1881a(b)(2) and 1802(32) 

(providing that ‘‘observer information’’ 

is confidential and referring to a 

cooperative research initiative in the 

definition of that term). In addition, if 

cooperative research is conducted under 

an exempted fishing permit and 

information collected through that 

research is required to be submitted 

under the terms of the permit, NMFS 

will treat it as confidential information 

for MSA purposes. 

Lastly, NMFS intends to develop 

guidance on data aggregation standards 

as part of an ICP to address the level of 

data resolution needed to preserve 

confidentiality, if it is to be released for 

management purposes. See 50 CFR 

600.410(b)(9). 

Disclosure Under the Limited Access 

Program Exception 

Comment 17: Commenters expressed 

a range of views on the LAP exception. 

A commenter stated that the proposed 

rule approach for the LAP exception 

seemed to be broader than what was 

intended and requested that NMFS 

narrow the LAP exception by revising 

the definition of LAP such that it only 

covers limited access privilege programs 

(LAPPs) and interpreting it to authorize 

release of confidential information only 

to a person who has applied for 

privileges under a LAPP. One 

commenter stated that ‘‘determination’’ 

for purposes of the LAP exception 

should apply only to the initial phase of 

a LAP program and not to monitoring 

under LAP-managed fisheries. Another 

commenter supported the proposed rule 

approach stating that treatment of some 

LAP participant information as nonconfidential would enhance 

transparency and accountability. The 

commenter supported application of 

FOIA exemptions to information that is 

non-confidential under the LAP 

exception if necessary to protect 

personal privacy. Other commenters 

expressed qualified support for NMFS’ 

proposed approach to the LAP 

exception but requested that NMFS 

consider a broader approach that would 

allow for more information to be treated 

as not confidential under that exception. 

Response: The MSA LAP exception 

allows for the disclosure of information 

that a person is required to submit for 

a determination under a LAP. This final 

rule provides that the exception applies 

to LAPPs, 16 U.S.C. 1853a and 1802(26), 

and other fisheries that are managed 

through allocation of privileges to a 

person. The LAP exception uses the 

undefined term ‘‘limited access 

programs;’’ thus, in developing the 

proposed rule, NMFS considered what 

limited access management approaches 

may necessitate a specific 

confidentiality exception for disclosure 

of information. 89 FR 17358, 17362– 

17363 (March 11, 2024). After 

considering public comment, NMFS 

continues to believe the need is most 

evident for fisheries in which exclusive 

fishing privileges, such as a portion of 

a fishery’s total allowable catch, are 

allocated to persons based on their 

historical catch, or other applicable 

historical fishery participation. See Id. 

at 17363 (noting the same need in the 

proposed rule). As discussed in the 

proposed rule, in these fisheries—often 

referred to as catch share programs—the 

availability of information is necessary 

for administration of appeals of 

allocations and related determinations 

and generally promotes transparency in 

the basis for such determinations. See 

NOAA’s Catch Share Policy (available at 

http://www.nmfs.noaa.gov/sfa/ 

management/catch_shares/about/ 

documents/noaa_cs_policy.pdf) for 

information on catch shares. 

Accordingly, in this final rule, the LAP 

exception applies to information that 

underlies allocations of those privileges 

and subsequent NMFS determinations 

that apply to those allocated privileges. 

Having considered public comment, 

NMFS still sees no basis for interpreting 

‘‘determination’’ to apply only to 

determinations that are made in the 

initial phase of a LAP and not to any 

subsequent allocation determinations. 

In this final rule, the exception applies 

to any determination under a LAP 

involving allocation decisions at any 

time. § 600.420(c)(2) defines 

‘‘Determination’’ to include allocations 

generally and therefore covers both the 

initial and any subsequent annual 

allocation of privileges. Additionally, 

the final rule defines determination to 

include approval or denial of a lease or 

sale of either allocated privileges or 

annual allocations and end-of-season 

adjustments. 

The LAP exception is just that—an 

exception to the MSA confidentiality 

requirements. NMFS declines to adopt a 

broader interpretation of the LAP 

exception that would result in it 

operating as a rule, rather than 

exception, where confidentiality does 

not apply to most if not all information 

that a person is required to submit in 

LAP managed fisheries. This exception 

allows, but does not require, release of 

excepted information pursuant to the 

MSA. Other statutes, such as FOIA, may 

apply and protect certain agency records 

from public disclosure (See e.g., FOIA 

protections below). 

Comment 18: Some commenters 

expressed concern that NMFS would 

treat information that it accesses 

through an agreement with a State as 

non-confidential, notwithstanding a 

State law that protects and restricts 

access to that information. 

Response: NMFS has sufficient 

authority to protect vessel-specific 

information to avoid any conflict with 

State law requirements. While the LAP 

exception allows for release of 

information that is submitted for a 


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determination under a LAP, it does not 

require that NMFS proactively do so. 

Should NMFS receive a FOIA request 

for information that is not confidential 

under the LAP exception, NMFS could, 

as appropriate, protect that information 

from public disclosure under FOIA 

Exemption Four, which applies to 

confidential business information, or 

Exemption Six, which applies to 

information the release of which would 

constitute an unwarranted invasion of 

personal privacy. In determining the 

appropriateness of application of FOIA 

Exemption Four, NMFS will consider 

whether the requested information is 

protected under state law because that 

is relevant to whether a person 

submitted it with the expectation that it 

would be treated as confidential. 

Comment 19: Some commenters 

asked NMFS how this rule’s approach to 

the LAP exception compares to NMFS’ 

current practice. A commenter also 

asked how the approach would affect 

confidentiality of information in LAPPs. 

A commenter expressed concern that 

the LAP exception would apply to 

information that NMFS uses to consider 

whether to establish a LAP. They 

requested NMFS clarify when the 

exception would apply to such 

considerations and what information 

NMFS uses to determine whether to 

approve a lease or sale of allocated 

privileges, and when that information 

would be made public. 

Response: The LAP exception applies 

to LAPPs and other fisheries that are 

often referred to as catch share 

programs. See response to Comment 17. 

Since the LAP exception was enacted in 

2007, NMFS has applied the exception 

in the same manner codified in this 

final rule. In other words, NMFS, 

including its regional offices, has not 

applied the exception beyond 

information submitted or used for any 

initial or annual allocations, approval or 

denial of a lease or sale of allocated 

privileges, or end-of-season 

adjustments. Some regions have applied 

the LAP exception only in the context 

of allocation determinations. The final 

rule will establish a uniform approach 

and clarifies that information a person 

submits for a determination, as defined 

at § 600.420(c)(2), would be subject to 

the LAP exception. 

With regard to establishing a LAP, a 

Council could transmit an FMP 

amendment to NMFS recommending a 

new LAP. Even if NMFS has not yet 

determined whether to implement the 

FMP amendment through a final rule, 

NMFS may decide, as an example, that 

releasing historical landings or catch 

information to a potential LAP 

participant would be helpful in order to 

provide sufficient time for vessel 

owners to verify or correct information 

that will be used for initial allocations, 

89 FR at 17363, and this final rule 

clarifies that such information could be 

released. The LAP exception would not, 

however, be applicable for a Council’s 

consideration of whether to establish a 

LAP. In other words, NMFS would not 

release MSA confidential information 

pursuant to the LAP exception when a 

Council was considering whether to 

establish a LAP. Id. 

What information is used to 

determine whether to approve a lease or 

sale of allocated privileges, and thus 

whether and when such information 

would be made public, depends on the 

requirements established and 

implemented for a particular fishery. 

Disclosure Related to International 

Fisheries Agreements and the High Seas 

Driftnet Fishing Moratorium Protection 

Act 

Comment 20: Some commenters 

objected to the rule’s approach to what 

is not confidential for MSA purposes 

under section 608(b)(2) of the FMPA, as 

amended. 16 U.S.C. 1826i(b)(2). 

Specifically, these commenters said that 

the approach was too broad and should 

be removed or revised so that 

information collected from U.S. vessels 

is treated as confidential even if shared 

with an RFMO to satisfy a United States 

obligation. Another commenter asked 

that NMFS clarify whether the FMPA 

authorizes NMFS to rely on each 

RFMO’s confidentiality procedures to 

protect information or whether NMFS 

will engage each RFMO to ensure 

protection of business and personal 

information. 

Response: NMFS agrees that the 

proposed approach is too broad and has 

made changes to the rule language to 

reflect this concern. FMPA sections 

608(b)(2) and 606(d)(2)(B) do not define 

information provided to satisfy an 

RFMO obligation or foreign vessel 

information as ‘‘not confidential’’ for 

MSA purposes. Rather, these sections 

specify that ‘‘with respect to the 

[FMPA]’’ the MSA confidentiality 

requirements shall not apply for, or with 

respect to, obligations of the United 

States to share information under an 

RFMO of which the United States is a 

member or foreign vessel information. 

16 U.S.C. 1826i(b)(2) and 1826g(d)(2)(B). 

To clarify this point, this final rule 

deletes references to RFMO and foreign 

vessel information in the definition of 

confidential information (proposed 

§ 600.10) and consolidates and 

simplifies relevant FMPA text in 

§ 600.415(f). 

The FMPA permits disclosure of 

information, including information that 

is collected jointly under the MSA and 

a statute that implements an 

international fishery agreement, to ‘‘any 

other Federal or State government 

agency, the Food and Agriculture 

Organization of the United Nations, the 

secretariat or equivalent of an 

international fishery management 

organization or arrangement made 

pursuant to an international fishery 

agreement’’ if they have policies and 

procedures in place to protect the 

information. Id. 1826i(b)(1). Such 

information may be vessel-specific. The 

FMPA allows for release of confidential 

information to the same list of entities 

as well as foreign governments if, in 

addition to having policies and 

procedures in place, the information is 

released for purposes specified at 

section 1826g(d)(2)(A)(ii). The FMPA 

authority described above is reflected in 

revised § 600.415(f), which states that 

NMFS may disclose such information, 

as authorized under, and subject to the 

requirements and conditions of, section 

608(b) or 606(d)(2) of the High Seas 

Driftnet FMPA (16 U.S.C. 1826i(b) and 

1826g(d)(2)), to entities specified in 

those sections. For such disclosures, 

specified entities must have in place 

policies and procedures to protect 

confidential information from 

unintended or unauthorized disclosure. 

The United States engages within the 

RFMOs it is a member of to support the 

development and adoption of policies 

and procedures, including 

confidentiality procedures to protect 

information from unintended or 

unauthorized disclosure. Where the 

United States is not a member of an 

RFMO, NMFS would consider the 

RFMO’s policies and procedures on a 

case-by-case basis. 

FMPA sections 608(b)(2) and 

606(d)(2)(B), 16 U.S.C. 1826i(b)(2) and 

1826g(d)(2)(B), provide for two 

exceptions where MSA confidentiality 

requirements do not apply; in other 

words, the policies and procedures 

described above are not required for 

disclosures of: (i) information disclosed 

with respect to obligations of the United 

States to share information under a 

RFMO of which the United States is a 

Member or (ii) information collected by 

NMFS regarding foreign fishing vessels. 

NMFS may determine what, if any, 

conditions may be appropriate for these 

two categories of information and will 

consider whether any additional, related 

guidance on agency management of 

information is needed in updated ICPs. 

Comment 21: Commenters 

recommend that NMFS apply section 

608 of the FMPA only to RFMOs 


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identified in 16 U.S.C. 1826g (section 

606(d)(2)) rather than any RFMO. 

Response: NMFS does not agree with 

limiting the FMPA disclosure of 

information provisions to U.S. 

obligations related to specifically listed 

RFMOs because the statute clearly 

applies to other RFMOs which 

implement fishery agreements, even if 

not specifically enumerated. Section 

606 states that it applies to information 

collected under the joint authority of the 

MSA and the ATCA, WCPFC 

Implementation Act, ‘‘or other statutes 

implementing international fishery 

agreements.’’ The section authorizes 

disclosure of such information, subject 

to specific requirements and exceptions, 

to various entities, including the 

secretariat or equivalent of an 

international fishery management 

organization or arrangement made 

pursuant to an international fishery 

agreement. Id. § 1826g(d)(2)(A). Section 

608 uses similar language with regard to 

information and entities. Thus, NMFS 

has made no changes to this aspect of 

the final rule. 

Comment 22: A commenter expressed 

support for the proposed rule allowing 

state and federal agencies and certain 

international organizations to access 

confidential information if necessary 

and appropriate under the FMPA. 

Another commenter asked that NMFS 

clarify how access by RFMOs would be 

different under the proposed rule 

compared to current practices. The 

commenter stated that NMFS should 

treat information as non-confidential for 

purposes of sharing it with an RFMO 

only if that RFMO’s definition of what 

is confidential is the same as NMFS’. 

Response: NMFS acknowledges the 

support for disclosure of confidential 

information pursuant to the FMPA and 

that information sharing furthers efforts 

to develop science-based measures for 

conservation and management of 

domestic and international fisheries and 

to strengthen enforcement of those 

measures. The FMPA disclosure of 

information provisions were enacted 

under the 2015 Illegal, Unreported, and 

Unregulated Fishing Enforcement Act, 

and NMFS does not expect that the final 

rule will substantively change how 

NMFS applies them in practice. Under 

the MSA, information is confidential if 

required to be submitted in compliance 

with requirements of the Act. While an 

RFMO may have a policy that defines 

confidential information, it would not 

control what is confidential for MSA 

purposes. As stated in response to 

Comment 20, under the FMPA, NMFS 

may disclose information that is subject 

to the MSA confidentiality requirements 

to RFMOs if they have policies and 

procedures in place to protect the 

information. NMFS’ practice has been to 

make disclosures under this authority 

only to RFMOs that have policies and 

procedures to protect confidential 

information that are equivalent to 

NMFS’. NMFS will consider whether 

any additional, related guidance on 

agency management of this information 

is needed in updated ICPs. 

Comment 23: A commenter urged 

NMFS to provide transparency on global 

fisheries management through release of 

information that is collected under the 

Seafood Import Monitoring Program 

(SIMP). The commenter referenced the 

proposed rule’s implementation of the 

FMPA, which provides that information 

collected from foreign fishing vessels is 

not confidential. The commenter 

believes that there should be greater 

public access to information collected 

under the Marine Mammal Protection 

Act Import Provisions and other 

authorities administered by NMFS. 

Response: As explained in response to 

Comment 20, the final rule revises the 

definition of confidential information 

(§ 600.10) to delete reference to foreign 

fishing vessels and addresses the FMPA 

in § 600.415(f)). The MSA does not have 

an exception for public disclosure of 

confidential information collected 

under SIMP. Further, the Trade Secrets 

Act (18 U.S.C. 1905) prohibits the 

disclosure of information collected and 

maintained in Customs and Border 

Protection (CBP) systems, which may 

limit the ability for SIMP data to be 

shared publicly (data collected for SIMP 

is submitted electronically through the 

Automated Commercial Environment 

maintained by CBP). However, per the 

FMPA, NMFS could disclose 

information collected under the 

program regarding foreign vessels, as 

provided under § 600.415(f) and if 

consistent with other applicable law. 

Enforcement of Data Agreements and 

Prohibitions To Release Data 

Comment 24: Several commenters 

asked for clarity regarding the 

responsible party for enforcing the 

prohibition under MSA 308(a), 16 

U.S.C. 1858(a), non-disclosure 

agreements, or any mutual agreements 

to ensure confidentiality procedures are 

maintained by those entities. 

Response: Section 308(a) of the MSA 

concerns the assessment of a civil 

penalty if the Secretary determines that 

a person has committed an act 

prohibited by section 307 of the MSA. 

NMFS is generally responsible for 

enforcing the various prohibitions in the 

MSA and in regulations promulgated 

under the MSA including the 

prohibitions set forth in this rule. NMFS 

works closely and collaboratively with 

States, marine fishery management 

commissions, and other entities to 

ensure appropriate handling of MSA 

confidential information. Under 

§ 600.410(c)(1), NMFS may enter into an 

agreement with a state for the collection 

of confidential information by the state 

on behalf of the Secretary if NMFS 

determines that the state has authority 

comparable to the MSA for the 

protection of information and that the 

state will exercise such authority to 

protect confidential information. See 

response to Comment 3 for further 

explanation. In addition, NMFS may 

enter into an agreement with a marine 

fisheries commission per 

§ 600.410(c)(2). In such circumstances, 

NMFS may look to the states or 

commissions to carry out agreed upon 

duties to protect information using the 

comparable State or Commission 

authorities rather than MSA authorities. 

Data Collected Under Other Programs 

for Management Purposes and 

Applicability of MSA Confidentiality 

Measures 

Comment 25: One commenter asked 

for clarity regarding how data collected 

and transmitted to the NOAA Office Of 

Law Enforcement (OLE) would be 

treated, especially vessel position 

information (i.e., Vessel Monitoring 

Systems (VMS) data) or data collected 

for scientific monitoring purposes in the 

Gulf of Mexico commercial shrimp 

fishery. In addition, the commenter 

would like clarity that OLE data would 

enter the Federal Information Security 

System and thereby be under NMFS 

custody and control for protection as 

confidential information. 

Response: The NOAA OLE is an office 

under the NMFS. Every NMFS office, 

including OLE, maintains VMS and 

other forms of MSA confidential 

information in accordance with the 

NMFS’s Federal Information Security 

Management Act requirements. The 

NMFS office responsible for initially 

collecting MSA confidential information 

has no bearing on OLE’s authority to 

access and use any MSA confidential 

information collected by NMFS. VMS 

data, like other forms of confidential 

information, can be accessed by NMFS 

and others for fishery conservation and 

management purposes. In the case of the 

proposed data collected in the Gulf of 

Mexico shrimp fishery, the data has 

traditionally been submitted to NMFS, 

resides in NMFS’ custody and control, 

and is managed within a NMFS FISMA 

domain. In cases where MSA 

confidential information must be used 

to enforce the provisions of the MSA, 


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that MSA confidential information may 

become part of the public record. 

Access to and Disclosure of Confidential 

Information to a Council’s Management 

Entities 

Comment 26: Comments were mixed 

on the proposed procedure that allows 

Council executive directors to request 

access to confidential information for 

scientific and statistical committee 

(SSC) and/or advisory committee or 

panel (AP) members. Those opposed 

said that the MSA does not authorize 

SSC/AP members to have access to 

confidential information. Other 

commenters asserted that State law may 

not permit such access to information 

that a State provides to NMFS in 

accordance with an agreement with the 

State. Some commenters expressed 

concern that SSC/AP members may gain 

a competitive advantage if given such 

access. Other commenters were in 

support of this procedure and requested 

broadening this approach to allow 

access to any individuals or groups who 

provide support to NMFS with respect 

to fishery conservation and management 

under the MSA such as technical 

management teams, cooperative 

researchers and contract employees. 

Response: The MSA authorizes 

disclosure of confidential information to 

the Councils: ‘‘Nothing in this 

subsection [402(b)] shall be interpreted 

or construed to prevent the use for 

conservation and management purposes 

by the Secretary, or with the approval of 

the Secretary, the Council, of any 

information submitted in compliance 

with any requirement or regulation 

under this chapter . . .’’ 16 U.S.C. 

1881a(b)(3). The MSA requires 

establishment of SSCs, 16 U.S.C. 

1852(g)(1), and APs that are necessary or 

appropriate to assist a Council in 

carrying out its functions, notably, the 

preparation of fishery management 

plans and amendments, 16 U.S.C. 

1852(g)(2)–(h)(1). Given these mandates, 

the MSA authorizes disclosure of 

information to SSCs and APs if needed 

for conservation and management 

purposes and subject to the belowdescribed procedures. § 600.415(d)(5) 

also acknowledges the potential need 

for Council contractors to access 

confidential information. However, 

NMFS does not believe it is necessary 

to expand § 600.415(d) to include any 

individuals or entities who might 

provide some support to NMFS related 

to MSA conservation and management. 

As explained in the preamble to the 

proposed rule, a Council may request, 

through its executive director, that 

members of its SSCs and APs be given 

access to confidential information. 

Proposed § 600.415(d), however, 

provided that the executive director 

could make this request on their own 

initiative. This final rule revises that 

procedure to reflect the procedure stated 

in the preamble; i.e., that a Council may, 

through its executive director, request 

that members of its SSCs and APs be 

provided access to confidential 

information. This procedure can be 

applied consistent with a more 

restrictive State law. For example, a 

Council could include in its standard 

operating procedures a requirement to 

consider whether access by Council SSC 

or AP members may be in potential 

conflict with a State law. A Council 

member for a State with such a concern 

could raise it for consideration by the 

Council. 

Before approving any such request, 

NMFS must determine that access will 

not result in any Council member 

having a personal or competitive 

advantage (§ 600.415(d)(3)–(4)). Further, 

NMFS will consider whether providing 

confidential information is inconsistent 

with State law. NMFS recognizes that 

State law applicable to information that 

NMFS accesses under an information 

sharing agreement with a State may not 

always align with what is authorized 

under the MSA and other applicable 

Federal law. NMFS coordinates with its 

State partners to address such issues as 

they arise but has not experienced an 

unresolvable conflict between State and 

Federal mandates to date. 

Definition of Business of Any Person 

Comment 27: Comments were mixed 

on the proposed definition of ‘‘business 

of any person.’’ Some commenters 

supported the proposed definition 

because business information and 

identifying information need protection. 

These commenters stated that the 

definition would apply to information 

that reasonably constitutes proprietary 

information and would cause 

competitive harm if disclosed. Other 

commenters opposed this definition, 

stating that it is contrary to the MSA 

and the agency’s long-standing 

interpretation of ‘‘identity or business of 

any person’’ as referring to the identity 

of a person or a business. These 

commenters further stated that the 

definition is too broad and overly 

protective and would violate MSA 

National Standard 2 (NS 2) and the 

Open Government Policy by limiting 

public access to information for use in 

cooperative research and other activities 

related to fisheries management. 

Response: MSA section 402(b)(3) 

expressly states that aggregated or 

summarized information may be 

released only if it does not directly or 

indirectly disclose the ‘‘identity or 

business of any person’’ (emphasis 

added). This rule amends existing 

regulations to better align with the 

statutory text. Since the statute 

distinguishes between the identity or 

business of any person, the regulations 

must go beyond a reference to identity. 

In practice, NMFS aggregates 

information to protect a person’s 

identity as well as the person’s business 

information. In other words, NMFS does 

not simply strip identifiers off 

information that it releases. Many 

fishermen have business interests in 

protecting information related to their 

fishing practices, including the time, 

location and gear used. Disclosure of 

this information at a vessel-specific 

level, even if stripped of identifiers, 

could raise concerns about competitive 

disadvantages. In NMFS’s experience, 

the types of operational and financial 

information listed in the ‘‘business of 

any person’’ definition are precisely the 

types of information that, if disclosed at 

the vessel-specific level, could result in 

competitive harm. The definition is 

clear and relatively easy to apply, 

reflects a common understanding of 

what constitutes the ‘‘business’’ of a 

person in the MSA regulatory context, 

and is consistent with the agency’s longstanding practice. 

NMFS supports transparency, public 

participation, and collaboration through 

the MSA’s regional, process-intensive 

approach to fishery management. For 

information on the U.S. Open 

Government initiative, go to https://

www.gsa.gov/governmentwideinitiatives/us-open-government. NMFS 

agrees that access to fisheries 

information facilitates transparency, 

public participation, and collaboration 

and that these goals should be taken 

into account in its handling of 

confidential information. To that end, 

NMFS intends to develop ICPs to 

provide guidance on the minimum level 

of aggregation disclosure advisable to 

protect the identity and the business of 

any person, consistent with MSA 

confidentiality requirements. NMFS 

also intends that the ICPs will provide 

guidance on when information should 

be considered to indirectly disclose a 

person’s identity or business. NMFS 

disagrees that the definition of 

‘‘business of any person’’ is inconsistent 

with National Standard 2, which 

requires the use of best scientific 

information available but does not 

address confidentiality of information. 

Comment 28: Some commenters said 

that NMFS should revise the proposed 

definition of ‘‘business of any person’’ 

to further detail what constitutes 

financial and operational information, 


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and one commenter recommended 

revising the definition to include 

information reported by processors such 

as amount processed or processing 

capacity. 

Response: NMFS disagrees that 

revisions are necessary to detail or 

further clarify what constitutes the 

business of any person. MSA 402(b) 

broadly requires the confidentiality of 

any information that a person is 

required to submit in compliance with 

the Act and any observer information. 

The definition covers common types of 

financial or operational information 

such as ownership information or 

fishing locations and is not intended to 

be exhaustive. The definition, which is 

finalized as proposed, includes 

estimated and actual processing 

capacity of U.S. fish processors, so it is 

not necessary to add ‘‘amount 

processed.’’ 

Comment 29: A commenter stated that 

NMFS should exclude landings, 

revenue, and effort on annual or fishing 

year basis from the proposed rule 

definition for confidential information 

in cases where data is available from 

fewer than three vessels or entities. In 

the commenter’s view, public interest in 

this information outweighs the interest 

of the participants in the fishery who 

are benefiting from a public resource. 

Response: Under MSA section 

402(b)(3), NMFS may publicly release 

confidential information only in an 

aggregate or summary form that does not 

directly or indirectly disclose the 

identity or business of any person. 

Aggregated information from at least 

three submissions or entities is often 

necessary to achieve that standard. If 

data from only two entities is 

aggregated, one entity could identify 

itself and/or its own data, thus 

disclosing the other entity’s business 

and/or identity. For that reason, NMFS 

is not revising the definition of 

‘‘confidential information’’ to refer to 

fewer than three vessels or entities. 

NMFS will explore the potential for 

disclosing information in a summary 

form on an ad hoc basis. 

Comment 30: Many commenters 

requested that NMFS clarify through 

ICPs how confidential information can 

be aggregated or summarized into a form 

that would not directly or indirectly 

disclose the identity or business of any 

person. A commenter felt that the 

proposed rule missed an opportunity to 

address the level at which confidential 

information must be aggregated for it to 

be releasable to the public. 

Response: NMFS determined that it 

was necessary to revise the definition of 

‘‘aggregate or summary form’’ and to 

define ‘‘business of any person’’ before 

it developed an ICP that provides 

guidelines for aggregation and 

summarization of confidential 

information. As stated above, 

development of ICPs based on 

definitions that could change would not 

be efficient. With the revised definitions 

finalized through this rule, NMFS can 

proceed to develop guidance on the 

minimum level of aggregation or 

summarization advisable to protect the 

identity and the business of any person. 

In doing so, NMFS intends to advance 

and balance three objectives: 

transparency through release of the 

broadest amount of information at the 

finest level detail; protection of the 

identity and the business of any person; 

and responsiveness to individual 

information requests. 

Comment 31: A commenter requested 

that NMFS clarify whether the proposed 

rule would change existing practices on 

the requests for confidential information 

that is held by different entities (e.g., a 

State fishery management commission, 

a State fishery management agency, and 

NMFS). 

Response: The final rule clarifies 

NMFS’ practices but does not change 

them or the practices that a state fishery 

management commission or a state may 

have for responding to requests for 

confidential information. Access, 

maintenance, and release requirements 

under the rule apply only to information 

that is under NMFS’ custody and 

control (§ 600.405). NMFS treats 

information as subject to its custody and 

control when it physically obtains the 

information, which, for electronically 

submitted information, is when the 

information enters a NMFS FISMA 

domain (See Background section for 

FISMA explanation). 

In addition to subpart E regulations, 

requests for confidential information 

subject to NMFS’ custody and control 

would be addressed by FOIA request 

procedures under NOAA 

Administrative Order 205–14 and any 

applicable ICPs. Requests for 

information under the custody and 

control of a State fishery management 

commission or a state would be subject 

to their requirements and procedures. 

NMFS will continue to work with these 

entities in a non-regulatory fashion to 

reach mutual agreement on how to 

maintain the confidentiality of 

information submitted to them pursuant 

to an MSA requirement. 

Applicability and Authority of MSA and 

Marine Mammal Protection Act (MMPA) 

Comment 32: Several commenters 

supported the approach in the proposed 

rule with respect to marine mammals 

while others expressed concern. In 

particular, some commenters supported 

the proposed rule’s treatment of details 

that concern interactions with marine 

mammals as non-confidential for MSA 

purposes. Other commenters stated that 

the proposed rule is inconsistent with 

the protection of identity and business 

of any person under the MSA and the 

MMPA and other regulations protecting 

confidential information. Many 

commenters expressed concern that 

disclosure of details of interactions with 

marine mammals would indirectly 

disclose the identity of the vessel 

involved in the interaction and urged 

NMFS to take steps to prevent such 

disclosures. Some commenters 

recommended that NMFS release 

general area descriptions or latitude/ 

longitude block areas instead of specific 

interaction locations. 

Response: For the reasons stated in 

the proposed rule, this final rule 

continues to exclude observer 

information on interactions with marine 

mammals from the definition of 

confidential information (§ 600.10). This 

information can be publicly disclosed 

provided that information regarding 

fishing practices and gear would not 

constitute a trade secret under the FOIA, 

5 U.S.C. 552(b)(4). NMFS included the 

trade secret text in proposed and final 

§ 600.10, recognizing concerns that 

disclosing details of marine mammal 

interactions (take) may indirectly 

disclose the identity of vessels involved 

in interactions. 

Fishery management plans and 

regulations under the MSA must be 

consistent with applicable law, which 

includes the MMPA. See 16 U.S.C. 

1853(a)(1)(C) and 1854(a)(1), (3), (b)(1), 

and (c)(7). Release of observer 

information that concerns interactions 

with marine mammals advances 

implementation of MMPA mandates, 

and, in particular, such information is 

critical for deliberations of MMPA Take 

Reduction Teams (TRTs). See 89 FR at 

17367–17368 (providing further 

explanation of MMPA mandates in 

proposed rule preamble). 

This final rule reflects NMFS’s longstanding approach as the agency has 

been presenting detailed information on 

commercial fisheries’ interactions with 

marine mammals to TRTs since the 

program was mandated in 1994 by the 

MMPA. To prevent disclosures of the 

identity of a vessel involved in 

interactions, NMFS evaluates whether a 

release of detailed interaction 

information would, if combined with 

past disclosures, identify the vessel 

involved in the interaction. 

Additionally, if appropriate for 

purposes of the TRTs’ goals and 

objectives, we routinely strive to present 


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data in aggregated form, particularly 

when illustrating latitude/longitude 

positions of individual takes. For 

example, TRTs, which include fishing 

industry representatives, may be 

particularly interested in viewing take 

locations by season to discern whether 

patterns in bycatch exist. In that case, 

NMFS would aggregate all available 

years of data to evaluate seasonal 

patterns. Further, the specific location 

of an interaction may in some cases be 

essential to develop meaningful 

mitigation measures and comply with 

the MMPA goals of reducing mortality 

and serious injury incidental to 

commercial fishing. For example, a 

particular marine mammal interaction 

may have occurred in association with 

a specific oceanographic feature (e.g., a 

seamount, the continental shelf break) 

that would only be recognizable when 

evaluating individual latitude/longitude 

positions and not as a block area. In 

these circumstances, the TRTs cannot 

work effectively without disclosing the 

detailed, vessel-specific information 

upon which their analysis and 

determinations rely. In recent years, 

NMFS has disclosed this information 

through TRTs without receiving 

concerns that such disclosure harms 

MSA confidentiality interests. By 

knowing this information, TRTs can 

design more precise, targeted 

recommendations for mitigation 

measures, instead of broad, overly 

restrictive recommendations, which can 

lead to and has led to reduced 

regulatory burden on a fishery. 

Comment 33: Several commenters 

recommended that photos and videos of 

marine mammals should be excluded 

from the definition of confidential 

information given they cannot readily 

be aggregated. The commenters also 

asserted that other information such as 

the nature and severity of interactions, 

samples collected, handling and release 

details, etc. should be excluded from the 

definition. 

Response: While photos and videos 

may be useful, they are not among the 

specific information that TRTs need to 

develop measures to reduce take 

occurring in a fishery. However, NMFS 

has and will continue to release marine 

mammal injury or mortality events 

captured by cameras if the image does 

not disclose the identity or any unique 

gear configurations that may constitute 

a trade secret as defined for purposes of 

FOIA Exemption Four. See NMFS’ 

Policy on Electronic Technologies and 

Fishery-Dependent Data Collection 

available at https://

media.fisheries.noaa.gov/2022-05/04- 

115-04_0.pdf. In making such public 

disclosures, NMFS will evaluate the 

image that captures the marine mammal 

interaction and if feasible and 

practicable take steps to obscure 

identifying information prior to 

releasing it publicly. In contrast to 

photos, video collected through EM 

systems cannot be aggregated or 

summarized. NMFS will provide access 

to that information, and release it 

publicly, only as authorized under 

§§ 600.415 and 600.420. 

Details of interactions (e.g., nature 

and severity of interactions, samples 

collected, handling and release details, 

etc.) may also be useful, but they are not 

among the specific information that 

TRTs need to develop measures to 

reduce take occurring in a fishery. Thus, 

NMFS is not excluding this information 

as well as photos and videos from the 

definition of confidential information. 

Comment 34: Some commenters 

stated that NMFS could allow TRTs to 

receive information without releasing it 

publicly by restricting release of 

detailed information on interactions 

with marine mammals to members of 

TRTs through confidentiality 

agreements. 

Response: NMFS considered requiring 

members of TRTs to sign non-disclosure 

agreements but determined this 

approach is not appropriate because 

observer information on marine 

mammal interactions described in 

§ 600.10 is not confidential information 

and may be disclosed. Additionally, as 

noted in the proposed rule, TRTs 

established under the MMPA must meet 

in public and develop plans to reduce 

incidental mortality and serious injury; 

specific details of interactions with 

marine mammals are critical to 

developing such plans. See 16 U.S.C. 

1387(f)(6) (establishing and setting forth 

requirements for TRTs). 

Comment 35: One commenter 

recommended that NMFS clarify the 

relationship between the MSA and 

MMPA, the authorities governing 

deployment of observers and the 

collection of information under each 

statute, and whether the confidentiality 

rules differ depending on the type of 

information and purpose for which they 

will be used. 

Response: Section 600.10 of the 

proposed rule and final rules exclude 

details of observer information on 

interactions with marine mammals from 

the definition of ‘‘confidential 

information’’ for the purposes of the 

MSA. NMFS may require observers and 

observer coverage and other data 

reporting and collection under multiple 

statutory authorities depending on the 

conservation and management needs of 

and objectives of the program and the 

nature of, gear used, area fished during, 

or other circumstances for a particular 

trip. Regardless of whether an observer 

is deployed in a fishery under both 

MMPA and MSA authorities or solely 

MSA authority, observer information 

related to interactions with marine 

mammals will not be considered 

confidential information for MSA 

purposes. 

Comment 36: Some commenters 

viewed NMFS’ approach to excluding 

marine mammal interactions as too 

narrow and requested broadening it to 

include all protected species and 

bycatch data under the MMPA, 

Endangered Species Act (ESA), and 

Migratory Bird Treaty Act (MBTA), 

including non-protected species 

bycatch. One commenter asserted that 

the approach should be broadened to 

include vessel interactions with ESAlisted species, noting that specific 

conditions imposed on a fishery by ESA 

section 7 biological opinions and 

incidental take statements require 

detailed reporting and analyses of takes 

to assess impacts of proposed actions on 

ESA-listed species. The commenter 

asserted that this information should be 

reported publicly so that it can be used 

by stakeholders to review and examine, 

and sometimes challenge, agency 

decisions under the ESA, given the ESA 

explicitly provides for citizen suits in 

this regard. 

Response: The MSA does not allow, 

nor do other Federal statutes require, 

disclosure of details on interactions 

with ESA-listed species, seabirds, 

bycatch of nonprotected species, or 

species protected under state statutes. 

See 89 FR at 17367–17368 (providing 

further explanation of ESA in proposed 

rule preamble). Observer information 

regarding interactions with ESA-listed 

species or other protected species would 

continue to be releasable in aggregate or 

summary form consistent with MSA 

section 402(b)(3) and these regulations. 

Proposed Changes Clarifying NMFS’ 

Confidentiality Regulations 

Comment 37: Some commenters said 

NMFS should clarify whether 

regulations are necessary to implement 

MSA 402(b)(1)(I), 16 U.S.C. 

1881a(b)(1)(I), which allows other 

federal agencies to access information 

for enforcement of forced labor 

prohibitions. 

Response: For ease of reference, 

§ 600.415 of the final rule includes the 

statutory text of MSA 402(b)(1)(I). 

NMFS does not believe regulations are 

needed to interpret that text. NMFS will 

prescribe additional procedures to 

implement this exception by regulation 

as may be necessary to preserve the 

confidentiality of information. 


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Entities Potentially Affected by the Rule 

Comment 38: A commenter stated that 

any vessel with a Federal fishing permit 

should be included in a description of 

potential entities affected by the rule 

because any of those vessels might be 

subject to observer coverage and thus 

potentially affected if there are changes 

to how observer data are treated 

(confidential or not). 

Response: This rule applies to 

information that is maintained by NMFS 

and subject to its custody and control 

and does not impose regulatory burdens 

on vessels. The rule does not change the 

extent of required observer coverage, 

and therefore there is no need to analyze 

impacts on vessels that might be 

potentially be subject to observer 

coverage. The rule broadly addresses 

NMFS’ responsibility under MSA 

section 402(b) to maintain as 

confidential any information that a 

person is required to submit in 

compliance with any regulation or 

requirement under the MSA and any 

observer information. 89 FR at 17359. If 

a vessel were to be subject to MSA 

observer coverage requirements, the 

observer information would be handled 

as confidential consistent with the Act 

and this rule. 

Changes From the Proposed Rule 

In response to public comment, and 

after further agency consideration, 

NMFS has made minor edits for clarity 

and several substantive changes 

between the proposed and final rules. 

These changes are summarized and 

explained here. 

The proposed rule (§ 600.10) defined 

confidential information to not include 

(1) vessel-specific information provided 

in satisfaction of obligations of the 

United States to share information 

under a RFMO of which the United 

States is a member and (2) any 

information collected by NMFS under 

the MSA regarding foreign vessels. This 

final rule deletes references to these two 

categories from § 600.10 and addresses 

the FMPA in § 600.415(f). 

Final § 600.405 continues to state that 

the regulations apply to confidential 

information as defined in § 600.10. To 

clarify this section, NMFS revised it to 

provide that ‘‘[a]gency access, 

maintenance, and release 

responsibilities [under this subpart] 

apply only to confidential information 

under NMFS’ custody and control.’’ 

In the proposed rule, NMFS also 

defined ‘‘electronic monitoring service 

provider’’ as any person who manages 

observer information collected by an 

electronic monitoring system required 

under an MSA regulation. The proposed 

rule left out ‘‘or as part of a cooperative 

research initiative,’’ a phrase that is in 

the MSA definition of observer 

information, 16 U.S.C. 1802(32). This 

final rule adds that statutory text to the 

regulatory definition. 

NMFS proposed a procedure under 

which a Council may, through its 

executive director, request that members 

of its SSC and AP that are not Federal 

or State employees be granted access to 

confidential information. Although 

accurately described in the preamble, 

the proposed regulation incorrectly 

provided that the Council executive 

director, rather than the Council itself, 

may initiate it. This final rule corrects 

this error. Additionally, NMFS makes a 

technical revision to this procedure so 

that it applies to Members of the 

Council’s advisory panels (plural), 

rather than a panel. 

To implement the FMPA, the 

proposed rule excluded two categories 

of information from the definition of 

confidential information (see § 600.10 

explanation above) and addressed 

access to information in proposed 

§§ 600.415(f)–(g). The final rule deletes 

FMPA-related references in § 600.10, 

deletes § 600.415(g), and addresses the 

FMPA in revised § 600.415(f). The 

revised text states, for the purposes of 

sections 608(b) and 606(d)(2) of the 

FMPA (16 U.S.C. 1826i(b) and 

1826g(d)(2)), international fishery 

agreement has the same meaning as 

international fishery management 

agreement at 50 CFR 300.201. In 

addition, NMFS may disclose 

information, as authorized under, and 

subject to the requirements and 

conditions of, section 608(b) or 

606(d)(2) of the FMPA to entities 

specified in those sections. For purposes 

of applying section 608(b) and 606(d)(2), 

the confidentiality requirements of 

section 402(b) of the Magnuson-Stevens 

Act, 16 U.S.C. 1881a(b), shall not apply 

with respect to (1) obligations of the 

United States to share information 

under a Regional Fishery Management 

Organization (RFMO) of which the 

United States is a Member; or (2) 

information collected by NMFS 

regarding foreign fishing vessels. The 

same cross-reference to 50 CFR 300.201 

(international fishery management 

agreement), noted above, was in the 

proposed rule. 

The final rule includes a 

confidentiality of information exception 

from MSA 402(b)(1)(I), 16 U.S.C. 

1881a(b)(1)(I), related to illegal 

unreported, or unregulated fishing and 

forced labor. See final rule element # 7 

in the Background section, above. 

NMFS did not include the statutory text 

in the proposed rule, but for ease of 

reference added it to the final rule 

regulatory text. 

Classification 

NMFS is issuing this final rule 

pursuant to section 305(d) of the MSA. 

The NMFS Assistant Administrator has 

determined that this final rule is 

consistent with the MSA and other 

applicable laws, including the FMPA. 

This final rule has been determined to 

be not significant for purposes of 

Executive Order 12866. There are no 

relevant Federal rules that may 

duplicate, overlap, or conflict with this 

action. This final rule contains no 

information collection requirements 

under the Paperwork Reduction Act of 

1995. 

Certification Under the Regulatory 

Flexibility Act Analysis 

The Chief Counsel for Regulation, 

Department of Commerce, certified to 

the Chief Counsel for Advocacy of the 

Small Business Administration during 

the proposed rule stage that this action 

will not have a significant economic 

impact on a substantial number of small 

entities. The factual basis for this 

certification was published in the 

proposed rule and is not repeated here. 

NMFS received one comment regarding 

this certification. The commenter stated 

that any vessel with a Federal fishing 

permit should be included in a 

description of potential entities affected 

by the rule because any of those vessels 

might be subject to observer coverage 

and thus potentially affected if there are 

changes to how observer data are treated 

(confidential or not). This rule applies 

to information that is maintained by 

NMFS and subject to its custody and 

control and does not impose regulatory 

burdens on vessels. The rule does not 

change the extent of required observer 

coverage, and therefore there is no need 

to analyze impacts on vessels that might 

potentially be subject to observer 

coverage. The rule broadly addresses 

NMFS’ responsibility under MSA 

section 402(b) to maintain as 

confidential any information that a 

person is required to submit in 

compliance with any regulation or 

requirement under the MSA and any 

observer information. If a vessel were to 

be subject to MSA observer coverage 

requirements, the observer information 

would be handled as confidential 

consistent with the Act and this rule. 

This final rule is not expected to have 

a significant economic impact on a 

substantial number of small entities. As 

a result, a final regulatory flexibility 

analysis was not required, and none was 

prepared. 


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Federal Register / Vol. 89, No. 242 / Tuesday, December 17, 2024 / Rules and Regulations 102013 

Lists of Subjects in 50 CFR Part 600 

Confidential business information, 

Fisheries. 

Dated: December 9, 2024. 

Samuel D. Rauch, III, 

Deputy Assistant Administrator for 

Regulatory Programs, National Marine 

Fisheries Service. 

For the reasons set out in the 

preamble, NMFS amends 50 CFR part 

600 as follows: 

■ 1. The authority citation for part 600 

continues to read as follows: 

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

et seq. 

■ 2. Amend § 600.10 by: 

■ a. Revising the definition of 

‘‘Aggregate or summary form’’; 

■ b. Adding, in alphabetical order, 

definitions for ‘‘Business of any 

person’’, ‘‘Confidential information’’, 

■ c. Removing the definitions of 

‘‘Confidential statistics’’ and ‘‘Data, 

statistics, and information’’; and 

■ d. Adding, in alphabetical order, 

definitions for ‘‘Electronic monitoring 

service provider’’, ‘‘Information sharing 

obligation of a Regional Fishery 

Management Organization (RFMO)’’, 

‘‘Observer provider’’, and ‘‘Regional 

Fishery Management Organization’’. 

The revisions and additions read as 

follows: 

§ 600.10 Definitions. 

* * * * * 

Aggregate or summary form means 

information structured in such a way 

that the identity or business of any 

person (defined at 16 U.S.C. 1802(36)) 

who submitted the information cannot 

be directly or indirectly determined 

either from the present release of the 

information or in combination with 

other releases. 

* * * * * 

Business of any person means: 

(1) Financial information such as 

ownership information, cash flow 

documents, income statements, or 

information that contributes to the 

preparation of balance sheets; or 

(2) Operational information such as 

fishing locations, time of fishing, 

specific gear configuration, catch by 

species in numbers or weight thereof, 

number of hauls, number of employees 

and estimated processing capacity of 

and the actual processing capacity 

utilized by U.S. fish processors. 

* * * * * 

Confidential information includes any 

observer information as defined under 

16 U.S.C. 1802(32) or any information 

submitted to the Secretary, a State 

fishery management agency, or a marine 

fisheries commission by any person in 

compliance with any requirement or 

regulation under the Magnuson-Stevens 

Act. Confidential information does not 

include observer information related to 

interactions with species protected 

under the Marine Mammal Protection 

Act: the date, time, and location of 

interactions, the type of species, and the 

fishing practices and gear involved 

provided that information regarding 

fishing practices and gear would not 

constitute a trade secret under the 

Freedom of Information Act, 5 U.S.C. 

552(b)(4). 

* * * * * 

Electronic monitoring service provider 

means any person who manages 

observer information collected by an 

electronic monitoring system required 

under an MSA regulation or as part of 

a cooperative research initiative. 

* * * * * 

Information sharing obligation of a 

Regional Fishery Management 

Organization (RFMO) means a measure 

or part thereof that creates a binding 

requirement on the United States to 

report certain information by virtue of 

its membership in the respective RFMO. 

* * * * * 

Observer provider means any person 

that collects observer information by 

placement of observers on or in fishing 

vessels, shoreside processors, or 

stationary floating processors under a 

requirement of the MSA or as part of a 

cooperative research initiative. 

* * * * * 

Regional Fishery Management 

Organization (RFMO) means an 

intergovernmental fisheries organization 

or arrangement, as appropriate, that has 

the competence to establish 

conservation and management 

measures. 

* * * * * 

§ 600.130 [Amended] 

■ 3. In § 600.130, remove the word 

‘‘statistics’’, wherever it appears, and 

add in its place the word ‘‘information’’. 

■ 4. Subpart E to part 600 is revised to 

read as follows: 

Subpart E—Confidentiality of Information 

Sec. 

600.405 Applicability. 

600.410 Protection of confidential 

Information. 

600.415 Access to confidential information 

600.420 Release of confidential 

information. 

600.425 Release of information in aggregate 

or summary form. 

Subpart E Confidentiality of 

Information 

§ 600.405 Applicability. 

This subpart applies to confidential 

information as defined at § 600.10. 

Agency access, maintenance, and 

release responsibilities apply only to 

confidential information that is under 

NMFS’ custody and control. 

§ 600.410 Protection of confidential 

information. 

(a) General. This section requires 

control procedures related to 

confidential information and provides 

procedures for the protection of certain 

confidential information submitted to 

NMFS and State fishery management 

agencies or marine fisheries 

commissions pursuant to a statutory or 

regulatory requirement imposed 

pursuant to the Magnuson-Stevens 

Fishery Conservation and Management 

Act (Magnuson-Stevens Act). 

(b) Confidential information collected 

by NMFS. NMFS must establish internal 

control procedures for the maintenance 

of and access to any confidential 

information. The control procedures 

should include, but are not limited to, 

the following: 

(1) Requirements for information 

system management and data storage to 

prevent unauthorized access to or 

disclosure of confidential information; 

(2) Procedures for NMFS employees 

to access confidential information; 

(3) Procedures for providing access to 

confidential information by states, 

Councils, and Marine Fisheries 

Commissions; 

(4) Procedures for evaluating whether 

members of a Council, or a Council 

Scientific and Statistical Committee 

(SSC), plan team, or Advisory Panel 

(AP) could gain personal or competitive 

advantage from access to confidential 

information under § 600.415(d); 

(5) Procedures for evaluating requests 

by contractors, grantees, cooperative 

agreement recipients and other external 

individuals and organizations to access 

confidential information; 

(6) Procedures for vessel owners to 

access and request confidential 

information, including historic 

information associated with a fishing 

permit; 

7) Standardized sharing agreements 

that acknowledge the confidentiality 

and protection of information from 

public disclosure; 

(8) Template for written authorization 

for release of confidential information 

for purposes of § 600.420(f); 

(9) Procedures for aggregating and 

summarizing confidential data and 

responding to requests for nonconfidential information; 


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102014 Federal Register / Vol. 89, No. 242 / Tuesday, December 17, 2024 / Rules and Regulations 

(10) Any other procedures as 

necessary to maintain the 

confidentiality of information. 

(c) Confidential information collected 

by State Fishery Management Agencies 

or Marine Fisheries Commissions. 

NMFS may enter into an agreement with 

a state or a Marine Fisheries 

Commission for the collection of 

confidential information on behalf of 

the Secretary provided that NMFS, as 

part of the agreement, determines that: 

(1) The state has confidentiality of 

information authority comparable to the 

Magnuson-Stevens Act and that the 

state will exercise this authority to 

prohibit public disclosure of 

confidential information; 

(2) The marine fisheries commission 

has established policies and procedures 

comparable to the Magnuson-Stevens 

Act and that the Commission will 

exercise such policies and procedures to 

prohibit public disclosure of 

confidential information. 

(d) Observer and Electronic 

Monitoring Services. (1) Observer 

providers. NMFS may allow the 

collection of observer information by an 

observer pursuant to a confidentiality 

agreement that: 

(i) Specifies procedures that the 

observer provider will apply to protect 

confidential information from public 

disclosure; and 

(ii) Requires that the observer 

provider, each observer, and each of its 

other employees that will handle 

confidential information acknowledge 

the requirement to maintain the 

confidentiality of observer information 

and the civil penalties for unauthorized 

use or disclosure of such information 

provided under 16 U.S.C. 1858. 

(2) Electronic monitoring service 

providers. NMFS may allow the 

handling of observer information by an 

electronic service provider pursuant to 

a confidentiality agreement that: 

(i) Specifies procedures that the 

electronic monitoring service provider 

will apply to protect confidential 

information from public disclosure; and 

(ii) Requires that the electronic 

monitoring service provider, and each of 

its employees who will handle 

confidential information, acknowledge 

the requirement to maintain the 

confidentiality of observer information 

and the civil penalties for unauthorized 

use or disclosure of such information 

provided under 16 U.S.C. 1858. 

(3) As part of any agreement with an 

observer provider under paragraph 

(d)(1) of this section, NMFS may allow 

the sharing of observer information 

among and between observers and 

observer providers for: 

(i) Training or preparation of 

observers for deployments on specific 

vessels; or 

(ii) Validating the accuracy of the 

observer information collected. 

§ 600.415 Access to confidential 

information. 

Confidential information may be 

accessed by the following persons 

subject to any specified conditions and 

procedures: 

(a) Federal employees. (1) Responsible 

for fishery management plan (FMP) 

development, monitoring, or 

enforcement, including persons that 

need access to confidential information 

to perform functions authorized under a 

Federal contract, cooperative agreement, 

or grant awarded by NOAA/NMFS; 

(2) At the request of another Federal 

agency, if providing the information 

supports homeland security and 

national security activities, including 

the Coast Guard’s homeland security 

missions as defined in section 888(a)(2) 

of the Homeland Security Act of 2002 (6 

U.S.C. 468(a)(2)); or, 

(3) To the extent necessary and 

appropriate to administer Federal 

programs established to combat illegal, 

unreported, or unregulated fishing or 

forced labor (as such terms are defined 

in section 11329 of the Don Young Coast 

Guard Authorization Act of 2022 [16 

U.S.C. 1885a note]), which shall not 

include an authorization for such 

agencies to release data to the public 

unless such release is related to 

enforcement. 

(b) State or marine fisheries 

commission employees. As necessary to 

further the mission of the Department of 

Commerce, subject to an agreement with 

NMFS that prohibits public disclosure 

of confidential information; 

(c) State enforcement personnel. State 

employees who are responsible for 

enforcing FMPs, provided that the state 

for which the employee works has 

entered into a Joint Enforcement 

Agreement with NOAA and the 

agreement is in effect; 

(d) Councils. A Council may, through 

its Executive Director, request access for 

the following: 

(1) The Council’s employees who are 

responsible for FMP development and 

monitoring; 

(2) Members of the Council for use by 

the Council for conservation and 

management, but only if NMFS 

determines that access will not result in 

any Member having a personal or 

competitive advantage; 

(3) Members of any Council scientific 

and statistical committee (SSC) 

established under section 302(g) of the 

Magnuson-Stevens Act who are not 

Federal or State employees, if necessary 

for the SSC to assist and advise the 

Council as provided under the 

Magnuson-Stevens Act, but only if 

NMFS determines that access will not 

result in any Member having a personal 

or competitive advantage; 

(4) Members of any Council advisory 

panel (AP) established under section 

302(g) of the Magnuson-Stevens Act, if 

necessary for the AP to provide 

information and recommendations on, 

and assist in the development of FMPs 

and amendments thereto, but only if 

NMFS determines that access will not 

result in any Member having a personal 

or competitive advantage; 

(5) A contractor of the Council for use 

in such analysis or studies necessary for 

conservation and management purposes 

but only if approved by NMFS and 

subject to a confidentiality agreement; 

and 

(e) Vessel Monitoring System 

Information. Nothing in these 

regulations contravenes section 311(i) of 

the Magnuson-Stevens Act which 

requires the Secretary to make vessel 

monitoring system information directly 

available to the following: 

(1) Enforcement employees of a State 

with which NMFS has entered into a 

Joint Enforcement Agreement and the 

agreement is in effect; 

(2) State management agencies 

involved in, or affected by, management 

of a fishery if the State has entered into 

an agreement with NMFS that prohibits 

public disclosure of the information. 

(f) High Seas Driftnet Fishing 

Moratorium Protection Act (FMPA). (1) 

For purposes of sections 608(b) and 

606(d)(2) of the FMPA (16 U.S.C. 

1826i(b) and 1826g(d)(2)), international 

fishery agreement has the same meaning 

as international fishery management 

agreement at 50 CFR 300.201. 

(2) NMFS may disclose information, 

as authorized under, and subject to the 

requirements and conditions of, section 

608(b) or 606(d)(2) of the FMPA to 

entities specified in those sections. 

(3) For purposes of applying section 

608(b) and 606(d)(2), the confidentiality 

requirements of section 402(b) of the 

Magnuson-Stevens Act, 16 U.S.C. 

1881a(b), shall not apply with respect 

to: 

(i) Obligations of the United States to 

share information under a Regional 

Fishery Management Organization 

(RFMO) of which the United States is a 

Member; or 

(ii) Information collected by NMFS 

regarding foreign fishing vessels. 


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Federal Register / Vol. 89, No. 242 / Tuesday, December 17, 2024 / Rules and Regulations 102015 

§ 600.420 Release of confidential 

information. 

NMFS will not disclose to the public 

any information made confidential 

pursuant to the Magnuson-Stevens Act, 

except the agency may disclose 

information when: 

(a) Authorized by regulations issued 

by the Secretary to implement 

recommendations contained in an FMP 

prepared by the North Pacific Council 

and approved by NMFS to allow 

disclosure of observer information to the 

public of weekly summary bycatch 

information identified by vessel or for 

haul-specific bycatch information 

without vessel identification; 

(b) Observer information is necessary 

in proceedings to adjudicate observer 

certifications; 

(c) Information is required to be 

submitted to the Secretary for any 

determination under a limited access 

program (LAP). This exception applies 

at the level of confidential information 

that NMFS has used, or intends to use, 

for a regulatory determination under a 

LAP. This includes information that was 

submitted before the fishery was a LAP 

and that NMFS subsequently uses or 

intends to use for a LAP determination. 

For the purposes of this exception: 

(1) Limited Access Program means a 

program that allocates exclusive fishing 

privileges, such as a portion of the total 

allowable catch, an amount of fishing 

effort, or a specific fishing area, to a 

person. 

(2) Determination means a decision 

that is specific to a person and exclusive 

fishing privileges held or sought under 

a limited access program. These 

decisions are allocations, approval or 

denial of a lease or sale of allocated 

privileges or annual allocation, and end 

of season adjustments. 

(d) Required to comply with a Federal 

court order. For purposes of this 

exception: 

(1) Court means an institution of the 

judicial branch of the U.S. Federal 

Government. Entities not in the judicial 

branch of the Federal Government are 

not courts for purposes of this section; 

(2) Court order means any legal 

process which satisfies all of the 

following conditions: 

(i) It is issued under the authority of 

a Federal court; 

(ii) A judge or magistrate judge of that 

court signs it; and 

(iii) It commands NMFS to disclose 

confidential information as defined 

under § 600.10. 

(e) Necessary for enforcement of the 

Magnuson-Stevens Act or any other 

statute administered by NOAA or when 

necessary for enforcement of any State 

living marine resource laws, if that State 

has a joint enforcement agreement that 

is in effect. 

(f) A person that is subject to a 

Magnuson-Stevens Act submission of 

information requirement or their 

designee provides written authorization 

to the Secretary authorizing release of 

such information to other persons for 

reasons not otherwise provided for in 

section 402(b) of the Magnuson-Stevens 

Act and such release does not violate 

other requirements of the MagnusonStevens Act. That person or their 

designee must prove identity, and 

authorization to act if serving as a 

designee, by a statement consistent with 

28 U.S.C. 1746, which permits 

statements to be made under penalty of 

perjury as a substitute for notarization. 

The statement of identity, and authority 

to serve as a designee, must be in the 

following form: 

(1) If executed outside the United 

States: ‘‘I declare (or certify, verify, or 

state) under penalty of perjury under the 

laws of the United States of America 

that the foregoing is true and correct. 

Executed on (date). (Signature)’’. 

(2) If executed within the United 

States, its territories, possessions, or 

commonwealths: ‘‘I declare (or certify, 

verify, or state) under penalty of perjury 

that the foregoing is true and correct. 

Executed on (date). (Signature)’’. 

§ 600.425 Release of information in 

aggregate or summary form. 

NMFS may disclose in any aggregate 

or summary form information that is 

required to be maintained as 

confidential under these regulations. 

■ 5. In § 600.725, add paragraph (y) to 

read as follows: 

§ 600.725 General prohibitions. 

* * * * * 

(y) Disclose confidential information 

without authorization. 

[FR Doc. 2024–29366 Filed 12–16–24; 8:45 am] 

BILLING CODE 3510–22–P 


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