Confidentiality of Information

DEPARTMENT OF COMMERCE <SUBAGY>National Oceanic and Atmospheric Administration</SUBAGY> <CFR>50 CFR Part 600</CFR> <DEPDOC>[Docket No. 240304-0067]</DEPDOC> <RIN>RIN 0648-BM26</RIN> <SUBJECT>Confidentiality of Information</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. <HD SOURCE="HED">ACTION:</HD> Proposed rule, request for comments. <SUM> <HD SOURCE="HED">SUMMARY:</HD> The National Marine Fisheries Service (NMFS) proposes revisions to existing regulations governing the confidentiality of information submitted in compliance with any requirement or regulation under the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act; MSA). The purposes of these revisions are to make both substantive and non-substantive changes in light of amendments to the MSA under the 1996 Sustainable Fisheries Act (SFA) and the 2006 Magnuson-Stevens Fishery Conservation and Management Reauthorization Act (MSRA) 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). NMFS proposes additional revisions necessary to address some issues that concern its application of the MSA confidentiality of information requirements to information requests. </SUM> <DATES> <HD SOURCE="HED">DATES:</HD> Comments on this proposed rule must be received on or before April 25, 2024. </DATES> <HD SOURCE="HED">ADDRESSES:</HD> You may submit comments on this proposed rule, identified by NOAA-HQ-2023-0146, by the following method: • <E T="03">Electronic Submission:</E> Submit all electronic public comments via the Federal e-Rulemaking Portal. Go to <E T="03">https://www.regulations.gov</E> and enter NOAA-HQ-2023-0146, in the Search box. Click on the “Comment” icon, complete the required fields, and enter or attach your comments. <E T="03">Instructions:</E> Comments must be submitted by the above method to ensure that the comments are received, documented, and considered by NMFS. Comments sent by any other method, to any other address or individual, or received after the end of the comment period, may not be considered. All comments received are a part of the public record and NMFS will post them for public viewing on <E T="03">https://www.regulations.gov</E> without change. All personal identifying information ( <E T="03">e.g.,</E> name, address, <E T="03">etc.</E> ), confidential business information, or otherwise sensitive information submitted voluntarily by the sender is publicly accessible. NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous). Attachments to electronic comments will be accepted in Microsoft Word, Excel, or Adobe PDF file formats only. <E T="03">Electronic Access:</E> Information relevant to this proposed rule, which includes a regulatory impact review and a Regulatory Flexibility Act certification, is accessible via the internet at: <E T="03">https://www.regulations.gov/docket/NOAA-HQ-2023-0146.</E> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Karl Moline at (301) 427-8225 and via Email: <E T="03">NMFS.MSA_C@noaa.gov.</E> </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">I. Background</HD> The MSA authorizes the Secretary of Commerce (Secretary) to regulate domestic fisheries, seaward of States to the seaward limit of the U.S. Exclusive Economic Zone (EEZ). <E T="03">See</E> 16 U.S.C. 1811, 1802(11) (further explaining United States sovereign rights to fish and fishery management authority and defining EEZ). NMFS implements and administers the MSA through authority delegated from the Secretary. Conservation and management of fish stocks is accomplished through Fishery Management Plans and plan amendments (collectively, FMPs) and implementing regulations. To assist in the fishery management process, eight regional fishery management councils (Councils) prepare FMPs for fisheries within specified geographic areas and submit them to NMFS. Id. 1853. NMFS directly prepares and amends the FMP for highly migratory species in the Atlantic Ocean, Gulf of Mexico, and Caribbean Sea. Id. 1852(a)(3), 1854(g). For any FMPs that it approves, NMFS promulgates regulations to effectuate them. Information collection is an essential part of the fishery management process. Conservation and management measures in FMPs and in their implementing regulations must be based on the best scientific information available (see National Standard 2, 16 U.S.C. 1851(a)(2)). Under section 303(a)(5) of the MSA, any FMP must specify the pertinent information to be submitted to the Secretary with respect to commercial, recreational, or charter fishing, and fish processing in the fishery. Id. 1853(a)(5). In addition, section 303(b)(8) provides that an FMP may require that one or more observers be carried onboard a vessel for the purpose of collecting data necessary for the conservation and management of the fishery. Id. 1853(b)(8). The MSA sets forth confidentiality of information requirements at section 402(b), 16 U.S.C. 1881a(b). Under the MSA as amended, the Secretary must maintain the confidentiality of any information that a person is required to submit in compliance with any regulation or requirement under the Act and any observer information. The MSA defines person “as any individual (whether or not a citizen or national of the United States), any corporation, partnership, association, or other entity (whether or not organized or existing under the laws of any State), and any Federal, State, local, or foreign government or any entity of any such government.” Id. at 1802(36). “Observer information” is defined as “any information collected, observed, retrieved, or created by an observer or electronic monitoring system pursuant to an authorization by the Secretary, or collected as part of a cooperative research initiative, including fish harvest or processing observations, fish sampling or weighing data, vessel logbook data, vessel or processor-specific information (including any safety location, or operating condition observation), and video, audio, photographic, or written documents.” Id. at 1802(3)(32). The MSA includes exceptions to these confidentiality requirements. Some exceptions allow for access to confidential information by specified entities provided that these parties treat the information as confidential, while other exceptions allow for the release of information without restrictions. In addition, the MSA authorizes the Secretary to disclose information that is subject to the Act's confidentiality requirements in “any aggregate or summary form which does not directly or indirectly disclose the identity or business of any person who submits such information.” Id. at 1881a(b)(3). As discussed below, after finalization of this rule, NOAA intends to rescind NOAA Administrative Order (NAO) 216-100 that outlines the current internal control procedures for confidential information. NMFS will replace the NAO with new internal control procedures that apply to the collection and maintenance of, and access to and release of, any confidential information. NMFS will make these procedures available to the public. NMFS also notes that the Illegal, Unreported and Unregulated Fishing Enforcement Act of 2015 (IUU Fishing Act), Public Law 114-81 101(b) (Nov. 5, 2015), amended the High Seas Driftnet Fishing Moratorium Protection Act (FMPA) to include provisions at 16 U.S.C. 1826i and 1826g related to MSA confidential information. NMFS implements and administers the FMPA through authority delegated from the Secretary. Under section 1826i(b)(1), the Secretary is authorized to disclose information collected under joint authority of the MSA and another statute that implements an international fishery agreement (IFA), such as the Atlantic Tunas Convention Act of 1975, <E T="03">id.</E> at 971 <E T="03">et seq.,</E> to specified governmental bodies if certain conditions are satisfied. Section 1826i(b)(2) provides that the confidentiality requirements of the MSA are not applicable to information sharing obligations of the United States under a Regional Fishery Management Organization to which the United States is a member and to information collected from foreign fishing vessels. Section 1826g, the enforcement section of the FMPA, includes the same text as in section 1826i(b)(2). In addition, section 1826g allows for disclosure of information to the same governmental bodies in section 1826i(b)(1) and a foreign government, if necessary for specified compliance and enforcement purposes. Section 402(b)(3) of the MSA provides that the “Secretary shall, by regulation, prescribe such procedures as may be necessary to preserve the confidentiality of information submitted in compliance with any requirement or regulation under this Act.” Id. 1881a(b)(3). Accordingly, NMFS has promulgated confidentiality regulations, which are set forth at 50 CFR part 600, subpart E. Certain terms used in these regulations are defined under 50 CFR part 600, subpart A. NMFS last revised the regulations under subpart E in February 1998 (63 FR 7075, February 12, 1998). The revisions were non-substantive. On May 23, 2012, NMFS published a proposed rule (77 FR 30486) with substantive and clarifying revisions to the confidentiality of information regulations at subpart E and provided for public comment on that proposed rule through August 21, 2012 (77 FR 35349, June 13, 2012). Following public comment, on January 13, 2017, NMFS issued a document withdrawing the proposed rule (82 FR 4278). In that document, NMFS stated that it would like to reevaluate those proposed revisions to the regulations. NMFS has reevaluated the need for revised confidentiality ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 98k characters. 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