Confidentiality of Information

<RULE> DEPARTMENT OF COMMERCE <SUBAGY>National Oceanic and Atmospheric Administration</SUBAGY> <CFR>50 CFR Part 600</CFR> <DEPDOC>[Docket No. 241209-0318]</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> Final rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> 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. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> Effective January 16, 2025. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> A plain language summary of this rule is available at: <E T="03">https://www.regulations.gov/docket/NOAA-HQ-2023-0146.</E> <E T="03">Electronic Access:</E> 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: <E T="03">https://www.regulations.gov/docket/NOAA-HQ-2023-0146/.</E> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Karl Moline, 301-427-8225, or at NMFS, Operations, Management, & Information Division F/ST3, Ste. 12300, 1315 East West Highway, Silver Spring, MD 20910. </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> 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,” <E T="03">id.</E> 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.” <E T="03">Id.</E> 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 <E T="04">Federal Register</E> 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. <HD SOURCE="HD1">Background</HD> 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. <E T="03">Id.</E> 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 <E T="03">http://www.nmfs.noaa.gov/sfa/management/catch_shares/about/documents/noaa_cs_policy.pdf</E> ). The proposed rule explained that the exception could 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 <E T="04">Federal Register</E> 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, <E T="03">Id.</E> 971 <E T="03">et seq.,</E> 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.” <E T="03">Id.</E> 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). <E T="03">Id.</E> 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 T="03">e.g.,</E> 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. 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