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.

(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 non-confidential information;

(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.

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.

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 Magnuson-Stevens 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. 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)”.

NMFS may disclose in any aggregate or summary form information that is required to be maintained as confidential under these regulations.