NAHMS Confidential Business Information Protection

USDA APHIS VETERINARY SERVICES
Animal and
Plant Health
Inspection
Service
Veterinary
Services

NATIONAL ANIMAL HEALTH
MONITORING SYSTEM

National Animal
Health Monitoring
System
2150 Centre Ave,
Bldg B
Fort Collins, CO
80526

CONFIDENTIAL BUSINESS INFORMATION PROTECTION

The following provides guidance to stakeholders of the USDA-APHIS-VS National Animal Health
Monitoring System (USDA-NAHMS) regarding protection from disclosure of confidential business
information that is collected or obtained from producers, study participants or other stakeholders via
Freedom of Information Act (FOIA, 5 U.S.C. § 552) request. Exemption 4 of the FOIA applies to data
collected or obtained by USDA-NAHMS, as it protects "trade secrets and commercial or financial
information obtained from a person [that is] privileged or confidential."
Confidential Business Information (CBI) is defined in the Code of Federal Regulations (19 CFR 201.6, U.S.
International Trade Commission) as “information which concerns or relates to the trade secrets,
processes, operations, style of works, or apparatus, or to the production, sales, shipments, purchases,
transfers, identification of customers, inventories, or amount or source of any income, profits, losses, or
expenditures of any person, firm, partnership, corporation, or other organization, or other information
of commercial value, the disclosure of which is likely to have the effect of either impairing the
Commission's ability to obtain such information as is necessary to perform its statutory functions, or
causing substantial harm to the competitive position of the person, firm, partnership, corporation, or
other organization from which the information was obtained, unless the Commission is required by law
to disclose such information”. The term Confidential Business Information includes “proprietary
information” within the meaning of section 777(b) of the Tariff Act of 1930 (19 U.S.C. 1677f(b)).
In 2019 the U.S. Supreme Court issued an opinion addressing the meaning of the word “confidential”
(see https://www.justice.gov/oip/exemption-4-after-supreme-courts-ruling-food-marketing-institute-vargus-leader-media), for applying Exemption 4 of the FOIA to protect data from release or disclosure. In
the wake of the Supreme Court ruling, the U.S. Department of Justice produced a “Step-by-Step Guide
for Determining if Commercial or Financial Information Obtained from a Person is Confidential Under
Exemption 4 of the FOIA” (see https://www.justice.gov/oip/step-step-guide-determining-if-commercialor-financial-information-obtained-person-confidential). This algorithm is displayed below.
Based on the above decisions and definitions, USDA-NAHMS protects all data collected in any study as
CBI from FOIA request under Exemption 4. This includes, but is not limited to, data collected via all
questionnaires as well as results of biologic sampling. Note, however, that while denoting data as CBI
protects producer information from a request under the FOIA, it does not protect the information from
subpoena or requests from other government agencies as deemed appropriate.
USDA-NAHMS is a statistical unit under the Confidential Information Protection and Statistical Efficiency
Act. Additional protections for NAHMS’ studies such as those afforded as a CIPSEA study may also be
applicable.

Implementation
The following processes and documents describe the implementation of applying Exemption 4 of the
FOIA to USDA-NAHMS data collections.
Informed Consent and Producer Agreement
Informed Consent, as part of the USDA-NAHMS Producer Agreement, clearly explains to voluntary
producer participants their rights, responsibilities, and limitations of each NAHMS collection. Standard
USDA-NAHMS Informed Consent/Producer Agreements contains a statement explaining CBI and its
protections. The Informed Consent/Producer Agreement also contains the justification for the request
for its confidential treatment and serves as a certification in writing under oath that substantially
identical information is not available to the public. The Informed Consent/Producer Agreement shall be
approved as part of the OMB package for each collection for approval.
Email Communication
All email communication containing CBI shall be identified as such in the subject line. Further, there will
be a statement in the body of the email identifying the contents as protected by CBI. The following
statement will be included in the body of the email:
“This communication contains information protected from the Freedom of Information Act considered
Confidential Business Information per 19 CFR 201.6.”
All attempts should be made to utilize non-electronic alternatives to transmit personal identifiable
information (PII). Any personal identifiable information (PII) transmitted electronically shall be done so
in an encrypted word document.
Storage
All CBI should be treated securely. It shall be stored under lock and key. Physical access to CBI is limited
to those with need to know. CBI protected documents shall be destroyed based on the USDA-APHIS
record management schedule.