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NAO 216-100: Protection of Confidential Fisheries Statistics | National Oceanic and Atmospheric Administration
National Oceanic and
Atmospheric Administration
U.S. Department of Commerce
NAO 216-100:
Protection of Confidential
Fisheries Statistics
Issued 07/26/94; Effective 07/18/94 Last Reviewed: In Process
Attachments
Appendix A
Appendix B
Appendix C
Appendix D
Certificate
SECTION 1. PURPOSE.
.01 This Order:
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NAO 216-100: Protection of Confidential Fisheries Statistics | National Oceanic and Atmospheric Administration
a. prescribes policies and procedures for protecting the confidentiality of data
submitted to and collected by the National Oceanic and Atmospheric
Administration (NOAA)/National Marine Fisheries Service (NMFS) as authorized or
required by law;
b. informs authorized users of their obligations for maintaining the confidentiality
of data received by NMFS;
c. provides for operational safeguards to maintain the security of data; and
d. states the penalties provided by law for disclosure of confidential data.
SECTION 2. SCOPE.
This Order covers all confidential data received, collected, maintained, or used by
NMFS.
SECTION 3. DEFINITIONS.
.01 Access to data means the freedom or ability to use data, conditioned by a
statement of nondisclosure and penalties for unauthorized use.
.02 Aggregate or summary form means data structured so that the identity of the
submitter cannot be determined either from the present release of the data or in
combination with other releases.
.03 Agreement refers to all binding forms of mutual commitment under a stated
set of conditions to achieve a specific objective.
.04 Assistant Administrator means the Assistant Administrator for Fisheries,
NOAA, or a designee authorized to have access to confidential data.
.05 Authorized Use/User.
a. Authorized use is that specific use authorized under the governing statute,
regulation, order, contract or agreement.
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b. An authorized user is any person who, having the need to collect or use
confidential data in the performance of an official activity, has read this Order and
has signed a statement of nondisclosure affirming the user's understanding of
NMFS obligations with respect to confidential data and the penalties for
unauthorized use and disclosure.
.06 Confidential data means data that are identifiable with any person, accepted
by the Secretary, and prohibited by law from being disclosed to the public. The
term "as used" does not convey data sensitivity for national security purposes [See
Executive Order (E.O.) 12356 dated April 2, 1982].
.07 Data refers to information used as a basis for reasoning, discussion, or
calculation that a person may submit, either voluntarily or as required by statute or
regulation.
.08 GC means the Office of General Counsel, NOAA.
.09 Person means 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 such governments, including Regional Fishery
Management Councils (Councils).
.10 Public means any person who is not an authorized user.
.11 Region means NMFS Regional field offices, Fisheries Science Centers, and
associated laboratories.
.12 Source document means the document, paper, or electronic format on which
data are originally recorded.
.13 State employee means any member of a State agency responsible for
developing and monitoring the State's program for fisheries or Marine Mammal
Protection Act (MMPA) program.
.14 Submitter means any person or the agent of any person who provides data to
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NMFS either voluntarily or as required by statute or regulation.
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SECTION 4. POLICY.
For data subject to this Order, it is NMFS policy that:
a. confidential data shall only be disclosed to the public if required by the Freedom
of Information Act (FOIA), 5 U.S.C. 552, the Privacy Act, 5 U.S.C. 552a, or by court
order. Disclosure of data pursuant to a subpoena issued by an agency of
competent jurisdiction is a lawful disclosure. Disclosure pursuant to a subpoena
must be approved by GC;
b. individual identifiers shall be retained with data, unless the permanent deletion
is consistent with the needs of NMFS and good scientific practice [See Section
6.02c]; and
c. a notice is required on all report forms requesting data and must comply with 5
U.S.C. 552a(e)(3) and Paperwork Reduction Act requirements in NAO 216-8,
Information Collections and Requirements Needing Office of Management and
Budget Clearance. [See E.O. 12600 of June 23, 1987, for additional information
regarding the rights of submitters to designate commercial confidential data at the
time of submission.]
SECTION 5. OPERATIONAL RESPONSIBILITIES.
.01 The Regional Director of each region (or, in the case of headquarters, each
Office Director) has the responsibility to maintain the confidentiality of all data
collected, maintained, and disclosed by the respective region.
.02 Each region shall submit to the Assistant Administrator specific procedures
governing the collection, maintenance, and disclosure of confidential data. These
documents shall be compiled as regional handbooks following the guidelines and
standards:
a. handbooks are to be developed in detail to ensure the maintenance of
confidential data on a functional basis in each region; and
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b. handbooks shall be coordinated through the National Data Management
Committee (a NMFS group established by the Assistant Administrator to develop
data management policies and procedures) and reviewed annually. The regional
handbooks will address, at minimum, the contents of Sections 6-7.
SECTION 6. PROCEDURES.
.01 Data Collection. To collect data, the Secretary may use Federal employees,
contractor employees, or, pursuant to an agreement, State employees.
a. General Requirements.
1. Personnel authorized to collect Federal data must maintain all documents
containing confidential data in secure facilities; and
2. may not disclose confidential data, whether recorded or not, to anyone not
authorized to receive and handle such data.
b. Specific Requirements.
1. Each Federal or contractor employee collecting or processing confidential data
will be required to read, date, and sign a statement of nondisclosure, that affirms
the employee's understanding of NMFS obligations with respect to confidential
data and the penalties for unauthorized use and disclosure of the data. Upon
signature, the employee's name will be placed on record as an "authorized user,"
and the employee will be issued certification.
2. Data collected by a contractor must be transferred timely to authorized Federal
employees; no copies of these data may be retained by the contractor. NMFS may
permit contractors to retain aggregated data. A data return clause shall be
included in the agreement. All procedures applicable to Federal employees must
be followed by contractor employees collecting data with Federal authority.
3. Under agreements with the State, each State data collector collecting
confidential data will sign a statement at least as protective as the one signed by
Federal employees, which affirms that the signer understands
the applicable
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procedures and regulations and the penalties for unauthorized disclosure.
.02 Maintenance.
a. Maintenance is defined as the procedures required to keep confidential data
secure from the time the source documents are received by NMFS to their ultimate
disposition, regardless of format. [See National Institute of Standards and
Technology "Computer Security Publications, List 91" for guidance.]
b. Specific procedures in regional handbooks must deal with the following
minimum security requirements, as well as any others that may be necessary
because of the specific data, equipment, or physical facilities:
1. the establishment of an office or person responsible for evaluating requests for
access to data;
2. the identifications of all persons certified as authorized users. These lists shall
be kept current and reviewed on an annual basis;
3. the issuance of employee security rules that emphasize the confidential status
of certain data and the consequences of unauthorized removal or disclosure;
4. the description of the security procedures used to prevent unauthorized access
to and/or removal of confidential data;
5. the development of a catalog/inventory system of all confidential data received
including: the type of source docume nt; the authority under which each item of
data was collected; any statutory or regulatory restriction(s) which may apply; and
routing from the time of receipt until final disposition; and
6. The development of an appropriate coding system for each set of confidential
data so that access to data that identifies, or could be used to identify, the person
or business of the submitter is controlled by the use of one or more coding
system(s). Lists that contain the codes shall be kept secure.
c. The permanent deletion of individual identifiers from a database shall be
addressed on a case-by-case basis. Identifiers may only
be deleted
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1. future uses of data have thoroughly been evaluated, e.g., the need for individual
landings records for allocating shares under an individual transferable quota
program;
2. consultation with the agency(s) collecting data (if other than NMFS), the
relevant Council(s), and NMFS Senior Scientist; and
3. concurrence by the Assistant Administrator has been received prior to deletion.
.03 Access to Data Subject to This Order.
a. General Requirements. In determining whether to grant a request for access to
confidential data, the following information shall be taken into consideration:
1. the specific types of data required;
2. the relevance of the data to the intended uses;
3. whether access will be continuous, infrequent, or one-time;
4. an evaluation of the requester's statement of why aggregate or non-confidential
summaries of data would not satisfy the requested needs; and
5. the legal framework for the disclosure, in accordance with GC and this Order.
b. Within NMFS. NMFS employees requesting confidential data must have
certification as being authorized users for the particular type of data requested.
c. Councils. Upon written request by the Council Executive Director:
1. "authorized user" status for confidential data collected under the Magnuson
Fishery Conservation and Management Act (Magnuson Act) may be granted to a
Council for use by the Council for conservation and management purposes
consistent with the approval of the Assistant Administrator as described in 50
CFR 603.5;
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2. "authorized user" status for confidential data, collected under the Magnuson Act
and MMPA, will be granted to Council employees who are responsible for Fishery
Management Plan development and monitoring; and
3. Councils that request access to confidential data must submit, on an annual
basis, a copy of their procedures for ensuring the confidentiality of data to the
region, or in the case of intercouncil fisheries, regions. The procedures will be
evaluated for their effectiveness and, if necessary, changes may be recommended.
As part of this procedure, an updated statement of nondisclosure will be included
for each employee and member who requires access to confidential data.
d. States.
1. Requests from States for confidential data shall be directed in writing to the
NMFS office that maintains the source data.
2. Each request will be processed in accordance with any agreement NMFS may
have with the State:
(a) confidential data collected solely under Federal authority will be provided to a
State by NMFS only if the Assistant Administrator finds that the State has
authority to protect the confidentiality of the data comparable to, or more stringent
than, NMFS' requirements; and
(b) the State will exercise its authority to limit subsequent access and use of the
data to those uses allowed by authorities under which the data was collected.
3. If the State has no agreement with NMFS for the collection and exchange of
confidential data, the request shall be treated as a public request and disclosure
may be denied subject to FOIA or the Privacy Act.
4. Where a State has entered into a cooperative exchange agreement with another
State(s), NMFS will facilitate transfer or exchange of State-collected data in its
possession if:
(a) NMFS has written authorization for data transfer from the head of the
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(b) the collecting State has provided NMFS a list of authorized users in the
recipient State(s); and
(c) the collecting State agrees to hold the United States Government harmless for
any suit that may arise from the misuse of the data.
e. Contractors.
1. Pursuant to an agreement with NMFS, a NMFS contractor (including
universities, Sea Grant investigators, etc.) may be granted "authorized user" status
consistent with this Order if the use furthers the mission of NMFS.
2. The region will notify the contractor of its decision on access in writing within
30 calendar days after receipt of the request.
3. Contingent upon approval, the contractor will be provided with details
regarding conditions of data access, any costs involved, formats, timing, and
security procedures. If the request is denied, the reason(s) for denial will be given
by the NMFS office involved. The denial will not preclude NMFS consideration of
future requests from the contractor.
4. If access is granted, language in the agreement specifically dealing with
confidentiality of data will be required. The language shall include all of the
relevant portions of this Order and shall prohibit the further disclosure of the data.
No data may be retained beyond the termination date of the agreement; and any
disclosure of data derived from the accessed confidential data must be approved
by NMFS.
5. Each agreement shall be reviewed by GC prior to its execution, and shall, to the
extent possible, be consistent with the model agreement contained in Appendix D
(Not included --WebEd).
f. Submitters. The Privacy Act allows for data to be released back to the submitter
upon receipt and verification of a written request stating the data required.
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04. Requests for Confidential Data. NMFS is authorized to collect data under
various statutes [See Appendix A (Not include --WebEd)]. Two types of statutes
govern the disclosure of confidential data collected by the Federal Government,
those that contain specific and non-discretionary language within the Act, and
those that provide overall guidance to the Federal Government. Sections of these
Acts that deal with exceptions to disclosure may be found in Appendix B (Not
included -- WebEd).
a. Magnuson Act and MMPA.
1. Data collected under 16 U.S.C. 1853 (a) or (b), and 16 U.S.C. 1383a(c),(d),(e),
(f),or (h) will be handled in the following manner:
(a) data will only be disclosed to Federal employees and Council employees who
are responsible for management plan development and monitoring; State
employees pursuant to an agreement with the Secretary that prevents public
disclosure of the identity or business of any person; a Council for conservation and
management purposes [not applicable for MMPA data] or when required by court
order. [See 50 CFR 229.10 and part 603];
(b) Council advisory groups are not permitted access to such confidential data [See
50 CFR 601.27(b)];
(c) requests from States that do not have an agreement with the Secretary will be
processed in accordance with the Privacy Act or FOIA; and
(d) data collected by an observer under 16 U.S.C. 1853 (a) or (b) are not
considered to have been "submitted to the Secretary by any person," and therefore
are not confidential under Section 6.04.a of this Order. Data collected by an
observer may be withheld from disclosure under the Privacy Act, or subsections
(b)(3),(4),(5),(6), or (7) of FOIA.
2. Confidential data submitted to the Secretary under other Sections of the
Magnuson Act or MMPA may only be disclosed in accordance with the Privacy Act
or FOIA. Types of data and the collection authority may include among others:
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(a) Processed Product Data -- 16 U.S.C. 1854(e);
(b) Fish Meal and Oil, Monthly -- 16 U.S.C. 1854(e);
(c) Data Collected Under State Authority and Provided to NMFS -- 16 U.S.C.
1854(e); and
(d) Tuna-Dolphin Observer Program -- 16 U.S.C. 1361 et seq.
b. South Pacific Tuna Act. Data collected under South Pacific Tuna Act 16 U.S.C.
973j is protected from disclosure to the public in accordance with section 973j(b).
c. Other Statutes. Confidential data collected under other NMFS programs as
authorized by statutes other than South Pacific Tuna Act (16 U.S.C 973j), MMPA
(16 U.S.C. 1361 et seq.), and Magnuson Act (16 U.S.C. 1801 et seq.), may only be
disclosed to the public in accordance with the Privacy Act and FOIA. Types of data
and the collection authority may include among others:
(1) Monthly Cold Storage Fish Report -- 16 U.S.C. 742(a);
(2) Market News Data -- 16 U.S.C. 742(a); and
(3) Seafood Inspection Data -- 7 U.S.C. 1621 et seq.
d. Special Procedures.
1. Cold Storage Summary Reports. NMFS publishes monthly cold storage holdings
of fishery products. Advance knowledge of the content of these reports could give
those who trade in the products an opportunity to gain competitive advantage.
Therefore, in addition to the confidential protection provided to individual reports,
the monthly summary report will not be disclosed to the public until 3:00 p.m.
Eastern Time of the official release date. Release dates for these data are
published 1 year in advance in November, and can be obtained from the NMFS
Fisheries Statistics Division.
2. Surplus commodity purchases by USDA. NMFS and the Department of
Agriculture (USDA) have an interagency agreement relating to the purchase of
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recommendations to the USDA regarding these purchases. Advance knowledge of
these data could cause a competitive advantage or disadvantage to the general
public, fishing industry, and the program. Therefore, all NMFS personnel engaged
in the surplus commodity purchase program will be required to sign a specific
"USDA Responsibility Statement." A copy will be maintained in the Office of Trade
Services.
3. Agreements for Disclosure of Confidential Data. A letter of agreement may
authorize the disclosure of confidential data when both the Government and the
submitter agree to disclosure of the data. The need to provide security for the data
will vary depending on the type of data collected and the form of the disclosure.
Disclosure can be undertaken if all the following conditions are met:
(a) the person has agreed in writing to the disclosure and is aware that disclosure
is irrevocable;
(b) the recipient has been informed in writing of the sensitivity of the data; and
(c) the wording of the agreement has been approved by GC.
.05 Disposal. NAO 205-1, NOAA Records Management Program, shall govern the
disposition of records covered under this Order.
SECTION 7. PENALTIES.
.01 Civil and Criminal. Persons who make unauthorized disclosure of confidential
data may be subject to civil penalties or criminal prosecution under:
a. Trade Secrets Act (18 U.S.C. 1905);
b. Privacy Act (5 U.S.C. 552a(i)(1));
c. Magnuson Act (16 U.S.C. 1858); and
d. MMPA (16 U.S.C. 1375).
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.02 Conflict of Interest. Employees are prohibited by Department of Commerce
employee conduct regulations [15 CFR part 0] and by ethics regulations
applicable to the Executive Branch [5 CFR 2635.703] from using nonpublic
information subject to this Order for personal gain, whether or not there is a
disclosure to a third party.
.03 Disciplinary Action. Persons may be subject to disciplinary action, including
removal, for failure to comply with this Order. Prohibited activities include, but are
not limited to, unlawful disclosure or use of the data, and failure to comply with
implementing regulations or statutory prohibitions relating to the collection,
maintenance, use and disclosure of data covered by this Order.
SECTION 8. EFFECT ON OTHER ISSUANCES.
None.
Signed,
Director, Office of Administration
Attachments
Appendix A
Appendix B
Appendix C
Appendix D
Certificate
Office of Primary Interest:
National Marine Fisheries Service
Office of Research and Environmental Information
Fisheries Statistics Division (F/RE1)
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NAO 216-100: Appendix A – STATUTES | National Oceanic and Atmospheric Administration
National Oceanic and
Atmospheric Administration
U.S. Department of Commerce
NAO 216-100: Appendix
A – STATUTES
NMFS is authorized to collect biological, economic, social, and other data under
the following statutes, among others:
Agricultural Marketing Act of 1946, 7 U.S.C. 1621-1627;
Agricultural Trade Development and Assistance Act of 1954, 7 U.S.C. 1704;
Anadromous Fish Conservation Act, 16 U.S.C. 757-757f;
Atlantic Coast Fish Study for Development and Protection of Fish Resources,
1950, 16 U.S.C. 760a;
Atlantic Tunas Convention Act of 1975, 16 U.S.C. 971-971i;
Eastern Pacific Tuna Licensing Act of 1984, 16 U.S.C. 972-972h;
Endangered Species Act, 16 U.S.C. 1531-1543;
Farrington Act of 1947, 16 U.S.C. 758-758d;
Fish and Wildlife Act of 1956, 16 U.S.C. 742(a) et seq;
Fish and Wildlife Coordination Act of 1934, 16 U.S.C. 661-666c;
Fishery Market News Service Act of 1937; 50 Stat. 296;
Fur Seal Act, 16 U.S.C. 1151-1175;
Interjurisdictional Fisheries Act of 1986, 16 U.S.C. 4101 et seq;
Magnuson Fishery Conservation and Management Act, 16 U.S.C. 1801 et seq;
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NAO 216-100: Appendix A – STATUTES | National Oceanic and Atmospheric Administration
Marine Mammal Protection Act, 16 U.S.C. 1361 et seq;
Marine Migratory Gamefish Act of 1959, 16 U.S.C. 760e;
South Pacific Tuna Act of 1988, 16 U.S.C. 973-973n; and
Tuna Conventions Act of 1950, 16 U.S.C. 951-961.
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NAO 216-100: Appendix B – Primary Protective Authorities | National Oceanic and Atmospheric Administration
National Oceanic and
Atmospheric Administration
U.S. Department of Commerce
NAO 216-100: Appendix
B – Primary Protective
Authorities
a. Magnuson Fishery Conservation and Management Act, 16 U.S.C. 1853d,
(Magnuson Act).
Data required as part of a reporting requirement under the Magnuson Act are
protected from disclosure to the public by section 303(d) which provides: "Any
statistic submitted to the Secretary by any person in compliance with any
requirement under subsections 303(a) and (b) shall be confidential and shall not
be disclosed except:
1. to Federal employees and Council employees who are responsible for
management plan development and monitoring;
2. to State employees pursuant to an agreement with the Secretary that
prevents public disclosure of the identity or business of any person; or
3. when required by court order.
“The Secretary shall, by regulation [See 50 CFR part 603], prescribe such
procedures as may be necessary to preserve such confidentiality, except that the
Secretary may release or make public any such statistics in any aggregate or
summary form which does not directly or indirectly disclose the identity or
business of any person who submits such statistics. Nothing in this subsection
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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 statistic submitted in compliance with a requirement under
subsection (a) or (b).”
b. Marine Mammal Protection Act, 16 U.S.C. 1383a(j), (MMPA).
Certain MMPA data are protected from disclosure by section 114(j) which
provides: "Any information collected under subsection (c),(d),(e),(f), or (h) of this
section shall be confidential and shall not be disclosed except:
(A) to Federal employees whose duties require access to such information;
(B) to State employees pursuant to an agreement with the Secretary that prevents
public disclosure of the identity or business of any person;
(C) when required by court order; or
(D) in the case of scientific information involving fisheries, to employees of
Regional Fishery Management Councils who are responsible for fishery
management plan development and monitoring.... “The Secretary shall prescribe
such procedures [See 50 CFR 229.10] as may be necessary to preserve such
confidentiality, except that the Secretary shall release or make public any such
information in aggregate, summary, or other form which does not directly or
indirectly disclose the identity or business of any person.”
c. South Pacific Tuna Act 16 U.S.C. 973j(b).
Certain data are protected from disclosure by section 973j(b) which provides:
"Information provided by license holders in Schedules 5 and 6 of Annex 1 of the
Treaty shall be provided to the Secretary for transmittal to the Administrator and
to an entity designated by the license holder. Such information thereafter shall not
be released and shall be maintained as confidential by the Secretary, including
information requested under Section 552 of Title 5, unless disclosure is required
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under court order or unless the information is essential for an enforcement action
under section 973c, 973h(c), or 973i of this title, or any other proper law
enforcement action."
d. Freedom of Information Act, 5 U.S.C. 552 (FOIA).
Although FOIA generally requires agencies to make records available to any
person requester, it does provide specific exemptions for which an agency may
deny disclosure as follows:
“...(b) This section does not apply to matters that are... (3) specifically exempted
from disclosure by statute (other than section 552b of this title), provided that
such statute (A) requires that the matters be withheld from the public in such a
manner as to leave no discretion on the issue, or (B) establishes particular criteria
for withholding or refers to particular types of matters to be withheld;
(4) trade secrets and commercial or financial information obtained from a person
and privileged or confidential;
(5) inter-agency or intra-agency memorandums or letters which would not be
available by law to a party other than an agency in litigation with the agency;
(6) personnel and medical files and similar files the disclosure of which would
constitute a clearly unwarranted invasion of personal privacy;
(7) records or information compiled for law enforcement purposes,...”
e. Trade Secrets Act 18 U.S.C. 1905.
The Trade Secrets Act forbids disclosure only to the extent that other laws do not
require the information be released. The courts have interpreted its protection to
be virtually coextensive with exception of FOIA exemption 4.
The Trade Secrets Act states: “Whoever, being an officer or employee of the
United States or of any department or agency thereof, or agent of the Department
of Justice as defined in the Antitrust Civil Process Act (15 U.S.C. 1311-1314),
publishes, divulges, discloses, or makes known in any manner or to any extent not
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authorized by law any information coming to him in the course of his employment
or official duties or by reason of any examination or investigation made by, or
return, report or record made to or filed with, such department or agency or officer
or employee thereof, which information concerns or relates to the trade secrets,
processes, operations, style of work, or apparatus, or to the identity, confidential
statistical data, amount or source of any income, profits, losses, or expenditures of
any person, firm, partnership, corporation, or association; or permits any income
return or copy thereof or any book containing any abstract or particulars thereof to
be seen or examined by any person except as provided by law; shall be fined not
more than $l,000, or imprisoned not more than one year, or both; and shall be
removed from office or employment.”
f. Privacy Act, 5 U.S.C. 552a(b).
Privacy Act records are to be handled according to NAO 205-15.
The Privacy Act prohibits disclosure stating:
“...(b) Conditions of Disclosure. No agency shall disclose any record which is
contained in a system of records by any means of communication to any person, or
to another agency, except pursuant to a written request by, or with the prior
written consent of, the individual to whom the record pertains, unless disclosure of
the record would be (1) to those officers and employees of the agency which
maintains the record who have a need for the record in the performance of their
duties;
(2) required under section 552 of this title;
(3) for a routine use as defined in subsection (a)(7) of this section and described
under subsection (e)(4)(D) of this section;
(4) to the Bureau of the Census for purposes of planning or carrying out a census
or survey or related activity pursuant to the provisions of title 13;
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NAO 216-100: Appendix B – Primary Protective Authorities | National Oceanic and Atmospheric Administration
(5) to a recipient who has provided the agency with advance adequate written
assurance that the record will be used solely as a statistical research or reporting
record, and the record is to be transferred in a form that is not individually
identifiable;
(6) to the National Archives and Records Administration as a record which has
sufficient historical or other value to warrant its continued preservation by the
United States Government, or for evaluation by the Archivist of the United States
or the designee of the Archivist to determine whether the record has such value;
(7) to another agency or to an instrumentality of any governmental jurisdiction
within or under the control of the United States for a civil or criminal law
enforcement activity if the activity is authorized by law, and if the head of the
agency or instrumentality has made a written request to the agency which
maintains the record specifying the particular portion desired and the law
enforcement activity for which the record is sought;
(8) to a person pursuant to a showing of compelling
circumstances affecting the health or safety of an individual if upon such
disclosure notification is transmitted to the last known address of such individual;
(9) to either House of Congress, or, to the extent of matter within its jurisdiction,
any committee or subcommittee thereof, any joint committee of Congress or
subcommittee of any such joint committee;
(10) to the Comptroller General, or any of his authorized
representatives, in the course of the performance of the duties of the General
Accounting Office;
(11) pursuant to the order of a court of competent jurisdiction; or
(12) to a consumer reporting agency in accordance with section 3711(f) of title 31.
g. Government in the Sunshine Act 5 U.S.C. 552b(c)
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The Sunshine Act provides for open access to meetings held by the government.
The Act provides for certain cases when, with prior notice to the public, a meeting
may be closed.
Authorized users of NMFS confidential data should be aware of these exceptions
when holding an open meeting. The Act states:
"Except in a case where the agency finds that the public interest requires
otherwise, the second sentence of subsection (b) shall not apply to any portion of
an agency meeting, and the requirements of subsections (d) and (e) shall not apply
to any information pertaining to such meeting otherwise required by this section to
be disclosed to the public, where the agency properly determines that such
portion or portions of its meeting or the disclosure of such information is likely to ...
(3) disclose matters specifically exempted from disclosure by statute (other than
section 552 of this title), provided that such statute
(A) requires that the matters be withheld from the public in such a manner as to
leave no discretion on the issue, or
(B) establishes particular criteria for withholding or refers to particular types of
matters to be withheld;
(4) disclose trade secrets and commercial or financial >information obtained from
a person and privileged or confidential;
(5) involve accusing any person of a crime, or formally censuring any person;
(6) disclose information of a personal nature where disclosure would constitute a
clearly unwarranted invasion of personal privacy;..."
Last updated September 29, 2022
https://www.noaa.gov/organization/administration/nao-216-100-appendix-b-primary-protective-autorities
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NAO 216-100: Appendix C – Statement of Nondisclosure | National Oceanic and Atmospheric Administration
National Oceanic and
Atmospheric Administration
U.S. Department of Commerce
NAO 216-100: Appendix
C – Statement of
Nondisclosure
I have read the NOAA Administrative Order on Confidentiality of Statistics and
understand its contents.
I will not disclose any data identified as confidential to any person(s), except as
directed by the Assistant Administrator for Fisheries. I am fully aware of the civil
and criminal penalties for unauthorized disclosure, misuse, or other violation of the
confidentiality of such data.
I understand that I may be subject to criminal and civil penalties under provisions
of Titles 5 U.S.C. 552 and 18 U.S.C. 1905, which are the primary Federal statutes
prohibiting unauthorized disclosure of confidential data. I may also be subject to
civil penalties for improper disclosure of data collected under the Magnuson Act or
the MMPA.
___________________________ ______________________________
Name typed, date Signature
Affiliation: _____ NMFS
Type of Data: ____ Source
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NAO 216-100: Appendix C – Statement of Nondisclosure | National Oceanic and Atmospheric Administration
(Check One)
____ Other Federal
____ Subregional
____ State
____ Regional
____ Council Staff
____ Multiregional
____ Council Member
____ Special
____ Contractor
____ Grantee
Acess Number: _______________________
__________________________
Signature
Designated NMFS Official
Last updated May 11, 2021
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NAO 216-100: Appendix D – MODEL | National Oceanic and Atmospheric Administration
National Oceanic and
Atmospheric Administration
U.S. Department of Commerce
NAO 216-100: Appendix
D – MODEL
AGREEMENT OF ACCESS
I. Purpose
The purpose of this agreement is to outline the understanding between the
National Marine Fisheries Service (NMFS) and the
_____________________________________ regarding access to, subsequent
storage, and usage of confidential data provided to the Secretary of Commerce.
II. References and Authorities
[Cite specific Authorities]
III. Definitions
The terms in this agreement except where specifically defined below have the
meanings that are prescribed in 50 CFR 601.2.
A. The term “detailed statistics” refers solely to the use of raw unaggregated data
submitted in confidence in response to Federal requirements and/or requests.
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B. The term “landings data” refers to those data related to the catch, landings, and
value of commercial fishery products collected through the use of "weigh-out"
slips by agents of the NMFS or the term "port sampling data" refers to those data
related to the catch, fishing effort, etc., of commercial fishermen collected by
means of personal interviews by agents of the NMFS.
IV. Responsibilities of the Parties
A. Contractor
1. Disclosure of the data made available under this agreement to anyone other
than a duly authorized NMFS or_________________________________________
employee is forbidden unless specifically provided for herein. A list of _____
employees and agentsauthorized to receive the data is included in this agreement.
Any additions or deletions must be approved by the NMFS _______________
Regional Office.
For the purposes of access to, storage, and disclosure of the subject data, agents
and employees of the contractor shall be considered as agents of the Federal
Government and shall be subject to the provisions of sections 1905 and 201-209
of Title 18 of the United States Code (commonly referred to as the Trade Secrets
Laws and Conflict of Interests Laws respectively).
2. Contractor safeguards of data include:
a. Signed, witnessed, and approved certificates from each employee and
prospective agent of the contractor as to their awareness of the provisions of 18
U.S.C. 1905 and of sections 201-209 for misuse of raw data of a confidential
nature. Each approved certificate will be appended to, and made a part of the
agreement.
b. Each certificate shall continue in force for the duration of the employee or
agent's relationship with the contractor; and for one year thereafter; upon
termination of the relationship of any contractor access control codes will be
changed immediately through an amendment to this agreement.
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c. All print-outs of raw, unaggregated data will be kept under lock and key by the
contractor and by the principal agent(s) (Principal Investigators) of the contractors.
d. Contractor employees and agents will be required to sign out for required printouts and, upon return of the print-outs, to sign again. Logbooks will be maintained
under lock and key by _______________________ (i.e., the senior contract
employees or by the principal agents (Principal Investigators).
e. Remote, direct access to raw data of confidential nature by contractor
employees and/or agents will be by dual coding, i.e., two persons will be required
to achieve access, each possessing a code number known and maintained only by
himself or herself. The computer addressed should log both numbers prior to
allowing access. A monthly tabulation, by day, of access/code numbers logged will
be forwarded to the NMFS Regional Office.
f. All print-outs and other documents containing confidential data, when surplus
to the needs of the contractor employees or agents, will be returned to NMFS.
3. Identification of persons or organizations who will have access to data under
this agreement:
4. The contractor hereby holds NMFS, NOAA, DOC, and the United States
harmless for any civil suit that may arise from the misuse by the contractor of the
subject data.
5. The contractor agrees to notify NMFS of the filing of or notice of the probability
of a civil suit being filed against the contractor involving the data.
6. The contractor agrees to notify the appropriate NMFS Regional office on
termination of access need on the part of any contractor employee and agent.
B. Federal
The NMFS,______________ Region, shall provide to the contractor on request:
1. A current identification of Federally collected fishery-related data as specified in
the agreement.
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NAO 216-100: Appendix D – MODEL | National Oceanic and Atmospheric Administration
2. A means of access to the data as currentlyavailable in computerized format.
V. General Understanding
It is understood between the parties to this agreement that the contractor may let
subcontracts to private and public organizations for the access, collation, analysis,
and/or storage of the subject data; and that such contracts shall include a
provision incorporating all of the safeguards, certificates, prohibitions, and
limitations of this agreement. The contracts will include at a minimum:
A. an identification of those people who would have access to the data;
B. incorporation of the access safeguards found in section IV(A)(2); and
C. provision for the execution of employee certificate(s) as required by this
agreement.
VI. Safeguards
The ________________________________ on behalf of itself, its employees,
contractors, and agents specifically agrees:
A. To establish and maintain procedures for preserving the confidentiality of the
data made accessible to it under this agreement.
B. To provide the _______________ appropriate NMFS Regional Office with a
description of the procedures specified in paragraph VI(A) of this section so that
their effectiveness may be determined and evaluated, and to make any changes in
such procedures as may be requested.
C. Not to disclose any data in a manner that is inconsistent with this agreement.
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NAO 216-100: Appendix D – MODEL | National Oceanic and Atmospheric Administration
VII. Review and Amendments
A. This agreement will be reviewed periodically, but not less than annually. It may
be subject to reconsideration at such other times as may be required or requested
and as agreed to by the parties entering into the agreement.
B. This agreement may be amended at any time by the mutual consent of the
parties entering into the agreement.
VIII. Other Provisions
Nothing herein is intended to conflict with current NOAA or NMFS orders. If the
terms of this agreement are inconsistent with controlling NMFS orders, then those
portions of this agreement which are determined to be inconsistent shall be
invalid; but the remaining terms and conditions of this agreement not affected by
any inconsistency shall remain in full force and effect. At the first opportunity for
review of the agreement, such changes as are deemed necessary will be
accomplished by either an amendment to this agreement or by entering into a new
agreement, which ever is deemed expedient to the interest of both parties.
Should disagreement arise as to the interpretation of the provisions of this
agreement, or amendments and/or revisions thereto, that cannot be resolved at
the operating level, the area(s) of disagreement shall be reduced to writing by
each party and presented to the other party for consideration at least 14 days
prior to forwarding to the Assistant Administrator for Fisheries for appropriate
resolution.
XI. Terms of Agreement
The terms of this agreement will become effective upon the signature of both the
approving officials of NMFS and the contractor entering into this agreement.
The terms of this agreement will remain in effect for the period of the contract
unless terminated by (1) mutual agreement, (2) (specific date) with advanced (60day) written notice by either party for cause or (3) the operation/terms of this
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NAO 216-100: Appendix D – MODEL | National Oceanic and Atmospheric Administration
agreement, whichever shall first occur.
______________________ _________________________
Signature for Contractor Printed Name & Title Date
______________________ _________________________
Signature for NMFS Printed Name & Title Date
============================================================
Last updated May 11, 2021
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Certificate for NAO 216-100 | National Oceanic and Atmospheric Administration
National Oceanic and
Atmospheric Administration
U.S. Department of Commerce
Certificate for NAO 216100
Date:
This is to certify that:
1. As a (temporary) (full-time) (contractual) employee of the
______________________________________, I have need for access to and for usage
of certain written records, data files, and data banks pertaining to fisheries
matters; and that:
2. I am fully aware of the civil and criminal penalties prescribed by law for Federal
employees who would misuse or otherwise violate the confidentiality of such
data; and that
3. To gain the necessary access and usage, I request that I be considered as a
Federal employee, for the sole purpose of the laws regarding confidentiality of
data, but that no remuneration or other benefit shall accrue as a result.
_______________________________
Signature of Employees
_______________________________
Signature of Witness
https://www.noaa.gov/organization/administration/certificate-for-nao-216-100
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Certificate for NAO 216-100 | National Oceanic and Atmospheric Administration
Approved until otherwise notified; as per conditions of the Agreement of Access
dated ________________________, of which this certificate is made a part.
__________________________________________
Signature of Contractor's Representative
__________________________________________
Printed Name and Title of Contractor's Representative
Last updated May 11, 2021
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| File Type | application/pdf |
| File Title | NAO 216-100: Protection of Confidential Fisheries Statistics | National Oceanic and Atmospheric Administration |
| File Modified | 2024-06-06 |
| File Created | 2024-06-06 |