NOAA Administrative Order 216-100

NOAA Administrative Order 216-100

PROTECTION OF CONFIDENTIAL FISHERIES STATISTICS

SECTION 1. PURPOSE.
.01 This Order:
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.
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 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
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.

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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 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;

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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 document; 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 after:
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;
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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;
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
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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 collecting State
agency; and
(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.
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.
04. Requests for Confidential Data. NMFS is authorized to collect data under various
statutes [See Appendix A]. Two types of statutes govern the disclosure of confidential data
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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.

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:
(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).

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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 surplus fishery products.
NMFS is responsible for providing confidential data and 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;

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(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).
.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.

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SECTION 8. EFFECT ON OTHER ISSUANCES.
None.

Director, Office of Administration

Office of Primary Interest:
National Marine Fisheries Service
Office of Research and Environmental Information
Fisheries Statistics Division (F/RE1)

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APPENDIX A
STATUTES
NMFS is authorized to collect biological, economic, social, and other data under the
following statutes, among others:
a. Agricultural Marketing Act of 1946, 7 U.S.C. 1621-1627;
b. Agricultural Trade Development and Assistance Act of 1954, 7 U.S.C. 1704;
c. Anadromous Fish Conservation Act, 16 U.S.C. 757-757f;
d. Atlantic Coast Fish Study for Development and Protection of Fish Resources, 1950, 16
U.S.C. 760a;
e. Atlantic Tunas Convention Act of 1975, 16 U.S.C. 971- 971i;
f. Eastern Pacific Tuna Licensing Act of 1984, 16 U.S.C. 972-972h;
g. Endangered Species Act, 16 U.S.C. 1531-1543;
h. Farrington Act of 1947, 16 U.S.C. 758-758d;
i. Fish and Wildlife Act of 1956, 16 U.S.C. 742(a) et seq;
j. Fish and Wildlife Coordination Act of 1934, 16 U.S.C. 661-666c;
k. Fishery Market News Service Act of 1937; 50 Stat. 296;
l. Fur Seal Act, 16 U.S.C. 1151-1175;
m. Interjurisdictional Fisheries Act of 1986, 16 U.S.C. 4101 et seq;
n. Magnuson Fishery Conservation and Management Act, 16 U.S.C. 1801 et seq;
o. Marine Mammal Protection Act, 16 U.S.C. 1361 et seq;
p. Marine Migratory Gamefish Act of 1959, 16 U.S.C. 760e;
q. South Pacific Tuna Act of 1988, 16 U.S.C. 973-973n; and
r. Tuna Conventions Act of 1950, 16 U.S.C. 951-961.
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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 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

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(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 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,..."

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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 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;
(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
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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)
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;..."

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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:
(Check one) ___ Other Federal
___ State
___ Council Staff
___ Council Member
___ Commission Staff
___ Contractor
___ Grantee

Access Number:____________

___ Source
___ Subregional
___ Regional
___ Multiregional
___ Special

_________________________
Signature
Designated NMFS Official
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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
meanings that are prescribed in 50 CFR 601.2.

below have the

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.
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
other than a duly authorized
NMFS
or_________________________________________
employee is forbidden unless specifically provided for
herein. A list of _____ employees and agents
authorized to receive the data is included in this
agreement. Any additions or deletions must be
approved by the NMFS _______________ Regional Office.
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agreement to anyone

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.
c. All print-outs of raw, unaggregated data will be
kept under lock and key by the contractor and by
agent(s) (Principal Investigators)
of the contractors.

the principal

d. Contractor employees and agents will be required
to sign out for required print-outs 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.
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f. All print-outs and other documents containing
confidential data, when surplus to the needs of
employees or agents, will be
returned to NMFS.

the contractor

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 subject
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
1. A current identification of Federally collected
specified in the agreement.
2.

on request:

fishery-related data as

A means of access to the data as currently
available 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

21

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.

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
22

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 (60-day) written
notice by either
party for cause or (3) the operation/terms of this agreement,
whichever shall first occur.

______________________________ __________________________________
Signature for Contractor
Printed Name & Title
Date

______________________________ ___________________________________
Signature for NMFS
Printed Name & Title
Date

23

CERTIFICATE
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 Employee
Signature of Witness

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

__________________________________________
24

Printed Name and

Title of
Contractor's Representative

25