APPENDIX A to NAO 216-100
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 to NAO 216-100
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
(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,..."
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 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 to NAO 216-100
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
(Check one) ___ Other Federal ___ Subregional
___ State ___ Regional
___ Council Staff ___ Multiregional
___ Council Member ___ Special
___ Contractor
___ Grantee
Access Number:____________ _________________________
Signature
Designated NMFS Official
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APPENDIX D to NAO 216-100
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.
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.
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 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.
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.
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.
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 (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
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"Certificate" for
NAO 216-100
C E R T I F I C A T E
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
__________________________________________
Printed Name and Title of
Contractor's Representative
