NAO 216-100: Appendix D – MODEL


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