Consolidated Reply
Date: May 10, 2021
Subject: DAA-0370-2020-0001, Department of Commerce, National Oceanic and
Atmospheric Administration, Electronic Monitoring Data
INTRODUCTION
Summary
On July 21, 2020, the National Archives and Records Administration (NARA) published notice
in the F ederal Register of proposed schedule DAA-0370-2020-0001 submitted by the National
Oceanic and Atmospheric Administration for records related to Electronic Monitoring Data, and
opened it for public comment. NOAA proposed this records schedule for raw, or unprocessed,
electronic monitoring (EM) data that is collected by cameras and other components of an EM
system deployed on federally permitted fishing vessels and that is received by the National
Marine Fisheries Service (NMFS), an agency within NOAA.
All comments received during the public comment period were considered and are now part of
the administrative record, and are available to view here: NARA-20-0016
The final approved records schedule will be publicly available in NARA’s Records Control
Schedule (RCS) repository at https://www.archives.gov/records-mgmt/rcs/ . The RCS contains all
schedules approved since 1973.
Public Comment and Analysis Methodology
Public comments received from Regulations.gov, during the comment period, were reviewed by
NARA appraisal staff. Comments were analyzed to associate the comment with a particular item
or topic in the schedule, and comments that expressed similar concerns were grouped together.
Concern statements were drafted to represent each grouping of comments, along with responses
that discuss the final decisions made by NARA, including noting any changes we have made to
the proposed records schedule. This report presents public concerns arranged by topic, along
with a representative sample of supporting quotes, and NARA’s response.
For further information, please contact Records Management Operations (ACR) by email at
request.schedule@nara.gov; by phone at 301-837-1799; or by mail at National Archives and
Records Administration; 8601 Adelphi Road; College Park, MD 20740-6001.
COMMENTS AND RESPONSES
Concern 1: It is unclear if or when raw Electronic Monitoring (EM) Data is a federal
record
Sample Quotes:
“Additionally, it is not clear how raw EM data initially deemed a non-Federal record but later
accessed in a manner triggering a Federal record designation would be treated.”
Alaska Groundfish Data Bank, Aleutians East Borough, and United Catcher Boats
“We cannot begin this conversation about federal EM data retention requirements without first
clarifying when and how raw EM data becomes a federal record.”
Seafood Harvesters of America
Response:
Raw EM data made or received by NOAA/NMFS is considered a federal record. Likewise, any
raw EM data that is not received by NMFS is not a federal record.
In some EM programs, the fishing industry directly contracts with an EM service provider, or
acts as their own service provider, and is responsible for maintaining their raw EM data and
paying for the associated storage costs. In cases where the fishing industry may be required to
submit raw EM data to NMFS, the copy of the raw EM data that NMFS receives is a federal
record. Raw EM data that is retained by the fishing industry will be subject to the specific
third-party data retention requirements established for the applicable EM program, not
DAA-0370-2020-0001.
DAA-0370-2020-0001 solely covers federal records. Non-federal EM data is outside the scope
of this schedule, and NARA’s scheduling authority. NMFS intends to issue guidance clarifying
the distinctions between federal and non-federal raw EM data in a forthcoming NMFS
procedural directive on how information laws such as the Federal Records Act can apply to EM
Data.
Concern 2: The proposed retention period is too long
Sample Quotes:
“We believe that the proposed five‐year retention period is unnecessarily long and will increase
costs for EM deployment and prevent the widespread adoption of EM.”
Environmental Defense Fund
“By requiring a 5-year retention schedule, the cost of EM programs will rise dramatically. No
rationale is provided as to why a more expensive data retention standard is required for EM data
deemed a Federal record.”
Alaska Groundfish Data Bank, Aleutians East Borough, and United Catcher Boats
Response:
Many of the submitted comments raised concerns about expense and enforcement issues linked
to the proposed five-year retention period.
The five-year retention period for raw EM data is based on the five-year limitation on
enforcement of alleged violations of the Magnuson–Stevens Fishery Conservation and
Management Act and other authorities administered by NOAA. A five-year retention ensures
that NOAA has the available raw data to conduct oversight of EM programs and meet its legal
and enforcement obligations as a regulatory agency.
At present, NOAA is required to store raw EM data indefinitely as unscheduled records.
DAA-0370-2020-0001 will shorten that retention to five years for raw EM data that are a Federal
record, which may result in some decreased costs for storing raw EM data.
Concern 3: The retention period is inconsistent with other NOAA guidance on EM
Sample Quotes:
“The retention period for raw EM video data that is ultimately considered a federal record
should not exceed the retention period for non-federal record EM data. This is currently outlined
in the 12-month minimum period outlined in the National Procedure 04-115-03, effective April 3,
2020, for non-federal record EM data.”
Cape Cod Commercial Fishermen’s Alliance
Response:
The NMFS Procedural Directive 04-115-03 sets a minimum retention of 12 months that applies
to raw EM data that are not Federal records and are maintained by the fishing industry. This
retention period is based largely on trying to minimize costs to the fishing industry. Please see
the link below for more information:
https://www.fisheries.noaa.gov/national/laws-and-policies/science-and-technology-policy-direct
ives.
DAA-0370-2020-0001 sets a five-year retention schedule for raw EM data that are Federal
records based largely on the legal requirements discussed in the response to Concern 2. The
difference in retention requirements for Federal and non-Federal records is recognized, but a
five-year retention is necessary for NOAA to meet its business needs as a monitoring and
regulatory agency.
Concern 4: It is unclear when the retention period starts
Sample Quotes:
“The proposed retention period for raw EM data considered a Federal record provides no clear
starting date for the 5-year retention period.”
Midwater Trawlers Cooperative and United Catcher Boats
Response:
The retention period begins once the records have been cut off. This information is located in the
“Disposition Instructions” section of DAA-0370-2020-0001. In order to clarify the published
language in DAA-0370-2020-0001, the cutoff instructions were changed to “Cut off at the end of
the fishing year in which data was collected.” The forthcoming guidance from NMFS on how
information law can apply to raw EM data will provide more clarity on this concern.
Editor’s Note: This document refers to raw EM data produced by or received by NOAA Fisheries. The majority of EM records are in the custody of third parties and are generally retained for two years or less. Although the 5-year final schedule for federal record retention reflected herein has now been signed by the Archivist and is an active legal document, it is open for comment for 45 days from June 2nd, 2021.
