Harvesters comment on Electronic Monitoring federal record data retention schedule
On Friday, September 4th, Harvesters submitted comments on the proposed data retention timeline for electronic monitoring data deemed to be federal records. You can view our comment letter below. A PDF of the letter can be found here.
September 4, 2020
Re: Electronic Monitoring Video Data that are Federal Records: Notice of Availability of NARA Records Disposition Schedule & Request for Public Comment
To Whom It May Concern:
We write to you today on behalf of our 18 member organizations and thousands of fishermen from Alaska to Maine. We are proud stewards and harvesters of America’s seafood, our nation's strategic protein reserve and a critical component of our country’s food security. As domestic harvesters of an American public resource, we recognize and embrace our stewardship responsibility and we strongly support accountability across all sectors of the fishing industry.
We appreciate the efforts of the NOAA’s National Marine Fisheries Service (NMFS) to clarify the requirements for data storage for Electronic Monitoring (EM) Video Data that are Federal Records through this request for public comment. However, we have several serious concerns outlined below.
We cannot begin this conversation about federal EM data retention requirements without first clarifying when and how raw EM data becomes a federal record. There remains considerable and unacceptable uncertainty about this and crafting a policy governing the retention requirements for federal EM data is premature. Despite repeated requests for clarification in recent years, we have yet to understand what triggers raw EM video data to be deemed a federal record. Additional clarity is absolutely necessary here.
The retention period for raw EM data that is considered a federal record should follow the 12-month minimum period reflected in the National Procedure 04-115-03, effective April 3, 2020, for non-federal record EM data.[1] That procedure was developed based on NOAA Fisheries’ experience to-date implementing fishery dependent data collection programs including logbooks, observers, and EM. It balances the ability to meet program objectives while seeking to minimize unnecessary cost burden on both the industry and NOAA, and we see no justifiable reason for straying from a shorter retention period that is nonetheless effective. Creating a different retention period now will only add cumbersome, unwarranted complexity to EM program design, and ultimately increase program costs. Additionally, allowing for a 5-year retention period only serves to perpetuate the pattern of delayed analysis, management, and enforcement by NMFS (see reduction in southern red hake TAL due to overage in 2017-2018 season).[2]
The raw EM data should be distinguished from the alpha-numeric readout created by data reviewers analyzing the raw EM data. The alpha-numeric readout contains the relevant data that is actually used by NMFS for the purposes of catch accounting and fishery management and is more suitable for the suggested 5-year retention period. There is no reason to retain the raw EM data for 5 years. Indeed, the June 19, 2020 National Archives memo emphasizes this point by finding that the raw EM video data has little research value and should be considered temporary files from the archival perspective. We agree and believe there is no additional justification for treating raw EM video data deemed a federal record any differently from non-federal EM records.
The National Procedure 04-115-03 referenced above outlines minimum retention requirements for non-federal EM records and clearly defines the start and end dates for the retention period. NOAA concluded that the shorter prescribed retention period provides sufficient for reasonable opportunity to access the raw EM video data to ensure data quality and compliance, and that the EM program could meet program goals and regional objectives. There is no reasonable justification for the proposed 5-year retention standards for raw EM video data, and the proposal is not consistent with the criteria set forth in the National Procedure governing non-federal EM records, which creates confusion and increases costs. Specifically:
a) The National Procedure for non-federal EM data retention clearly defines the beginning of the retention period as the close of the fishing year accounting period. The proposed retention period for raw EM data considered a Federal record provides no clear starting date for the 5-year retention period. 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.
b) The National Procedure for non-federal EM records establishes a 12-month minimum retention period to balance costs while “ensuring that EM data are available for NOAA Fisheries to meet program objectives to the extent practicable, including monitoring data quality and program compliance.” The proposed 5-year retention period for federal EM records is based on the statute of limitations and no justification is provided for subjecting federal EM records to a longer retention period.
c) The proposed 5-year retention requirement creates a new objective to collect raw EM data in support of open-ended enforcement opportunities until the statue of limitations expires, which is in direct conflict with the aims of existing EM programs. The National Procedure for non-federal raw EM data records is based on the EM program objectives and provides Councils the flexibility to extend the retention period beyond the 12-month minimum based on the EM program goals and regional data needs. The recommended 5-year retention period for Federal EM records as proposed is not tied to any existing program objectives, and runs counter to best-practice recommendations. Multiple forums and working groups tasked with developing best practices for EM programs have strongly discouraged the use of raw EM data for purposes other than what it was collected for, as doing so would greatly disincentivize participation in EM programs and undermine trust between industry and federal agencies.
Cost control is a critical component for all at-sea monitoring programs, regardless of the method of observation or who is paying. An enormous benefit of EM programs is that they are often cheaper than paying for human observers, effectively reducing operating costs for fishing vessel operators. By requiring a 5-year retention schedule, the cost of EM programs could rise dramatically, putting undue cost burdens on NOAA and industry. The Agency should be seeking to minimize the costs associated with data retention, regardless of whether the industry or the Agency is paying for its storage. Otherwise, EM programs risk being too costly to adopt and implement. There was no rationale provided as to why a more expensive data retention standard is required for EM data deemed a federal record.
There is continued lack of clarity about whether EM data being collected under EM programs currently in regulation will be considered federal or non-federal records and why. The National Archives should not promulgate a final policy regarding storage requirements for federal EM data until NOAA can clearly articulate whether raw EM data currently being collected under regulatory EM programs will be considered a federal record or non-federal record. Specifically:
a) Currently, Alaska has one of the largest regulated EM programs in the country. However, NOAA has yet to clarify if these records will be considered federal or non-federal records. Fishery participants, vessel operators, and other relevant stakeholders cannot appropriately comment on how this proposed retention policy will affect them without first understanding if it applies to them.
b) Changing the rules midstream causes distrust and frustration and undermines efforts to build a strong and cooperative relationship between NOAA and industry. NOAA must clearly articulate to the fishing industry and stakeholders how this current policy may impact existing programs before finalizing the National Archives retention standard. Failure to do so will leave existing programs little time to modify their program design to maximize program objectives and participation while minimizing program complexity and cost.
Implementing and following retention schedules for raw EM data, regardless of whether it is deemed a federal or non-federal record, will be the responsibility of the Regional Administrator or the EM provider. Therefore, there is no reasonable need for a single, national 5-year policy for federal records to reduce administrative burden. Instead, maintain the minimum 12-month retention requirement for both federal and non-federal raw EM data will simplify the administration and the cost of raw EM data.
While we appreciate efforts by NOAA to address outstanding questions regarding EM program implementation, establishing a 5-year retention schedule for federal EM data will create additional burdens and increase the complexity and cost of EM programs. We would rather see NOAA build on the existing framework outlined in National Procedure 04-115-03 and work with the industry to develop a sensible, workable retention schedule that applies to both federal and non-federal EM data, meets EM program objectives, and minimizes unnecessary program costs. Additionally, we ask that NOAA clearly articulate to the industry when and how EM video data becomes a federal record.
We support the Agency’s efforts to gather fishery-dependent data and we are pleased to advance accountability in our fisheries. However, this work cannot happen in a vacuum. NOAA must work with the fishing industry, consider our feedback, and make every possible effort to incorporate that feedback into program design. We stand ready to assist NOAA with this and other EM-related endeavors.
Thank you for your consideration.
Respectfully,
Bob Dooley Leigh Habegger
President Executive Director
[1] National Marine Fisheries Service Procedure 04-115-03. “Third-Party Minimum Data Retention Period in Electronic Monitoring Programs for Federally Managed U.S. Fisheries.” Effective April 3, 2020.
[2] FR Doc. 2020-18396. Filed 8-24-20.