Title 5 . Fish and Game

Chapter 39 . Transportation, Possession and Release of Live Fish; Aquatic Farming

Section 143. Onboard observer certification and decertification

5 AAC 39.143. Onboard observer certification and decertification

(a) To become certified as a crab or scallop onboard observer, a person must first obtain a crab or scallop onboard observer trainee permit and complete the trainee requirements of this section. The department shall issue a crab or scallop onboard observer trainee permit to a person who completes training and orientation specified by the department and who passes, with a score of at least 90 percent, an exam administered by the department.

(b) Before embarking on each observer trip, a crab or scallop observer trainee shall participate in a briefing with the department.

(c) An observer trainee permit expires as follows:

(1) a crab observer trainee permit expires on the earlier of the

(A) 36th day after the crab observer trainee has participated in a briefing for an observer trip if, during this 36-day period, the trainee has not participated in a briefing with the department; or

(B) 180th day after the crab observer trainee permit was issued; however, if a crab trainee observer has been deployed at least once during the first 180 days after the observer permit was issued, the trainee permit may be extended up to 365 days, at the discretion of the department;

(2) a scallop observer trainee permit expires on the earlier of the

(A) 36th day after the scallop observer trainee has participated in a briefing for an observer trip if, during this 36-day period, the trainee has not participated in a debriefing with the department; or

(B) 180th day after the scallop observer trainee permit was issued; however if a scallop trainee observer has been deployed at least once during the first 180 days after the observer permit was issued, the trainee permit may be extended, up to 270 days, at the discretion of the department.

(d) The commissioner may revoke a trainee permit for the reasons and under the procedures set out in (j) - (n) of this section. If revocation proceedings are pending on the date the permit would expire under (c)(1) of this section, the permit expires under that paragraph, and all rights under the permit cease. If revocation proceedings are pending on the date the permit would expire under (c)(2) of this section, the permit does not expire on that date, but is suspended until conclusion of the revocation proceedings. The trainee may not act under the permit during the period of suspension. The permit expires at the conclusion of the revocation proceedings unless the department determines that the permit should not be revoked and that the trainee should be certified as an observer under (f) of this section.

(e) A person whose crab or scallop observer trainee permit has expired or has been revoked may not be issued another trainee permit unless that person completes retraining and reorientation specified by the department and repasses, with a score of at least 90 percent, an exam administered by the department.

(f) The department shall certify as a crab or scallop onboard observer a trainee who

(1) has a valid crab or scallop observer trainee permit;

(2) has satisfactorily completed all observer trainee trip assigned tasks specified in writing by the department;

(3) has not engaged in behavior described in (j) of this section;

(4) has completed the number of observer trips that the department, in its discretion, determines from debriefing the trainee are necessary to prepare the trainee to perform as a crab or scallop onboard observer; and

(5) is not the subject of revocation proceedings under this section.

(g) A trainee may appeal a denial of certification as a crab or scallop onboard observer to the commissioner. The appeal must be in writing and must be received by the commissioner within 15 days after the denial. The commissioner or the commissioner's designee shall conduct an investigation and review, and may hold a hearing on the matter. If a designee conducts an investigation and review or holds a hearing, the designee shall recommend action to the commissioner. The commissioner shall make a decision within 45 days after receiving an appeal. The commissioner's decision under this section is the final administrative action.

(h) Until the commissioner's decision in an appeal under (g) of this section, the trainee may act under the terms of a valid trainee permit. If, while an appeal under (g) of this section is pending, the permit expires under (c) of this section or is revoked under (d) of this section, all rights under the permit cease.

(i) An onboard observer certification expires as follows:

(1) for a crab observer who has not functioned as a crab onboard observer for 12 consecutive months, the onboard observer certification expires; to become recertified after 12 consecutive months of not functioning as a crab observer, a person must successfully complete all trainee and certification requirements set out in (a), (b), (c), (e), and (f) of this section;

(2) for a scallop observer who has not functioning as a scallop onboard observer for 12 consecutive months, the onboard observer certification expires; to become recertified after 12 consecutive months or more of not functioning as a scallop onboard observer, a person must successfully complete all trainee and certification requirements set out in (a), (b), (c), (e), and (f) of this section.

(j) An onboard observer certification may be revoked for any one of the following reasons:

(1) significant or consistent failure to satisfactorily complete observer trip assigned tasks specified in writing by the department;

(2) impairment of the observer's ability to complete assigned tasks due to use of alcohol or a controlled substance;

(3) engaging in violent or criminal behavior that could endanger a person or property on the assigned vessel or that prevents the observer from performing tasks according to the standards of the onboard observer manual;

(4) soliciting or accepting items or services, other than basic life necessities, from an operator, owner, or crew member of a vessel to which the observer is assigned;

(5) failure to report known criminal behavior or cooperate with the investigation or prosecution of criminal behavior arising from fishing operations of the vessel to which the observer is assigned;

(6) engaging in emotional or sexual relations with a person on board the assigned vessel in a manner that interferes with the observer's ability to perform according to the standards of the onboard observer manual;

(7) repealed 7/21/99;

(8) exhibiting poor judgment or unprofessional behavior that significantly interferes with the observer's ability to perform assigned tasks or results in a breach of confidentiality, lack of observer coverage, or other actions detrimental to the observer program.

(k) A certified onboard observer may be demoted to trainee status for failure to satisfactorily perform assigned tasks specified in writing by the department, if the failure occurs after the department has notified the observer in writing that the observer's performance of the assigned tasks has been deficient.

( l ) The department shall notify an observer in writing of its intent to revoke a certification or to demote a certified onboard observer to trainee status. Notice may be served by personal delivery or by sending the notice by certified mail, return receipt requested. The department may revoke the certification or may demote a certified onboard observer to trainee status if, within 45 days after serving or sending the notice, the department does not receive a written objection from the observer that specifies the reasons why revocation or demotion should not occur.

(m) If the department receives an objection under ( l ) or (n) of this section, the commissioner, or the commissioner's designee, shall conduct an investigation and review, and may hold a hearing on the matter. If a designee conducts the investigation and review, or holds a hearing, the designee shall recommend action to the commissioner. Until the commissioner's decision under this subsection, the observer may act under the terms of the certification. If the commissioner determines that one or more of the grounds for revocation of the certification have been met, the commissioner may revoke the certification. If the commissioner determines that one or more of the grounds for demotion have been met, the commissioner may demote the onboard observer to trainee status. The commissioner's determination under this subsection is the final administrative action.

(n) If the commissioner determines that the performance of an onboard observer creates an immediate, substantial threat to the orderly conduct of the fishery or the conservation of fishery resources, the commissioner, upon notice to the observer, without first conducting a hearing, may suspend the certification or may demote the observer to trainee status. If a certification is suspended or if an observer is demoted to trainee status under this subsection, the commissioner shall notify the observer, in writing, and specify the grounds for the immediate suspension or demotion. The observer may submit a written objection to the department's action that specifies the reasons why the certification should not be suspended or why the demotion should not occur. If an objection is not received within 45 days after the date that the notice was mailed or served by personal delivery, the commissioner shall notify the observer that the certification is revoked or that the observer is retained on trainee status, subject to (b) - (h) of this section, as the final administrative determination. Notice under this subsection may be served by personal delivery or certified mail, return receipt requested, to the observer's last known address. If a timely objection is received, the provisions of (m) of this section apply. The suspension or demotion terminates, and the observer is returned to certified observer status, if, within 90 days after the department's receipt of an objection, the commissioner

(1) makes the final administrative determination to return the observer to certified observer status;

(2) fails to provide notice of the revocation or demotion under this section; or

(3) fails to make a final determination under (m) of this section that revokes the certification or demotes the observer to trainee status.

( o ) Repealed 12/26/97.

(p) In this section,

(1) "briefing" means a meeting between the department and a trainee in which the upcoming observer trip is discussed;

(2) "debriefing" means a meeting between the department and a trainee in which the trainee's last observer trip, and whether the trainee meets the criteria of (f) of this section, are discussed;

(3) "trainee" means a person who holds a crab or scallop onboard observer trainee permit and is a candidate to be a crab or scallop onboard observer.

History: Eff. 5/2/92, Register 122; am 11/25/92, Register 124; am 10/1/93, Register 127; am 12/26/97, Register 144; am 7/21/99, Register 151; am 8/24/2002, Register 163; am 8/25/2002, Register 163

Authority: AS 16.05.055

AS 16.05.251