5 AAC 39.144. Onboard observer independent contracting agent certification and decertification

(a) To become certified or to renew certification as an independent contracting agent authorized to provide onboard observers, an applicant must meet the requirements of this section. The department shall issue or renew an independent contracting agent certificate only after

(1) the applicant has completed a written application on a form provided by the department; in this application the applicant shall

(A) verify that the applicant is familiar with the requirements of 5 AAC 39.141 - 5 AAC 39.143, 5 AAC 39.146, 5 AAC 39.645, 5 AAC 39.646, and this section for onboard observers and contracting agents;

(B) acknowledge that the applicant's certification as an independent contracting agent will be subject to revocation by the commissioner at any time under the procedures set out in (e) - (j) of this section;

(D) provide a current mailing address, daytime business phone number, and a contact or message phone number;

(E) provide all other information requested by the department to assist the department in administration, management, or enforcement of its onboard observer program or certification of onboard observer independent contracting agents;

(F) verify that the applicant is not precluded from certification under (i) of this section;

(2) the applicant has completed a written conflict-of-interest statement on a form provided by the department;

(3) the department has reviewed the application and the conflict-of-interest statement submitted under this section and has determined that the application is complete and that no conflict of interest appears to exist under 5 AAC 39.142;

(4) the department has determined that certification is not precluded under (i) of this section.

(b) An independent contracting agent's certification expires on December 31 of the year it was issued unless a certification renewal application is received by the department before December 31 of that year, or unless the certification has been previously canceled or revoked under this section. The department shall renew a certification if a completed certification renewal application is timely received by the department and no revocation proceedings are pending against the contracting agent on the date the certification would expire or the application is received, and the department has determined that the applicant meets the requirements of this section.

(1) within 30 days after any event that would change any information provided in the contracting agent's most recent conflict-of-interest statement;

(2) when submitting a certification renewal application described in (b) of this section; or

(3) at any time upon request by the department.

(d) The commissioner may revoke an independent contracting agent's certification as provided in (e) - (h) of this section. If revocation proceedings are pending on the date the certification would expire under (b) of this section, and if a certification renewal application has been received by the department, the certification will not expire on that date, but is suspended until the conclusion of the revocation proceedings. If a certification renewal application is received by the department before the contracting agent's certification would expire under (b) of this section and revocation proceedings begin after the certification has been renewed, the contracting agent may continue to operate under its existing certification until the conclusion of the revocation proceedings, unless a suspension has occurred under (g) of this section.

(e) An independent contracting agent's certification may be revoked for any of the following reasons:

(1) violation of conflict-of-interest standards in 5 AAC 39.142(b) by the contracting agent;

(2) failure to require employees to follow conflict-of-interest standards;

(3) a substantial violation of the requirements of 5 AAC 39.141, 5 AAC 39.143, 5 AAC 39.146, 5 AAC 39.645, 5 AAC 39.646, and this section;

(4) any other violation of the requirements of 5 AAC 39.141 - 5 AAC 39.143, 5 AAC 39.146, 5 AAC 39.645, 5 AAC 39.646, and this section that is not described in (1) and (3) that is not cured within a reasonable time specified by the department after the department has notified the contracting agent, in writing, of the violation;

(5) failure to respond, within the time specified by the department, to a request from the department for information, unless within the specified time the contracting agent demonstrates to the department that the request is unreasonable;

(6) failure to maintain an effective means of communication between the contracting agent and the department;

(7) failure to report known violations of conflict-of-interest standards or known attempts to violate conflict-of-interest standards;

(8) failure to report known criminal behavior by an observer or criminal behavior arising from fishing operations of the fishing vessel to which the contracting agent has assigned an observer;

(9) failure to cooperate with investigation or prosecution of an observer employed by the contracting agent or a fishing vessel for which the contracting agent has provided an observer.

(f) The commissioner shall notify an independent contracting agent, in writing, of its intent to revoke the contracting agent's certification. Notice under this subsection may be served by personal delivery or by sending the notice by certified mail, return receipt requested, to the contracting agent or to the agent's designee for service of process in this state. The commissioner may revoke the certification without further proceedings if, within 45 days after the date that the notice was mailed or served by personal delivery, the department does not receive a written objection from the contracting agent that specifies the reasons why the revocation should not occur.

(g) If the commissioner determines that the performance of an independent contracting agent creates an immediate, substantial threat to the orderly conduct of the fishery or the conservation of fishery resources, the commissioner, upon notice to the contracting agent, without first conducting a hearing, may suspend the certification. If a certification is suspended under this subsection, the commissioner shall notify the contracting agent in writing and specify the grounds for immediate suspension. The contracting agent may submit a written objection to the department's action that specifies the reasons why the revocation 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 contracting agent that the certification is revoked, subject to (a) - (c) and (i) 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 contracting agent or to the agent's designee for service of process in this state. If a timely objection is received, the provisions of (h) of this section apply. The suspension terminates within 90 days after the department's receipt of an objection, if the commissioner

(1) makes the final administrative determination to withdraw the suspension; or

(2) fails to make a final determination under (h) of this section.

(h) If the department receives a timely objection under (f) or (g) of this section, the commissioner, or the commissioner's designee, shall conduct an investigation and review and may hold a hearing on the matter. The contracting agent's certification shall remain in effect during an investigation and review unless it is suspended under (g) of this section. If a designee conducts the investigation and review or holds a hearing, the designee shall recommend action to the commissioner who may then adopt it as the final administrative determination. If the commissioner disagrees with the recommendation, the commissioner may reject the recommendation and review the record or conduct a new hearing to make a final administrative determination. If the commissioner determines that one or more of the grounds for revocation of certification have been met, the commissioner may revoke the certification. The commissioner's determination under this subsection is the final administrative action.

(i) An independent contracting agent whose certification has been revoked under this section may not apply for a new certification for a period of one year following revocation. If the contracting agent is a partnership or corporation, its partners, shareholders who hold 20 percent or more of the corporation's outstanding stock, officers, directors, any person with management authority over the activity or activities that significantly contributed to the revocation may not apply for a contracting agent certification for a period of one year following revocation.

(j) The department may cancel an independent contracting agent's certification upon the request of the contracting agent. The department, in its discretion, may proceed with revocation proceedings despite a request for cancellation from a contracting agent.

(k) The provisions of (a) - (j) of this section do not apply until April 1, 1998 to an independent contracting agent approved by the department before the effective date of this section.

History: Eff. 12/26/97, Register 144

Authority: AS 16.05.251

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