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 debriefing 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 department may revoke a trainee
permit for the reasons listed under(j) of this sections or at the department
discretion, and under the procedures set out in (27-(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 assigned
trainee tasks specified by the department in writing, or assigned verbally in
person, or during radio, telephone, or other electronic communication
transmission while the observer is deployed to a vessel;
(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
if a shellfish observer has not functioned as a shellfish onboard observer for
18 consecutive months; To become recertified after 18 consecutive months of not
functioning as a shellfish 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) failure to satisfactorily complete all
assigned tasks specified by the department in writing, or assigned verbally in
person, or during radio, telephone, or other electronic communication
transmission while the observer is deployed to a vessel;
(2) use, possession, or being under the
influence of alcohol or an illegal controlled substance on board the assigned
vessel, boarding any vessel under the influence of alcohol or an illegal
controlled substance, missing an appointment with the department due to alcohol
or an illegal controlled substance, or attending an appointment with the
department under the influence of alcohol or an illegal controlled
substance;
(3) engaging in violent
or criminal behavior, including behavior that may 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
crewmember 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 sexual
relations with an employee, operator, crewmember, officer, director, agent,
owner, or shareholder of the vessel or any entity with ownership of, or
management authority over, the vessel to which the observer is assigned while
the observer is deployed to a vessel;
(7) repealed 7/21/99;
(8) exhibiting poor judgment or
unprofessional behavior that 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 by the department.
(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 an observer in which the upcoming observer trip is
discussed;
(2) "debriefing" means a
meeting between the department and
(A) an
observer in which the observer's collected data are reviewed;
(B) a trainee observer to determine if the
trainee wiII be granted certification status under (f) of this
section;
(3) "trainee"
means a person who holds a crab or scallop onboard observer trainee permit and
is a candidate to be a certified crab or scallop onboard observer.
Notes
Authority:AS 16.05.055
AS 16.05.251
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