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;
(C) designate an agent in this state for
service of process;
(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.
(c) A
certified independent contracting agent shall submit a new conflict-of-interest
statement to the department
(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.
Notes
Authority:AS 16.05.251
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