Section 5 AAC 39.645 - Shellfish onboard observer program(a) The Board of Fisheries (board) finds that onboard observers provide the only effective means of collecting essential biological and management data from catcher-processor and floating processor vessels that process shellfish, and from an adequate number of catcher vessels that take shellfish in the commercial fisheries described in (d) of this section. These data are necessary to achieve the requirements set out in (Magnuson-Stevens Act) and the federal Fisheries Management Plan for Bering Sea/Aleutian Islands King and Tanner Crab, dated July 18, 1998, including the sustained yield of the shellfish resource without overfishing. The department has traditionally collected essential biological and management data at the point of shoreside landing immediately before processing. The evolution to processing by catcher-processor and floating processor vessels in particular fisheries, and the lack of an adequate number of catcher-processor vessels in particular Bering Sea and Aleutian Islands crab fisheries that are required by this section to have an on board observer on board the vessel, has seriously eroded the department's ability to adequately monitor harvests, assess the amount and type of by catch occurring in the fisheries, and collect biological data for inseason management. Onboard observers are the only practical data-gathering mechanism for these fisheries without unduly disrupting the operation of these fisheries. (b) Further, the board finds that, in particular shellfish fisheries, onboard observers provide the only effective means to enforce regulations that protect the shellfish resource. The board finds that catcher-processor catch statistics have clearly demonstrated that some operators of these vessels have routinely failed to comply with king and Tanner crab size limit regulations. Without onboard observer coverage, sublegal and female crab might be taken and processed immediately, making enforcement of size and sex regulations impossible.(c) The cost of providing these onboard observers for catcher vessels and at-sea processors in the commercial Bering Sea and Aleutian Islands registration areas crab and special permit fisheries, excluding the Norton Sound and Kotzebue Sound Sections, will be borne by the department through the harvest and sale of crab or will be borne directly by the vessel. The costs of the observer requirements for catcher-processor vessels that retain processed crab after the close of a fishery, under 5 AAC 34.031(e) (4) and 5 AAC 35.031(c) (4), shall be borne by the vessel. In those cases, the cost for the department-approved observer shall be borne by the vessel. The department will have full authority and responsibility for deploying onboard observers on any vessel participating in the commercial Bering Sea and Aleutian Islands Area crab fisheries, or any fisheries conducted under a commissioner's permit, as necessary for fishery management and data-gathering needs. No acceptable management alternatives exist other than disallowing operation of a vessel that is required, but refuses to cooperate with an onboard observer program. The onboard observer program set out in this section is compatible with and complementary to the existing observer programs of other agencies.(d) Based on the findings in (a) - (c) of this section, the department shall institute a mandatory onboard observer program, as follows: (1) for all vessels that process Tanner crab, red king crab, blue king crab, or golden king crab, a department approved crab fishery onboard observer must be on board the vessel and acting in the capacity of a crab fishery onboard observer for 100 percent of the time that the vessel is acting in the capacity of a catcher-processor or a floating processor;(2) the department shall require onboard observers for an adequate number of catcher vessels, or during the harvest of a percentage of the total harvest weight of each catcher vessel, participating in the rationalized Bering Sea/Aleutian Islands commercial crab fisheries harvesting IFQ, CDQ, or the Adak community allocation;(3) the Bering Sea/Aleutian Islands rationalized crab fisheries where IFQ, CDQ, or the Adak community allocation are established include (A) Registration Area O (Aleutian Islands) golden king crab, Registration Area O red king crab (west of 179° W. long.), Registration Area T (Bristol Bay) red king crab, Registration Area Q (Bering Sea) Pribil of District red and blue king crab, Registration Area Q St. Matthew Island Section of the Northern District blue king crab; and(B) Registration Area J (Westward), Bering Sea District C. opilio (snow crab) and C. bairdi Tanner crab, excluding the Norton Sound Section;(4) to meet catcher vessel observer coverage requirements, a department approved crab fishery onboard observer must be on board the catcher vessel and acting in the capacity of a crab onboard observer in the following registration areas during the following prescribed time periods: (A) for Registration Area O (Aleutian Islands), (ii) during harvest of 50 percent of the total golden king crab weight harvested by each catcher vessel while operating fishing gear east of 174° W. long., through May 15, 2015, during each of the three trimesters dated August 15 through November 15, November 16 through February 15, and February 16 through May 15, during each registration year, and beginning August 1, 2015, during each of the three trimesters dated August 1 through October 31, November 1 through January 31, and February 1 through April 30, during each registration year; and(iii) repealed 6/17/2018;(iv) during harvest of 50 percent of the total golden king crab weight harvested by each catcher vessel while operating fishing gear east of 174° w. long., during each of three trimesters dated August 1 through October 31, November 1 through January 31, and February 1 through April 30, during each registration year; and (v) during harvest of 50 percent of the total golden king crab weight harvested by each catcher vessel while operating fishing gear west of 174° W. long., during each of three trimesters dated August 1 through October 31, November 1 through January 31, and February 1 through April 30, during each registration year;(B) for Registration Area Q (Bering Sea), (i) during harvest of 100 percent of the total red and blue king crab weight harvested by each catcher vessel while operating fishing gear in the Pribilof District, during each registration year; and(ii) during harvest of 100 percent of the total blue king crab weight harvested by each catcher vessel while operating fishing gear in the St. Matthew Island Section of the Northern District, during each registration year; (C) for Registration Area T (Bristol Bay), during harvest of 20 percent of the total red king crab weight harvested by each catcher vessel while operating fishing gear, during each registration year, or the department may randomly select 20 percent of the catcher vessels harvesting Bristol Bay red king crab to carry onboard observers for 100 percent of the fishing time of each selected catcher vessel;(D) for Tanner crab Registration Area J (Westward), Bering Sea District, (i) during harvest of 30 percent of the total C. opilio (snow crab) weight harvested by each catcher vessel while operating fishing gear, during each registration year, or during a period when the department randomly selects between 30 percent and 100 percent of the catcher vessels harvesting Bering Sea C. opilio (snow crab) to carry onboard observers for 100 percent of the fishing time of each selected catcher vessel; and(ii) during harvest of 30 percent of the total C. bairdi Tanner crab weight harvested on each catcher vessel while operating fishing gear during each registration year or during a period when the department randomly selects between 30 percent and 100 percent of the catcher vessels engaged in directed harvest of C. bairdi Tanner crab to carry onboard observers for 100 percent of the fishing time of each selected catcher vessel, unless a catcher vessel harvests C. bairdi Tanner crab as incidental catch during directed fishing for either Bristol Bay red king crab or Bering Sea snow crab, where observer coverage requirements for those directed fisheries would apply to the Tanner crab incidental harvest;(5) onboard observers are required for the number of catcher vessels that the department determines are adequate to participate in the non-IFQ, non-CDQ, or non-Adak community allocation commercial crab fisheries that take shellfish in the following Bering Sea/Aleutian Islands shellfish fisheries: (A) Registration Area O (Aleutian Islands), red king crab fishery east of 179° W. long.;(B) Registration Area J (Eastern Aleutian and Western Aleutian Districts), Tanner crab fishery; (C) Registration Area J (Westward), hair crab, snails, or other miscellaneous shellfish commercial fisheries that require a permit issued by the commissioner under 5 AAC 38.062;(6) for vessels that take red or blue king crab in the Norton Sound Section of Registration Area Q, the department may require onboard observers on selected vessels;(7) for vessels that take red or blue king crab in the Kotzebue Sound Section of Registration Area Q, the department may require onboard observers on selected vessels;(8) the department may waive the onboard observer requirement for a vessel that processes crab at a place where a department sampler is located, if the sampler has reasonable access to the vessel and if the vessel is tied to a dock; all other vessel requirements remain in effect; the department may also waive the onboard observer requirement when an observer is taken ill or is injured while on board the vessel and is unable to function, or when in the judgment of the department the observer is unavailable despite the good faith effort of the vessel operator and for a reason that is beyond the control of the vessel operator; a request for a waiver and all supporting documentation must be submitted in writing; (9) the department may place a representative of the department on board a processing vessel to perform tank inspections, or to verify the performance of an observer, without waiving the observer requirement.(e) In addition to the permit requirements in 5 AAC 34.055 and 5 AAC 35.055, the permit for a vessel that participates in a Tanner crab, red king crab, blue king crab, or golden king crab fishen: must require that an observer, approved by the department be briefed by the department for the fishery in which the vessel participates and that the observer be on board the vessel before the vessel obtains a tank inspection- before the vessel takes crab, and before the start of and during all processing operations, except for when a vessel has checked out of a fishery under 5 AAC 39.670(c)(3)(G) and has notified the department of its intent to deploy gear consistent with 5 AAC 39.670(c)(3)(E). For the purposes of 5 AAC 34.055, 5 AAC 35.055) and 5 AAC 39.140) the observer is a representative of the department. All information collected by the observer is confidential property of the department. The department shall develop guidelines for approval of observers, including training requirements, conflict-of-interests standards, data collection schedules and standards, record keeping and reporting requirements, and other criteria needed to ensure accurate and objective reporting.(f) Based on the findings in this section, it is the board's intent that a credible, fair, and enforceable observer program be implemented before the September 25, 1988 opening of the Bristol Bay red king crab fishery. Information gathered in this observer program is intended to promote both conservation and enforcement.(h) An employee or crewmember of a commercial crab catcher-processor, crab floating processor, crab catcher vessel, or scallop vessel may not be employed as a shellfish onboard observer for 12 consecutive months after the person's last day of employment on the crab catcher-processor, crab floating processor, crab catcher vessel or scallop vessel.(i) When a vessel is required to carry an onboard observer, the vessel owner, owner's agent, or operator shall (1) contract and pay for onboard observers through an independent contracting agent, unless the onboard observer is provided by the department; (2) provide at least 48 hours advance notice to the contracting agent of an observer's arrival at a department area office for debriefing;(3) when carrying an observer trainee and within sufficient time to allow for debriefing before expiration of the trainee permit, ensure that the trainee is returned to the port where the department office responsible for management of the fishery the observer's assigned vessel participates in; (4) provide adequate food and accommodations for the observer equal to those provided for the vessel's crew;(5) provide to the observer daily catch information, including areas fished, number and pounds of shellfish landed, number of pots pulled by registration area, and other information specified by the department; (6) provide a safe work area, necessary gear, opportunity, and sufficient time to allow the observer to adequately sample catch as specified by the department; (7) ensure that the transfer of an observer between vessels is conducted in a timely manner, under safe conditions, and with the agreement of the observer involved;(8) assure observer access to single side band (SSB) radio, fax, telex, or telephone so that catch reports from observers are received at the area management office as specified by the department;(9) notify the observer before shellfish are brought on board to allow sampling, unless the observer specifically requests not to be notified; (10) provide proof of compliance with current United States Coast Guard Commercial Fishing Vessel Safety Examination requirements;(11) maintain safe conditions on the vessel for the protection of observers and adhere to all U.S. Coast Guard and other applicable rules, regulations, or statutes pertaining to safe A operation of the vessel.(j) An independent contracting agent that provides onboard observers under this section shall (1) employ observers in compliance with all applicable state and federal laws and provide all necessary administrative and payroll functions for the observer employees;(2) secure contracts directly with vessel owners and operators in pay-as-you-go fisheries;(4) provide the department with complete and legible transcripts, resumes, and other work history documents to qualify observer candidates no less than 30 days before training;(5) provide observer training to meet certification requirements contained in 5 AAC 39.143;(6) provide observer sampling equipment for use during training classes and at the examinations; (7) provide all logistical support for observers, including room and board, travel to and from vessels, travel to and from the department examinations, and briefings and debriefings;(8) assign observers to vessels without regard to requests from vessel owners and operators for, or for exclusion of, a specific observer; any request for, or for exclusion of, a specific observer shall be reported to the department by the contracting agent;(9) provide, for each observer deployment, a complete set of all necessary observer sampling equipment as specified, in writing, by the department for an observer to complete a trip assignment;(10) provide the department no less than 48 hours advance notice of an observer's scheduled arrival at the port where the department office responsible for management of the fishery the observer's assigned vessel participates in for briefings and debriefings;(11) schedule all observer briefing and debriefing appointments directly with the department;(12) maintain records of observers' scheduled briefing and debriefing dates, and observers' time on board a vessel to ensure compliance with maximum trip limits for trainee observers as specified in 5 AAC 39.143(c), and fully certified observers as specified in 5 AAC 39.142(a) (8); (13) ensure that no less than 65 percent of observer deployment days per year per contractor are performed by certified observers.(l) When a vessel is required to carry an onboard observer, 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 may not (1) impede, or interfere with an observer carrying out observer duties; (2) interfere with or bias the sampling procedure employed by an observer, including physical or mechanical interference, or sorting or discarding of catch before sampling;(3) tamper with, destroy, or discard an observer's collected samples, equipment, records, photographic film, papers, or personal effects without the express consent of the observer; or(4) harass an observer by conduct that has sexual connotations, or by conduct that creates an intimidating, hostile, or offensive environment; for the purpose of this paragraph, "harass" means words, conduct, or action that being directed at the observer, annoys, alarms, or causes emotional distress in the observer.(m) In this section, "pay-as-you-go" means the cost of the observer is paid by the vessel operator.Eff. 7/12/86, Register 99; am 7/23/88, Register 107; em am 9/20/88 - 1/17/89, Register 108; am 7/30/89, Register 111; am 9/19/90, Register 115; em am 3/19/91 - 7/16/91, Register 118; am 5/2/92, Register 122; am 6/24/93, Register 126; am 11/3/95, Register 136; am 9/1/96, Register 139; am 12/26/97, Register 144; am 7/21/99, Register 151; am 8/31/2000, Register 155; am 7/31/2003, Register 167; am 8/14/2005, Register 175; am 8/28/2005, Register 175; am 7/16/2006, Register 179; am 9/12/2008, Register 187; am 7/16/2011, Register 199; am 6/27/2014, Register 210, July 2014; am 7/22/2017,Register 223, October 2017; am 6/17/2018,Register 226, July 2018; am 9/19/2019,Register 231, August 2019; am 6/21/2020, Register 234, July 2020