Current through August 30, 2024
(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),
(i) repealed
6/17/2018;
(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;
(3) repealed 6/27/2014;
(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.
Authority:AS
16.05.251
