18 AAC 31.945. Delegation of authority

(a) Except as provided in (h) of this section, the department may delegate to a municipality the authority to implement the requirements of this chapter that apply to a food service or to a market, upon approval of an application for delegation.

(b) A municipality must submit an application for delegation to the director. The application must include the following information:

(1) a copy of the municipality's ordinances governing food services or markets;

(2) a description of pertinent enforcement processes, available to the municipality administratively and through initiation of court action, to ensure compliance with the municipality's ordinances and with the requirements of this chapter that apply to a food service or to a market;

(3) a description of the administrative organization, staff, funding levels, and other resources that are available to the municipality to administer and enforce the municipality's requirements;

(4) information about the existence of insurance to cover any personal injury or property damage;

(5) other information that the director considers necessary to the department's decision whether to delegate the department's authority.

(c) Within 90 days after receipt of a complete application for delegation, the department may delegate to a municipality the authority to implement the requirements of this chapter that apply to a food service or to a market, if the department finds, after review of the information submitted under (b) of this section, that

(1) the municipality's ordinances governing food services or markets are at least as stringent as the requirements of this chapter;

(2) the municipality has sufficient resources and enforcement authorities to ensure uniform compliance with the requirements of this chapter that apply to a food service or to a market; and

(3) the state is adequately protected from liability.

(d) For a delegation that the department has approved under (c) of this section to be valid, the director and the individual with administrative management authority for the municipality must sign the delegation. The delegation must include, at a minimum, terms and conditions that set out the following:

(1) the right of the department periodically to audit the municipality to ensure compliance with the terms and conditions of the delegation;

(2) the right of the department and the municipality to review and comment on proposed changes to regulations or ordinances governing food services or markets;

(3) the right of the department to require an annual report summarizing the food services or markets that the municipality permitted or otherwise approved and inspected, including information on the findings of the inspections to allow the department to report on food safety statewide;

(4) the requirement that the municipality enforce the municipality's ordinances and that the ordinances be at least as stringent as the requirements of this chapter that apply to a food service or to a market;

(5) indemnification of the state against any liability, losses, or damages arising out of or in any manner connected with the department's delegation under this section; and

(6) the right of the department to terminate the delegation if the department determines

(A) a threat to public health or consumer protection; or

(B) that the delegation is not in the public interest.

(e) If the department determines, based on an audit conducted under (d) of this section or other information, that the municipality is not in compliance with the terms and conditions of the delegation or with this chapter, the department will

(1) notify the municipality in writing of

(A) the areas in which the department has determined that the municipality is failing to comply; and

(B) the reasons for the department's determination; and

(2) provide the municipality 30 calendar days after receiving the notification under (1) of this subsection to

(A) explain why the municipality disagrees with the department's determination; or

(B) outline the steps that the municipality is taking or proposes to take to correct the areas of noncompliance.

(f) After reviewing the information received under (e) of this section, the department will, as necessary to serve the interests of public health and consumer protection,

(1) revoke the delegation if the department finds that the municipality is not in compliance with the terms and conditions of the delegation, or with this chapter, and that the municipality is not likely to come into compliance;

(2) periodically review the actions of the municipality until compliance is achieved, if the department finds that the municipality is not in compliance with the terms and conditions of the delegation but that the municipality is taking sufficient steps to come into compliance; or

(3) modify the delegation.

(g) If the department modifies or revokes a delegation under this section, the department will send a notice to the municipality stating that, based on the department's written findings under (f) of this section,

(1) the delegation will be revoked or modified, effective immediately, unless the notice gives a specific date on which the revocation or modification becomes effective; and

(2) the municipality may not continue to enforce the department's authority after the effective date of the revocation or modification;

(h) A delegation under this section does not apply to food that is processed and intended for interstate commerce.

(i) A municipality may not further delegate a delegation under this section.

History: Eff. 12/19/99, Register 152; am 6/28/2001, Register 158

Authority: AS 17.20.005

AS 17.20.072

AS 44.46.020

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