18 AAC 34.940. Enforcement and compliance

(a) If the department finds or has cause to believe that a person is violating or about to violate a statute, regulation, lawful order, or a permit or approval, the department will, applying its enforcement discretion, take compliance action based on the nature and severity of the violation and the person's history of noncompliance.

(b) As part of a compliance action, the department will provide notice of the violation in person or by certified mail unless immediate department action is warranted by a critical violation.

(1) require that the processor provide the department with product for testing under 18 AAC 34.125, subject to the fees required by 18 AAC 34.905;

(2) require that the processor provide the department with copies of the HACCP plan, the sanitation plan, and any other records the department considers necessary in evaluating compliance with this chapter;

(3) detain as described in (e) of this section any potentially violative seafood product, food ingredient, or packaging material; or

(4) require a stoppage of processing and immediate correction of a critical violation.

(d) a processor shall correct violations as follows:

(1) if the score

(A) is between 76 and 85, violations must be corrected within

(i) 14 days for thermal, smoked, or ready-to-eat processed food; or

(ii) 60 days for fresh, frozen, salted, or shellfish products; or

(B) is 75 or below, or if a facility has repeated violations that indicate a general disregard for sanitation, product safety, or wholesomeness, violations must be corrected within

(i) two days for thermal, smoked, or ready-to-eat processed food;

(ii) 30 days for fresh, frozen, salted, or shellfish products; and

(2) the processor's facility is subject to a compliance reinspection; the department will, in its discretion, based on its budget and the staffing needs of its other projects, conduct the compliance reinspection to verify the processor's correction of a critical violation or of other violations that are reflected in the facility's score; a compliance reinspection is subject to the processor's payment of a fee under 18 AAC 34.900(e) .

(e) The department will, applying its enforcement discretion, detain a product if it finds, or has cause to believe, a seafood product for food ingredient used to process a seafood product is adulterated, misbranded, or processed or harvested in violation of this chapter. Detention under this subsection is subject to the following procedures:

(1) the department will

(A) order affixed to the seafood product or food ingredient a "detained" tag or other appropriate marking that gives notice that the seafood product or food ingredient has been detained, and warn against the removal or disposal of the seafood product or food ingredient without permission from the department or a court; a person may not move, reprocess, relabel, destroy, or otherwise terminate detention of the seafood product or food ingredient without the department's written consent;

(B) issue a notice of detention and inform the immediate custodian or owner of conditions under which the detention can be terminated; and

(2) the immediate custodian or owner may request a hearing within 30 days after receipt of the notice of detention; the department will hold a hearing within five working days after receipt of a request and will issue its final decision within five working days after the hearing, or within 35 days after the date of the notice of detention, whichever is later; for fresh seafood product, the department will make every attempt, based on its budget and the staffing needs of its other projects, to conduct an expedited hearing and issue an expedited decision;

(3) if, after issuing a notice of detention, the department finds that the seafood product or food ingredient is not adulterated, misbranded, or processed or harvested in violation of this chapter, the department will notify the immediate custodian or owner and order the detention terminated; and

(4) if the department finds that the seafood product or food ingredient is adulterated, misbranded, or processed or harvested in violation of this chapter, the department will notify the immediate custodian or owner by personal service or certified mail of the corrective action necessary, which may include destruction of the seafood product or food ingredient.

(f) The department will attempt to work with a processor to resolve noncompliance. If, after an attempt to resolve noncompliance, the department believes further attempts would not be in the public interest, or that the noncompliance represents an imminent health hazard, the department will, applying its enforcement discretion, modify, suspend, or revoke a seafood processing permit. The department will afford an opportunity for a hearing before suspending or revoking the permit, unless an inspection or investigation reveals an imminent health hazard. Except in the case of an imminent health hazard, a compliance action under this subsection is subject to the following:

(1) if the department modifies, suspends, or revokes a permit under this subsection, it will send a notice to the permittee stating that, based on the department's written findings,

(A) the permit will be modified, suspended, or revoked, effective 30 days after the date of the notice;

(B) the permittee may not continue to operate after the effective date of a suspension or revocation;

(D) a hearing, if requested, will be held within 10 working days after the department receives a request for hearing;

(2) a hearing under this subsection will

(A) be before the commissioner or a person designated by the commissioner to hear the matter and prepare a recommended decision for the commissioner's review; and

(B) follow the procedures for an adjudicatory hearing in 18 AAC 15; the burden of proof and of going forward with the evidence is upon the department; and

(3) after a hearing under this subsection, the commissioner or designee will affirm, modify, or set aside the modification, suspension, or revocation.

(g) Nothing in this section affects a person's right to a hearing under the Administrative Procedure Act (AS 44.62).

(h) A person whose permit has been suspended or revoked may at any time request that the permit be reinstated. The request will be granted if the department finds that the person has taken adequate corrective action and has taken action necessary to avoid a reoccurrence of the violation.

History: Eff. 12/18/97, Register 144; am/readopt 12/2/99, Register 152

Authority: AS 17.20.005

Editor's note: Effective 12/2/99, Register 152, the Department of Environmental Conservation readopted 18 AAC 34.940, to affirm the validity of that section following statutory amendments made in ch. 72, SLA 1998. The department also amended 18 AAC 34.940(d) (2). Chapter 72, SLA 1998 relocated department authority to adopt regulations in 18 AAC 34 from AS 03.05 to AS 17.20.

The Alaska Administrative Code was automatically converted to HTML from a plain text format. Every effort has been made to ensure its accuracy, but neither Touch N' Go Systems nor the Law Offices of James B. Gottstein can be held responsible for any possible errors. This version of the Alaska Administrative Code is current through June, 2006.

If it is critical that the precise terms of the Alaska Administrative Code be known, it is recommended that more formal sources be consulted. Recent editions of the Alaska Administrative Journal may be obtained from the Alaska Lieutenant Governor's Office on the world wide web. If any errors are found, please e-mail Touch N' Go systems at E-mail. We hope you find this information useful. Copyright 2006. Touch N' Go Systems, Inc. All Rights Reserved.