Section 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.(c) In its discretion, the department will(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 may 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(C) notify the immediate custodian or owner of the results of any laboratory analysis conducted by the department;(2) the immediate custodian or owner may request an expedited hearing in writing not later than 30 days after receipt of the notice of detention by submitting an expedited hearing request to the commissioner and the office of administrative hearings (AS 44.64.010); if a timely request for an expedited hearing is received, the office of administrative hearings will hold an expedited hearing and make a recommended decision to the commissioner or to the the commissioner's designee if the designee is a person other than the person who issued the notice of detention; the office of administrative hearings will hold an expedited hearing under AS 44.62 (Administrative Procedure Act) and 2 AAC 64.100 - 2 AAC 64.990 not later than five working days after receipt of a request and will issue a recommended decision to the commissioner or to the commissioner's designee; the commissioner or the commissioner's designee will issue a final decision not later than five working days after the hearing, or not later than 35 days after the date of the notice of detention, whichever is later; for a fresh seafood product, the office of administrative hearings will conduct an expedited hearing and the commissioner or the commissioner's designee will 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;(C) the permittee may request an expedited [A] hearing under this section not later than 10 days after receiving the notice by serving the expedited hearing request on the commissioner and the office of administrative hearings (AS 44.64.010); and(D) upon receipt of a timely request for an expedited hearing. the office of administrative hearings will hold an expedited hearing;(2) the office of administrative hearings will hold an adjudicatory hearing under AS 44.62 (Administrative Procedure Act) and 2 AAC 64.100 - 2 AAC 64.990 not later than 10 working days after the office of administrative hearings receives the request for an expedited hearing; the burden of proof and of going forward with the evidence is upon the division assigned to environmental health within the department; (3) after an expedited hearing under this subsection, the office of administrative hearings will make a recommended decision to the commissioner or to the commissioner's designee if the designee is a person other than the person who issued the contested decision; the commissioner or the commissioner's designee will affirm, modify, or set aside the modification, suspension, or revocation.(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.Eff. 12/18/97, Register 144; am/readopt 12/2/99, Register 152; am 8/6/2006, Register 179; am 11/5/2017,Register 224, January 2018Effective 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.
Authority:AS 17.20.005
AS 17.20.065
AS 17.20.070
AS 17.20.072
AS 17.20.172
AS 17.20.180
AS 17.20.200
AS 17.20.230
AS 17.20.240
AS 17.20.250
AS 17.20.260
AS 17.20.270
AS 17.20.280
AS 17.20.305
AS 44.46.020