902 KAR 45:080.

Salvage.

 

      RELATES TO: KRS

217.005-217.215, 217.992

      STATUTORY

AUTHORITY: KRS Chapter 13B, 194.050, 211.090, EO 96-862

      NECESSITY,

FUNCTION, AND CONFORMITY: The Kentucky Food, Drug and Cosmetic Act, KRS 217.005

to 217.215 and 217.992 authorizes the Cabinet for Health Services to regulate

the misbranding and adulteration of foods and cosmetics. This administrative

regulation establishes uniform requirements relating to the disposition of

salvaged foods, cosmetics and related merchandise. Executive Order 96-862,

effective July 2, 1996, reorganizes the Cabinet for Human Resources and places

the Department for Public Health and its programs under the Cabinet for Health

Services.

 

      Section 1.

Citation of Regulation. This administrative regulation may be cited as the

"State Food and Cosmetic Salvage Regulation."

 

      Section 2.

Definitions. The following definitions shall apply in the interpretation and

the enforcement of this administrative regulation:

      (1)

"Employee" means any person employed by a salvage processing plant or

salvage distributor who does, or may in any manner handle or come in contact

with the handling, storing, transporting, or selling of distressed, salvageable

or salvaged food, cosmetics, or other items listed under subsection (9) of this

section.

      (2)

"Distressed merchandise" means any food, cosmetic, or other item

listed under subsection (9) of this section which has had the label lost or

which has been subjected to possible damage due to accident, mishandling, fire,

flood, adverse weather, or to any other similar cause; or which is suspected of

having been rendered unsafe or unsuitable for human or animal consumption or

use, or which is misbranded, short filled, over or inadequately processed, or

below grade.

      (3)

"Nonsalvageable merchandise" means "distressed

merchandise," as defined in subsection (3) of this section, which cannot

be safely or practically reconditioned.

      (4)

"Perishable food" means that there exists a significant risk of

spoilage or deterioration when a food has not been properly stored, or handled.

      (5)

"Potentially hazardous food" means any food or ingredient, natural or

synthetic:

      (a) In a form

capable of supporting the:

      1. Rapid and

progressive growth of infectious or toxigenic microorganisms; or

      2. Slower growth

of Clostridium botulinum.

      (b) Of animal

origin, either raw or heat treated; and

      (c) Of plant

origin which:

      1. Has been

treated; or

      2. Is raw seed

sprouts.

      (d) The

following are excluded:

      1. Air dried

hard boiled eggs with shells intact;

      2. Food with

water activity (aw) value of 0.85 or less;

      3. Food with a

hydrogen ion concentration (pH) level of four and six-tenths (4.6) or below;

      4. Foods in

unopened hermetically sealed containers that have been commercially processed

to achieve and maintain commercial sterility under conditions of

nonrefrigerated storage and distribution; and

      5. Food for

which laboratory evidence demonstrates that rapid and progressive growth of

infectious and toxigenic microorganisms or the slower growth of Clostridium botulinum

cannot occur.

      (6)

"Reconditioning" means any appropriate process or procedure by which

distressed merchandise can be brought into compliance with all cabinet

requirements making it suitable for consumption or use as human or animal feed.

      (7) "Salvageable

merchandise" means any distressed food, cosmetic, or other item listed

under subsection (9) of this section which can be reconditioned, labeled,

relabeled, repackaged, recoopered, sorted, cleaned, culled or by any other

means be salvaged to the satisfaction of the cabinet.

      (8)

"Salvaged merchandise" means previously distressed merchandise which

has been reconditioned or salvaged pursuant to the provisions of this

administrative regulation and is acceptable for such human or animal

consumption or use as may be designated by the cabinet.

      (9)

"Sanitize" means adequate treatment of food-contact surfaces by a

process that is effective in destroying vegetative cells of microorganisms of

public health significance and in substantially reducing numbers of other

microorganisms. Such treatments shall not adversely affect the product and

shall be safe to the consumer.

      (10)

"Vehicle" means any truck, car, bus, railcar, aircraft, boat, ship,

or other means by which distressed, salvageable or salvaged merchandise is

transported from one (1) location to another.

      (11)

"Salvage dealer" means any person who is engaged in selling or

distributing salvaged merchandise.

      (12)

"Salvage processor" means any person who engages in the business of

reconditioning salvageable or salvaged merchandise for sale or further

distribution.

      (13)

"Supplier" means any person who transfers distressed merchandise to a

salvage processor.

 

      Section 3.

Permit Requirements. (1) No person shall operate a salvage processing plant or

act as a salvage dealer or distributor within the Commonwealth of Kentucky, who

does not possess a permit issued by the cabinet. Only a person who complies

with the requirements of this administrative regulation shall be entitled to

receive and retain such a permit which will be of two (2) types:

      (a) Salvage

processing permit; and

      (b) Salvage

distributing permit. Permits shall not be transferable from one (1) person to

another person or place. A permit shall be posted in every processing plant,

and each distributor shall have a copy of a valid permit in each vehicle which

he operates. The name and address of the salvage processing plant or

distributor and the permit number must be conspicuously displayed on the

outside of all vehicles being used for salvage operations. Each permit shall

expire on December 31 next following its date of issuance.

      (2) Issuance of

permits. Any person desiring to operate a salvage processing plant or act as a

salvage distributor shall make written application for a permit on Form DFS-200.

This form is incorporated by reference and may be viewed or obtained at the

Department for Public Health, 275 East Main Street, Frankfort, Kentucky 40621,

Monday through Friday between the hours of 8 a.m. and 4:30 p.m. Upon receipt of

such an application, the cabinet shall make an inspection of the salvage

processing plant or distributor's operations to determine compliance with the

provisions of this administrative regulation. When inspection reveals that the

applicable requirements of this administrative regulation have been met, a

permit shall be issued to the applicant by the cabinet.

 

      Section 4.

Notice to Cabinet of Distressed Merchandise. It shall be the duty of any person

owning or having possession of any merchandise listed in Section 2(9) of this

administrative regulation which becomes distressed merchandise to notify the

cabinet if possible prior to such merchandise being removed from the premises

at which it was located at the time it became distressed merchandise. If

emergency removal of distressed merchandise is required, notice to the cabinet

shall be made as soon thereafter as possible. It shall also be the duty of the

owner or manager of the salvage processing plant to notify the cabinet within

forty-eight (48) hours or, as soon as possible thereafter, whenever distressed

merchandise subject to the provisions of this administrative regulation is

obtained.

 

      Section 5.

Movement of Distressed Merchandise. Distressed merchandise shall be moved from

the site of a fire, flood, sewer back-up, wreck or other cause as expeditiously

as possible after compliance with Section 4 of this administrative regulation

so as not to become putrid, unwholesome, rodent or insect harborages, or

otherwise, a menace to public health. All distressed and salvageable merchandise

of a perishable nature shall, prior to reconditioning, be transported only in

vehicles provided with adequate refrigeration or freezing capabilities

necessary for product maintenance. No interstate movement of known distressed

or salvageable merchandise shall be made without the prior approval of the

cabinet, the appropriate control agency in the state receiving the merchandise,

and the Federal Food and Drug Administration.

 

      Section 6.

Handling of Distressed Merchandise. (1) If distressed articles unrelated to

foods, cosmetics, etc. are also salvaged, they shall be handled in rooms

separate from those in which foods are reconditioned.

      (2) Sufficient

precautions shall be taken to prevent cross-contamination (e.g., animal feed to

human food) among the various types of merchandise which are salvageable or

salvaged.

 

      Section 7.

Reconditioning and Labeling of Distressed Merchandise. (1) All salvageable

distressed merchandise shall be reconditioned prior to sale or distribution

except for such sale or distribution to a person holding a valid salvage

processing permit issued by the cabinet.

      (2) All metal

cans of food offered for sale or distribution shall be free of any evidence of

rust pitting, and essentially free of dents (especially at rim, end double

seams and/or side seams). Any metal container for which buffing is required to

remove pitted rust and leakers, springers, flippers, and swells shall be deemed

unfit for sale or distribution. Containers, including metal and glass

containers with press caps, screw caps, pull rings or other types of openings

which have been in contact with water, liquid foam, or other deleterious

substances, as a result of firefighting efforts, flood, sewer back-up, or

similar mishaps, shall be deemed unfit for sale or distribution, i.e.,

nonsalvageable merchandise as defined in Section 2(4) of this administrative

regulation, except that consideration may be given to reconditioning spirits by

distillation where feasible.

      (3) All metal

containers of food, other than those mentioned in subsection (2) of this

section, whose integrity has not been compromised and whose integrity would not

be compromised by the reconditioning, and which have been partially or totally

submerged in water, liquid foam, or other deleterious substance as the result

of flood, sewer back-up, or other reasons shall, after thorough cleaning, be

subjected to a sanitizing rinse of a concentration of 100 ppm available

chlorine for a minimum period of one (1) minute, or shall be sanitized by

another method approved by the cabinet, and subsequently be treated to inhibit

rust formation. All other types of packages (including cans or tins which are

opened by pull tabs) so damaged shall be deemed unsafe for use or sale.

      (4) Label

removal. Any cans showing surface rust shall, after having their labels

removed, be inspected and destroyed if they contain pin holes. If salvageable,

they shall then be cleaned by a method approved by the cabinet before

relabeling. Any container of food with the label or mandatory information

missing, that cannot be identified and relabeled correctly, shall not be sold.

When original labels are missing or illegible, relabeling or overlabeling shall

be required.

      (5) Relabeling.

All salvaged merchandise shall be labeled to indicate that the merchandise has

been salvaged. All salvaged merchandise in containers is to be provided with

labeling meeting the appropriate requirements of KRS 217.035 and 217.037. Where

original labels are removed from containers which are to be resold or

redistributed, the replacement labels must show as the distributor, the name

and address of the salvage processing plant.

 

      Section 8.

Records of Distressed Merchandise. A written record or receipt of distressed,

salvageable and salvaged merchandise shall be kept by the salvage processing

plant and shall be kept open for inspection by the cabinet during business

hours. The records shall include the name of the product, the name and address

of the manufacturer or distributor, the production code, container sizes,

source of the distressed merchandise, the date received, the type of damage,

and the salvage process conducted. These records shall be kept on the premises

of the salvage processing plant for a period of one (1) year following the completion

of transactions involving a lot of merchandise.

 

      Section 9.

Protection from Contamination. (1) All salvageable and salvaged merchandise,

while being stored or reconditioned at a salvage processing plant, or during

transportation, shall be protected from contamination. All perishable foods as

well as those susceptible to microbial contamination shall be stored at such

temperatures as will protect against spoilage. All potentially hazardous foods

shall be maintained at safe temperatures (forty-five (45) degrees Fahrenheit or

below or 140 degrees Fahrenheit or above). Frozen foods shall be maintained at

zero degrees Fahrenheit or below. Poisonous and toxic materials shall not be

transported with distressed, salvageable or salvaged merchandise or stored in a

salvage processing plant; unless effective separation is provided. However,

such poisonous and toxic materials as are required to maintain sanitary

conditions and for sanitation purposes may be used or stored in salvage

processing plants. Such poisonous and toxic materials shall be identified, and

shall be used only in such manner and under such conditions as will not

contaminate distressed, salvageable or salvaged merchandise, shall not

constitute a hazard to employees and, when not in use, shall be stored in

cabinets which are used for no other purpose.

      (2) Segregation

of merchandise. All salvageable merchandise shall be promptly sorted and

segregated from nonsalvageable merchandise to prevent further contamination of

the merchandise to be reconditioned for sale or distribution.

 

      Section 10.

Personnel Health and Disease Control. (1) No employee while affected with any

disease in a communicable form, or while a carrier of such disease, or while

afflicted with boils, infected wounds, sores, or an acute respiratory

infection, shall work in an area of a salvage processing plant or for a salvage

distributor in any capacity in which there is a likelihood of such person

contaminating salvageable or salvaged merchandise with pathogenic organisms, or

transmitting disease to other individuals; and no person known or suspected of

being affected with any such disease or condition shall be employed in such an

area or capacity. If the manager or person in charge of the establishment has

reason to suspect that any employee has contracted any disease in a communicable

form or has become a carrier of such disease, he or she shall notify the

cabinet immediately.

      (2) All

employees shall wear clean outer garments, maintain a high degree of personal

cleanliness, and conform to good hygienic practices while on duty. Employees

shall wash their hands thoroughly in an approved hand-washing facility before

starting work, and as often as may be necessary to remove soil and

contamination. No employee shall resume work after visiting the toilet room

without first washing his or her hands. The consumption of food or beverages

and the use of tobacco in any form shall be allowed only in designated areas

and not in areas where food is exposed or in areas used for washing equipment

and utensils.

 

      Section 11.

Salvage Processing Plant Equipment and Utensils. (1) All equipment and utensils

used in a salvage processing plant shall be so designed and of such material

and workmanship as to be smooth, easily cleanable and durable, and shall be in

good repair; and the surfaces of such equipment and utensils coming in contact

with food and other food contact surfaces shall, in addition, be easily

accessible for cleaning, nontoxic, corrosion-resistant and nonabsorbent;

provided, that, when approved by the cabinet, exceptions may be made to the

above materials requirements.

      (2) All

equipment shall be so installed and maintained as to facilitate the cleaning

thereof, and of all adjacent areas. Equipment which was installed prior to

March 12, 1975 which does not meet fully the above requirements, may be

continued in use if it is in good repair, capable of being maintained in a

sanitary condition and surfaces coming in contact with salvageable or salvaged

merchandise are nontoxic.

 

      Section 12.

Equipment and Utensil Cleaning and Sanitization. (1) Effective means of

cleaning and sanitizing equipment, utensils, and soiled food containers, shall

be provided. In new or extensively altered salvaged processing plants a three

(3) compartment sink and/or a suitable automatic pressurized spray-type ware

washing machine capable of washing and sanitizing with hot water or chemical

sanitizers shall be provided and conveniently located within the processing

area.

      (2) Cleaning

frequency. All utensils and food-contact surfaces in a salvage processing plant

shall be thoroughly cleaned and sanitized prior to use. All other surfaces of

equipment shall be cleaned at such intervals as necessary. After cleaning and

until use, all equipment and utensils shall be stored and handled as to be

protected from contamination.

 

      Section 13.

Salvage Processing Plant Sanitary Facilities and Controls. (1) Water supply.

The water supply shall be adequate, of a safe, sanitary quality and from a

source approved by the Natural Resources and Environmental Protection Cabinet.

Hot and cold running water under pressure shall be provided in all areas where

foods, or cosmetics are processed, or equipment, utensils, or containers are

washed.

      (2) Sewage. All

sewage and other liquid waste shall be disposed of in a public sewerage system

or, in the absence thereof, in a manner approved by the Natural Resources and

Environmental Protection Cabinet or the cabinet.

      (3) Plumbing.

All plumbing shall comply with the State Plumbing Code.

      (4) Toilet

facilities. Each salvage processing plant shall be provided with adequate,

conveniently located toilet facilities for its employees. In new establishments

or establishments that are extensively altered, toilet facilities shall be

provided in accordance with the requirements of the State Plumbing Code. Toilet

fixtures shall be of sanitary design and readily cleanable. Toilet facilities,

including rooms and fixtures, shall be kept in a clean condition and in good

repair. The doors of all toilet rooms shall be self-closing. Toilet tissue

shall be provided. Easily cleanable receptacles shall be provided for waste

materials and such receptacles in toilet rooms shall be covered.

      (5) Lavatories.

Each salvage processing plant shall be provided with adequate, conveniently

located hand-washing facilities for its employees, including a lavatory or

lavatories equipped with hot and cold or tempered running water, hand-cleansing

soap or detergent, and approved sanitary towels or other approved hand-drying

devices. Such facilities shall be kept clean and in good repair.

      (6) Garbage and

refuse. All refuse containing foods or cosmetics shall be kept in leak-proof,

nonabsorbent containers be kept in leak-proof, nonabsorbent containers which

shall be kept covered with tight-fitting lids when filled or stored, or not in

continuous use; provided, that such containers need not be covered when stored

in a special vermin-proofed room or enclosure, or in a waste refrigerator. All

other refuse shall be stored in containers, rooms, or areas in an approved

manner. Adequate cleaning facilities shall be provided, and each container,

room or area shall be thoroughly cleaned after the emptying or removal of

refuse. All refuse shall be disposed of with sufficient frequency and in such a

manner as to prevent contamination of salvaged product and surrounding

processing areas.

      (7) Insect and

rodent control. Effective measures shall be taken to protect against the

entrance, breeding, and presence of rodents, insects, and other vermin in the

salvage processing plant.

 

      Section 14. Salvage

Plant Construction and Maintenance. (1) Floors. The floor surfaces in all rooms

and areas in which salvageable or salvaged merchandise is stored or processed

and in which utensils are washed, and in walk-in refrigerators, dressing or

locker rooms, and toilet rooms, should be constructed as to be easily

cleanable. All floors shall be kept clean and in good repair. Floor drains

shall be provided in all rooms where floors are subjected to flooding-type

cleaning or where normal operations release or discharge water or other liquid

waste onto the floor.

      (2) Walls and

ceilings. The walls and ceilings of all rooms shall be clean and in good

repair.

      (3) Lighting.

      (a) At least

thirty (30) foot-candles of light at a distance of thirty (30) inches from the

floor shall be provided in all areas in which salvageable or salvaged

merchandise is processed or stored, where utensils are washed, and in

hand-washing areas. Dressing or locker rooms, toilet rooms, and refuse storage

areas should be adequately lighted. During all cleanup activities, adequate

light shall be provided in all other areas to facilitate cleaning and good

sanitation.

      (b) Protective

shielding.

      1. Shielding to

protect against broken glass falling onto unpackaged food shall be provided for

all artificial lighting fixtures located over or within food-storage,

food-preparation, and food-display areas.

      2. Infrared or

other heat lamps shall be protected against breakage by a shield surrounding

and extending beyond the bulb, leaving only the face of the bulb exposed.

      (4) Ventilation.

All rooms and processing areas in the salvage processing plant should be well

ventilated. Ventilation hoods and devices when used shall be designed to

prevent condensate from dripping into foods or cosmetics, or onto preparation

surfaces. Filters, when used, shall be readily removable for cleaning or

replacement. Ventilation systems shall comply with applicable state and local

fire-prevention requirements and shall, when vented to the outside air,

discharge in such manner as not to create a nuisance.

      (5) Locker area.

Adequate facilities should be provided for the orderly storage of employee's

clothing and personal belongings.

      (6)

Housekeeping. All parts of the salvage processing plant and its premises shall

be kept clean and free of litter and refuse. Cleaning operations shall be

conducted in such a manner as to prevent contamination of salvageable and

salvaged merchandise. None of the operations connected with a salvage

processing plant shall be conducted in any room used as an employee lounge or

living or sleeping quarters. Soiled coats and aprons should be kept in suitable

containers until removed for laundering. No live birds or animals shall be

allowed in any area used for the conduct of a salvage processing plant's operations

or for the storage of salvageable and salvaged merchandise except that patrol

dogs accompanying security or police officers are permitted. Guide dogs

accompanying blind persons shall be permitted in sales areas.

      (7) Vehicles.

Vehicles used to transport distressed, salvageable, or salvaged merchandise

should be maintained in a clean condition to protect the product from

contamination.

 

      Section 15. Plan

Review of Future Construction. When a salvage processing plant is hereafter

constructed or extensively remodeled, or when an existing structure is

converted for use as a salvage processing plant, properly prepared plans and

specifications for such construction, remodeling, or alteration, showing

layout, arrangements, and construction materials of work areas and the

location, size and type of fixed equipment facilities, and a plumbing riser

diagram shall be submitted to the cabinet for approval before such work is

begun.

 

      Section 16.

Inspections; Notices. (1) Inspection. At least once every twelve (12) months,

the cabinet shall inspect each salvage processing plant and distributor and

shall make as many additional inspections and reinspections as are necessary

for the enforcement of this administrative regulation.

      (2) Inspection

records. Whenever the cabinet makes an inspection of a salvage processing plant

or distributor, its representative shall record the findings on an inspection

report form provided for this purpose, and shall furnish a copy of such

inspection report form to the permit holder or his representative in charge.

      (3) Issuance of

notices. Whenever the cabinet makes an inspection of a salvage processing plant

or distributor and determines that any of the requirements of this

administrative regulation have been violated, the cabinet shall notify the

permit holder or person in charge of such violations by means of an inspection

report form or other written notice. In such notification, the cabinet shall:

      (a) Set forth

the specific violations found.

      (b) Establish a

specific and reasonable period of time for the correction of the violations

found.

      (c) State that

failure to comply with any notice issued in accordance with the provisions of

this administrative regulation may result in suspension of the permit.

      (d) State that

an opportunity for appeal from any notice of inspection findings will be

provided if a written request for a hearing is filed with the cabinet within

the period of time established in the notice for correction.

      (4) Service of

notices. Notices provided for under this section shall be deemed to have been

properly served when a copy of the inspection report form or other notice has

been delivered personally to the permit holder or person in charge, or such

notice has been sent by registered or certified mail, return receipt requested,

to the last known address of the permit holder. A copy of such notice shall be

filed with the records of the cabinet.

 

      Section 17.

Salvage Processing Plants and Distributors Outside Jurisdiction of the Cabinet.

Salvaged merchandise from salvage processing plants and distributors located

outside the jurisdiction of the Commonwealth of Kentucky may be sold within the

state, if such plants and distributors conform to the provisions of this

administrative regulation or to substantially equivalent provisions and have a

valid permit from the cabinet. To determine the extent of compliance with such

provisions, the cabinet may accept reports from responsible authorities in

other jurisdictions where such plants and distributors are located.

 

      Section 18. Suspension

and Revocation of Permits. (1) Whenever the cabinet has reason to believe that

an imminent public health hazard exists, or whenever the permit holder has

interfered with the cabinet in the performance of its duties, the permit may be

suspended immediately upon notice to the permit holder without a hearing. In

such event, the permit holder may request a hearing.

      (2) In all other

instances of violation of the provisions of this administrative regulation, the

cabinet shall serve upon the holder of the permit a written notice specifying

the violations in question and afford the holder a reasonable opportunity to

correct same. Whenever a permit holder or operator has failed to comply with

any written notice issued under the provisions of this administrative

regulation, the permit holder or operator shall be notified in writing that the

permit shall be suspended at the end of ten (10) days following service of such

notice, unless a written request for a hearing is filed in accordance with 902

KAR 1:400.

      (3)

Reinstatement of suspended permits. Any person whose permit has been suspended

may at any time make application for a reinspection for the purpose of

reinstatement of the permit. Within ten (10) days following receipt of a

written request, including a statement signed by the applicant that in his

opinion the conditions causing the suspension of the permit have been

corrected, the cabinet shall make a reinspection. If the applicant is complying

with the requirements of this administrative regulation, the permit shall be

reinstated.

      (4) Revocation

of permits. For serious or repeated violations of any of the requirements of

this administrative regulation, or for interference with the cabinet in the

performance of its duties, the permit may be permanently revoked after an

opportunity for a hearing has been provided by the cabinet. Prior to such

action, the cabinet shall notify the permit holder in writing, stating the

reasons for which the permit is subject to revocation and advising that the

permit shall be permanently revoked at the end of ten (10) days following

service of such notice, unless a request for a hearing is filed in accordance

with 902 KAR 1:400. A permit may be suspended for cause pending its revocation

or a hearing relative thereto.

      (5) Hearings.

All administrative hearings shall be conducted in accordance with 902 KAR

1:400. (1 Ky.R. 55; eff. 3-12-75; Am. 13 Ky.R. 2134; eff. 7-2-87; 18 Ky.R. 869;

eff. 10-16-91; 22 Ky.R. 2459; eff. 8-1-96.)