902 KAR 45:080.
RELATES TO: KRS
AUTHORITY: KRS Chapter 13B, 194.050, 211.090, EO 96-862
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
Citation of Regulation. This administrative regulation may be cited as the
"State Food and Cosmetic Salvage Regulation."
Definitions. The following definitions shall apply in the interpretation and
the enforcement of this administrative regulation:
"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
"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
"Nonsalvageable merchandise" means "distressed
merchandise," as defined in subsection (3) of this section, which cannot
be safely or practically reconditioned.
"Perishable food" means that there exists a significant risk of
spoilage or deterioration when a food has not been properly stored, or handled.
"Potentially hazardous food" means any food or ingredient, natural or
(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
1. Has been
2. Is raw seed
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
"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.
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.
"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.
"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.
"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.
"Salvage dealer" means any person who is engaged in selling or
distributing salvaged merchandise.
"Salvage processor" means any person who engages in the business of
reconditioning salvageable or salvaged merchandise for sale or further
"Supplier" means any person who transfers distressed merchandise to a
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:
processing permit; and
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.
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
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.
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.
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
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.
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
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.
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.
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.
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.
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
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
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.
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.
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
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.
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
(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.
All plumbing shall comply with the State Plumbing Code.
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.
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
(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
(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
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.
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.
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.
Vehicles used to transport distressed, salvageable, or salvaged merchandise
should be maintained in a clean condition to protect the product from
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
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.
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
(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.
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
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
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.
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.)